Public Defenders

Short Notes 2005

1

PHAM, Bao Ngoc - CCA, 4.2.2005
Sully, Dunford & Hidden JJ
Citation: R v Pham [2005] NSWCCA 9
Conviction and sentence appeal.
Murder.
25y with NPP of 20y.
Deceased was a wholesale drug dealer, described as being a mid-range distributor of heroin. The appellant was a retail distributor & was assisted by 3 or 4 other persons. Appellant was the principal in this retail operation. He & a co-offender met with the deceased, who was supposedly going to sell guns & ammunition to them. Deceased was shot 3 times during this meeting. The co-offender was found guilty of the murder of the deceased & was sentenced to 13y 35w with a NPP of 10y 9w. His conviction was subsequently quashed & a new trial ordered. It was proposed by the Crown to try the appellant & the co-offender jointly. The co-offender made a separate trial application, which was granted, & his re-trial was fixed for the following day. Prior to the commencement of his re-trial, he negotiated with the DPP & a nolle prosequi was entered on the murder charge, conditional upon him pleading guilty to a charge of having been an accessory after the fact to murder, that he would provide further information to police & that he would undertake to give truthful evidence for the Crown at the appellant's trial.
Aged 2 months short of 18th birthday at time of offence - born in Vietnam - completed year 5 in Vietnam, then attended school in Australia & completed year 9 - not attracted to learning - family life consisted of rigid routine of work & school, little socialisation or fun - drank alcohol mainly on weekends - did not use illicit drugs - formed relationship with young woman & has a young child - below average intelligence.
Whether trial miscarried - whether verdict unreasonable - rulings - directions - common enterprise - witness evidence - self-defence - provocation - motive.
Whether sentence excessive - whether sufficient weight given to appellant's youth - parity.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 20y with NPP of 16y.
2

LYKOURAS, Paul - CCA, 4.2.2005
Sully, Hidden & Howie JJ
Citation: R v Lykouras [2005] NSWCCA 8
Application for leave to appeal against interlocutory order granting leave to the Crown to amend an indictment under s.20 of the Criminal Procedure Act; and
Crown appeal against order for separate trials.
The van driven by the accused failed to take a sweeping curve in the road, left the roadway for about 7 metres & collided with a telegraph pole. As a result of the impact, GBH was caused to the female passenger sitting in the front seat. At the time of the collision, the accused was under the influence of morphine & cannabis. The accused was committed for trial to the DC on an indictment containing a single count under s.52A(3)(a). On the day the trial was to commence, the Crown made an application to the DC judge to amend the indictment by adding a further & alternative count under s.52A(3)(c). Having granted leave to amend the indictment, the DC judge then ordered that there be separate trials of the 2 counts.
Whether leave to amend indictment should have been granted - if so, whether separate trials should have been ordered.
Leave to appeal against order granting leave to the Crown to amend the indictment granted but appeal refused.
Crown appeal against order for separate trials allowed: order quashed.
3

O'CONNOR, Anthony Ross - CCA, 31.1.2005
Sully & Kirby JJ
Citation: R v O'Connor [2005] NSWCCA 5
Sentence appeal.
Maliciously wounding with intent to do GBH.
11y with a NPP of 8y 3m.
The above offence involved an unprovoked, vicious attack upon the victim, as a result of which the victim suffered very serious injuries. Apart from the above count, applicant had also been charged with wound with intent to murder, however, the jury returned a verdict of not guilty on that count.
Whether error in assessing future dangerousness - under the influence of Temazepam & alcohol at the time of offending - whether error in failure to give any or sufficient weight to subjective circumstances - whether error in weight given to use of weapon - finding of 'gratuitous cruelty'- whether sentence manifestly excessive.
Appeal dismissed.
4

NICHOLLS and COATES - HCA, 3.2.2005 219 CLR 196; 79 ALJR 468
Citation: Nicholls v The Queen; Coates v The Queen [2005] HCA 1
On appeal from the SC of WA.
Appellants were convicted of the wilful murder of a female prostitute who intended giving evidence against them in future criminal proceedings. The Crown case was based primarily upon the co-offender, who received a reduced sentence in return for assistance. The Crown also relied upon an untaped admission made by Coates to police during a break in the videotaped ROI. There was no attempt to have the admission subsequently affirmed on video & no contemporaneous notes were made of the admission. Notes made on the following day were lost. The trial judge refused to admit evidence from a defence witness that the Crown witness told him he made a deal with police & would give false evidence against the appellants.
Evidence - admissibility of admissions made off-video during interview with accused - whether reasonable excuse for not videotaping admissions - Criminal Code (WA), s.570D(2)(b), (4) - admissibility of evidence of prior inconsistent statement of witness - whether evidence of statement went to issue - whether admissible as exception to rule against admission of collateral statements - whether exceptions of bias, interest or corruption applicable - whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination - whether evidence of prior inconsistent statement hearsay - whether exception to hearsay rule - jury directions - whether trial judge'ss direction accorded with McKinneyv The Queen - appropriateness of reference to possible perjury on part of police.
Appeal dismissed.
5

WILLIAMS, Luke Sheridan - CCA, 9.2.2005
Sully, Hidden & Howie JJ
Citation: R v Williams [2005] NSWCCA 14
Sentence appeal.
Maliciously inflict GBH with intent to inflict GBH.
3y with NPP of 18m.
Applicant assaulted his stepfather because of an allegation that he had sexually assaulted the applicant's sister when she was 9 years old. During the assault, applicant at one time armed himself with a mattock & at another time with an axe. Members of his family intervened & disarmed him, however, he punched & kicked the victim. When the victim tried to escape, the applicant pursued him & struck him twice to the back of the head with a piece of dead branch. The victim suffered a skull fracture with bleeding & swelling to the brain & was hospitalised for a little over 3 weeks. He underwent surgery for the reconstruction of his skull, which included the insertion of metal plates.
Aged 32 at time of sentencing - remorse - psychotic illness - auditory hallucinations - drug abuse - intended to continue experimenting with drugs - no priors.
Whether error in sentencing judge's assessment of evidence relating to applicant's mental & psychiatric condition at time of offence - whether error in assessment of culpability - whether sentence excessive.
Appeal dismissed.
6

SMITH, Adam Eric - CCA, 9.2.2005
Grove & James JJ
Citation: R v Smith [2005] NSWCCA 19
Sentence appeal.
Dangerous drive causing death.
7y with NPP of 4y.
Applicant was driving his vehicle on a rural road when he overtook another vehicle after entering a 100kph zone. The driver of the other vehicle estimated that the applicant's vehicle was driving at about 115 kph at the time of overtaking. When the applicant's vehicle was about 2 car lengths in front of the overtaken vehicle, he lost control of it & the car left the road, entered a paddock & rolled over a number of times before coming to rest. Applicant's passenger, who was his girlfriend, was killed. A blood sample taken from the applicant in hospital a short time later indicated a blood alcohol reading of 0.208 grams per 100ml.
Aged 30 at time of offence - priors, including driving offences - alcohol problem - no previous imprisonment.
Error in imposing sentence in accordance with terms of repealed version of s.44 Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Appeal allowed: resentenced to 6y with NPP of 3y.
7

KAMLEH - HCA, 3.2.2005 79 ALJR 541
Citation: Kamleh v The Queen [2005] HCA 2
On appeal from the SC of SA.
Appellant was charged with the murder of 2 of his associates who were found shot dead in a unit. Appellant claimed to have been with a co-offender at a nightclub all evening. His co-offender was not called as a witness. The co-offender was convicted of manslaughter in a separate trial.
Evidence - hearsay - admissibility of out of court statements of co-offender to 3rd party in absence of appellant - whether evidence of out-of-court statements adduced to prove intention is admissible - Walton v The Queen (1989) 166 CLR 283 discussed.
Appeal dismissed.
8

GIDARO, Paul - CCA, 7.2.2005
Grove, Hidden & Bell JJ
Citation: R v Gidaro [2005] NSWCCA 18
Sentence Appeal.
1 x supply trafficable quantity MDMA (ecstasy); 1 x supply trafficable quantity amphetamine; + Form 1 offences ( 1 x possess cannabis; 1 x possess heroin; 1 x possess methylamphetamine).
Total of 3y with NPP of 18m.
An unmarked police car observed applicant's car travelling at speed around a corner at an intersection. The car was stopped & police approaching the car noticed a strong smell of cannabis coming from it. As the applicant took his driver's licence from his wallet, police noticed a large number of dollar bills. Police located 7 small clear bags of green vegetable matter in the pocket of applicant's shorts. Applicant was taken to Burwood police station where he participated in an ERISP. While the interview was taking place, police searched his wallet & found a white powdery substance, which upon analysis was found to be heroin, & 2 small clear plastic bags containing speed. In another compartment of the wallet, they found 11 ecstasy tablets & 17 tablets of speed. The ecstasy weighed 2.81 grams & the amphetamine weighed 4.38 grams.
Whether sentence manifestly excessive.
Appeal dismissed.
9

J & H - CCA, 11.2.2005 - 152 A Crim R 152
Santow JA, Bell & Howie JJ
Citation: R v J & H [2005] NSWCCA 1
Crown appeals.
Attempt possess commercial quantity MDMA (ecstasy).
J: 7*y with NPP of 4y.
H: 7y with NPP of 3y 9m.
The sentencing judge made an order that respondents be identified by the pseudonyms J & H in order to protect J, who provided assistance to authorities.
Dutch authorities notified the Australian authorities about a syndicate involved in international narcotic trafficking & advised them of a person who was travelling to Australia to facilitate a drug importation into Australia. Australian authorities intercepted the packages of drugs on their arrival & carried out a controlled delivery. During police investigations, it became clear that the respondents were involved in the enterprise.
Sentencing - whether starting point in each case too low - whether sentences manifestly inadequate.
Appeals allowed: J resentenced to 9*y with NPP of 5y 9m; H resentenced to 9y with NPP of 5y 3m.
10`

OLIVER, Daryl Shane - CCA, 4.2.2005
Sully & Kirby JJ
Citation: R v Oliver [2005] NSWCCA 6
Sentence appeal.
Count 1: BE&S in circumstances of aggravation (in company); + 5 Form 1 offences - 5y with NPP of 3y.
Count 2: BE&S - FT of 3y (concurrent).
Total sentence of 5y with NPP of 3y.
Both BE&S offences were committed upon residential premises.
Aged 31 - basic education - alcohol/drug abuse - significant criminal record - previous imprisonment.
Guilty plea - utilitarian value - Irrelevance of strength of Crown case - whether Court should intervene - s.6(3) Criminal Appeal Act 1912 - principle for intervention.
Appeal allowed on count 1: applicant resentenced on that count to 4*y with a NPP of 2*y. An order was made that applicant be released to parole at the expiry of the 2*y NPP.
The Court failed to take into account the concurrent 3y FT imposed for the BE&S on count 2.
11

OLIVER, Daryl Shane - CCA, 14.2.2005
Sully & Kirby JJ
Citation: R v Oliver [No 2] [2005] NSWCCA 27
Amending Orders re judgment published on 4 February 2005.
At the time of handing down the judgment & resentencing the applicant in R v Oliver [2005] NSWCCA 6, the Court overlooked the fact that in respect of count 2 a concurrent FT of 3y had been imposed at 1st instance to date from 15.8.2002 to 14.8.2005. That term should also have been adjusted to coincide with the NPP in respect of count 1, that is, from 15.8.2002 to 14.2.2005.

New Orders:
1. That the time for filing the Notice Seeking Leave to Appeal be extended.
2. That leave to appeal be granted.
3. That the appeal be allowed and that the sentence imposed on 3 May 2003 be quashed.
4. That in lieu of the sentence in respect of Count 1, and taking into account the matters on the Form 1, the applicant be sentenced to a term of imprisonment of 4 years 6 months commencing on 15 August 2002 and expiring on 14 February 2007, with a non parole period of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005, at which time the applicant will be eligible for release on parole.
5. In respect of Count 2, the applicant be sentenced to a fixed term of imprisonment of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005.

12

HASAN, Tezay - CCA, 4.2.2005
Dunford & Bell JJ
Citation: R v Hasan [2005] NSWCCA 21
Sentence appeal; extension of time.
2 x robbery in company.
Total of 4y with NPP of 2y.
Applicant's co-offender received the same sentence.
Applicant & his co-offender committed robberies upon 2 taxi drivers. On each occasion force was used & threats made. The applicant grabbed each of the taxi drivers from behind by the throat with both arms & the co-offender threatened to stab them.
Aged 19 at time of offences - priors - on two 12m GBB's at time of robberies.
Guilty plea - whether error in assessing value of plea as being limited by a strong Crown case - whether error in failure to reflect significant element of leniency - principles enunciated in R v Ellis (1986) 6 NSWLR 603.
Extension of time granted. Appeal dismissed.
13

MAHER, Aaron John Lee - CCA, 2.2.2005 - 154 A Crim R 457
WELSH, Dwayne Eric
LARDNER, Craig Vincent
PRIESTLY, Ronald
Dunford & Kirby JJ
Citation: R v Maher; R v Welsh; R v Lardner; R v Priestly [2005] NSWCCA 16
Sentence appeals.
Maher, Welsh, Lardner: Riot (s.93B Crimes Act 1900) - 4y with NPP of 1y, cumulative on sentences already being served.
Priestly: Riot - 4y with NPP of 1y, cumulative on sentences already being served; maliciously inflict GBH with intent to inflict GBH (s.33) - 16y with NPP of 12y, cumulative on sentences already being served & cumulative on sentence for riot offence.
Applicants were prisoners involved in a riot at Goulburn Gaol on 16.4.2002. All applicants entered guilty pleas.
Parity - totality.
Appeals allowed & applicants resentenced as follows:
Maher: 2y with NPP of 12 m;
Welsh 18m with NPP of 12m;
Lardner: 2y with NPP of 12m;
Priestly: sentence for riot offence confirmed; sentence for maliciously inflict GBH offence reduced to 15y with NPP of 11y, to be served partly consecutively with sentence for riot offence. New total sentence of 16y with a NPP of 12y.
All sentences ordered to be served consecutively with existing sentences.
14

HOWARD, Garry Ronald - CCA, 15.2.2005 - 152 A Crim R 7
Hunt AJA, Grove & James JJ
Citation: R v Howard [2005] NSWCCA 25
Conviction appeal.
1 x deemed supply commercial quantity cannabis leaf.
2*y with NPP of 1y 10*m.
Police searched a 100 acre property owned by appellant's 78 year old mother. In the past, the property had been a banana plantation. Appellant's mother's house was on one side of the road that ran through the property & appellant's house on the other side. Over a period of time, about 20 acres was leased out to a Mr Sharp, who operated a sawmill on the plantation. Police searched the property during the appellant's absence overseas & located cannabis in 3 principal locations: within a chained & locked refrigerator in a workshop; in a cupboard which had been nailed shut & which was kept in an out-shed; in a dresser which had also been nailed shut & a drum adjacent to the dresser, both of which were in a pumping shed. At the time of the search, appellant had been overseas for nearly 4 months. Appellant testified that someone must have been using his property for storage & cultivation whilst he was away. There was evidence that it was common knowledge in the district that he frequently spent the winter in the Philippines.
Error in admitting expert evidence as to the age of the cannabis - verdict not open on the evidence because the jury could not be satisfied beyond reasonable doubt - trial judge's failure to give correct circumstantial direction in relation to age of cannabis - error in trial judge failing to direct jury in relation to the use that could be made of the tendency evidence of Sharp - error in failure to withdraw evidence of expert at conclusion of expert giving evidence at trial.
Appeal allowed: conviction quashed, verdict & judgment of acquittal entered.
15

FRANKLIN, Shane Michael - CCA, 4.2.2005
Dunford & Bell JJ
Citation: R v Franklin [2005] NSWCCA 24
Sentence appeal.
Maliciously inflict GBH.
2*y with NPP of 1y 4m.
Applicant was at the home of his girlfriend when the victim of the assault came to the home. When the door was opened, he pushed his way into the house, went to the kitchen & behaved aggressively towards applicant's girlfriend. Applicant tried to assist his girlfriend but had no intention of assaulting the victim. The victim was a much bigger man & the applicant was apprehensive & a bit fearful of him. The victim started a fight & the applicant punched him a number of times. The victim fell to the floor with the applicant on top of him. The applicant kept punching the victim to the head with both hands. The victim lay on the floor unconscious & bleeding from the head & nose. Applicant then hit him over the head with a chair. The victim was taken to hospital in an ambulance. He was still in an unconscious state. The injuries he sustained included fractures to his nasal bones & the anterior & lateral walls of the right maxilla sinus & left orbital floor & some teeth were missing. His injuries were complicated by concussion & loss of consciousness. For some days, he suffered from amnesia.
Aged 27 at time of offence - priors (2 x assault) - no previous imprisonment.
Guilty plea - utilitarian value - discount - whether sentence excessive.
Appeal dismissed.
16

ROGERSON, Scott Allan - CCA, 4.2.2005
Dunford & Bell JJ
Citation: R v Rogerson [2005] NSWCCA 12
Sentence appeal.
1 x aggravated BE&S (in company); + Form 1 offence (possess housebreaking implements).
Sentence not stated.
Applicant & his co-offender entered a house by picking the lock on a sliding door. A female occupant, who was in the house at the time, observed them picking the lock, whereupon she phoned the police. When police arrived, the applicant & his co-offender were still inside the house & were found to be in possession of items belonging to the occupants. The applicant also had a jemmy bar & a carpenter's chisel in his possession.
Aged 33 at time of offence - guilty plea - long-term substance abuse - recognises need for rehabilitation - depression - report of good behaviour whilst in prison - lengthy criminal record, including assault, malicious damage, stealing & driving offences - previous imprisonment.
Failure to separately refer to utilitarian value of guilty plea - error in having regard to strength of Crown case in assessing utilitarian value - error in not allowing appropriate discount for utilitarian value.
Appeal allowed: resentenced to 4y 3m with NPP of 2y 2m.
17

KILLEN, Joanne Maree - CCA, 9.2.2005 - 152 A Crim R 1
James, Hidden & Bell JJ
Citation: R v Killen [2005] NSWCCA 17
Crown appeal.
Defraud Commonwealth
21m suspended sentence; ordered to pay reparation to Commonwealth in the sum of $95,852.09.
Respondent gave birth to a baby girl & received a sole parent pension. After a few years, the child was placed in the care of respondent's parents as the respondent felt she was not in a position to adequately care for the child, however, she continued to receive the sole parent pension. Over the 9 year period, respondent was overpaid $102,321.86. By the time she appeared for sentence, she had repaid $6,469.77. Respondent declined to be interviewed when arrested, but had made admissions to officers of Centrelink when the matter was first investigated.
Aged 39 at time of sentence - subjective features - sexually abused as a child by her father - behavioural difficulties at school led to expulsion just before 15th birthday - worked in several unskilled jobs - escalating substance abuse - excessive use of alcohol - serious health problems - finding of exceptional circumstances.
Whether sentence manifestly inadequate.
Appeal dismissed.
18

HONEYMAN, Aaron - CCA, 15.2.2005
Grove, Bell & Buddin JJ
Citation: R v Honeyman [2005] NSWCCA 39
Sentence appeal.
1 x detain with intent to obtain advantage; 1 x malicious wounding; + Form 1 (possess a little over 3 grams cannabis).
Total of 4y with NPP of 2*y.
The victim & the applicant were in a relationship at the time of the offences. They had been smoking marijuana when an argument developed which led to a physical altercation. The argument continued while the applicant was in the kitchen making sandwiches. He emerged from the kitchen with a knife & struck the victim on the top of her head a few times with the handle of the knife. The victim put her hands up to protect her head & the applicant stabbed her through the hand. The blade of the knife went right through the victim's hand. The victim then jumped up to treat the wound & the applicant ran to the kitchen, grabbed a tea towel & proceeded to assist the victim. The victim said she was going to contact police to report the incident but that the applicant prevented her from doing so. She was only able to contact police when the applicant left for work the next morning. The victim underwent surgery to repair 2 tendons that had been severed in her right hand. She has recovered full use of her hand.
Aged 23 at time of sentence - suffers from ADHD - first diagnosed at age 15 - cannabis dependency, smoking about 20 cones a day - good prospects for rehabilitation - special circumstances found.
Guilty plea - linking of strength of Crown case to utilitarian value of plea - delay - whether sentence manifestly excessive.
Appeal allowed: resentenced to total of 3y with NPP of 18m.
19

WILSON, Linda - CCA, 16.2.2005 - 62 NSWLR 346
Hunt AJA, Grove & James JJ
Citation: R v Wilson [2005] NSWCCA 20
Conviction and sentence appeal.
Manslaughter.
9y with NPP of 6y 11m.
Appellant was found guilty of the manslaughter of a young boy aged almost 2 years who was in her foster care (see R v Wilson [2003] NSWSC 1257). Evidence given at trial was that appellant's husband had inflicted substantial injuries to the child's head & stomach the night before the child's death. The child suffered a rupture of the stomach some 30 millimetres in length; there was bruising in the genital area; there was evidence of other injuries, including a healing abrasion to the left nostril, as well as subdural & retinal haemorrhages. There was no direct evidence that appellant inflicted these injuries on the child. The Crown case was a circumstantial one based on the fact that the injuries causing death indicated that the child had been shaken & that they were inflicted shortly before death & that the appellant was the only person present in the room with the child at the time.
Error in manner in which directions were given as to appellant not giving evidence - error in formulating sentence with reference to other cases - error in having regard to certain aggravating factors listed in s.21a(2) Crimes (Sentencing Procedure) Act 1999 - error in setting NPP above * of head sentence.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 6y with NPP of 4*y.
20

FOLBIGG, Kathleen Megan - CCA, 17.2.2005 - 152 A Crim R 35
Sully, Dunford & Hidden JJ
Citation: R v Folbigg [2005] NSWCCA 23
Conviction and sentence appeal.
3 x murder; 1 x manslaughter; 1 x maliciously inflict GBH with intent to do GBH.
Total sentence of 40y with NPP of 30y.
Appellant killed her 4 babies over a 10 year period. Each was suffocated during a spontaneous outburst of anger. An earlier attack on her 2nd baby caused blindness. Appellant was seriously psychologically damaged due to early neglect & physical & sexual abuse as a child. See R v Folbigg [2003] NSWSC 895.
Charges heard jointly - whether miscarriage - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed on counts 4&5. Resentenced on those counts, resulting in an overall sentence of 30y with a 25y NPP.
21

WHITE, Clarence Herman - NSW SC, Studdert J, 15.2.2005
Citation: R v White [2005] NSWSC 60
Judgment on admissibility of DNA evidence.
Judge alone trial.
Accused pleaded not guilty to murder. Counsel for the accused informed the Court that there was a necessity for a ruling upon the admissibility of DNA evidence obtained from the analysis of a cigarette butt that was discarded by the accused at the police station. The issue of admissibility of the evidence of analysis involved consideration of the Crimes (Forensic Procedures) Act 2000.
Ruling: The evidence the subject of the challenge is to be admitted.
22

STOTT, Wendy Frances - CCA, 17.2.2005
Grove, Hidden & Bell JJ
Citation: R v Stott [2005] NSWCCA 36
Sentence appeal.
Detain with intent to hold for advantage.
13y with NPP of 9y.
Applicant detained a young woman & her infant son in the applicant's home for 3 years, during which time the young woman was held in virtual enslavement. The young woman was forced to cook & maintain the applicant's household without reward & was forced to give the applicant access to her funds. Applicant subjected the young woman to almost daily assaults, which usually took the form of kicking, punching & slaps to the face. The applicant threatened the young woman with violence should she leave. She also stabbed the young woman on the forehead, struck her on the head with a candle stick & stabbed her on the left knee. Specific cruelties perpetrated by the applicant included setting fire to a dress the young woman was wearing which caused burns to her lower legs; pouring a pan of boiling water over her head causing burns to her head & upper shoulders; forcing her to submit to having tattoos on her arms; & taking her to a brothel conducted by an acquaintance of the applicant where she was told to make herself available for sexual intercourse with a client, the subsequent payment for this being taken by the applicant.
Aged 59 at time of sentence - abusive & impoverished background - priors, including 2 similar offences - no previous imprisonment.
Whether sentence manifestly excessive - whether error in finding risk of re-offending sufficient to outweigh subjective features.
Appeal dismissed.
23

THOMPSON, Jay Edward - CCA, 18.2.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Thompson [2005] NSWCCA 41
Sentence appeal.
6 x BE&S; 1 x B&E with intent to steal; + Form 1 (3 x make false statement; 4 x BE&S; 3 x B&E with intent to steal).
Total of 5y with NPP of 3y 3m.
The BE&S and B&E offences were committed upon residential premises. The make false statement offences involved applicant attending Ready Cash Pawnbrokers & pawning stolen goods.
Aged 22 at time of offences - unemployed - problem with drugs - on conditional liberty at the time - offences committed in order to survive - prior similar offences - previous imprisonment.
Should additional discount be allowed if early admission of guilt completes Crown case?
Appeal dismissed.
24

XU, Shan Shan - NSW SC, Kirby J, 15 2.2005 - 152 A Crim R 17
Citation: R v Shan Shan Xu [No 1] [2005] NSWSC 73
Judgment on application of ABC for access to Exhibit A, being a CCTV video footage.
At trial, the Crown tendered material marked as 'Exhibit A'which included a video, the subject of the application. The Crown case was that the accused took her son by train to Meadowbank then spent the afternoon with him in a small park adjacent to a wharf. The wharf is fitted with CCTV & the accused's actions are all captured on TV footage. The footage showed the accused gathering her son in her arms & after some time disappearing from the end of the wharf such that one could infer that she jumped into the Parramatta River. There was also evidence within the various witness statements contained in 'Exhibit A'of what happened thereafter.
Video shown in open court - potential harm to accused - interests of open justice - interests of person with mental illness - whether material wholly exceptional such that should not be released.
Application refused.
25

XU, Shan Shan - NSW SC, Kirby J, 18 2.2005
Citation: R v Shan Shan Xu [No 2] [2005] NSWSC 70
Judgment on Verdict.
Murder.
Judge alone trial.
Accused was charged with having murdered her 4 year old son. She pleaded not guilty by reason of mental illness.
It was alleged that accused drowned her son in the Parramatta River. She held her son in her arms & entered the water, remaining there for more than an hour before being rescued by a Rivercat ferry. As she was being assisted to climb on board the ferry, those helping her realised that she was holding onto a child. Attempts were immediately made to revive the child & an ambulance was called. The child was taken to Concord Hospital, however, he could not be revived & was pronounced dead. There was a history of the accused suffering from a major depressive illness with psychotic features. Her mother had become worried when she told her that she wished to take her own life & that of her child. Her mother immediately took her to see their general practitioner & the accused was subsequently admitted to the Community Mental Health Centre attached to St Vincent'ss Hospital. She was diagnosed as suffering from a psychotic depression & was regarded as posing a substantial risk to herself & to her child. DOCS was notified, however, it was not clear what, if anything, DOCS had done to safeguard the child. The accused subsequently discharged herself from hospital, however, she was to remain under medical supervision & was to take the medication that had been prescribed for her. On accused's last visit to the St Vincent's Clinic, there was some doubt as to whether she was, at that time, still taking her medication.
No longer in custody - living with mother - need for continued medication - whether should return to custody.
Verdict: Not guilty by reason of mental illness; order for conditional release after verdict.
26

POTTER, Rodney Wayne - CCA, 18.2.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Potter [2005] NSWCCA 26
Sentence appeal.
5 x corruptly receive benefit (s.249B(1)(a) Crimes Act 1900; + Form 1 offences (3 x corruptly receive benefit).
Total sentence of 3y 3m with NPP of 1y 9m.
Applicant was the Chief Steward of the Greyhound Racing Control Board. Applicant would interfere with the random testing of particular dogs for the presence of performance enhancing drugs. If testing of a particular dog could not be avoided, e.g. the dog was the winner of a feature race, applicant would destroy the sample taken from that dog & substitute clean urine so that the subsequent testing would not identify the presence of any prohibited substance. Usually the applicant effected this exchange during the delivery of samples to the analytical laboratory. When interviewed by ICAC investigators, applicant was receiving $1,000 per month from one trainer & $400 per month from another trainer. He had also received a few thousand dollars from a punter. The motivation for the corrupt behaviour was financial gain. During the period 1992/1993 to March 2000, applicant had received substantial sums of money.
Whether error in taking into account past criminal conduct with which offender had not been charged - relevance of good character - effect of delay in sentencing - balancing mitigating discounts with objective seriousness of offence.
Appeal dismissed.
27

ADAMSON, Darren William - CCA, 31.1.2005
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Adamson [2005] NSWCCA 7
Application for leave to appeal pursuant to s.5F(3) Criminal Appeal Act 1912.
1 x BE&S; 1 x maliciously damage property by fire.
In an interlocutory application to the DC, applicant raised the topic of intoxication & particularly sought that the court consider whether he was entitled to the benefit of Pt 11A Crimes Act on the basis that each of the offences with which he stood charged was an offence involving specific intent, within the meaning of that Part. The DC judge rejected that proposition & it was against that rejection that the applicant sought leave to appeal to the CCA. The DC judge made no order & no declaration. On application for leave to appeal, counsel for the applicant submitted that the DC judge's judgment involved a final legal ruling on a discrete legal controversy which had arisen & that, in effect, what the DC judge had done was to make a declaration that s.428C does not apply to ss.195(6) or 112(1) Crimes Act 1900.
Application for leave to appeal dismissed.
28

PURDIE, Shannon Leslie - CCA, 1.2.2005
Grove & James JJ
Citation: R v Purdie [2005] NSWCCA 15
Sentence appeal.
Knowingly take part in the supply of a commercial quantity of cocaine.
5y 9m with NPP of 4y.
Applicant pleaded guilty. His 2 co-offenders pleaded not guilty. Following a trial, the jury found both co-offenders guilty of supplying the drug. One co-offender was sentenced to 8*y with a NPP of 5y 4m & the other co-offender to 6y with a NPP of 4y.
Federal police conducted telephone intercepts of conversations between applicant & a co-offender, revealing plans to supply a quantity of cocaine. Following police surveillance, a co-offender from interstate was arrested in Sydney with a bag containing cocaine (505.5 grams, purity of 67.4%, estimated street value $194.689). A subsequent telephone conversation between applicant & a co-offender revealed that this was only half the amount of drugs to be supplied. The arrested co-offender was to have returned with a further $80,000 in order to obtain the remaining half-kilo of cocaine. Applicant had contributed $20,000 of his own money & the other co-offender $40,000 towards the cost of the drug. The total price for one kilo of cocaine was $140,000.
Aged 28 at time of offence - completed HSC - had some employment during working life - drug & alcohol abuse - at time of offence had been using substantial quantity of cocaine, alcohol & sleeping tablets - priors but no drug offences - no previous imprisonment.
Disparity of sentence - credit for discrete period of pre-sentence custody.
Appeal allowed in part: head sentence confirmed, NPP reduced to 3y 3m.
29

OGOCHUKWU, Iraenus - CCA, 20.10.2004
McClellan AJA, Adama J, Smart AJ
Citation: R v Ogochukwu [2004] NSWCCA 473
Sentence appeal.
Knowingly concerned in the importation of a trafficable quantity of heroin.
7y 4m with NPP of 5y.
The Australian Quarantine Inspection Service identified a package from a random search of items arriving in Australia as postal mail through Australia Post. The package, which had arrived from Thailand, was examined & found to contain a black handbag & other items. The package was x-rayed, revealing a substance secreted in another package in the handbag. The package was then transferred to the Australian Customs Service, who then notified the Australian Federal Police. A fine white powder identified as heroin was found to be secreted in the handbag. The total weight of the heroin was 326.6 grams with a pure weight of 217.9 grams (estimated street value $100,000). The package was addressed to an apparently fictitious female person at an inner city motel. After several unsuccessful attempts, Federal Police made a controlled delivery to the motel. The applicant was arrested after he took delivery of the package from a police officer who was acting as a courier, following presentation of a letter of authority claiming to bear the signature of the person to whom the package was addressed.
Whether sentencing judge erred in imposing a NPP that he had previously reasoned should be the head sentence - whether sentence excessive.
Appeal dismissed.
30

PITT, Rachel Teresa - CCA, 5.10.2004
McClellan AJA, Grove & James JJ
Citation: R v Pitt [2004] NSWCCA 454
Sentence appeal.
BE&S.
18m with a NPP of 9m.
Applicant & a co-offender entered premises & stole $14,230 in cash that they found in a sock drawer in one of the bedrooms. They also took several cans of beer & a packet of bacon. Shortly thereafter, they went to the premises of an acquaintance who drove them to a bottle shop where they bought a carton of bourbon, cans of cola & a packet of cigarettes totalling $60. The acquaintance became suspicious as she thought it unusual that the applicant had money & she went to the Casino police station & reported her dealings with the 2 offenders. Police went to the premises of the applicant & her co-offender where they found 6 pairs of men's socks & a packet of bacon in the lounge room. They found $13,800 in a coat worn by the applicant. Both offenders were taken to Lismore police station & charged.
The co-offender had a more serious criminal record than the applicant. When sentencing the co-offender, the sentencing judge took into account 5 matters on a Form 1. The co-offender was sentenced to 18m with a NPP of 9m. The applicant had no Form 1 matters.
Parity in sentencing.
Appeal dismissed.
31

WINNER, David Colin - CCA, 16.12.2004
BALLARD, James
DAVIS, Camm William
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Winner; R v Ballard; R v Davis [2004] NSWCCA 471
Conviction appeal.
1 x malicious wounding.
The applicants were found guilty of the above charge, which was in the alternative to malicious wounding with intent to do GBH.
Each applicant appealed against his conviction essentially upon the basis that there was a misdirection concerning joint enterprise so far as it related to the alternative count. The Crown conceded that the directions given in relation to joint enterprise, so far as that count was concerned, were incorrect & inadequate to raise the true issue for the jury.
Appeal allowed: new trial ordered.
32

YEO, Keng Hwee (Kathy) - CCA, 23.2.2005
Sheller JA, Sperling & Adams JJ
Citation: R v Yeo [2005] NSWCCA 49
Conviction and sentence appeals.
Murder.
24y with NPP of 18y.
Appellant was jointly tried with Raymond Galea, who was charged with being an accessory after the fact to murder.
At the outset of the trial, each of the accused sought a separate trial. These applications were refused. Both appellant & Galea had previously been tried on a charge of murder &, in the alternative, of being accessories after the fact. Appellant was convicted of murder but Galea was acquitted of murder & convicted of being an accessory after the fact. Both those convictions were quashed by the CCA & new trials ordered. Galea could not be retried on the murder charge. Appellant did not give evidence at either trial.
Galea did not participate in the commission of the murder. His culpability arose from his knowledge that the appellant had committed the murder &, with that knowledge, acted with the intention of assisting her to escape detection or prosecution. The appellant & Galea had been in a de facto relationship. Appellant left Galea & 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. Appellant obtained a pistol from Galea & subsequently shot the deceased in the head, killing him. She told Galea about the killing & both she & Galea dismembered the body for disposal.
Joint trials - whether separation wrongly refused - nature of prejudice - retrial following quashing on appeal - whether Crown significantly changed case - whether bound by way 1st trial was conducted - whether abuse of process - significance of bail conditions - whether double punishment.
Conviction & sentence appeals dismissed.
33

McMILLAN, Andrew Ivon - CCA, 16.2.2005
Santow JA, Bell & Howie JJ
Citation: R v McMillan [2005] NSWCCA 28
Application for extension of time in which to appeal against conviction; application for leave to appeal against sentence; and
Crown appeal against sentence.
Aggravated dangerous drive occasioning GBH.
3y with NPP of 1y 9m.
After drinking alcohol throughout the day, respondent was driving home along a country road when his vehicle drifted to the wrong side of the road & collided with an oncoming vehicle. The driver of the other vehicle suffered internal injuries & extensive injuries to both legs & his left arm. He died in hospital a few days later. A blood sample taken from respondent 2 hours & 20 minutes after the accident returned a reading of 0.205. An expert opinion provided a range of between 0.170 & 0.265. The Crown relied on the lowest end of the range of 0.170. It was estimated that the respondent had consumed about 17 middies to reach that level of intoxication.

Conviction and sentence appeal:
Application to go behind plea of guilty - whether sentence excessive.
Application for extension of time granted; appeal dismissed .

Crown appeal:
Whether sentence manifestly inadequate.
Appeal allowed. New sentence imposed: 4y with NPP of 2*y.

34

RIBEIRO, Helton Rodregeous - CCA, 1.2.2005
Grove & James JJ
Citation: R v Ribeiro [2005] NSWCCA 10
Sentence appeal.
1 x aggravated BE&S; 2 x receive stolen property; 1 x possess prohibited weapon; + Form 1 offences (possess housebreaking implements; possess prohibited weapon).
Total of 5y with NPP of 3y.
Applicant confronted the victim in her garage & a struggle took place, during which the applicant scratched the victim's face. He stole jewellery from her, then forced her into her house in order to show him where she kept her other jewellery. The total value of jewellery stolen was between $9,000 & $10,000. When police arrested applicant, he was in possession of a stolen MV valued at $35,000. A subsequent search of his home revealed other stolen property, a flick-knife & a telescopic baton of a type that law enforcement agents occasionally use.
Aged 25 at time of offence - early guilty plea - family & psychological problems - multiple priors - previous imprisonment.
Discount for early pleas & assistance to authorities - whether error in assessment.
Appeal dismissed.
35

DENHOLM, Anthony - CCA, 1.2.2005
James & Grove JJ
Citation: R v Denholm [2005] NSWCCA 30
Sentence appeal.
Supply commercial quantity cocaine.
6y with NPP of 4y.
Applicant was one of 3 offenders. One co-offender stood trial with the applicant & both were found guilty of the above offence. The sentencing judge made a finding that the co-offender was the principal & sentenced him to 8*y with a NPP of 5y 4m. The other co-offender was to have stood trial in the same trial, however, he did not appear & subsequently pleaded guilty to knowingly take part in the supply of a commercial quantity of cocaine. He was sentenced to 5y 9m with a NPP of 4y. A successful sentence appeal earlier on 1.2.2005 resulted in the NPP being reduced to 3y 3m: see R v Purdie [2005] NSWCCA 15.
Parity - whether justifiable sense of grievance - role of applicant - not much more than a courier - small benefit obtained in the criminal venture - whether sentence manifestly excessive.
Appeal allowed in part: NPP quashed & new NPP of 3y 7m substituted.
36

BURGESS, David - CCA, 23.2.2005 - 152 A Crim R 100
SAUNDERS, Will
Adams & Hislop JJ, Newman AJ
Citation: R v Burgess; R v Saunders [2005] NSWCCA 52
Conviction and sentence appeals.
Maliciously damage property.
9m FT served by way of PD; order to pay $111,000 (in addition to $40,000 already paid) by way of compensation.
The Crown case was that appellants painted the words 'No War'on one of the white-tiled sails of the Sydney Opera House. There was no question that the painting was intentional & that it constituted damage. Appellants submitted that they were entitled to have the jury consider whether they acted in self-defence, either of themselves or of others, relying on s.418 Crimes Act 1900. Saunders was unrepresented at trial, whilst Burgess was represented. Before arraignment & in the absence of the jury, the Crown prosecutor sought a ruling as to whether the foreshadowed defence was applicable in order to enable him to open the Crown case appropriately & confine the evidence intended to be adduced to the real issues in the trial. Counsel for Burgess submitted that the application was premature, arguing that the availability of the defence would depend upon the evidence ultimately adduced in the trial. Saunders adopted those contentions. The trial judge ruled that the question of whether self-defence was available should be heard & determined before arraignment. Counsel for Burgess provided the trial judge with a draft of his opening address, however, the judge did not make a final ruling but directed that neither counsel should raise the question of self-defence by way of opening, leaving in abeyance a determination of the applicability of the defence until the close of the Crown case. Ultimately, after receiving submissions from appellants, evidence on a voir dire & a bundle of documents, the judge ruled that the material on the voir dire did not disclose any matter that justified leaving the jury either the issue of self-defence or whether the appellants had inflicted the damage 'maliciously'.
Distinction between protest & self-defence - role of judge - whether defence rightly excluded - significance of payment of compensation.
Appeals dismissed.
37

HERNANDO, Janian Roy - CCA, 3.2.2005
Studdert & Hulme JJ
Citation: R v Hernando [2005] NSWCCA 59
Sentence appeal

1st indictment: 1 x armed robbery in company; + offence taken into account (armed robbery in company).
Each offence involved the placing of a knife against the side of a train passenger & the demanding of a mobile phone & wallet. The driver's licence of each victim was inspected & one victim was told that his address was an easy one to remember.
4y 7m with NPP of 2y 7m (to date from 11.10.2003).

2nd indictment: 2 x armed robbery; 2 x assault with intent to rob whilst armed with offensive weapon.
Applicant approached 3 people in a car-park. He produced a knife & grabbed one of the victims, pointed the knife at his stomach, threatened to stab him & demanded the victims' phones, watches & money. Again he looked at the licences of all 3 victims, stating 'don't do anything, I'll get youse because I know where you live now'The assault offence occurred on the same day when applicant & a co-offender approached another victim & a person sitting in a car-park. Applicant produced a knife, placed it against the victim's ribs & said 'just give me your phone or I'll stab you'The victim managed to push the applicant's hand away before fleeing.
5*y with NPP of 3*y (to date from 11.10.2003).

Aged 20 & on parole at time of offences - multiple priors starting at age 16 - previous imprisonment.
Aggravating & mitigating features - revocation of parole - double punishment - whether sentences excessive.
Appeal dismissed.

38

TAE, Chung Pong - CCA, 11.2.2005
James, Hidden & Bell JJ
Citation: R v Tae [2005] NSWCCA 29
Sentence appeal.
Bribery of a Commonwealth public official; + Form 1.
2y 2m with NPP of 1y 4m.
On 22 occasions between 11.3.2003 & 30.5.2003, applicant paid a sum of money as a bribe to officers of the Department of Immigration and Multicultural and Indigenous Affairs In order to obtain a visa or an extension of a visa for some other person. Applicant was not a registered migration agent, however, he received a reward for his services from the person seeking the visa or the extension of the visa.
Guilty plea - assistance to authorities - whether error in calculating discount - whether error in failure to sentence in accordance with s.21E Crimes Act 1914 (Cth) - whether adequate value given to assistance.
Appeal dismissed.
39

COULTER, David Lionel John - NSW SC, Greg James J, 24.2.2005
Citation: R v Coulter [2005] NSWSC 101
Remarks on Sentence.
Murder.
Offender murdered his cousin's 12 year old daughter. Offender was aged 41 at the time of the murder. An autopsy report tendered in evidence established the deceased had died as a result of smothering & had suffered sharp force cutting injuries to her throat, right thigh, chest & abdomen, involving gross mutilation & the extraction of her internal organs & heart. Offender said he wanted to commit suicide & wanted to first kill someone beautiful to be with him when he died.
Applicability of sentencing criteria - test for imposition of life sentence - 'worst class of case'- 'brutal and savage treatment'of body - relevance of offender's obsessive compulsive disorder pre-disposing him to commission of this & similar crimes - consideration of dangerousness - retribution - punishment - community protection - deterrence.
Sentenced to life imprisonment.
40

TAOUK, Hanna - CCA, 17.2.2005
Grove, Bell & Buddin JJ
Citation: R v Taouk [2005] NSWCCA 53
Sentence appeal.
1 x supply trafficable quantity cocaine; 1 x supply commercial quantity cocaine; + Form 1 (custody of a knife in a public place; goods in custody (cash); 2 x supply cocaine; knowingly take part in supply of cocaine; supply methylamphetamine; supply cannabis leaf).
Total sentence of 8y 3m with a NPP of 4*y.
Applicant was one of a number of offenders identified as a result of an extensive police operation. There were some 40 offenders involved. Attention was directed to the applicant as a result of his contact details being listed in the mobile telephone directory of a man arrested in connection with the purchase of amphetamines. Warrants were obtained to intercept telephone services operated by the applicant. Applicant was in receipt of unemployment benefits at the time, although he was found to be in possession of 4 mobile phones, 3 of which were the subject of intercept warrants. Applicant was heard to use terms which could readily be interpreted as code for drugs. These included 'small one'; 'eight ball'; 'aus'; 'key'; 'the nose stuff'; 'bolivian'; 'paperwork'; and 'charlie'.
Parity.
Appeal dismissed.
41

MUELLER, Alexander - CCA, 25.2.2005 - 62 NSWLR 476
Hunt AJA, Studdert & Hulme JJ
Citation: R v Mueller [2005] NSWCCA 47
Conviction appeal.
3 x assault with act of indecency in circumstances of aggravation.
2*y PD.
Appellant originally stood trial on 5 counts. He was acquitted on the 1st & 2nd counts & convicted on the 3rd, 4th & 5th counts. Complainant was a 22 year old woman living at a home run by a care institution. She suffered from Asperger's Syndrome & from schizophrenia. Appellant was employed at the home as a carer.
Directions - reckless indifference - consent - 'consent freely and voluntarily given'- capacity to consent - concept of consent - ambiguity - 'circumstantial evidence'- reliability of evidence - verdicts not supported by evidence - reasonable doubt - inconsistent verdicts - whether miscarriage of justice.
Appeal dismissed.
42

NASSIF, Fred - CCA, 15.2.2005
Grove, Bell & Buddin JJ
Citation: R v Nassif [2005] NSWCCA 38
Conviction and sentence appeal.
Attempt to receive a large commercial quantity of MDMA (ecstasy) for supply.
6y with NPP of 3y.
A container of deep freezers arrived by ship in Brisbane. Customs officers searched the container & found approx 123.5 kgs of ecstasy concealed within the freezers. Australian Federal Police substituted all but approx 3 kgs of the ecstasy with an inert substance. The container was then transported to the home of Louis Sukkar. Those premises were the subject of police surveillance. Telephone intercepts revealed contact between Sukkar & the applicant. The applicant then visited Sukkar's home. The conversation between the 2 men inside the house was transmitted by a listening device. The conversation concerned 14,000 ecstasy tablets, which Sukkar valued at approx $200,000, The applicant said he had 2 associates who would take the tablets & he would get back to Sukkar the following day. A few days later, a number of phone calls were intercepted between Sukkar & the applicant, during which the applicant confirmed that he would take the whole amount & that everything had been organised. In a later call, the 2 agreed to meet at another person's premises. Two days later, Sukkar was arrested at his home. Only 45 of the tablets that had formed part of the drug left intact by Federal police were located. The applicant was arrested more than 9 months later.
Aged 32 at time of sentence - favourable subjective features - priors, including drug offences - previously sentenced to CSO's, PD, GBB.
Inference that a completed offence of supply had occurred - whether sentence manifestly excessive.
Appeal dismissed.
43

NILSSON, Leif Lars - CCA, 18.2.2005
Ipp JA, Hulme & Hislop JJ
Citation: R v Nilsson [2005] NSWCCA 34
Sentence appeal.
2 x drive in manner dangerous to the public causing GBH.
Total of 5y with NPP of 3y 9m.
Applicant's vehicle failed to negotiate a bend in the road, travelled over a raised cement median strip then collided with an oncoming vehicle. The applicant's car continued to travel a short distance & collided with another vehicle. Applicant's front-seat passenger was taken to hospital, suffering from a fractured collar-bone which required a metal rod to be inserted & a fracture to her lower ribs. The applicant also suffered some injuries, a broken wrist being the most serious of them. The driver of the 1st vehicle hit by the applicant's car was trapped in her car & had to be rescued by Rescue Services before being conveyed to hospital by ambulance. She suffered injuries that required surgery. When police attended the accident scene, it was apparent that the applicant was well affected by some drug. He was taken to the Royal North Shore Hospital & blood & urine samples were obtained. Upon analysis, those samples revealed the presence of cannabis, fluenitrazepam (rohypnol), diazepam methadone & morphine.
At the time of the above offences, applicant's licence was cancelled, he was on a GBB & was also on bail for an offence of stealing as a servant.
Aged almost 30 at time of sentence - guilty plea - dysfunctional family background - multiple priors
Whether sentence excessive.
Appeal allowed: resentenced to total of 4y 9m with NPP of 3y 9m.
44

HALMI, Nicolai - CC, 25.2.2005 - 62 NSWLR 263; 156 A Crim R 150
Simpson, Bell & Buddin JJ
Citation: R v Halmi [2005] NSWCCA 2
Conviction appeal.
Supply large commercial quantity heroin.
7y with NPP of 5y 3m.
Appellant & a co-offender were alleged to have supplied 5 blocks of heroin weighing 1.789 kgs to 2 persons named Ilievski & Stranski. It was the Crown case that the appellant had driven his co-offender to Bass Hill where he met & supplied Ilievski with the heroin. The Crown case was a circumstantial one that depended on inferences to be drawn from facts & circumstances.
In written submissions filed by the Crown, a question concerning the regularity of the trial was raised in that the indictment was signed by a barrister in private practice who had been briefed to appear on behalf of the DPP at the trial. She was not a person authorised to sign indictments on behalf of the Director.
Indictment - invalidity - not signed by authorised person - whether verdict unreasonable in that the evidence did not support it.
Appeal allowed: verdict & conviction & sentence set aside.
45

RIX, Mark Edward - CCA, 18.2.2004
Hulme, Barr & Buddin JJ
Citation: R v Rix [2005] NSWCCA 31
Conviction appeal.
Armed robbery.
10y with NPP of 7y.
There was no dispute at trial that an armed robbery of the ANZ Bank at Zetland had occurred, the only issue being whether the appellant was the robber. The prosecution case was based upon a disputed identification of appellant by a police officer from a bank photograph, the disputed finding of incriminating items in appellant's possession, as well as disputed oral confessions alleged to have been made by appellant to police.
On 21.5.2004, Hulme J dealt with an application for an inquiry into the conviction pursuant to s.474D of the Crimes Act 1900 (NSW). Pursuant to s.474E of the Act, his Honour referred the matter to the CCA to be dealt with as an appeal against conviction. The Crown Solicitor' s Office had previously conceded that such an order should be made.
At appeal, there was a joint understanding that evidence of confessions would be put aside. Apart from photographs of the robber, there was no evidence capable of proving beyond reasonable doubt that appellant was the robber. It was agreed that the appeal should succeed or not on that evidence alone. The photographs were not capable of proving beyond reasonable doubt that the appellant was the robber.
Appellant has already served the whole of his sentence.
Fresh evidence - evidence of crimes of a number of police officers emerged at Police Royal Commission - police officers important witnesses in prosecution case against appellant - verdict unreasonable and unable to be supported.
Appeal allowed: verdict of acquittal entered.
46

McRAE, Steven Ronald - CCA, 25.2.2005
Dunford & Bell JJ
Citation: R v McRae [2005] NSWCCA 13
Sentence appeal.
6 x BE&S; + Form 1 (6 x BE&S; 1 x attempt BE&S).
Total sentence of 8*y with NPP of 5y.
The offences spanned a period of 7* months. The facts were not in issue. The offences were perpetrated upon the Nowra Golf Club, Southern Rural Traders (Horseland) in Moss Vale, Chilwood Grove in Berrima, Callala RSL Country Club, Duke's Shell Garage in Lidsdale. Cash and property were stolen. Substantial damage was caused in gaining entry to the various premises. The method of operation was similar in each of the offences. The applicant disabled the Telstra Service Pit wiring connections to the telephone alarm systems in each of the premises, then forced his way into the premises.
Aged 40 at time of offences - on a bond at the time - written letters to each victim expressing remorse - suffers from anxiety, depression - history of suicide attempts, alcohol & drug abuse - priors - previous imprisonment.
Whether error in failure to properly take into account applicant's mental disorder - whether error in failure to adequately reflect assistance to authorities in discount - whether sentence manifestly excessive.
Appeal dismissed.
47

FRAWLEY, Richard James - CCA, 23.2.2005
Spigelman CJ, Mason P, Santow JA
Citation: R v Frawley [2005] NSWCCA 66
Application under s.5F Criminal Appeal Act 1912 for leave to appeal from an interlocutory judgment of Grove J.
The Cth DPP presented an indictment alleging that applicant committed insider-trading offences on 21 occasions. Applicant challenged the standing of the Director to institute the prosecution. Alternatively, the applicant submitted that the indictment should be quashed on the basis that it disclosed no offence known to the law.
Operation & effect of Commonwealth Constitution - whether Commonwealth Parliament has power to create criminal liability by reference to previous liability under State law. Jurisdiction, practice & procedure - persons entitled to conduct prosecution - s.1311, 1002G Corporations Act 2001 (Cth). Statutory construction - explicatory words - parentheses - operative effect. Words and phrases: equivalent.
Leave to appeal refused.
48

SUEY, Ronald James - CCA, 3.2.2005
Hunt AJA, Grove & James JJ
Citation: R v Suey [2005] NSWCCA 22
Sentence appeal (review of sentence imposed after inquiry).
Count 1: armed robbery;
Count 2: B&E and commit serious indictable offence (AOABH) in circumstances of special aggravation (armed with shotgun);
Count 3: kidnapping;
Counts 4-9: sexual intercourse without consent in circumstances of aggravation (in company, complainant under age of 16 years).
Total of 20y with NPP of 15y.
All offences were committed during one night in a remote rural area of NSW. The victim of most of the offences was a 15 year old girl. These atrocious offences were committed upon a young girl who was babysitting at the time. The offenders forced their way into the house. The applicant was armed with a shotgun, another man with a wooden tomahawk. A man who was staying at the house was shot in the foot & realising the seriousness of the situation, he jumped through a window & ran hundreds of metres to a neighbour to summon help. By this stage, the children were all crying & the young girl was trying to comfort them. The young girl was then abducted by the applicant & his co-offenders, taken in their utility to a remote spot & repeatedly sexually assaulted by all the men. The young girl was also forced to fellate the offenders. At one stage during the sexual assaults perpetrated upon the young girl, the applicant stopped one of the co-offenders from attacking her with a wheel brace. One of the offenders urinated on her, which annoyed the applicant as he said that they wouldn't be able to have any more sexual activity with her. The victim was then forced back into the utility & even at this stage was forced to fellate the driver & then another man. Shortly after this, a police car passed by, then turned to follow the utility. The applicant threw the shotgun out the window. The utility continued down the road & was stopped at a police road-block. The young girl was threatened that if she said anything she would be shot. However, she managed to run to the police. She was hysterical & crying uncontrollably & it took police officers some time to calm her. The victim suffered a number of injuries which were consistent with repeated forcible sexual intercourse.
Aged 34 at time of sentence - suffered from hepatitis C - no contrition - multiple priors - previous imprisonment.
Decision: Sentence imposed by her Honour should stand.
49

DIAB, Kadr - CCA, 1.3.2005
Grove, Bell & Buddin JJ
Citation: R v Diab [2005] NSWCCA 64
Sentence appeal.
Manslaughter; + Form 1 (affray, possess loaded firearm in public place, possess unauthorised firearm).
9y with NPP of 6y.
The Form 1 offences took place at Brookvale shortly after 1:00am on 23.4.2001. The offence of manslaughter was committed at Hurlstone Park on 26.4.2001 between midnight & 1:00am. The deceased was a youth aged 18 years who was shot dead by applicant's co-offender. The 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 applicant & the co-offender 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 co-offender, who retaliated by shooting him in the chest with a handgun at a range of 2 metres. The applicant & the co-offender then drove away in their car. At the time of the killing, the applicant was aged 19 & the co-offender aged 17. On the first day of trial, the co-offender was arraigned on a charge of murder to which he pleaded guilty. He received a sentence of 13*y with a NPP of 8*y. The Crown successfully appealed against this sentence, which was increased to 16y with a NPP of 11y: see R v MA [2004] NSWCCA 92.
Two days before the killing, applicant & a young person drove into a garage/service station at Brookvale & an altercation occurred between them & a group of young men. The applicant alighted from his vehicle & threatened the young men with the same firearm as was used in the killing on 26.4.2001. He held the pistol in his hand with his arm extended, pointing the weapon at several of the young men. He then returned to his vehicle & drove off at speed.
Guilty plea - rejection of provocation as a mitigating consideration - whether sentence manifestly excessive.
Appeal dismissed.
50

NIKOLOVSKI, Jimmy Demitri - CCA, 3.2.2005
Hulme & Studdert JJ
Citation: R v Nikolovski [2005] NSWCCA 60
Sentence appeal.
Armed robbery (syringe); detain with intention of obtaining advantage.
Total sentence of 5y 3m with NPP of 4*y.
When the victim, aged 19, parked her car in a car-park, the applicant opened a door & demanded money from her. Applicant held a syringe & threatened to give her AIDS. He took the victim's credit car & made her tell him her PIN number. The victim told him there was no money in her account. The applicant then pushed her onto the seat & told her to remain where she was until he returned from the bank. When he returned, he said there was no money in the account, took the car keys & drove off with the victim in the car. He made the victim put a beanie on her head to cover her eyes so that she could not see him. He continued to threaten her. Eventually, he let her out of the car, however, he took her car, university books, wallet & mobile phone. The victim suffered from post-traumatic stress disorder as a result of this incident.
Aged 36 at time of offence - long-standing drug addiction - was withdrawing from heroin at time of offence - extremely poor childhood - remorse - 'mere possibility'of rehabilitation - participation in drug & alcohol rehabilitation programmes after arrest - multiple priors - previous imprisonment.
Failure to take into account effect of accumulation in setting NPP.
Appeal dismissed.
51

WAQA, Frank (No.2) - CCA, 24.2.2005 - 156 A Crim R 454
Dunford, Simpson & Hidden JJ
Citation: R v Waqa (No.2) [2005] NSWCCA 33
Sentence appeal.
12 x armed robbery; + Form 1 (12 x armed robbery; 1 x attempt robbery).
Total of 10y with a NPP of 5*y.
In sentencing the applicant & a co-offender, a discount was allowed 'in the order of 25 per cent'on account of their early pleas & a discount 'in the order of 20 per cent'on account of their assistance to the authorities. The sentence imposed on the applicant at first instance amounted to a total of 7*y with a NPP of 4y 4m The applicant, however, failed to honour his undertaking to give evidence against a co-offender named by him & on an application by the Crown, the CCA increased his sentence to 10y with a NPP of 5*y: see R v Waqa [2004] NSWCCA 405. It was against that new sentence that the applicant appealed.
The offences spanned a period of approx 7 weeks & involved applicant & 2 co-offenders robbing a variety of small businesses (service stations, video & liquor stores, as well as a Woolworths store). Applicant & 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.
Whether sentences 'contrary to law'- whether error in manner in which Court assumed the discount for assistance had been calculated - whether time added was in excess of that authorised under s.5DA Criminal Appeal Act 1912.
Application dismissed.
52

LY, Khanh - CCA, 21.2.2005
NGUYEN, Chin Thi
Grove, James & Barr JJ
Citation: R v Ly and Nguyen [2005] NSWCCA 57
Sentence appeals.
Ly: Supply heroin;
Nguyen: Supply heroin; receiving (a camera); goods in custody (cameras).
Each sentenced to 5y with NPP of 3*y.
The evidence before the jury was obtained as a result of police conducting a controlled operation by using an undercover police officer to buy prohibited drugs.
The 2 applicants had been co-offenders in the supply offence. A male co-offender, who pleaded guilty, was sentenced to a total of 4y 9m with a NPP of 3*y. Some unrelated offences were taken into account in imposing sentence upon him; he had a criminal history & a drug addiction. Applicants had no criminal history & had no drug addiction.
Whether failure to property apply principles of parity - whether error by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a guilty plea was the appropriate sentence to be imposed.
Appeals dismissed.
53

HILL, Allan Troy - CCA, 1.3.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Hill [2005] NSWCCA 44
Application for extension of time within which to appeal against conviction.
1 x aggravated B&E and commit a sexual assault; 5 x aggravated sexual intercourse without consent.
Applicant's Notice of Appeal was filed more than 5 years out of time.
Early in the morning, a man broke into complainant's house & sexually assaulted her in a number of ways. He kept up the assaults until he left the house 1* hours later. The complainant told police the man used a condom. During the attack, the man held a knife against the complainant's face. It was the Crown case that the applicant was the attacker. The complainant's description of her attacker was of a man not unlike the applicant in appearance but fell a long way short of identifying him. The attacker's clothes, by her description, were not unlike the applicant's clothes, but the complainant could not positively identify them. Police found a box on the applicant that had contained 6 condoms, but there were only 5 remaining. Also found with the box was a fragment from the wrapper of a condom. A 2nd fragment was found in the complainant's house. A 3rd was found in a rubbish bin in the street between the complainant's house & the caravan park where the applicant lived. Although the 3 fragments did not make a complete wrapper, their torn & jagged edges matched one another. A condom of the same type as those in the condom box was found in a rubbish bin by the door of applicant's caravan. DNA testing of the contents showed that it was highly probable that it came from the applicant. When leaving the complainant's house, the attacker left shoe prints in the dust on the ground. The size & pattern of one of the prints matched the sole of a shoe taken from the applicant. Part of the defence case was that the applicant had entertained a woman in his caravan during the early hours of the morning in question. He had used the condom police found in the bin, he did not go to the complainant's house & he did not attack her. The jury were satisfied beyond reasonable doubt that the applicant was the attacker & found him guilty.
Circumstantial case - whether verdicts unreasonable or unable to be supported having regard to the evidence - whether applicant received a fair trial.
Application for extension of time within which to appeal refused.
54

KERSHAW, Brett David - CCA, 1.3.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Kershaw [2005] NSWCCA 56
Sentence appeal.
Sexual intercourse without consent; + Form 1 (contravene AVO).
5y with NPP of 2*y.
Applicant & the complainant have been married for about 16 years. The applicant was subject to an AVO at the time of the commission of the sexual intercourse without consent.
Applicant had a previous conviction for common assault upon his wife that was dealt with at Picton Local Court. On that occasion, he entered into a recognizance to be of good behaviour for a period of 12 months, to accept the supervision of the NSW Probation and Parole Service & to attend anger management counselling.
Guilty plea - priors - no previous imprisonment.
Whether sentence manifestly excessive.
Appeal dismissed.
55

LT - CCA, 18.2.2005
Santow JA, Hislop J, Smart AJ
Citation: R v LT [2005] NSWCCA 42
Crown appeal.
2 x make false accusation (s.314 of the Crimes Act 1900); 6 x perjury with intent to procure conviction (s.328).
Concurrent 300h & 500h CSO's.
The trial proceeded upon the issue of whether the Crown case overcame a live issue of duress raised by respondent. Respondent asserted that she had been subjected to threats & pressure amounting to duress, sufficient at law to represent a bar to verdicts of guilty.
The offences involved respondent making false accusations of sexual assault against her stepbrother & giving false evidence in the trial of her stepbrother. Respondent was just over 15 years of age when she made the false accusations and 16* years of age when she gave false evidence.
Intimidation - coercion - immaturity - vulnerability - moral culpability.
Objective seriousness of offences - asserted inadequacy of non-custodial sentences.
Crown appeal dismissed.
56

ZAITER, Sid - CCA, 1.3.2005
Grove, James & Barr JJ
Citation: R v Zaiter [2005] NSWCCA 61
Application for leave to appeal against order refusing leave to withdraw plea of guilty.
Applicant sold prohibited drugs to a Brendan McMullen. Investigating police intercepted & recorded a series of telephone conversations between applicant & McMullen that implicated the applicant as being a drug dealer who was supplying a large commercial quantity of cocaine.
Findings of fact - whether evidence capable of proving offence - whether error in refusing leave to withdraw plea.
Leave to appeal refused.
57

TRAN, Thi Oanh - CCA, 17.2.2005
Grove, Hidden & Bell JJ
Citation: R v Tran [2005] NSWCCA 35
Sentence appeal.
Malicious wounding.
18m with NPP of 6m.
The applicant, her sister & a female friend were in an arcade in George Street, Sydney. The 16 year old victim was in the same arcade with a group of friends. Some tension arose between the 2 groups & the victim made an insulting gesture with her finger. She then left the arcade to walk up the street. The applicant's group followed. The victim turned around & repeated the gesture, whereupon the applicant's sister ran up to the victim & attacked her with a knife. The applicant & the friend joined in & also attacked the victim, although they did not have any weapons. The victim's friends arrived & rescued the victim from the situation. She was taken to hospital where it was found that she had sustained multiple lacerations, 15 to her left breast, 11 to her scalp & 10 to her face, requiring sutures.
Aged 20 at time of offence - no priors.
Guilty plea to statutory alternative - ambiguity of endorsement on back of indictment as to which of 2 available alternatives pleaded to - parity of sentence with juvenile co-offender - whether Children's Court imposition irrelevant - whether sentence excessive.
Appeal dismissed.
58

FD- NSW SC, Levine J, 25.2.2005
JD
Citation: R v FD; R v JD [2005] NSWSC 128
Remarks on Sentence.
FD: Murder; malicious wounding with intent; armed robbery.
JD: Manslaughter; armed robbery.
The 33 year old victim was stabbed to death after placing an advertisement in the Trading Post offering a diamond ring for sale after the break-up of his engagement. He & his parents organised to meet FD at an address in Glebe. Upon their arrival at the address, the family was ambushed, with FD threatening them with a knife before his teenage accomplice ran into the backyard of the home brandishing a pistol (later found to be a replica). The mother's handbag, which contained the ring, was snatched from her & in the ensuing chase the father was stabbed in the chest, puncturing his lung. The victim managed to pin the teenager to the ground, whereupon FD stabbed him 4 times. He did not survive emergency surgery.
JD: Sentenced to total of 5y 3m with NPP of 3y.
FD: Sentenced to total of 26y with NPP of 20y.
59

O'DONOGHUE, Anthony - CCA, 25.2.2005 - 151 A Crim R597
Spigelman CJ, Wood CJ at CL, Barr J
Citation: R v O'Donoghue [2005] NSWCCA 62
Conviction appeal.
B&E and commit a serious indictable offence (AOABH) in circumstances of aggravation (corporal violence used); AOABH.
Believing the female victim was responsible for him having been evicted from his premises, the appellant entered the female victim's home accompanied by a large dog & set about assaulting the female victim & her male friend. He used handlebars in the attack upon the male victim. The judgment does not give any details about the attack upon the female victim.
Whether use of corporal violence capable of aggravating offence when the serious indictable offence is AOABH.
Appeal dismissed.
60

WILLIAMS, Anthony Charles - CCA, 25.2.2005
Studdert & Hulme JJ
Citation: R v Williams [2005] NSWCCA 48
Sentence appeal.
1 x aggravated kidnapping; 1 x malicious damage to property by fire with intent to endanger life; + 3 serious offences on a Form 1.
Total sentence of 8y with NPP of 5y.
Applicant & the victim had been in a relationship for some years & had 2 children. Applicant was in gaol when the victim told him that she wished to end the relationship. He was not happy about this & the victim soon started receiving threatening telephone calls & letters from him. Upon release from goal, he tried to persuade the victim to reconcile with him. He threatened her on a number of occasions, becoming more angry & agitated each time. Police were called each time & on the last occasion the applicant asked to be taken to hospital to get help as he thought he may do something silly. Police took him to hospital where he was given some Valium. He continued to make threats against the victim & police applied for an interim apprehended violence order which was served on the applicant. The applicant went to where the victim was staying, broke in & dragged her from the house. He held a piece of glass to her face & threatened to kill her. The victim was stabbed twice in the arm before managing to escape & run to a nearby house. The applicant broke into the house but was unable to get into the room in which the victim was hiding. On 2 occasions, he poured petrol into the room & told the victim that if she did not come out he would burn her alive. He set fire to the petrol & the victim ran from the burning house to a police car, with applicant chasing after her with a piece of wood raised above his head. Police subdued him with capsicum spray & arrested him. He continued to make threats against the victim. He refused to take part in an electronically recorded interview & was charged. The victim received treatment in hospital for smoke inhalation & superficial lacerations. When she returned home, she found a threatening note on the door & the remnants of a fire in her backyard. A neighbour told police that she had seen the applicant drag belongings from the house & set fire to them.
Aged 34 at time of sentence - Aboriginal - deprived background - brought up in environment of consumption of alcohol, violence - limited education - 'formidable criminal history'- previous imprisonment.
Expert evidence - misinterpretation of report - findings of fact - principles in Letteri and Henry - whether excessive weight given to deterrence.
Appeal dismissed.
61

IBRAHIM, Ibrahim - CCA, 17.2.2005
Grove, Bell & Buddin JJ
Citation: R v Ibrahim [2005] NSWCCA 43
Sentence appeal.
1st indictment: enter building with intent to commit indictable offence (assault); intimidation with intent to cause fear of physical or mental harm; unauthorised possession of a firearm; + Form 1.
2nd indictment: ongoing supply of cannabis leaf; + Form 1.
Total sentence of 4y 2m with NPP of 3y 9m. The NPP equalled 90% of the head sentence.
The 1st indictment offences occurred in 2001 when applicant & another man gained access to the victim's flat, woke the victim & demanded money from him to repay an outstanding debt. The victim denied owing the money. After applicant searched the premises & after further discussions, the victim agreed to pay him the following day. The applicant threatened the victim with violence if he failed to pay. Applicant stole the victim's flatmate's wallet as he left. Despite being told not to contact police, the victim reported the matter to police. The following day, police observed the applicant, in company with another man, banging on the victim's door. Police intercepted applicant's vehicle & found the stolen wallet, 0.73 grams cocaine, a .22 semi-automatic handgun & 5 unspent rounds of ammunition in the vehicle.
The offences on the 2nd indictment occurred in 2003. Applicant was on bail for the offences on the 1st indictment when he supplied an undercover police officer on 3 separate occasions with cannabis in a caf* the applicant was running. On each occasion, the quantity was approximately 1 gram for which the applicant was paid $20 on each occasion. On the last occasion the applicant arranged for the undercover police officer to purchase a $50 deal of amphetamine from the proprietor of a nearby shop. The amphetamine was found to weigh 0.16 grams.
Aged 37 at time of sentence - guilty pleas at first available opportunity - 20% discount allowed - favourable subjective features - disrupted childhood - multiple priors dating back to 1981 - drug abuse - previous imprisonment.
Accumulation of sentences produced a NPP disproportionate to the head sentence.
Appeal allowed: resentenced to a total of 4y with a NPP of 3y.
62

THORBURN, Kyle - CCA, 1.3.2005
Grove, James & Barr JJ
Citation: R v Thorburn [2005] NSWCCA 71
Crown appeal.
1 x ongoing supply of amphetamine.
12m with NPP of 3m.
Respondent was selling amphetamines from his home. On 6 separate occasions within a period of 9 days, respondent supplied an undercover police officer with amphetamine, the total amount being 4.8 grams. Police searched respondent's premises & found equipment showing that he was a dealer in the drug.
Impairment of mind - significant organic brain dysfunction - developmental difficulties - HDHD - drug addiction - alcohol abuse - rehabilitation - need for ongoing counselling - special circumstances.
Excessive weight given to subjective circumstances & mental condition - proportionality - whether sentence manifestly inadequate.
Appeal dismissed.
63

DREW, Rebecca Thelma - CCA, 23.2.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Drew [2005] NSWCCA 50
Sentence appeal.
Aggravated car-jacking; drive speed dangerous; drive under influence of alcohol; malicious damage; unlicensed driver.
5y with NPP of 3y.
Applicant put her hand through the window of the female victim's car & demanded that she be given the keys. The applicant had a pair of scissors in her other hand. The victim refused to hand over the keys & the applicant punched her in the face & grabbed the keys from the ignition. The victim tried to get the keys back, but the applicant punched her in the face again. The applicant began to walk away from the vehicle then stopped, picked up a rock & threw it at the victim'ss vehicle, shattering the rear driver'ss side window. The victim & her passengers feared for their safety & ran from the vehicle & sheltered in a nearby residence. Applicant drove away in the victim'ss vehicle & shortly thereafter lost control of it & crashed it into a parked car. She then got out of the vehicle & walked away. Police arrested her a few days later. She made full admissions. She said she had been drinking from 10:00am on the day of the offence. The victim suffered bruising, swelling & soreness to the face.
Aged 22 at time of offence - deprived background - heavy drinker & intoxicated at time of offending - never been employed - on bond at time of offence - priors - previous imprisonment.
Sentencing judge referred to utilitarian value of guilty plea, followed immediately by reference to the strength of the Crown case & difficulty of any defence.
No expressed discount - whether error in sentencing.
Appeal allowed: resentenced to 4y with NPP of 2y.
64

DANUCA, Dino - CCA, 7.3.2005
Grove, Bell & Buddin JJ
Citation: R v Danuca [2005] NSWCCA 45
Sentence appeal.
7 x BE&S; + 11 further offences on three Form 1 documents taken into account.
Total sentence of 8y with NPP of 6*y.
Applicant was sentenced with his brother, Nexhmedin Bala. Bala was charged with a number of counts of receiving stolen property, being that which was that stolen in the B&E offences committed by the applicant. The arrest of the applicant & his brother was the result of a police operation that targeted B&E offences committed on residential premises in affluent suburbs of Sydney in which portable safes had been stolen.
Aged 34 at time of sentence - guilty plea - born & raised in Kosovo - father a medical practitioner - family are ethnic Albanian Muslims - family harshly treated under Serbian rule - mother died in camp - applicant diagnosed as suffering from post-traumatic stress disorder - depression, anxiety within extremely severe range - manifesting symptoms of severe clinical depression - married with 2 sons - had brought relatives out to Australia & cared for them - infant son required major bowel surgery.
Inadequate weight given to subjective circumstances - error by totally rejecting opinions of psychologist - inadequate weight given to troubled psychological state - whether sentences manifestly excessive.
Appeal allowed: resentenced to total of 8y with NPP of 5*y.
65

LESI, Billy - CCA, 1.3.2005
Grove, Bell & Buddin JJ
Citation: R v Lesi [2005] NSWCCA 63
Sentence appeal.
2 x robbery in company; 1 x assault; 1 x being carried in a stolen conveyance; + Form 1 offences (1 x robbery in company; 3 x assault with intent to rob).
Total of 8*y with NPP of 6y.
Applicant & a co-offender entered a hotel in Annandale after it had closed, however, some staff members & their friends were still present. The offenders said they had a gun but did not produce it. A staff member's male friend was forced to hand over the cash holdings of the hotel ($40,000). The applicant punched a staff member in the face after he had complied with a demand to empty out his pockets. Over a year later, applicant (armed with a replica pistol) & 2 other males (one armed with a knife) entered a tavern at Smithfield & robbed the assistant manager of $4,250. Police arrived, a struggle took place & one of the co-offenders was detained. The applicant & the other co-offender escaped in a stolen car. Over 6 months later, police arrested the applicant after they received information identifying him & his fingerprint was found on the abandoned stolen car. Police executed a search warrant at his home & found a number of items connected with the tavern robbery.
Aged 23 at time of 1st offence - guilty plea - considerable hardship & family dysfunction.
Parity - appropriate application of R v Henry (1999) 46 NSWLR 346.
Appeal dismissed.
66

ALI - HCA, 8.3.2005 79 ALJR 662
Citation: Ali v The Queen [2005] HCA 8
On appeal from the SC of Queensland.
Appellant & a co-accused were charged with a number of offences following the death, dismemberment & burial of an infant. The co-accused was the mother of the infant & the appellant the father. Following a joint trial before a jury, the appellant was convicted of murder. The co-accused was convicted of manslaughter. Appellant was also convicted of improperly interfering with a corpse & concealing the birth of a child. The co-accused was also convicted of concealing the birth of a child.
Joint trial - inconsistent statements given by co-accused - competence of counsel - whether counsel should have applied for a separate trial - whether application would have been successful - whether accused disadvantaged by joint trial - whether counsel failed to object to evidence of bad character - whether counsel failed to advance alternative case - whether accused deprived of fair chance of acquittal - whether miscarriage of justice.
Appeal dismissed.
67

CENTRACO, Anna Maria - CCA, 16.2.2005
Hidden, Howie & Hislop JJ
Citation: R v Centraco [2005] NSWCCA 11
Conviction appeal.
3 x obtain money or financial advantage by deception.
Total of 4y with NPP of 18m.
The appellant was accused of defrauding her employer. The cheques fraudulently drawn by the appellant on her employer's business account amounted to $453,000. There was evidence that some of the money was spent on gambling. As to the 1st count, appellant said that any cheques she cashed were cashed at her employer's request & the proceeds were returned to him; as to the 2nd count, her case was that she received each of the cheques from her employer who asked her to deposit them into her own account & then withdraw the funds & return them to him; the 3rd count involved what appellant said were genuine mistakes made in her completion of several wage schedules whereby money to which she was not entitled was paid into her own account. She said that in each case she paid the money back when the error was discovered. A statutory declaration, in which the appellant acknowledged owing money, was admitted into evidence over objection. The declaration was signed by the appellant & witnessed by the employer's sister, who was a JP. The appellant denied having signed the declaration. Her case was that she wrote out the body of the document on her employer's instructions much earlier than the date appearing on the declaration. She said that her employer wanted her to prepare the document as acknowledgement of debt in relation to the cheques which he had given her to deposit into her own account. She said she refused to sign the document & also said that her employer's sister was not present at the time. She denied having defrauded her employer in any way & said that her gambling was funded from legitimate sources.
Statutory declaration - admissibility of evidence of appellant's acknowledgment of debt to employer - adequacy of directions about that evidence.
Appeal dismissed.
68

JACONA, John Chatfield - CCA, 25.2.2005
Spigelman CJ, Wood CJ at CL, Barr J
Citation: R v Jacona [2005] NSWCCA 69
Conviction appeal.
2 x maliciously injuring property (s.247 Crimes Act 1900).
The charges arose from the destruction of 2 sheds left on appellant's property by the State Rail Authority of NSW. One shed was owned by that Authority & the other by Wreckair Plant Hire. There was no issue at trial that the appellant had done the acts that caused the damage to the sheds by pushing them down sloping ground with a bulldozer. It was also accepted that the sheds were on his property unlawfully. The issue left to the jury was whether the appellant, having found the sheds on his property, had taken reasonable steps to remove them. The appellant asserted that there was no evidence to enable the jury to conclude that he was guilty of the offences as charged. He submitted that, in particular, there was no evidence which could satisfy the element of malice & that there was evidence that he was exercising a legal right to remove the sheds & that his actions in doing so were not unreasonable.
Issues raised on appeal essentially issues for the jury at a criminal trial.
Appeal dismissed.
69

KNORR, Monika - CCA, 25.2.2005
Spigelman CJ, Wood CJ at CL, Barr J
Citation: R v Knorr [2005] NSWCCA 70
Appeal against a verdict of guilty following a special hearing.
Use offensive weapon (a knife) with intent to prevent a member of the police force from investigating any act or circumstance which reasonably called for investigation.
Limiting term of 3y.
Two police officers attended appellant's residence in response to an emergency call in which she had indicated her intention to kill herself. Appellant appeared to have settled down & the police officers were speaking with her sister when the appellant emerged with a knife. As the police officers tried to restrain her, she waved the knife in front of her & they stepped back. The use of the knife was the act constituting the offence for which she was found guilty. She was acquitted on a 2nd charge (no details supplied). The appellant was found unfit to be tried pursuant to s.11(1) of the Mental Health (Criminal Procedure) Act 1990 & subsequently stood trial at a special hearing pursuant to s.19(1) of the Act. The jury found that 'on the limited evidence available, the accused person committed the offence charged', in accordance with s22(1)(c) of the Act.
Unfitness to be tried - adequacy of directions - discretion under s.8(1) Criminal Appeal Act 1990 - trials conducted as 'special hearings'under Mental Health (Criminal Procedure) Act 1990 - jury directions - error in failure to comply with s.21(4) Mental Health (Criminal Procedure) Act 1990.
The Crown accepted that the appeal should be allowed based on the decision in Subramaniam v The Queen [2004] HCA 51, 79 ALJR 116.
Whether new trial should be ordered - appellant has already served half the limiting term.
Appeal allowed: verdict quashed.
70

KATARZYNSKI, Kirstain William - CCA, 9.3.2005
Spigelman CJ, Sully & Kirby JJ
Citation: R v Katarzynski [2005] NSWCCA 72
Conviction and sentence appeal.
Murder.
24y with NPP of 18y.
Appellant took offence to the deceased making indecent comments about female patrons at a pub & an altercation developed. The appellant subsequently shot the deceased.
Aged 33 at time of offence - intoxicated at the time - not normally a violent person - unfortunate early life - witnessed suicide of step-father - close relationship with mother - family support - steady employment.
Whether error in directions on voluntariness, causation, murder by reckless indifference to human life, self-defence & excessive self-defence where the identified basis for primary liability was reckless indifference to human life - whether error in directions on provocation - subjective circumstances - determination of facts - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 20y with NPP of 15y.
71

MACARTHUR, Ross William - CCA, 3.3.2005
Grove, James & Barr JJ
Citation: R v Macarthur [2005] NSWCCA 65
Conviction appeal.
Knowingly concerned in non-payment of penalty surcharge applicable where 'marked fuel'used for authorised purpose.
2y GBB.
Expert evidence rejected on the grounds of irrelevance & focus on credibility of other witness - speculative opinion - ruling to reject not erroneous - Crown witnesses cautioned & given certificates under s.128 Evidence Act - witnesses not thereby indemnified against prosecution - direction to jury that witnesses were 'protected'correctly refused - nor was direction that testimony 'tainted'appropriate - challenges to summing-up not made out - ample evidence to support jury finding of knowledge adverse to appellant.
Appeal dismissed.
72

SCOTT, Tracey Lee-Ann - CCA, 1.3.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Scott [2005] NSWCCA 51
Sentence appeal.
4 x steal motor vehicle.
Total of 3y 9m with NPP of 2y 9m.
Applicant went to various car dealers, test drove luxury cars, then failed to return them. The cars stolen by the applicant were a Peugeot 406 coupe, value $60,000; a Lexus IS300 sedan, value $66,000; a Jaguar Sovereign saloon, value $60,000; & an Audi All Road station wagon, value $88,900. The Peugeot & Audi were made available to the applicant's de facto husband, Jason Palinko, who exchanged parts of the stolen vehicles with damaged vehicles of similar make so as to 'rebirth'an apparently undamaged vehicle. It was while the applicant was a passenger in the 'rebirthed'Peugeot that she was arrested for the motor vehicle thefts. Applicant entered a plea of guilty to the 4 offences, which was accepted as being at the earliest point in time. The sentencing judge did not accept applicant's explanation that she panicked & abandoned both the Jaguar & Lexus, saying that she did not know what then happened to those vehicles.
Use of subjective features - concurrency & accumulation of sentences.
Appeal dismissed.
73

PALINKO, Jason John - CCA, 1.3.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Palinko [2005] NSWCCA 46
Sentence appeal.
2 x receiving stolen motor vehicles.
Total of 3y 9m with a NPP of 2y 6m.
Applicant was involved in the 'rebirthing'of stolen vehicles. See also: R v Scott [2005] NSWCCA 51.
Applicant made full admissions when interviewed & agreed that he had engaged in this activity for monetary gain.
Use of subjective features - concurrency & accumulation of sentences.
Appeal dismissed.
74

FARAH, Michael - CCA, 1.3.2005
Grove, James & Barr JJ
Citation: R v Farah [2005] NSWCCA 67
Sentence appeal.
Ongoing supply of prohibited drug (heroin & methylamphetamine); 2 x supply heroin; + Form 1 (conspire to supply heroin).
5*y with NPP of 2*y.
The offences came to light as a result of an authorised undercover police operation. On a number of occasions, applicant supplied an undercover police officer & an intermediary with heroin; tablets containing traces of methylamphetamine & ketamine; tablets containing methylamphetamine.
Pleas of guilty were not entered at the earliest opportunity.
Whether sentence manifestly excessive - whether error in failure to make allowance for medical condition - whether error in failure to make finding of favourable prospects for rehabilitation - totality - whether sufficient regard to punishment already received from penalty imposed under Criminal Assets Recovery Act.
Appeal allowed insofar as sentences backdated.
75

ALAMEDDINE, Walid - CCA, 3.3.2005
Grove, James & Barr JJ
Citation: R v Alameddine [2005] NSWCCA 68
Crown appeal.
2 x robbery in company; 1 x assault with intent to rob.
Sentence proceedings adjourned to 10.3.2005. Respondent granted conditional bail.
All offences arose out of a single criminal enterprise. The victims were 3 boys aged 14 & 15 who were walking in the street when the respondent & his companion (a youth) walked up to them. Respondent's companion was carrying a stick about half-a-metre in length. He asked the 1st boy whether he had a phone. When he replied that he did not, the companion searched him. As he did so, he held the stick in both hands above his right shoulder & swung it back & forth. Respondent went up to the 2nd boy & told him that he would stab him if he did not give him his mobile phone. As he said the words, he held his right hand behind his back. Although he did not have a knife, his intention was to make the boy think he did. The respondent then went up to the 3rd boy & threatened to stab him as well. He stole the boy's bum bag, which contained his wallet with about $35 inside it, as well as other items. Respondent & his companion got into a car, which was being driven by somebody else, & drove away. All 3 boys ran to the home of one of the boys who lived close by. The parents of the boy called the police. The respondent, his companion & the other occupants of the car were arrested. At the time of the offences, respondent was aged a few days under 21 years.
The Crown submitted on appeal that there was no proper basis for remand & that the DC judge ought to have proceeded to sentence the respondent straight away.
Appeal dismissed.
76

FRASER, Steven Anthony - CCA, 3.3.2005
Grove, James & Barr JJ
Citation: R v Fraser [2005] NSWCCA 77
Sentence appeal.
3 x murder.
Total of 32y with NPP of 27y.
Applicant was found guilty of the murder of his 3 young children, aged 7, 5 & 4 years. He killed the children to spite his estranged wife who had was involved with another man. At the outset of the trial, the applicant pleaded guilty to a count of manslaughter in respect of each of the killings on the basis of substantial mental impairment under s.23A of the Crimes Act, which the Crown refused to accept & 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.
Mental state - whether sentence manifestly excessive.
Appeal dismissed.
77

BUDDLE, Thomas John - CCA, 25.2.2005
Spigelman CJ, Wood CJ at CL, Barr J
Citation: R v Buddle [2005] NSWCCA 82
Sentence appeal.
1 x maliciously inflict GBH; + Form 1 (1 x AOABH).
6*y with NPP of 4y 3m.
The offence was committed in circumstances of provocation insofar as it occurred after the 2 victims had damaged the security door to applicant's home while attempting to force entry to those premises, had struck applicant's son when he went out to investigate & had then assaulted him after he had pursued them up the street. The applicant & his son armed themselves with baseball bats or pieces of timber & went in pursuit of the 2 men in a motor vehicle. When they caught up with them, the applicant & his son attacked the men. One of the men suffered serious injuries.
Aged 44 at time of sentence - sole carer of 2 sons & the half-brother to one of the sons - impressive evidence of good character - extensive community contribution - suffering from depression & fragile psychological state during period leading up to offence due to a dysfunctional family background, serious recidivism & anti-social behaviour of one son, a current coronial inquiry into the death in custody of the half-brother of the son who had been his co-offender, the recent diagnosis of his brother's terminal illness, as well as witnessing a violent crime only weeks earlier.
Provocation - whether sentence manifestly excessive - whether sentencing judge erred in assessment of objective criminality involved - whether sufficient regard to subjective circumstances.
Appeal allowed: resentenced to 5y with NPP of 3y.
78

BLAIR, Robert Keith - CCA, 11.3.2005
Grove, James & Barr JJ
Citation: R v Blair [2005] NSWCCA 78
Conviction and sentence appeal.
Supply commercial quantity methylamphetamine.
13y with NPP of 10y.
Police executed a search warrant at appellant's home where they found 3 containers in a freezer, the contents of which was later shown to be 371.3 grams of methylamphetamine. Also found were 2 sets of electronic scales & 62 resealable plastic bags. The appearance of the contents in one of the containers in the freezer suggested that some of it had been removed. When asked by police what the frozen material was, the appellant said that he had no idea. He was taken to the police station & then returned to his premises & again asked if he could say who owned the material, to which he responded that he could but did not wish to. On returning to the police station, he was formally interviewed. He told police that a friend from SA, whom he did not wish to name, had asked him to drive to Coogee & collect a parcel. Appellant was a courier by occupation. The friend from SA had not come to collect the drugs.
Whether error in directions regarding element of supply - whether error in directions on mental element of offence - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 7y with NPP of 5y 3m.
79

VUNI, Paongo - NSW SC, Studdert J, 11.3.2005
Citation: R v Vuni [2005] NSWSC 184
Remarks on Sentence.
Manslaughter.
Offender faced trial on one count of aggravated BE&S & one count of murder. After a lengthy deliberation, the jury returned a verdict of not guilty of the aggravated BE&S & not guilty of murder but guilty of manslaughter. There was no issue at trial as to whether or not the offender shot the deceased. He admitted that he had done so & admitted that he fired the shot with intent to kill & that he aimed the gun at the deceased's head. The deceased died from a gunshot to the head. There was evidence from an independent witness sitting in his car in the carpark. He said he had a full view of the deceased standing at the doorway of the premises. He gave evidence of not witnessing any provocation on the part of the deceased. He said that while he was watching the deceased, the deceased had his one hand on the door and the other on one of the handles of a baby's pram. However, he admitted that he was not watching the deceased all the time.
Sentenced to 10y with NPP of 7*y.
80

BOGA, Suleyman - CCA, 7.3.2005
Spigelman CJ, Grove & Bell JJ
Citation: R v Boga [2005] NSWCCA 76
Sentence appeal.
1 x armed robbery; 1 x discharge firearm in public place; 1 x take and drive conveyance without consent of owner; + Form 1 (2 x armed rob; 1 x custody of firearm in public place).
Total of 6*y with NPP of 3*y.
In the early hours of the morning, applicant & his co-offender entered the Orchard Tavern in Chatswood. Applicant was armed with a loaded .22 calibre gun. The co-offender was armed with a knife. The applicant held the gun to the back of the security officer's head. All staff members & customers immediately dropped to the floor. The applicant took the manager at gunpoint to the safe & then took the money. The manager was asked where the rest of the money was, to which he replied that it was in the poker machines in the gaming area. As they moved to that area, the applicant took a surveillance tape. Once the poker machines were opened, the applicant collected the money. The co-offender, who was now in possession of the gun, held the firearm to the back of the barman's head & forced him to open the till & remove the money. During the robbery, a man was robbed at knifepoint of a mobile phone. As the offenders left the premises, the co-offender discharged one round from the gun & the bullet lodged in the ceiling. Unbeknown to the offenders, staff members & patrons had managed to alert police, who were able to apprehend the offenders when they attempted to make their escape in a car that had been stolen some hours earlier.
The applicant was sentenced at the same time as his co-offender who pleaded guilty to the same charges, with the same matters taken into account on the Form 1. Both the applicant & his co-offender were on probation at the time of the commission of the offences. Both were aged a little over 17 years at the time. Both received identical sentences.
Applicant's subjective features much stronger than those of co-offender - sense of grievance - parity principle.
Appeal dismissed.
81

LE, Minh Quoc - CCA, 18.2.2005 - 151 A Crim R564
Bryson JA, Barr & Hoeben JJ
Citation: R v Le [2005] NSWCCA 40
Conviction appeal.
Use offensive weapon to prevent police investigation.
Two police officers were on patrol in a police vehicle when they observed 2 Mercedes motor vehicles parked no more than 20 metres from each other in an area they knew was used for criminal activity, particularly for dealing in drugs. Each car had a driver & 3 occupants. As one of the police officers was speaking to the driver of one car, the other car sped away & the police officers then followed it & stopped it. The officers checked the driver's licence, which was found to be in order, however, they received a warning over the police radio that the driver might carry a pistol & were told that he was recorded as having engaged in gang & drug activity & in possessing firearms. The driver & the occupants were ordered out of the car & were asked for identification. During a search of the car, a crowbar was found on the floor behind the driver's seat & a $50 note in the back of the car. One of the police officer's asked the appellant if he had anything on him that he ought not have, to which he replied in the negative. The officer told him to turn around. As the officer tried to search the man's back pockets, he kept twisting away. The officer again asked if he had something on him & the appellant said 'no'As he ran his hand down appellant's back, the officer felt something hard underneath the jacket. He lifted the back of the jacket & saw a black pistol taped to appellant's back. As the officer called out to the other police officer, the appellant took hold of the pistol & pointed it at the officer's stomach. A struggle took place, however, the police officers managed to subdue the appellant with capsicum spray & struck him with a baton.
Power of arrest - whether arrest lawful - whether evidence unlawfully obtained - power of detention & search - whether search lawful - whether evidence of appellant's possession of a gun unlawfully admitted.
Appeal dismissed.
82

HORE, Anthony John - CCA, 9.3.2005
FYFFE, Stanley James
Tobias JA, James J, Smart AJ
Citation: R v Hore; R v Fyffe [2005] NSWCCA 3
Conviction and sentence appeals.
Murder.
Both sentenced to life imprisonment.
Applicants & another co-offender were prisoners. The 3 men killed another inmate with a sandstone block weighing more than 6 kgs & a half-brick. Most of the injuries were to the deceased's head. There were some abrasions to the hands, wrist & forearms consistent with deceased trying to defend himself. This was a savage & callous murder.
Rulings - directions - admission of evidence - whether verdict unreasonable and not supported having regard to the evidence - whether sentences excessive.
Appeals dismissed.
83

CASTLES, Mark John - CCA, 14.3.2005 - 152 A Crim R 277
Santow JA, Bell & Howie JJ
Citation: R v Castles [2005] NSWCCA 79
Sentence appeal.
1 x BE&S; + Form 1 (1 x BE&S).
3y with NPP of 2y 3m.
Applicant broke into a dwelling at Erina & stole a significant quantity of jewellery & some electrical equipment. During the course of the commission of the offence, applicant left a number of drops of blood on some bed linen which DNA analysis identified as being his. The Form 1 matter involved a similar BE&S from a dwelling in Edensor Park. During this robbery, applicant took a large quantity of clothing & electronic equipment.
Aged just under 27 at time of offence - guilty plea - 'well below average'intelligence - lowest 3% of population - suffers from anxiety/depression - unemployed - history of chronic poly-substance abuse since age 12/13 - ceased formal education at that time - extensive criminal record - offence committed 7 months after release from gaol.
Whether error in treatment of guilty plea - principle of general deterrence - special circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to 2y 8m with NPP of 1y 8m.
84

JOHNSTON, Matthew Peter - CCA, 14.3.2005
Santow JA, Bell & Howie JJ
Citation: R v Johnston [2005] NSWCCA 80
Sentence appeal.
4 x BE&S; + further 6 offences on a Form 1 (larceny, dispose of stolen goods, receive stolen goods).
Total sentence of 5y with NPP of 3y 9m.
The BE&S offences were committed upon private homes.
Aged 21 at time of offences - multiple priors - subject to conditional liberty at time of offences - unemployed - limited education - drug addiction - offences committed to support habit - previous imprisonment.
Contrition - whether wrong principle applied - special circumstances - whether incorrect approach taken - whether sentence manifestly excessive.
Appeal allowed only on count 3: head sentence confirmed, NPP reduced to 1y, resulting in a total sentence of 5y with a NPP of 3y.
85

WATT, Cameron John - CCA, 3.3.2005
Grove, James & Barr JJ
Citation: R v Watt [2005] NSWCCA 89
Sentence appeal.
11 x obtain financial advantage by deception, pursuant to s.184(2) Corporations Act 2001 (Cth).
Total of 4y with NPP of 2*y.
The applicant stood trial on all 11 counts, which alleged that whilst an employee of Baptist Investment and Finance Limited (BIF), a company associated with the Baptist Church, he had used his position as an employee to dishonestly cause BIF to draw a cheque or cause an amount to be credited to an account in the general ledger of BIF. Having presented all its evidence, the Crown closed its case. On the following day, the applicant commenced giving evidence in the defence case. Towards the end of his evidence-in-chief, his counsel asked him whether he believed that in causing certain entries to be made in a ledger account, which were the subject of some of the charges, he had been dishonest. To the surprise of everyone in court, the applicant answered in the affirmative. After a short adjournment counsel for the applicant informed the judge that the applicant would be changing his plea on some of the counts to a plea of guilty. He was re-arraigned in the presence of the jury & pleaded guilty to counts 2-7 inclusive & to count 11. The trial continued on the remaining counts in the indictment. At the conclusion of the trial, the jury returned verdicts of guilty on those counts.
Whether error in assessment of objective criminality - whether insufficient weight given to pleas of guilty - whether error in failure to adequately consider reparation paid by applicant - whether error in failure to adequately take into account subjective findings favourable to applicant.
Appeal dismissed.
86

PETROULIAS, Nikytas Nicholas - CCA, 11.3.2005 - 62 NSWLR 663;152 A Crim R 244
Spigelman CJ, Mason P, Hunt AJA
Citation: R v Petroulias [2005] NSWCCA 75
Crown appeal against permanent stay of proceedings.
Defraud the Commonwealth (taxation fraud).
The charge was brought pursuant to s.29D Crimes Act 1914 (Cth).
The Crown case at trial was that between 1997 & 1999, the respondent held office in the Australian Taxation Office (ATO). In September 1998 he became First Assistant Commissioner. The Crown alleged that at the time of such employment the respondent was also involved in the planning, promotion & implementation of tax schemes with certain other persons & that he used his position as an officer of the ATO to facilitate favourable Advance Opinions & Private Binding Rulings issued by the ATO. The favourable rulings issued at the respondent's instigation assisted the taxpayers who were 'Rulees'(an ATO expression) on 2 matters of continuing relevance, the deductibility of the employer's contributions & the absence of liability to fringe benefits tax (FBT).
Requirement of proof of actual or real risk to revenue - Pt.IVAA Taxation Administration Act 1953 - Private Rulings - loss of ability to litigate - s.170BB Income Tax Assessment Act 1936 - mixed question of fact & law - directions.
Error in permanently staying proceedings - failure to apply 'foredoomed to failure'test - ample material capable of establishing 'arguably wrong'element of Crown case.
Appeal allowed: stay set aside.
87

SABOUNE, Salim - CCA, 10.3.2005
Wood CJ at CL, Hislop & Johnson JJ
Citation: R v Saboune [2005] NSWCCA 92
Sentence appeal.
3 x BE&S.
Total sentence of 4*y with NPP of 2*y.
Offences were committed upon residential premises. In one case, entry was gained by breaking a glass door, the others by breaking windows. The total value of property taken was approx $19,000. None of the property was recovered. Whilst in prison for other offences, a DNA sample was taken from applicant, which matched samples of blood taken from each of the sites of the above offences.
Aged a month short of 40 at time of sentence - very lengthy criminal record - on parole at time of commission of above offences - subject to 18m bond - learning & behavioural difficulties from early age - poor choice of peers & associates led to criminal activity - married with children - drug use since age 17 - limited education - short-term unskilled employment positions - previous imprisonment.
Remorse - contrition - commenced medical treatment for psychosis arising from drug addiction - whether sentence excessive.
Appeal dismissed.
88

SUKKAR, Steven - CCA, 16.3.2005
Wood CJ at CL, Hidden J, Smart AJ
Citation: R v Sukkar [2005] NSWCCA 54
Conviction and sentence appeal; and
Crown appeal.
Knowingly concerned in the importation of commercial quantity ecstasy tablets (valued at $7.2M to $12M).
14y with NPP of 9y.
The tablets were brought into Australia concealed in 48 columns in a shipping container that had come from Belgium. The drugs were intercepted in Brisbane by Customs officers & police. A controlled delivery took place. The Crown case was that the appellant being knowingly concerned was demonstrated by his participation in the unloading of the columns after they were delivered to premises in Sydney which were owned by him, in the examination of the columns & sorting of tablets removed in a search for genuine ecstasy among the inert tablets, & in making extensive enquiries as to the whereabouts of the balance of the consignment which he & his brothers suspected had been stolen either by those involved at the European end of the shipment or by associates responsible for the clearance & initial delivery of the container into a warehouse in Brisbane. Appellant's case was that he was unaware of & had no knowledge of the importation until his brothers came to him for advice, by which time the importation process had ended.
Admission of evidence - failure to discharge jury - directions concerning being 'knowingly concerned'- playing whole of summing-up during jury deliberations - bias - extent of importation process - whether verdict unreasonable.
Conviction and sentence appeal dismissed.
Crown appeal against inadequacy of sentence dismissed.
89

KOPACKA, Wayne Mark - CCA, 10.3.2005
Wood CJ at CL, Hislop & Johnson JJ
Citation: R v Kopacka [2005] NSWCCA 83
Sentence appeal.
1 x aggravated dangerous drive occasioning GBH.
4*y with NPP of 2*y; disqualified from holding a licence for 7y. Recommendation that a licence not be issued to applicant until evidence of rehabilitation provided.
Applicant drove up behind another car, causing the other driver to move into the left part of the lane. He then overtook that car by driving over double unbroken lines onto the incorrect side of the road. He swerved back onto the correct side of the road at high speed, his car fishtailed & he lost control of it. He swerved back onto the incorrect side of the road, off the road & into a tree. Applicant & his 2 passengers were trapped in the car & had to be rescued. One of the passengers underwent surgery for fractures to his left forearm & leg. Applicant was taken to hospital where a blood alcohol sample was taken & which returned a blood alcohol reading of 0.281. His blood alcohol concentration was approaching double the level required to constitute a circumstance of aggravation. At the time of the offence, applicant was driving an unregistered & uninsured motor vehicle with cancelled registration plates & he did not hold a driver's licence, his licence having been cancelled a little over 3 years prior to the collision.
Extent of discount for utilitarian value of guilty plea - whether sentence excessive.
Appeal dismissed.
90

PILE, Clinton John - CCA, 11.3.2005
Spigelman CJ, Grove & Bell JJ
Citation: R v Pile [2005] NSWCCA 74
Sentence appeal.
1 x perjury.
FT of 9m.
The applicant was charged with having made a false statement on oath in the Bathurst District Court & that at the time of making that statement he knew it to be false. The matter material to the proceedings before the DC at the time concerned an armed robbery of the Kandos Post Office committed by the applicant & another man.
Whether error in failure to have regard to utilitarian value of guilty plea - contrition - failure to have regard to salient features of applicant's case warranting leniency - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5m FT.
91

SUNDAR, Jason Abhinay - CCA, 15.3.2005
Tobias JA, Wood CJ at CL, Buddin J
Citation: R v Sundar [2005] NSWCCA 93
Sentence appeal.
Aggravated robbery (use of corporal violence).
5y with NPP of 3y.
Believing the victim had stolen property belong to applicant's mother & sister, applicant & his co-offender viciously attacked the victim who suffered multiple abrasions & swelling to his head. He also suffered stab wounds inflicted during the attack by the co-offender who used a pocket knife. These wounds required suturing in hospital. Applicant took the victim's health care card in order to get the victim's address.
Application of guideline decision in R v Henry - discount for early guilty plea - significance of utilitarian value - discount for admissions & assistance to authorities - assessment of objective seriousness of offence.
Appeal allowed: resentenced to 3y with NPP of 2y.
92

FIELDS, Karl Douglas - CCA, 16.2.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Fields [2005] NSWCCA 37
Sentence appeal.
Assault with intent to rob maliciously inflicting ABH.
6y with NPP of 4y.
The victim, a 61 year old disability pensioner, was attacked in his home by the applicant. When his demand that the victim hand over his money was refused, the applicant savagely assaulted him, causing serious & ongoing injuries.
Aged 40 at time of offence - guilty plea - Aboriginal - deprived & violent background - health problems - serious personality problems - alcohol & drug abuse - when intoxicated is irritable & unpredictable - extensive criminal record spanning 25 years, some involving use of violence.
Objective seriousness of offence - balancing aggravating & mitigating factors.
Whether sentence manifestly excessive.
Appeal dismissed.
93

WILLIAMS, Anthony Robert - CCA, 24.3.2005
Tobias JA, Buddin & Hall JJ
Citation: R v Williams [2005] NSWCCA 99
Sentence appeal.
Manslaughter.
14y with NPP of 10*y.
Applicant faced trial on a charge of murder. He was found not guilty of murder but guilty of manslaughter. Applicant beat his 30 year old de facto wife to death using a heavy metal weightlifting bar. He dumped her body in bushland at Lapstone at the foot of the Blue Mountains & then pawned her jewellery & fled to Queensland. Becoming worried that the hiding place was too obvious, he returned & hid the body deep in the bush at Wentworth Falls.
Aged 35 at time of offence - bad temper - lacked self-control - quick to inflict injury on others - 'a powerful man'- no demonstration of contrition - bleak prospects of rehabilitation.
Challenge to trial judge's finding as to basis upon which jury returned a verdict of manslaughter - provocation - aggravating factors which are also an element of the offence - whether sentence excessive.
Appeal allowed: applicant resentenced to 12y with NPP of 9y.
94

O'HARA, Django - CCA, 18.3.2005
Barr, Bell & Hall JJ
Citation: R v O'Hara [2005] NSWCCA 97
Application for extension of time within which to bring application for leave to appeal against sentence.
Murder.
12y 10m with NPP of 8y 10m.
Applicant shot & killed a security guard during an attempted robbery at a house in Roseville. He entered a plea of guilty to murder.
Application out of time - application for leave to appeal filed more than 5 years after expiry of time limited by the Criminal Appeal Rules.
Whether sentence excessive.
Application refused.
95

HICKS, Anthony Norman - CCA, 15.3.2005
Tobias JA, Wood CJ at CL, Buddin J
Citation: R v Hicks [2005] NSWCCA 90
Sentence appeal.
2 x drive in manner dangerous to other persons; + Form 1 (drive whilst licence cancelled; drive with low range PCA).
Total of 16m with NPP of 12m; disqualified from driving for 3 years.
Applicant was driving in excess of a speed limit of 100 kph when his vehicle left the road & collided with road signs before rolling onto its side, finally coming to rest against a chain mesh fence. Two passengers in the vehicle sustained injuries amounting to GBH. It was the Crown case that the applicant had driven in a manner dangerous to other persons through a combination of excessive speed & some impairment to his driving skills due to the presence of alcohol.
Aged 33 at time of sentence - grew up in chaotic & abusive family environment - grandparents subsequently assumed guardianship of him at age 11 or 12 - became heavily dependent upon drugs & alcohol at age 14 - left school in Year 10 - difficulty in maintaining permanent employment - long history of significant mental health problems - numerous priors - previous imprisonment.
Relevance of general deterrence where offender has a mental disorder - special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
96

BELL, Michael Joseph - CCA, 7.3.2005
Spigelman CJ, Grove & Bell JJ
Citation: R v Bell [2005] NSWCCA 81
Sentence appeal.
Attempt strangle with intent to murder.
4y with NPP of 2*y.
Applicant & the victim had been in a de facto relationship for 13 years & had 2 children. At the time of the offence, the applicant & the victim had been separated for approx 18 months but continued to live in the same house. During the evening of the offence, the victim attended Army Reserve training while the applicant minded their children. When the victim returned, she went to her bedroom & started to undress. The applicant entered the bedroom, put out his hands & moved them towards the victim as if he was going to touch her & said 'That would be an assault'He did this a number of times before the victim pushed past him, walked to the kitchen/dining area & picked up the phone & dialled '000'. The applicant grabbed her hand & forced the receiver back onto the hook. He then grabbed the victim around the throat with both hands & forced her to the floor, sat on her chest & continued choking her. According to the applicant, after about 10 to 15 seconds the victim started turning blue. The couple's 11 year old son entered the kitchen area & screamed at the applicant to stop. The applicant let go of the victim's throat & then contacted the police & reported what he had done. The applicant said that he intended choking the victim to death & fully knew what he was doing, having been trained in weaponless techniques during his 26 years of Army service. He said that the only reason he stopped was because of the intervention of the child. He also said that he was suffering from post-traumatic stress disorder arising from unsuccessfully performing CPR on a drowning child.
History of becoming increasingly distressed, depressed, frustrated, despairing - finding of special circumstances - priors, including an assault upon former wife - previous imprisonment.
Guilty plea - utilitarian value - R v Ellis (1986) 6 NSWLR 603 - whether sentence manifestly excessive.
Appeal dismissed.
97

MANTON, Mark Anthony - CCA, 21.3.2005
Bryson JA, Barr & Hoeben JJ
Citation: R v Manton [2005] NSWCCA 58
Conviction appeal.
Sexual intercourse without consent.
5y with NPP of 3*y.
The complainant accused the appellant (her de facto's cousin) of having had sexual intercourse with her without her consent. The complainant's evidence was uncorroborated & the Crown case was totally dependent upon her evidence. There was no medical support for the claimed sexual assault & there was no complaint for 6 or 7 weeks after the assault was alleged to have occurred. In cross-examination, the complainant agreed that she told police that she did not know the exact date on which the alleged offence occurred. She said that she was too stressed to give an accurate date. The complainant & her de facto lived with the de facto's mother. There was no evidence of them detecting any difference in the complainant's demeanour in the weeks following the alleged offence. It seems that for a while after the alleged assault, the appellant ceased his visits to the home. The de facto gave evidence that when his cousin resumed his visits, the complainant seemed different in his company.
Whether verdict unreasonable.
Appeal dismissed (Hoeben J dissenting).
98

KOSOWICZ, Timothy Edward - NSW SC, Patten AJ, 24.3.2005
Citation: R v Kosowicz [2005] NSWSC 234
Judgment.
Murder; indecently interfere with dead human body.
Judge alone trial.
Accused admitted killing the young female child & interfering with her dead body. The only issue for the Court was whether, at the relevant time, the accused was mentally ill so as not to be responsible, according to law, for his actions within s.38 Mental Health (Criminal Procedure) Act.
Verdict: Upon each count on the indictment a special verdict of not guilty by reason of mental illness; order that accused be detained in strict custody at Long Bay Prison Hospital or such other place as the appropriate authorities may determine and that he otherwise be dealt with according to law.
99

BARTLETT, Chantel - CCA, 23.3.2005
McColl JA, Barr & Johnson JJ
Citation: R v Bartlett [2005] NSWCCA 103
Sentence appeal.
1 x import trafficable quantity cocaine; 1 x import trafficable quantity heroin.
Total sentence of 7y with NPP of 4y 2m.
Applicant arrived at Sydney Kingsford Smith Airport on a flight from Johannesburg, South Africa. Following a reaction from a drug detector dog, she was taken to an interview room where she told Customs officers that she had a substance secreted in her shoes & in a sanitary pad. She consented to being searched externally. An ion scan was carried out on her belongings which provided a positive result for cocaine. Australian Federal Police were called in & they arrested her. The applicant voluntarily took part in a recorded interview. She said she was to receive a financial advantage for bringing the narcotics to Australia. The shoes & the sanitary pad had been provided by a person in Johannesburg. She said she did not know precisely what narcotics she was carrying. She had been instructed by her contact in Johannesburg that upon her arrival in Sydney she was to go to a hotel where someone would collect the narcotics & give her the money. The shoes & sanitary pad both contained white powder which, upon analysis, was shown to contain 306.8 grams of pure cocaine & 54 grams of pure heroin.
Subsequent to sentence being imposed, it came to the notice of the Cth DPP that the analyst who had carried out the tests on the drugs had ceased to be employed at the Australian Government Analytical Laboratories. There were charges against him concerning missing or unaccounted for quantities of cocaine & heroin. When drugs are tested, samples of the drugs are reserved in case difficulties of analysis arise. The reserved samples of the drugs were then tested by a scientist employed in the laboratory. According to her calculations, taking into account the purity of the drugs contained in the samples compared with the total weight of the drugs seized, the total pure weight of cocaine was 280.3 grams & the total pure weight of the heroin was 45.6 grams.
Assistance to authorities - discount - guilty plea - discrepancies in analysis of drugs - comparison of sentences with those passed on an offender in an unrelated matter - whether sentences excessive.
Appeal dismissed.
100

WALKER, Brett Raymond - CCA, 31.3.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Walker [2005] NSWCCA 109
Sentence appeal.
2 x supply prohibited drug (ecstasy); + Form 1 (3 x drug offences; 2 x goods in custody).
Total of 3*y with NPP of 2y.
Police conducted surveillance upon applicant's residential premises. The period of surveillance extended over a period of 3* hours in which 14 people, males & females ranging from teenage years to middle age, attended the premises for short periods of time. Police believed that during this surveillance, they observed actions consistent with the supply of drugs. A month later, while on patrol, police stopped a vehicle in which applicant was seated in the front passenger seat. While speaking to the applicant, police noticed a strong odour of cannabis emanating from him, whereupon the applicant was removed from the vehicle & searched. In his wallet, police found a medium-sized resealable plastic bag containing white powder & $120.00 in cash. A search of applicant's bum-bag revealed a large bundle of cash made up of $50 notes, 2 small resealable bags containing white powder, 10 tablets in a plastic resealable bag, as well as a plastic resealable bag containing cannabis leaf. Police also found a wallet in the bum-bag containing $1,025 in cash. Applicant was arrested. With his consent, police searched applicant's premises. The amount of ecstasy applicant possessed was more than 3 times the trafficable quantity & an amount of cannabis oil was shown to be almost 4 times the trafficable quantity. An examination of messages stored on applicant's mobile phone revealed communications which supported the charges of supplying prohibited drugs. Also on applicant's premises, police found a number of electronic items & computer & photographic equipment which were reasonably suspected of being stolen or otherwise unlawfully obtained.
Aged 39 at time of offences - 'appalling'criminal history - drug use - previous imprisonment.
Whether impermissible use of prior criminal record as aggravating factor - whether sentence excessive.
Appeal dismissed.
101

LO, Moses (Parole Board of NSW v) - CCA, 16.3.2005
Wood CJ at CL, Adams & Bell JJ
Citation: Parole Board of NSW v Lo [2005] NSWCCA 108
Refusal of Parole Board to grant parole.
Application under s.155 Crimes (Administration of Sentences) Act 1999 for a direction to be given to the Parole Board that information upon which it relied was false & misleading. The Board's reasons for refusing parole were as follows:
'The Board has sufficient reason to believe that if released from custody at this time the offender would not be able to adapt to normal lawful community life; risk of re-offending; need for further alcohol and other drug counselling; need for psychological counselling/report; inappropriate in the public interest; need to address offending behaviour - Violent Offender Therapeutic Program; poor prison performance'.
The Board considered the way in which the applicant had coped with imprisonment & his failure to participate in available programs to assist in his rehabilitation. Significant weight was placed upon a psychological report that was adverse to the applicant.
Applicant represented himself on appeal.
Conclusions of Parole Board disputed by applicant - mere dispute over opinion not basis for direction.
Application dismissed.
102

SHORTEN, Gregory Allan - CCA, 24.3.2005
James, Hislop & Hall JJ
Citation: R v Shorten [2005] NSWCCA 106
Sentence appeal.
1 x BE&S.
3y FT.
Applicant broke into a house & stole a quantity of goods while the owners were away for the weekend. The owners returned to find the house had been broken into & some property stolen. They made an inventory of the missing property. When the applicant was spoken to by police, he admitted breaking into the house & stealing some of the property but denied that he had stolen all of the missing property. The applicant was sentenced on the basis that he had stolen only the items of property which he admitted stealing. These items consisted of a large quantity of jewellery valued at about $54,000 for which the applicant had received $15,000 from a receiver; cash amounting to approximately $950 & some computer games.
Aged 42 at time of offence - on parole at the time for a similar offence - multiple offences of BE&S - numerous other offences of dishonesty - many years spent in prison - institutionalised - sufferer of ADD.
Delay in prosecution - whether sentence excessive.
Appeal dismissed.
103

GWM - CCA, 30.3.2005
Studdert & Hulme JJ
Citation: R v GWM [2005] NSWCCA 101
Sentence appeal.
Counts 1&2: sexual intercourse with child under 10;
Count 3 (in the alternative to count 2): assault with act of indecency in circumstances of aggravation.
Applicant pleaded not guilty to counts 1&2, offering a plea of guilty to count 3. The Crown did not accept that plea & the trial proceeded. The jury found applicant guilty on the 1st count & not guilty on the 2nd count. Sentences were imposed for the offences charged on the 1st & 3rd counts.
Sentences: Count 1 - 6*y with NPP of 4y; Count 3 - 4y FT.
Total sentence of 7*y with NPP of 5y.
Applicant was an adult male living in the same street as the 9 year old complainant & her mother. The applicant was visiting the complainant's home when the complainant's mother asked the applicant to mind the complainant for a short period while she went to purchase some cigarettes at a local shop, partly to satisfy applicant's request for a cigarette. The mother was away from the house for 20-30 minutes. The complainant had been swimming & came into the house & was laying on the lounge room floor to watch TV when the applicant lay down beside her & pulled the lower part of her costume to one side & licked her vagina (count1). He also licked her anus (count3). The mother returned from the shops to find the complainant hiding behind the fridge in the kitchen in a distressed state. The complainant told her mother what had happened & the matter was promptly reported to the police.
Aged 40 at time of sentence - extensive criminal record, although not for sexual offences.
Whether sentences manifestly excessive - error in ordering sentences to be partly cumulative - error in treating as aggravating circumstance the fact that complainant required to give evidence at trial - psychiatric condition - schizophrenic - Insufficient weight given to applicant's medical condition.
Appeal allowed in part: sentence imposed in respect of count 1 quashed, resentenced on that count to 6*y with NPP of 4y (consecutive with the sentence for count 3).
104

LAWRENCE, Wendy Olive - CCA, 11.3.2005
Spigelman CJ, Grove & Bell JJ
Citation: R v Lawrence [2005] NSWCCA 91
Sentence appeal.
BE&S.
2y 3m with NPP of 18m.
Applicant broke into an apartment block & stole a stereo player from a flat occupied by a 74 year old widow living alone. The elderly woman was asleep at the time & awoke to find the intruder in her home.
Aborigine - heroin & alcohol use - disadvantaged background - family circumstances from childhood involved violence, parental alcoholism, sexual abuse & drinking at a very young age - applicant diagnosed as having Poly-substance Dependence with Psychological Dependence & an Antisocial Personality Disorder.
Whether error in failure to take guilty plea into account - R/S did not explicitly refer to fact that guilty plea taken into account - whether given appropriate weight - deterrence - whether sentence excessive.
Appeal dismissed.
105

DERBAS, Iyman - NSW SC, Dunford J, 1.4.2005
RUSTOM, Mohamed
Citation: R v Derbas and Rustom [2005] NSWSC 244
Remarks on Sentence.
Murder; assault.
The deceased & his cousin had been arrested & remanded in custody without bail. They were initially confined at the Metropolitan Reception & Remand Centre at Silverwater. After becoming aware that they were at risk, they sought help from correctional officers to have arrangements made for their continued confinement at that Centre where they might be safe. Against their wishes, both men were transferred to Parklea Correctional Centre. They arrived at the Centre & were processed before being delivered into the care of wing officers on duty & were then escorted to wing 1B. Their arrival generated a lot of interest amongst some prisoners, whereupon the deceased & his cousin expressed some concern to the officer escorting them. The officer left them in order to consult with a senior officer & the deceased & his cousin went to an area where they thought they would be safe, however, a number of prisoners set upon them & assaulted them. It was during these assaults that the deceased was stabbed twice, resulting in his death.
Each offender sentenced to a total of 24y with a NPP of 17y.
106

VU, Khanh Hung - NSW SC, Barr J, 1.4.2005
Citation: R v Vu [2005] NSWSC 271
Remarks on Sentence.
Murder; + assault & breach of AVO taken into account.
The deceased came from a Chinese family. She settled in Australia & married a Chinese man but the relationship ended when he took their infant child & returned permanently to China. The deceased met the offender some time later & they began to live together. After the birth of their baby boy, the offender began to act violently towards the deceased. On a number of occasions, police were called to their unit. The deceased became afraid of the offender & obtained an AVO against him. She & the child then lived apart from the offender. The offender disobeyed the AVO & repeatedly went to the deceased's unit & brutally assaulted her on a number of occasions. On one occasion, the offender climbed up the building & entered the deceased's bedroom via the balcony & told her he wanted to have sexual intercourse with her, which she refused. He then raped her violently in the presence of the child. The deceased found herself unable to properly look after the child & handed the child over to DOCS for a limited time. The offender again went to the deceased's unit & she explained to him that the child was with DOCS & phoned the department so that the offender could speak to an officer. She was afraid to ring the police, but fortunately the officer contacted the police, who went to the unit & took the offender away. Afraid of living any longer at those premises, the deceased's neighbours took over the remainder of her lease. The neighbours had already moved in & the deceased was staying there for one extra day. The offender once again took it upon himself to enter the unit via the balcony & in the presence of the neighbours took the deceased into the bedroom & out onto the balcony & gave her a savage, brutal beating with his fists. As she lay helpless on the floor, the offender swore & kicked her repeatedly. He left her unconscious, lying face down on the balcony, blood coming from her nose, ears & mouth. Ambulance officers were called & she was taken to hospital. When she arrived at hospital the deceased was unconscious & bleeding from various parts of the head. She was in severe hypovolaemic shock. CT scans showed multiple fractures. There was a fracture of the frontal bone & the frontal sinuses. There was a longitudinal fracture within the right petrous temporal bone. There were fractures of the nasal bones & the ethmoids bilaterally. There were fractures involving the anterior, lateral & medial walls of the maxillary antra. Fracture lines were reported extending to the bases of the pterygoids. There were fractures involving the zygomatic arches bilaterally. There were fractures involving the medial orbital & lateral orbital walls. There were fractures involving the right side of the body of the mandible, as well as both mandibular heads. The deceased remained in the ICU for more than 4 months & was then moved to a nursing home but had to be returned to hospital 4 days later suffering from overwhelming sepsis. She died the following day.
The deceased suffered severe depression after the birth of the child & had taken to drinking alcohol. She had a history of trying to commit suicide & on one occasion was admitted to Rozelle Hospital following an overdose of drugs. She had sought help from a mental health unit for her alcohol problem.
The offender had a history of confronting people & resorting to violence when things did not go his way. On one occasion, he attacked a workmate with a meat cleaver because of something the workmate had purportedly said about him. The offender had no regard for the AVO taken out against him & constantly went out of his way to confront the deceased & viciously bash her.
Initially, the offender pleaded guilty to manslaughter. This was rejected by the Crown & the matter went to trial. On the 3rd day of the trial, the offender entered a plea of guilty to murder.
Sentenced to 18y with NPP of 13*y.
107

NGO, Man - CCA, 31.3.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Ngo [2005] NSWVVA 107
Sentence appeal.
Malicious wounding.
3y PD. Sentencing judge declined to set a NPP.
Applicant & some friends went to the Babylon Health Club to watch a World Cup soccer match. The group was made up of people mainly of Vietnamese origin. They got into an argument with another group (mainly of Chinese origin) because they were supporting an opposing team & the argument escalated into a fight. The applicant's group was outnumbered & was pursued by the other group. Applicant left the building then returned with 2 small meat cleavers which he swung around & struck the victim in the face, causing significant injury to his nose & upper & lower lips. Applicant then left the premises & was later arrested at his family's home. The wounds suffered by the victim have left severe & permanent scarring. The sentencing judge found that the applicant acted only in defence of his friends & had no intent to inflict any wounds. Applicant was aged 22 at the time of the offence.
Whether sentence manifestly excessive.
Two-step process in awarding PD - reasons for not fixing NPP - appropriate starting point for head sentence.
Appeal allowed: resentenced to 2y with a NPP of 1y 3m to be served by way of PD.
108

KS - CCA, 15.3.2005
Tobias JA, Wood CJ at CL, Buddin J
Citation: R v KS [2005] NSWCCA 87
Crown appeal.
1 x armed robbery; 2 x assault; + Form 1 (2 x larceny).
Respondent was originally sentenced to 3y with a NPP of 2y for the armed robbery offence & the Form 1 matters, & concurrent terms of 3m & 6m for the assault offences. The Crown successfully appealed to the CCA against the leniency of the sentence for the armed robbery offence: see R v SY and Anor [2003] NSWCCA 291. The sentence for the armed robbery offence was then increased to 5y with a NPP of 3y.
Respondent admitted his involvement & named his co-offenders in the course of an ERISP & subsequently signed an undertaking to give evidence against one of the co-offenders, a man identified as 'A'When respondent appeared in the DC for sentence, he adhered to his plea of guilty & confirmed his undertaking to give evidence against 'A'The sentencing judge noted the undertaking but indicated that he found that the quality & usefulness of the respondent's evidence would be limited. He found that he was entitled to some leniency, although the discount, which was not quantified, would be less than that for another co-offender who had provided the information that had identified the offenders. On 29.11.2004, 'A'appeared in the DC for trial. As a result of gross mismanagement, the respondent & 'A'were transported to court in the same prison van & were then held in the same cell. The respondent informed the Crown that he was no longer prepared to give evidence in accordance with his undertaking. When he was called as a witness, he testified that 'A'had not been one of the offenders. The respondent provided the CCA with an affidavit in relation to the Crown appeal in which he asserted, inter alia, that during 2003 messages had been passed to him trying to get him not to give evidence in the trial, which he did his best to ignore. He said that when he was taken to court for the trial of 'A', he was placed in a van at Silverwater Correctional Centre in which 'A'was already seated.
Failure to give evidence in accordance with undertaking given at time of sentencing - whether sentence manifestly inadequate.
Appeal dismissed.
109

NIASS, Barry John - CCA, 4.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Niass [2005] NSWCCA 120
Conviction appeal.
1 x BE&S.
Suspended sentence of 2y with NPP of 15m.
The Crown case was that the appellant was involved in a joint criminal enterprise to break & enter a factory & steal a bobcat by providing his truck to transport the bobcat. There was no dispute at trial that the bobcat was in fact driven out of the factory building & loaded onto the appellant's truck. The appellant's case was that his truck had been parked outside his house earlier that evening when he was approached by 2 men whom he had not known before & asked whether he would be prepared to assist them in collecting a bobcat as their own truck had broken down. A fee of $400 was agreed to & the appellant gave the men his mobile telephone number to ring when they needed him. At 12.30am the same night he received a call to go to a particular address. After he arrived there, he fell asleep in his truck & was woken by a man shaking him & telling him that the bobcat was 'down there'He rolled the truck about 300 metres down a hill, when he saw the bobcat being driven through the factory gates. The bobcat was then reversed onto his truck. The police arrived shortly thereafter & the other 2 men took flight & have not been found. A spanner, pinch bar & screwdriver were located in the cabin of the bobcat. An ignition barrel from the bobcat with wires attached was located on the factory floor. A headlight on the bobcat had been removed in order to gain access to the back of the ignition barrel. The appellant called his uncle to corroborate the conversation he had had at his house with the other 2 men. The only element of the crime which was in dispute at trial was whether the appellant knew that the factory was to be broken into & the bobcat stolen.
Whether open to jury to reject version given by accused - whether open to jury to be satisfied beyond reasonable doubt that accused was guilty - whether a Liberato direction was required - relevance of absence of Liberato direction to quality of evidence.
Appeal dismissed.
110

ST ALDER, Kevin Leslie - CCA, 14.3.2005
Adams, Bell & Hall JJ
Citation: R v St Alder [2005] NSWCCA 95
Application for extension of time to file s.5F notice of appeal.
Applicant claimed that the magistrate refused an application to adjourn committal proceedings at which the applicant was not present, notwithstanding the fact that he was represented by his solicitor on that date.
Application for extension of time dismissed.
111

ASLAN, Tarek - CCA, 4.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Aslan [2005] NSWCCA 121
Sentence appeal.
Ongoing supply of drugs (methylamphetamine); ongoing supply of pistols; supply large commercial quantity of prohibited drug; + Form 1.
Total sentence of 11*y with NPP of 7y.
The offences came to light as a result of an undercover police operation.
Aged 33 at time of sentence - qualified mechanic with own business - father of small boy.
Totality - subjective features - whether error in assessment - whether sentence excessive.
Appeal dismissed.
112

PORTEOUS, John Gordon - CCA, 6.4.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Porteous [2005] NSWCCA 115
Sentence appeal.
1. Break enter and commit serious indictable offence in circumstances of aggravation (deprivation of liberty) - 6y 9m with NPP of 3y 9m.
2. Take and drive conveyance without consent - concurrent FT of 12m.
The sentencing judge made a recommendation that applicant attend courses for anger management, drug & alcohol counselling, and psychiatric counselling for depression.
Applicant entered the home of a couple in their late 50's. The male victim was a very sick man, being in the terminal stages of bowel cancer & having recently fractured a hip in a fall. The applicant tied up the victims with stockings he found in the home & placed pillow cases over their heads. He then removed $70 in cash & a number of credit cards from their wallets. He demanded the 'PIN'numbers for the credit cards. After some time, the female victim gave him a fictitious number, whereupon applicant took their vehicle & drove to an automatic teller machine. The female victim managed to free herself & then her husband. They were unable to leave their home as they had been locked in by the applicant. The female victim forced an upstairs window & jumped out & approached some neighbours who contacted police. Police were able to arrest the applicant a short time later as he made his way back to the victims' home. The offences were committed after 1.2.2003.
Early guilty plea - finding of remorse - extent of discount - determination of objective seriousness of offence - use of pre-2003 statistics in sentencing for standard NPP offence.
Appeal allowed for the B&E offence: resentenced for that offence to 5y 9m with NPP of 3y 9m.
113

ALCHIN, Kevin Leslie - CCA, 31.3.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Alchin [2005] NSWCCA 111
Sentence appeal.
Count1: supply commercial quantity amphetamine (491.4 grams);
Count 2: supply cannabis leaf (155.6 grams);
+ Form 1 (possess 155.6 grams cannabis leaf; goods in custody, being $10,000 in cash; goods in custody, being 2 Discmans & a car stereo).
On 1st count sentenced to 6*y with NPP of 4*y; on 2nd count sentenced to concurrent FT of 2y.
An anonymous tip-off alerted police to the suspected sale of drugs from applicant's home, a Department of Housing bed-sitter in Pyrmont. Police stopped & searched a visitor who was found to be in possession of cannabis. A search warrant was obtained & executed that evening. When asked if there was anything illegal in the unit, the applicant showed police a shoe box containing cannabis. He was arrested. In the subsequent search of the unit, police found more cannabis & some amphetamine, as well as scales, a large quantity of plastic bags, $10,000 in cash, 2 personal compact disc players & a car stereo. Applicant made comprehensive & candid admissions & volunteered other information about his drug supply activity that would otherwise have been unknown to police. At the time of sentencing, he was in receipt of Centrelink payments of $458 per fortnight.
Aged 62 at time of offences - alcohol, marijuana, gambling addiction - offences committed to finance addiction - prior drug offences - previous imprisonment.
Error in having regard to standard NPP prescribed for offence in the 1st count - error in manner in which offences on Form 1 taken into account - whether sentence manifestly excessive.
Appeal allowed only with respect to count 1: resentenced to 5*y with NPP of 3y 9m.
114

REID, Craig Anthony - NSW SC, Hulme J, 1.4.2005
Citation: R v Reid [2005] NSWSC 230
Remarks on Sentence.
Murder.
The prisoner pleaded guilty to the murder of Samantha Meredith. His co-accused pleaded guilty to being an accessory after the fact to murder: see R v Ward[2004] NSWSC 420. An autopsy revealed that the cause of death was the existence of multiple incised wounds to the neck, extending from near the left ear to behind the right ear. There were also a number of wounds to the hands, left cheek & scalp.
Sentenced to 22*y with NPP of 17y.
115

GRAHAM, Kelly Anne - CCA, 1.4.2005
Grove, Howie & Hall JJ
Citation: R v Graham [2005] NSWCCA 127
Conviction appeal.
1 x knowingly take part in supply of prohibited drug (heroin).
Suspended sentence of 1y 8m with a NPP of 1y.
Appellant's de facto was visiting Wagga Wagga with 2 men for the purpose of attending a birthday party. The de facto contacted the appellant & asked her to send a package containing a video to him. The appellant took the package to the Australian Air Express Office in Mascot, consigning it to a motel address in Wagga Wagga. During routine procedures, the package was scanned & later inspected. Within the package a number of small bags were found containing a total of 5.32 grams of heroin. A controlled delivery of the package took place. When police went to the motel room in Wagga Wagga, the appellant's de facto opened the door. The other 2 men were also in the room. The package had been opened & the video cover & tape were lying on the floor. Later examination of the video revealed the appellant's thumbprint on the left-hand corner of the tape. The only issue at trial was whether the appellant knew that the package contained a prohibited drug.
Whether error in failure to give proper directions as to appellant's election not to give evidence - whether verdict unreasonable and not supported by evidence.
Appeal dismissed.
116

SIMON, Warren Mathew - CCA, 5.4.2005
Spigelman CJ, Studdert & Howie JJ
Citation R v Simon [2005] NSWCCA 123
Sentence appeal.
Count 1: inflict GBH with intent to cause GBH - 15y with NPP of 10y;
Count 2: armed robbery - concurrent FT of 4y;
10 matters on a Form 1 were taken into account.
Applicant & his co-offender persuaded an acquaintance to drive them to the Teralba Bowling Club where they intended breaking into the premises & stealing money. The acquaintance acted as look-out. When they arrived at the club, the applicant & his co-offender put on overalls & the applicant carried a backpack containing a metal bar & a rifle. A security guard, who was helping an employee to secure the building, turned to find the co-offender wearing a balaclava & pointing the rifle at his face. He grabbed the muzzle of the firearm & pushed it away, however, the co-offender pulled the trigger but the rifle did not discharge because the safety catch was engaged. The applicant then struck the security guard to the back of the head with a metal pipe, rendering him unconscious. The co-offender disengaged the safety device on the firearm & fired a single shot at the security guard's groin. The 2 offenders then beat him about the head & body before returning to the vehicle. The acquaintance then drove them to the shore of Lake Macquarie where the offenders disposed of the overalls & the firearm before returning to their homes. Six weeks later, the acquaintance was arrested & made admissions as to his involvement in what he thought was to be a B&E. He made full disclosure to police about statements made by the co-offender on returning to the vehicle. The co-offender was arrested later that month & the applicant some days later. At first the applicant denied his involvement in the offences. A few days later the firearm was recovered & shortly thereafter the remains of the overalls. The security guard was taken to hospital. X-rays disclosed that almost every bone in his face had suffered multiple fractures. Although at that stage the victim had swelling to his groin area, it was not known that he had been shot. Some 13 days later, he underwent reconstructive surgery to his head & face. Four days later, the bullet was removed from his buttocks area.
Aged 18 at time of offences - Aborigine - guilty plea - on conditional liberty at time of offences - prior offences dealt with in the Children's Court - no previous offences of violence - extremely deprived upbringing marked by violence, drug abuse, neglect, rejected by parents - social contact limited to drug using & offending peers - since early teenage years, majority of time spent in detention centres - remorse.
Whether sentence manifestly excessive.
Appeal allowed for 1st count: resentenced on that count to 12y with a NPP of 8y.
117

DOWD, Jason Andrew - CCA, 6.4.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Dowd [2005] NSWCCA 113
Sentence appeal.
2 x use false instrument; 3 x make false statement with intent to obtain financial advantage; + 6 offences on a Form 1.
Total of 6y with NPP of 4y.
There were 2 groups of offences, one group involved the theft of 2 parcels of shares & the 2nd group involved the obtaining of credit cards in assumed names.
Guilty plea - utilitarian value - inadequate discount - manner in which Form 1 offences taken into account - whether sentences manifestly excessive.
Appeal dismissed.
118

PAN, Wei - CCA, 6.4.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Pan [2005] NSWCCA 114
Sentence appeal.
1 x malicious wounding in company.
21m with NPP of 12m.
The applicant was in dispute with the victim, who allegedly owed him money. The applicant & his de facto came upon the victim by chance in the street & a fight broke out between the 2 men. The de facto intervened & attacked the victim with a pencil, causing some injury. The de facto then went to a nearby shop & bought a knife, returned & lunged at the victim with the knife. The victim had armed himself with a multi-tool with two knife blades. A verbal exchange then took place. After the victim had put away the multi-tool, all 3 were involved in a struggle, during which the victim received multiple stab wounds. Two lacerations to his left hand & one to his head required sutures. See also R v Tran [2004] NSWCCA 366. For her part in the attack upon the victim, the de facto received a total of 2y with a NPP of 12m. On appeal, the sentence was reduced to 15m with a NPP of 9m.
Aged 31 at time of offence - born in China - history of alcohol & drug abuse - lengthy criminal record - previous imprisonment.
Parity - whether justifiable sense of grievance given sentence imposed on co-offender - applicant released on bail pending hearing of appeal - whether Court may have regard to evidence of applicant's conduct whilst on bail - whether sentence excessive.
Appeal dismissed.
119

DOFF, Robert Bart - CCA, 8.4.2005
Wood CJ at CL, Adams & Bell JJ
Citation: R v Doff [2005] NSWCCA 119
Conviction appeal; and
Crown appeal.
1 x insider trading.
350h CSO + a fine of $30,000.
The appellant was acting as agent in the sale of property owned by Rene Rivkin. Gerard McGowan, executive chairman of Impulse Airlines, was interested in purchasing the property & a meeting took place with the appellant at the appellant's business premises. Also present at the meeting were Mark McGowan & Spiros Dassakis. Gerard McGowan expressed a desire to purchase the property, however, he said that at that point in time he would make a conditional offer because his company was in the middle of negotiations with Qantas for the partial takeover of Impulse Airlines. He said that all that was needed was ACCC approval. Evidence was obtained from both McGowans that the appellant was warned that because he was privy to that knowledge, he could not trade in Qantas shares. At the time, the appellant already held 20,000 shares in Qantas, which was the balance of a parcel of 50,000. About 3 hours after the meeting, he instructed his stockbroker to place an order for 20,000 Qantas shares in the name of Jetoten Pty Ltd, of which he was a 50% shareholder & sole Director & secretary. Shortly after a public announcement 7 days later concerning the deal, the appellant instructed his broker to sell 10,000 of the Qantas shares held by Jetoten & 15 days after that he instructed the broker to sell the balance of that parcel. After the announcement of the deal had been made public, Qantas shares had risen sharply. See also R v Rivkin [2004] NSWCCA 7.
Establishment of criminal standard - general deterrence - degree of culpability - whether verdict unreasonable.
Conviction appeal dismissed.
Whether sentence manifestly inadequate.
Crown appeal dismissed.
120

AMN - CCA, 5.4.2005
Spigelman CJ, Studdert & Howie JJ
Citation: R v AMN [2005] NSWCCA 124
Conviction appeal.
Assault with act of indecency on a child under the age of 10.
Sentence not stated, but has already been served.
Appellant stood trial charged with 5 counts of assault with act of indecency on his 8 year old stepdaughter. He was acquitted on 4 of those counts.
Directions - complaint evidence - corroboration - relationship evidence - whether verdict unreasonable.
Appeal dismissed.
121

CAMPBELL, Ian Stanley Bruce - CCA, 8.4.2005
Grove, Howie & Hall JJ
Citation: R v Campbell [2005] NSWCCA 125
Sentence appeal.
7 x aggravated indecent assault; 1 x AOABH.
Total of 7y with a NPP of 4y.
The applicant pleaded guilty to the above offences, which were committed over a 3 year period. The complainant was under the age of 16 at the time & the applicant was in a position of trust as the complainant had been orphaned following the death of both her parents. The applicant was the brother of the complainant's mother & at all material times had the care of the applicant & exercised authority over her. The complainant first made complaint 5 years after the last offence.
Offences involved actual or threatened use of violence - offences involved gratuitous cruelty - substantial injury, emotional harm & damage caused to complainant - criminality of offences within worst category.
Aged 54 at time of sentence - alcohol abuse - no priors.
Whether error in failure to give sufficient weight to rehabilitation during delay between offending & sentencing - whether sentence manifestly excessive.
Appeal dismissed.
122

STYMAN, Corey - CCA, 11.4.2005
McColl JA, Barr & Johnson JJ
Citation: R v Styman [2005] NSWCCA 129
Sentence appeal.
1 x accessory before the fact to armed robbery.
3y with NPP of 18m.
Applicant supplied a blood-filled syringe to his co-offender to enable her to rob a 12 year old schoolgirl of a mobile phone while she was travelling home from school on a train. The co-offender sat beside the victim & asked whether she had a mobile phone. The victim said she did not. The co-offender took out the syringe & placed it between her own leg & the victim's leg. She told the victim that she would give her hepatitis if she did not hand over her phone. The victim handed over her phone. The co-offender left the train at a railway station & the applicant, who had remained nearby, followed her. Police later stopped them & spoke to them. In a bum bag carried by the co-offender they found the victim's mobile phone. The applicant's SIM card was found installed in the phone.
Whether error in increasing parole period from 6 months to 18 months as a result of finding special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
123

WEBSTER, Andrew John - CCA, 31.3.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Webster [2005] NSWCCA 110
Sentence appeal.
3 x BE&S; 1 x larceny; 1 x malicious damage to property; + 3 further B&E offences on a Form 1.
Total sentence of 7y with NPP of 4y.
The value of the items stolen was approx $20,000. None of the stolen property has been recovered. The applicant was either on bail or on parole at the time of the commission of all but 2 of the offences.
Aged 45 at time of sentence - guilty pleas - relatively normal childhood - mother died when applicant aged 27 - maintains close relationship with stepfather - father of daughters aged 13 & 21 & in contact with both - lengthy criminal history going back to age 13 - previous imprisonment.
Appropriate starting point for head sentence - relevance of maximum sentence - delay in sentencing - proper use of offences on Form 1 - whether sentences excessive.
Appeal dismissed.
124

CAMPBELL, Marie Elaine - CCA, 13.4.2005
Spigelman CJ, Studdert & Greg James JJ
Citation: R v Campbell [2005] NSWCCA 132
Conviction appeal.
Maliciously inflict GBH.
4*y with NPP of 1*y.
A baby girl suffered severe brain injuries whilst in the care of the appellant. The appellant was babysitting the injured baby, the baby's twin sister & an older child at the time. It was the Crown case that the appellant had shaken the baby, causing a rapid acceleration of the brain & this was possibly associated with a soft surface impact that may have resulted in a deceleration of the brain. The child sustained diffuse brain injury with bilateral preretinal haemorrhages & acute subdural haemorrhages that caused unconsciousness.
The appellant gave differing versions of how the baby was injured. Eventually, she claimed that she had fallen with the baby & that she herself had sustained injuries, however, although she had visited her local doctor some 10 days after the date of the offence, she failed to mention anything to him about the alleged fall or about her so-called injuries.
Lies told by appellant affecting credibility - Crown Prosecutor's address invited jury to conclude that lies evidenced consciousness of guilt - necessity for jury to be instructed not to use lies as evidence of guilt - absence of a Zoneff-style direction - whether miscarriage of justice.
Appeal allowed: new trial ordered.
125

POLANSKI, Rafal - NSW SC, Bell J, 11.4.2005
Citation: R v Polanski [2005] NSWSC 310
Judgment on fitness to be tried .
Murder.
Accused elected to be tried by judge alone.
After spending some time together consuming alcohol, the accused accepted an offer by the deceased to provide him with accommodation for the night. Once in the deceased's home, the deceased sought to have sex with the accused. The accused claimed to have been revolted & afraid. It was alleged that the accused struck the deceased about the head a number of times with a fire extinguisher & that he stabbed him in the back. The accused is alleged to have then ransacked the premises & stolen a number of items.
Underlying psychotic illness - gross reaction when combined with alcohol.
Orders:
1. Accused found unfit to be tried for the offence of murder or any statutory alternative to it;
2. Accused referred to the Mental Health Review Tribunal pursuant to the provisions of s.14(a) Mental Health (Criminal Procedure) Act 1990;
3. Accused to be returned to his present custody & to remain in custody until further order of the Court or until his release by operation of the law.
126

RIZK, Anthony - CCA, 29.3.2005
Mason P, Barr & Johnson JJ
Citation: R v Rizk [2005] NSWCCA 104
Sentence appeal.
7 x fraudulently misappropriate moneys.
Total of 3y with NPP of 2y 3m; sentences ordered to be served by way of PD.
Applicant was a real estate salesman & director of Jenko Properties Pty Ltd, a licensed real estate agent trading as Ray White Merrylands. The agency's business included the receipt of rents for tenanted premises. Moneys so received were deposited into a trust account. The business was a sponsor of a football club, however, the business was not doing well so the applicant drew a cheque on the trust account & the bank honoured the cheque. Encouraged by this unexpected success, the applicant then drew & signed a series of further cheques which were all honoured by the bank through the private bank account of a friend. In each case, the benefit went directly or indirectly to the applicant. Altogether, 7 cheques were drawn in a period of 27 days. The total value of the cheques was $19,356.40. As a result there was not enough money in the trust account to cover cheques drawn in the ordinary course of business to pay the landlords their proceeds of rents received & cheques began to be dishonoured. A report was made to the Department of Fair Trading & the matter was investigated. As soon as he was asked about the matter, the applicant made a full confession & admitted his guilt when spoken to by police.
Whether overemphasis placed on need for personal & general deterrence - apportionment of sentence to NPP - whether error in finding special circumstances justifying a reduction in the NPP so as to allow an extended period of time on parole.
Appeal dismissed.
127

HENLEY, George Francis - CCA, 6.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Henley [2005] NSWCCA 126
Conviction and sentence appeal.
Defraud Commonwealth (multiple counts).
Total of 5*y with NPP of 3y 9m.
The appeal proceeded in the normal way until the Court was supplied with a number of psychiatric reports. Those reports brought into play the Mental Health Criminal procedure Act 1990 (NSW).
Whether appellant may have been unfit to be tried.
Appeal allowed: new trial ordered.
128

PAYNE, Jason Craig - CCA, 5.4.2005
Adams, Bell & Hall JJ
Citation: R v Payne [2005] NSWCCA 84
Crown appeal.
Supply methylamphetamine.
12m with NPP of 9m to be served by way of PD.
Respondent pleaded guilty to having methylamphetamine in his possession for supply (34.7 grams). His evidence was to the effect that about half was for his personal use. He was to be sentenced for the supply of approximately half the methylamphetamine found in his possession, the sentencing judge's finding being that he proposed to share the drug with his then partner. Their drug use was about the same. The sentencing judge also found that the supply had no commercial element.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 20m with a NPP of 12m to be served by way of PD.
129

BRIDGE, Peter James - CCA, 6.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Bridge [2005] NSWCCA 122
Appeal against jury's finding of unfitness to be tried.
A jury found the applicant to be unfit to be tried on a charge of malicious wounding with intent to do GBH. The charge arose out of an altercation between the applicant & the victim. It was alleged that, after saying that he was going to kill the victim, the applicant threw the victim to the floor head first, splitting the skin on his forehead. It was also alleged that he attempted to choke the victim. Evidence at trial consisted solely of psychiatric evidence. The appellant was unrepresented on appeal.
Fitness to be tried - minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice - whether open to jury on the evidence before it to be satisfied on the required balance of probabilities that the appellant was unfit to be tried.
Appeal dismissed.
130

MD, NA, BM, JT - NSW SC, Greg James J, 12.4.2005
Citation: R v MD, NA, BM, JT [2005] NSWSC 344
Remarks on Sentence.
MD: 1 x manslaughter; 1 x stealing (mobile phone).
BM: 1 x manslaughter; 1 x common assault.
JT: 1 x manslaughter; 1 x common assault.
NA: 1 x manslaughter.
All accused entered pleas of guilty.
The deceased, his friend & some young girls were in Emu Plains on their way from the station to a party when they were attacked by a group of young men (the accused). The deceased received a savage beating, during which he was punched & his head was propelled into a power pole, after which his head was kicked & stomped on when he lay motionless on the ground. The deceased's friend was assaulted in order to prevent him from going to the aid of the deceased.
Sentencing - manslaughter - juvenile offenders - unlawful & dangerous act - special circumstances.
Sentences:
MD: 5y 9m with NPP of 3y 9m.
NA: 4*y with NPP of 2y.
BM: 4y with NPP of 2y.
JT: 4y 3m with NPP of 2y 9m.
131

WILLIAMS, Lois - CCA, 24.3.2005 - 62 NSWLR 481; 152 A Crim R 405
McClellan AJA, Adams J, Smart AJ
Citation: R v Williams [2005] NSWCCA 100
Sentence appeal.
AOABH.
18m with NPP of 6m.
Applicant sought leave to appeal against the sentence & a condition imposed by the parole order. At the time of hearing her application, she had served the NPP & had been released to parole. The sentence imposed was consequent upon her breach of a bond that had been entered into pursuant to s 9 Crimes (Sentencing Procedure) Act1999. The principal area of debate centred upon the condition of parole that the applicant abstain from taking any alcohol. The offence arose as a result of the applicant stabbing the victim once in the chest. At the time, applicant & a number of friends, including the victim, had been drinking & an altercation occurred. At one stage, the victim saw the applicant with a knife outside the flat where they had all been drinking. He went to take the knife from her & was stabbed once in the chest. When spoken to by police a few days later, the applicant had no recollection of the incident. She said it had been brought to her attention the next day when her son told her what had happened.
Condition as to total abstention from alcohol is a condition relating to treatment & should not be imposed as a matter of course - need for compliance with Clause 6 Crimes (Sentencing Procedure) Regulation 1999 - effect of termination of supervision component of bond by Probation and Parole Service.
Appeal allowed in part:
Parole period of 12m quashed; in lieu thereof a parole period of 9m substituted.
Condition (c) quashed, namely "To abstain from taking any illicit drugs and/or alcohol; and"
Substituted in lieu as condition (c) "To abstain from taking any illicit drugs; and"
Appeal otherwise dismissed.
132

STRICKLAND, Darren Ronald - CCA, 5.4.2005
Spigelman CJ, Studdert & Howie JJ
Citation: R v Strickland [2005] NSWCCA 133
Conviction appeal.
1 x accessory before the fact to robbery whilst armed with dangerous weapon.
Applicant was found guilty of the above offence. The armed robbery was committed by 2 men who gave statements to police implicating the appellant. Appellant was employed as a security guard at the hotel where the robbery took place until a few weeks prior to the robbery. During committal proceedings, the men recanted & gave evidence that they had falsely accused the appellant of providing information. At the trial they continued to assert that he was not involved. Each of the men was declared an unfavourable witness.
Whether verdict unreasonable.
Appeal allowed: verdict of acquittal entered.
133

STREET, Matthew Thomas - CCA, 14.4.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Street [2005] NSWCCA 139
Sentence appeal.
4 x armed robbery with dangerous weapon; 1 x robbery whilst armed with offensive weapon; 1 x carried in conveyance without consent of owner; + 8 matters on a Form 1.
Total sentence of 11y with NPP of 8y.
The robbery offences were committed upon 4 hotels & a bowling/recreation club.
Aged 20 at time of offences - cannabis use at age 15, heroin at age 16 - left school at 16 after obtaining school certificate - modest work history - short but significant criminal history - previous imprisonment.
Correct application of s.21A Crimes (Sentencing Procedure) Act 1999 - effect of finding of special circumstances on structure of sentences where more than one sentence is involved.
Appeal allowed: resentenced to a total of 10y with NPP of 7y.
134

PIPER, Tonia - CCA, 7.4.2005
Spigelman CJ, Studdert & Greg James JJ
Citation: R v Piper [2005] NSWCCA 134
s.5F appeal by the Crown against an interlocutory judgment or order given in a trial.
1 x dangerous drive causing death; 1 x dangerous drive causing GBH.
Although the respondent did not dispute the objective facts in the case, she asserted that because she was suffering from a mental illness at the time of the accident, she did not understand her act to be wrong.
Challenge to ruling on admissibility - not a judgment or order - appeal incompetent.
Appeal dismissed.
135

MAXFIELD, Robert Paul - CCA, 30.3.2005
Grove, Howie & Hall JJ
Citation: R v Maxfield [2005] NSWCCA 136
Sentence appeal.
7 x armed robbery with an offensive weapon; + Form 1 (3 x armed rob with offensive weapon; 2 x assault with intent to rob with offensive weapon).
Total sentence of 8y 9m with a NPP of 6y 9m.
Applicant used a large kitchen knife & robbed 2 cashiers at the IGA Supermarket in Yagoona. Two more offences occurred when he entered the Day and Night Chemist at Roselands & produced a kitchen knife & demanded money from the cash register & safe. Another offence occurred when he later entered the same Day and Night Chemist & produced a silver replica pistol & demanded the cash register & safe be opened. Yet another offence involved him stealing a mobile phone & cash whilst armed with a meat cleaver. He also robbed a man at the Boian Night Chemist, Beverley Hills. He & his co-offender threatened people in the store & stole bags belonging to them. Four matters on the Form 1 relate to thefts he committed on those premises. A further offence involved an armed robbery when he entered the Black and White Pharmacy, Hume Highway, Liverpool & produced a silver replica pistol & made demands to the staff to hand over money & property. He left the scene of the robbery in a red coloured Commodore sedan owned by his de facto wife. Later that day he was seen driving the vehicle in Cabramatta. When police stopped to speak to him he accelerated. A male passenger of the Commodore jumped from the vehicle & was subsequently arrested & spoken to by police. The applicant continued driving along John Street before mounting the footpath, turning left into Gladstone Street, driving on the incorrect side of the road through a red light, eventually escaping from police. The following day he was seen driving this vehicle in Warwick Farm. Police saw him enter the McDonald'ss Restaurant at Liverpool where he was arrested. In the rear of his pants they found a silver coloured replica pistol. His de facto wife & twin sons aged 5 at the time, were with him. He was conveyed to Liverpool Police Station & made full admissions in respect of the robberies."
Setting of NPP - special circumstances found by sentencing judge - whether sentence excessive.
Appeal dismissed.
136

SALEIB, Farid - CCA, 29.3.2005
Adams, Bell & Hall JJ
Citation: R v Saleib [2005] NSWCCA 85
Sentence appeal.
1 x robbery in company (mobile phone & $45 in cash); + 2 offences on a Form 1 - 5y with NPP of 3y;
1 x AOABH in company - 4y with NPP of 1y (partially cumulative upon above sentence).
Aggregate sentence of 7y with NPP of 4y for the above offences, partially cumulative upon sentences already being served.
Applicant pleaded guilty to the above offences. At the date of sentencing, he was already serving sentences following conviction for 3 offences of robbery in company for which he received concurrent terms of 5y with a NPP of 3y. The combined effect of all sentences resulted in an effective total sentence of 9y with a NPP of 6y.
Aged 22 at time of sentencing - loving, supportive family - suffers from dyslexia - expelled in Year 9 for smoking cannabis - excelled in sports - major problem with drugs & alcohol - intelligence just below average range - impulsive, careless - lengthy criminal record.
Remorse - rehabilitation - failure to apply guideline judgment in Henry - identification of matters going to public safety - subjective circumstances - totality.
Appeal dismissed.
137

MILLERAT, Sarah - CCA, 18.4.2005
Grove, Howie & Hall JJ
Citation: R v Millerat [2005] NSWCCA 142
Crown appeal.
1 x import commercial quantity MDMA (ecstasy).
5*y with NPP of 2y 9m.
Respondent's luggage was searched upon her arrival at Sydney Kingsford Smith Airport on a flight from Vienna. Federal Police found 3 packages secreted in the lining of the suitcase, containing approx 28,750 ecstasy tablets, weighing 4,786.8 grams. Upon analysis, the nett weight of pure MDMA was shown to be 2,025.9 grams.
Guilty plea - young female courier - no prior convictions - French national - addicted to drugs.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 9y with NPP of 4*y.
138

ISSAAC, Zaia - CCA, 16.3.2005
Wood CJ at CL, Adams & Bell JJ
Citation: R v Issaac [2005] NSWCCA 86
Sentence appeal.
Count 1: Dishonestly obtain financial advantage (Newstart Allowance in the name of Zakaria Benjamin, was employed at the time);
Count 2: Being an undischarged bankrupt, obtained credit ($20,702 from Esanda Finance Corp);
Count 3: Obtain credit by fraud ($3,000 from AGC Ltd using name of Zakaria Benjamin, not disclosing being an undischarged bankrupt & representing he had not been known by any other name);
Count 4:Obtain credit by fraud whilst a bankrupt ($3,050 from AGC using name Zia Ashak, representing he had not been known by any other name);
Count 5: Being an undischarged bankrupt, obtain credit ($4,341.23 from Plateau Food Distributors Pty Ltd, using name of Zakaria Benjamin, whilst a bankrupt).
Total of 2*y with NPP of 18m (to be released on recognizance release order).
The facts were not in contention & were set out in an agreed statement. Applicant had changed his name from Zia Ashak to Zakaria Benjamin & used that name in the commission of some of the offences.
Aged 53 at time of sentence - married, father of 3 - born in Iraq, lived in Australia since 1977 - no priors.
Insufficient weight given to guilty pleas - incorrectly characterising applicant's criminality in relation to counts 2 & 5 as frauds - over-estimating loss to victims - whether sentence manifestly excessive.
Appeal dismissed.
139

McILWRAITH, Nathan Vaughan - CCA, 6.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v McIlwraith [2005] NSWCCA 137
Sentence appeal.
1 x aggravated robbery (maliciously inflicting ABH).
6y with NPP of 4*y.
The undisputed facts were that applicant & 2 co-offenders entered the Civic Video Store in Dee Why, whilst a juvenile waited outside the store. The applicant approached the male employee, made an obscene remark, jumped up onto the counter & knocked a computer monitor to the floor. He then began punching the man about the head & body a number of times. The female employee was ordered to lie on the floor & she complied. Applicant & one other offender took money from the cash registers. Applicant noticed the male employee's wallet underneath the register & took $135 from it, as well as 2 mobile phones belonging to the employees, then turned his attention to the victim once again & punched him in the head several more times, demanding the keys to a safe. The victim said he did not have a key to the safe as he was not the manager, whereupon the applicant renewed his attack & punched him repeatedly about the head. Applicant went up some stairs & kicked an office door, returned downstairs & kicked & punched the victim once more. Applicant resumed his search for either money or keys & the victim was able to get outside the premises & make his way to the Dee Why Police Station. About an hour later, police observed applicant in a hotel car park. He had what appeared to be blood on his person & his clothing. He was taken into custody & his clothing sent for forensic examination. Testing established the blood was that of the male employee of Civic Video. The victim suffered fractures to both nasal bones, a black eye, as well as injuries to his head.
Guilty plea - priors - previous imprisonment.
Parity - refusal to depart from statutory formula in setting NPP - whether sentence excessive.
Appeal dismissed.
140

DAVIES, Holly - NSW SC, Kirby J, 15.4.2005
PARTRIDGE, Michael
Citation: R v Davies & Partridge [2005] NSWSC 324
Judgment on verdict.
Trial by judge alone.
Manslaughter.
Accused were both charged with the manslaughter of their 18 month old son. The child died as a result of ingesting a toxic level of methadone.
Davies aged 20 at time of offence, Partridge aged 31 - both addicted to drugs - both on methadone programme.
Verdict: Both accused found not guilty.
141

BARAKAT, Nader - CCA, 14.4.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Barakat [2005] NSWCCA 143
Crown appeal.
1 x discharge firearm in public place.
6m GBB.
Respondent pleaded guilty to the above offence. A family dispute was taking place in respondent's home when a relative arrived at the premises. The relative made loud threats. This was confirmed by neighbours. The relative began banging on the front security door & a neighbour called out from a balcony for him to leave, whereupon he produced a rifle from a duffle bag. He continued his attempts to gain entry to the premises. The respondent armed himself with a pistol. When the respondent emerged from his premises, the relative had moved to the rear of his motor car. The respondent believed that he was retrieving his firearm, whereupon the respondent fired 4 shots into the air with the intention of frightening the relative into leaving. The relative drove off at high speed. This all happened on 13.10.2000. On 21.12.2001, respondent was arrested & charged with offences of supplying prohibited drugs. Upon conviction, he was sentenced to 4y imprisonment with a NPP of 3y. Respondent is still in prison for the drug offences. A cousin of the respondent was killed whilst in gaol & the respondent gave evidence against the offenders who were convicted of murder & an attempt to murder the respondent. The sentence respondent received for the drug matter took into account assistance to authorities & he is serving his sentence in strict protection.
Whether sentence manifestly inadequate.
Appeal dismissed.
142

YIN, John Shaopeng - CCA, 15.4.2005
Sully, Dunford & Hidden JJ
Citation: R v Yin [2005] NSWCCA 138
Sentence appeal.
3 x robbery whilst armed with offensive weapon (knife); 4 x robbery whilst armed with dangerous weapon (firearm); + Form 1 (3 x robbery whilst armed with offensive weapon; 1 x robbery whilst armed with dangerous weapon; 1 x assault with intent to rob whilst armed with dangerous weapon).
Total sentence of 11y with NPP of 8y 3m.
Six of the offences on the indictment were committed upon massage parlours, the 7th offence committed upon a bakery. All the offences were committed in company, except for the one committed upon the bakery. The sentencing judge made a finding that the offences committed in company demonstrated a degree of planning on the part of the applicant & his co-offender & that the female victims of those offences & the victims at the bakery were vulnerable.
Aged 25 at time of offences - born in China - migrated to Australia as a child - parents very hardworking - raised by grandmother - adversely affected by her death when he was aged 13 - behaviour deteriorated, became involved in criminal offences - convictions for offences of violence & dishonesty - previous imprisonment.
Guilty plea - utilitarian value - finding of special circumstances - whether total sentence manifestly excessive.
Appeal dismissed.
143

HAWKER, Shane Richard Arthur - CCA, 18.4.2005
Grove, Howie & Hall JJ
Citation: R v Hawker [2005] NSWCCA 118
Conviction appeal.
Enter dwelling with intent to commit a serious indictable offence (AOABH) in circumstances of aggravation (in company).
2y to be served by way of PD with a NPP of 18m.
This was an appeal against conviction following a plea of guilty to the above offence. Appellant's legal representative misunderstood the elements of the offence charged & the appellant pleaded guilty on advice that his version of events amounted to an admission of guilt.
Erroneous legal advice - plea of guilty not an admission of the elements of the offence.
Appeal allowed: new trial ordered.
144

ALI, Mohamad - NSW SC, Wood CJ at CL, 18.4.2005
Citation: R v Ali [2005] NSWSC 334
Remarks on Sentence.
Manslaughter.
Deceased had an excessive obsession with the prisoner's girlfriend. He made multiple threats against the prisoner & his girlfriend, including holding a gun to the girlfriend's head whilst making threats. Evidence was given of the deceased's out-of control behaviour towards the prisoner & his girlfriend over a period of some months. The girlfriend claimed that the deceased had gained entry to her apartment one night, held a gun to her head, tied her up, burned her face, head & arms with a hot iron, kicked & struck her, forced her to take drugs, cut her hair, forced her to sit in a hot bath while he removed her top, dunked her head in a toilet, fired a shot between her legs into her waterbed, played with her, forced her to masturbate him & reminded her of his instruction not to see the prisoner. This occurred in a period of about 12 hours, during which there was an intercepted phone call in which the deceased acknowledged to the person on the phone that he had tied up the prisoner's girlfriend. Subsequent police investigation revealed a bullet hole in the waterbed, sheets & blanket & a .22 projectile was recovered from within the bed. On the night of the fatal shooting, the deceased buzzed the intercom to the prisoner's unit & spoke to the prisoner, threatening that if the prisoner did not go down to him, he would have the home of the prisoner's parents shot up by certain people who he said he had waiting at those premises. The shooting of the deceased by the prisoner was partially captured by the security video at the building where the prisoner lived.
Excessive self-defence - provocation - accumulation of provocative conduct - specific intent - issues of deterrence.
Sentenced to 5y 8m with a NPP of 2y 8m.
145

HOUSE, David Gary - CCA, 17.3.2005
Tobias JA, Wood CJ at CL, Buddin J
Citation: R v House [2005] NSWCCA 88
Sentence appeal.
1 x armed robbery.
4*y with NPP of 3y.
Applicant & a co-offender, armed with a tyre lever & a socket wrench, entered the Cheesecake Shop at Emu Plains. The 4 people in the shop (2 owners & 2 staff members) were ordered into the chiller area but when the offenders were told that one of the staff members was pregnant, they were ordered into the cold room instead. One of the owners handed over about $877, being the float money. Before leaving the premises, the offenders stole one employee'ss wallet containing her personal papers & credit cards. A discount of 15% was given for the guilty plea entered on the 1st day of trial. Special circumstances were found, referable to applicant's need for continuation of his drug rehabilitation.
Aged 40 at time of offence - remorse - history of drug addiction - offending motivated for financial gain & not for drugs - priors spanning 20-year period.
Whether error in finding aggravating factors - whether weight given to community expectations & prevalence of armed robbery offences excessive - whether sentence excessive.
Appeal dismissed.
146

MOUGIN, Christian Bernard - CCA, 18.4.2005
Grove, Barr & Howie JJ
Citation: R v Mougin [2005] NSWCCA 146
Sentence appeal.
4 x aggravated BE&S; 1 x B&E with intent to steal; + Form 1 offences (aggravated BE&S, BE&S, receiving & possessing housebreaking implements).
Applicant pleaded guilty to the above offences. At the sentence hearing, a further plea of guilty was joined, namely a charge of aggravated BE&S to which applicant had pleaded guilty in the LC & had been committed to the DC for sentence.
A total sentence of 6*y with a NPP of 4*y was imposed.
The offences related to the applicant, together with 1 or 2 co-offenders, breaking into office buildings during the weekend & stealing laptop computers & other items. In all instances, the offenders were captured by security video cameras in the buildings. The woman seen in the tapes from the video cameras was the applicant's de facto partner, who was the mother of their children. In the commission of some of the offences, they were accompanied by the de facto's brother.
Aged almost 28 at time of sentence - guilty pleas - remorse - substantial criminal record - previous imprisonment.
Whether error in failure to allow sufficient discount for guilty pleas - whether error in approach to application of s.54B Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Appeal dismissed.
147

HUGHES, Storm Bryce - CCA, 4.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Hughes [2005] NSWCCA 117
Sentence appeal.
1 x BE&S (aggravated, armed with offensive weapon); 1 x assault police officer in execution of his duty.
4*y with NPP of 3y.
After consuming alcohol, applicant went to a house & shouted 'I'm going to kill you, you're dead'then kicked in the side passage door. The victim had run to the back of the premises, climbed onto a roof & contacted the police. Once inside the premises, the applicant stole 56 compact discs in a carry case (value approx $880) & damaged various household items, including a computer system. A unformed police officer attended the premises & saw the applicant hiding in the rear of the backyard. He appeared to have some metal object in his hands. On being directed by the officer to put up his hands, the applicant refused. He then grabbed hold of the officer by the throat until he was eventually restrained by other police who arrived on the scene.
Aged 29 at time of offences - guilty plea - two psychiatric reports tendered at sentence - mental illness - auditory hallucinations - history of paranoid feelings when using amphetamines - 'dull to dull-average intelligence'- 'may suffer from drug induced psychosis'- delusional beliefs of persecution - internal vulnerability to develop mental illness independent of substances - significance of mental illness in sentencing - continuing danger to the community by reason of mental condition - lengthy history of drug taking - priors - previous imprisonment.
Whether sentence manifestly excessive in light of mental disorder & guilty plea.
Appeal dismissed.
148

DALTON, Dennis James - CCA, 26.4.2005
Santow JA, Hislop J, Smart AJ
Citation: R v Dalton [2005] NSWCCA 156
Crown appeal.
Manslaughter.
7y with NPP of 3y 3m.
The offence involved the death of a child, aged almost 2 years. The respondent pleaded guilty. The agreed basis of the plea was that he had caused the child's death by an unlawful & dangerous act. Respondent & his 17 year old de facto were living together with the de facto's 2 children. The deceased child was violently assaulted by the respondent & suffered brain stem injury. A post mortem examination disclosed bruises over the child's body, especially the face, chest, right forearm & right thigh, head injuries, spinal injuries & fractures of different ages. The injuries were indicative of non-accidental injury & the cause of death was head & possibly spinal injuries. There was considerable evidence that the respondent had severely assaulted the child on a number of occasions.
Aged 18 at time of offence - 'short fuse'- easily aroused into anger - difficulty in calming down once aroused - disadvantaged & disruptive childhood - history of self-harming - on protection in gaol - a little higher than average intelligence - borderline personality disorder - need for prolonged & highly skilled treatment.
Objectively grave criminality - whether sentence manifestly inadequate, even allowing for an overall strong subjective case.
Appeal allowed: respondent resentenced to 9y with NPP of 4*y.
149

SCOTT, Lloyd John - CCA, 18.4.2005
Grove, Barr & Howie JJ
Citation: R v Scott [2005] NSWCCA 152
Crown appeal.
3 x being a director of a body corporate did present a false invoice with intent to defraud (s.176A Crimes Act).
Total of 2*y with NPP of 22m 15d to be served by way of PD.
Each of the victims was a finance corporation (counts 1&3, the NAB; count 2, Suncorp). The offences were committed in January 2001 when the respondent operated a business named Lloyd Scott Enterprises Pty Limited (LSE). In each case he falsely pretended to the finance corporations that he had purchased equipment for the purposes of LSE & as a result received payments under agreements whereby the corporations purchased the equipment & leased it back to LSE. In each case, respondent used forged invoices & made false statutory declarations to cause the corporations to believe that the equipment had been purchased by LSE. By this fraudulent conduct the respondent obtained a total sum of $4,700,065.62.
Sentence manifestly inadequate by reason of order for PD.
Appeal allowed: DC order for sentence to be served by way of PD quashed; respondent resentenced to full-time imprisonment for 2*y with NPP of 22m 15d.
150

GRUBE, Shannon James - CCA, 14.4.2005
Grove, Howie & Hall JJ
Citation: R v Grube [2005] NSWCCA 140
Sentence appeal.
26 x BE&S; 2 x attempt take conveyance whilst owner present in vehicle; + Form 1 (35 x BE&S; 7 x car stealing).
Total of 12y with NPP of 8y.
Applicant committed multiple offences over a 9 month period. The B&E offences involved forcibly entering residential premises through a door or window & stealing large quantities of valuable items. The value of the stolen property, including matters taken into account on the Form 1, exceeded $500,000. Motor vehicles valued at approximately $1.5 million were stolen. Very little of the stolen property was recovered.
Aged 29 at time of sentence - long history of property offences - previous imprisonment.
Application of provisions of Division 3 Part 3 Crimes (Sentencing Procedure) Act 1999 - additional charges contained in the Form 1 document - whether sentence out of all proportion - whether sentence manifestly excessive.
Appeal dismissed.
151

IBRAHIMI, Sohali Ahmad - CCA, 20.4.2005
Grove, Barr & Latham JJ
Citation: R v Ibrahimi [2005] NSWCCA 153
Sentence appeal.
1 x robbery in company; + Form 1 (1 x robbery in company).
4y with NPP of 2y.
While at Clyde railway station on the concourse overpass, a man was approached by the applicant & another male. They asked him what he had for them, to which the victim asked them not to hurt him as he'd been attacked before & asked them what they wanted. He was told to hand over his wallet, which he did. The offenders removed $5 from the wallet & took the victim's mobile phone, then returned the wallet to him. A little more than a week later, another man was waiting for a train on the platform of Carlingford railway station when the applicant approached him & engaged in conversation. He then went away & returned a short time later with another male. The applicant told the man to give him everything otherwise he would hurt him. The man handed over his wallet. The applicant removed two $10 notes & demanded that he hand over his chain & ring, to which the man objected. When the applicant threatened to hurt him, the victim handed over the chain with a ring attached to it. The applicant also demanded the victim's mobile phone, which he handed over. The mobile phone was returned a short time later, without the sim card. The ring was also returned to the man after he told the applicant of its religious significance. A couple of weeks later, the man saw the applicant at Granville railway station & notified a transit police officer. Applicant was arrested 9 days later & made full admissions. He had also been identified from CCTV footage taken at both railway stations at the time of the offences. Police seized clothing from his home that was consistent with that worn by the applicant on each occasion.
Aged 19 at time of offences - born in 'Afghanistan - came to Australia as a child - completed HSC - completed TAFE course - full-time employment as a food technician - minor criminal record.
Whether error in taking into account the threat of violence as an aggravating feature, it being an element of the offence of robbery - whether error in treating the vulnerability of the victims as an aggravating feature - whether insufficient weight given to guilty plea - whether error in taking strength of Crown case into account in assessing utilitarian value - whether sentence manifestly excessive.
Appeal dismissed.
152

PHAM, Van Hong - CCA, 22.3.2005
Wood CJ at CL, Hislop & Johnson JJ
Citation: R v Pham [2005] NSWCCA 94
Crown appeal.
1 x escape lawful custody.
18m with NPP of 12m.
Respondent was serving a custodial sentence for an armed robbery offence. He was paroled but was subsequently re-incarcerated for breach of parole. While serving the balance of the parole period, he escaped & was recaptured 9 months later.
Whether the fact that respondent subject to a deportation order taken into account - whether sentence manifestly inadequate - whether objective seriousness of offence, general deterrence & principle of totality taken into account.
Appeal allowed: sentences confirmed but restructured.
153

RODGERS, Barry William John - CCA, 22.4.2005
Grove, Howie & Latham JJ
Citation: R v Rodgers [2005] NSWCCA 163
Application for extension of time within which to appeal against conviction.
11 x sexual offences (4 x ss.61D(1), 2 x 61E(1), 5 x 81) committed upon a child under 16; + offences on a Form 2 taken into account.
10y, NPP 7*y. The overall sentence of 10y constituted the maximum applicable for the substantive offence.
Applicant successfully appealed against the sentence imposed in respect of count 11. The sentence was reduced, giving an effective overall sentence of 8y & a NPP of 5*y (see R v Rodgers [1999] NSWCCA 260).
The offences related to paedophilic activity. The victims were aged between 6 & 12 at the time & the applicant between 37 & 51. At the time of sentence, applicant was 61 years of age. He had prior convictions in New Zealand for various offences of indecent assault.
Statutory definition of sexual intercourse - attempt to bring 2nd appeal.
Extension of time refused.
154

NIGHTINGALE, Scott Arthur - CCA, 22.4.2005
Tobias JA, Buddin & Hall JJ
Citation: R v Nightingale [2005] NSWCCA 147
Sentence appeal.
1st indictment: 1 x AOABH - FT 1y 6m.
2nd indictment: 1 x robbery in company - FT of 1y 6m, cumulative; 1 x robbery in company - 6y 15w with NPP of 4y 37w, partly cumulative.
Total sentence of 8y 15w with a NPP of 6y 37w.
Inconsistency between sentencing judge's expressed intention in relation to time in custody & sentences actually imposed - assessment of discount for guilty plea - timing & utilitarian value of plea - relationship between NPP & balance of term of sentence where balance of term less than one-third of NPP - whether error in increasing statutory proportion - whether accumulation of sentences constituted special circumstances under s.44(2) Crimes (Sentencing Procedure) Act 1999 - totality - whether less severe sentence warranted.
Appeal allowed in part.
155

AEL - CCA, 20.4.2005
Grove, Barr & Latham JJ
Citation: R v AEL [2005] NSWCCA 148
Sentence appeal.
1 x unlawful carnal knowledge of a girl under 16 (13); 1 x aggravated indecent assault upon a girl under 16 (14): + a further count of unlawful carnal knowledge.
3y 9m with NPP of 2y (partly concurrent with sentences already being served).
In 1973, the complainant in count 1 met the applicant, who lived next door. He invited her to join a spiritual group of which he was a member. After a few weeks or months the applicant indicated to the complainant & to others in the group that she was his spiritual wife. They had sexual intercourse at his home, after which the complainant told him that she was 13. Later the applicant moved to another house & they had sexual intercourse at that house. That sexual intercourse constituted the matter on the Form 1. Thereafter, the applicant & the complainant had intercourse once a week. The following year, applicant's group moved to Summer Hill & the complainant visited there. She then moved with her parents to Shoalhaven. Subsequently, she rejoined the applicant's spiritual group. By 1993 the applicant had 10 common law wives & 63 children. The complainant was the mother of 2 of those children. The complainant in count 2 was one of the applicant's children. When she was aged 14, the applicant & his group were staying in tents at Byron Bay. On one occasion, the applicant entered her tent & touched & rubbed her vagina over her clothing, while she pretended to be asleep. The applicant continued for a little while & then stopped & left the tent.
Aged 75 at time of sentence - suffering from non-insulin dependent diabetes, hypothyroidism, hypertension, serious heart problems - had already suffered myocardial infarction - on a waiting list for hernia surgery - risk of bowel strangulation - difficulty in serving sentence.
Whether sentence excessive.
Appeal dismissed.
156

KIRKLAND, Paul Matthew - CCA, 21.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Kirkland [2005] NSWCCA 130
Sentence appeal.
Count 1: maliciously inflict GBH with intent to do GBH;
Count 2: aggravated BE&S (in company).
Total of 12y with NPP of 8y.
The plea of guilty to the 1st count was accepted by the Crown in discharge of a further count in the indictment charging both men with feloniously causing GBH with intent to murder.
Suspecting that the victim had stolen a gold bracelet belonging to the co-offender's daughter, the applicant & the co-offender, Bobak, went to the victim's home. The victim was not there, so Bobak kicked in the door at the urging of the applicant & they stole a stereo system & speakers. Later in the evening, they came upon the victim as he rode a bicycle down an alleyway & promptly set about assaulting him. The victim suffered severe head injuries. Bobak repeatedly struck him on the head with a plasterer's hammer & then struck him on the head with the axe blade on that tool. The blade penetrated the victim's skull from just above his right ear, entering into the middle of his brain. The applicant was present when Bobak did this & was yelling at the victim. The applicant then slammed the victim's head into the ground with the plasterer's hammer still embedded in his head, then stomped on the victim, jumped on his head twice & kicked him after the offenders had unsuccessfully tried to remove the tool from the victim's head. They then dragged the victim into the gutter & left. A 'gun', belonging to Bobak & which had a live bullet in it, was found nearby. Another live bullet was found on the footpath. The victim was taken to hospital. The plasterer's tool was still embedded in his skull & he underwent emergency neurosurgery. His frontal brain lobe was vertically cleaved & severely damaged. He suffered extremely severe traumatic brain injury, with devastating effects on his life. The sentencing judge found that the attack on the victim was 'a determined, sustained and an alarmingly callous, vicious and savage one, which involved prior planning and premeditation on the part of both offenders'.
Whether sentence excessive - reference to a case falling within worst category of cases relevant only where the maximum sentence is being considered - reference to a sentence at the very upper end of sentences imposed for offences of the relevant type not a reference to the maximum sentence - sentence representing 80% of the maximum sentence is neither the maximum sentence nor a sentence appropriate for the worst category of case.
Appeal dismissed.
157

TADROSSE, Tony Phillip - CCA, 20.4.2005 - 65 NSWLR 740
Grove, Howie & Hall JJ
Citation: R v Tadrosse [2005] NSWCCA 145
Sentence appeal.
Multiple offences of dishonesty (1 x having a false instrument; 4 x use a false instrument; 2 x make a false instrument; 2 x obtain property by deception; 2 x pass valueless cheque); + Form 1.
Total sentence of 6y with a NPP of 3*y.
Applicant's cousin gave him at least 3 sets of false identity documents, including driver licences & banking cards, for the purpose of perpetrating frauds in order to obtain property, some of which he gave to his cousin in return for cash. In approx 6 months, applicant used those documents to obtain goods (mobile phones or rental property) & by entering into a contract using the false identity, or by obtaining the use of credit facilities & a cheque account in the false identity then using those facilities to obtain property. Property obtained included mobile phones; DVD player & TV set (value $3,999); Yamaha motorcycle (value $12,265); Polaris All Terrain Vehicle (value $11,900); ride-on mower (value $14,536.36); laptop computer & accessories (value approx $6,000). He obtained rental equipment that was never returned, including a rock breaker (value $10,710); an excavator (value $87,500); & a laser level. He also used the documents to establish himself in a landscaping business & secured work with members of the public. He was paid in advance for carrying out that work, however, the work was never commenced or never completed. He did not return any of the money. In one case he received $39,000 for work that was never completed. In all, he obtained property & cash to the value of over $200,000. None of the property or money has been recovered.
Applicant became the target of media attention because of his fraudulent landscaping business. He eventually surrendered himself to police & participated in a recorded interview, admitting the offences.
Degree of planning involved in commission of offences - calculated course of criminal conduct - criminality involved of a very high order - towards top of middle-range of criminality.
Application of s.21A Crimes (Sentencing Procedure) Act - vulnerability of victims - multiple victims & series of criminal acts - erroneously taking into account aggravating factors.
Appeal allowed in part: resentenced to a total of 5y with a NPP of 3y.
158

PEARSON, Sharon Mary - CCA, 20.4.2005
James, Hislop & Hall JJ
Citation: R v Pearson [2005] NSWCCA 116
Sentence appeal.
3 x aggravated indecent assault; 1 x use child under age of 14 for pornographic purposes; 1 x principal in the second degree to another person doing something intending to hinder the investigation of a serious indictable offence; + Form 1 offences (4 x aggravated act of indecency; 2 x aggravated indecent assault).
Total of 3*y with NPP of 2y.
Whether sentencing judge took into account as an aggravating feature of the offence the complainant's vulnerability having regard to the complainant's age, when age was an element of the offence - whether insufficient weight given to guilty pleas - whether mistake of fact in relation to criminal antecedents - whether findings of fact unsupported by any evidence - whether sentence manifestly excessive.
Appeal dismissed.
159

SATORRE, Dax - NSW SC, Studdert J, 22.4.2005
Citation: R v Satorre [2005] NSWSC 367
Remarks on Sentence.
Murder.
Victim was an accountant who lived with his wife & son in their home in Concord. As he was preparing to leave for work, 2 men came to the front door & the victim's wife answered the door. One man was carrying a package which he asserted was for the victim. The victim's wife called the victim to the front door, where he was confronted by the men, who were carrying guns. Victim was pulled out onto the front veranda. One man struck him on the back of the head with his pistol & the victim was forced onto the floor. One man restrained him & the other poured the contents of a bottle (hydrochloric acid) over his head, which caused severe burns & permanent blindness in both eyes. It also entered the victim's mouth & was swallowed. The victim was taken to Concord Hospital & died 20 days later. The ingested acid affected his duodenum, stomach & oesophagus. The post mortem finding was that he died from multiple organ failure following inhalation & ingestion of the acid. The prisoner provided the car & drove the assailants to & from the deceased's home & was promised $1,000 for his participation. He was aware that his accomplices were intending to throw acid on the deceased's face but was not aware that they intended killing the deceased.
Guilty plea at earliest opportunity - drug user.
Sentenced to 16y with a NPP of 12y.
160

WILLS, Russell Clement - NSW SC, Studdert J, 22.4.2005
Citation: R v Wills [2005] NSWSC 368
Remarks on Sentence.
Murder.
The prisoner was found guilty of the murder of a frail man in his sixties. A post mortem examination revealed extensive injury to deceased's face & head; lacerations, bruises & abrasions to the trunk, front & back, as well as to the arms & legs. Both ears were severely bruised. An internal examination revealed a fracture of the larynx & of the hyoid bone. There were a number of fractured ribs & there was extensive haemorrhage surrounding those fractures. There was also a tear in the left lobe of deceased's liver. This was a savage & unexplained attack upon the deceased. The sentencing judge found that it was carried out with the intention of killing the deceased or, at the very least, with the intention of causing him GBH.
Aged 49 at sentence - itinerant lifestyle - long-standing addiction to alcohol - socially dysfunctional - self-critical & depressive disposition - likelihood of alcohol-related brain damage - schizophrenia.
Sentenced to 18y with NPP of 14y.
161

KATZ, George - CCA, 29.3.2005
Giles JA, Hoeben & Johnson JJ
Citation: R v Katz [2005] NSWCCA 128
Sentence appeal.
1 x obtain valuable thing by deception; 1 x stealing; 2 x use false instrument.
Total of 5y with a NPP of 2y 9m.
Applicant used stolen bank cheques to obtain clothing ($37,500); he also stole a TV set & a video recorder; he twice used stolen bank cheques to obtain electrical goods ($19,400 & $40,778).
Guilty pleas - mental illness - previous imprisonment.
Whether adequate reduction for pleas of guilty because mental illness impeded earlier pleas - whether inadequate variation in statutory ratio following finding of special circumstances - whether error in partial accumulation of sentences.
Appeal dismissed.
162

AMT - CCA, 14.4.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v AMT [2005] NSWCCA 151
Sentence appeal.
1 x supply commercial quantity MDMA (ecstasy) - 5y with NPP of 3y;
2 x goods in custody - 3m current FT.
Total sentence of 5y with NPP of 3y.
The appeal related only to the drug offence.
Police conducted an operation at Kingsford Smith Airport & stopped applicant as he was boarding a plane to Perth. In his shoulder bag they found 2 plastic bags containing a total of 1,500 ecstasy tablets weighing 435.7 grams, with an estimated street value of $75,000. A subsequent search of his premises revealed further drugs, as a result of which another occupant of the premises was charged & sentenced. The search also revealed documentation consistent with records of drug supply. Police encouraged a grant of bail after applicant offered to assist their investigations & also provided an affidavit of assistance on sentence.
Aged 29 at time of offending - priors (no details provided) - previous imprisonment (no details provided).
Early plea - assistance to authorities - sufficiency of discounts.
Appeal allowed: New total sentence of 3y 4m with NPP of 2y.
163

WILLARD, Michelle - NSW SC, Whealy J, 28.4.2005
Citation: R v Willard [2005] NSWSC 402
Remarks on Sentence.
Murder.
The prisoner arranged for 2 other people to kill her husband so she could cash in his insurance policy.
Sentenced to 36y with NPP of 26y.
164

McQUEENEY, Ian Francis - CCA, 2.5.2005
Grove, Howie & Latham JJ
Citation: R v McQueeney [2005] NSWCCA 168
Sentence appeal.
Count 1: Attempt sexual intercourse with child under 10 + Form 1 - 10y with NPP of 7y;
Count 2: Aggravated indecent assault; + Form 1 - 4y with NPP of 3y.
The sentences were partially accumulated, resulting in a total sentence of 11*y with a NPP of 8*y.
The applicant, aged 62, was working as a seasonal fruit picker on a farm owned by the family of the complainants, who were step-brothers. It was during this period of employment that the offences were committed.
Appeal allowed in part: New total sentence of 10y with NPP of 7y.
165

EL MASRI, Said - CCA, 29.4.2005
Hunt AJA, Hulme & Johnson JJ
Citation: R v El Masri [2005] NSWCCA 167
Sentence appeal.
AOABH.
300h CSO.
In an ERISP, applicant said he drove to a shopping centre & went into some public toilets in order to urinate. The victim was in the toilet block & seemed to be loitering there. Applicant left the block but returned a few minutes later to wet his hair before driving off. The victim was still there & made a gesture that the applicant interpreted as being a sexual act or advance. A confrontation ensued, the victim became abusive & both men ended up outside the toilet block. The applicant punched the victim once to the side of the head, causing very minor ABH. The victim, however, claimed that the applicant punched him a number of times & tried to rob him. The matter was then committed to the DC for trial on a charge of assault with intent to rob. At an early stage, the matter was settled between the parties by way of the Crown accepting a plea of guilty to the count of AOABH in full satisfaction of an indictment that included the more serious allegation. When a dispute about the facts upon which applicant would be sentenced became apparent & could not be resolved, the deal fell apart. A trial then ensued on the more serious count, at the end of which the jury returned a verdict of not guilty. The applicant was then sentenced for the AOABH, to which he had pleaded guilty many months prior to the trial.
Aged 22 at time of sentence - unemployed - no problems with drugs or alcohol - priors, mainly for minor dishonesty offences & drive whilst suspended.
Whether allowance made for fact that summary disposal in LC was both open & appropriate - use of sentencing statistics for s.59(1) offences in LC.
Appeal allowed: resentenced to 100h CSO.
166

O'MALLY, Scott Noel - CCA, 28.4.2005
Stein AJ, Grove & Howie JJ
Citation: R v O'Mally [2005] NSWCCA 166
Sentence appeal.
Police officer soliciting a bribe (s.200(1) Police Act 1990); + a similar offence on a Form 1.
2y with a NPP of 16m.
Applicant was a policeman & was on highway patrol. He stopped a vehicle being driven by a 17 year old P-plate driver. There was a passenger in the car with the young driver. Applicant told the driver that he was travelling at 145 kph, although later in the conversation he said 140 kph. The young driver said he may have exceeded 90 kph but was not travelling at the speed the applicant alleged. The applicant commenced to fill in an infringement notice. During conversation, it emerged that the young driver worked in a part-time job dealing with Quad motorbikes. The applicant said he would like a couple of those bikes & that he did not care whether they were 'legitimate'or not. He said the infringement notice could not be withdrawn but offered to make it out for a minor offence, such as having a bald tyre, which would not affect the driver's licence status. A mobile phone number was supplied. The young driver wrote out his recollection of the conversation in a diary. Amongst other things, applicant had said 'If you scratch my back, I'll scratch yours'and 'Call (it) what you want. It's bribery and corruption, but we are doing each other a favour and I am very old fashioned'The matter was reported to the police professional conduct authorities & warrants were obtained for the interception of phone calls & the use of listening devices. In one conversation, the applicant offered to pay the fine for the 'bald tyre'infringement himself. In due course, arrangements were made for the young driver to deliver a Quad bike to the applicant. The applicant assisted in moving the Quad bike onto his trailer & was then arrested & charged. The Form 1 offence involved applicant profiting in a similar way. On this occasion, he benefited from the excavation of a swimming pool, the value of the work carried out being $1,171.50.
No priors - devoted family man - good character evidence - in receipt of commendations for police work.
Whether sentence manifestly excessive - failure to accept & act upon unchallenged evidentiary material - inappropriate application of previous decision in the CCA in the sentencing process - discount - failure to reveal reasoning process.
Appeal dismissed.
167

SANGALANG, Victor - CCA, 27.4.2005
Hunt AJA, Johnson J
Citation: R v Sangalang [2005] NSWCCA 171
Sentence appeal.
1 x aggravated indecent assault.
4y 3m with NPP of 2y 9m.
The circumstance of aggravation was that the complainant was a 13 year old girl.
The applicant, a 44 year old married man with children, befriended complainant's mother after a chance meeting at the local shopping centre. Both were members of the Filipino community. Applicant began to visit the complainant's home. On the day of the offence, he drove the complainant, her sister & a very young cousin, back to his own home. The sister remained in the car & he took the complainant & the cousin inside his residence. Once inside, he approached the complainant from behind, wrapped his arms around her & used both hands to cup & rub her breasts. The complainant pulled away but he approached her again & placed his hands near her vagina, then rubbed her vagina through her clothing. The complainant again pulled away. He then tried to kiss her but she managed to pull her head back & the kiss landed on her cheek. The applicant was then successful in kissing the complainant on the lips. Again, she pulled away. He then managed to kiss her on the lips for a 2nd time, this time inserting his tongue into her mouth.
There were thus 5 related acts of indecency involved in the charge. Applicant had been convicted of a similar offence some 3 years earlier & had received a 3 year GBB, which expired shortly before the present offence. Consequently, the applicant is a registrable person in accordance with the Child Protection (Offenders Registration) Act 2000.
Guilty plea - affected by amphetamine at the time - had only a vague recollection of what had occurred - remorse - willing to seek treatment - in protective custody - still not successful in obtaining any treatment, despite being interviewed by psychologists - undertaken a number of educational courses whilst in custody.
Utilitarian value of guilty plea - contrition - whether sufficient discount - whether sentence excessive.
Appeal dismissed.
168

GODDEN, Earl Robert - CCA, 29.4.2005
Hunt AJA, Grove & Hall JJ
Citation: R v Godden [2005] NSWCCA 160
Sentence appeal.
Cultivate commercial quantity prohibited plant (cannabis); + Form 1 (possess 280 grams cannabis leaf).
Total sentence of 3y 2m with a NPP of 2y (special circumstances found).
Police executed a search warrant at premises occupied by the applicant & found a number of different areas under cultivation. In total, 319 cannabis plants were found. In a partitioned area of a shed, there were 2 separate hydroponic systems used to grow cannabis plants at different stages of maturity. This area had some 39 cannabis plants & 24 seedlings. There was also a quantity of loose marijuana. They also found an incubator & heating pad containing seedlings. There was a further concealed area in which 10 small plants were being nurtured in trays, while another concealed area housed more mature plants.
Aged 43 at time of sentence - on a bond at time of offending for an offence of occasioning ABH - contravention of AVO - firearm offences.
Whether sentence manifestly excessive - personal or subjective factors.
Appeal allowed: resentenced to 2y 2m with a NPP of 1y 3m.
169

LE, Anh Tuan - CCA, 12.4.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Le [2005] NSWCCA 162
Sentence appeal.
1 x ongoing supply of prohibited drugs (heroin).
4y 8m with NPP of 2y 8m.
Applicant was arrested following his sale of heroin to an undercover agent on 3 occasions. The quantities sold on the first 2 occasions were 4.9 grams (purity 34.5%) & on the third occasion 5 grams (purity 35%). The sum paid on each occasion was $1,400. These were not isolated transactions. The applicant had been the subject of ongoing police surveillance. Over a 13 day period, there were 1,415 calls on his mobile telephone service, 85% of which openly involved the purchase, sale & packaging of drugs. Police estimated that 80 customers dealt with him on a daily basis over this period. On 2 occasions he offered to sell larger quantities of drugs to undercover officers, comprising one ounce of heroin for $6,500 & later 2 ounces of that drug. At the time of his arrest, applicant was in possession of 4 ounces of heroin packaged in balloons. He was released on bail but following his rearrest the following day, his rented premises were searched & $2,335 in cash was found, along with materials used for drug packaging, drug paraphernalia & white powder residue containing heroin.
Aged 30 at time of offences - early guilty plea - remorse/contrition - drug habit - good prospects of rehabilitation - special circumstances found - no priors.
Utilitarian value of guilty plea - strength of Crown case - whether sentence manifestly excessive.
Appeal dismissed.
170

SOLOMON, Donald John - CCA, 28.4.2005
Grove, Howie & Latham JJ
Citation: R v Solomon [2005] NSWCCA 158
Sentence appeal.
1 x armed robbery; 1 x attempt armed robbery.; + Form 1 (being conveyed in stolen vehicle).
Applicant was also sentenced for an offence of BE&S arising from a breach of a GBB for that offence.
Total sentence of 12y with a NPP of 8y.
The armed robbery occurred when applicant & 2 other men entered a jewellery store in Paddington, all wearing hats & sunglasses & armed with iron bars. The female owner of the store was forced to lie on the floor. The offenders broke the glass display cases & took property to the value of $500,000 before leaving in a vehicle that had been stolen earlier in the day. The applicant cut himself during the offence & DNA from the blood was matched to him. None of the property has been recovered. The attempted armed robbery took place when the applicant & another man entered a Cheesecake Shop in Seven Hills. Both men wore hats & sunglasses & carried iron bars. The shopkeeper tried to prevent the robbery but was pushed to the ground & kicked, suffering abrasions to the hose & a dislodged tooth. The offenders were unsuccessful in their attempt to take the cash register & left empty-handed. During the struggle with the shopkeeper, the applicant's hat & glasses came off & he was later identified in a video of the robbery taken by a security camera. Almost a month later, the applicant surrendered himself to police.
Aged 28 at time of sentence - Aboriginal - priors - borderline intellectual functioning between mild intellectual handicap & low average intellectual ability - dysfunctional background - use of drugs since age 14 - remorse - prospect of rehabilitation - late guilty plea resulting in 10% discount.
Whether sentence manifestly excessive - totality - range of sentences - statistical information.
Appeal dismissed.
171

JDB - CCA, 23.3.2005 - 153 A Crim R 164
Mason P, Barr & Johnson JJ
Citation: R v JDB [2005] NSWCCA 102
Sentence appeal.
4 x sexual intercourse with person under 10; + Form 1 (2 x sexual intercourse with person under 10).
3y with NPP of 12m to be served in a detention centre.
Applicant was aged between 13/14 at the time of the offences. He is the only child of parents who separated when he was about 13 months old. Both parents remarried. His mother & her present partner formed their relationship in about 1992 & have a daughter. Applicant's father also remarried in 1992 & has 3 daughters from that marriage. The offences involve the oldest of those 3 daughters, who was aged 8 at the relevant time. Applicant pleaded guilty to all charges.
Early guilty plea - 'pulled'between parents, at times utilised as a 'pawn'- periods lived in both households since age 8 - inconsistent parenting - proficient in playing parents off against each other - continuing behavioural problems, including disruptive behaviour at school & frequent lying - above average intelligence - need to continue receiving counselling - counselling for primary carers also recommended.
Deterrence - rehabilitation - s.66A Crimes Act - serious children's indictable offence.
Long delay between admission of offences & sentencing - whether sentence excessive.
Appeal allowed: resentenced to total of 3y with NPP of 7m 14d to be served in a detention centre.
172

VILLA, Timothy Paul - CCA, 13.4.2005
Dunford, Simpson & Hidden JJ
Citation: R v Villa [2005] NSWCCA 4
Conviction and sentence appeal.
2 x murder - sentenced to life on each count;
1 x shoot with intent to murder; 2 x set fire to dwelling house with intent to murder; 3 x attempt murder - concurrent 18 years on each count.
In the early hours of the morning, Joanna McNally (aged 8) was woken from her sleep at her home by a smoke alarm. She took a cordless phone outside & dialled 000. Police arrived some time later to find fire well alight in most of the house. Snr Const Cremerius rescued Joseph McNally (aged 5) & Jacob McNally (aged 4) who were trapped by the fire in the hallway of the house. Joseph had been shot twice in the head, although neither bullet penetrated his skull. The Snr Const then went to look for a hose around the side of the house & whilst there he noticed a 5 litre drum in the garage lying on its side on the roof of a MV with a lit wick protruding from its opening. He informed Sgt Mahoney of his find & Mahoney proceeded to douse the flame with the hose. Fire Brigade officers arrived shortly after & extinguished the fire in the house. The bodies of the children's parents were found in the house. David McNally was found in the rear family room. Post mortem examination showed he had died as a result of 4 gunshot wounds to the head & neck. He was under the effects of morphine & cannabis. According to the pathologist, his injuries were consistent with his arms being restrained behind his back & his wrists tied together. The source of the fire in the north-eastern part of the house was found to be on or near the deceased McNally. The fire had collapsed the roof above him onto his body. A cushion was found near McNally's body with gunshot holes in it & his blood on it, suggesting the shots had been fired through the cushion. Adelia Williams was found in the main bedroom of the house. The post mortem examination showed she had died due to 23 stab wounds to her chest & 4 gunshot wounds to her head as well as strangulation. She was also affected by morphine. Her hands & feet were bound by wire but the wire around her hands differed to the wire around her ankles. Const Johnson formed the opinion that the wire around her ankles was similar to the wire that had been cut from a Sega adaptor found in the rumpus room. Some months later, the wire around her wrists was found to be ordinary telephone cord. A ligature made of 2 socks tied together was found around her neck. The fire in the main room had been started on or around the deceased Williams. As with the deceased McNally, the roof above Williams had collapsed onto her. Of the 4 gunshot wounds to her head, none had entered her brain, but one had penetrated into her sinus. Of her 23 stab wounds, 3 had penetrated her heart & 13 had penetrated her left lung. There was a haemorrhage associated with one of the gunshot wounds, the stabbing & the strangulation, which showed that those injuries were sustained while Williams was still alive.
Admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - whether life sentence excessive for murder - whether other offences relevant in considering sentences for murders.
Appeal dismissed.
173

TABAR, Pierre - CCA, 22.4.2005
Grove, Howie & Latham JJ
Citation: R v Tabar [2005] NSWCCA 165
Sentence appeal.
2 x obtain money by deception; 2 x passing valueless cheques.
Total of 4y 8m with a NPP of 3*y.
Appellant met a Mrs Karam who had grown up with him in the same village in Lebanon. They had not seen each other since they were teenagers. A relationship developed between them. In due course, appellant told Mrs Karam that he was a wealthy doctor & was expecting millions of dollars to arrive from the US in the near future. He had obtained the name & phone number of an employee of the Reserve Bank & at various times purported to phone him. Mr Kennedy is unacquainted with the appellant & was conducting no business on his behalf. Pending the claimed anticipated arrival of these funds, the appellant persuaded Mrs Karam to lend him money, the nett amount being $28,000. Mrs Karam had acquired some of that money by borrowing it herself from friends & acquaintances. At one point, appellant produced a document purporting to be a cheque drawn on an American bank in the sum of $US50 million. Although he pleaded guilty to the appropriate count, there was a dispute of fact as to whether the amount was $28,000 (claimed by Mrs Karam) or $9,000 (claimed by appellant). Both gave evidence before the sentencing judge who made significant credit findings against the appellant. The other count of obtaining money by deception related to representations of a similar sort made to a Mr Nasr, the proprietor of a service station, who was persuaded to 'loan'appellant $5,000 pending the arrival of the overseas funds. He also obtained petrol to the value of $19.00 for which he did not pay. Mr Nasr was also persuaded to introduce appellant to a tyre service & appellant was ultimately supplied with tyres & a car radio, for which a cheque for $535 was accepted. The cheque was dishonoured. The other count related to the giving of a cheque for $292.60 to a toy shop at Liverpool, in exchange for computer games.
Aged 50 at time of offending - guilty pleas - prior dishonesty offences - previous imprisonment.
Whether sentences manifestly excessive.
Appeal dismissed.
174

BENISCHKE, Trent - CCA, 28.4.2005
Spigelman CJ, Grove & Howie JJ
Citation: R v Benischke [2005] NSWCCA 169
s.5F appeal against interlocutory judgment refusing a permanent stay.
Applicant is one of 4 men accused of attacking & injuring JN & his then 5 week old daughter while walking in a street in Maroubra. At the time, he was carrying his daughter in a baby harness strapped to his chest. It was a cold night & he had zipped her up in his jacket. On the Crown case, the 4 accused had determined to seek out & assault a person who had assaulted the girlfriend of one of them earlier that evening. They picked JN for this purpose, even thought the girlfriend had said that he was not the person who had assaulted her. They decided to attack him in any event. On the Crown case, JN was attacked, punched & kicked repeatedly to the head & chest after he fell to the ground. During the course of the attack, the baby was also injured. The Crown is relying on a joint criminal enterprise in relation to all 4 of the accused. There are 5 counts on the indictment, 3 of which are directed to the attack on JN. The CCA was concerned with counts 1 & 2 which relate to the injuries inflicted on the baby. Count 1 alleges that the accused, whilst in company, maliciously inflicted GBH on the baby (s.35(2) Crimes Act 1900). The alternative count 2 is that the accused maliciously inflicted GBH on the baby (s.35(1)(b) of the Act). The trial judge rejected an application for a permanent stay of the criminal proceedings with respect to the charges involving the injuries to the baby.
Applicant asserted that the offences could not have been performed maliciously. The Crown wishes to pursue a case that the attack continued after the applicant became aware of the presence of the baby.
Leave to appeal refused.
175

ADLER, Rodney Stephen - NSW SC, Dunford J, 14.4.2005
Citation: R v Adler [2005] NSWSC 274
Remarks on Sentence.
White collar crime - principles - HIH Insurance Limited - disseminating false information likely to induce purchase of securities - obtaining money etc by false or misleading statements - acting dishonestly as a director - guilty plea.
Serious offences - general deterrence - remorse - contrition - Corporations Act 2001 (Cth) ss.184(1)(b), 997, 999 - Crimes Act 1900 (NSW) s.178BB - Crimes Act 1914 (Cth) Part 1B.
Sentenced to 4*y with NPP of 2*y.
176

CASSIDY,Terence Kevin - NSW SC, Wood CJ at CL, 19.4.2005
Citation: R v Cassidy [2005] NSWSC 410
Remarks on Sentence.
White collar crime - HIH Insurance Ltd - director'ss duties - guilty plea - financial advantage - false and misleading statements - recklessness - objective criminality - public confidence in securities and equities market - general deterrence - Corporations Act 2001 (Cth), Crimes Act 1900 (NSW), Crimes Act 1914 (Cth), Crimes (Sentencing Procedure) Act 1999 (NSW), Criminal Appeal Act 1912 (NSW), Insurance Act 1973 (Cth).
Sentenced to total term of 15m with a NPP of 10m.
177

WOOD, Colin Barry - CCA, 28.4.2005
Grove, Howie & Hall JJ
Citation: R v Wood [2005] NSWCCA 159
Sentence appeal.
Accessory after the fact to aggravated malicious infliction of GBH (in company.
FT of 5m 27d.
At the time of arrest, applicant was on bail for a number of drug offences. When later sentenced for those drug offences, the sentencing judge backdated the sentence by a period of over 4 months to reflect time spent in custody from the time of arrest. When the applicant came to be sentenced for the present offence (different judge), the sentence imposed was ordered to be wholly cumulative upon the sentence for the drug offences & a deduction of only 4 days was made to reflect pre-sentence custody. This deduction was made on the basis that the bulk of the pre-sentence custody had been allowed for when applicant was sentenced for the drug offences.
Failure to take into account period of pre-sentence custody - error in calculation of number of days of pre-sentence custody solely referable to certain drug offences - s.47 Crimes (Sentencing Procedure) Act 1999 - involvement in planning of offence - s.21A Crimes (Sentencing Procedure) Act 1999 - principle in De Simoni - principle of totality - whether sentence excessive.
Appeal allowed in part: sentence backdated to take into account full period of pre-sentence custody.
178

CLARKE, Rodney Thomas - NSW SC, Hidden J, 4.5.2005
Citation: R v Clarke [2005] NSWSC 413
Application for redetermination of life sentence.
1 x murder - life imprisonment;
2 x sexual intercourse with person under 10 - 20y with NPP of 18y for each count;
1 x sexual intercourse with person under 10 - 10y with NPP of 8y.
Applicant forced entry into a young girl's bedroom & had vaginal & anal intercourse with her whilst smothering her.
Aged 21 at time of offences - limited intellect - later admission of sexual fantasy relating to victim - significant progress in sex offender programmes whilst in prison.
Application allowed: life sentence confirmed but NPP of 28y set.
179

MILLS, David - CCA, 6.5.2005 - 154 A Crim R 40
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Mills [2005] NSWCCA 175
Crown appeal.
3 x intentionally causing fire with recklessness as to the spread of the fire (s.203E(1) Crimes Act 1900); + Form 1 (2 x take and drive conveyance without consent).
Total of 28m with a NPP of 21m, to be served by way of PD.
Respondent applied to become a voluntary probationary member of the Coal and Candle Brigade of the NSW Rural Fire Service. After completing a basic fire-fighting course, he was assigned to a fire-fighting crew from 21.12.2003. The s.203E(1) offences were committed in the Ku-ring-gai National Park on 8.1.2004 & 8.2.2004. Respondent entered pleas of guilty.
Damage to huge areas of the park - damage to habitat of a large number of animal species - extinguishing one particular fire highly expensive.
Whether sentences manifestly inadequate - failure to give reasons for departure from standard NPP - misapplication of s.54B(2) Crimes (Sentencing Procedure) Act - failure to apply s.54B(3) - failure to impose sentences adequately to reflect objective seriousness of offences - error in finding offences impulsive acts.
Appeal allowed: resentenced to full-time imprisonment for a total of 5y 8m with a NPP of 2y 8m.
180

PERRY, Stefon - NSW SC, Newman AJ, 28.4.2005
Remarks on Sentence.
1 x murder; 2 x indecent assault on person under 10.
The deceased died from strangulation. The sex offences were perpetrated upon her 7 year old daughter.
Aged 48 at sentencing - guilty plea - lengthy criminal record, including convictions for violence - danger to community - regret/contrition - mental state - deprivation/suffering - sentence served under protection.
Sentenced to total of 25y with NPP of 18y 9m.
181

BYRNE, Darren Brett - CCA, 14.4.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Byrne [2005] NSWCCA 141
Sentence appeal.
4 x BE&S; 2 x aggravated BE&S.; + 18 further matters on a Form 1.
Total sentence of 6y with a NPP of 4y.
At the time of each offence, applicant was on conditional liberty, either by way of parole or by way of bail.
Aged 31 at time of offending - early guilty pleas - extensive criminal record - long-standing addiction to drugs - emotional problems associated with upbringing - subjected to repeated sexual assaults as a child - suffers from Hepatitis C.
Multiple sentences partially concurrent, partially cumulative - whether starting point too high - whether sentencing judge made error of fact - assistance to authorities - at time of sentence, applicant had provided police with detailed statements about 2 separate murders of which he had knowledge.
Appeal dismissed.
182

VINCENT, Jeannie Anne Marie - CCA, 7.4.2005
Spigelman CJ, Studdert & Greg James JJ
Citation: R v Vincent [2005] NSWCCA 135
Crown appeal.
1 x armed robbery; + Form 1`(take and drive conveyance).
4y with a NPP of 2y.
The offence involved respondent & her co-offender robbing a unit. The occupant, a 43 year old woman, was at home at the time. Her 2 children were also at home, but asleep in their bedroom. The respondent was disguised by a hooded sloppy joe & sunglasses & was armed with a baseball bat & a large silver bladed knife with a blade approx 12 inches long. The co-offender was disguised with a balaclava & was armed with a knife. A significant amount of property was taken, primarily electronic equipment, jeweller, a small amount of cash, as well as a car. The offenders drove away in the car with all the stolen property, however, a short distance away, the car collided with another vehicle. The co-offender was subsequently identified as respondent's 14 year old son.
Whether sentence manifestly inadequate - long history of priors, including armed robberies - on parole at the time - offence partially planned - previous imprisonment.
Appeal allowed: resentenced to 6y with a NPP of 3y.
183

IBY, David John - CCA, 9.5.2005 - 63 NSWLR 278;154 A Crim R 55
Spigelman CJ, Grove & Bell JJ
Citation: R v Iby [2005] NSWCCA 178
Conviction appeal.
Manslaughter.
Appellant was driving a stolen car erratically & at excessive speed when it collided head-on with a car driven by a woman who was 38 weeks pregnant. The woman was taken to hospital, an emergency caesarean performed & a male infant in poor condition delivered. The infant was pale & limp but had a heartbeat. The infant maintained a heartbeat & continued to breathe with the assistance of mechanical ventilation for approx 2 hours after delivery. Approximately an hour after delivery, brain tests showed there was little or no electrical activity in the baby's brain. Approximately 2 hours after delivery, the baby was pronounced dead when a heartbeat could not be detected. The appellant submitted that the baby was not born alive & therefore was not capable of being the subject of a manslaughter charge.
Aged 35 - disqualified driver - lengthy history of driving offences - consumed variety of drugs prior to driving - not slept in 24 hours - estimated driving between 47kph & 65kph above 60kph speed limit.
Born alive rule - meaning of words 'born alive'- whether baby breathing with assistance of ventilator is 'alive'- whether existence of heartbeat sufficient for baby to be born alive - whether evidence of brain function is necessary for baby to be born alive - whether statutory definition of 'death'in s.33 Human Tissue Act is relevant to definition of life for purposes of born alive rule.
Appeal dismissed.
184

SOO, John Chih - CCA, 28.4.2005
Grove, Howie & Latham JJ
Citation: R v Soo [2005] NSWCCA 161
Sentence appeal.
Supply large commercial quantity methylamphetamine; ongoing supply of methylamphetamine; 2 x supply ecstasy; supply cannabis leaf; supply cocaine; supply lysergide; goods in custody.
Overall sentence of 11*y with a NPP of 7*y.
Applicant was sentenced on the basis that he was the principal of a drug selling operation acting directly & not through couriers or agents & having an established retinue of buyers as reflected in the evidence, most of whom paid cash as reflected in the contents of the safe, but who less frequently proffered goods for drugs.
Aged 35 at time of sentencing - no prior criminal record - little evidence about formative years - had completed HSC - enrolled in courses at TAFE & university without successfully completing them - in employment at time of offending - self-employed selling mobile phones & repairing electrical equipment - claimed to be selling drugs under duress - depression - suicidal ideas - dependent personality - 'ill-equipped to deal with pressures and stress alone'- 'subordinating his own needs to those of others'.
Fresh evidence - psychiatric report prepared after sentence - whether sentences manifestly excessive.
Appeal allowed: new total sentence of 10*y with a NPP of 6*y.
185

KARDOULIAS, Spiros - CCA, 22.4.2005
Wood CJ at CL, Adams J, Smart AJ
Citation: R v Kardoulias [2005] NSWCCA 150
Conviction appeal.
Conspiracy to import trafficable quantity heroin.
13*y with a NPP of 8*y.
A police surveillance operation uncovered a drug syndicate involved in the importation of heroin from Hong Kong to Australia through the FedEx airfreight system. There was evidence that the appellant was involved in the importation. There was also evidence that some FedEx employees were involved in the conspiracy, as well as being involved in previous importations. Appellant contended that he was not a party to any agreement to import the heroin & that the Crown's analysis of the material ignored certain reasonable possibilities. See also R v Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284.
Whether verdict unreasonable and not supported by evidence.
Appeal dismissed.
Note: An appeal against sentence & a Crown appeal against inadequacy of sentence have been stood over to be determined at a later date.
186

TUTOVEANU, Popliliu - CCA, 20.4.2005
Grove, Hulme & Barr JJ
Citation: R v Tutoveanu [2005] NSWCCA 149
Sentence appeal.
1 x knowingly take part in supply of commercial quantity heroin (guilty verdict); 1 x supply commercial quantity heroin (guilty plea).
Total sentence of 13y with NPP of 8y.
Applicant was involved in the purchase of heroin from Van Nam ('Sonny') Nguyen in Sydney. The heroin was to be taken to where applicant lived on the Gold Coast & supplied from there. On 15.10.2000 there was a purchase of 2 blocks of heroin weighing a total of 704 grams for $100,000 on credit. This transaction was arranged by applicant's cousin, Neagu Petrea, via a 'broker', Zare Antin ('David') Kirikian. Petrea negotiated on behalf of himself & the applicant with Kirikian who procured the supply by Nguyen. The negotiations occurred in the period 25.9.2000 to 15.10.2000. Unbeknown to the participants, police had been monitoring their activities. Nguyen delivered the heroin to Petrea at Kirikian's home at Liverpool on 15.10.2000. Petrea then gave the drugs to Florin & Bogdan Pascu who were to take them to Queensland by road. They were intercepted by Queensland police after crossing the border. They were arrested & the heroin seized. Negotiations were commenced for a replacement supply. Again, it was a matter of Petrea negotiating with Kirikian. Because of the loss of the heroin in the 1st transaction, Nguyen insisted on receiving cash. The same participants were involved with the addition of one Charlie Sukkar. On 18.11.2000, applicant travelled to Sydney with $40,000. He met Sukkar at Parramatta & they then travelled to Guildford & met Nguyen. Applicant, with some intermediate involvement of Sukkar, provided the cash & Nguyen produced the heroin. At this point, police intervened & they were arrested. On this occasion there were 2 blocks of heroin weighing a total of 700 grams.
Assessment of applicant's role - objective gravity of offence - principle of parity - whether sentence excessive.
Appeal dismissed.
187

EUSTICE, Thomas James - CCA, 13.4.2005
Giles JA, Hulme & Adams JJ
Application for revocation of CSO, pursuant to s.115 Crimes (Administration of Sentences) Act 1999.
On 5.2.2004, offender was re-sentenced on a Crown appeal to perform community service for 250 hours: see R v Eustice [2004] NSWCCA 14. He performed community service for some of the hours, but thereafter failed to do so.
Definition of 'relevant maximum period'in s.107 - whether application within time.
Order revoked: matter remitted to the DC for determination as required by s.115(3).
188

PRESTON, Dennis Charles - CCA, 29.4.2005
Hunt AJA, Hulme & Johnson JJ
Citation: R v Preston [2005] NSWCCA 177
Crown appeal.
Count 1: unauthorised sale of firearm - FT of 18m (from 9.10.2003);
Counts 2-5: ongoing supply of heroin - 5y with NPP of 18 (to commence on 9.4.2004).
Total of 5*y with a NPP of 2y.
Respondent offered to supply an undercover police operative with a 9mm Beretta handgun for $3,000. The total amount of heroin supplied in counts 2-5 was approx 60 grams for approx $19,500.
Aged almost 55 at time of offending - guilty pleas - 25% discount for utilitarian value - priors, including drug offences - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed for sentences on counts 2-5: resentenced on those counts, resulting in a new total sentence of 7y 2m with a NPP of 4*y.
189

MAGTOTO, Gregory Paul - CCA, 9.5.2005
Hulme, Barr & Buddin JJ
Citation: R v Magtoto [2005] NSWCCA 180
Sentence appeal.
1 x ongoing supply of prohibited drug (heroin).
2y 8m with a NPP of 2y.
On the afternoon of 8.1.2004, the applicant was dealing in drugs in Kings Cross. He supplied heroin contained in a balloon to an undercover police operative & received $50 for the sale. About 90 minutes later, he made a similar supply for a similar price. On the following day, following a further request for supply, he supplied, as heroin, a substance contained in a plastic bag. The contents turned out to be sugar. Applicant was committed for trial & indicated that he would plead not guilty. A trial date was fixed. Some 26 days before the trial was due to begin, the applicant changed his mind. The matter was listed before a judge & he pleaded guilty.
Aged 40 - substantial criminal history, but never for drug offences - on a bond at time of offence.
Guilty plea - failure to give appropriate discount - whether sentence manifestly excessive.
Appeal dismissed.
190

BARCO, Robert John - CCA, 6.5.2005
Grove, Hulme & Simpson JJ
Citation: R v Barco [2005] NSWCCA 176
Application for extension of time within which to appeal against sentence.
Escape from lawful custody; armed robbery; + Form 1 (BE&S; detain person for advantage).
Total of 7*y with NPP of 4*y (accumulated upon a sentence already being served).
Applicant was serving a lengthy sentence. By May 1999 he had progressed to minimum security & escaped by simply walking out of the prison. The other offences occurred 2 days later when he entered a store & threatened a salesman with a syringe. The salesman fled & applicant took a mobile phone then ran away. To avoid apprehension, he got into the front passenger seat of a passing car & held a syringe towards the female driver. The applicant told her to take him to Redfern Railway Station, which she did. Her daughter & granddaughter were also in the car. At Redfern, applicant got out of the car, saying he hoped he had not traumatized the victim. The final offence occurred when applicant broke into premises & removed a number of electrical, jewellery & food items.
Guilty plea - previous escapes - in all, escaped 3 times over a span of 13 years.
Gross delay exceeding 4 years - insufficient explanation for delay - no apparent merit in grounds sought to be advanced in challenge to sentence.
Application dismissed.
191

WILLIAMS, Raymond Reginald - NSW SC, Wood CJ at CL, 15.4.2005
Citation: Regina v Williams [2005] NSWSC 315
Remarks on Sentence.
Director's duties - HIH Insurance Limited - whether departure from standards of competence and diligence expected of Chief Executive Officer - proper disclosure - withholding from prospectus of information - misleading statement - recklessness - overstating of operating profit in Annual Report - proper operation of securities market - investor faith - level of criminality - issues of general deterrence.
Sentenced to total of 4*y with a NPP of 2y 9m.
192

HERMANOWSKI, Charles - NSW SC, Bell J, 13.4.2005
Citation: Charles Hermanowski v United States of America & Ors [2005] NSWSC 145
Extradition (interstate/overseas) - surrender - eligibility - appeal from magistrate's decision finding appellant eligible for surrender to USA - appellant charged with presentation of false and fraudulent claims upon US Department of Defense (sic).
Extradition Act 1988 (Cth) - Extradition (United States of America) Regulations.
Orders made by magistrate confirmed; plaintiff's summons dismissed.
193

DO, Ly - CCA, 12.5.2005
Hunt AJA, Hulme & Johnson JJ
Citation: R v Do [2005] NSWCCA 183
Crown appeal.
Maliciously inflict GBH (in company); use firearm without being authorised to do so by licence or permit.
Total of 2*y with NPP of 1*y.
The offences occurred following respondent & others being evicted from a night-club by security guards.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to total of 4y with a NPP of 2*y.
194

GRIFFITHS, Darrell Anthony - CCA, 4.5.2005
Grove, Hulme & Simpson JJ
Citation: R v Griffiths [2005] NSWCCA 184
Sentence appeal.
1 x aggravated BE&S; 1 x resist arrest.
Total sentence of 5y with NPP of 3y 9m.
Neighbours called police when they observed the applicant climb onto the 1st floor balcony of a building in the early evening. Once inside the premises, applicant took a pair of motorcycle pants from a wardrobe & a toiletries bag. He was still on the premises when police arrived. He ran up the stairs to a room where an occupant of the premises was drinking with friends & said 'Don't say anything, the cops are after me'Police entered the room & Acting Inspector Wallbank told the applicant he was under arrest & directed him to go down onto the floor. He refused & resisted attempts to have him do so by stiffening his limbs & body. Other police tried to assist but the applicant continued to resist by straightening his arms & moving them around. Eventually he was handcuffed & taken to the police station where he was charged.
Guilty plea at earliest opportunity - deprived upbringing - considerably disadvantaged - at time of offence was living in impoverished circumstances, camping in an abandoned building - very little by way of possessions - addicted to drugs - on parole at the time - priors.
Whether stated intention to allow substantial discount for early guilty plea achieved - whether sentences manifestly excessive.
Appeal allowed in part: new total sentence of 4*y with a NPP of 3*y.
195

HOVAN, George Leslie - CCA, 13.5.2005
James, Hidden & Bell JJ
Citation: R v Hovan [2005] NSWCCA 179
Sentence appeal.
1 x concurring in the making of false instrument to obtain a benefit; 1 making and using false instrument.
Total sentence of 4*y with a NPP of 2*y.
Applicant, a NSW solicitor at the time of offending, entered pleas of guilty to both charges.
Aged 49 at appeal - solicitor for 20 years - testimonials - general good character; preparedness to provide legal services at minimum cost or free to people of limited means - poor financial management - no priors.
Whether adequate allowance for guilty pleas, assistance - desirability of quantifying discount - whether sentence excessive.
Appeal allowed: resentenced to a total of 3y with a NPP of 18m.
196

GARLAND, Wayne Lee - CCA, 9.5.2005
Hulme, Barr & Buddin JJ
Citation: R v Garland [2005] NSWCCA 188
Conviction appeal.
2 x armed robbery.
The Crown case was that the appellant & his co-offender entered a cake shop in Emu Plains, baled up the owners & employees, took the cash float of $747 & a bag belonging to one of the employees, then decamped. The appellant was arrested later the same day following a police pursuit. The vehicle he was driving was the vehicle the offenders used following the commission of the offences.
Whether error in directions on circumstantial evidence - evidence of flight - whether error in directions on consciousness of guilt.
Refuse leave under Rule 4 to rely on grounds of appeal advanced; application for leave to appeal dismissed.
197

MANSOUR, Fade (No.1) - CCA, 2.5.2005
Grove, Hulme & Simpson JJ
Citation: R v Mansour (No.1) [2005] NSWCCA 173
Sentence appeal.
2 x assault police with intent to avoid lawful apprehension; BE&S; possess housebreaking implements.
Total of 5y with a NPP of 3y.
Applicant was seen walking near a suburban house carrying a metal bar. Police were contacted. Two police officers positioned themselves near the house. They observed the applicant emerge from the house holding a bag & the metal bar. He was arrested after the use of capsicum spray & ultimately the production of a firearm by one police officer. Inspection of the house showed that entry had been forced & some of the rooms ransacked. At the police station, applicant was found to be carrying a large number of items of jewellery, together with amounts of cash.
Aged just under 30 at time of appeal - guilty pleas - long-term addiction to heroin - unsuccessful efforts to address drug addiction - considerable family support - on conditional liberty - prior similar offences.
Failure to implement finding as to allowance for plea of guilty - accumulation/concurrency - whether sentences excessive.
Appeal allowed in part.
198

MANSOUR, Fade (No.2) - CCA, 2.5.2005
Grove, Hulme & Simpson JJ
Citation: R v Mansour (No.2) [2005] NSWCCA 172 (or 174 - it is listed twice on NSW Caselaw)
Sentence - adjustment to commencement dates to co-ordinate with variation to sentence dealt with separately.
199

COTTER, Andrew James - CCA, 6.5.2005
Grove, Hulme & Simpson JJ
Citation: R v Cotter [2005] NSWCCA 187
Conviction and sentence appeal.
1 x sexual intercourse without consent; 1 x AOABH; assault.
3y GBB.
Appellant & the complainant had lived in a de facto relationship for 10 years prior to the commission of the offence & had 3 children. During the assault, the appellant slapped the complainant's face when she cried out to a daughter who was in another room. He also put his hand & then a pillow over the complainant's face for a short time. This terrified the complainant & she stopped resisting. The complainant said that when the appellant had finished, he left the room. She then dressed, gathered up the children & drove to the police station & complained of being assaulted & raped. There was evidence from police officers that the complainant was visibly upset, shaking & crying, her face was red & on her cheeks there were red marks. A doctor, who saw the complainant approx 6 hours after the offences, gave evidence of seeing red marks & small bruises on the complainant's head, a red mark on one forearm & a thin red line with broken skin on the other. The appellant testified that the intercourse was consensual.
Whether verdict of guilty on count 2 unreasonable and not supported - whether sentence manifestly excessive.
Appeal dismissed.
200

MURPHY, John Michael - CCA, 9.5.2005
Hulme, Barr & Buddin JJ
Citation: R v Murphy [2005] NSWCCA 182
Sentence appeal.
Aggravated entry with intent to commit serious indictable offence (in company, AOABH).
4y 6m with NPP of 3y 3m.
The Crown case was that the applicant, in company, entered a dwelling house knowing that persons were present & assaulted the male victim occasioning ABH & used corporal violence on the female victim.
Sentencing - aggravating factors where matter is an element of offence - utilitarian value of guilty plea - special circumstances.
Appeal allowed: resentenced to 2y 8m with NPP of 2y.
201

MARKARIAN - HCA, 18.5.2005 228 CLR 357; 79 ALJR 1048
Citation: Markarian v The Queen [2005] HCA 25
On appeal from the Supreme Court of New South Wales.

Appellant acted as driver for heroin dealer - appellant pleaded guilty & asked that 4 other offences be taken into account by sentencing judge - whether CCA adopted impermissible approach to sentencing by means of staged approach - whether staged approach to be preferred to instinctive synthesis of sentencer - relevance of maximum available sentence - relevance of quantity of drug.

Prosecution appeal against sentence - CCA increased sentence from 2*y to 8y - whether CCA was wrong to find that the original sentence was manifestly inadequate - whether re-sentencing discretion miscarried.

Re-sentencing - further offences - additional discrete sentence added to head sentence for further offences disclosed by offender - whether such approach a breach of totality principle.

Principles - failure by trial judge & CCA to consider an obligatory requirement of sentencing statute in determining appellant'ss sentence - whether sentencing discretion of trial judge & CCA miscarried because of such omission.

By making a proportional deduction the CCA erroneously used the maximum penalty - no universal rule that "instinctive synthesis" is the sentencing method the courts should adopt - sentencing principle does not dictate any particular path of reasoning - "The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached." (at para 27) - the CCA should not have indulged in an arithmetical process in this case because of the number & complexity of the considerations that had to be weighed by the trial judge.

Appeal allowed: matter remitted to the CCA.

202

GEORGIOU, Konstantinos - CCA, 18.5.2005 - 153 A Crim R 288
HARRISON, Bruce Malcolm
Spigelman CJ, Sully & Hidden JJ
Citation: R v Georgiou; R v Harrison [2005] NSWCCA 189
Conviction appeals.
3 x murder.
The 3 deceased were members of the Bandidos Motorcycle Club & the appellants were members of the Rebels Motorcycle Club. It was alleged that the appellants shot the 3 deceased in the basement of the Blackmarket Caf*. The killings had the appearance of planned executions, although the motive was unclear. There was no eyewitness to the shootings, however, there was a body of circumstantial evidence, including ballistics & forensic biological evidence. The girlfriend of one of the deceased was an important Crown witness. She was on the premises at the bar at the time of the shootings. She said that shortly after she heard the sound of gunshots coming from the basement, she saw the appellants hurriedly leave the club. She said that Harrison was holding a gun. See also R v Georgiou & Harrison [2000] NSWSC 287.
Evidence of appellants at trial alleged to have been concocted jointly by them - whether evidence amounted to lies demonstrating consciousness of guilt - use which might be made of those lies against each appellant - admissibility of evidence of a statement by one of the deceased - effect of ruling upon that evidence by judge in previous trial - directions on lies - hearsay evidence - probative effect of evidence - prejudice.
Appeals dismissed.
203

JOHNSON, David Frederick - CCA, 20.5.2005
Hunt AJA, Hulme & Johnson JJ
Citation: R v Johnson [2005] NSWCCA 186
Sentence appeal.
Aggravated B&E dwelling house & commit serious indictable offence (stealing); sexual intercourse without consent; aggravated B&E dwelling house & commit serious indictable offence (sexual assault).
Total sentence of 14y with a NPP of 9y.
Applicant was identified as the perpetrator of the above crimes through a matching of DNA sample taken from him whilst he was in custody & forensic samples taken from the 2 victims.
Aged just under 24 at time of offences - Aboriginal descent - raised on Aboriginal reserve in rural NSW - parents had a turbulent relationship - left school in Year 10 - some unskilled labouring work - cannabis use since teen years - gambling habit - father of 2 children - prior sexual offences - previous imprisonment.
Whether sentences manifestly excessive - whether some other, lesser, sentence ought be imposed - whether error in assessment of objective gravity - whether error in determination as to when to commence sentences.
Appeal allowed insofar as commencement dates varied. Effective total sentence remains unchanged.
204

SAMA, Adam - CCA, 20.5.2005
James, Hislop & Hall JJ
Citation: R v Sama [2005] NSWCCA 191
Sentence appeal.
Ongoing supply of prohibited drug (18.6 grams methadone; 0.05 grams heroin; 0.029 grams heroin).
Total sentence of 30m with a NPP of 15m.
The offences involved the supply of drugs to undercover police officers.
Aged 31 at time of offence - guilty plea - priors include convictions for drug offences.
Limited discount for guilty plea - utilitarian value - strength of Crown case - whether sentence manifestly excessive.
Appeal dismissed.
205

SCHAFFER, Peter William - CCA, 18.5.2005 - 153 A Crim R 372
Simpson, Buddin & Hall JJ
Citation: R v Schaffer [2005] NSWCCA 193
Sentence appeal.
B&E with intent to commit serious indictable offence (larceny); threaten to cause injury to a judicial officer; Form 1 (2 x goods in custody).
Total sentence of 3y 9m with a NPP of 2y 3m.
Aged 30 at time of sentence - troubled family background - drug dependency - possibility of 'acute psychotic episode when acutely intoxicated with amphetamines or in early withdrawal phase'- pre-occupied with suicidal thoughts - criminal record dating back to age 11 - previous imprisonment.
Whether sentence manifestly excessive - objective gravity.
Appeal dismissed.
206

McNAMARA, John Frederick - CCA, 20.5.2005
Simpson, Buddin & Hall JJ
Citation: R v McNamara [2005] NSWCCA 195
Sentence appeal.
Robbery in company.
8y with a NPP of 4*y.
The above offence was committed upon the Australian Rules Football Club in Wagga Wagga.
Applicant's co-offender pleaded guilty to 5 offences & received a total sentence of 10*y with a NPP of 6y. He was successful in his appeal against sentence: see R v Franks [2005] NSWCCA 196.
Guilty plea - alcohol abuse - upbringing lacked structure & direction - 8 year period of fairly regular employment - remorse - attempts made to address drug dependency & other lifestyle matters - in a stable relationship - has 2 children - multiple priors - began offending at age 10 - previous imprisonment.
Threatened use of violence - without regard to public safety - offence planned.
Error in taking into account certain matters as aggravating features - whether sentence manifestly excessive - Henry guideline - starting point.
Appeal allowed: resentenced to 6y with a NPP of 3*y.
207

FRANKS, Cory Dean - CCA, 20.5.2005
Simpson, Buddin & Hall JJ
Citation: R v Franks [2005] NSWCCA 196
Sentence appeal.
Threaten to use firearm to avoid apprehension; take conveyance without consent of owner; robbery whilst armed with dangerous weapon; possess firearm without licence; resist officer in execution of duty; + offences on Form 1 (assault; take & drive conveyance without consent of owner; malicious damage).
Total sentence of 10*y with a NPP of 6y.
Applicant pleaded guilty to the above charges, all arising out of an armed robbery at the Australian Rules Football Club in Wagga Wagga.
Applicant's co-offender pleaded guilty to robbery in company & received a sentence of 8y with a NPP of 4*y. He was successful in his appeal against this sentence: see R v McNamara [2005] NSWCCA 195.
Aged 33 at time of offences - lack of guidance during childhood - little education - heroin addiction - went on a methadone programme - in a stable relationship - has 2 children - lengthy criminal record commencing at age 13 - prior offences dealt with in Children's Court & Local Court - received bonds & imprisonment for relatively short periods - no previous convictions for indictable offences in DC or SC - above offences represent a significant escalation of criminal behaviour.
Whether sentence manifestly excessive - aggravating factor an element of offence - Henry guideline - starting point.
Appeal allowed in part: new total sentence of 10y with a NPP of 5*y.
208

ANDREWS, Stephen Martin - CCA, 20.5.2005
Simpson, Buddin & Hall JJ
Citation: R v Andrews [2005] NSWCCA 199
Sentence appeal.
6 x aggravated BE&S (in company).
Total sentence of 5y 4m with a NPP of 4y.
Offences committed upon golf & bowling clubs over a 4 day period. At co-offender Connor's request, the applicant had gone to Adelaide to collect Connor & return him to Queensland where they were both living at the time. Applicant & Connor were on the return journey to Queensland when they ran short of money. All offences involved minimal planning & lack of sophistication. On each occasion, premises were broken into late at night when they were likely to be unoccupied. Poker machines were opened & their contents removed. Applicant & Connor were stopped by police in the Grafton area & the vehicle was searched. Police found housebreaking implements & $1 coins. In all, nearly $4,000 was stolen from the various clubs. Damage totalling in excess of $3,000 was caused to those premises. Although there were a number of features of the case which brought it within the guideline referred to in Ponfield, the sentencing judge concluded that offences committed by applicant fell at the lower end of range of objective seriousness for such offences. All offences but one committed in the company of Connor, remaining offence in company of a man named Parmenter, who was also involved in 3 of the 5 offences which applicant committed with Connor. Parmenter has not been arrested. Connor received a total sentence of 4y 8m with a NPP of 3*y.
Aged 40 - guilty pleas - 25% discount - assistance to authorities - large number of health problems - difficult upbringing - Aboriginal descent - father subjected applicant to serious physical abuse when a child - father an alcoholic & murdered his 2nd wife - father subsequently escaped from prison & committed suicide - applicant in gainful employment - previous employer indicated he was a good worker & said he would employ him upon his release - lengthy criminal history - previous imprisonment for offences committed in NSW & Qld.
Subjective features - assistance to authorities - insufficient weight given - whether sentence excessive.
Appeal allowed: new total sentence of 4y 8m with a NPP of 3y 6m.
209

MARTIN, Robert Cameron - CCA, 20.5.2005
Hunt AJA, Hulme & Johnson JJ
Citation: R v Martin [2005] NSWCCA 190
Sentence appeal.
1 x being a trustee did fraudulently dispose of property (s.172 Crimes Act 1900).
4y with a NPP of 3y.
Applicant & his brother were directors of a company. Part of that company's activities involved the operation of a strata management agency for 256 premises. The above offence came to light when it was discovered that applicant held $488,875 as trustee for various bodies corporate & converted that money for the benefit of his company.
Whether error in declining to find special circumstances - whether error in having additional regard to abuse of position of trust as an aggravating factor - whether sentence manifestly excessive.
Appeal dismissed.
210

COLLINS, Patti Anne - CCA, 20.5.2005
Simpson , Buddin & Hall JJ
Citation: R v Collins [2005] NSWCCA 198
Sentence appeal.
1 x armed robbery with offensive weapon; + Form 1 offences (3 x goods in custody).
3y with a NPP of 15m.
Following the above sentence being imposed in the DC, applicant appeared later the same day in the LC & received a wholly concurrent sentence of 6m for an unrelated offence of receiving stolen property.
Applicant entered a video store, produced a knife, extended it directly at the victim & demanded all her money. The victim handed over approx $100 in notes from the till. The applicant then ran from the store & managed to escape. Police were able to identify the applicant from CCTV footage.
Aged 48 at time of offence - drug & alcohol dependency - genuine contrition - good prospects of rehabilitation - had undertaken methadone programme prior to being sentenced - unlikely to re-offend - special circumstances - 2 prior convictions for shoplifting - no previous imprisonment.
Whether sentence excessive - Henry guideline - utilitarian value of guilty plea - strength of Crown case.
Appeal dismissed.
211

BAKER-TURLEY, Lorraine - CCA, 30.5.2005
Simpson, Barr & Latham JJ
Citation: R v Baker-Turley [2005] NSWCCA 201
Sentence appeal.
1 x supply MDMA (ecstasy).
15m with a NPP of 9m, suspended upon entering a GBB.
Applicant was a passenger in a car that was stopped by police for a random breath test. Police enquired whether any of the occupants had drugs. Applicant removed a quantity of pills from her clothing (ecstasy weighing a little under 18 grams). Applicant was duly charged & pleaded guilty. The Crown case was that the supply was constituted by the applicant having the drugs in her possession for supply.
Aged 18 at time of offence - long-standing addiction to various illegal drugs.
Discount - failure to make proper allowance for assistance to authorities & for early guilty plea - claim that guilty plea made at earliest opportunity - genuine contrition - whether sentence excessive.
Appeal dismissed.
212

LI, Kai Kong - CCA, 25.5.2005
CHAN, Chung Tak
FAN, Po Chong
CHUNG, Tat Sang
Spigelman CJ, Wood CJ at CL, Hidden, Barr & Hislop JJ
Citation: R v Li; R v Chan; R v Fan; R v Chung [2005] NSWCCA 154
Li: sentence appeal & Crown appeal.
Chan, Fan & Chung: sentence appeals.
Knowingly concerned in the importation of a large commercial quantity of heroin.
Li: 24y, with a NPP of 18y.
Driver & general hand - no influence in offence
Chan: Life, with a NPP of 30y.
Co-ordinator & supervisor in Australia - remorse - early guilty plea - erroneous finding that he was to be responsible for storage & distribution of heroin
Fan: Life, with a NPP of 28y.
Trusted subordinate to Chan - took orders & supervised carrying out of instructions in preparation of arrival of heroin - limited assistance.
Chung: Life, with a NPP of 30y.
Trusted member of organisation - below Fan & Chan - assisted in preparation for pick up of heroin.
The 4 offenders, along with a number of other people, were involved in the importation of the largest consignment of heroin ever seized in Australia (252.3 kgs pure). A speedboat carrying the heroin was launched from a small cargo ship & proceeded to a beach near Port Macquarie where it was intercepted by federal agents. Each offender was present in Australia prior to the importation, preparing for delivery.
Li: Crown appeal - whether sentence manifestly inadequate - appeal dismissed.
Sentence appeal - appeal dismissed.
Chan: Sentence appeal - appeal allowed in part - new NPP of 28y;
Fan: Sentence appeal - appeal dismissed.
Chung: Sentence appeal - appeal dismissed.
213

HARRIS, Wayne John - CCA, 1.6.2005
Studdert, Howie & Latham JJ
Citation: R v Harris [2005] NSWCCA 204
Sentence appeal.
2 x armed robbery; + Form 1 (attempted robbery).
Total of 6y 3m with a NPP of 4y 3m.
The armed rob offences were committed upon the ANZ bank at Epping & the Turramurra Pharmacy. The Form 1 offence was committed upon the Haymarket branch of the Commonwealth Bank. On all 3 occasions, applicant was armed with long-bladed kitchen knives.
Aged 22 at time of offences - guilty pleas - drug use since age 13 - unsuccessful attempts at rehabilitation - had become drug free whilst in custody - supportive family, good education - remorse, contrition - limited degree of planning - vulnerable victims - priors - no previous imprisonment.
Whether sentence manifestly excessive - Henry guideline ((1999) 46 NSWLR 346).
Appeal dismissed.
214

CAS - CCA, 18.5.2005 - 160 A Crim R 451
Simpson, Buddin & Hall JJ
Citation: R v CAS [2005] NSWCCA 192
Application for leave to appeal against sentence.
Aid and abet importation of commercial quantity MDMA (ecstasy).
8y with NPP of 5y.
A shipment of freezers sent from Malaysia & consigned to the applicant was searched by Australian Customs officers. Inside 3 of the freezers they found a quantity of powder. Upon analysis, the powder was found to constitute 136.913 kgs of pure MDMA powder (street value approx $115m).
Aged 31 at time of offence - guilty plea at earliest opportunity - significant contrition - 'high order'of assistance to authorities - in protective custody - involvement in offence precipitated by threats from members of syndicate - good employment record - no priors.
Limited role - assistance to authorities - parity.
Leave to appeal refused.
215

ABDUL-KADER, Mostafa - CCA, 1.6.2005
Studdert, Howie & Latham JJ
Citation: R v Abdul-Kader [2005] NSWCCA 205
Sentence appeal.
Supply trafficable quantity methylamphetamine.
2y 8m with NPP of 20m.
Applicant checked into a room at a hotel at Circular Quay. He was later joined by other persons & they held a party during which drugs were consumed. The activity of the other persons over the next 24 hours led to a complaint being made to police who obtained a search warrant for the hotel room. The Crown case was that, as the police entered the room, the applicant threw on the floor a sum of money & a plastic bag containing a white substance. The contents of the plastic bag were later analysed & found to be 27.9 grams of methylamphetamine (80% pure). The issue at trial was whether the applicant was in possession of that drug. The applicant maintained that he was not a user of the drug & denied having had possession of the plastic bag containing the drug.
Aged 21 at time of sentencing - criminal record but no prior drug offences - subject to GBB at time of offence - previous imprisonment.
Whether sentence manifestly excessive.
Appeal dismissed.
216

ADANGUIDI, Crespin - NSW SC, Graham Barr J, 3.6.2005
Citation: R v Adanguidi [2005] NSWSC 519
Remarks on Sentence.
3 x murder.
Mr Shen (the husband & father of the 3 deceased) met Adanguidi in 2000, when Adanguidi was working as a security guard at Mr Shen's Rockdale apartment block. A friendship developed between the 2 men, which then became sexual. Some 3 years later, Adanguidi murdered Mr Shen's wife & 2 children before ransacking their home for cash & valuables. Prior to committing these offences, Adanguidi had attacked Mr Shen & left him gagged & bound at Adanguidi's Maroubra unit.
Aged 27 at time of offences - born in Benin - was living with wife & child up until commission of offences.
Sentence: 3 x life (concurrent).
217

CLIFFORD, Michael Douglas - NSW SC, Adams J, 31.5.2005
AB
Citation: R v Clifford; R v AB [2005] NSWSC 521
Remarks on Sentence.
Clifford: Manslaughter; maliciously inflict GBH.
AB: Murder; maliciously inflict GBH.
Clifford started an altercation with the deceased & his friends who were walking to a party after having been drinking at some hotels. During the altercation, Clifford called out for help, whereupon AB fired 2 shots, one of them killing the deceased, the other wounding a friend of the deceased. The offenders were teenagers at the time of the offences. Both offenders came from extremely violent families & both had abused drugs & alcohol from a very young age.
Sentences:
AB: Total of 14y with a NPP of 9*y.
Clifford: Total of 6y with a NPP of 3y.
218

ATONIO, Tamilo - CCA, 7.6.2005 - 154 A Crim R 183
James, Hislop & Hall JJ
Citation: R v Atonio [2005] NSWCCA 200
Sentence appeal.
Assault with intent to rob in circumstances of aggravation.
5y with NPP of 3y.
Applicant punched the victim twice when he refused to hand over his money or his mobile phone. An eyewitness gave evidence of seeing & hearing a 'strong punch'being made by the applicant with a closed fist to the left cheek or jaw area of the victim.
Aged just under 21 & on bond & parole at time of offence - approx 6' tall & of heavy build, whereas 21 year old victim 5' 1'tall with skinny build - significant criminal history including multiple assault offences - previous imprisonment.
Guilty plea - utilitarian value - whether sentence excessive.
Appeal dismissed.
219

NICOL, Ronald - NSW SC, Hulme J, 27.5.2005
Citation: R v Nicol [2005] NSWSC 547
Remarks on Sentence.
Manslaughter.
The offender & the deceased had been married for 63 years at the time of the offence. Because of their advanced years & ill health, their children had suggested they go into a nursing home. The prospect of this happening deeply upset both the offender & the deceased. The offender stated that he & his wife agreed that the offender should kill his wife & then kill himself. The offender took a long metal rod & hit his wife several times over her head then placed a plastic bag over her head. He said that his wife may have said 'stop'at one stage but he felt he needed to finish the job. He later took 15 sleeping tablets & 8 Panadeine Forte tablets with the intention of killing himself. A post-mortem report stated the deceased's death to have been caused by the 'combined effects of multiple blunt force injuries and plastic bag asphyxia'.
Aged 86 - abnormality of mind - substantially deaf.
Received a suspended sentence of 2y with a NPP of 1y.
220

TETERYCZ, Ashley Scott - CCA, 24.5.2005
Simpson, Buddin & Hall JJ
Citation: R v Teterycz [2005] NSWCCA 197
Sentence appeal.
2 x BE&S in circumstances of aggravation; 1 x malicious damage; 1 x larceny.
Applicant pleaded guilty to related charges of malicious damage & larceny, as well as an unrelated charge of robbery in company.
Total sentence of 5y 9m with a NPP of 4y.
In company with others, the applicant broke & entered into offices of Concrete Recycles Group Pty Ltd. They stole property & damaged a Caterpillar loader & excavator. The related charges to which the applicant pleaded guilty occurred on the same occasion when the applicant maliciously damaged 2 Coca Cola dispensing machines & stole cash & soft drinks.
Whether sentence excessive - Henry guideline - early guilty plea - discount - utilitarian value - strength of Crown case - starting point for sentence - parity.
Appeal allowed in part: new total sentence of 4y 8m with a NPP of 3*y.
221

AD - CCA, 9.6.2005
Studdert, Howie & Latham JJ
Citation: R v AD [2005] NSWCCA 208
Sentence appeal.
Aggravated sexual assault (complainant under age of 16); aggravated indecent assault.
4y 3m with a NPP of 2*y; sentence to be served in a juvenile detention centre.
Both the applicant & the complainant were aged 15 at the time of the above offences & had been in a boyfriend girlfriend relationship for 3 months. The complainant invited the applicant to her house after school. He went to the complainant's house accompanied by his 22 year old cousin who was unknown to the complainant. When first interviewed by police, the applicant denied any sexual conduct had taken place & also denied that he had a relationship with the complainant. He later gave evidence in the DC identifying his cousin & indicated that he was prepared to give evidence against him. He gave an account that was substantially the same as that given by complainant & admitted having sexually assaulted her by inserting his finger into her vagina while at the same time his cousin was touching the complainant's breasts.
Aged 16 at sentence - guilty plea - poor attitude towards women, especially non-Muslim women - failure to appreciate moral & criminal significance of conduct - marked deficiencies in intellectual or verbal skills - rehabilitation - need for sex offender courses, anger management & general counselling - no real remorse or contrition - no priors.
Whether sentencing discretion miscarried by failure to refer to s.6 Children (Criminal Proceedings) Act - whether sentence manifestly excessive having regard to age of offender.
Appeal dismissed.
222

DO, Duc Vien - CCA, 9.6.2005
Studdert, Howie & Latham JJ
Citation: R v Do [2005] NSWCCA 209
Sentence appeal.
1 x supply large commercial quantity heroin; 1 x supply large commercial quantity cocaine.
Total of 12y with a NPP of 9y.
The Crown case was that the applicant, his 2 brothers & a 4th man were involved in the supply of heroin & cocaine from premises in Fairfield during a 3 month period. It was alleged that they were involved in buying heroin & cocaine in pure form, breaking it down with sugar, re-blocking the drug & then selling it through a number of runners in both block form & powder form. The money obtained from the sale of the drugs was laundered in some cases by the use of cheques obtained as the proceeds of winnings on poker machines. The Crown relied upon a large number of listening device tapes & surveillance evidence to prove that the 4 men were in the business of supplying drugs in a joint enterprise. At the time of their arrest, the 4 men were found to have over a kilogram of heroin. The Crown estimated that over the period of the charges, the men dealt with 6 kgs of heroin & 1.5 kgs of cocaine.
Aged 25 at time of sentence - no priors.
Parity.
Appeal dismissed.
223

HUNT, Michael Shane - CCA, 9.6.2005
Studdert, Howie & Latham JJ
Citation: R v Hunt [2005] NSWCCA 210
Sentence appeal.
1 x supply cannabis leaf; 2 x aggravated indecent assault; 2 x publication of child pornography; + Form 1 (possess child pornography).
Total of 8y with NPP of 7y.
Offences occurred during a period of a little over 1 year. The supply cannabis leaf involved applicant supplying a 9 year old boy, his older brother & a friend with the drug. On a number of occasions while the children were at the applicant's house playing computer games, the applicant switched on downloaded images of graphic child sex scenes that had been stored on his computer. He also gave a CD to the 9 year old boy. When this CD was viewed by police, it was found to contain graphic video clips of sex scenes involving adult males & very young male & female children. Each of the indecent assaults involved the applicant gently squeezing the 9 year old boy's genitals. On each occasion the victim was clothed.
Aged 39 at time of sentencing - guilty pleas - 40% discount - on a bond at time of offending - 'formidable'criminal record, including murder - record dates back to age 18 - paedophilia longstanding & difficult to control - high risk of re-offending - need for ongoing treatment, both in prison & once released - need for medication to assist treatment.
Whether sentences manifestly excessive - failure to properly apply principle of totality - failure to allow sufficient time on parole.
Appeal dismissed.
224

SUAAII, Amani - CCA, 9.6.2005
James, Hislop & Hall JJ
Citation: R v Suaalii [2005] NSWCCA 206
Sentence appeal.
Aggravated robbery.
9y with a NPP of 6*y.
Suaalii & Mauai, together with Certoma, conspired to rob the Family Inn Hotel at Rydalmere, where Certoma worked as a security guard (see also R v Mauai [2005] NSWCCA 207). This hotel was chosen because it had no video surveillance. On 5.4.2003 at about 3.20am, Mauai & Suaalii gained entry to the hotel through an unlocked door. Both men were armed with knives, carried duct tape & wore gloves & balaclavas. Certoma was the only security guard on duty at the time & he the manager of the hotel were removing money from the poker machines. Mauai & Suaalii took Certoma, the manager & the manager's wife to the main bar area & made them lie on the floor, brandishing their knives as they did so. The manager was then ordered to take Mauai & Suaalii to the main safe & open it. As the manager opened the safe, a silent alarm was triggered. Mauai & Suaalii removed about $31,500 which they placed in a sports bag. They then tied up the victims, including Certoma. The manager's wife was 6 months pregnant at the time & was concerned for her unborn child. The 2 offenders then left the hotel.
Aged 20* at time of offence - born in Samoa - no priors, although subsequent to the above offence applicant was sentenced to 6m for AOABH, which had occurred prior to the above offence.
Error in taking into account as aggravating factors that offence involved actual or threatened use of violence & that applicant abused position of trust or authority - error in not taking into account finding of special circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to total of 6y 8m with a NPP of 4*y.
225

MAUAI, Galuefa - CCA, 9.6.2005
James, Hislop & Hall JJ
Citation: R v Mauai [2005] NSWCCA 207
Sentence appeal.
Aggravated robbery.
9y with a NPP of 6*y.
The offence occurred at the Family Inn Hotel, Rydalmere (see R v Suaalii [2005] NSWCCA 206 for details).
Aged 21 at time of offence - of Samoan heritage - no priors.
Whether sentence manifestly excessive - Irrelevant matters taken into account as circumstance of aggravation - finding of special circumstances not reflected in relationship of NPP to total sentence.
Appeal allowed: resentenced to 6y 8m with a NPP of 4*y.
226

REYES, Mark Anthony - CCA, 16.6.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Reyes [2005] NSWCCA 218
Crown appeal.
1 x kidnap; 3 x indecent assault; 4 x administer stupefying drug; 10 x aggravated sexual assault; 2 x obtain benefit by deception; 1 x steal from the person; 1 x steal from dwelling.
Total of 13y with a NPP of 10y.
In all, respondent faced trial on 31 counts. He pleaded guilty to one count of obtain benefit by deception & one count of steal from a dwelling & was found guilty on 20 counts. The jury returned verdicts of not guilty on 2 counts; respondent was found not guilty by direction of the trial judge on a further 5 counts; no verdict was taken on the remaining 2 counts upon which the jury were unable to agree. The offences involved 2 victims, one aged 18 & the other aged 16.
Aged 40 at time of offences - born in Chile, migrated to Australia with family at age 7 - lack of self-confidence - commenced marijuana & alcohol use at age 13, amphetamines use at age 16 - occasional use of cocaine & heroin - some attempts at rehabilitation - gambling a problem during heavy drug use - broken relationships - has 3 children aged 15, 13 & 10 at time of sentencing - support of parents & siblings - diagnosed with Parkinson's disease - on a disability pension - priors include drug & dishonesty offences but no offences of violence or sexual assault.
High level of criminality - insufficient weight given to general deterrence - individual sentences for kidnap & aggravated sexual assault inadequate - sentences not structured to allow for separate criminality - structure did not allow for totality.
Appeal allowed: respondent resentenced to a total of 18y with a NPP of 15y.
227

STRONG - HC, 15.6.2005 - 224 CLR 1; 79 ALJR 1171
Citation: Strong v The Queen [2005] HCA 30
On appeal from the SC of NSW.
Appellant was found guilty of multiple offences involving stalking & intimidation & was sentenced to a total of 8y with a NPP of 6y. He was pronounced a habitual criminal under the Habitual Criminal Act 1957 (NSW) & was sentenced to 14 years to be served concurrently with the above sentence. His appeal to the NSW CCA against the habitual criminal declaration was dismissed, however, he was successful in his appeal against sentence. He was re-sentenced for the primary offences & as an habitual criminal to an effective overall sentence of 8y.
Whether whole sentence must be re-determined where one component of that sentence has miscarried - whether appellate court required to determine for itself whether to pronounce appellant an habitual criminal - whether in doing so appellate court is exercising its own jurisdiction & powers - whether appellate court made such determination - whether appellate court correctly upheld sentencing judge'ss pronouncement of the appellant as an habitual criminal - whether appellate court'ss approach conformed to scrupulously thorough procedures for additional orders of preventative detention under the Habitual Criminals Act 1957 (NSW).
Appeal dismissed.
228

TSOKOS, Spiro - CCA, 16.6.2005
Studdert, James & Howie JJ
Citation: R v Tsokos [2005] NSWCCA216
Conviction appeal.
Supply commercial quantity methylamphetamine (302.4 grams).
5y with a NPP of 2y 9m.
Following surveillance, police officers stopped a car in which appellant was a front seat passenger & the co-offender the driver. On the floor in the area of the front passenger seat, police found a bag inside of which was a clear plastic heat-sealed bag containing 302.4 grams methylamphetamine. The Crown case was that appellant & the co-offender were engaged in a joint criminal enterprise to supply the drugs to 2 men identified in intercepted phone conversations between the alleged co-offender & those 2 men. The Crown also relied upon the content of a number of intercepted conversations between appellant & the co-offender. There was also evidence of observations of the offenders in the time leading up to the discovery of the drugs in the car. Appellant denied any involvement in the supply & denied any knowledge of the presence of the drugs. According to him, the driver was a friend to whom the appellant had lent money & who was selling materials on commission for the appellant in a business in which the appellant was engaged. He said there was an innocent explanation for the intercepted telephone conversations involving him & that one such conversation related not to drugs but to a legitimate transaction about the sale of mouldings.
Whether trial miscarried - directions - circumstantial evidence - standard of proof - whether misdirection - 'justifiable'inferences - 'valid'inferences - whether error.
Appeal dismissed.
229

BARKHO, Joseph - CCA, 9.6.2005
Studdert, Howie & Latham JJ
Citation: R v Barkho [2005] NSWCCA 211
Sentence appeal.
1 x supply commercial quantity methylamphetamine; + Form 1 (possess cannabis).
6y with a NPP of 4y.
Applicant & his co-offender were involved in the supply of methylamphetamine. The above offences came to light during a police undercover operation.
The co-offender had a long criminal record dating back to 1990. That record included offences of violence. He had also been imprisoned for a drug offence. The applicant had only one matter on a Form 1, whereas the co-offender had 4 matters on his Form 1 document. The co-offender received a sentence of 5y 3m with a NPP of 3*y.
Aged 26 at time of offending - guilty plea in DC - 15% discount allowed - youngest of 5 children born of Assyrian parents - offending described as being slightly below middle range - left school prior to attaining HSC - intermittent employment due to lack of motivation caused by heavy marijuana use - one prior conviction for possess prohibited drug dealt with by way of fine.
Whether error in finding that applicant's criminality greater than that of co-offender - error in differentiating between applicant & co-offender - insufficient regard to applicant's insignificant criminal record & by considering prior conviction an aggravating circumstance - whether sentencing exercise miscarried - justifiable grievance due to disparity.
Appeal allowed: resentenced to 5y 3m with NPP of 3*y.
230

KMB - CCA, 6.5.2005
Grove, Hulme & Simpson JJ
Citation: R v KMB [2005] NSWCCA 185
Sentence appeal.
Manslaughter.
6y with a NPP of 3*y.
The deceased was in the care of the applicant, who was his niece. The deceased engaged in sexually inappropriate behaviour in the presence of the applicant's 4 year old child. Believing her children may have been molested, the applicant inflicted a large number of punches to the deceased's head & chest & a number of forceful kicks to his body. The deceased was suffering from dementia at the time of his death & had the mental capacity of a child. He was also suffering from severe coronary artery disease & was at risk of sudden death at any time. A post mortem revealed extensive bruising to his trunk & 13 broken ribs. Most of the fractures were recent, with 3 fractures estimated to have occurred 24 to 72 hours prior to death. One of those fractures was associated with a laceration of the lung.
Aged 32 at time of offence - tall, athletic.
Whether error in failure to adequately take into account pre-existing medical condition of victim in assessing culpability of applicant - whether sentence manifestly excessive.
Appeal dismissed.
231

BB - CCA, 16.6.2005
Studdert, James & Howie JJ
Citation: R v BB [2005] NSWCCA 215
Sentence appeal.
Aggravated BE&S; + Form 1 (malicious wounding).
Total of 5*y with a NPP of 3y, to be served in a juvenile detention centre.
The applicant entered the victim's premises through a closed but unlocked front door. When the victim heard his dog barking, he investigated & found the front door open. He closed the door but then realised someone was in the house. The applicant emerged from the front bedroom & attacked the victim with a wooden fence picket, causing him to fall to the floor. He then proceeded to punch the victim about the head & body. The victim called for help. The applicant took the victim's wallet, then left the premises. The victim suffered relatively minor facial injuries, bruising & abrasions. He also suffered a number of lacerations to his scalp that required a total of 25 stitches.
Aged 16y 10m at time of offences - subject to probation order at the time & had been smoking cannabis - unstable upbringing - significant criminal record.
Whether error in law when treating Form 1 offence as aggravating the indictment offence - Insufficient weight given to delay - whether sentence manifestly excessive.
Appeal dismissed.
232

MOUZOMENOS, Michael - CCA, 17.6.2005
Simpson, Barr & Latham JJ
Citation: R v Mouzomenos [2005] NSWCCA 203
Sentence appeal.
1 x BE&S.
2y with a NPP of 15m.
A young woman was alone at her home on the evening of the offence when there was a knock on the front door. She enquired as to who was there & the applicant replied 'it's me'The victim looked through a peep-hole in the door but was unable to see anyone. She opened the door & saw the applicant in company & another male. She immediately shut the door because she was fearful of her safety. There had been a previous encounter between the victim & the applicant that resulted in the victim excluding the applicant from her home. Shortly thereafter, the applicant & his co-offender kicked in the front door, breaking it at the frame. They entered the unit & the applicant demanded the victim's laptop computer. The applicant went to the victim's bedroom & the co-offender stayed with the victim in the lounge room. The victim managed to grab her mobile phone & run from the unit & flag down a passing motorist. As she was being driven by the motorist to Hurstville Police Station, the victim saw a green motor vehicle with the applicant at the rear placing something into it. She noted the registration number of the vehicle & reported the incident to police. She was able to identify the applicant to police, as well as give them the name of the driver of the vehicle. Property stolen was a Sanyo stereo with speakers & the victim's handbag containing a watch, personal cards & a quantity of cash.
Parity.
Appeal dismissed.
233

MOORE, Wayne Robert - CCA, 17.6.2005
Studdert, Howie & Latham JJ
Citation: R v Moore [2005] NSWCCA 212
Sentence appeal.
Possess commercial quantity MDMA (ecstasy)
20y with a NPP of 15y.
The applicant was sentenced on the basis that he had 92.442 kgs of pure MDMA in his possession. Applicant was party to an arrangement with others whereby he was to obtain possession of approximately 980,000 ecstasy tablets which were to be imported from the Netherlands. On a number of occasions he communicated with others concerning the importation of the tablets. Applicant leased a self-storage unit for the purpose of storing the ecstasy tablets. Three days later, he leased premises in anticipation of the delivery of the tablets. Some days after that he travelled to Pagewood & took delivery of the tablets, took them to the premises he had leased & left the tablets in a van parked in his garage until he was arrested later that evening. The estimated retail value of the tablets was approx $37 million to $54 million. If sold wholesale, the estimated value was approx $14 million.
Departure from usual proportion between head sentence & NPP - assistance - guilty plea - discount - whether sentence manifestly excessive.
Appeal dismissed.
234

PP - CCA, 14.6.2005
McClellan AJA, Simpson & Rothman JJ
Citation: R v PP [2005] NSWCCA 214
Sentence appeal.
1 x import trafficable quantity cocaine.
6y with a NPP of 4y.
Applicant & his 5 co-offenders flew from Singapore to Sydney Kingsford Smith Airport. Applicant was selected for baggage examination & an ionscan swab of the inside of his suitcase & toilet bag yielded a positive result for cocaine. A more extensive search was carried out, which revealed that the applicant had pellets concealed internally in his body. He was taken to St George Hospital & detained there until the pellets passed through his body. In all, applicant was found to be carrying 140.3 grams of pure cocaine (street value approx $160,300). Four of his co-offenders were also arrested & subjected to internal examination. The amount of cocaine concealed in their bodies was 520.1 grams, 518.5 grams, 386.6 grams & 253.1 grams. Three of the co-offenders were each sentenced to 7y with a NPP of 4y 4m. The 4th co-offender received 7y with a NPP of 4y (the shorter NPP because of a medical condition).
Born in Austria - guilty plea - assistance to authorities.
Parity - applicant unfairly treated in comparison with co-offenders - proper sentencing principle - effect of repeal of s.16G Crimes Act 1914 (Cth).
Appeal allowed: resentenced to 5y 7m with a NPP of 3y 4m.
235

M - CCA, 16.6.2005
James, Buddin & Rothman JJ
Citation: R v M [2005] NSWCCA 224
Sentence appeal.
1 x supply methylamphetamine - 5y with a NPP of 3y; 1 x supply MDMA (ecstasy); + Form 1 (possess 3.47 grams cocaine; possess 35.97 grams ketamine) - 5y with a NPP of 3y (partially accumulated).
Total sentence of 6y with a NPP of 4y.
The offences came to light as a result of police surveillance. The applicant was involved in the sale & distribution of ecstasy & methylamphetamine from his apartment in St Leonards.
Aged 27 at time of offences - guilty pleas - born in India - moved to Australia with family at age 13 - completed HSC - attained a Bachelor of Business degree - victim of a serious assault at age 21 - began to experiment with drugs - significant drug problem - became involved in supplying drugs to 'get cheaper drugs for himself'- 'successful business as a drug supplier'- 'relatively high up in the drug supply hierarchy'- good prospects of rehabilitation.
Assistance to authorities - utilitarian value of guilty pleas - discount - whether error in degree of accumulation of sentence - whether sentence excessive.
Appeal allowed: resentenced to a total of 5y with a NPP of 3y.
236

HANTIS, Jacques Louis Guy - NSW SC, James J, 17.6.2005
Citation: R v Hantis [2005] NSWSC 549
Remarks on Sentence.
Manslaughter; possess firearm without licence or permit.
The accused was indicted upon a charge of murder, to which he pleaded not guilty. Following a trial, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
Substantial impairment by abnormality of mind.
Sentenced to a total of 8y with a NPP of 4y.
237

HUYNH, Quang Thanh - CCA, 17.6.2005
Simpson, Barr & Latham JJ
Citation: R v Huynh [2005] NSWCCA 220
Sentence appeal.
Aggravated B&E and commit serious indictable offence (in company).
8y with a NPP of 5y.
Applicant, in company with another male, entered a house by smashing a glass door. They placed a great deal of personal property, including jewellery, watches & precious stones & cosmetics, into a backpack they found in the house. Some of the property was also placed in the applicant's pockets. The 2 offenders were actually in the house when the son of the occupants, an off-duty police officer, arrived with a friend. He tried to confine the 2 offenders with a security door but the offenders pushed it open, breaking the door, then ran off in different directions. The police officer chased & caught the applicant, who was carrying the backpack. The applicant threw a number of punches at the police officer, causing him to fall to the ground. The police officer's friend came to his aid, as did a nearby neighbour & the applicant was restrained. Police attended & the applicant was arrested. All the property stolen was recovered. The property was valued between $90,000 & $100,000.
Aged 24 at time of offence - guilty plea - some difficulty in family background - became depressed - started using drugs, commencing with marijuana at age 14, progressing to smoking heroin at 17 & injecting it at 21 - had used both amphetamines & heroin in the months leading up to above offence - significant disciplinary problems whilst at school - priors - no previous imprisonment.
Departure from standard NPP - failure to give effect to finding of special circumstances - discount for guilty plea - element of offence wrongly taken into account as circumstance of aggravation - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5y 4m with a NPP of 3y 3m.
238

WICKS, Jade Ebony - CCA, 7.6.2005
Studdert, James & Howie JJ
Citation: R v Wicks [2005] NSWCCA 213
Crown appeal.
Robbery whilst armed with offensive weapon.
3y with NPP of 8m 28d.
The NPP expired the day before the sentencing judge passed sentence. At the time of sentencing, the sentencing judge made a parole order directing respondent's immediate release from custody, conditional upon her reporting to the Probation and Parole Service at Tamworth & that she accept the supervision of the Probation & Parole Service & that she undergo continuing psychiatric counselling & medication as advised by her medical practitioners & a particular psychiatrist.
The offence involved respondent walking into a store, threatening the victim with a knife & demanding money. She grabbed the victim's wrist, causing bruising. The respondent left the store with a total of $1,340. She was arrested a short time later when her car was stopped by highway police officers. Respondent told the police officers that she had 'weed'in the car & she was taken to the police station, where she admitted stealing money from the store. She then took police officers to where she had concealed the stolen money & all the money was recovered. The respondent later showed police officers the location of the knife she had used. She told police officers that the cannabis leaf & hashish that was found in her car was for her personal use only.
Aged 26 at time of offence - suffered violence & abuse from mother during upbringing - subsequently raised by maternal grandmother - commenced using cannabis at age 18 - mental illness - psychosis & depression - heard voices - voices told her to carry out robbery or she would be killed - deep remorse, regret.
Whether sentence manifestly inadequate.
Appeal dismissed.
239

MILLAR, Stephen David - CCA, 17.6.2005
Simpson, Barr & Latham JJ
Citation: R v Millar [2005] NSWCCA 202
Sentence appeal.
Aggravated B&E dwelling house & commit serious indictable offence (AOABH).
2*y with NPP of 1y 3m.
Applicant, whose 18 year old daughter was living with the victim, became concerned that the victim was assaulting his daughter. Applicant moved to a unit close to the one occupied by the couple. He heard yelling & screaming coming from their unit virtually every day. He went into the unit on one occasion & what he saw made him think that the victim was about to hit his daughter. Embarrassed, the daughter ran away & the applicant warned the victim not to strike his daughter. The daughter later left the victim & moved into the home of the applicant's parents. When the applicant saw her there, he noticed she had a black eye. He became upset & went to the victim's unit, broke in & attacked the victim, punching him in the face. The victim fell to the floor, bleeding. He was subsequently taken to hospital by ambulance. The injuries sustained by the victim rendered him unfit for work for 2 weeks.
Aged 38 at time of offence - guilty plea in DC once police facts were changed to a form with which applicant agreed.
Error in sentencing judge taking s.54B Crimes (Sentencing Procedure) Act as requiring that he commence consideration of sentence with a 5y NPP in mind - standard NPP - whether sentence excessive.
Appeal allowed: resentenced to 18m with NPP of 10m.
240

WILSON, Shannon Blake - CCA, 29.4.2005 - 153 A Crim R 257
Bryson, Studdert & Adams JJ
Citation: R v Wilson [2005] NSWCCA 112
Crown appeal.
Murder.
12y with a NPP of 8y.
Using a false name, respondent telephoned for a taxi & was duly picked up by a taxi driven by the victim. The respondent asked the taxi driver to take him to a remote bushland area. When asked to pay his fare, the respondent told the victim he had no money. An altercation ensued, during which the respondent produced a knife & fatally stabbed the victim in the chest. The respondent stole money from the victim'ss wallet as well as fare money. He then drove the taxi to another location where he concealed the victim'ss body in scrubland, before returning in the taxi to the scene of the killing where he set fire to the vehicle & buried the murder weapon.
Aged 18 at time of offence - guilty plea - dysfunctional family background - poor education - Intellectual disability - depression - abuse of alcohol & marijuana - no priors.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 15y with a NPP of 11y.
241

PALIWALA, Adam Amilear Hasan Blaster - CCA, 9.6.2005 - 153 A Crim R 451
Studdert, James & Howie JJ
Citation: R v Paliwala [2005] NSWCCA 221
Sentence appeal.
Import trafficable quantity cocaine.
9y with a NPP of 5*y.
Applicant was stopped & searched by Customs officers when he arrived back in Sydney on a return flight from Los Angeles. Upon searching applicant's backpack, 21 small packages containing a brown substance were found. Applicant had ingested pellets containing the substance but had vomited up some of them during the flight from LA & had placed them in the backpack. He was taken to hospital & stayed there until all the pellets had passed through his body. In all, 100 pellets containing cocaine were seized. The amount of pure cocaine applicant brought into Australia was 384.9 grams, with a value of between $70,000 & $154,000.
Aged 28 at time of offence - born in Papua New Guinea - son of 2 university professors - schooling in UK - graduated at Cambridge University with BA degree - became a student at Sydney University as a PhD candidate in Linguistics - did not complete his doctorate due to financial crisis & breakdown in relationship between applicant & academic supervising his studies.
Mental state at time of offence - whether sufficient weight given to evidence of good character - whether error in determining appropriate range of sentences - repeal of s.16G Crimes Act (Cth) - whether error in adjusting head sentence - whether sentence manifestly excessive.
Appeal dismissed.
242

HALL, Peter Francis - CCA, 9.6.2005
Studdert, James & Howie JJ
Citation: R v Hall [2005] NSWCCA 217
Sentence appeal.
4 x make false instrument; 4 x possess implements for making false instrument; 2 x possess prohibited drug; 1 x cultivate prohibited plant; + Form 1 (make false instrument).
Total sentence of 4y with a NPP of 2*y.
Police executed a search warrant at applicant's home where they found prohibited drugs, fraudulent documentation & equipment that was used to make the fraudulent documents & identifications. On the same day, police observed a man leaving the applicant's home carrying an envelope. This envelope contained 2 false NSW driver's licences that the applicant had provided to the man. During the search of the applicant's home, police found a further false NSW driver's licence. Yet another false NSW driver's licence made by the applicant was found in the possession of another person arrested by police. Inside the applicant's home, police located a sophisticated system used in the manufacture of fraudulent identifications. The applicant told police that he was able to produce a driver's licence in approximately 15 minutes.
Guilty plea at 1st available opportunity - assistance - personal/general deterrence - prior conviction for make false instrument & use false instrument - sentenced to PD for those offences - no previous imprisonment.
Whether sentencing judge erred by failing demonstrably to take into account applicant's pre-sentence custody.
Appeal allowed: commencement dates of sentences adjusted.
243

FINGLETON - HC, 23.6.2005 - 227 CLR 166; 79 ALJR 1250
Citation: Fingleton v The Queen [2005] HCA 34
On appeal from the SC of Qld.
The appellant was the Chief Magistrate in Queensland. Following a trial in the SC of Qld, she was convicted of an offence against s.119B of the Code, which prohibits unlawful retaliation against a witness. An alternative charge of attempting to pervert the course of justice was not the subject of a verdict because of the conviction on the primary charge. The appellant was sentenced to a term of imprisonment. An appeal against conviction to the CA of the SC of Qld was dismissed. The CA reduced the appellant'ss sentence. The custodial part of the sentence has been served.
Unlawful retaliation against witness - whether trial judge misdirected jury as to meaning of 'reasonable cause'in s.119B Criminal Code (Qld) - relevance of meaning of terms 'detriment'& 'retaliation'to an assessment of 'without reasonable cause'.
Appellate jurisdiction of HC - point not taken at trial or before CA - whether new ground of appeal can be raised before the HC - whether following trial point waived or spent - whether raising new ground deprives proceedings of character of an 'appeal'for purposes of s.73 of the Constitution.
Appeal allowed: conviction quashed, verdict of acquittal entered.
244

WILSON, Mark Kenneth - CCA, 17.6.2005
Simpson, Barr & Latham JJ
Citation:
R v Wilson [2005] NSWCCA 219
Sentence appeal.
2 x malicious wounding; 1 x AOABH.
Total sentence of 6y with a NPP of 3y 9m.
Applicant & 2 of his associates became involved in a confrontation with several men. The applicant stabbed 3 of the men with a 30cm fishing knife. He punched the 1st victim as he ran towards the scene, then stabbed him in the lower abdomen. This victim sustained a serious 3cm stab wound to the left upper abdomen which penetrated all layers of the skin to a depth of 10cm. The 2nd victim suffered a stab wound to the right forearm with no tendon or nerve loss & a stab wound to the left shin with superficial nerve loss & no obvious tendon loss, but anticipated minor long-term disabilities. The 3rd victim sustained 3 short lacerations to his scalp, small abrasions & some bruising to the scalp, 2 minor abrasions to the right knee & possibly a minor concussion. All offences were committed during one evening.
Aged 20 at time of offences - happy family background - use of cannabis since age 15 but stopped after being charged for above offences - alcohol problem - diagnosed with ADHD as a child - history of mental illness in family - prior offence of obtain money by deception - no previous imprisonment.
Subjective circumstances - special circumstances - whether sentences manifestly excessive - starting point just below statutory maximum - accumulation of sentence.
Appeal allowed on count 2 only: resentenced on that count.
Overall head sentence of 5y with a NPP of 3y.
245

MSS - CCA, 22.6.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v MSS [2005] NSWCCA 227
Sentence appeal.
Sexual intercourse with child under 16.
18m with a NPP of 9m (to be served in a juvenile detention centre).
Applicant, aged 14 years 9 months at the time of the offence, stood trial with a co-offender aged 15 years 4 months. Both had been indicted upon a charge of sexual assault in circumstances of aggravation (s.61J). Applicant was acquitted of that charge but found guilty of the alternative count under s.66C. The co-offender was convicted of the offence under s.61J & sentenced to 5y with a NPP of 2*y.
Without permission & being unlicenced, applicant drove his father's car to a park to celebrate the last day of the school holidays with other young people. He had 3 bottles of alcohol with him, one of which was consumed by the victim (aged 14 years 3 months) & her girlfriend. The victim became well intoxicated. Later in the evening the victim needed to go to the toilet & was driven to a service station by the applicant & his co-offender. On leaving the service station, the applicant entered the rear of the vehicle next to the complainant & the co-offender continued driving. While in the back of the vehicle, the applicant sexually assaulted the victim by digitally penetrating her vagina without her consent. A short time later, he swapped places with his co-offender who had penile intercourse with the victim without her consent.
Misbehaviour at school with allegations of bullying, resulting in suspension on a number of occasions - expelled from one school after threats of violence against a teacher - expelled from next school after continuation of aggressive behaviour - applicant & his father colluded to keep this information from Juvenile Justice officers, who assessed him as being in medium to high risk category of re-offending - difficulty in coming to terms with death of mother - no finding of good character - no priors.
Whether sentence manifestly excessive - whether error in sentencing applicant according to law rather than pursuant to provisions of Div 4 Pt 3 Children (Criminal Proceedings) Act 1987.
Appeal dismissed. Variation made to dates of expiration of NPP & head sentence because of applicant being on bail for some months.
246

WOOD, Florence June - CCA, 22.6.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Wood [2005] NSWCCA 233
Sentence appeal.
Social Security fraud (3 offences under s.29D Crimes Act 1914, Cth; 1 offence under s.135.1(5) Criminal Code 1995, Cth).
Applicant was sentenced to 1 month on each charge, the sentences for the s.29D offences were made cumulative & the sentence for the s.135.1(5) offence made concurrent, resulting in a total sentence of 3m.
The offences were committed using applicant's former married name & current married name.
Aged 71 at time of sentencing - in poor health (asthma, coronary heart disease, osteo-arthritis) - depression - suicidal - has a mentally retarded daughter, resulting in substantial discount in sentence.
Short custodial sentences imposed - whether effect of sentence upon retarded daughter so exceptional as to require non-custodial sentences - whether manifestly excessive.
Appeal dismissed. Because of applicant being on bail since the date sentence was imposed, it was necessary to recommence the sentences & specify the dates for the commencement & expiration of the sentences.
247

JJS - CCA, 9.6.2005
Studdert, James & Howie JJ
Citation: R v JJS [2005] NSWCCA 225
Sentence appeal.
1 x assault with act of indecency.
5y GBB.
The offence was committed upon applicant's 3 year old female cousin. The victim's father had left his 2 young children in the care of the applicant for 15 minutes. When he returned, he found the 3 year old victim naked & lying on her stomach on a bed. He saw that the applicant had an erect penis & was not wearing shorts. He also saw a quantity of fluid around the lower back & upper hip region of the victim. The victim's father then hit the applicant, who ran away. The father contacted the police, who attended. The Department of Community Services also attended. The young victim was subsequently examined by a paediatrician. There was no evidence to suggest any form of sexual penetration had occurred.
Aged 14 at time of offences - guilty plea - disturbed family background - mother a schizophrenic - breakdown of parents' marriage - living with maternal grandparents at time of offences.
Appeal allowed: current bond quashed; applicant ordered to enter into a new conditional GBB within 7 days to take effect from date of execution & expire on 2.8.2007.
248

COHEN, Christopher Lawrence - CCA, 28.6.2005
Santow JA, Hidden & Adams JJ
Citation: R v Cohen [2005] NSWCCA 230
Application by DPP to re-open matter to correct a sentencing error pursuant to s.43 Crimes 9Sentencing Procedure) Act 1999.
The CCA delivered judgment on 12.9.2002 in an appeal against conviction & sentence: see R v Cohen [2002] NSWCCA 339. At the time of the appeal, the issue in relation to the commencement date of the sentences was not raised & the appeal was dismissed without consideration of the issue. Essentially, the issue concerned the fact that the trial judge made an error in dating the sentence from the date of arrest, which he stated as being 3.5.2001, when that date was incorrect & should have been 3.5.2000.
Application allowed: matter re-opened, sentencing error corrected.
249

NGUYEN, Van Xuan - NSW SC, Johnson J, 23.6.2005
Citation: R v Nguyen [2005] NSWSC 600
Remarks on Sentence.
Manslaughter.
The agreed statement of facts disclosed that the accused was involved in an extended joint criminal enterprise in that he agreed with the 'shooter'to commit a minor assault & participated by being present, aiding another to commit the agreed act & being an accessory before the fact to commit the agreed act. During the agreed act, the 'shooter'shot & killed the deceased; the accused contemplated that the 'shooter'might, while committing the agreed act, intentionally commit an unlawful & dangerous act & despite this contemplation did not withdraw from the agreed act. Both the Crown & defence counsel submitted that a finding should not be made, beyond reasonable doubt, that the prisoner was aware that the accomplice was in possession of a handgun.
The 'shooter'faced trial on a charge of murder & a charge of attempted murder (malicious wounding in the alternative to this charge). He was acquitted on all counts.
Guilty plea - involvement in extended joint criminal enterprise - prospect of deportation not relevant on sentence - finding of 'special circumstances'based upon onerous nature of imprisonment.
Sentenced to 6y with a NPP of 4y.
250

SMITH, Wayne Daniel - CCA, 7.6.2005
Studdert, James & Howie JJ
Citation: R v Smith [2005] NSWCCA 236
Crown appeal against a deferral of sentence order made by her Honour Judge English in the District Court at Penrith on 7.3.2005.
In the LC on 4.2.2004, respondent pleaded guilty to breaking and entering a shop. The orders made in the DC by her Honour on 7.3.2005 convicted the offender. For the purpose of assessing the respondent's capacity & prospects for rehabilitation, she determined to adjourn the sentencing proceedings pursuant to s.11 of the Crimes (Sentencing Procedures) Act 1999 for 10 months to allow him to undergo rehabilitation.
Both appellant & respondent sought an order that the matter be returned to the DC to permit the sentencing process to be embarked upon de novo.
Determination in R v Palu (2002) 134 A Crim R 174 - necessity for sentencing judge to make findings of fact before making order under Crimes (Sentencing Procedure) Act - miscarriage in sentencing process.
Appeal allowed: order made by sentencing judge quashed; pursuant to s.12(2) Criminal Appeal Act sentencing proceedings returned to the DC of NSW.
251

HUGHES, Karl Stuart - CCA, 20.6.2004
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Hughes [2005] NSWCCA 235
Sentence appeal.
1 x supply heroin (12.9 grams); 1 x knowingly take part in supply of methylamphetamine (6.68 grams).
Total sentence of 4y 4m with a NPP of 2y 9m.
The charges of supply were based on the deemed supply of the drugs, although applicant admitted that he intended selling the methylamphetamine. The sentencing judge accepted the applicant's evidence that the heroin was for his own use & the use of his de facto wife & that the sale of the methylamphetamine was to pay for the heroin. The supply of the methylamphetamine by way of sale was on a 'need not greed'basis.
Aged 44 at time of sentencing - guilty plea at earliest opportunity - 25% discount given - on parole at time of offending - long-standing addiction to heroin - objective seriousness of offences - need for general deterrence - long criminal history - previous imprisonment.
Whether sentence excessive.
Leave to appeal refused.
252

NASHER, Mohamed - CCA, 28.6.2005
Grove, Hoeben & Hall JJ
Citation: R v Nasher [2005] NSWCCA 238
Sentence appeal.
Aggravated robbery (inflict GBH).
6y with a NPP of 3y.
The victim & the applicant were known to each other. The applicant & his companions attacked the victim & robbed him of some gold jewellery, a Seiko wristwatch & $100 in cash. Applicant said that he was jealous of the victim's apparent success in having material possessions. The victim suffered fractures to his jaw, which required pinning. Those fractures were attributed to the applicant striking the victim.
Aged 18 at time of offence - guilty plea - claimed to have been abused as a child - depression - good prospects of rehabilitation - special circumstances.
Ambiguity as to whether pre-sentence custody taken into account - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2y.
253

HILLSLEY, Jeffrey John - NSW SC, Hidden J, 4.7.2005
Citation: R v Hillsley [2005] NSWSC 652
Remarks on Sentence.
1 x murder; 4 x aggravated sexual assault of child aged 10; 1 x kidnap.
Offender attacked the deceased & inflicted a number of blows to the deceased's head with a hammer. This was a sustained & ferocious attack. The offender claimed that the attack was pay-back because the deceased had not paid him for some work he had done. The offender then kidnapped the deceased's 10 year old step-daughter & sexually assaulted her a number of times. The offender had sexually assaulted the child on a previous occasion when he was staying at the deceased's home for a few days over Christmas. The offender said that the kidnapping & sexual assaults upon the child were also committed as pay-back. He said he did this because he knew that the deceased was very fond of his step-daughter.
Offender has a history of sexually assaulting young female children, as well as kidnapping young female children & then sexually assaulting them.
Aged 53 at time of sentence - guilty plea - history of paedophilia - relevance of offences against child to criminality of murder - consideration of life sentence.
Sentenced to 30y with a NPP of 25y.
254

YOUKANA, John - CCA, 24.6.2005
Spigelman CJ, Hune AJA, Howie J
Citation: R v Youkana [2005] NSWCCA 231
Sentence appeal.
AOABH of a police officer acting in the execution of his duty.
22m with a NPP of 16*m.
The applicant was convicted & sentenced for the above offence following a retrial.
An off-duty police officer saw the applicant prevent a man (Murphy) from boarding a train at Central railway station. Murphy made a complaint to an employee of State Rail & the applicant was requested to get off the train. The applicant was with 4 other males at the time. The police officer saw the applicant walk past Murphy & punch him in the mouth & then walk towards a set of steps. The police officer told the applicant he was a police officer & that he was under arrest. He had hold of the applicant around the neck from behind. The applicant began pushing up against the police officer in an attempt to get away. Applicant's male companions approached & one of them punched the police officer to the left side of the face. Both the police officer & the applicant fell to the ground. The applicant was pulled from the grip of the police officer by one of his companions. The applicant & the other males then ran down a set of stairs & through other parts of the station. This was all captured on CCTV. Less than a month later, the applicant & the man who punched the police officer were seen in George Street, Haymarket & were arrested.
The police officer suffered injuries to his nose, mouth & teeth, including a fracture to his left upper jaw & a damaged nerve to his left cheek. He continues to suffer numbness & loss of feeling in the area of his left cheek, which is permanent & irreversible.
Aged 25 at time of offence - joint criminal enterprise - history of drug abuse - remorse - willingness to undergo counselling - full-time employment as a tyre fitter - priors.
Time served - finding facts after charge bargain - double jeopardy - rehabilitation - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to 19m with a NPP of 10m.
255

AN - CCA, 6.7.2005
James, Howie & Rothman JJ
Citation: R v AN [2005] NSWCCA 239
Application for leave to appeal against limiting term imposed in the DC.
1 x detain with intent to hold for advantage (s.90A Crimes Act) - 8y to date from 29.4.2004;
1 x aggravated sexual assault (s.61J Crimes Act) - 5y to date from 29.4.2004.
Applicant was committed for trial to the DC on 28.11.2001. Before his arraignment, a question of his fitness to be tried arose. On 13.9.2002, following a hearing before a judge alone, Judge Finnane QC found that the applicant was, by reason of his mild to moderate intellectual disability, unfit to be tried. His Honour was satisfied that the applicant's disability precluded him from fully understanding the nature of the proceedings or from giving instructions to his legal representatives. On 27.2.2003, the Mental Health Review Tribunal determined that the applicant would not become fit within a period of 12 months. On 22.5.2003 the Attorney General directed that a special hearing be conducted in respect of the charges. That hearing was determined by a judge alone, Judge McGuire QC, between 13.10.2003 & 14.11.2003. On 14.11.2003 the Judge found, in accordance with s.22(1) of the Mental Health (Criminal Procedure) Act, that on the limited evidence available the applicant committed the offences charged. On 29.4.2004 he specified limiting terms under s.23(1) of that Act.
Whether error in placing too much weight on general deterrence when determining length of limiting term - age - immaturity - intellectual functioning - prospects of rehabilitation - delay in fixing limiting term - whether limiting term manifestly excessive.
Appeal allowed: new limiting terms imposed:-
Offence under s.90A - 3y to date from 29.4.2004;
Offence under s.61J - 4*y to date from 29.4.2004.
256

WATKINS, Thomas Douglas - CCA, 1.6.2005 - 153 A Crim R 434
Grove, Barr & Howie JJ
Citation: R v Watkins [2005] NSWCCA 164
Conviction and sentence appeal; and
Crown appeal against inadequacy of sentence.
30 x offences of fraud (being an officer of a body corporate, deposit cheque to credit of own bank account with intent to cheat and defraud).
Sentence not stated.
On 30 occasions over a period of almost 3 years, appellant wrote cheques in the course of his employment as a corporate finance officer & then had them signed by a director. After the director signed the cheques, the applicant would insert his own name as payee & deposit them into his own bank account. The amounts varied between $39,000 & $240,000. The total amount defrauded was $1,911,000. In 1984, the appellant was convicted of 37 counts of larceny as a clerk. Those offences involved the appellant misdirecting corporate cheques in his capacity as an accountant. At trial for the instant offences, the Crown adduced tendency & coincidence evidence in accordance with ss.97 & 98 Evidence Act 1995. The evidence consisted of details of 37 previous convictions for fraud in 1985.
Aged 61 at time of instant offences - heavy gambler - priors - previous imprisonment.
Prior similar offences - tendency & coincidence evidence - difference in facts - similarities - whether evidence wrongly admitted - whether trial miscarried.
Conviction appeal allowed: new trial ordered.
257

BAXTER, Shane Raoul - CCA, 28.6.2005
Grove, Hoeben & Hall JJ
Citation: R v Baxter [2005] NSWCCA 234
Sentence appeal.
5 x BE&S; 1 x aggravated BE&S (use of corporal violence); + Form 1 (1 x steal MV; 1 x make false statement to obtain money; 1 x goods in personal custody suspected of being stolen).
Total sentence of 6*y with a NPP of 4*y.
The above offences were committed over a period of a little more than 2 years. The most serious offence, the aggravated BE&S, was perpetrated upon a residence in which an elderly retired couple lived, the male victim suffering from the effects of a stroke.
Aged 38 at time of appeal - guilty pleas - subjective features - heavy drug user - motor accident - head injuries - possible brain damage - psychiatric difficulties resulting from heavy substance abuse - retribution - general deterrence - protection of community - multiple priors - previous imprisonment.
Whether error in determining utilitarian value of guilty plea & in assessing aggravating features of offence - totality.
Appeal dismissed.
258

MADIGAN, Andrew Paul - CCA, 9.6.2005
Wood CJ at CL, Grove & Hoeben JJ
Citation: R v Madigan [2005] NSWCCA 170
Conviction appeal.
Aggravated B&E and commit serious indictable offence of larceny (in company with co-offender).
4y with a NPP of 2y (co-offender sentenced to 3y with NPP of 18m).
The above offence was committed upon the Australian Reptile Park at Somersby.
The Crown case depended essentially upon the product of a listening device that had been installed at the appellant's home, upon physical surveillance evidence & upon the evidence of appellant's girlfriend.
Whether error in admitting surveillance log book into evidence - whether error in admitting voice identification evidence - admission of expert evidence - whether miscarriage.
Appeal dismissed.
259

NGUYEN, Chi Binh - CCA, 30.6.2005
Simpson, Buddin & Hall JJ
Citation: R v Nguyen [2005] NSWCCA 232
Sentence appeal.
1 x maliciously inflicting GBH; 1 x affray; 2 x maliciously damage property (motor vehicles).
Total sentence of 14y 3m with a NPP of 11y 3m.
The offence involved a vicious attack upon a defenceless young man by applicant & his co-offenders. The ferocity of the attack upon the victim was such that ambulance officers described finding fragments of skull & brain matter at the scene. The young victim was unconscious & in a critical condition, his injuries included multiple bruises over his face & scalp, lacerations requiring suturing & abrasions & bruising of the neck & right shoulder. The most severe injury was a depressed skull fracture resulting in serious & permanent brain damage.
Applicant's 2 co-offenders were each convicted of 2 charges (s.33 offence & affray). They each received a total sentence of 16y with a NPP of 12y. They were successful in their appeals against sentence & each was resentenced to a total of 13y with a NPP of 9y.
Aged 19y 4m at time of offending - guilty pleas - received 25% discount - extensive criminal record, including offences of violence - on a bond at time of offending - prospects of rehabilitation doubtful.
Parity - sense of grievance - error in accumulation of sentences - whether sentences manifestly excessive.
Appeal allowed in part: new total sentence of 13y 4m with a NPP of 10y.
260

AMURAO, Jose Gulpa - CCA, 18.2.2005
Ipp JA, Hulme & Hislop JJ
Citation: R v Amurao [2005] NSWCCA 32
Sentence appeal.
Possess firearm with defaced identification number - 2y FT; possess firearm without licence/permit - 2y FT; possess ammunition without licence/permit (fine); supply amphetamine (deemed) - 3y FT; supply methylamphetamine - 5y FT; knowingly take part in supply of methylamphetamine - 9y with NPP of 5y 9m; + Form 1 (goods in custody).
Total sentence of 10y with NPP of 6y 9m.
NSW police established 'Strike Force Turkana'to investigate suspected illegal activities of a 'Sing Ma'crime gang. As part of those investigations, a number of phone calls were lawfully intercepted. In one, applicant confirmed the supply of crystalline methylamphetamine & organised delivery & the exchange of money. At a later date, another series of phone calls, some of which applicant was a party, were intercepted. Undercover police officers then participated in a drug/money exchange, gaining possession of 140 grams of crystalline methylamphetamine.There was little expressly stated in the statement of facts to link the applicant to this transaction, although it was said that he was outside the nearby hotel. This transaction was the subject of the 6th count. At around the same time that applicant was arrested, a police search of him revealed him to be in possession of $3,050 in cash. A subsequent search of his home revealed 10 grams of crystalline methylamphetamine, a pistol with a defaced serial number & 13 rounds.
Aged 48 at time of offending - plea at earliest opportunity - born in Philippines - attained electrical engineering degree in Philippines - not recognised in Australia - attained qualification as air-conditioning contractor, worked at St Vincent's Hospital, employing 2 people - married with 4 children - claimed addiction to amphetamines - genuine remorse - no priors.
Totality - special circumstances - Judicial Commission statistics.
Appeal allowed: new total sentence of 9y with a NPP of 6y 4m.
261

MINANI, Habura - CCA, 8.7.2005 - 63 NSWLR 490; 154 A Crim R 349
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Minani [2005] NSWCCA 226
Appeal against determination of not guilty by reason of mental illness.
Appellant was charged with wounding with intent to inflict GBH. He was found unfit to be tried & a special hearing pursuant to the Mental Health (Criminal Procedure) Act 1990 was directed. Appellant made an election in accordance with that Act for the special hearing to proceed before a judge alone. There was material in psychiatric reports relating to the defence of mental illness giving rise to some concern as to whether he was competent to make the election. The judge made no inquiries of those appearing for him as to whether they had obtained any psychiatric assessment of his competence to make that election. Psychiatric reports tendered in relation to the defence of mental illness did not address the issue. Appellant was found not guilty on the ground of mental illness.
Section 21A Mental Health (Criminal Procedure) Act not satisfied - not mere procedural irregularity, but error of such fundamental importance that order pursuant to s.7(4) Criminal Appeal Act 1912 inappropriate - purpose of s.7(4) - relevance of evidence relating to mental illness to specific intent.
Appeal allowed: determination made in the DC quashed. Subject to any determination made by the Mental Health Review Tribunal, there is to be a fresh special hearing against the appellant. In the event that the appellant is held to be fit to be tried, there is to be a trial of the charge against him.
262

WHITE, Clarence Herman - NSW SC, Studdert J, 8.7.2005
Citation: R v White [2005] NSWCCA 667
Remarks on Sentence.
Murder; + Form 1 (2 x BE&S; 1 x B&E with intent to steal; 1 x attempt B&E with intent; 1 x enter dwelling with intent).
The 82 year old deceased lived at her home in Katoomba. Her daughter, son-in-law & their 3 children also lived there. They found the deceased's body when they returned from a visit to Jindabyne. Medical evidence revealed deceased had died earlier that day. Her body was found in the hallway of her home with a garment tied around her head, covering her mouth & nostrils. Another garment was tied around her wrists & her legs were tied together above the ankles with black cable. A post-mortem examination revealed injuries to her head with the skin split, revealing the skull. There was a fracture to the left side of her nose & a small fracture across the base of her skull from the roof of the orbit of the left eye with associated bruising on the left side of the nose & the tissue beneath the eyebrow. There was evidence of brain injury, with blood over the surface of the brain & a very small area of bruising towards the temporal area. There was further injury on the back of the head on the right side with grazing & underlying bruising. There was also bruising of her left breast & bruising of her right wrist. There was a laceration of the right hand ring finger, consistent with a ring having been pulled from her finger.
Aged 36 at time of sentence - guilty plea - reckless indifference to human life.
Unstable upbringing - lengthy criminal history, including offences of violence - unfavourable Probation and Parole Service pre-sentence report - heroin use since age 15 - estimated he had had approx 15 relationships - fathered 11 children, but sees none of them - limited period of employment - Form 1 offences committed after the murder.
Sentenced to 24y with a NPP of 18y.
263

GAGALOWICZ, Matthew - NSW SC, Adams J, 8.7.2005
Citation: R v Gagalowicz [2005] NSWSC 675
Remarks on Sentence.
Manslaughter.
The offender stood trial upon a charge of murder, however, the jury returned a verdict of not guilty of murder but guilty of manslaughter. This offence involved 'a frenzied, uncontrolled attack of extreme violence'The deceased suffered extensive fatal head injuries as a result of the offender inflicting multiple blows. The offender then dismembered the deceased's body & buried the dismembered parts in the back yard. There was evidence of lucid planning in cleaning up all traces of evidence of the killing & dismembering. There was also evidence of offender directing others that in order for them not to be implicated in the crime, they should not be present when he disposed of the body & cleaned up.
Aged 19 at time of offence - guilty plea - drug addiction - was not under influence of drugs at time of offence - diabetic - irregular use of insulin - offender intended killing deceased - reasoning substantially distorted by mental condition - loss of self-control - violence 'simply too extensive'for possibility of intending only to cause GBH.
Sentenced to 8y with a NPP of 4y.
264

TSIAOUSIS, Steven - CCA, 4.7.2005
Wood CJ at CL, Grove & Rothman JJ
Citation: R v Tsiaousis [2005] NSWCCA 240
Sentence appeal.
Aid and abet importation of trafficable quantity ecstasy.
8y with a NPP of 5y.
Applicant was working as a security officer at a leagues club. He was a user of ecstasy & was in debt as a result of gambling & financial mismanagement. A man approached him & asked whether he would be interested in receiving ecstasy tablets from the UK for delivery to a distributor. He said he would be paid $2,000 for each consignment received. The applicant agreed. During a period of 2* months, 4 packages containing ecstasy concealed in hair products arrived by mail from the UK addressed to the applicant's residence. All 4 packages were intercepted by authorities. The total contents were analysed & found to contain 290 grams pure MDMA (ecstasy). Police executed a search warrant at applicant's premises. A package from the UK, similar to those intercepted, was found. Forensic examination established no trace of narcotic & it was concluded that this package had been sent to the applicant as a 'dummy run'Police arrested & interviewed the applicant, who made full admissions about his agreement to act as a 'post box'for the importation of the drug. The applicant had never met or had contact with the man who was the actual importer. He had no contact with the man who approached him in the first place & had never received any payment.
Aged 33 at time of offending - single - insignificant prior record - prior good character.
Error in following R v Kevenaar & Ors [2004] NSWCCA 210 rather than R v Mas-Rivadavia [2004] NSWCCA 284 when determining appropriate sentence - sentence manifestly excessive.
Appeal allowed: resentenced to 6y with a NPP of 3y 9m.
265

JEANS, Anthony John - CCA, 6.7.2005
Spigelman CJ, Grove & Bell JJ
Citation: R v Jeans [2005] NSWCCA 73
Application for leave to appeal against interlocutory order that the question of applicant's unfitness to be tried be set down for hearing by a judge & jury.
The order was made by the judge following the dismissal of a motion brought by the applicant for an order permanently staying proceedings on an indictment charging him with sexual offences that were alleged to have been committed between 1 & 4 May 1998.
Appeal dismissed.
266

KNIGHT, Mark Dempsey - CCA, 14.7.2005
Grove, Howie & Rothman JJ
Citation: R v Knight [2005] NSWCCA 241
Conviction and sentence appeal.
Murder.
22y with a NPP of 16*y.
The Crown case was a circumstantial one, relying principally upon forensic evidence, in particular DNA evidence, to identify the appellant as one of the persons involved in the attack upon the deceased that resulted in his death. The appellant & at least one other inmate entered the deceased's cell & stabbed him repeatedly with a sharp instrument. There were 20 identifiable stab wounds to the neck, chest & abdomen. There were 3 closely grouped wounds in about the middle of the chest. The deepest of them was 85mm long & damaged the heart & the aorta. There were wounds all over the deceased's hands, fingers & forearms. During the attack the appellant's right hand was pierced through & bled freely onto the floor of the deceased's cell & the boots that the appellant & another inmate were wearing. The evidence showed that there were at least 2 attackers. No weapon was found. The number of stab wounds & cuts on the body of the deceased suggested that the attackers had more than one weapon, but it was not possible to categorically say so. The jury were told that they could find the offender guilty if he took part in the attack or was present, assisting or encouraging it or standing by ready to assist. The sentencing judge concluded that the appellant played an active role in the attack. See also R v Knight [2004] NSWSC 498.
Failure to give direction on absence of motive in circumstantial case - failure to give warning under s.165 Evidence Act on the basis that witness may be biased - whether verdict unsafe - whether sentence manifestly excessive.
Appeal dismissed.
267

MASSEI, Marcelo Dario - NSW SC, Adams J, 13.7.2005
Citation: R v Massei [2005] NSWSC 695
Judgment.
Application by Crown to withdraw acceptance of guilty plea to manslaughter & permission to present a fresh indictment against the accused for murder.
Accused was arraigned upon an indictment charging him with the murder of his wife. He entered a plea of not guilty of murder but guilty of manslaughter. The Crown prosecutor accepted the plea to manslaughter in satisfaction of the indictment. Adams J then formally entered a conviction of manslaughter. The Crown prosecutor indicated that the plea to manslaughter was accepted on the basis of the accused not being able & lacking the capacity to distinguish right from wrong at the time of the killing. It was submitted by the prosecutor that this did not amount to a complete defence, although 'it is close'The Crown prosecutor submitted a psychiatric report. Sentence proceedings were adjourned so that defence counsel could obtain psychiatric reports.
Whether Crown may withdraw acceptance of plea of guilty to manslaughter - fresh evidence - difference of medical opinion concerning accused's mental capacity - interests of justice.
Motion refused: conviction for the crime of manslaughter confirmed.
268

OLSEN, Shane Barry - CCA, 14.7.2005
Studdert, Kirby & Howie JJ
Citation: R v Olsen [2005] NSWCCA 243
Sentence appeal.
1 x maliciously inflict GBH with intent; 1 x AOABH.
Total of 9y with a NPP of 5*y.
Applicant inflicted a number of injuries on a 3* child who had been left in his care while the child's mother was on a visit to see her premature baby who was still in hospital. When the mother returned to the house, she saw that the child was injured. She took the child in order to seek medical help. The applicant attacked the mother in the driveway & pushed her to the ground. A struggle ensued & the applicant poked the mother in the eye & pulled out some of her hair. He took the child off the mother & returned with him to the house. When the applicant was asleep, the mother sought help from a neighbour & a friend. Police were contacted & the child taken to hospital for treatment. Upon medical examination, the child was found to have 57 areas of injuries. In particular he had suffered intra-retinal haemorrhages & flexion extension injuries to the neck, indicating that he had been severely shaken. The child was also suffering from dehydration. The injuries inflicted indicated that there had been a large number of forcible impacts with the child's body. He had bite marks to the right & left thighs & the impression of an adult hand mark on his left cheek. The child required re-hydration for 2 days & remained in hospital for 2 weeks.
Aged 29 at time of offences - priors, including a number of offences of violence, also one of assault police - previous imprisonment.
Whether error in taking applicant's criminal record into account as an aggravating feature - whether error in sentencing applicant on the basis of harm for which he was not responsible.
Appeal dismissed.
269

KWOK, Daniel Sweeseang - CCA, 15.7.2005 - 64 NSWLR 335; 158 A Crim R 160
ONG, Jenny Lai Chin
TAN, Raymond Aik Tong
YOE, Hosea Paryud Saputra
Hodgson JA, Howie & Rothman JJ
Citation: R v Kwok; R v Ong; R v Tan; R v Yoe [2005] NSWCCA 245
s.5F appeal against a DC decision refusing an application by the Crown for non-publication orders.
The 4 accused are presently standing trial for conspiracy to cause various females to be placed into sexual servitude, pursuant to ss.11.5 & 270.6(1) of Criminal Code Act 1995 (Cth). The Crown proposes to call evidence from 9 female complainants. On 28.6.2005, the Crown successfully applied for a non-publication order in relation to the name & identity of the 1st female complainant. In making the order, the trial judge treated her as being in the category of an informer on the grounds that she subsequently became involved in the alleged conspiracy & is now serving a gaol sentence. On 4.7.2005, the Crown's application for non-publication orders in respect of the name & identity of the other complainant witnesses was refused by the trial judge on the grounds that the DC does not have the implied power to make the order sought & that the matters raised in support of the application did not warrant the making of such orders. On appeal, the Crown claimed that the rationale behind the implied power to make non-publication orders in categories of informers, blackmail & national security apply equally to the present case.
Appeal allowed: Order refusing any non-publication order set aside. Matter remitted to the DC.
270

DELLA-TORRE, Carl Anthony - NSW SC, Hulme J, 29.6.2005
Citation: R v Della-Torre [2005] NSWSC 703
Judgment.
Special hearing.
Murder.
Offender killed his grandmother because she denied him accommodation. At the time, he had nowhere to stay, having been evicted from Matthew Talbot Hostel. He said he had no-one else to turn to, was homeless & had no money. He said he killed his grandmother because he was angry. He said he punched her, trod on her then cut her throat to make sure she was finished & not in pain.
Aged 31 at time of offending - long-standing drug addiction - personality problems - chronic symptoms of mental illness - lack of rationality - substantially impaired by abnormality of mind arising from an underlying condition.
Decision: Not guilty by reason of mental illness.
271

TAYLOR, Darren Rodney - CCA, 28.6.2005
Grove, Hoeben & Hall JJ
Citation: R v Taylor [2005] NSWCCA 242
Sentence appeal.
BE&S; armed robbery.
Total of 7*y with a NPP of 5y.
The 18 year old applicant was staying with his mother. He & a co-offender broke into the house of his mother's neighbour & removed the neighbour's safe. The neighbour was the President of Tamworth Pistol Club & kept a number of weapons in the safe. Applicant & the co-offender went to the co-offender's home where they, in company with another man, tried to open the safe. They were unsuccessful & acquired the assistance of a 4th man who used tools to open the safe. The safe contained mainly weaponry. The 2nd offence occurred some days later when the applicant & 2 co-offenders went to a house on information that the occupants had hydroponically grown marijuana. Their faces were disguised & each was armed with a pistol. Some violence was administered & one of the occupants was struck on his back with a weapon. The occupants of the house denied they had any drugs & the offenders left. One co-offender took a wallet & cigarettes. The offences came to light when the man who had broken open the safe contacted Crimestoppers.
Error in taking into account as aggravating factors matters which were elements of the offence - parity - long delay in being tried owing to findings of unfitness to be tried - significant mental health issues - whether sentences manifestly excessive.
Appeal allowed: resentenced to total of 5y with a NPP of 3y.
272

REIS, Marlene Xenia - NSW SC, Mathews AJ, 15.7.2005
Citation: R v Reis [2005] NSWSC 707
Reasons for verdict.
Special hearing.
Murder.
Accused was charged with murder following the stabbing death of her husband on the Gore Hill Freeway. The accused & the deceased had been separated for 2 years at the time of the offence & the deceased had custody of their daughter. The accused became fixated with the idea that the deceased was trying to poison her as she was not feeling well. She was also convinced that someone was trying to break into her unit. She later became obsessed with the idea that the deceased was sexually & physically abusing the daughter & was using the daughter for video pornography. After the killing of the deceased, the police investigated & found there was no basis for the assertions.
Psychiatric evidence - suffering from severe illness consisting either of a delusional disorder or schizophrenia - drug abuse - deprived of the ability to know her actions were morally wrong - defence of mental illness available.
Verdict: Not guilty by reason of mental illness. Special orders made under s.39 Mental Health (Criminal Procedure) Act 1990.
273

WKD - NSW SC, Mathews AJ, 29.6.2005
MJN
Citation: R v WKD and R v MJN [2005] NSWSC 694
Remarks on Sentence.
Manslaughter.
Accused faced trial on charges of murder and aggravated robbery. The jury returned verdicts of not guilty of murder but guilty of manslaughter. Both accused were acquitted of aggravated robbery. The deceased sustained extremely serious head injuries during an altercation at his home. A number of his belongings were stolen. The deceased was found several hours later & was taken to hospital in an unconscious state. He died 5 days later. By this time, it was known that the 2 accused had been responsible for the deceased's injuries. A significant preliminary issue at trial was whether the injuries sustained by the deceased caused his death & considerable evidence was called which served to emphasise the extreme violence & force with which the deceased had been struck.
WKD: Aged 18 at time of offending - Aboriginal - left school during Year 10 - supportive family - talented musician - taught music & craft to children - had a previous long-term relationship & has 2 sons - alcohol abuse - no real remorse - priors - a month after instant offence, sentenced to imprisonment for an unrelated offence.
MJN: Aged 15 at time of offending - Aboriginal - left school after completing Year 9 - supportive family - consumer of alcohol & marijuana in very large quantities - expressed considerable remorse & regret for the killing - no relevant criminal history.
Sentences:
WKD - Total sentence of 13*y with a NPP of 9y;
MJN - Total sentence of 7y with a NPP of 3*y, to be served in a juvenile detention centre.
274

BARRASS, Frederick John - CCA, 13.4.2005
Dunford, Simpson & Hidden JJ
Citation: R v Barrass [2005] NSWCCA 131
Stated case by Norrish DCJ pursuant to s.5B Criminal Appeal Act, arising from appellant's appeal to the DC against his summary conviction of 2 charges of committing an act of indecency towards a person under the age of 10 years. The DC judge submitted 2 questions of law for determination:
'1. Does an offence of committing an act of indecency 'towards'another person pursuant to s61O(2) of the Crimes Act 1900 NSW on its proper construction require that a relevant act of indecency be committed in the immediate physical presence of the victim?
2. If so, did I err in law in holding that, in the circumstances of these alleged offences, the 'towards'element of the s61O(2) charges was established?'
The charges arose out of the same incident & involved 2 young schoolgirls, both aged 6, who were travelling in a bus with other school children, several teachers & some parents. The 2 complainants were sitting together in the rear seat on the driver's side of the bus. A MV was travelling adjacent to the bus in a position beside the right-hand rear of the bus. The children saw the appellant pull his pants down to his knees & then manipulate his penis. The appellant smiled at the 2 children & carried on 'wiggling'his penis by moving it with his hand. The issue for determination was whether indecent conduct 'towards'a person within the meaning of s.61O(2) had to be conduct perpetrated in the immediate presence of the victim/s, such that there was a prospect of physical contact between them. It was argued that that element could not be established in this case because the appellant & the complainants were in different vehicles. However, the DC judge held that to whatever extent proximity between the offender & the victims was a requirement, it was met in this case. He found that the appellant's conduct was 'towards'the complainants in the relevant sense by reason of that proximity & the fact that he could see the complainants & they him & that he intended that they should see what he was doing.
First question answered: 'No'; second question not answered; matter remitted to DC.
275

POTTER, Malcolm Huntley - CCA, 6.7.2005
Grove, Howie & Rothman JJ
Citation: R v Potter [2005] NSWCCA 256
Application for bail - s.5F Criminal Appeal Act 1912.
Listing by applicant in person of misconceived application to review bail - ore tenus application on his behalf by counsel for bail to be granted - bail pending appeal - special or exceptional circumstances not shown - refused on merits - comment on undesirability of original bail applications being made to CCA - s.46 Bail Act 1978.
Application refused.
276

HUANG, Michael - CCA, 22.6.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Huang [2005] NSWCCA 244
Sentence appeal.
Supply heroin on an ongoing basis.
5y with a NPP of 3*y.
Applicant & his mother were arrested & charged following a controlled operation. Both were involved in a highly organised, ongoing heroin distribution business from their residential premises. The premises were fortified with metal bars over the windows, multiple deadlocks on external doors & metal security grills, with a hole cut in the rear security door through which heroin was handed to customers. A security video camera on the roof angled down the driveway was connected to a monitor in the lounge room.
Guilty plea not at 1st available opportunity - 15% discount - addicted to drugs from early age - avoided rehabilitation - at time of offending, subject to a number of GBB's for non-drug related offences.
Whether sentence manifestly excessive.
Appeal dismissed.
277

GEORGIOU, Constantinos - CCA, 4.7.2005
Santow JA, Hulme & Hidden JJ
Citation: R v Georgiou [2005] NSWCCA 237
Conviction and sentence appeal.
2 x supply methylamphetamine (105, 14.9gms); 1 x supply cocaine (52.28 grams); 3 x possess prohibited weapon (butterfly knife, electrical discharge device, nunchaku); 1 x possess prohibited article (handcuffs).
Total of 8y with a NPP of 6y.
Appellant was the subject of a 24 hour surveillance for a period prior to his arrest. Over that period, he engaged in large scale dealing in methylamphetamine & cocaine. The sentencing judge took the view that all the offences should be regarded as incidents of the appellant's drug dealing activities & that they should be regarded globally. The appellant appeared for himself on appeal & raised the following grounds:
1. The learned trial Judge erred in law in that he allowed into evidence purported transcripts of conversations allegedly between the Appellant and other persons when the Jury had available to it copies of the tape recordings from which those transcripts were purportedly made.
2. The learned trial Judge imposed sentences which were manifestly unfair in that the sentences -
(a) Were significantly longer than those imposed by Courts for similar types of offences.
(b) Were not on par with the sentences imposed on and did not properly differentiate between the circumstances applicable to the Appellant's co-accused.
Conviction appeal dismissed.
Sentence appeal allowed in part. This did not affect the total sentence & NPP, which remained the same.
278

KAIROUZ, Charbel - CCA, 22.7.2005
KAIROUZ, John
Wood CJ at CL, Grove & Rothman JJ
Citation: R v Kairouz & Kairouz [2005] NSWCCA 247
Sentence appeals.
1 x ongoing supply of methylamphetamine; 1 x supply methylamphetamine; 1 x supply cannabis.
Charbel Kairouz: total sentence of 6*y with a NPP of 4y 4m.
John Kairouz: total of 6y with a NPP of 4y.
The offences came to light as a result of a 9 month investigation by a Police Strike Force. The applicants were sentenced upon the basis of their involvement in a syndicate engaged in supplying methylamphetamine & cannabis. That syndicate was based at premises where they lived. Six other persons associated in the supply activities pleaded guilty to the offences & were subsequently sentenced.
Guilty pleas - sentences manifestly excessive - parity - insufficient weight given to subjective features.
Appeals dismissed.
279

SHEEHAN, Patrick Michael - CCA, 18.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Sheehan [2005] NSWCCA 250
Application for leave to appeal pursuant to s.5F(3) Criminal Appeal Act 1912 against an order by a DC judge refusing to adjourn applicant's trial.
Knowingly take part in sale of firearms or pistols; possess firearms or pistols.
Five other persons participated in the offences. Each has pleaded guilty & been sentenced.
Refusal of DC to adjourn trial - unavailability of witnesses - challenge to exercise of discretion.
Leave to appeal refused.
280

DUTTON, Bronwyn Gay - CCA, 20.7.2005
Studdert, Kirby & Howie JJ
Citation: R v Dutton [2005] NSWCCA 248
Crown appeal.
Dangerous drive causing GBH.
Suspended sentence of 2y with a NPP of 18m.
After drinking at a hotel in Manly for some hours, respondent was driving her car when it collided with a parked utility. The respondent's friend, who was in the front passenger seat, had her arm out of the window at the time. The passenger's left hand was severed from her arm as a result of the collision. The respondent continued a short distance before pulling to the side of the road. The passenger's hand was recovered & taken with her to hospital but attempts to re-attach it were unsuccessful. The passenger-side of the respondent's vehicle suffered substantial damage in the collision. People who approached the respondent's car after the accident noted that she was in a highly distressed state. When police arrived, they administered a breath test & asked if she had been drinking that night, to which she replied 'I'm well over'She said she had her last drink about 5 minutes before leaving the hotel. The police officer said that at the time the respondent smelt heavily of alcohol & was slurring her words. A blood sample was taken at hospital some 2* hours after the collision & returned a reading of 0.145. The respondent later said that she held herself responsible for the decision to drive but she did not believe she was over the legal limit.
Aged 28 at time of offence - shame - remorse - had increased consumption of alcohol to cope with various stress issues - one previous driving offence - criminal record contained convictions for drug offences - assessed as suitable for both community service & PD.
Suspended sentence - error in judge's finding as to culpability based upon blood alcohol reading taken 2* hours after the impact - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with NPP of 15m, to be served by way of PD.
281

FARRANT, Danielle - CCA, 22.7.2005
James, Howie & Rothman JJ
Citation: R v Farrant [2005] NSWCCA 229
Sentence appeal.
6 x make false instrument; 2 x obtain money by deception; + Form 1 (44 charges relating to either make false instrument or obtain money by deception).
Total sentence of 2y 9m with a NPP of 18m.
Appellant was employed by AGL in a position where she was responsible for paying the creditors of that company, for which AGL's electronic payment system was utilised. During a 3 year period, she defrauded AGL by causing payments to be made to a creditor of AGL when in fact no money was owed by AGL. Following the cheque being issued, the appellant would obtain the cheque & erase the name of the payee, insert her own name & obtain the proceeds. This was accomplished by contacting the creditor, telling them that a mistake had been made & asking them to return the cheque. The appellant would send a courier to the creditor's premises to pick up the cheque & return it to her. The proceeds of the amount were deposited into her bank account. The appellant also used the company credit card to purchase personal items. The appellant's scheme was discovered when AGL employees noticed a large cheque for $79,114.49 had been presented against the company account which had some irregularities & contact was made with the creditor. The cheque was obtained by AGL from the bank after it had been deposited into the appellant's account. AGL management met with the appellant, her employment was terminated & police were called. Appellant made admissions & pleaded guilty to the offences at the earliest opportunity.
Significant breach of trust - need for personal deterrence - special circumstances - need for counselling - priors.
Whether failure to give any or any due consideration to totality principle - whether sentencing judge afforded excessive weight to previous criminal convictions in fixing appropriate sentence.
Appeal dismissed.
282

ABBOUD, Walid - CCA, 22.7.2005
Grove, Howie & Rothman JJ
Citation: R v Abboud [2005] NSWCCA 251
Crown appeal.
1 x AOABH; 5 x common assault.
Total sentence of 12m with a NPP of 6m.
The offences were committed upon the respondent's partner over a period of 15 days. The sentencing judge treated the offences as if they formed part of a single act.
Manifest inadequacy of sentence - breach of parole - criminal history - cumulative sentencing.
Appeal allowed: resentenced to a total of 2y 8m with a NPP of 15m.
283

SWAN, Anthony Dean - CCA, 22.7.2005
Grove, Howie & Rothman JJ
Citation: R v Swan [2005] NSWCCA 252
Sentence appeal.
1 x BE&S; 2 x receiving.
Total sentence of 2y 9m with a NPP of 2y 4m.
The BE&S was committed upon residential premises in Gunndedah while the occupants were away. Police attended appellant's premises some months later & discovered stolen goods from 2 BE&S offences.
Guilty plea - 20% discount - prior offences (dishonesty and/or violence) - significant drug problem.
Cumulative sentences - special circumstances - ratio of NPP.
Appeal allowed only on the NPP for receiving counts, resulting in a total sentence of 2y 9m with NPP of 2y.
284

MENDEZ Raymond - CCA, 22.7.2005 - 155 A Crim R 241
Studdert, Kirby & Howie JJ
Citation: R v Mendez [2005] NSWCCA 246
Crown appeal.
Deemed supply of commercial quantity methylamphetamine.
4y with a NPP of 3y.
While driving at night, respondent lost control of his vehicle & damaged it by mounting the footpath. He then fell asleep behind the wheel of the immobile vehicle until roused by police the following morning. He was searched by police & found to be in possession of $3,600 in cash & a plastic bag in his pocket containing 7 grams of methylamphetamine. Two other bags were found in the car containing 28.9 grams & 442.0 grams of the drug. The total drug weight was 478.8 grams with a purity of 84%. A conservative estimate of the street value of the drug was $670,000. Police also found other drug paraphernalia, including scales, a large number of resealable plastic bags & 2 mobile phones. The sentencing judge described the offence as being within "the middle range of seriousness" as that phrase is used in s.54B Crimes (Sentencing Procedure) Act 1999. The standard NPP for this offence is 10y.
Aged 22 at time of offence - tendency towards dependence on others for approval & self esteem - good prospects for rehabilitation - intelligent - ability to succeed - good employment record - supportive family.
Standard NPP - sentence 30% of standard NPP - no reasons for reduction - insufficient regard paid to deterrence - 'mitigating features'outweighed 'aggravating features'to 'a considerable degree'- failure to identify those features - sentence manifestly inadequate - principles on Crown appeal - double jeopardy.
Appeal allowed: respondent resentenced to 8y with a NPP of 5*y.
285

BOTTIN, Craig William - CCA, 25.7.2005
Studdert, Kirby & Howie JJ
Citation: R v Bottin [2005] NSWCCA 254
Sentence appeal - extension of time.
Armed robbery; specially aggravated enter with intent to commit serious indictable offence; attempt use offensive weapon with intent to prevent lawful apprehension; possess firearm without being authorised.
Total sentence of 11y with a NPP of 7y.
Armed with a firearm & wearing a black jacket, baseball cap & a stocking mask, applicant entered a car rental firm & demanded money & the keys to a Toyota motor vehicle. He then made his getaway in the vehicle. Some 3 months later, he committed the other offences.
Aged 34 at time of offending - mental illness - severe brain injury - cocaine abuse.
Psychiatric condition - failure to properly take into account - whether sentences manifestly excessive.
Appeal dismissed.
286

KNIGHT, Kerrie-Ellen Robyn - CCA, 27.7.2005 - 155 A Crim R 252
Mason P, Barr & Johnson JJ
Citation: R v Knight [2005] NSWCCA 253
Sentence appeal.
27 x BE&S; 3 x B&E with intent; 1 x dispose of stolen property; 4 x larceny; 1 x steal MV; + Form 1.
Total sentence of 4*y with a NPP of 3y.
The offences were committed over a period of 12 months & were directed at premises in country towns.
Aged 25-26 at time of offences - guilty pleas - on sole parent's pension & in receipt of maintenance for her 2 children at the time - children now living with their respective fathers -history of drug use - priors.
Whether sentence excessive - error in treating as aggravating factor under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 the fact that the offences were committed in company.
Appeal allowed insofar as applicant resentenced in accordance with principles in Pearce; total sentence and NPP remain unchanged.
287

DO, Thi Bach Tuyet - CCA, 22.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Do [2005] NSWCCA 258
Sentence appeal.
Import trafficable quantity heroin.
8y with NPP of 5y.
Applicant had earlier been sentenced to precisely the same term of imprisonment when she was previously convicted for the same offence. Her conviction for that offence was subsequently quashed in the CCA & a retrial ordered: see R v Do [2004] NSWCCA 137.
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 said 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. She took part in a further recorded interview some months later in which she retracted that account.
Aged 49 at time of sentence - no priors - lived a tragic life - no family - no support.
Sentence after retrial - whether error in sentencing judge regarding his sentencing discretion as fettered by the sentence earlier imposed - likelihood of deportation - extra-curial punishment.
Appeal dismissed.
288

ABS - CCA, 20.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v ABS [2005] NSWCCA 255
Appeal brought by the Crown against an order made in the DC adjourning sentencing proceedings pursuant to s.11(1) Crimes (Sentencing Procedure) Act 1999.
6 x aggravated sexual intercourse without consent (female under 16, under authority); + 4 similar charges on a Form 1.
The complainant is the respondent's stepdaughter. All the offences occurred within the family home when the complainant was aged between 12 & 14. The complainant was only 2 years of age when her mother & the respondent commenced living together. All the offences but one consisted of digital/vaginal penetration or penile/anal penetration. The remaining offence was an act of cunnilingus.
Aged 38 at time of appeal - guilty pleas at first available opportunity - full admissions - no prior convictions - rehabilitation - depression.
Objective gravity of offences - standard NPP - repeated nature of offences - R v Holyoak (1995) 82 A Crim R 502 - Form 1 offences needed to be taken into account - Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146 - offences continued over extended period of time - engaged in various forms of sexual misconduct - abuse of position of trust - R v BJW (2000) 112 A Crim R 1 - victim at vulnerable age - respondent instigated offences, engineered circumstances in which they were committed - R v CJP [2004] NSWCCA 188 - need to protect children, deterrence - R v Fisher (1989) 40 A Crim R 442; R v Burchell (1987) 34 A Crim R 149.
Appeal allowed: Order quashed; matter remitted to the DC.
289

DENIGRIS, Tony - CCA, 4.7.2005
James, Howie & Rothman JJ
Citation: R v Denigris [2005] NSWCCA 228
Sentence appeal.
1 x money laundering; 8 x obtain money by deception; 3 x make false instrument; 1 x obtain valuable thing by deception.
Total sentence of 6y with a NPP of 4y.
Over a 2* month period, appellant obtained a total of $354,211 from the Australian Guarantee Corporation (AGC) by submitting applications for loans to finance the acquisition of computer equipment, which did not in fact exist. In all but one of the applications, the purported applicant was a fictitious person for whom a false identity had been created. There was only one application where the applicant was a real person (applicant's co-offender). The amount of money dishonestly obtained on this occasion was the largest ($101,761). By the time the applicant was sentenced, the co-offender had repaid more than $40,000.
Aged 35 at time of offence - Italian, immigrated to Australia in 1964 - married with 5 children - some contrition - positive behaviour whilst in prison - multiple priors - previous imprisonment (PD).
Whether sentencing judge erred in failing to order concurrent sentences in respect of some charges - whether justifiable sense of grievance - parity - whether inadequate weight given to guilty pleas & assistance.
Appeal allowed in part: total of 6y with NPP of 4y unchanged.
290

HEFFERNAN, William Patrick - NSW SC, Hoeben J, 29.7.2005
Citation: R v Heffernan [2005] NSWSC 739
Remarks on Sentence.
Murder.
The offender killed the deceased by repeatedly striking him on the head with a piece of wood during a fight. Both the deceased & the offender were intoxicated at the time. At the time the offender struck the deceased with the piece of wood, there was eyewitness evidence that the deceased was on his knees.
Effect of self-defence, provocation & intoxication not reaching level to reduce offence to manslaughter - mitigating factors - objective seriousness of offence.
Sentenced to 14y with a NPP of 10y.
291

DF - CCA, 22.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v DF [2005] NSWCCA 259
Sentence appeal.
Robbery with offensive weapon; specially aggravated kidnapping (causing ABH).
Total of 5y with a NPP of 2*y, to be served in a juvenile detention centre.
Applicant & 4 co-offenders were driving in a stolen MV when they saw the victim standing in a carpark adjacent to his home. They stopped the stolen vehicle & 3 of the co-offenders, armed with a knife & a steel pole, approached the victim & stole property from him, including a wallet, palm computer, CD player & 2 mobile phones. The victim was then ordered to sit in the back seat of his own vehicle & the 3 co-offenders entered the vehicle, whereupon one co-offender drove the vehicle to a nearby shopping centre while the applicant & the other co-offender followed in the stolen vehicle. Upon being threatened by one of the co-offenders, the victim revealed his PIN number, as a result of which the 3 co-offenders withdrew $800 from his account. Whilst they were at the ATM, the applicant & the other co-offender were left to guard the victim. When the victim attempted to escape, the applicant leant into the vehicle & punched the victim, striking at least half a dozen blows to his face, causing substantial bruising. When the 3 co-offenders returned, the applicant & the co-offender with him returned to the stolen vehicle & followed the other co-offenders in the victim's vehicle to another location. At this location, all 5 offenders got out of the vehicles & began to discuss the victim's fate. The victim overheard them making plans to keep him for a couple of days , however, he was able to make his escape & went to a nearby house for help.
Aged 17 at time of offending - guilty pleas first entered in Children's Court, adhered to in DC -
Youth & rehabilitation - quantification of discount for guilty pleas - form of order.
Appeal allowed only to the extent of correcting the sentences imposed so that they conformed with the requirements of s.44 Crimes (Sentencing Procedure) Act 1990. Total sentence remained unchanged.
292

LAVENDER - HC, 4.8.2005 - 222 CLR 67;79 ALJR 1337
Citation: The Queen v Lavender [2005] HCA 37
On appeal from the NSW CCA: see R v Lavender [2004] NSWCCA 120.
Crown appeal against the decision of the CCA allowing a conviction appeal & entering a verdict of acquittal.
Manslaughter - involuntary manslaughter by criminal negligence - respondent killed a 13 year old boy by running over him with a front end loader - whether malice an element of the offence - relevance of former statutory requirement that indictment include a charge of maliciously killing for murder but not for manslaughter - interaction of provisions of the Crimes Act with the common law of punishable homicide - application of the defence of honest and reasonable mistake of fact to manslaughter by criminal negligence - distinction between murder and manslaughter.
Statutes - Interpretation - relevance of historical context in resolving questions of statutory construction - relevance of past amendments to Act - use of contemporary historical materials in statutory construction - relevance of the rule of strict construction of penal statutes - relevance of uniformity in the criminal law throughout Australia.
Sentencing - appeal on sentence - restoration of custodial sentence after entry of an acquittal by NSW CCA - whether parties now entitled to seek leave of CCA to appeal against sentence.
Appeal against conviction allowed: Conviction restored. Orders postponed for 28 days to allow sentence appeal to CCA.
293

ZOEF, Tony - CCA, 3.8.2005
McColl JA, Barr & Johnson JJ
Citation: R v Zoef [2005] NSWCCA 268
Conviction and sentence appeal.
1 x maliciously inflicting GBH with intent to do GBH; unauthorised possession of a shortened firearm; unauthorised possession of a prohibited weapon (silencer).
Total of 10y with a NPP of 7*y.
The appellant shot the victim when he entered the appellant's home at 2:00am. The appellant admitted shooting the victim but claimed he had done so in self-defence. The victim sustained a gunshot wound that damaged his spinal cord, rendering him a paraplegic.
Whether trial judge erred in admitting evidence of silencer not proved to have been used in the commission of the offence - whether directions concerning self-defence capable of causing miscarriage of justice - whether verdict unreasonable - whether sentence manifestly excessive.
Appeal dismissed.
294

TZANIS, George - CCA, 4.8.2005
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Buddin JJ
Citation: R v Tzanis [2005] NSWCCA 274
Sentence appeal.
1 x dangerous drive occasioning death - 5y with NPP of 3y; 1 x dangerous drive occasioning GBH - 18m FT (concurrent). Driver's licence disqualified.
Total of 5y with NPP of 3y.
Appellant had been drinking at a hotel for some hours with friends. As he drove around the corner of the first intersection, his vehicle wheels spun & the vehicle almost collided with a parked car on the other side of the road. One passenger asked him to drive him straight home, which the appellant did. Appellant's car was then seen driving west along Talavera Road, Marsfield going at speed over a crest in the road at the intersection of Herring Street. Eyewitness evidence was that the vehicle became airborne, however, the witness lost sight of the vehicle on the crest & did not see it again until he drove past the collision. The appellant's vehicle's front passenger side wheel had collided with the southern kerb of Talavera Road & the vehicle had then gone into a clockwise spin. The vehicle had then continued to travel in a westerly direction for approx 90 metres before colliding with a timber power pole. The collision was a high-speed impact, causing the rear of the vehicle to be compressed around the power pole. The vehicle then spun anticlockwise & came to a stop with the front of the vehicle touching a brick wall. As a result of the collision, one passenger died & the other suffered a closed head injury, lacerations to his lip & upper gum & a partial collapse of the lower lobe of his left lung. Appellant had an alcohol reading of 0.135 grams per 100 millilitres of blood. Appellant left Australia for Greece. He became a Greek citizen & joined the Greek army. After about 2 years, he voluntarily returned to Australia, aware that a custodial sentence was inevitable.
Driving whilst licence suspended - intoxication - warning by passenger - driving erratically in a narrow area - high prospects of rehabilitation - unlikely to re-offend - guilty plea.
Whether error in trial judge considering harm caused by offences - whether error in trial judge considering that there were multiple crimes.
Appeal allowed: resentenced to 3*y with NPP of 2y for offence of dangerous drive occasioning death. Disqualification of licence affirmed.
295

HABIB, Meme - CCA, 17.6.2005
McClellan AJA, Simpson & Rothman JJ
Citation: R v Habib [2005] NSWCCA 223
Conviction appeal.
1 x sexual intercourse without consent.
3*y with NPP of 2y.
Appellant & complainant were employed through an agency as carers at a home for disabled people. The complainant gave evidence that after her shift one evening, she stayed back for a while. She made a cup of tea & then sat on a couch in the lounge room, with the appellant sitting on the other end of the couch. The complainant said that the appellant then made advances towards her & had sexual intercourse with her without her consent. The appellant stated that it was the complainant who initiated the sexual activity. The complainant's evidence of how the act of sexual intercourse took place seemed questionable without her co-operation.
Verdict unreasonable - inconsistencies in complainant's evidence - error in directions on lies.
Appeal allowed: verdict of acquittal entered.
296

DM - CCA, 18.7.2005
Grove, Hulme & Simpson JJ
Citation: R v DM [2005] NSWCCA 181
Sentence appeal.
1 x robbery in company with wounding; 2 x detain person in company with intent to obtain advantage; robbery in company; + Form 1 (3 x carried in conveyance without consent of owner; B&E with intent to commit serious indictable offence; 2 x attempt take & drive conveyance without consent of owner; 2 x maliciously destroy property; 2 x drive conveyance without consent of owner; robbery; larceny).
Total sentence of 6y 3m with NPP of 4y.
Applicant & his co-offenders travelled in a stolen MV to an address where one of the co-offenders had previously been employed. Applicant & one of the co-offenders approached the 54 year-old male victim as he was leaving the premises carrying a briefcase containing $1,000 in cash. Applicant struck him around the upper body a number of times with a baseball bat & the co-offender kicked the victim until he let go of the briefcase. The offenders then escaped in the stolen car after being chased by the victim & other employees & throwing the briefcase at them. The victim suffered lacerations, abrasions & contusions to his arm & back, cuts to his hands, bruising & an avulsion fracture to his right hip. Severe bruising to the victim's kidneys resulted in the passing of blood. Some 5 months later, the applicant, again travelling in a stolen MV with 2 co-offenders, stopped a female victim as she was walking from her home towards the railway station. One of the co-offenders threatened her with a knife & demanded her bag. The applicant forced the victim to hand over her purse & took $20, some small change & ATM cards. The victim was pushed into the car & driven to an ATM where she was made to withdraw $1,000 from her account. Approximately 9 days later, applicant & a co-offender alighted from a stolen car & approached another female victim who was walking with her 16 year-old daughter. The applicant attempted to snatch her handbag. At the same time the co-offender punched the victim's daughter several times after demanding money. They took the handbag containing $150 & personal papers & then drove off. About half an hour later, the applicant & a co-offender approached a male victim. The applicant threatened him with a hollow pipe. On this occasion, the offenders took $150 cash, a mobile phone & wallet from the victim. They then ordered the victim to enter the car & drove a short distance where they took the victim's ATM card & PIN. They allowed the victim to leave the car, however, upon seeing the victim look back & suspecting that he was attempting to note the car's registration number, the applicant punched the victim in the face.
Aged 14 at time of offending, 15 at sentence - subject to 18m GBB at the time - dysfunctional family - chaotic upbringing - parents separated - alcoholic mother subsequently entered into abusive de facto relationship - father served a number of gaol terms during applicant's youth, died unexpectedly, possibly from a drug overdose, when applicant aged 9 - severely disrupted education ending when applicant aged 12 - began using marijuana at age 12 - progressed to alcohol, amphetamines, ecstasy - priors (illegal use of MV's) - previously subject to control orders.
Accumulation of sentences - failure adequately to promote rehabilitation - sentences manifestly excessive.
Reduction in NPP to allow access to juvenile rehabilitation programmes.
Appeal allowed in part: NPP for the robbery in company with wounding offence reduced, resulting in a total sentence of 6y 3m with a new total NPP of 3y.
297

MMK - CCA, 4.8.2005
Spigelman CJ, Grove & Hall JJ
Citation: R v MMK [2005] NSWCCA 273
Conviction appeal.
9 x aggravated sexual assault in company.
Total of 22y with a NPP of 13y.
The charges related to a number of individual sexual acts that were alleged to have been committed upon each complainant. There were 5 accused & all were charged with each of those acts on the basis of an alleged joint criminal enterprise existing between them.
Arrangements were made by phone & 2 of the co-accused picked up the complainants from East Hills station & drove them to their house at Ashfield where they watched videos, listened to music & drank. The appellant propositioned one of the complainants. When she refused, he grabbed her. He was assisted by another co-offender, who was holding a knife & who threatened to kill the complainant. She was then taken to a bedroom & was sexually assaulted in turn by both men. In the meantime, the other complainant had been taken by another co-offender into another bedroom. She was also threatened with a knife before being sexually assaulted. At one stage she was advised that her friend was dead, having been stabbed with a knife. She was informed that if she did not shut up, the same thing would happen to her. The complainants were dumped in Campsie, where they raised complaint immediately, after which the police arrived & they were taken to hospital.
Whether verdict unreasonable - identification evidence - alibi evidence - whether jury properly instructed.
Appeal dismissed.
298

MRK - CCA, 4.8.2005
Spigelman CJ, Grove & Hall JJ
Citation: R v MRK [2005] NSWCCA 271
Conviction appeal.
9 x aggravated sexual assault.
Total of 10y with a NPP of 5y.
Two of appellant's co-accused made arrangements by telephone & picked up the complainants from East Hills station & drove them to their house at Ashfield where they watched videos, listened to music & drank. One co-accused propositioned one of the complainants & when she refused he grabbed her. He was assisted by another co-accused, who was holding a knife & who threatened to kill the complainant. She was then taken to a bedroom & was sexually assaulted in turn by both men. In the meantime, the other complainant had been taken by the appellant into another bedroom. She too was threatened with a knife, before being sexually assaulted. At one stage she was advised that the other complainant was dead, having been stabbed with a knife. She was told that if she did not shut up, the same thing would happen to her. The 2 complainants were dumped in Campsie, where they raised complaint immediately, after which the police arrived & they were taken to a hospital. The Crown case against the appellant was one based on joint criminal enterprise. It was no part of the Crown case that the appellant had sexual intercourse with either complainant. The case against the appellant was that there existed an agreement amongst all the accused to commit acts of aggravated sexual assault in company & that such agreement was complete by the time of the general deprivation of liberty of the complainants. The Crown case was that appellant was a party to the said agreement in that he assisted or encouraged his co-accused in the commission of the offences or that he was present & ready to give aid if required.
Whether sufficient evidence that appellant was party to agreement to use knife - whether open to jury to find element of aggravation - joint criminal enterprise - directions to jury - whether erroneous - whether adequate - whether onus of proof properly stated - whether verdicts reasonable.
Appeal dismissed.
299

CACCAMO, Vincent Anthony - CCA, 3.8.2005
Studdert, Kirby & Howie JJ
Citation: R v Caccamo [2005] NSWCCA 257
Sentence appeal.
1st indictment: supply large commercial quantity heroin (1.22 kgs); supply greater than indictable quantity cannabis (1.28 kgs); + Form 1 (2 x supply more than indictable quantity heroin; receive laptop computer).
2nd indictment: supply commercial quantity heroin (966 grams).
Total sentence of 8y with a NPP of 5y.
Applicant was involved in the supply of drugs in the northern beaches area of Sydney. Police intercepted the applicant's phone calls during drug deals in 1999 that linked him to dealing in drugs. In 2001, the applicant gave evidence to the Police Integrity Commission identifying dozens of transactions with corrupt police officers. The applicant argued that he deserved a reduced sentence because of pleading guilty & helping police with their investigations of corruption.
Aged almost 46 at time of sentence - married & has 2 children - addicted to heroin - lived in rented premises - engaged in drug activities to secure supply of heroin for himself & to enable him to support his family - no accumulation of substantial assets - prior drug offences - previous imprisonment.
Assistance to authorities, including against corrupt police - extent of discount - whether sufficient - whether more lenient sentence warranted.
Appeal dismissed.
300

VU, Cam Quyen - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Vu [2005] NSWCCA 266
Conviction and sentence appeal.
1 x ongoing supply of cocaine.
6y with a NPP of 4*y.
Police officers suspected that a person or persons were supplying cocaine and/or heroin from a flat in Cabramatta & set out to prove it. The appellant & his friend were supplying drugs from the friend's flat.
Vietnamese - migrated to Australia with parents & siblings in 1990 - university studies in electronics interrupted by the migration - did not resume studies in Australia due to lack of command of English - undertook English language classes - satisfactory work record until 2000 when he lost his job - unemployed for approx 1 year until arrested - not a drug user - no priors.
Whether miscarriage of justice - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 4y with a NPP of 2*y.
301

MARKARIAN, Anthony - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Markarian [2005] NSWCCA 264
Crown appeal.
Knowingly take part in supply of commercial quantity of heroin.
Respondent acted as chauffeur for a principal who carried on a substantial business buying & selling heroin. From time to time, respondent was present at meetings where heroin was purchased, he made up deals & at times personally distributed heroin & collected money. He sometimes loaned money to the principal for the purchase of heroin. The quantity of heroin involved in the above offence was 415 grams. On 18.7.2002, Hosking DCJ imposed a sentence of 2*y with NPP of 15m. The Crown successfully appealed to the CCA against the inadequacy of this sentence & the sentence was increased to 8y with a NPP of 4*y: see R v Markarian [2003] NSWCCA 8. Respondent subsequently appealed to the HC. The HC set aside the sentence & remitted the matter to the CCA to dispose of the appeal in accordance with the HC's reasons: see Markarian v The Queen [2005] HCA 25, 79 ALJR 1048.
Aged 36 at time of offence - on parole at the time - drug addiction - contrition - prospects of rehabilitation - prior drug offences & driving offences - previous imprisonment.
Sentence manifestly inadequate - multiple jeopardy - original sentence already expired - justice does not require the sentence to be increased.
Appeal dismissed.
302

O'CONNELL, Kevin John - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v O'Connell [2005] NSWCCA 265
Crown appeal.
9 x steal from a dwelling; 8 x larceny; 2 x receive stolen goods; 1 x possess unregistered firearm; + Form 1 (6 x unlawful possession of property; 10 x receive stolen property).
23*m suspended sentence with a NPP of 18m; placed on a 5y GBB.
Respondent was originally charged with more than 140 offences, but pleaded guilty to the above offences in full satisfaction of the indictment. Between February 2001 & May 2003, he used his position as an environmental services officer for Cabonne Council to steal large amounts of property from victims at Spring Glen, Forest Reefs, Eugowra, Canowindra, Mullion Creek, Bowen Park, Molong, Cudal, Cumnock, Lucknow, Nashdale & Manildra. This included jewellery, chainsaws, pumps, drills, whipper snippers, shovels, fishing equipment, plumbing supplies, knives, generators, saddles, gas bottles, welding equipment, electrical equipment, as well as CD, DVD & VCR players.
Suffering from long-term major depression - received long-term psychiatric treatment - suffers from kleptomania - became deeply depressed after losing $400,000 as a result of a misguided investment in about 1988 - not motivated by material gain - compulsive hoarder.
Whether sentence manifestly inadequate.
Appeal dismissed.
303

KNL - CCA, 29.7.2005 - 154 A Crim R 268
Brownie AJA, Buddin & Latham JJ
Citation: R v KNL [2005] NSWCCA 260
Crown appeal.
1 x sexual intercourse with child aged between 10 & 16.
Received a bond under s.10 Crimes (Sentencing Procedure) Act 1999.
The complainant was aged 12 at the time of the offence. The respondent was adamant that the complainant told him that she was 16 & he said that he believed this to be true. Although the complainant disclosed the incident to 2 of her friends some time later, she only told her father 2 months after the date of the incident. Her father then approached the respondent, who admitted having sexual intercourse with the complainant. The matter was then reported to the police.
Aged 19* at time of offence - early plea of guilty.
Failure to reflect objective gravity of offence - whether sentence manifestly inadequate.
Discretion to resentence - double jeopardy - requirements of Offenders Registration Act - extra-curial punishment - failure to have due regard to complainant's age in assessing objective gravity of offence - consequences of conviction allowed to override considerations of punishment & general deterrence - failure to observe requirements of s.10.
Appeal allowed. Conviction recorded; placed on an 18m GBB under s.9 Crimes (Sentencing Procedure) Act.
304

MAURI, Ngereteina - CCA, 4.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Mauri [2005] NSWCCA 272
Sentence appeal.
Malicious wounding.
4y with NPP of 9m.
After having spent some time at a hotel at Campsie sitting at a table with friends & consuming a significant amount of alcohol, applicant approached another table at which a young woman was sitting with other people. He spoke to the young woman but she did not wish to have anything to do with him. A man who had been sitting with her at the table came back to the table & tried to persuade the applicant to leave, but he ignored the man & persisted in his attempts to speak to the young woman. The victim, who was sitting at another table, then intervened. He went over to the applicant & after some heated words he struck the applicant on the head, which pushed the applicant back into a pole. The applicant then struck out at the victim with his fist whilst holding a glass, which broke against the victim's face. The victim suffered a 4cm laceration to his left temple & an 8cm laceration to his left cheek, a painful jaw & painful left shoulder. There was no evidence that the victim's wounds resulted in permanent disfigurement. The victim was a heavily built man, whilst the applicant was a smaller man with physical disabilities. The sentencing judge was of the opinion that at the time he struck the victim, applicant was attempting to act in some form of self-defence.
Aged 38 at time of offence - born in NZ - father an aggressive alcoholic - applicant became a ward of the State at an early age. Spent time in institutions in NZ before coming to Australia at age 15 - limited education - regular employment as a steel fixer - references given from past employers - involved in a motor cycle accident at about age 28 sustaining spinal cord injury, which resulted in wasting of legs & difficulty in walking - above offence committed whilst on bail - prior offences include offences of violence, also offences involving abuse of alcohol & driving offences.
Whether sentence excessive.
Appeal allowed: resentenced to 3y with a NPP of 9m.
305

AMOHANGA, Nico - CCA, 22.7.2005 - 155 A Crim R 202
RAI, Michael
Grove, Hulme & Simpson JJ
Citation: R v Amohanga; R v Rai [2005] NSWCCA 249
Crown appeal.
Amohanga: 1 x robbery armed with offensive weapon inflicting GBH; + Form 1 (robbery in company with wounding (GBH)) - 10y with NPP of 6y.
Rai: 1 x robbery armed with offensive weapon causing wounding; 1 x robbery - 11y with NPP of 7y.
A prostitute, who was in a sexual relationship with Amohanga, lured the victim to a flat on the pretext that a prostitute was going to have sex with him. Respondents planned to steal the victim's possessions while he was taking a shower. The victim, accompanied by the prostitute, arrived at the flat & had sex with a 14 year old prostitute. He refused to take a shower. Urged on by the older prostitute, respondents (one armed with a tyre lever, the other with a 4ft iron bar) beat the victim mercilessly & stole his wallet & mobile telephone. The victim was beaten unconscious & left at the scene curled up on the ground bleeding. He was found some time later by a 3rd party who returned to the flat. The offence involved gratuitous cruelty. The victim's injuries were multiple & included scalp lacerations (with brain exposed through them), a left occipital parietal comminuted skull fracture, fractured left zycoma & a left extradural haematoma. The victim suffered a traumatic brain injury in the extremely severe category & underwent a craniotomy & later a cranioplasty. He spent time in a Brain Injury Rehabilitation Unit. He has lost his ability to communicate in English. He has been left seriously & permanently impaired, both physically & mentally. He will require care & assistance for the rest of his life & will remain unfit for work either in the open market or supported. His condition has been exacerbated by an organic psychotic depression & he has suffered post-traumatic epilepsy. His wife & children left him in October 2002. The inference was that this was the result of his injury. After Rai had been arrested for this offence & subsequently released to bail, he entered a suburban electronics store & pushed the sales assistant into a store room where the manager was. He ordered the men to the floor & threatened them that if they moved, a guy outside with a gun would shoot them. Rai tore the phone from the wall & demanded telephones & cash. The manager was ordered to open the safe & Rai stole 12 mobile phones & 38 recharge cards. After further threats, the manager opened the till & Rai stole $915. He also stole 3 radio scanners from a display cabinet. After threatening to kill the victims if they attempted to use the phone or try to go outside, Rai made off with property & cash to the value of $9,405.35.
Respondents both recidivists - prior criminal records.
Whether sentences manifestly inadequate - Rai: plea of guilty to unrelated charge of robbery - Amohanga: prior sentences for detaining for advantage & rob in company - nature of error in sentencing - cumulative & concurrent sentencing - condition under which Amohanga at liberty at time of offence - prospects of rehabilitation - proportion between NPP & head sentence.
Appeal allowed: Amohanga sentenced to 12y with a NPP of 8*y; Rai sentenced to 11y with a NPP of 8y.
306

KELLY, Rachelle Lee - CCA, 11.8.2005 - 155 A Crim R 499
Simpson, Johnson & Rothman JJ
Citation: R v Kelly [2005] NSWCCA 280
Sentence appeal.
1 x aggravated robbery - 2*y with NPP of 12m; 1 x dispose of stolen property - 6m FT (concurrent).
While waiting for a train at a suburban railway station, the victim was verbally abused by the applicant's co-offender. The applicant then walked towards the victim & punched her in the face. The co-offender joined in the attack & the victim was punched, kicked & bitten. Despite the victim's pleas, the applicant stole 2 valuable rings from her fingers. The applicant pawned one ring & sold the other. The victim suffered a bleeding nose, soreness to the left of her face, a bite mark to her left hand & upper arm, minor abrasions to the back of her head & soreness to her left eye.
Aged 20 at time of offence - guilty pleas - Aboriginal - parents separated when she was a child - began drinking alcohol at 14 - rehabilitation - remorse/contrition expressed at sentencing hearing - priors (use offensive language in or near public school or place) - no previous imprisonment.
Parity - justifiable sense of grievance - whether sentence excessive.
Appeal allowed in part: resentenced for the aggravated robbery offence to 2y 2m with a NPP of 9m. Appeal otherwise dismissed.
307

NZ - CCA, 17.8.2005 - 63 NSWLR 628
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Johnson JJ
Citation: R v NZ [2005] NSWCCA 278
Sentence appeal.
Aggravated sexual intercourse without consent (s.61J Crimes Act); in the alternative, sexual intercourse with child under 16 (s.66C).
5y with a NPP of 2*y.
At the time of the offence, the appellant was aged 15 years 4 months, his co-offender was aged 14 years 9 months & the complainant was aged 14 years 3 months.
While at a park celebrating the last day of the school holidays, the victim, who was well intoxicated, needed to go to the toilet & was driven to a service station by the co-offender & the appellant. On leaving the service station, the co-offender entered the rear of the vehicle next to the complainant & the appellant drove. While in the back of the vehicle, the co-offender sexually assaulted the victim by digitally penetrating her vagina without her consent. A short time later, he swapped places with the appellant, who had penile intercourse with the victim without her consent. See also R v MSS [2005] NSWCCA 227.
During the trial, evidence in chief of the complainant & several other Crown witnesses was substantially given by way of videotaped interviews with police officers. Transcripts of the tapes were given to the jury & remained with them. Further examination in chief & cross-examination was conducted by way of video-link between the courtroom & a remote location in which the witness was present. The videotapes were given to the jury without objection, along with the other exhibits when they retired to consider their verdict.
The jury found the appellant guilty of the s.61J offence & found the co-accused guilty of the s.66C offence.
Consistency of verdicts given by the jury in respect of the accused & co-accused - use of videotaped interviews of Crown witnesses. - jury's failure to extend to the appellant the benefit of doubt afforded the co-offender - whether miscarriage of justice.
Appeal dismissed.
308

ANCUTA, Ion - CCA, 17.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Ancuta [2005] NSWCCA 275
Sentence appeal; extension of time.
1 x deemed supply of a commercial quantity of heroin.
9y with a NPP of 6*y.
Police stopped applicant's car as he was driving from Sydney to Brisbane where he lived. A search of the car revealed 701.6 grams of heroin. Applicant had purchased the heroin from a man named Chu for about $250,000, although the precise price paid was not established. Shortly after applicant's arrest, police executed a search warrant at Chu's premises & found $292,000 in cash & paraphernalia associated with drug dealing. The sentencing judge found that the applicant had purchased the heroin for resale. There was evidence of intercepted phone conversations between the applicant & Chu, where they spoke in code about the intended purchase. There was also evidence of police surveillance of Chu's activities.
Guilty plea - migrant from Romania - poor command of English - health problems - remorse/contrition - undertaken rehabilitation courses - need for continuing supervision regarding alcohol & drug dependence.
Proper approach to standard NPP - R v Way [2004] NSWCCA 13 - finding of aggravating factors - special circumstances - assistance - whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with a NPP of 5y.
309

JANCESKI, Darko - CCA, 18.8.2005 - 64 NSWLR 10
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Johnson JJ
Citation: R v Janceski [2005] NSWCCA 281
Conviction appeal.
Maliciously inflicting GBH (s.35 Crimes Act 1900).
The conviction for the above offence was entered following the 2nd of 2 trials, the jury in the 1st trial having been unable to reach a verdict.
The indictment presented at the 2nd trial was signed by a barrister at the private bar who was not authorised to do so under s.126 Criminal Procedure Act 1986.
The appellant appealed on the basis that the 2nd trial & the subsequent conviction were nullities as the indictment upon which the 2nd trial proceeded was invalid. Further grounds of appeal were also raised in relation to the admission at trial of photographic identification evidence & directions to the jury.
Appeal allowed: conviction and sentence set aside; appellant to be retried on the offence of maliciously inflicting GBH.
310

JANCESKI, Darko - CCA, 18.8.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Janceski [2005] NSWCCA 287
Crown appeal.
Maliciously inflicting GBH (s.35 Crimes Act 1900).
The respondent had successfully appealed against his conviction earlier in the day. The conviction was set aside & a new trial ordered.
Crown appeal dismissed.
311

JANCESKI, Darko - CCA, 18.8.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Janceski [2005] NSWCCA 288
Crown appeal.
2 x dangerous drive causing death.
Total of 2y with a NPP of 12m.
Respondent was driving a motor vehicle when his passenger recognised another vehicle driving past as being one that had been stolen from a friend. The respondent followed the other vehicle until both vehicles stopped at traffic lights. Respondent & his passenger left their vehicle & confronted the occupants of the other vehicle in a threatening manner (the passenger was carrying a steering wheel lock). That vehicle drove off & respondent & his passenger re-entered their vehicle & gave chase. Respondent asked his passenger to contact the police on his mobile phone. The passenger was told by the operator to not 'go through any red lights or anything'This warning was repeated. The conversation was recorded. The passenger told the operator they were travelling at 60-70kph & the respondent was heard to say 'We're not speeding, we're just keeping up with them'Respondent also told the passenger to tell the police to hurry as the vehicle being chased was going 'to make a break soon'The evidence at trial showed that the 2 vehicles were travelling in concentrated traffic at high speeds of over 100kph (at one stage estimated as reaching 150kph) running red lights & narrowly avoiding collisions with other vehicles & at times being almost out of control. When the 2 vehicles were travelling side by side in adjoining lanes, the driver of the chased vehicle deliberately moved to his right so that his vehicle came into contact with the respondent's vehicle, forcing it onto & over the grass median strip where it almost collided with oncoming traffic. The driver of the chased vehicle lost control of his vehicle & it collided with a power pole, killing the driver & his passenger.
Insufficient weight given to respondent's culpability - whether sentence manifestly inadequate.
Appeal allowed: resentenced to a total of 5y with a NPP of 3y.
312

McVITTIE, Leslie John - CCA, 1.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v McVittie [2005] NSWCCA 267
2 x armed robbery.
Petition to the Governor of NSW - review of convictions - referral to CCA to be dealt with as an appeal - 2000 NSW Police Integrity Commission inquiry - 2003 Royal Commission investigation of corrupt conduct by police in WA - concession by Crown - convictions a miscarriage of justice.
Appeal allowed: convictions quashed, judgment of acquittal entered.
313

ARAYA, Gustavo Enrique - CCA, 22.8.2005 - 155 A Crim R 555
Simpson, Johnson & Rothman JJ
Citation: R v Araya [2005] NSWCCA 283
Sentence appeal.
5 x obtain valuable thing by deception; 1 x attempt obtain valuable thing by deception.
Total sentence of 3*y with a NPP of 2y.
The offences involved applicant dishonestly using credit card numbers of other persons to purchase air tickets & accommodation by telephone. The total sum involved in the 6 offences was $18,104, none of which has been repaid by the applicant.
Aged 27-28 at time of offences - born in Argentina - migrated to Australia with parents when he was a baby - director of own company - stated he earned on average $1,000 per week - priors, including obtain money by deception - previous imprisonment.
Relevance of sentence imposed upon associate who was not a co-offender - factors relevant to sentence for offences involving dishonest use of credit cards - insufficient weight given to guilty pleas - insufficient weight given to timing of guilty pleas - concurrence, accumulation, totality - whether sentence excessive.
Appeal dismissed.
314

ANTOUN, Joseph - CCA, 1.8.2005
ANTOUN, Antoine
Simpson, Johnson & Rothman JJ
Citation: R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270
Application for bail pending determination of appeal to the HCA.
Each applicant granted bail subject to conditions.
315

JENNINGS, Trent - NSWSC, Kirby J, 11.8.2005
Citation: R v Jennings [2005] NSWSC 789
Murder.
Judge alone trial.
The deceased died from a single stab wound to the side of his neck. When interviewed by police, the offender made admissions of stabbing the deceased. He said that after the deceased had tied up the offender & performed oral sex on him, their roles were reversed & the offender tied up the deceased & performed oral sex on him. He also said that the deceased tried to have anal sex with him against his will & that the deceased used his hands to try to force himself on Jennings. He said that in an attempt to protect himself, he stabbed the deceased once & then ran off. However, evidence of police & witnesses showed that the deceased was bound hand & foot when he was found.
Aged almost 19 at time of offence - mental illness defence - alternative of substantial impairment by abnormality of mind - complication of drugs taken before stabbing.
Verdict: Not guilty of murder by reason of mental illness. Order made under s.39 Mental Health (Criminal Procedure) Act 1990 that Jennings be detained in a hospital until released by due process of law.
316

HALMI, Nicolae - CCA, 29.7.2005
Simpson, Bell & Buddin JJ
Citation: R v Halmi [2005] NSWCCA 263
s.5F appeal against refusal to stay proceedings.
Previous DC trial declared to be a nullity.
Decision: Further proceedings on the indictment be stayed unless & until the Crown pays the costs incurred by the applicant in relation to the previous aborted trial; those costs to include costs incurred in the application before Chief Judge Blanch & the application for leave to appeal to the CCA.
317

NATOLI, John - CCA, 17.8.2005
Sully, Hulme & Hall JJ
Citation: R v Natoli [2005] NSWCCA 292
s.5F appeal against an interlocutory order.
Applicant & a co-accused were jointly arraigned upon an indictment charging them with maliciously inflicting GBH whilst in company. The trial commenced on 2.8.2005 & proceeded to the conclusion of the Crown's closing address & the commencement of the defence's closing address. A brief adjournment was ordered for an application to be made to the CCA. It was submitted in support of the application for leave to appeal that the indictment is defective in law. No application to quash the indictment was made.
Leave to appeal refused.
318

G - CCA, 25.8.2005
Grove, Hidden & Bell JJ
Citation: R v G [2005] NSWCCA 291
s.5F application by the Crown against an evidentiary ruling in favour of the respondent.
1 x detain for advantage; 3 x aggravated sexual assault.
The respondent had previously been found guilty in a joint trial with 3 other men. The CCA subsequently set aside his conviction & ordered a retrial: see R v Chami & Ors [2004] NSWCCA 36. The respondent is to be retried alone. After a pre-trial voir dire hearing, the trial judge rejected a photograph of the respondent taken by police when they searched the home where the respondent was living. That photograph was included in a photographic array from which the complainant identified him as one of the men who sexually assaulted her. The complainant's identification of the respondent is crucial to the Crown case. At the time of the offence, the respondent was aged 17
Whether posing for the photograph amounted to an admission - whether Part 10A Crimes Act complied with - exercise of discretion under s.1`38 Evidence Act.
Appeal allowed: ruling of trial judge set aside, matter remitted to the DC.
319

SMITH, Larry - CCA, 23.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Smith [2005] NSWCCA 286
Crown appeal.
Maliciously inflict GBH on child.
10m with a NPP of 5m.
The injuries to the child, the 6 year old son of the respondent's de facto spouse, were inflicted at some time between 28.9.2001 & 15.10.2001. At the time, the respondent was responsible for the care of the child, his mother having gone shopping. The victim was absent from school on the last day of term (28.9.2001). On resumption of the school term on 15.10.2001, the victim failed to return to school & remained absent until 19.11.2001. The explanation given to the school by the child's mother was that the child's natural father had scalded the child's legs with hot water during an access visit. Two DOCS officers went to the respondent's home on 16.1.2002 & observed extensive discolouration & scarring of the victim's ankles. The victim was wearing tracksuit pants & indicated that his legs had also been burnt when he was placed in a hot bath. The respondent was questioned. He told the officers that he had put the child in the bath & then went to answer the phone. He said he then heard a scream & went back to lift the victim from the water. The next day, the child was examined by a paediatrician at Campbelltown Hospital, who noted significant severe purple keloid scarring consistent with burns on the child's legs. The child was transferred to the Paediatric Burns Unit at Westmead Children's Hospital & placed into the care of DOCS. The child spoke of the scalding a number of times between 21.1.2002 & 13.8.2002. His accounts were consistent, to the extent that he was in the bathroom when his legs were burnt by hot water, whilst the respondent was present. At various times, he referred to sitting in the bath when the water was too hot, having hot water poured on him with a bucket & standing in the bath when the respondent splashed him with hot water from the hot tap, using his hand.
Insufficient weight attached to breach of trust & failure to seek medical care - failure to meet requirements of s.3A Crimes (Sentencing Procedure) Act 1999 - objective gravity - recklessness - intent - whether sentence manifestly inadequate.
Appeal dismissed.
320

SKORIN, Blaz - CCA, 11.8.2005
James, Howie & Rothman JJ
Citation: R v Skorin [2005] NSWCCA 276
Crown appeal.
Knowingly take part in cultivation of large commercial quantity cannabis plants.
2y 2m with NPP of almost 1 year (4 days short).
Respondent was involved in the large scale production of cannabis plants.
Guilty plea - assistance to authorities.
Clearly a commercial enterprise - participated in offence out of motive of greed - not at lowest level of organisation but at some intermediate level - error in finding special circumstances - starting point of sentence too low - guilty plea - assistance - whether error in allowing substantial discount - failure to set NPP of sufficient length to reflect criminality involved - general deterrence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 4*y with a NPP of 2y 9m.
321

ATTALLAH, Joseph - CCA, 25.8.2005
James, Buddin & Rothman JJ
Citation: R v Attallah [2005] NSWCCA 277
Conviction and sentence appeals.
Supply large commercial quantity heroin; supply large commercial quantity cocaine.
Life for each offence.
Appellant conducted an unlicensed brothel in Bankstown. For almost a 2 year period, he conducted the brothel as a joint enterprise with his co-accused, Sabbagh. Appellant set up the brothel with the assistance of a woman named Jackie Walsh, who had been a prostitute for many years. She was the principal Crown witness at the trial. Many of the prostitutes working at the brothel were drug addicts. Appellant supplied them with their daily requirements of heroin & cocaine. At trial, Jackie Walsh & 3 prostitutes gave evidence of the daily amounts of heroin & cocaine used by themselves & other prostitutes working at the brothel. The appellant denied supplying them with drugs, although he said he was aware that some of them were drug addicts. It was the Crown case that the appellant, either personally or through an agent, had regularly supplied small quantities of heroin & cocaine for use by the prostitutes & that the aggregate of the amounts supplied over the period alleged in the charges amounted to not less than a large commercial quantity.
Whether trial proceedings miscarried through re-examination of witness who gave evidence that she was fearful of appellant because there had been an argument among members of appellant'ss family resulting in the death by shooting of a person - whether trial proceedings miscarried because of outbursts by appellant's family & appellant himself on a number of occasions - whether trial proceedings miscarried through remarks & comments made by Crown prosecutor in the course of his closing address - whether directions given on requirement for proof of element of quantity in charges of supplying large commercial quantity of prohibited drugs were erroneous & inadequate - whether directions given as to potential unreliability of certain witnesses adequate - whether life sentences manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 24y with a NPP of 18y for each offence (concurrent).
322

HARDY, Jason Anthony - CCA, 30.8.2005
James, Hidden & Bell JJ
Citation: R v Hardy [2005] NSWCCA 294
Sentence appeal.
1 x armed robbery.
6y with NPP of 4*y.
With their faces covered, applicant & his co-offender entered a home occupied by an elderly couple. The elderly male suffered from dementia. One of the offenders had a weapon that looked like a gun. They entered the elderly female's room, took her handbag & then left the premises. The bag was later found nearby, its contents still intact. The following day, police located a sample of hair in the yard. DNA testing yielded a result consistent with the profile of the applicant.
Aged 26 at time of offence - late plea of guilty - drug addiction - heart condition resulting from intravenous drug use - may have to undergo heart surgery - lengthy criminal record - previous imprisonment.
Special circumstances - sentence erroneously passed under amended s.44 Crimes (Sentencing Procedure) Act - approach to sentencing under amended section when special circumstances found.
Appeal allowed insofar as NPP reduced to 3*y.
323

STEWART, Kevin John - CCA, 22.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Stewart [2005] NSWCCA 290
Sentence appeal.
2 x BE&S.
Total sentence of 3*y with a NPP of 18m.
Applicant broke into locked, secure premises & stole goods valued at nearly $29,000. Blood stains found at the scene had the same DNA profile as the applicant. He was arrested 7 months later & placed in custody. About 7 months after that, he broke into other premises & stole a DVD player & 13 DVD movies. He was identified through his fingerprints left on a rear sliding door.
On the day he committed the 1st BE&S, applicant was arrested in possession of stolen watches which were part of the proceeds of that offence. This fact only became known some time later. He was refused bail on that day & later pleaded guilty to a charge of goods in custody & was sentenced in the LC to a fixed term of 3m, backdated to the date of his arrest.
Aged 28 at time of offence - guilty pleas - drug addiction - multiple priors - previous imprisonment.
Punished twice for overlapping criminal conduct - time served for related goods in custody offence.
Appeal allowed insofar as sentences backdated to take account of 3m served for goods in custody offence, which was related to the 1st BE&S offence.
324

MAH - NSW SC, Hislop J, 30.8.2005
Citation: R v MAH [2005] NSWSC 871
Remarks on Sentence.
Murder.
The offender was jealous of the relationship between the deceased & the offender's girlfriend & believed that the deceased was flirting with the girlfriend. He decided to murder the deceased & enlisted the help of his co-offender the week before the murder. The offender arranged to meet the deceased. The offender, his co-offender & the deceased subsequently met, ostensibly to go 4-wheel driving in the offender's vehicle. They drove to a campsite in bushland in the Cordeaux Dam area, where the deceased was struck by both offenders. The deceased tried to run away but was tackled & whilst down the offenders kicked him in the head until he was semi-conscious. They then took a large log & forcibly dropped it onto the deceased's head a number of times, after which they took the deceased, who was by then comatose if not deceased, by row-boat to a remote part of the dam area & buried him in a shallow grave. All personal items were removed from the deceased & a version of events was agreed upon by the offenders.
At the time of offending, offender was under the age of 18, as were a number of witnesses & the deceased.
Sentenced to 22y with a NPP of 16*y.
325

NIMMO, Richard Burton - CCA, 29.8.2005
Spigelman CJ, Ipp JA, Adams J
Citation: R v Nimmo [2005] NSWCCA 295
Sentence appeal.
Supply prohibited drug (ongoing).
3y 4m with a NPP of 2*y.
The offence charged that on 3 or more separate occasions during a period of 30 consecutive days, the applicant supplied crystalline methylamphetamine for financial or material reward. The evidence showed that during that period, applicant supplied the drug to various customers on 11 separate occasions. The price range of the transactions was between $50 & $150. Analysis of a white crystal substance found during a search of the applicant's residence revealed crystal amphetamine with a total weight of 63.39 grams & a purity of 85%.
Aged 23 at time of offence - guilty plea at earliest reasonable opportunity - 25% discount for utilitarian value - further discount for remorse & contrition - overall discount accorded to applicant was one-third - criminal record dating back to when applicant was aged 18 - no previous imprisonment.
Starting point when calculating sentence was too high having regard to finding of objective seriousness of offence - insufficient weight given to special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
326

TEMMINGH, Sven Arne - CCA, 11.8.2005
Grove, Hoeben & Hall JJ
Citation: R v Temmingh [2005] NSWCCA 261
Crown appeal.
Import anabolic steroid (Nandrolone Decanoate).
Conditional release.
The sentencing judge convicted the respondent of the above offence, but ordered that he be conditionally released pursuant to s.20 of the Crimes Act 1914 (Cth). That release was to be conditional upon him remaining of good behaviour for a period of 3 years & was further conditional upon him paying the Commonwealth a pecuniary penalty in the sum of $30,000 within 6 months of the date of sentence. It was common ground that the pecuniary penalty was paid within the specified period.
Respondent imported Nandrolone Deconoate from China. An analysis of the goods by Customs Service revealed that the drum in which the substance arrived was incorrectly labelled as Glucosamine. It had a net weight of almost 5 kgs & contained an estimated 85.8% Nandrolone Deconoate.
Whether sentence manifestly inadequate - emphasis on intention of respondent - insufficient weight given to objective criminality & general deterrence - objective seriousness of offence.
Appeal allowed: Respondent convicted under s.20 Crimes Act 1914 (Cth) & sentenced to 12m imprisonment, suspended upon entering a 3y GBB.
327

WILKIE, Daniel - CCA, 29.8.2005 - 64 NSWLR 125; 157 A Crim R 498
BURROWS, Stephen
MAINPRIZE, Timothy Maxwell
Spigelman CJ, Ipp JA, Adams J
Citation: R v Wilkie, Burrows and Mainprize [2005] NSWCCA 311
Application for leave to appeal against an interlocutory judgment.
Whether witness giving evidence by video-link violates requirement that trial be held 'in the State where the offence was committed'- s.80 Commonwealth Constitution.
Leave to appeal refused.
328

CATT, Roseanne - CCA, 17.8.2005
McClellan AJA, Adams J, Smart AJ
Citation: R v Catt [2005] NSWCCA 279
Appellant petitioned the Governor pursuant to s.474B Crimes Act 1900, seeking a review of her conviction on 8 counts. After considering the petition, the Attorney-General referred the case to the CCA pursuant to s.474(1)(b) of the Act.
Count 1: malicious wounding;
Count 2: perjury;
Count 3: malicious wounding;
Count 4: AOABH;
Count 5: attempt to cause to be taken a noxious thing (Lithium) thereby endangering life;
Count 6: solicit to murder;
Count 7: solicit to murder;
Count 9 unlawful possession of firearm.
Total of 12y 3m with a NPP of 10y 3m.
Appellant was acquitted of encouraging to murder (Count 8).
See R v Catt[2005] NSWCCA 279 for full details.
Concoction of evidence by husband & police officer - police officer corrupt - multiplicity of charges presented at the same time - unfair prejudice - fresh evidence - planting of evidence - false evidence.
Whether convictions were the result of a miscarriage of justice - whether because of fresh evidence the conviction in relation to each count must be quashed.
Orders:
1. Uphold appeal in relation to counts 1, 2, 5, 6, 7 & 9 and quash each conviction.
2. Enter verdict of acquittal on count 9.
3. Order that there be a new trial in relation to counts 1, 2, 5, 6 & 7.
4. Dismiss appeal in relation to counts 3 & 4.
5. Appellant'ss bail to continue.
6. Reserve liberty to apply.
(Appellant to remain on bail pending decision by the DPP as to whether to proceed with any fresh trial.)
329

PITT, Lorraine - CCA, 6.9.2005
Grove, Hoeben & Hall JJ
Citation: R v Pitt [2005] NSWCCA 304
Sentence appeal.
1 x malicious wounding; 2 x robbery whilst armed with dangerous weapon; 1 x possess unauthorised firearm; 1 x possess unregistered firearm.
Total sentence of 7y with a NPP of 4y.
The malicious wounding was preceded by an episode of binge drinking by applicant & her estranged husband. The applicant obtained a kitchen knife, cut her own wrist by making superficial cuts & then cut her husband's throat. An ambulance was called & the husband was subsequently treated, requiring 15 stitches to the left side of his neck. The 1st armed robbery involved applicant robbing a service station whilst armed with a loaded .357 calibre Magnum handgun. About 15 minutes later, applicant committed the 2nd armed robbery at a pizza business.
Aged 42 at time of offences - mother of 7 children - history of mental illness - psychotic disorder, either schizophrenia or bi-polar mood disorder - abuse of prescription-based medication - abuse of alcohol compounded by severity of mental health problems & inability to respond to treatment - requirement of intensive & ongoing therapeutic treatment to address alcohol dependence & mental health issues.
Error in having insufficient regard to history of mental illness - error in finding offences committed in breach of suspended sentence.
Appeal allowed: resentenced to a total of 6y with a NPP of 3y.
330

HUMPHRIES, Joshua Luke - CCA, 6.9.2005
Sully, Hidden & Hall JJ
Citation: R v Humphries [2005] NSWCCA 305
Sentence appeal.
3 x BE&S; + Form 1 (6 x BE&S; 1 x make false statement).
Total of 3y with a NPP of 18m.
Applicant entered pleas of guilty on a joint indictment with his co-offender (his brother).
The 1st count on the indictment occurred when applicant & his brother broke into a welding factory & stole a large amount of property (welders & associated tools to the value of $23,059). The only property not recovered were 2 welders (value $18,700). The 2nd count involved the offenders entering a building site at Corlette & stealing tools from shipping containers. The 3rd count on the indictment occurred when they jemmied open the front door of premises under construction & removed a number of items, a good deal of which was subsequently recovered. The Form 1 BE&S offences were committed upon dwelling houses, 4 of owned by Masterton Homes, the other 2 owned by AV Jennings. The remaining Form 1 offence involved applicant making a false statement contrary to the Pawnbrokers & Second Hand Dealers Act 1996.
Aged 20 at time of offending - 10 years younger than his brother - identical sentences passed on applicant & his brother - applicant had no relevant criminal record, whereas his brother had a number of priors - brother had previously received PD - brother had 2 additional serious matters on his Form 1.
Disparity of sentences - whether less severe sentence warranted - whether justifiable sense of grievance.
Appeal dismissed.
331

LEWIS, Katrina - CCA, 2.9.2005
Grove, Hidden & Bell JJ
Citation: R v Lewis [2005] NSWCCA 300
Sentence appeal.
Aggravated BE&S; + Form 1 (stealing from dwelling; stealing).
4*y with a NPP of 2y 3m.
Aged 25 & subject to bonds at time of offending - substance abuse - entrenched pattern of anti-social conduct - past abusive relationships - need for structured setting in a residential rehabilitation facility - criminal history, mainly drug offences, driving & dishonesty offences - no previous imprisonment.
Relevance of standard NPP after plea of guilty - sentence passed before R v Way (2004) 60 NSWLR 168.
Appeal dismissed.
332

KADDOUR, Khalid - CCA, 2.9.2005 - 156 A Crim R 11
Hulme, Barr & Buddin JJ
Citation: R v Kaddour [2005] NSWCCA 303
Conviction and sentence appeal.
Maliciously damage property; take part in manufacture of some quantity of MDMA (ecstasy).
Total sentence of 5*y with a NPP of 3y 5m.
Directions on meaning of taking part in manufacture of prohibited drug - admission of evidence - whether error in directions - whether directions on issue of joint criminal enterprise inadequate - verdict on offence of maliciously damaging property unreasonable - prejudicial impact of adverse media publicity during trial proceedings relating to barrister appearing for appellant- whether trial miscarried by reason of fact that one jury member knew appellant & knew of adverse information regarding appellant's character & reputation.
Appeal dismissed.
333

MULE - HC, 8.9.2005
Citation: Mule v The Queen [2005] HCA 49
Appeal from the decision of the WA CCA upholding the trial judge's directions to the jury.
Accused was convicted of possession of a prohibited drug for supply. The prosecution evidence included a record of interview with the accused & a solicitor. During the interview, the accused admitted possessing 27 tablets of ecstasy, stating that they were for his personal use. No evidence was given at trial. The trial judge directed the jury as to the use they could make of the evidence of the interview, contrasting denials & admissions not supported by evidence on oath.
Right to silence - miscarriage of justice - whether observations on weight to be attached to exculpatory statements permissible - whether trial judge erred in directions on right to silence in relation to observations - whether error in directions on weight as question of fact - whether observations erroneous at law.
Appeal dismissed.
334

RYMER, Patrick Wayne - CCA, 6.9.2005 - 156 A Crim R 84
Grove, Barr & Latham JJ
Citation: R v Rymer [2005] NSWCCA 310
Conviction and sentence appeal.
Count 1: sexual intercourse with child under age of 10;
Counts 2&3: sexual intercourse with child aged between 10 & 16.
Sentenced to 9y with NPP of 6y on each count, to be served concurrently.
The complainant is the daughter of a woman with whom appellant was living in a de facto relationship at the time of the offences.
Denial by accused when confronted by police with allegation - denial maintained at video recorded interview held shortly thereafter - objection by Crown to admission of exculpatory material - hearsay - basis of exception to hearsay rule - maintenance of common practice - general duty of Crown to tender subject to objectionability of contrived material - accused gives evidence following ruling requiring him to do so in order to make earlier denials admissible - whether ruling erroneous - whether miscarriage - trial judge misinformed as to applicable maximum penalty - sentences in excess of maximum.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 6*y with a NPP of 4y.
335

LNT - CCA, 8.9.2005
Simpson, Johnson & Rothman JJ
Citation: R v LNT [2005] NSWCCA 307
Sentence appeal.
Malicious wounding with intent to do GBH.
7*y with a NPP of 5y.
Applicant attacked the victim near the Footlocker Store at the entrance to the Town Hall Arcade, striking her a number of times. Applicant's older sister & a friend arrived at the scene & grabbed the victim. The victim pulled out 2 'fighting sticks'from her jacket pocket & used them to defend herself but she was overpowered by the 3 attackers who restrained & punched her. CCTV footage showed the applicant striking the victim a number of times with a knife. The victim suffered multiple lacerations, requiring sutures.
Aged 17 at time of offence - produced false identification showing she was aged 22 - as a result treated as an adult until true identity established 4 months later - had participated in a lengthy electronic interview.
Whether sentence manifestly excessive - misuse of aggravating factors - special circumstances - young offenders - whether offender should be treated as an adult - principles of sentencing minors & juveniles.
Appeal allowed: resentenced to 7y with a NPP of 4y, to be served in a juvenile detention centre.
336

REID, Paul Wayne - CCA, 8.9.2005 - 155 A Crim R 428
Sully, Hidden & Hall JJ
Citation: R v Reid [2005] NSWCCA 309
Sentence appeal.
Malicious wounding with intent to do GBH.
6y 9m with a NPP of 4y 5m.
The applicant & the victim had been in a de facto relationship, but not for the 18 years preceding the offence. They still saw each other as friends. On the day of the above offence, the applicant visited the victim. He had a female with him at the time. The applicant demanded to know who had been staying at the victim's home. He became very aggressive & shouted at the victim, then went to the kitchen & returned with a large knife. He waved the knife at the victim & slashed down the victim's face, causing a deep laceration from the left side of the top of the victim's nose down to the bottom of the right side of her chin. He then pushed the knife towards the victim's throat. In an attempt to fend off further injury, the victim grabbed hold of the knife, which caused a deep laceration to her thumb & part of her hand. The applicant threw the knife towards the sink in the kitchen, took the victim's children (aged 10 & 3) & left with the other female. He is not the natural father of the 2 children but had visited them numerous times & looked after them.
Objective seriousness of offence - double counting of relevant aggravating factors in s.21A Sentencing Act - relevant legal principles - whether sentence excessive.
Appeal dismissed.
337

GRATTAN, Phillip John - CCA, 2.9.2005
McClellan AJA, Simpson & Rothman JJ
Citation: R v Grattan [2005] NSWCCA 306
Conviction appeal.
Multiple sex offences against a male person under the age of 16, at the age of 16 & over the age of 16 (4 x sexual intercourse without consent; 1 x sexual intercourse; 5 x act of indecency; 1 x attempt sexual intercourse).
Total sentence of 11y with a NPP of 8y 3m.
Appellant is the complainant's uncle by marriage, being married to the sister of the complainant's mother.
Whether error in admitting evidence of complainant's distressed condition - uncharged acts not complained of - telephone conversations & email messages - incorrect directions - whether miscarriage of justice.
Appeal dismissed.
338

PHAM, Duy Tan - CCA, 12.9.2005
Sully, Hidden & Hall JJ
Citation: R v Pham [2005] NSWCCA 314
Sentence appeal.
1 x import trafficable quantity prohibited import (heroin).
9y with a NPP of 5*y.
On arrival at Sydney Kingsford Smith airport aboard a flight from Bangkok, applicant was frisk searched by Australian Customs Service officers & found to have in his possession 244.6 grams of pure heroin, with a wholesale value of $120,000 & a street value of between $611,500 & $856,100.
Born in Vietnam - family arrived in Australia when applicant was aged 8 years after spending approx 2 years in a refugee camp in Indonesia. In Australia the family spent 2 months in Villawood Detention Centre - left school prematurely in Year 11, having been sentenced to imprisonment in respect of a MV accident in which his friend was killed - upon completion of sentence undertook post-secondary studies course at TAFE completing an IT certificate course - undertook advanced IT certificate course - no history of substance abuse - contrition/remorse - friend's death in MV accident was a traumatic event having ongoing effects upon applicant - impaired capacity to reason & cope with stresses of life - suffered serious psychological harm, including impairment of emotional functioning - unresolved emotional turmoil - symptoms consistent with post-traumatic stress disorder.
Error in adopting two-stage approach to sentencing - error in dealing with applicant's mental condition - mitigating factor - whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with a NPP of 4*y.
339

WELLING, Michael David - CCA, 12.9.2005
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v Welling [2005] NSWCCA 318
Sentence appeal.
2 x armed robbery; 1 x robbery.
Total sentence of 8y with a NPP of 5y.
The victim in the 1st armed robbery was a 50 year-old female attendant at a service station. The amount of money taken was $295. The victim in the 2nd armed robbery was a 19 year-old console operator working in a shop. On this occasion the applicant stole $100. Neither of these victims suffered physical injury. The remaining count involved a robbery committed upon a 69 year-old disabled woman, who suffered minor physical injury during a struggle with the applicant. The sentencing judge found that the emotional impact upon this victim was substantial. On this occasion, applicant stole a packet of cigarettes & a pillow before making his escape.
Aged 19 at time of offending - had been diagnosed with schizophrenia - suffering auditory hallucinations - evidence to indicate direct connection between mental condition & offending.
Mental illness - causal relationship between illness & offences - failure to give proper or sufficient consideration to mental condition - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 4*y with a NPP of 2y 9m.
340

KING, Vincent Patrick - CCA, 25.8.2005
Sully, Hidden & Hall JJ
Citation: R v King [2005] NSWCCA 296
Crown appeal.
Conspiracy to defraud.
s.11 adjournment.
The judge at first instance stated that PD would most likely be the form of punishment that the offender would receive.
The CCA held that in making an order pursuant to s.11 Crimes (Sentencing Procedure) Act 1999 (NSW) the judge ought to have let the adjournment run its course without saying anything more about what might happen, or should happen, or could possibly happen.
s.11 order not correctly made in point of principle - issue of utility - Anderson (unreported) NSWCCA 25.6.1996; Parker (unreported) NSWCCA 13.12.1993 - Crown not prejudiced.
Appeal dismissed.
341

RTGS - CCA, 12.9.2005
Studdert, James & Howie JJ
Citation: R v RTGS [2005] NSWCCA 293
Conviction appeal.
Aggravated sexual intercourse without consent.
3y with a NPP of 18m.
Appellant was the complainant's step-uncle by marriage. It was the Crown case that he digitally penetrated the complainant's vagina when he was baby-sitting her in his home.
Complainant's evidence in chief given by playing videotape - tape marked as exhibit - jury's access to videotape of complainant's evidence in chief - directions as to what use could be made of that evidence - failure to warn against giving disproportionate weight in considering that evidence - whether verdict unreasonable.
Appeal dismissed.
342

DICKINSON, Joseph Brian - CCA, 16.8.2005
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Dickinson [2005] NSWCCA 284
Application under s.43 Crimes (Sentencing Procedure) Act 1999 for an order to correct what was asserted to be a sentencing error.
Malicious wounding with intent to do GBH (guilty plea).
A suspended sentence of 2y with a NPP of 12m was imposed. The Crown successfully appealed against that sentence & the applicant was sentenced to 2y 2m PD. The Court declined to set a NPP. (See R v Dickinson [2004] NSWCCA 457.)
Whether sentence contrary to law - failure to comply with requirement of s.45(2) to record reasons for declining to fix a NPP - such reasons as were recorded disclosed error.
Application dismissed.
343

BOBAK, Trevor Mark - CCA, 6.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Bobak [2005] NSWCCA 320
Sentence appeal.
Maliciously inflicting GBH with intent to do GBH; aggravated BE&S.
Total of 16y with a NPP of 12y.
Suspecting that the victim had stolen a gold bracelet belonging to the applicant's daughter, the applicant & his co-offender went to the victim's home. The victim was not there so the applicant kicked in the door & the offenders stole a stereo system & speakers. They later came upon the victim as he rode a bicycle down an alleyway & promptly set about assaulting him. The applicant repeatedly struck the victim on the head with a plasterer's hammer & then struck him on the head with the axe blade on that tool. The blade penetrated the victim's skull from just above his right ear, entering into the middle of his brain. The victim suffered horrendous injuries, leaving him permanently brain damaged with resultant devastating effects on his life. See also R v Kirkland [2005] NSWCCA 130.
Guilty plea - history of drug & alcohol abuse - family support - long criminal record - previous imprisonment for a short period.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
344

ISON, Kevin Shane - CCA, 6.9.2005
ISON, Joseph
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Ison; R v Ison [2005] NSWCCA 321.
Conviction appeals.
Maliciously inflict GBH with intent to do GBH.
No details of offence stated.
Indictment signed by person not authorised to do so - trial therefore a nullity.
Appeal allowed: convictions & sentences quashed; new trials ordered.
345

DV - CCA, 8.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v DV [2005] NSWCCA 319
Crown appeal.
Robbery whilst armed with offensive weapon; + Form 1 (2 x common assault).
3y with a NPP of 2y 3m to be served by way of PD.
Respondent was an employee of the Abruzzi Sports Club. In the early hours of the morning, after the club had closed, he opened a rear door & allowed his 3 co-offenders, wearing balaclavas, into the premises. There were 3 other employees on the premises at the time. They were threatened with pistols & $55,000 in cash was taken from a safe. The intruders pretended that the respondent was a victim of the robbery. The intruders assaulted the 3 other employees of the club. When first interviewed by police, respondent denied playing any role in the offence. He later admitted to being involved & gave an undertaking to give evidence against his co-offenders. Two co-offenders pleaded guilty. Delays occurred in bringing the remaining co-offender to trial. When that trial came on for hearing, respondent gave evidence as promised. At the conclusion of the trial, the jury failed to agree upon a verdict & was discharged. The co-offender was presented for further trial & respondent was again called to give evidence. On this occasion, he reneged.
Aged 22 at offence - born in Laos - came to Australia at 11 months - completed HSC - started using cannabis at school - progressed to heroin; had since ceased using - good employment record - no priors.
Sentence close to expiry - custodial element of sentence fully served.
Whether sentence inadequate.
Appeal dismissed.
346

THAMMAVONGSA, Meng - NSW SC, Kirby J, 13.9.2005
Citation: R v Thammavongsa [2005] NSWCCA 915
Remarks on Sentence.
Murder
Some hours after a minor verbal altercation with a group of young men at a party, offender sought out the group then shot the deceased in the head with a pen gun, after which he kicked him in the head. The deceased died from injuries to his brain.
Aged 21 at time of offence - born in Laos - migrated with mother at age 5 years - began smoking cannabis shortly after entering high school - then began using heroin - expelled from one school, found it difficult to adjust to the next - left school in Year 9 - illiterate in English & in native tongue - employed as a process worker at time of offence - with assistance of family, attempted treatment to overcome addiction, without success - prior offences, starting at age 16 - previous short term of imprisonment.
Sentenced to 21y with a NPP of 16y.
347

VL - CCA, 2.9.2005
Grove, Hulme & Simpson JJ
Citation: R v VL [2005] NSWCCA 301
Sentence appeal.
Specially aggravated kidnapping.
6y with a NPP of 4y.
Aged 15y 10m at time of offence - of Tongan extraction - asked to leave school because of constant truanting - no employment history - drug use - mild intellectual disability - intense chronic angry feelings - anti-social tendencies - easily swayed - vulnerable to exploitation - impulsive behaviour - responded well to counselling whilst in custody - multiple priors - on parole at time of offending - previous imprisonment.
Error in taking into account standard NPP outlined in Div 1A, Pt 4 Crimes (Sentencing Procedure) Act 1999 - error in regarding as an aggravating factor that offence committed in company - error in failure to find that offences were not planned or organised - error in failure to give adequate consideration to special circumstances.
Appeal allowed: resentenced to 5y with a NPP of 3*y, to be served in a juvenile detention centre.

Sentence amended:-
VL - CCA, 21.11.2005
Grove, Hulme & Simpson JJ
Citation: R v VL (AMEND) [2005] NSWCCA 389
Amendment to above sentence.
Correct sentence: 5y 4m with a NPP of 3*y.

348

LLM - CCA, 2.9.2005
Grove, Hulme & Simpson JJ
Citation: R v LLM [2005] NSWCCA 302
Sentence appeal.
Assault with intent to rob in company and with wounding; specially aggravated kidnapping; + offences on two Form 1 documents.
Total sentence of 8y 4m with a NPP of 5y.
Aged 17y 3m at time of offences - background of considerable disadvantage - poorly educated - poorly supported by family & community - significant intellectual & personality problems.
Whether sentences manifestly excessive - parity - error in having regard to element of offence - error in having regard to prior criminal record as aggravating factor - markedly more favourable treatment extended to a co-offender.
Appeal allowed: resentenced to total of 6y 8m with a NPP of 5y; order that the sentence be served in a juvenile detention centre until age 21.
349

BELLAMY, Joseph Allen - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Bellamy [2005] NSWCCA 329
Sentence appeal.
2 x aggravated BE&S (in company); + offences on two Form 1 documents.
Total sentence of 3y 11m with a NPP of 3y.
The 1st BE&S involved applicant & 2 other offenders breaking into the Gianni Versace store in Castlereagh St, Sydney. All the property taken by the offenders (wholesale value in excess of $12,000) was recovered. The damage to the property was in excess of $2,000. The 2nd offence involved the applicant & a co-offender forcing open the door to the computer laboratory inside the offices of Australian Consolidated Press in the city & stealing 17 laptop computers valued at $42,500. None of that property was recovered. The matters on one Form 1 document included 2 further BE&S offences when laptop computers & a video camera worth more than $20,000 were stolen. The matters on the other Form 1 document involved possession of car breaking implements, entering premises with intent to commit an indictable offence & goods in custody.
Aged 18 at time of 1st BE&S, 22 at time of 2nd - guilty plea - sad & troubled life - childhood marked by parental conflict/alcohol abuse, resulting in chronic neglect of applicant - by age 11 took to wandering through Kings Cross after school, getting into drugs & returning home late at night - DOCS intervened & applicant placed into care of older sisters - by age 14 was dependent upon heroin, began stealing to support habit - ongoing support of both sisters - eldest suffers from schizophrenia - priors - previous imprisonment - on parole at time of above offences.
Parity - prior criminal record as an aggravating factor.
Appeal dismissed.
350

MASRI, Ali - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Masri [2005] NSWCCA 330
Conviction appeal.
Supply MDMA (ecstasy).
1y 9m with a NPP of 9m.
Appellant was arrested, having been found in possession of 13.2 grams of MDMA. He pleaded guilty on the advice of his counsel, despite the fact that at all times he had instructed his counsel that he had possession of the drug only for his personal use. His counsel believed that his claim to have possession of the drug only for his own personal use did not affect his guilt of the charge of supply but was relevant as a matter in mitigation. At the sentencing hearing, the appellant gave evidence, maintaining that his possession was for nothing other than his own personal use. During the course of argument, the sentencing judge raised the question of what offence the appellant would be guilty of in the event that he accepted that his possession of the drug was for his personal use. He was told by counsel that it was still 'a deemed supply', which was accepted by his Honour. Counsel appearing for the appellant at the sentencing proceedings has since admitted her error. On appeal, the Crown accepted that the plea of guilty was entered in circumstances that gave rise to a miscarriage of justice.
Error in advising 'a deemed supply'- miscarriage of justice.
Appeal allowed: conviction & sentences quashed; matter remitted to the DC to be dealt with in accordance with procedures of that court. Bail granted, subject to conditions.
351

MALIK, Jana - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Malik [2005] NSWCCA 334
Sentence appeal.
2 x BE&S.
Total of 18m with a NPP of 15m.
Applicant broke into 2 houses & stole valuable personal property. She was detected by fingerprint & DNA evidence & pleaded guilty to both matters in the DC.
Aged 34 at time of sentence - long-standing addiction to heroin - priors - previous imprisonment.
Partial accumulation of sentences - error in imposing aggregate NPP greater than 75% of aggregate head sentence - trial judge did not impose such a sentence inadvertently - whether lesser sentence warranted.
Appeal dismissed.
352

CHRESTA, Nathalie - NSW SC, Greg James J, 14.3.2005
Citation: DPP v Chresta [2005] NSWSC 233
Appeal by the DPP against an acquittal.
Police observed respondent holding a mobile phone to her ear whilst driving her car. She said that she was merely turning the phone off in order not to wake up her son & had placed the phone to her ear to make sure it was turned off. The magistrate dismissed the charge, saying that he could not be satisfied that what the defendant did constituted 'use'of the phone under r 300 of the Australian Road Rules (incorporated in NSW by way of Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999).
Bruce James J held that to turn a phone on & off is an operation of the phone & therefore is a 'use'of the phone within the meaning of r 300. He declined to remit the matter back to the LC or set aside the acquittal. He stated that for the future the width of the offence was the operation of any of the communication functions of a hand-held mobile phone, which included turning it on & off.
353

AFELE, Suafoa - CCA, 7.9.2005
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v Afele [2005] NSWCCA 315
Sentence appeal.
1 x AOABH in company - 3y with a NPP of 2y; 2 x robbery in company - 3y with a NPP of 1y.
Total sentence of 4y with a NPP of 2y.
Three men were walking In King Street in the city shortly before 3.30am when they were confronted by a group of about 10 or 12 men, one being the applicant. One of the 3 men suffered a number of injuries, having been punched & kicked by the applicant's group. The applicant's group stole a number of items from these men. Less than an hour later, applicant's group approached another 2 men & robbed them.
Aged 18* at time of offending - guilty plea - born in NZ of Samoan origin - family migrated to Australia when applicant was aged 16 or 17 - religious family - remorse - prior good character.
Whether sentences manifestly excessive - parity with sentences imposed upon co-offenders - totality.
Appeal allowed in respect of sentence for count 1: resentenced to a FT of 18m on that count. Appeal otherwise dismissed. Total sentence remained at 4y with a NPP of 2y.
354

ROMANO, Adrian Russell - CCA, 6.9.2005
Simpson J, Smart AJ & Patten AJ
Citation: R v Romano [2005] NSWCCA 313
Sentence appeal.
1 x intimidation; 1 x AOABH in company.
Total of 3y with a NPP of 2*y.
Applicant & the female victim had been in a 3 year relationship & had a child aged 17 months at the time of the offence. The victim of the assault charge was the female victim's current partner with whom she was living at the time. The applicant & the female victim arranged to meet so that the applicant could see his daughter. After meeting, they drove to a nearby park where the intimidation offence occurred. Applicant then made a phone call & was joined by 2 women & his 2 brothers. He ordered the female victim to drive him & his brothers to her home. When the door was opened by the male victim, the applicant & his brothers, armed with a club lock, confronted the man & repeatedly struck him on the legs, head & chest. Both victims were able to escape. Following treatment in hospital, the male victim made a full recovery.
Aged 22 at time of offences - significantly disadvantaged background - problems as a child - mixed with wrong crowd at school - father a bad influence - priors, particularly offences involving violence.
Consideration of aggravating features - serving sentence in protection - accumulation of sentences.
Appeal dismissed.
355

PRICE, Jeremy Paul - CCA, 15.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Price [2005] NSWCCA 285
Sentence appeal.
1 x aggravated B&E a dwelling & commit serious indictable offence (AOABH)
2y 8m with a NPP of 1y 6m (special circumstances found).
Applicant's father & the victim of the above offence had an altercation, during which the applicant's father was injured. The following day, the applicant armed himself with a wooden stick, entered the victim's home, went upstairs to the victim's bedroom where the victim was in bed, accused the victim of having bashed his father & struck him hard in the vicinity of his left eye & again to his head & twice to his body. He threatened the victim that he & the bikies were after the victim. The victim was taken to hospital. He suffered fractures to his nose & other facial bones, trauma to the left side of his face, swelling of the left eye & nose area & bruising to the chest. He is not expected to suffer any long-term neurological injury. Two days after the attack, applicant voluntarily presented himself to police & was interviewed, but made no admisions & declined to respond to allegations put to him.
Aged 24 at time of offence - came from a close-knit family - hard working - held down full-time job & own weekend business - dilligent involvement in variety of community & charity work - after offence, sought help & was referred to a psychologist for assessment & anger management training - constant & committed effort towards rehabilitation - priors, including offences of violence - no previous imprisonment.
Use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s.21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for Court to form a s.6(3) opinion.
Appeal allowed: resentenced to 16m with a NPP of 9m.
356

ORBAN, Steven - CCA, 22.9.2005
Simpson J, Smart AJ, Patten AJ
Citation: R v Orban [2005] NSWCCA 312
Sentence appeal.
2 x supply heroin; + Form 1 (1 x goods in custody, being a sum of money).
Total sentence of 4y with a NPP of 2*y.
The offences came to light as a result of an undercover police investigation. The applicant & 3 associates were involved in the illegal distribution & supply of heroin.
Parity - relevance of comparison with co-offenders sentenced for ongoing supply - whether breach of De Simoni principle (147 CLR 383) - powerful subjective circumstances - whether sentence excessive.
Appeal allowed in part: NPP reduced to 2y.
357

SCHUMACHER, Kelly Louise - CCA, 22.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v Schumacher [2005] NSWCCA 335
Sentence appeal.
Supply prohibited drug (methylamphetamine); + Form 1 (drive MV while licence suspended).
2y with a NPP of 13m.
The sentencing judge held that the driving offence had no significance in determining the sentence for the drug offence.
The charge on which the applicant was convicted was an alternative one. Along with her de facto husband, the applicant had been charged with supplying a large commercial quantity of the drug. Both she & her de facto were acquitted of that charge. The alternative charge was left to the jury by the judge, applying the decision in King [2004] NSWCCA 20 after the de facto had given evidence supporting that charge but negating the charge in the indictment. Counsel for the applicant in the CCA contended that the judge told the jury that if they acquitted her of count 1, they should convict her of the alternative count, in that he referred to their verdict as to the 1st count being guilty or not guilty or guilty of the alternative count; that the judge did not tell them that they could return a verdict of not guilty on the alternative count; & that the judge gave strong directions on the alternative count reflecting the state of the evidence, saying that there was no dispute about the facts on the alternative count. No objections were taken at the trial to the directions given.
Aged 28 at time of offending - has 2 children aged 6 & 7 to be looked after by applicant's mother - children adversely affected by their mother being in gaol, especially with their father also in gaol - sentencing judge held that very exceptional circumstances did not exist - failure to remain drug free whilst on remand.
Whether sentence excessive.
Appeal dismissed.
358

OTTO, Phillip - CCA, 23.9.2005 - 157 A Crim R 525
Sully, Hidden & Hall JJ
Citation: R v Otto [2005] NSWCCA 333
Sentence appeal.
Import commercial quantity cocaine; possess falsified passport.
Total of 14y with a NPP of 8*y.
The amount of cocaine imported was a little over 3.025 kgs, with a pure weight of a little over 2.136 kgs. The estimated street value was a little more than $854,000. Applicant arrived in Australia aboard a Land Chile Airlines flight from Santiago & presented a falsified Irish passport in another name.
Whether appropriate weight given to guilty plea - Thomson and Houlton guideline judgment (49 NSWLR 483) - whether sentence manifestly excessive - comparable cases.
Appeal allowed: resentenced to a total of 10*y with a NPP of 7y.
359

RTI - CCA, 20.9.2005 - 158 A Crim R 172
Giles JA, Hislop J, Smart AJ
Citation: R v RTI [2005] NSWCCA 337
Special hearings - appeal against determinations.
Multiple charges of sexual offences.
Total limiting term of 11y.
Special hearings under Mental Health (Criminal Procedure) Act 1990 - election for determination by judge alone - whether hearings miscarried because judge did not enquire into understanding of nature of election - R v Minani ([2005] NSWCCA 226) required judge to be satisfied that person's barrister or solicitor be satisfied person properly understood - no enquiry into this - judge's determinations quashed - whether charges of sexual intercourse without consent with person under 16 unreasonable & inconsistent with evidence - consideration of evidence as to complainant's age at the time of the alleged offences - open to judge to be satisfied beyond reasonable doubt - observations as to nomination of limiting terms under Mental Health (Criminal procedure) Act - accumulation of sentences where multiple offences - can not nominate limiting term if commencement after the time of nomination - legislative attention deserved.
Appeal allowed: determinations that appellant committed the offences quashed, new special hearings to be conducted.
360

O - CCA, 16.9.2005
Sully, Hidden & Hall JJ
Citation: R v O [2005] NSWCCA 327
Crown appeal.
Multiple sexual offences upon children (sexual intercourse & aggravated indecent assault; children aged 5, 6 & 8).
Total sentence of 4y with a NPP of 2y.
There were 2 separate trials.
The respondent was a bus driver & was married to the grandmother of one of the young children.
Objective criminality - general deterrence - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 5y with a NPP of 2*y.
361

MARSH, Robert William - CCA, 20.9.2005
Studdert, Kirby & Howie JJ
Citation: R v Marsh [2005] NSWCCA 331
Conviction appeal.
Armed robbery.
6y with a NPP of 4y.
The above offence was committed in a bank. After photos taken by the bank's security cameras were developed, a police officer sent one of them to the media. That photo & an accompanying article were subsequently published. The appellant's sister saw the photo & the article, claimed to recognise the appellant & notified the police. Four witnesses to the robbery participated in photo identification parades. None of them selected the appellant's photo as being the photo of the robber. Those witnesses consisted of 2 tellers working in the bank at the time, a sales consultant who was present in the bank & a 12 year old boy who saw a person running from the bank. One of the tellers was the teller who dealt with the offender.
Admissibility of security camera photographs - scrutiny of evidence given by sister.
Appeal dismissed.
362

CHAMI, Mahmoud - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Chami [2005] NSWCCA 299
Sentence appeal.
Aggravated sexual intercourse without consent (in company); detain for advantage.
Total sentence of 18y with a NPP of 10*y.
The victim was lured from a train by several co-offenders & was sexually assaulted in a toilet block. She was then driven in a black car to a trotting club, where the co-offenders met with another group of young males in a red car. The applicant was the driver of the red car. His passengers included Bilal Skaf. The victim was told that the occupants of the red car would take her home, whereupon she entered the red car. At one point in the journey, the applicant held an unseen object to the victim's head & said, 'Don't move, bitch, or you're dead.'The applicant drove the car to an industrial estate at Chullora. The male passengers alighted from the car but guarded the doors to prevent the victim getting out. The applicant climbed into the back seat with the victim, pushed her onto her back & had penile-vaginal intercourse with her without her consent.
Aged 19 at time of offending - prior good character - employed as a bricklayer - supportive, stable, loving family background - medium to low risk of reoffending - strict protective custody - expressed sympathy for victim - remorse - no priors.
Whether errors in findings by sentencing judge - whether sentences manifestly excessive.
Appeal dismissed.
363

SKAF, Bilal - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Bilal Skaf [2005] NSWCCA 297
Sentence appeal.
1st trial: Offences of 10 August 2000.
9 x aggravated sexual assault (in company); 2 x detain for advantage; 3 x assault.
Total of 30y with a npp 20y.
2nd trial: Offences of 30 August 2000.
2 x aggravated sexual assault (in company); detain for advantage; 2 x pervert the course of justice; aggravated indecent assault (in company); aggravated act of indecency (in company.
Total of 26y with a NPP of 10y.
Overall sentence of 46y with a NPP of 30y.
On 10.8.2000, applicant was among 8 young males who met the victims (2 female Year 12 students) at a shopping centre. The victims were offered marijuana & accepted a lift home in a white van with the applicant & 3 of the co-offenders. The other 4 co-offenders followed in a red car. The victims were taken to a park & detained. They were forced to participate in numerous acts of oral intercourse with the applicant & his co-offenders. In those instances in which the applicant did not personally have oral sex with the victims, he was convicted on the basis that he aided & abetted each offender by his presence & willingness to assist in the criminal activity if required. He was also present & aided & abetted the actual assailant in the commission of the common assaults. On 30.8.2000, a group of 5 offenders, including applicant's brother, lured a young woman from a train & subjected her to a series of sexual assaults in a public toilet. She was then driven to the deserted car-park of a trotting club where further sexual assaults were committed upon her. Subsequently, the victim saw a red car drive into the car-park. She entered this car after being told she was being taken home. The applicant was one of the occupants of this car. The victim was driven to an industrial estate & during the course of the journey was detained in the car & was touched on the upper thighs, legs & breasts by the applicant & a co-offender. The applicant & the co-offender grabbed the victim's hands & put them around their exposed penises, moving them up & down. The applicant & a co-offender pulled up the victim's skirt & inserted their fingers into her vagina. The victim was threatened by a co-offender with what she believed to be a weapon. At the industrial estate, the victim was sexually assaulted by several co-offenders. The applicant forced her to have penile-vaginal intercourse with him in the back of the car. After being interviewed by police, the applicant incited a female acquaintance to make a false statement supporting his claim that he, his brother & a co-offender were at home at the time of the attacks.
Aged 18 at time of offences - left school at age 14 - no remorse or contrition - priors (larceny, malicious damage, shoplifting, dangerous drive, take & drive conveyance without consent, traffic offences) - no previous imprisonment.
Whether offences of aggravated sexual intercourse constituted worst class of case - whether errors in findings & approach by sentencing judge - parity - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 28y with a NPP of 22y.
364

SKAF, Mohammed - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mohammed Skaf [2005] NSWCCA 298
Sentence appeal.
2 x detain for advantage; 2 x aggravated sexual intercourse without consent (in company); +Form.
Total of 23y with NPP of 11y.
On 30.8.2000, applicant was among a group of young males who lured the 18 yeear old victim from a train. The applicant took the victim's mobile phone after she received a call from a friend. She was then led to a toilet block in a carpark & was told by the applicant that she would not get her phone back until she had sex with him. He prevented the victim from leaving & pushed her against the wall. He turned the victim around, pulled down her skirt & underwear & inserted his penis in her vagina from behind. She was then subjected to sexual assaults by co-offenders. She was persuaded to enter a black car, on the pretext of being driven home. Instead, she was driven to a trotting club, where further offences were committed by other males. The victim was then transported in a red car to an industrial estate. More offences by co-offenders occurred there. At one point, the applicant led the victim away from the other males & forced her to give him oral sex.
Aged 17 at time of offences - younger brother of Bilal Skaf - born in Australia - average intelligence - completed number of courses in detention - anti-social personality disorder - troublesome & violent whilst in detention - unwilling to accept responsibility for offences - frequently protested innocence - diagnosed with Hodgkin's disease after sentencing - non-associated protective custody - no relevant priors.
Whether errors in findings & approach by sentencing judge - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 19y with a NPP of 11y.
365

H - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v H [2005] NSWCCA 282
Sentence appeal.
Act of indecency; assault; aggravated indecent assault (in company); 4 x detain for advantage; 3 x aggravated sexual intercourse without consent (in company); sexual intercourse without consent; + Form 1 offences.
Total of 25y with NPP of 15y.
Applicant was one of 4 males who surrounded a 14 year old girl on a train & made repeated sexual overtures to her. Applicant's conduct included putting his hand on her thigh & vaginal area (outside her clothes), grabbing her neck & masturbating in front of her with a condom on his exposed penis. Six days later, applicant was among 8 males who approached 2 young women (Ms A & Ms B) at a shopping centre. The victims were driven in a white van, containing 4 of the males, to a park. The other 4 males, including the applicant, followed in a red car. When the red car approached the park, Ms A was just breaking free from engaging in non-consensual oral intercourse with Bilal Skaf. The men from the red car tackled her to the ground. A co-offender threatened to bash Ms A if she did not perform oral sex on him, so she complied while the applicant & others stood nearby. At one point, applicant forced Ms A to give him oral sex while he held the back of her head. Later, Ms B was tackled by a co-offender & forced to give him oral sex in the applicant's presence. Twenty days later, applicant was among a group of males who lured Ms C from a train to a toilet block in a car park. Applicant stood outside the toilet block while 4 co-offenders sexually assaulted her inside the block. Ms C was persuaded to enter a black car on the pretext of being given a lift home but instead was driven to a trotting club, where the applicant forced her to give him oral sex.
Aged 17 at time of offending - youngest of 8 children - parents separated when he was a child - IQ of 67 - assessed as mildly mentally retarded - sentencing judge concluded he was 'intellectually and possibly mentally disabled'- moderate risk of re-offending - behavioural problems - attended special school because of learning difficulties - left school at age 14 - genuine remorse - reasonable prospects of rehabilitation - prior juvenile offences not relevant - no previous imprisonment.
Accessorial offences & offence as principal in first degree - whether errors in findings & approach by sentencing judge - whether sentences unduly harsh & severe.
Appeal allowed: resentenced to a total of 16*y with a NPP of 12y.
366

AIKEN, Bruce Malcolm - CCA, 20.9.2005 - 63 NSWLR 719; 157 A Crim R 515
Studdert, Kirby & Howie JJ
Citation: R v Aiken [2005] NSWCCA 328
Conviction appeal (against 2 sexual offences).
Sexual intercourse without consent; indecent assault; steal from the person.
Total of 4y with a NPP of 12m.
Applicant was in a K-Mart store when he realised that the complainant was attempting to steal items. He approached her & told her he had been watching her. The complainant thought he was an undercover security person. The applicant said he was going to tell security, then said 'I can help you if you help me'& pointed to his groin. The complainant put her hand on the applicant's trousers on top of his penis. The applicant told the complainant to follow him & they left the store. The complainant declined to go to her home. They waited for nearby toilets to become unoccupied. The victim still believed the accused was a security officer & felt scared.The applicant locked the toilet, pulled down his trousers & underwear & put the complainant's hand on his penis which became erect. He told her to kiss his penis. After intially declining, the complainant put his penis in her mouth 3 times, however, it hurt the applicant as she used her teeth. The applicant told the complainant to use her hand & put soap & water on his penis & on her hand. The complainant masturbated the applicant until he ejaculated. The applicant then asked the complainant for money & took $200 from her purse. The complainant asked the applicant to help her obtain some items from K-Mart. The applicant agreed, saying he would meet her there, but the complainant could not find him.The complainant then told a staff member about what had happened.
Aged 30 at time of offending - no other details in judgment - prior offences of indecent assault upon a child under 10, AOABH - previous imprisonment.
Whether perceived non-violent threat vitiated consent.
Appeal in relation to convictions for the 2 sex offences allowed, judgments of acquittal entered for those 2 offences.
367

HAJEID, Belal - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Hajeid [2005] NSWCCA 262
Sentence appeal.
2 x detain for advantage; 2 x assault; 2 x aggravated sexual intercourse without consent (in company).
Applicant was with a group of 8 males who approached 2 young women at a shopping centre. The victims were driven to a park in a white van, containing 4 of the co-offenders, including Bilal Skaf. The other 4 co-offenders, including the applicant, followed in a red car. When the red car arrived at the park, Ms A was breaking free from an act of forced oral intercourse with Bilal Skaf. The applicant's group tackled Ms A to the ground, kicked her around the legs & threw her into the bushes. After Bilal Skaf sexually assaulted Ms A a 2nd time, she was approached & threatened by the men from the red car. She was subjected to non-consensual oral intercourse with 4 men, while the applicant was present, aiding & abetting these assaults. The group from the red car then surrounded the other victim (Ms B) & demanded oral sex. The applicant grabbed Ms B by the arm & took her behind a toilet block. He pushed her to her knees, held her head & put his penis into her mouth.
Aged 18 at time of offending - left school end of Year 11, having performed poorly - brief periods of employment - psychological report & pre-sentence report noted lack of self-perception - portrayed himself as innocent victim of co-offenders & the court - prior offences whilst a juvenile treated as not relevant - no previous imprisonment.
Accessorial offences & offence as principal in the first degree - whether errors in findings & approach by sentencing judge - youth - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 17y with a NPP of 12y.
368

FLETCHER, James Patrick - CCA, 23.9.2005 - 156 A Crim R 308
McClellan CJ at CL, Simpson & Rothman JJ
Citation: R v Fletcher [2005] NSWCCA 338
Conviction appeal.
8 x homosexual intercourse with male of or above 10 & under 18 (repealed s.78K Crimes Act 1900); 1 x commit act of indecency towards person under 16 under authority (repealed s.61E(2) of the Act).
The appellant was a parish priest & the complainant was a parishioner & altar boy.
Prior conduct - tendency & coincidence - relevance - principles to apply - material to be considered - time at which judgment to be made - exercise of discretion by trial judge - Common Law as a guide to Evidence Act - weighing of probative value & prejudicial effect.
Appeal dismissed.
369

POLLOCK, Daniel Keith - CCA, 22.9.2005
Simpson, Howie & Rothman JJ
Citation: R v Pollock [2005] NSWCCA 316
Conviction appeal.
Murder.
Life imprisonment.
The Crown case at trial was that the appellant had caused the victim to fall down a flight of stairs by punching him & that he had pursued the victim down the stairs & further violently assaulted him at the bottom of the stairs, as a result of which he had caused the victim's death. The appellant was unsuccessful in his appeal against conviction in 1992: see R v Pollock, unreported, NSWCCA, 13.4.1992). On 24.2.2005, after an application under s.474B Crimes Act 1900, the matter was referred to the CCA to be dealt with as an appeal against conviction under the Criminal Appeal Act 1912. The basis on which the appellant sought orders quashing his conviction was that fresh evidence existed that was not reasonably available at the time of the trial & that it was of sufficient cogency to cast doubt upon the guilty verdict.
Evidence of admission by appellant given by police officer in trial - denied by appellant - appellant alleged that confessional evidence fabricated - appellant alleged participation in interview not voluntary - admissibility of confessional material - evidence given to the Royal Commission into the NSW Police Service - credibility of police witnesses at trial - police officer charged with refusing to submit to breath analysis proved but dismissed - whether capable of affecting credibility of police officer at trial - police officer alleged to have taken part in assault - whether capable of affecting credibility - alleged inadequate or corrupt investigation of different murder - whether capable of affecting credibility - whether fresh evidence meets established tests - impact of Evidence Act 1995.
Appeal dismissed.
370

SANOUSSI, Mohamed - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mohamed Sanoussi [2005] NSWCCA 323
Sentence appeal.
4 x aggravated sexual assault (in company); robbery in company; 3 x detain for advantage.
Total sentence of 21y 3m with NPP of 12y (to be served ina juvenile detention centre until age 21).
On 10.8.2000, applicant was one of a group of 8 males who approached 2 young women (Ms A & Ms B) at a shopping centre. The victims were driven in a white van to a park. During the journey, the applicant indecently assaulted Ms A in the van. At the park, he forced Ms A to give him oral sex & stole some of her property. He also participated in other acts, including common assaults upon Ms A and Ms B. On 30.8.2000, applicant & approx 3 other males approached a young woman (Ms C) on a train. She was lured off the train & taken to a toilet block, where she was subjected to various sexual assaults. The applicant forced his penis into the victim's mouth.
Aged 16 at time of offending - congenital deformity (no fingers on right hand) - low self-esteem, poor social skills - developmentally delayed as a young child - subsequent disruptive behaviour & truanting - during period in custody has been treated for depression & attempts at self-harm - participation in counselling & acceptance of responsibility for offences indicate positive prospects of rehabilitation - no priors.
Offences committed as an aider & abetter did not give rise to same culpability as offences committed as a principal - totality - whether error in almost wholly accumulating some sentences.
Appeal allowed: resentenced to 16y, NPP 10y (to be served in a juvenile detention centre until age 21).
371

SANOUSSI, Mahmoud - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mahmoud Sanoussi [2005] NSWCCA 322
Sentence appeal.
Aggravated sexual assault (in company); detain for advantage.
Total of 11y 3m with a NPP of 6*y.
Applicant was part of a group of young men who approached the young female victim on a train on 30.8.2000. The victim was lured from the train & sexually assaulted in the toilet block of a carpark.
Aged 15 at time of offending - limitied remorse & insight into gbravity of offending - reasonable prospects of rehabilitation - youngest of the offenders but strongly built & assumed protective role towards his co-offender brother who has a physical impediment - priors as a juvenile not significant - no previous imprisonment.
Parity.
Appeal dismissed.
372

TABE - HCA, 6.10.2005 - 225 CLR 418; 79 ALJR 1890
Citation: Tabe v The Queen [2005] HCA 59
On appeal from the SC of Queensland.
Criminal law - attempted possession of dangerous drug - unopened parcel contained dangerous drug - innocuous substance substituted by police - principal offender obtained custody of unopened parcel - appellant charged with aiding, abetting or counselling attempted possession.
Whether Crown need prove only that principal offender has custody of unopened receptacle containing drug & knows that it is not empty to establish possession of dangerous drug in contravention of s.9 Drugs Misuse Act 1986 (Qld) - whether requisite state of knowledge differs between principal offender & accessory alleged to have aided, counselled or procured custody of receptacle - whether s.129(d) Drugs Misuse Act 1986 (Qld) requires accused to prove honest & reasonable but mistaken belief.
Appeal dismissed.
373

YORK - HCA, 6.10.2005 - 225 CLR 466; 79 ALJR 1919
Citation: York v The Queen [2005] HCA 60
On appeal from the SC of Queensland.
Appellant pleaded guilty to serious drug offences - co-operated with prosecuting authorities to secure murder conviction - evidence that appellant's life would be endangered in prison - appellant sentenced at first instance to a wholly suspended term of imprisonment because of that risk - AG appealed that decision, alleging the sentence was manifestly inadequate - Queensland Court of Appeal re-sentenced appellant to serve a term of actual imprisonment.
Whether appropriate to wholly suspend sentence - whether sentencing judge entitled to take into account risk to appellant's safety whilst serving a term of imprisonment.
Appeal allowed: Orders of the Court of Appeal of the Supreme Court of Queensland set aside and in their place an order made that the appeal to that Court be dismissed.
374

BOULAD, Talal - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Boulad [2005] NSWCCA 289
Sentence appeal.
19 x sexual intercourse with person aged under 16 years; + Form 1 (not keep firearm safely; possess unregistered firearm; 2 x unlawfully obtain goods).
Total sentence of 6y with a NPP of 3y.
The applicant had sexual intercourse with a 15 year old girl over a period of 4 months. The complainant was a ward of the State living in a group home & had been diagnosed as having an intellectual disability in the moderate range. She was suffering from an anti-social personality & required round-the-clock supervision because of her condition. She was considered to be extremely vulnerable. The complainant's caseworker contacted police after the complainant told her that she was having sex with the applicant, that he had shaved her pubic region & had taken photographs of her whilst she was naked. When police went to the applicant's premises, they found photographs & a notebook that set out in considerable detail the sexual activities that the applicant had engaged in with 10 different females. There were numerous references to the complainant, including the fact that he had to let her go because she was under age. In due course, the complainant was referred to a family planning clinic & was diagnosed as suffering from Chlamydia.
Aged 32 at time of offending - prior good character - history of sexual abuse - personality disorder - remorse - separated from wife - has a daughter - continuing family support - no priors - no previous imprisonment.
Whether error in having additional regard to an aggravating factor which forms an element of the offence - whether error in taking the 'global approach'to sentencing.
Appeal dismissed.
375

AHMAD, Walid - NSW SC, Howie J, 9.9.2005
Citation: R v Ahmad [2005] NSWSC 911
Remarks on Sentence.
Manslaughter; maliciously inflict GBH; malicious wounding; being in company AOABH.
The offender shot the deceased. The deceased suffered 6 gunshot wounds to the chest. He was on the ground at the time the shots were fired.
Aged 30 - born in Lebanon - one prior conviction for possessing a prohibited drug -
Excessive self-defence.
Sentenced to a total of 10y 4m with a NPP of 7y.
376

HILTON, Neville Francis - CCA, 7.9.2005 - 157 A Crim R 504
Adams, Bell & Hall JJ
Citation: R v Hilton [2005] NSWCCA 317
Sentence appeal.
8 x having control over premises in which child prostitution took place (s.91F) - concurrent 2y, NPP 12m;
11 x receive money knowing it was derived from an act of child prostitution (s.91E) - concurrent 3y, NPP 12m (cumulative upon above sentence).
Total sentence 4y with a NPP of 2y.
All offences were committed between 11 & 21 August2003. The applicant owned a building in Port Kembla in which a brothel was operating. He took part in the management of the brothel. He attended the brothel almost daily, keeping or checking the books of account. He then took cash in payment of the rent. The only prostitutes providing services to clients of the brothel were 2 girls aged 13 & 14 years.
Offences under ss.91E & 91F Crimes Act 1900 (NSW) - multiple offences - common factual elements - same effective sentence for both series of offences - double punishment.
Appeal allowed in respect of the s.91E offences: concurrent fixed terms of 2m substituted.
377

GILL, David - CCA, 29.8.2005
Spigelman CJ, Ipp JA, Adams J
Citation: R v Gill [2005] NSWCCA 308
Sentence appeal.
1 x aggravated sexual intercourse without consent; + Form 1 (1 x aggravated sexual intercourse without consent; 1 x aggravated indecent assault).
Total of 4y with a NPP of 2*y.
The applicant had been married 3 times. The victim is his daughter by a previous marriage & was living with her mother & maternal grandmother. The applicant happened to meet the grandmother early in 2001 & shortly thereafter travelled with 3 of his younger children from a subsequent marriage to where the victim lived in order to see her. He had not been in contact with her since she was 9 months old. He was told that the victim suffered from a number of mental conditions, including bipolar disorder & depression, for which she was being treated. The applicant invited her to travel with him so that they could get to know each other. The mother & grandmother advised the victim against this, but she decided to go. The grandmother warned the applicant about the victim's mental problems & told him that it was imperative that she should not drink alcohol. A little over a week later, when the applicant & the children were at Tweed Heads, the applicant went to a bar, consumed some alcohol, then bought a number of alcohol drinks for the victim to celebrate her 16th birthday. The victim became intoxicated. They then all returned to the motel where they occupied the same room. The applicant, the victim & one of the other children went for a swim in the motel pool, the applicant in the nude. When they all went to bed, 2 of the younger boys slept in the single bed & the applicant, the victim & his other son slept in the double bed. During the night, the applicant undressed the victim, inserted his finger in her vagina & then full penile intercourse took place, whereupon he ejaculated. Later that same night, he repeated the intercourse over a longer period & again ejaculated. During these incidents, the applicant spoke to the victim & one of the other children. The victim said she was frightened & was too afraid to do anything to stop the applicant from touching her. The following day, they all went to the applicant's house in Queensland, where the applicant again had intercourse with the victim. He told the victim what he wished to do & the victim told him she did not want him to do it. Full vaginal intercourse occurred again & he again ejaculated. The following day, the victim made a complaint to one of her father's friends. Police were informed & the applicant was eventually arrested.
Compromised mental state - relevance - whether reduces importance of general deterrence.
Appeal dismissed.
378

STEVENS - HCA, 21.10.2005 - 227 CLR 319;80 ALJR 91
Citation: Stevens v The Queen [2005] HCA 65
On appeal from the SC of Qld.
Criminal law - unlawful killing - murder - accident - counsel for defence requested direction on defence of accident at trial - whether trial judge erred in declining to direct jury on defence of accident - whether defence of accident open on the evidence - whether jury should have been instructed that appellant could not be convicted unless prosecution had satisfied jury beyond reasonable doubt that the operation of s.23 of the Criminal Code (Qld) had been excluded - relationship between defence of accident and murder - whether defence of accident inconsistent with conviction of murder - relationship between defence of accident and manslaughter - case left to jury on basis that only available verdicts were guilty or not guilty of murder - whether manslaughter should have been left to the jury - whether manslaughter was open on the evidence - whether substantial miscarriage of justice occurred as a result of trial judge'ss failure to give directions on accident.
Appeal allowed: order set aside; appeal against conviction allowed; new trial ordered.
379

DANSON, Neil Matthew - CCA, 30.9.2005
Windeyer & Hislop JJ, Smart AJ
Citation: R v Danson [2005] NSWCCA 343
Sentence appeal.
Aid & abet importation of commercial quantity cocaine; supply commercial quantity MDMA (ecstasy); supply commercial quantity cocaine.
Total sentence of 13y with a NPP of 8y 3m.
The appeal related only to the aid & abet importation charge.
The amount of cocaine imported was 3.7131 kgs, with an approximate street value of between $2.12 million & $4.24 million. The wholesale price range was $464,137 to $612,661.
The principal in the drug importation operation pleaded guilty & gave assistance to authorities. He received a 30% discount & was sentenced to 12*y with a NPP of 8y 3m. The operation's chemist, whose task it was to extract the pure cocaine, received a sentence of 13y with a NPP of 8y.
Judge's assessment of role of applicant - whether open on the evidence - whether sentence excessive.
Appeal dismissed.
380

JTAC - CCA, 5.10.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v JTAC [2005] NSWCCA 345
Sentence appeal.
Count 1: sexual intercourse with female child under the age of 10;
Counts 2&3: indecent assault upon female child under the age of 10 (the same child);
Count 4: sexual intercourse with male child under the age of 10.
Total of 2*y with a NPP of 9m.
The female child was aged 5 at the time the applicant committed the offences upon her. The male child was aged 7 at the time the applicant committed the offence upon him. Although he was a juvenile, the applicant was dealt with at law. After being charged, he was kept in custody for about 1 month, after which he was granted bail. He was returned to custody following breach of bail conditions. He remained in custody for about another 5* months. Thereafter, he was again admitted to bail, although he was required to live in premises operated by Marist Youth Care, as it was no longer possible for him to reside in the household with the child victims.
Aged 13 at time of offences - 25% discount for early guilty pleas - pre-sentence custody taken into account - prospects of rehabilitation viewed with mixture of promise & apprehension, both from expert & family sources.
Whether error in sentencing judge regarding the vulnerability of the victims as an aggravating factor - whether error in having regard to preventative detention in imposing sentence - whether sentence manifestly excessive.
Appeal dismissed.
381

WILLIAMS, Stephen Barry - CCA, 16.9.2005 - 156 A Crim R 225
Basten JA, Simpson & Buddin JJ
Citation: R v Williams [2005] NSWCCA 355
Sentence appeal.
Manufacture methylamphetamine; possess precursor (pseudoephedrine) intended to be used in the manufacture of methylamphetamine; supply methylamphetamine; possess prohibited weapon (pistol); Form 1 (1 x supply methylamphetamine).
Total of 8y with a NPP of 4y.
In respect of each offence, the sentencing judge imposed an identical sentence, which he expressed as imprisonment for 8 years with a NPP of 4 years. He did not express himself to be taking the Form 1 offence into account in relation to any particular count, but appears to have done so on all counts. In sentencing in this way, he failed to comply with s.44 of the Sentencing Procedure Act as amended with effect from 1.2.2003.
Aged 39 at time of offences - guilty pleas - psychiatric disability - diagnosed at age of 9 years - during period of stay in psychiatric hospital was regularly sexually abused by older male patients - traumatic experience as a child could have triggered psychiatric disorder - has fathered 6 children by 5 different mothers - 4 of the children left in his care & applicant is responsible for their upbringing - one child suffers from a significant psychiatric disorder - priors - previous imprisonment.
Psychiatric disability - global sentence imposed for all offences - no attempt to identify appropriate sentence for each offence - breach of Pearce doctrine - additional offences taken into account - discount for guilty plea - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 6y with a NPP of 3y 3m.
382

CE - CCA, 15.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v CE [2005] NSWCCA 326
s.5F appeal against an order refusing a separate trial.
AOABH; sexual intercourse without consent & at the time inflicting ABH.
Applicant faced trial with 2 co-accused.
Particular prejudice to one of 3 accused - not reasonably capable of avoidance by judicial direction - necessary order to avoid unfair trial.
Appeal allowed: Order made that applicant be tried separately.
383

CAMERON, Matthew Allan - CCA, 28.10.2005 - 157 A Crim 70
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Cameron [2005] NSWCCA 359
Crown appeal.
3 x manslaughter; 1 x aggravated driving in manner dangerous causing GBH.
Total sentence of 8y with a NPP of 4y; + disqualified from holding a driver's licence for 10 years.
Respondent was driving in an area with a 50 kph speed limit when he proceeded to accelerate. Three of his passengers asked him to slow down. He continued to accelerate & reached a speed well in excess of 100 kph. He lost control of the vehicle at a sweeping bend & the vehicle slid to the wrong side of the road, forcing an oncoming vehicle to take evasive action. The respondent's vehicle careered into the kerb & a telegraph pole. The impact with the pole split the vehicle. The rear section of the vehicle was located near the pole & the front section nearly 60 metres away. The rear of the car caught fire. One of the male passengers had been ejected from the car onto the driveway of a motel. He suffered brain damage & died in hospital 2 days later. Another passenger was also ejected & landed on the lawn area of the motel. He died almost instantly from multiple injuries. A female passenger, who had not been ejected, suffered extensive skull & other fractures, however, her body was incinerated. A 4th passenger, who had been sitting in the front passenger seat, suffered a comminuted fracture of the right distal radius & other injuries that were described as 'minor'.
Guilty plea - priors - on GBB at time of offences - diagnosed with ADHD as a child - suffering from post traumatic stress disorder since crash - urgent need for regular & consistent psychiatric care - attacked by 3 prisoners whilst in custody awaiting sentence & rendered unconscious - on protection since that time.
Error in assessing sentence as if one offence caused 3 deaths - distinction between manslaughter & offence contrary to s.52A Crimes Act - gross culpability - whether sentences manifestly inadequate.
Appeal allowed: resentenced to total 9y with 6y NPP. Disqualified from holding driver's licence for 10 years.
384

LUCAS, Robert Harry - CCA, 18.5.2005
Simpson, Buddin & Hall JJ
Citation: R v Lucas [2005] NSWCCA 194
Sentence appeal.
1 x BE&S; 1 x aggravated BE&S; + offences taken into account (drive vehicle without consent; larceny).
Total sentence of 7y with a NPP of 5y.
Applicant gained entry to a home by removing the fly screen then forcing open the laundry window. He entered & ransacked the premises, stealing a variety of personal items. Some weeks later, a little after midnight, he smashed a window of a vehicle parked in a street in front of the owners' residence & ransacked its contents. He tried to start the vehicle with the use of a screwdriver, however, the damage he caused prevented its ignition. The applicant then entered the owners' residence by removing a fly screen & opening a window. He searched for property in a wardrobe in a bedroom where the male owner was sleeping. Upon being alerted by a dog barking, the female owner came to investigate. A fracas ensued & the applicant pushed the woman backwards into the bedroom before making his escape. A few days later, he smashed a window of a car parked in a street & stole approx $3 from inside the vehicle.
Aged 18 at time of offences - guilty plea - Aboriginal heritage - deprived & disadvantaged upbringing - good relationship with step-father - tested positive for hepatitis A, B & C - diagnosed as suffering from ADD & possibly schizophrenia - drug & alcohol problems, including petrol sniffing - hepatitis - possible schizophrenia - vulnerable - family pattern of alcoholism & drug abuse - priors - previous imprisonment.
Whether aggregate sentence manifestly excessive - whether adjustment in aggregate NPP reflects special circumstances - prospects of rehabilitation.
Appeal allowed in part: NPP reduced to 4y.
385

NGUYEN, Thanh Hai - CCA, 31.10.2005 - 157 A Crim 80
PHAM, Van Hau
VU, Quang Huy
TO, Km Pui
Grove, Barr & Howie JJ
Citation: R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362
Sentence appeals.
Pham: Knowingly concerned in the importation of trafficable quantity heroin; import commercial quantity of MDMA - effective overall sentence of life imprisonment with NPP of 23y.
Nguyen: Knowingly concerned in the importation of trafficable quantity heroin; knowingly concerned in the importation of commercial quantity MDMA - effective overall sentence of 25y with a NPP of 18y.
TO: Possess commercial quantity MDMA - life imprisonment with NPP of 20y.
VU: 2 x knowingly concerned in the importation of trafficable quantity heroin & methylamphetamine; convey commercial quantity MDMA - effective overall sentence of 12y with a NPP of 8y.
The applicants were involved in one or more of 3 dealings with drugs imported into Australia. They entered pleas of guilty in the SC. Two other offenders were dealt with in the DC, the 2nd of these being dealt with after the others were sentenced. That offender was involved in all 3 dealings but received the lightest total sentence & a NPP shorter than that of all others, save one.
Disparity between sentences received by applicants & that imposed on the co-offender in the DC capable of engendering justifiable sense of grievance - whether sentences manifestly excessive.
Appeals allowed, applicants resentenced as follows:-
Pham: total sentence of 28y with a NPP of 18y.
Nguyen: total sentence of 22y with a NPP of 16*y.
To: total sentence of 22y with a NPP of 16*y.
Vu: total sentence of 9y with a NPP of 6y 3m.
386

B - NSW SC, Dunford J, 15.4.2005 153 A Crim R 205
Citation: R v B [2005] NSWSC 340
Redetermination of life sentence.
On 8.9.1988, the applicant, then aged 14, was one of a group of 5 street kids who abducted a woman from Sutherland Railway Station. She was sexually assaulted & drowned in a dam. Following a trial with 2 co-accused, the applicant was convicted of murder, abduction, sexual intercourse without consent, robbery & other charges. The sentencing judge imposed a life sentence & recommended that the applicant should never be released. On 28.11.1996, the applicant made an application pursuant to s.13A of the Sentencing Act 1989 (NSW), as it then stood, which permitted a person such as the applicant, to apply to the Court for the determination of a minimum term & an additional term of the sentence, after serving 8 years of his or her sentence. Effective from 9.5.1997, the Sentencing Legislation Further Amendment Act 1997 (NSW) amended s.13A with affect that persons such as the applicant would be required to serve at least 20 years of the sentence before they could apply. The Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW) increased that period of time to 30 years. By notice of motion, the applicant sought answers to specific questions on how the amending legislation would affect his status to apply for redetermination.

Held:
(1) The applicant was not affected by the amendments which would have required him to wait 20 years before making an application, because his application was pending immediately before the day on which the 1997 Amending Act was introduced into Parliament.
(2) The words of the sentencing judge clearly constitute a non-release recommendation within the meaning of the legislation.
(3) The applicant did not have to wait 30 years before making the application (he had already made it) and he did not have to satisfy the Court that "special reasons" existed which justified the making of the application.
(4) The applicant'ss application had been "duly made" notwithstanding the amending legislation.
(5) The amendments to the sentencing legislation were not invalid by reason of inconsistency with Ch III of the Constitution.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Baker v The Queen (2004) 78 ALJR 1483, referred to.

387

GLEN, David Jack - NSW SC, Barr J, 28.10.2005
Citation: R v Glen [2005] NSWSC 1093
Redetermination of life sentence.
Murder.
Applicant murdered his 10 year old female cousin. The offence occurred in 1985 & was both vicious & sadistic. Following violent sexual attacks upon the young girl, the applicant choked her to the point of unconsciousness with a military-type wooden baton. He then strung her up by the neck to a rail in the wardrobe with a belt tied around her neck by means of a slipknot. Her body was supported on a chair & she was left there to die by asphyxiation. The applicant left the flat shortly after 3:00pm & remained out until about 5:00am, returning to dispose of the young girl's body. However, in his absence, the body was discovered by police.
Applicant was aged 20 at the time of the murder.
Rehabilitation - remorse/contrition.
Application granted: sentenced to 36y with a NPP of 24y.
388

KILPATRICK, Gary Thomas - CCA, 21.10.2005 - 156 A Crim R 478
Grove & Hall JJ, Smart AJ
Citation: R v Kilpatrick [2005] NSWCCA 351
Sentence appeal.
65 x obtain money by deception.
Total of 7y with a NPP of 4*y.
The sentencing judge dealt with the offences in 3 groups. The offences in the 1st group were committed between Sept 1997 & Feb 2001. Large amounts of money were obtained from various finance companies & institutions secured against property which, in the vast majority of cases, did not exist. In other cases, the property was falsely described & evaluated. The 2nd series of offences involved the fraudulent use of credit card details. Orders were made for goods over the phone & in each case a credit card number was provided, as a result of which goods or services were supplied. The credit card numbers used by the applicant related to cards held by various customers of the NAB, each having a highly rated credit standing. The applicant obtained these numbers from a co-offender who was a branch manager of the bank. The 3rd group of offences were similar to those in the 1st group in that large amounts were obtained from finance institutions as a result of frauds committed in a variety of way. There was some restitution available to victims of these offences as a house offered as security did in fact exist & was able to be sold for the purpose of recompense. The applicant was one of a number of offenders. The total amount obtained by applicant & his co-offenders was over $2.6 million.
Guilty pleas - priors.
Aggravating factors - reference to previous conviction - failure to give effect to utilitarian value for guilty pleas - failure to give effect to proper application of principles of proportionality & totality.
Appeal dismissed.
389

PALMER, Michael James - CCA, 13.10.2005
Grove & Hall JJ, Smart AJ
Citation: R v Palmer [2005] NSWCCA 349
Sentence appeal.
BE&S; larceny; take & drive conveyance without consent; possess implement capable of being used to enter & drive conveyance; + 2 matters on a Form 1 relating to cannabis & a white powder.
Total sentence of 5*y with a NPP of 3y.
The BE&S was committed at a caf*. Applicant broke in by throwing 2 rocks through a glass panelled door. Upon entry into the premises, he sustained a cut & some of his blood dripped onto the floor. That blood was later examined & found to contain applicant's DNA. Applicant stole a black leather attach* case from the caf* containing 300 musical compact disks, $150 in cash from the cash register & $210 in cash from a Westpac bank bag kept behind the reception desk. The total value of the property stolen was $7,400. Four days later, applicant broke into a car & stole a plastic crate containing a large amount of mobile phones & accessories valued at $25,000 which were found in his possession the following day when he was arrested on other matters. Between 3.00pm on the day of the larceny offence & 3.00am the following day, applicant broke into a car at a service station. He was seen driving the car some hours later & was arrested a short time later. Police found a 'jiggle'key in the ignition. The car had been driven about 250 kilometres since it had been taken & was littered with rubbish.
Failure to take into account the fact that all offences capable of summary disposal - whether error in treatment of criminal history as an aggravating feature.
Appeal dismissed.
390

NEWHAM, Wade Robert - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Newham [2005] NSWCCA 325
Sentence appeal.
Robbery; indecent assault; AOABH in company; + Form 1 (steal from premises).
Total sentence of 6y with a NPP of 3*y.
Applicant was staying with a female acquaintance. He began pestering her to provide him with drugs. The female asked another male ,who was also staying at the house, to take the applicant to the victim's home. At the victim's home, they all smoked cannabis & watched a video. The applicant then grabbed the victim by the shoulders, threatened him with a knife & told him they 'were going for a ride'The applicant & the other male drove the victim to an isolated area where the applicant verbally abused the victim, made him get out of the car, then punched the victim in the chest & kidneys. The victim screamed. The applicant ordered the victim to strip, searched his discarded clothes & took $15 from his wallet. The applicant knocked the victim to the ground, demanding money or drugs, but the victim was unable to comply. The applicant then exposed his penis & made sexual gestures to the victim. The applicant repeatedly punched the applicant about his torso, returning to the attack after an interruption. The victim fell on a barbed wire fence & was injured. According to the victim's statement, the other male's only involvement was to engage in one or two kicks after the applicant demanded to know if he 'would back him up'.
Aged 21 at time of offences - guilty pleas - unfortunate & disturbed upbringing - moved numerous times between carers & locations - commenced living on the streets at age 14 - taken into 'Kids Off the Streets'programme - successfully completed carpet laying course - priors, including offences of violence.
Specifically taking into account factors of additional aggravation which are ingredients of offence 'surrounding circumstance elevating offence into more serious category than that charged - whether sentence excessive.
Appeal allowed: resentenced to a total of 4y 9m with a NPP of 2*y.
391

THOMPSON, Lionel - CCA, 29.9.2005 - 156 A Crim R 467
Mason P, Barr & Johnson JJ
Citation: R v Thompson [2005] NSWCCA 340
Sentence appeal.
Deemed supply of large commercial quantity of MDMA (ecstasy); + Form 1.
16y with a NPP of 12y.
Applicant owned a mobile phone registered under an assumed name at a fictitious address. Police intercepted a call in which the applicant offered to supply a quantity of ecstasy tablets to a man at a price of $14.50 each. In a later call, he agreed to supply a single tablet as a 'tester'On the following day, the applicant was observed meeting the man, who was subsequently found in possession of the tablet. When the applicant was arrested a short time later, his backpack was found to contain 8 separate bags of ecstasy tablets with each bag weighing about 249grams. The total weight was 1.983kgs. If the tablets were sold in bulk at the price quoted by the applicant to the man, their value was in excess of $110,000. Applicant was also found to be carrying $10,650.
Standard NPP - s.21A, s.54B(2) Crimes Sentencing Procedure Act 1999 - aggravating factors - mitigating factors - sentencing principles in Way (2004) 60 NSWLR 168 - middle of the range of objective seriousness - special circumstances - accumulated assets.
Appeal allowed: resentenced to 13y 4m with a NPP of 10y. Sentence backdated to commence from time when applicant was taken into custody.
392

MD, BM, NA, JT - CCA, 30.9.2005 - 156 A Crim R 372
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v MD, BM, NA, JT [2005] NSWCCA 342
Crown appeal.
MD: 1 x manslaughter; 1 x stealing (mobile phone) - 5y 9m with NPP of 3y 9m.
BM: 1 x manslaughter; 1 x common assault - 4y with NPP of 2y.
JT: 1 x manslaughter; 1 x common assault - 4y 3m with NPP of 2y 9m.
NA: 1 x manslaughter - 4*y with NPP of 2y.
All accused entered pleas of guilty.
The deceased, his friend & some young girls were in Emu Plains on their way from the station to a party when they were attacked by a group of young men (the accused). The deceased received a savage beating, during which he was punched & his head was propelled into a power pole, after which his head was kicked & stomped on when he lay motionless on the ground. The deceased's friend was assaulted in order to prevent him from going to the aid of the deceased.
Objective gravity - young offenders - whether trial judge gave excessive weight to subjective factors.
Appeal in each matter dismissed; sentence in relation to BM varied.
393

AB - CCA, 27.10.2005 - 156 A Crim R 577
CLIFFORD, Michael Douglas
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v AB; R v CLIFFORD [2005] NSWCCA 360
Crown appeals.
Clifford: Manslaughter; maliciously inflict GBH - total sentence of 6y with a NPP of 3y.
AB: Murder; maliciously inflict GBH - total sentence of 14y with a NPP of 9*y.
Clifford started an altercation with the deceased & his friends who were walking to a party after having been drinking at some hotels. During the altercation, Clifford called out for help, whereupon AB fired 2 shots, one of them killing the deceased, the other wounding a friend of the deceased. The offenders were teenagers at the time. Both offenders came from extremely violent families & both had abused drugs & alcohol from a very young age.
Assessment of objective seriousness - weight given to subjective circumstances - whether there was a failure to accumulate sentences - whether finding that respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with jury's verdict.
Appeals allowed, respondents resentenced as follows:
AB: total of 15y with a NPP of 10*y.
Clifford: total of 7*y with a NPP of 4*y.
394

ERRINGTON, Burt - CCA, 19.10.2005 - 157 A Crim R 553
Mason P, Grove & Buddin JJ
Citation: R v Errington [2005] NSWCCA 348
Sentence appeal.
Dangerous driving causing death; dangerous driving causing GBH.
Total sentence of 2y 9m with a NPP of 1*y; disqualification of driver's licence.
Applicant was driving his prime mover towing a 3-axle tabletop trailer loaded with an empty cargo container along General Holmes Drive at Mascot, travelling at 60-70kph in a northerly direction towards the intersection with Millpond Road. As the road straightened out from a left-hand bend, the traffic lights controlling the intersection & any vehicles stopped at those lights would have come into the applicant'ss view, which was 370 metres before the intersection. The applicant travelled that distance in 18-20 seconds & collided with the last vehicle, a Hyundai XL, in a line of traffic that had stopped at a red traffic light. He did not break heavily until immediately before he struck that vehicle. Upon impact, the Hyundai XL went into the rear of a panel van, that van was then pushed into the rear of a utility & that utility was pushed into the Ford Falcon in front of it. The rear of the utility was forced upwards & rotated so that it was suspended between the panel van & the Ford Falcon. The utility also collided with the trailer & cargo container being towed by a prime mover. The Ford Falcon was pushed into the rear of a State transit bus & the bus was then pushed into the Toyota Prada in front of it. That vehicle was then pushed into a Holden Commodore station wagon. When the applicant's truck impacted with the Hyundai XL, the front of the applicant's vehicle also impacted with a Holden Commodore utility travelling in the adjacent lane. As the Hyundai XL became wedged under the applicant's vehicle, the vehicle also collided with a Yamaha motorcycle. Many of the vehicles were extensively damaged, some people were trapped in their vehicles & had to be rescued. As a result of the impact, the driver of the Hyundai XL received fatal injuries & died at the scene. Another male suffered undisplaced fractures of the right tibia & fibula. He also sustained soft tissue injuries to his right leg, resulting in swelling, blistering & bruising. He underwent surgery at St George Hospital. The applicant was uninjured. There was no explanation for the collision. The applicant was not speeding or affected by drugs or alcohol. His truck was in good roadworthy condition & the condition of the road was good. There was no suggestion of any relevant medical condition.
Aged 49 at time of offences - guilty pleas at earliest opportunity - married with 2 children - excellent driving record - extensive evidence of good character - was the OH&S drivers' representative at work - regarded as responsible driver by employer - symptoms of post-traumatic stress disorder stemming from the accident - accepted full responsibility -deeply remorseful - assisted police in relation to an unrelated armed robbery matter arising at his place of work - assessed as able to meet a fine, suitable for CSO but ineligible for PD order - no relevant criminal record.
Typical offender in Whyte (2002) 55 NSWLR 252 - abandonment of responsibility - momentary inattention or misjudgement.
Licence disqualification - 3y automatic statutory period - discretion to shorten disqualification period - driving behaviour unexplained - whether insufficient regard to subjective case.
Appeal dismissed.
395

OTWAY, Allan William - CCA, 19.10.2005
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Otway [2005] NSWCCA 352
Sentence appeal.
Maliciously inflict GBH.
2y 4m with a NPP of 1y 9m (NPP ordered to expire on 25.2.2006).
The applicant knew the victim. One morning, the victim & his de facto wife were waiting for a bus when they were approached by the applicant who was with his de facto wife & their 2 year old child. The applicant & the victim began to argue. The argument became heated & suddenly the applicant produced a knife from his right hand pocket, which he flipped open. The argument continued with the applicant opening & closing the blade of the knife. He then hit the victim in the face with his hand. The victim's wife moved between the men to push the applicant away, but he moved around her & lunged at the victim with the knife, stabbing him in the stomach. The 2 men began punching one another & the applicant again lunged with the knife but the victim managed to push him away, causing him to drop it. The victim's wife stepped on the knife to stop the applicant from getting it. He managed to obtain it nevertheless & walked away towards his home. The victim was treated at the scene & later admitted to hospital. He suffered 2 wounds, one approx 2cms in length over the lower right abdomen & the other about 3cms long in the left upper abdomen. No major organs were damaged. Following the incident, applicant walked to a friend's home & was driven at his own volition to Penrith Police Station where he spoke to police & was arrested. He admitted stabbing the victim but was unable to offer any explanation as to why he had done so.
Guilty plea - diagnosed as suffering from amphetamine-induced psychosis - need for ongoing counselling & periodic testing for drug use.
Discount for plea of guilty - special circumstances - pre-sentence report not tendered in evidence - significant error of fact - prospects for rehabilitation - whether sentence excessive.
Appeal allowed insofar as NPP to commence on 26.5.2004 & expire on 19.10.2005.
396

MACBAIN, Mark Raymond - CCA, 20.10.2005
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v MacBain [2005] NSWCCA 358
Sentence appeal.
2 x BE&S: + Form 1 (take & drive conveyance; drive whilst disqualified; 3 x drive through red light; possess amphetamines; resist officer in execution of his duty).
Total of 5y 3m with a NPP of 3y.
The 1st BE&S offence involved applicant removing the front right window of business premises & stealing a TV, a power saw & an electric drill. The 2nd offence occurred when the applicant forced entry to the home of a married couple & stole items, the value of which totalled $15,700. Applicant caused a fair amount of damage in forcing entry & ransacking the home.
Aged just under 35 at time of offences - guilty pleas - offences committed whilst on parole - multiple prior convictions, including similar type convictions in Victoria - previous imprisonment.
Whether sentences contained an aspect of double punishment for the fact that they were committed on parole - whether sentences manifestly excessive.
Appeal allowed insofar as sentences backdated.
397

STONE, Robert John - CCA, 24.10.2005 - 64 NSWLR 413; 157 A Crim 41
Hunt AJA, Hislop J, Smart AJ
Citation: R v Stone [2005] NSWCCA 344
Crown appeal.
Supply prohibited drug (methylamphetamine).
This was an appeal brought by the Crown pursuant to s.5F Criminal Appeal Act 1912 against the judgment & orders made by Judge Coolahan in the DC at Newcastle whereby he upheld a plea in bar in the nature of autrefois convict entered by the respondent.
Autrefois convict - plea in bar in nature of autrefois convict - not permitted while plea of not guilty remains standing on the record - leave to withdraw plea of not guilty if plea in bar a good one - requirement that both conviction (in the sense of a finding of guilt) & sentence (in the sense of the final disposal of the case) must be established by the accused - judge'ss ruling that plea in bar had been made out when there had not been a sentence erroneous - ruling a final decision disposing of the proceedings - acquittal - no Crown appeal lies from that ruling whether pursuant to s 5F of the Criminal Appeal Act 1912 or otherwise.
Appeal dismissed.
398

SMITH, Leslie Russell - CCA, 28.9.2005
Hulme, Hidden & Bell JJ
Citation: R v Smith [2005] NSWCCA 339
Sentence appeal; and
Crown appeal.
Supply methylamphetamine (0.05 grams - FT of 2y; enter dwelling house with intent to commit larceny -3y with NPP of 1y; maliciously inflict GBH - 4*y with a NPP of 2y.
Total sentence imposed was 6*y with a NPP of 4y.
Applicant went to the house where the victim was living with her mother & 2 siblings. After speaking to the victim at the front door, he left a small quantity of methylamphetamine in an envelope to be given to the victim's mother. One or 2 hours later, he returned, entering the house through a kitchen window whilst the occupants were asleep. He entered the victim's bedroom, wrapped a piece of nylon string around her neck & applied what a medical expert described as significant force around her neck. Before leaving the house, he cut off a lock of the victim's hair. The victim suffered a large 10cm abrasion & haematoma to her throat, as well as bruising behind her right earlobe & face. There were signs of bilateral conjunctival hemorrhages & hemorrhages on her right shoulder & sternum. The victim also suffered a contusion to her shoulder.
Aged 32 at time of offending - qualified motor mechanic - separated from wife - has 2 children - previous alcohol problems overcome - amphetamine addiction - supportive family - reasonable prospects of rehabilitation - priors - previous imprisonment.
Offences linked in time - whether sentence on drug charge manifestly excessive - whether concurrence of sentence on other 2 charges appropriate - whether accumulation of those sentences on sentence for drug charge appropriate - whether overall sentence appropriate to reflect total criminality - whether Court should intervene when error shown in individual sentences but overall sentence appropriate.
Both appeal against sentence & Crown appeal allowed in part, resulting a new total sentence of 5y 9m with a NPP of 3y 9m.
399

ELLAZ, Mohamad - CCA, 19.10.2005
Sully, Hidden & Hall JJ
Citation: R v Ellaz [2005] NSWCCA 350
Sentence appeal.
Ongoing supply of heroin; + Form 1 (goods in custody).
2y 10m with a NPP of 1y 10m.
Applicant sold small amounts of heroin to an undercover police officer on 3 occasions. On a 4th occasion, he purported to sell heroin to the same officer, however, upon analysis, that substance proved to contain no heroin. It was on that occasion that he was arrested. The total amount of heroin sold to the undercover officer was 0.69 grams, for which the applicant was paid $590. The goods in custody on the Form 1 related to the fact that the applicant was found to be in possession of 9 deadlock door knobs reasonably suspected to have been stolen or unlawfully obtained.
Aged 30 at time of offending - early guilty plea - found by sentencing judge to be part of a sophisticated heroin dealing operation - married, with one child - strong family support - long-standing drug problem - psychological complications as a result of a head injury - already serving a sentence at time of sentencing.
Whether adequate discount for guilty plea - assistance to authorities - relevance of observations of sentencing judge during final addresses - finding of special circumstances - whether structure of sentence appropriate - whether adequate weight given to mental condition.
Appeal dismissed.
400

LAWSON, Benjamin John - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Lawson [2005] NSWCCA 346
Sentence appeal (extension of time).
5 x administer stupefying drug (nitrous oxide) with intent to commit aggravated sexual intercourse without consent; 2 x aggravated sexual intercourse without consent; 1 x aggravated indecent assault; + 7 further offences on a Form 1.
Total sentence of 13y with a NPP of 9*y.
The offences were committed upon 3 young teenage boys. The applicant is a paedophile who was also a youth leader at the New Life Baptist Church at Dee Why at the time of committing the above offences. His position offered him the opportunity to engage in his criminal conduct with the teenage boys named in the charges. He provided the boys with canisters & bulbs of nitrous oxide & instructed them in their use. The nitrous oxide was provided in such large quantities that the boys were rendered unconscious & were then sexually assaulted by the applicant.
Whether sentence excessive.
Appeal dismissed.
401

GENT, Garry Raymond - CCA, 17.10.2005 - 162 A Crim R 29
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Gent [2005] NSWCCA 370
Sentence appeal.
Importation of child pornography (s.233BAB(5) Customs Act 1901).
18m with a NPP of 12m.
On 9.7.2004, the applicant was questioned by Customs officers at Sydney Kingsford Smith Airport following his return to Australia. He told Customs officers that he was returning from an overseas teaching position as a Year 6 primary school teacher & that he intended to holiday in Australia for a period before seeking employment in a primary school in China. A search of applicant's baggage revealed a number of CDs, floppy disks & a DVD. In response to questions from a Customs officer, applicant said that the CDs & floppy disks did not contain any pornographic or offensive material. Upon examination at the airport, one of the CDs was found to contain movie footage of young boys engaged in sexual acts with adult males. Another CD contained numerous pictures of young boys & girls engaged in sexual acts with each other or with adult males. The CDs, floppy disks & DVD were seized by Customs officers, together with other items. On 18.7.2004, Customs investigators attended Sydney Kingsford Smith Airport domestic terminal & intercepted the applicant as he disembarked from a domestic flight from Launceston. He was placed under arrest for importation of child pornography & was taken to Maroubra Police Station, where he was charged.
Aged 39 at time of offence - born in England - at age 6 emigrated to Australia with family - qualified as a teacher at Sydney University - taught in several schools throughout NSW for 13 years - was dismissed after being caught accessing child pornographic material on a Department of Education computer - thereafter sought employment as a teacher overseas - did not disclose to any potential or actual employer that he had been dismissed in NSW - obtained employment in Turkey & Qatar - in Qatar he was discovered accessing child pornography sites on his computer & was summarily dismissed & put on a plane to Australia - returned to Turkey in teaching position - returned to Australia on 9.7.2004.
Approach to prior good character on sentence - relevance of possibility of summary disposal - whether sentence manifestly excessive.
Appeal dismissed.
402

HATHAWAY, Ronald Leslie - CCA, 20.10.2005
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v Hathaway [2005] NSWCCA 368
Sentence appeal.
Aggravated B&E (malicious wounding).
6y 9m with a NPP of 5y.
A witness noticed someone acting suspiciously around the administration block at Hay Public School at approx 8:00pm. The witness contacted the school principal & informed him. The principal attended the school, walked around the buildings & noticed that the entry to the administration block was open & had apparently been forced. He called out, asking if there was anyone there, then entered the building. He turned on the light in the photocopy room & proceeded down the hallway. He noticed that the front office door was slightly open & once again called out. As he was opening the front office door with his foot, the applicant grabbed him, pulled him into the office & threw him to the floor, whereupon he assaulted the principal about the head & back with an iron tyre lever. When the applicant fled the building, the principal sought help at a nearby hotel. He was taken by ambulance to hospital. When police arrived, there was no sign of the applicant. The principal suffered lacerations to his head, 3 requiring stitches. He also suffered bruising to his chest & back, as well as grazing on his back. The applicant was not arrested until almost 2 years later. Four days after the above offence occurred, he appeared before the Hay Local Court & was imprisoned for 3m for a number of unrelated larceny offences. At the same time, he was placed on a bond for a previous AOABH.
Aged 20 at time of offence - early guilty plea - left school at age 16 - some employment history - started using cannabis at a young age - cannabis use had increased to about a quarter to half an ounce a day - user of amphetamines but ceased use prior to being sentenced - also used Serepax & Rohypnol - remorse.
Whether error in taking into account applicant's prior convictions as an aggravating factor - whether error in failing to have regard to delay between commission of offence & arrest - whether error in application of discount for guilty plea - whether sentence manifestly excessive.
Appeal dismissed.
403

RAE, Stephen John - CCA, 8.11.2005 - 157 A Crim R 182
Giles JA, Hislop & Rothman JJ
Citation: R v Rae (No.2) [2005] NSWCCA 380
Application for leave to appeal against conviction and sentence.
Causing GBH with intent to murder; + Form 1 (OABH).
19y 8m with a NPP of 14y 9m.
The applicant went to his former girlfriend's premises at night & gained access to her bedroom. He had a 2 litre plastic container full of petrol with him. He started to throw the liquid over the victim who had woken up because of a loud noise the applicant made. She screamed & escaped from the flat, seeking help from a neighbour living downstairs. The applicant was able to get a lighter out of his pocket & to set the victim on fire. She suffered appalling injuries, including full thickness burns to 93% of her body & internal inhalation problems. Her quality of life has been permanently & severely affected & she will be restricted in her activities by great pain & discomfort for the rest of her life. Because of his rescue attempts, the neighbour received partial thickness burns to 10-15% of his body.
On 12.1.2000, applicant appealed against both conviction & sentence. He later abandoned the conviction appeal. The sentence appeal was heard on 12.12.2001 & was dismissed ( R v Rae [2001] NSWCCA 545).
Aged 33 at time of offence - emotionally disturbed at the - no priors.
Failure of initial representatives to give relevant information to experts & obtain evidence - failure of Crown to ensure case presented with fairness to accused - evidence relating to preparation of case - scientific evidence - improper pressure leading to guilty plea - incompetence of legal representative - inherent bias in expert's report - insufficient preparation time for sentencing proceedings - miscarriage of justice.
Application dismissed.
404

O'NEILL, Ryan Sydney Bruce - CCA, 27.10.2005
Hulme, Hidden & Hall JJ
Citation: R v O'Neill [2005] NSWCCA 353
Sentence appeal (extension of time).
1 x deemed supply of cocaine; 1 x deemed supply of cannabis; 1 x dishonestly obtain valuable thing (motor vehicle); + Form 1 offences.
Total of 4y 7m with a NPP of 3y 5m.
Police stopped the applicant who was driving a hired car at 135 kph in a 110 kph area. He was unable to produce a driver's licence. Police found $53,210 in cash in the glove box, $12,600 in cash in a magazine holder on the front seat of the car, a plastic bag containing cannabis under the front passenger seat & a further 4 bags in a backpack behind the driver's seat. Two small bags of cocaine were found in a wallet & a backpack. Messages on applicant's mobile phone appeared to be associated with drug dealing.
Utilitarian value of guilty plea - strength of Crown case - whether sentence excessive.
Appeal dismissed.
405

SHIAGETZ, Jason (Parole Board of NSW v) - CCA, 19.10.2005
Simpson, Adams & Johnson JJ
Citation: Parole Board of NSW v Shiagetz [2005] NSWCCA 372
Application made under s.155 Crimes (Administration of Sentences) Act 1999 against a decision of the Parole Board denying applicant's release on parole.
Applicant was convicted & sentenced for robbery in company: see R v Shiagetz [2003] NSWCCA 115.
Unsuccessful application for parole - disputed facts - role of Parole Board - adjournment of consideration of application - not released on parole - sentence served before appeal heard - jurisdiction of Court.
Appeal dismissed.
406

MARTIN, Margaret Joan - CCA, 10.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Martin [2005] NSWCCA 381
Sentence appeal.
Supply commercial quantity prohibited drug (heroin).
8y with a NPP of 6y.
Appellant & her sister were in a joint criminal enterprise, purchasing significant quantities of heroin from a number of sources & then supplying the heroin they purchased. Some of the heroin was supplied by the applicant's sister & her connections. The heroin retained by the applicant was sold to contacts on the north coast & through a network the applicant maintained in Sydney. The amount of heroin purchased & sold by the applicant & her sister during a 2* month period was estimated to be 1 kg.
Different sentences for co-offenders - special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
407

DROLLETT, Adam - CCA, 4.11.2005
McClellan CJ at CL, Simpson & Rothman JJ
Citation: R v Drollett [2005] NSWCCA 356
Conviction appeal.
Malicious wounding in company.
5y with a NPP of 3*y.
On 6.7.2002 the appellant was a prisoner at Goulburn Correctional Centre. Julius Graf was also a prisoner. Between 1.30 pm and 1.35 pm on that date Mr Graf was placed by a Correctional Services Officer in a space known as '6 yard'A number of other prisoners, the majority of them of Pacific Islander origin, were already present in the yard. The appellant was among them. Shortly after Graf's arrival, a melee erupted & Graf was attacked & injured. Eleven prisoners, including the appellant, were charged on indictment with malicious wounding in company & the matter went to trial. The Crown then offered, in return for pleas of guilty by all accused, to present a fresh indictment, reducing the charges to AOABH. Ten of the accused accepted the offer & entered pleas of guilty to that offence. The appellant declined to do so. The jury was discharged & a new trial began, with the appellant the sole accused who faced the original charge of malicious wounding in company. The jury returned a verdict of guilty. The only issue in the trial was whether the appellant had been shown to have been a participant in the attack on Mr Graf. '6 yard'was under continuous camera surveillance & much of the incident was recorded. At least 2 digital cameras were positioned in the area. The footage produced was not continuous but a series of still photographs taken at one-second intervals. When shown on a video player, the images are staccato-like, jerky & extremely indistinct. The film shows the melee involving a number of individuals but no faces can be seen. Immediately after the incident, a muster of inmates was conducted. The entire procedure was video-recorded. On this video film the appellant can clearly be seen & identified. The video image is accompanied by sound recording in which the appellant can be heard identifying himself.
Whether evidence concerning film footage admissible - evidence on voir dire subsequently admitted - witness saw appellant from front view after incident ended but was unable to identify him from front view footage - witness did not see appellant from rear view but purported to identify him from that footage - whether evidence relevant - evidence of fact - evidence of opinion - witness identified clothing worn by appellant minutes before attack - witness identification by process of deduction & reference to his clothing - interpretation of video evidence - ad hoc expert.
Appeal allowed: new trial ordered.
408

GARDNER, Bronwyn Margaret - CCA, 10.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Gardner [2005] NSWCCA 383
Sentence appeal.
BE&S.
2y with a NPP of 12m.
A home at Cherrybrook was broken into & antique items exceeding $15,000 in value were stolen. The home was empty at the time, one of the elderly owners being in hospital, the other in a nursing home. The applicant was linked to the crime by her fingerprint found on the outside of a window to the premises.
Aged 27 at time of offending - guilty plea - serious problem with marijuana, heroin, amphetamines - offence connected to addiction - lack of insight into offending behaviour - priors - previous imprisonment.
Whether error in sentencing discretion - assessment of objective seriousness - principles in De Simoni (1981) 147 CLR 383 - failure to take account of mental illness - failure to give weight to staleness of offence - rehabilitation - failure to take into account exceptional hardship to applicant's babies - whether sentence excessive.
Appeal dismissed.
409

DAVIES, Andrew Lucas - CCA, 10.11.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Davies [2005] NSWCCA 384
Sentence appeal.
Sexual intercourse with child under age of 10 years; + Form 1 (aggravated indecent assault upon same child).
10y with a NPP of 7*y.
Applicant inserted his penis into the mouth of the 7 year old child & ejaculated. He was living with the child & her mother in a domestic situation at the time & was in a position of authority over the child.
Aged 22 at time of offending - guilty plea - offence well above mid-range but below 'worst type'- approx 30% discount for utilitarian value of plea, remorse - no priors.
Range of sentences - s.66A Crimes Act - statistics - whether sentence excessive.
Appeal allowed: resentenced to 7y with a NPP of 5y 3m.
410

HENARE, Lucas Jai - CCA, 10.11.2005
Hoeben JJ
Citation: R v Henare (No.2) [2005] NSWCCA 366
Appeal brought pursuant to s.5AF Criminal Appeal Act 1912 to a single judge of the Court sitting as the Court of Criminal Appeal. The appellant appealed against sentences imposed on him in the Drug Court on 24.11.2004 pursuant to s.12 Drug Court Act. These were final sentences in accordance with the Act.
Sentencing principles - utilitarian value of guilty plea - weight to be given to subjective factors.
Appeal dismissed.
411

HENARE, Lucas Jai (No.2) - CCA, 10.11.2005
McClellan CJ at CL, Simpson & Hoeben JJ
Citation: R v Henare (No.2) [2005] NSWCCA 367
Application for leave to appeal pursuant to s.5(1)(c) Criminal Appeal Act 1912 against a sentence imposed in the Drug Court in respect of a BE&S offence. An appeal was also brought pursuant to s.5AF in relation to matters in which the Drug Court imposed sentences pursuant to s.12 Drug Court Act: see R v Henare [2005] NSWCCA 366. The only ground in the instant application was that 'In the event that the applicant's appeal brought pursuant to s.5AF is successful this Court would intervene in the appeal brought under s.5(1)(c) to give effect to the sentencing judge's stated intention.'That stated intention was that the same sentence should be imposed in relation to that offence as the final sentence imposed by the Drug Court pursuant to s.12 Drug Court Act.
Following upon the failure of the appeal under s.5AF, the application for leave to appeal could not succeed.
Application refused.
412

FORBES, Warren Alan - CCA, 21.10.2005 - 160 A Crim R 1
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v Forbes [2005] NSWCCA 377
Conviction and sentence appeal.
2 x manslaughter.
For the killing of Ross Kimball, sentenced to 12y with a NPP of 9y, commencing on 29.5.2002.
For the killing of Andrew Hullick, sentenced to 12y with a NPP of 8y, commencing on 29.5.2009.
Total sentence of 19y with a NPP of 15y.
The appellant was charged with the murder of Andrew Hullick. He was found not guilty of murder but guilty of manslaughter. Appellant had also pleaded guilty to the manslaughter of Ross Kimball. The Crown accepted the appellant's plea of guilty to manslaughter on the basis of the concept of extended joint criminal enterprise. The appeal against conviction related to the killing of Mr Hullick. The appeal against sentence related to both killings. There was evidence of a number of admissions made by appellant to his friends relating to the killing of Mr Hullick, suggesting that he had acted in self-defence. After the shooting of Mr Hullick, the appellant at first denied any involvement, however, he did take steps to cover up any forensic evidence. On day 10 of the trial, one of the jurors was found to be in possession of 2 publications (a book entitled 'Guns and Gunsmiths'& an advertising brochure predominantly for ammunition)
Juror misconduct - juror found in possession of published material, possibly related to trial - whether trial miscarried - whether directions sufficient to cure irregularity - adequacy of summing up - trial judge did not follow Bench Book formulation - excessive self-defence - whether directions in relation to self-defence correct in law - failure to adequately take into account guilty plea - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed in part:
For the killing of Ross Kimball - 9y with a NPP of 6y 9m, commencing 29.5.2002.
For the killing of Andrew Hullick - 12y with a NPP of 8y, commencing 29.2.2007.
Total new sentence of 17y with a NPP of 13y.
413

GUIDER, Timothy Paul - CCA, 3.8.2005
Simpson, Adams & Hall JJ
Citation: R v Guider [2005] NSWCCA 386
Reference by the Registrar of the CCA under s.19(2) Criminal Appeal Act 1912 for consideration of summary determination.
See Regina v Guider [2000] NSWCCA 355 for details.
The instant application followed upon the NSW Attorney General's referral of applicant's petition under s.474B Crimes Act 1900 to be heard & determined by the CCA pursuant to s.5(1)(b) Criminal Appeal Act.
Applicant took no steps to prosecute his appeal - applicant rang Registrar to advise that he did not wish to go ahead with his appeal - applicant indicated that he would be content for the appeal to be struck out.
Appeal summarily dismissed.
414

MOBBS, Lucas Rodney - CCA, 19.10.2005
Simpson, Adams & Johnson JJ
Citation: R v Mobbs [2005] NSWCCA 371
Sentence appeal.
1 x hinder investigation of a serious indictable offence.
15m with a NPP of 12m.
The car in which the applicant was a passenger moved to the wrong side of the road straight into the path of a vehicle driven by Mr Simon Gray, his wife & their 2 daughters. Mr Gray was killed instantly & his wife & daughters seriously injured. The injuries suffered by the one daughter resulted in brain damage. There was some delay before police & an ambulance arrived. When they did, the applicant, his cousin & the driver (Richards) gave false information to police & ambulance officers in which it was said that the applicant had been driving. The applicant maintained this pretence in conversations with no fewer than 7 people at the scene of the accident & at the hospital. A blood sample taken from the applicant at the hospital provided a negative result. A blood sample taken from Richards was never analysed. The day after the accident, the applicant informed police that he had not been the driver & Richards confirmed to police that he was the driver.
Aged 21 at time of offence - eldest of 5 children - parents separated when applicant aged 14 - applicant bore substantial responsibility for raising siblings - applicant's various problems stemmed from poor parenting - prior offences - previous imprisonment.
Impermissible finding of aggravating circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to FT of 4m.
415

MILENKOVIC, Vladimir - CCA, 26.9.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Milenkovic [2005] NSWCCA 382
Urgent application by the Crown against interlocutory judgment.
s.5F(3A) & s.5F(2) Criminal Appeal Act 1912.
Respondent indicted upon a charge of armed robbery - trial has commenced - Crown sought to tender evidence of respondent's involvement in another armed robbery - trial judge refused to admit evidence.
Application for stay of proceedings.
Stay granted pending the appeal to be heard the following day.
416

MILENKOVIC, Vladimir - CCA, 27.9.2005 - 158 A Crim R 4
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Milenkovic [2005] NSWCCA 379
Crown appeal against interlocutory judgment. See also R v Milenkovic [2005] NSWCCA 382.
Whether evidence should be admitted as tendency and/or coincidence evidence.
Appeal dismissed, stay dissolved.
417

MDB - CCA, 7.11.2005
Simpson, Adams & Johnson JJ
Citation: R v MDB [2005] NSWCCA 354
Conviction appeal.
Aggravated indecent assault.
2y 3m with a NPP of 1y 3m.
The 11 year old complainant & his mother were on friendly terms with the appellant & his family. The appellant took his 2 sons & the complainant on a camping trip. The Crown case was that after going to bed one evening, the appellant sexually interfered with the complainant by fondling his penis. The complainant made no protest at the time & the appellant eventually ceased the activity. The complainant did not immediately make complaint. About 6 months later he told 2 of his school friends who encouraged him to tell his mother. He did this at a time when plans were being made for another camping trip with the appellant's family in which the complainant did not wish to participate. The appellant denied the allegation.
Complaint evidence - admissibility of evidence - Evidence Act credibility rule - evidence of prior consistent statement - circumstances leading to statement - directions on complaint and delay.
Appeal dismissed.
418

MAISEY, Troy James - CCA, 11.10.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Maisey [2005] NSWCCA 347
Sentence appeal.
Robbery using corporal violence with infliction of GBH.
9y with a NPP of 5y 9m.
The applicant's sister had been in a relationship with the victim. She told the applicant that the victim had physically abused her by throwing her to the ground & kicking her in the ribs. She said she left the victim's unit but did not take her pair of Nike shoes with her. These had been given to her by the applicant as a Christmas present. After meeting at a hotel & consuming some drugs & alcohol, the applicant & his co-offender went to the unit where the victim lived. As soon as the victim opened the door, the applicant punched him so hard with a closed fist that the skin on his face was torn & the victim hit the floor. According to the victim, the applicant & the co-offender punched & kicked him all over his body. The victim tried to escape by jumping down from his balcony to the balcony immediately below. He did not land on that lower balcony & fell 2 storeys to the ground. He suffered a number of injuries, including serious back injuries.
Guilty plea at earliest opportunity - received 25% discount.
Whether judge erred in relying upon his own experience of effects of back injury & in failure to alert defence of his intended finding of victim's permanent back injury - procedural unfairness.
Appeal dismissed.
419

CAMERON, Alexander Douglas - CCA, 10.11.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Cameron [2005] NSWCCA 357
Sentence appeal.
Count 1: misappropriation - 2y with a NPP of 18m, commencing on 2.9.2004;
Count 2:misappropriation - 2y with a NPP of 18m, commencing 2.3.2005;
Count 3: misappropriation - 2y with a NPP of 18m, commencing 2.9.2005.
These were 3 separate offences committed over a period of months, involving 3 separate victims. Each of the charges involved a contravention of s.165 of the Crimes Act 1900 (NSW). The applicant was in charge of a real estate agency. The applicant received deposits from prospective purchasers of properties. He misappropriated these funds & used them for other commitments arising from his business activities.
Aged 26 at time of offences - guilty pleas entered at first available opportunity - offences committed before 1.2.2003 - no relevant criminal history.
White collar crime - significant objective seriousness - general deterrence an important element of sentencing - comparatively small amount paid by way of restitution - no compelling personal circumstances that would attract significant leniency.
Utilitarian value of guilty plea - irrelevance of strength of Crown case - whether Court should intervene - need to adjust NPP after partial accumulation of sentences to maintain statutory ratio.
Appeal allowed only in respect to count 3. Resentenced on that count to 2y with a NPP of 15m to commence on 2.9.2005.
420

MALLARD - HCA, 15.11.2005 - 224 CLR 125
Citation: Mallard v The Queen [2005] HCA 68
On appeal from the SC of WA.
Murder.
After serving 8 years of his sentence of life imprisonment in strict security, applicant petitioned for clemency.
The A-G for WA referred the petition to the CCA of WA, which dismissed the appeal. The appeal to the HC raised questions as to the way in which the CCA of WA should proceed in determining a reference of such a petition & the evidence to which it may have regard in so doing.
Further evidence adduced on reference in possession of police before & during trial - evidence not disclosed to appellant - appellant petitioned for clemency - whether error in adopting approach that Court's jurisdiction limited consideration of evidence adduced at trial & relevance to further evidence introduced & relied upon in reference - whether error resulted in miscarriage of justice - whether appellant should be acquitted or retried.
Appeal allowed: retrial ordered.
421

KANAAN, Michael - CCA, 17.11.2005 - 64 NSWLR 527;157 A Crim R 238
Hunt AJA, Buddin & Hoeben JJ
Citation: R v Kanaan [2005] NSWCCA 385
Conviction and sentence appeal.
2 x murder - life imprisonment on each count;
1 x malicious wounding with intent to do GBH - 25y imprisonment.
In each case, the sentence imposed was the maximum provided by law.
Appellant was charged with the murder of 2 men & with having maliciously wounded a 3rd man with intent to inflict GBH in an altercation on the footpath outside a hotel. The Crown case was that the appellant & other men stopped the motor vehicle in which they were travelling when they saw a fight between one of the deceased & the victim who was ultimately wounded & that the appellant left the vehicle & fired a gun directed at 3 men a number of times in quick succession & at close proximity. There was some evidence that he was involved in a scuffle with one of the deceased before firing the gun. One of the men accompanying the appellant was indemnified by the A-G in relation to his evidence against the appellant. The appellant's case was one of alibi. Both the Crown & appellant's counsel at trial declined the trial judge's offer to put manslaughter to the jury as an alternative verdict. The trial proceeded on the basis that whoever fired the gun had the relevant state of mind for murder.
On appeal, the appellant was represented by different counsel. It was submitted that the trial judge was bound to put manslaughter to the jury as an alternative verdict wherever there is a viable case of manslaughter, even when that course is opposed at trial.
Whether viable case of manslaughter available on the evidence - whether obligation to leave manslaughter to jury even when not raised by either party & even if a party or both parties object - Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 202 ALR 202 discussed - where Crown relies on conduct of accused as being inconsistent with innocence & as amounting to an implied admission of guilt - directions fashioned on R v Lucas [1981] QB 720 at 724 & Edwards v The Queen (1993) 178 CLR 193 ordinarily required - direction on alibi.
Appeal dismissed.
422

HARMOUCHE, Albert - CCA, 21.11.2005 - 158 A Crim R 398
Sully, Hulme & Latham JJ
Citation: R v Harmouche [2005] NSWCCA 398
Crown appeal.
Supply cocaine.
2*y with a NPP of 1y 3m.
The respondent pleaded guilty to the above offence. The offence came to light as a result of a Strike Force investigation into the distribution & supply of prohibited drugs in the South Western suburbs of Sydney.
No weight given to the aggravating feature that the respondent was on conditional liberty at the time of the above offence - error in finding that 'between the commission of the offence and sentencing that the respondent had exhibited rehabilitation ... and had not committed any further offences'- whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y & 134d with a NPP of 2y & 134 d.
Following the resentencing of the respondent, Hulme J made the following comments:-

'73 Before I conclude these reasons there are three further matters to which I would refer. Firstly, as has been said before but, as this case demonstrates, needs to be said again, judges who fail to pass sentences properly reflecting the seriousness of offences as laid down by Parliament and the principles of sentencing as dictated both by that body and established by superior Courts do no favour to those such as the Respondent who must now have his life and rehabilitation interrupted yet again and be returned to custody.

74 Secondly, this case is yet another of those all too frequent cases where, in order to impose a proper sentence on the Respondent, this Court has had to choose between the unfairness of unequal treatment of co-offenders and the injustice to the community of acquiescing in a second manifestly inadequate sentence because the Director of Public Prosecutions, while appealing in the case of the Respondent elected, or was not sufficiently organised, to appeal in the case of a co-offender. As the Respondent and Sayadi were both arrested on the same day and sentenced by the same judge some 2 weeks apart it is inconceivable that the Office of the Director of Public Prosecutions was not aware of the relationship between them. In that situation it is impossible to see any rational explanation for the bringing of an appeal in one case and not in the other.

75 Thirdly, I wish to make it clear that the sentence I have proposed is one entered in the exercise of this Court's discretion, reflects a number of matters which should not have been allowed to occur and is appreciably less than should have been imposed at first instance'.

423

KHALOUF, Ali - CCA, 18.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Khalouf [2005] NSWCCA 395
Conviction appeal.
Murder.
20y with a NPP of 13*y.
The only issue at trial was whether the appellant had acted under provocation. Appellant had previously been tried for the same offence & was found guilty. An appeal against that conviction was upheld & a new trial ordered. The instant appeal was against the conviction in that 2nd trial.
The appellant & the victim were lovers. They met at a hotel & had sex. The appellant then received a telephone call from his son. The victim complained that every time they went to the hotel, the appellant'ss family phoned him. She became increasingly aggressive & after using words that were inflammatory to the appellant, she performed an obscene sexual act in front of him while making derogatory comments about him. She emerged from the bathroom waving a knife at the appellant. After cutting his hand while taking the knife away from her, the appellant killed her by stabbing her repeatedly in the upper chest, throat & neck.
Whether jury were misdirected as to provocation under s.23(2)(b) & s.23(3)(a) Crimes Act - whether there was a failure to direct the jury as to consciousness of guilt - the proper use of the evidence of appellant's accounts & any inconsistency therein.
Appeal dismissed.
424

CAPAR, Kanan - CCA, 7.10.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Capar [2005] NSWCCA 402
Sentence appeal.
1 x conspiracy to supply large commercial quantity heroin; 1 x conspiracy to supply commercial quantity cocaine; 1 x money laundering; 1 x possess firearm; + 4 matters on a Form 1 (hinder investigation of serious indictable offence; intimidate police officer in execution of duty; 2 x goods in custody).
Total sentence of 12y 9m with a NPP of 8y 4m.
Applicant pleaded guilty to the above offences. He was the principal of a very significant drug operation. He was sentenced along with his 3 brothers, who each played a part in the operation. The applicant was not addicted to drugs & was engaged in that business purely for profit. Evidence disclosed that he resorted to violence to enforce his will on his business associates.
Whether error in not allowing sufficient discount for guilty plea.
Appeal dismissed.
425

EGC - CCA, 21.11.2005
Sully, Hulme & Latham JJ
Citation: R v EGC [2005] NSWCCA 392
Sentence appeal.
3 x sexual intercourse with person under age of 10; 2 x aggravated indecent assault of person under age of 16 under authority.
Total sentence of 7y with a NPP of 5y 3m.
The sexual intercourse offences & one of the aggravated indecent assaults were committed upon applicant's step-daughter who was aged between 7 & 10 at the time. The other aggravated indecent assault was committed upon applicant's step-son who was between the ages of 4 & 6 at the time.
Delay between commission of offences & sentencing - rehabilitation - loss of opportunity to complete Pre-Trial Diversion Programme - whether sentences excessive.
Appeal allowed in part: new total sentence of 6y with a NPP of 3y.
426

MILAT, Ivan Robert Marko - NSW SC, Barr J, 27.10.2005 - 157 A Crim R 565
Citation: R v Milat [2005] NSWSC 920
Application for an order under s.474D Crimes Act.
Criminal procedure - Inquiry - convictions - application for inquiry into convictions for murder & detain for advantage - applicant sought case to be dealt with as appeal - whether doubt or question as to guilt - Inquiry not intended to provide convicted person with another avenue of appeal after usual avenues exhausted - matters in current application dealt with at trial & on appeal - no doubt or question of guilt arose.
Application refused.
427

ROBERTS, Troy John - CCA, 22.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Roberts [2005] NSWCCA 401
Sentence appeal.
Aggravated BE&S.
4y with a NPP of 2*y.
Applicant & 2 co-offenders broke into the Harvey Norman Bathurst Warehouse at Kelso, each wearing a balaclava & each carrying a two-way radio. One co-offender was carrying a pinch bar. The 3 men placed a number of electrical items on trolleys, however, unknown to them, their entry into the warehouse had triggered an alarm system & a security guard was sent to investigate. When the security guard entered the warehouse, the offenders left, leaving behind the electrical items. The security guard chased after them. During the chase, he fired 2 shots, one of which hit one co-offender, who was found to be in possession of a two-way radio tuned to channel 28. The applicant & the other co-offender made their getaway in a car driven by yet another co-offender. On their way to Sydney, they were stopped by police & were arrested. The car in which they were travelling contained the pinch bar wrapped in a plastic bag, a pair of binoculars, a radio scanner & 5 two-way radios, 4 of them tuned to channel 28. The applicant has at all times maintained his innocence. The sentencing judge found that the offence was 'part of a planned criminal activity'but did not consider that the applicant was involved in the planning to the same extent as 2 of the co-offenders. He considered the applicant's criminality equal to the remaining co-offender who received a sentence of 3y 3m with a NPP of 2y. This sentence was imposed after allowing a 15% discount for a guilty plea. The sentencing judge made it clear that the original sentence, before discount was applied, was for a period of 4y.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
428

CDR - CCA, 24.11.2005
Simpson, Adams & Hoeben JJ
Citation: CDR v R [2005] NSWCCA 404
Conviction appeal.
Robbery; 2 x assault police officer; 2 x resist police officer; + 2 offences to which guilty pleas had been entered earlier (supply heroin; ongoing supply of heroin).
Total sentence of 4y 9m with a NPP of 2y 9m.
The Crown case was that appellant stole a woman's handbag as she was walking along a street. He admitted stealing the handbag but without the necessary force to sustain a conviction for robbery. He claimed he did not touch the woman but simply removed her handbag which was protruding out the back of her arm. The woman's evidence was that her arm had been grabbed, her shoulder pulled down very hard & that she had bruising on the upper part of her arm for approx 2 weeks. In his haste to run away, appellant ran into the rear of a car. The driver of that vehicle gave evidence supporting the woman. Police were in an unmarked police vehicle behind that car. They activated the vehicle's siren & chased after the appellant. The appellant continued to flee until he was cornered in a dead-end street. The female police officer (Const Davis), who had already identified herself to the appellant, was the first to alight from the car & approach the appellant. As she attempted to pull one of his arms behind his back to handcuff him, he punched her on the side of her head, pushed her against a wall, punched her to the head again several times, as well as to the chest. The other police officer (Const Siva) saw the appellant punching Const Davis & yelled out for him to get away from her. The appellant was then handcuffed, placed under arrest & walked to the scene of the offence. It was the appellant's case that he did not strike Const Davis at any time & that he did not struggle or otherwise resist being arrested by her. As the appellant was being taken back to the scene of the offence, he was continuously struggling. Const Siva put a call in for a caged police truck. When it arrived, he searched the appellant at the rear of the truck & the appellant kicked back with his leg on a number of occasions, striking Const Siva's thighs & shins. The appellant's evidence was that he had been co-operative in returning to the scene of the offence & had waited quietly for the arrival of the caged truck. He claimed that as he was being put into the back of the truck, on 3 occasions his head was deliberately pushed by Const Siva against the top of the door of the truck. He said that it was this that caused him to kick out at Const Siva. There was eyewitness evidence that this was not true.
Whether guilt or innocence alternatives constituted error when put to jury in summing-up - points not take at trial - whether failure by Crown to particularise individual acts constituting offence amounted to error.
Appeal dismissed.
429

MS2; PM; JS - CCA, 24.11.2005 - 158 A Crim R 93
Simpson, Adams & Hoeben JJ
Citation: MS2 and Ors v R [2005] NSWCCA 397
Sentence appeal.
PM (aged 15y 10m): Aggravated robbery causing GBH (s.96 Crimes Act); take & drive conveyance without consent - total sentence of 6y with a NPP of 4y.
MS2 (aged 15y 7m) & JS (aged 14y 5m): Aggravated robbery causing GBH (s.96 Crimes Act); being carried in a conveyance without the consent of the owner - each received a total sentence of 5y with a NPP of 3y 4m.
The sentencing judge ordered that in each case the whole of the NPP be served in a juvenile justice centre.
Applicants & 2 other offenders went to Warwick Farm railway station & lay in wait for a suitable victim. PM had armed himself with a metal steering-wheel lock. At about 6.40 in the evening, the victim, aged 50, alighted from a train on his way home from work, carrying a brief case. He reached his vehicle & was unlocking the driver's door, when PM ran out & struck the victim to the head with the metal steering wheel lock, causing the victim to fall unconscious to the ground. As the victim lay unconscious on the ground, JS kicked him in the head. Another co-offender (MS) stole the victim's brief case containing personal documents & a mobile phone. MS2, PM & JS then drove from the car-park in the victim's car, leaving the victim in an unconscious state, bleeding profusely from a number of wounds to the head & face. His false teeth had been knocked out & he was lying face down in a pool of his own blood. The victim's legs were seen protruding from behind a parked car by a man parking his own vehicle. The man tried to provide assistance to the victim & immediately called for medical help. The victim sustained very serious injuries, including a severe traumatic brain injury that was likely to result in long-term high-level cognitive impairment.
Guilty pleas - young offenders - each came from a good family background - no priors - offences inexplicable.
Effect of immaturity & youth when serious offence involved - weight to be given to planning of offence - parity.
Appeals allowed (Simpson J dissenting). Applicants resentenced as follows:
MS2: sentence for s.96 offence allowed, resulting in a new total sentence of 4y 5m with a NPP of 2y 5m.
PM: sentence for s.96 offence reduced, resulting in a new total sentence of 5*y with a NPP of 3y.
JS: sentence for s.96 offence reduced, resulting in a new total sentence of 4y 5m with a NPP of 2y 5m.
430

MASCARO-VARILLAS, Fernando Eduardo - CCA, 22.11.2005 - 157 A Crim R 355
Simpson & Adams JJ, Davidson AJ
Citation: R v Mascaro-Varillas [2005] NSWCCA 399
Application to withdraw plea of guilty.
Knowingly concerned in the importation of a commercial quantity of cocaine.
15y with a NPP of 11y.
Applicant appealed against his sentence. The appeal was allowed in part & the NPP was reduced to 10y: see R v Mascaro-Varillas [2002] NSWCCA 524.
A German national by the name of Aussem arrived in Sydney on a flight from Buenos Aires, having travelled from Chile. Numerous packages containing cocaine were strapped to his body. Aussem agreed to assist the Australian Federal Police in a controlled delivery. Aussem made & received a number of phone calls to & from applicant & another man. Applicant was arrested in the USA & extradicted to Australia. He pleaded guilty in the LC. The amount of cocaine the subject of the charge was 2.9691 kgs. There was a dispute as to the precise role played by the applicant.
Applicant claimed that facts disclosed no offence committed - claim of overbearing - claim of abuse of process.
Claims rejected - leave refused..
431

LAH - CCA, 24.11.2005
Sully, Hulme & Latham JJ
Citation: LAH v R [2005] NSWCCA 400
Conviction and sentence appeal.
Sexual intercourse with person knowing she had an intellectual disability with intention to take advantage of her vulnerability (s.66F(3) Crimes Act 1900 (NSW)).
5y with a NPP of 3y.
The complainant was the appellant's 57 year old intellectually disabled sister.
Judge alone trial - error in directions on contradictions in complainant's evidence - whether conviction unreasonable - whether error in application of s.21A(2) Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Conviction appeal allowed: conviction & sentence quashed, verdict of acquittal entered.
432

TAOUK, Simon (Eid) - CCA, 7.6.2005 154 A Crim R 69
James, Hislop & Hall JJ
Citation: R v Taouk [2005] NSWCCA 155
Conviction appeal.
2 x murder.
Total of 22y with a NPP of 15y.
Appellant was convicted of the murder of his wife & his brother-in-law. Their bodies were found in the house in which the appellant lived with his family. Both had been shot. There were no witnesses to the shootings. After the shootings, the appellant went to a police station where he told a police officer that he wanted to report a disturbance at his house. When the police officer asked what had happened, appellant admitted he had shot his brother-in-law. Shortly thereafter, the police officer made notes of the conversation in his notebook. These notes were never shown to the appellant. In a later ERISP with other police officers, appellant denied that he had said that he shot his brother-in-law. At trial, the trial judge admitted the evidence of the appellant's admissions to the first police officer. The Crown case against the appellant was circumstantial, supported by the evidence of the admissions.
Whether error in admitting disputed evidence of admissions that were not electronically recorded - whether verdicts unreasonable.
Appeal dismissed.
433

WICKS, Leon - CCA, 25.10.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Wicks [2005] NSWCCA 409
Crown appeal.
4 x sexual intercourse with person under 16 outside Australia (s.50BA(1) Crimes Act 1914, Cth); 1 x induce person under 16 to commit act of indecency outside Australia (s.50BD(1) Crimes Act 1914, Cth); 1 x induce person under age of 16 to have sexual intercourse with another person outside Australia (s.50BB(1) Crimes Act 1914, Cth).
Total sentence of 5y with a NPP of 3y.
The offences occurred in Thailand during a period of a little over 2 weeks. The respondent pleaded guilty. His activities were detected following a multi-national police initiative aimed at the detection of persons involved in the distribution & possession of child pornography, primarily accessed through the internet. The respondent was identified as having accessed & downloaded child pornography from global internet sites & as having visited a known internet site connected with the promotion of child sex tourism. Following a search of the respondent's residential premises during which a large amount of pornographic material was seized, the respondent was taken to the Cobar Police Station where he made a number of admissions relating to sexual activities with male persons while he was holidaying in Thailand. He admitted engaging the services of boys from bars & prostitution-related venues in Bangkok & Pataya. He admitted paying boys to engage in various sexual activities with him & paying boys to engage in sexual activities with one another while he video-recorded the activity.
Whether sentencing judge failed to provide an adequate standard & level of punishment - whether sentence failed to adequately reflect the criminality of respondent's conduct, the elements of deterrence & the aggravating features of his offending.
Appeal allowed: new total sentence of 7y with a NPP of 5y.
434

NEWMAN, Craig John - CCA, 4.11.2005
Spigelman CJ, Sully & Hulme JJ
Citation: R v Newman [2005] NSWCCA 388
Sentence appeal.
2 x BE&S.
Total sentence of 5y with a NPP of 4y.
The 1st offence occurred when the applicant forced entry to a residence by smashing a rear door. He stole a video-cassette recorder, a CD stereo system, a wallet & $400 in cash. The total value of the property stolen was $1,980. The damage to the rear door cost $500. The 2nd offence occurred 10 months later. Applicant gained entry to a residence by placing a chair under a window & lifting the window off its track. He stole jewellery, a laptop computer, cheques, a chequebook & a car key. The total value of items stolen in the commission of this offence was $8,563.
Appellant was already serving a sentence for other offences at the time of sentencing for the above offences. The effect of the sentences imposed on the above offences extended the applicant's NPP by 1y 7m.
Special circumstances - NPP less than 75% of total sentence - whether error - whether sentence excessive.
Appeal dismissed.
435

MAK; MSK; MMK - CCA, 4.11.2005
McClellan CJ at CL, Grove & Hall JJ
Citation: R v MAK; R v MSK; R v MMK [2005] NSWCCA 369
Sentence appeals.
MSK: 9 x aggravated sexual assault in company - 22y with a NPP of 16*y.
MAK: 9 x aggravated sexual assault in company - 16y with a NPP of 12y.
MMK: 9 x aggravated sexual assault in company - 22y with a NPP of 13y, to be served in a juvenile detention centre.
The offences involved 2 complainants aged 17 & 16, who were gang raped over a period of some hours, during which threats were made. The complainants were later dumped in Campsie where they immediately raised complaint, after which police arrived & they were taken to hospital.
For details of offences, see R v MSK; R v MAK; R v MRK; R v MMK [2004] NSWSC 319 revised - 30/4/2004.
New evidence purporting to mitigate by reason of mental condition (MSK) - evidence received but submissions rejected - whether error in extent of accumulation (MSK) - incongruity of fixed terms which were longer than NPP for offence personally committed (MAK) - whether error in total imposition (MAK) - assessment of crimes as in 'worst category'- whether error in so finding - parity between juvenile (MMK) & MSK - identical head sentences but markedly less NPP set for juvenile - youth of offender MMK - whether sentences manifestly excessive.
MAK: Leave to appeal refused.
MSK and MMK: Appeals dismissed.
436

MASON, Deon Rodney - CCA, 17.10.2005
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Mason [2005] NSWCCA 403
Sentence appeal.
Aggravated robbery with offensive weapon with wounding (in company); + Form 1 (aggravated armed robbery, in company, wounding).
Total sentence of 8*y with a NPP of 6y.
The principal count on the indictment involved the applicant threatening the 61 year old victim (Mr Nam) with a knife when Mr Nam came to investigate noises coming from a taxi after he heard loud banging & someone calling for help. Mr Nam was forced to the ground & cut with a knife from his right ear to his cheek, causing a laceration of approx 10-12 centimetres in length & one centimetre deep. There was near complete dissection of his right lower earlobe. The pleas for help that Mr Nam had heard were made by Mr Liu, a taxi driver, who had earlier been robbed by the applicant & his co-offenders (1st count on the Form 1). Mr Liu had been terrorised & forced into the boot of his taxi, whilst the applicant threatened him with a knife. The 2nd charge on the Form 1 related to the robbery of a 17 year old male victim as he was walking home shortly after alighting from a bus. The applicant threatened to stab him if he did not hand over his mobile phone. One of the co-offenders then struck the young victim over the head with a beer bottle.
Guilty plea - 15% discount - aged 17 at time of offences - Aboriginal - traumatic childhood - father a violent alcoholic - applicant moved from refuge to refuge, often with mother & 4 sisters - spent most of childhood at Mission Aboriginal Reserve - subsequent exposure to drug influences, criminality, alcoholism, violence - struggled in primary school - failed to complete HSC due to severe behavioural problems & conduct disorder - had never been employed - has a girlfriend & a 3 year old daughter - remorse/contrition - history of re-offending - previous imprisonment.
Whether error in assessing relevance of applicant's objective case - guilty plea - whether failure to give proper weight.
Appeal dismissed.
437

MALLAH, Zaky - NSW SC, Wood CJ at CL, 11.2.2005 154 A Crim R 150
Citation: R v Mallah [2005] NSWSC 358
Judgment on Notice of Motion to disallow tender of evidence.
Accused was charged with terrorist offences. The Crown case included evidence from an undercover police officer to whom the accused allegedly conveyed threats directed towards others. Objection was taken to the evidence of the undercover police officer, including recordings under warrant & items handed to the officer, on the basis that the conduct of the police officer was unlawful & not covered by a controlled operation certificate & that he improperly made misrepresentations to the accused, leading to handing over of a videotape.
Terrorist offences - preliminary hearing - pre-trial issues - Notice of Motion to disallow tender of evidence - ss.11.2, 11.4, 101.6 Crimes Act 1914 (Cth) - ss.90, 138 Evidence Act 1995 (Cth).
No evidence that police officer intentionally induced accused - accused had formulated plan prior to meeting police officer - misrepresentations by police officer were known to be false.
438

MOSEGAARD, Jens Grandt - CCA, 6.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Mosegaard [2005] NSWCCA 361
Conviction and sentence appeal.
Sexual intercourse without consent and maliciously inflict ABH; sexual intercourse without consent.
Total sentence of 12y with a NPP of 9y.
The complainant shared a house with 3 others, including the appellant. Complainant worked at a nightclub as an exotic dancer. Prior to the above offences being committed upon her, the complainant had ingested drugs & alcohol.
Whether verdict unreasonable - absence at trial of expert evidence of likely effects of alcohol & drugs ingested by complainant in hours prior to offences - whether injuries apparent in photographs of complainant could have come about from earlier sexual & dance activity - whether miscarriage of justice - whether sentence excessive.
Appeal dismissed.
439

ITAOUI, Fida - CCA, 2.12.2005 - 158 A Crim R 454
Studdert, Whealy & Howie JJ
Citation: Itaoui v R [2005] NSWCCA 415
Sentence appeal.
1 x larceny by a servant.
34m with a NPP of 15m.
Applicant pleaded guilty to the above offence. She commenced employment with Thomas Cook Travel in May 1996. Her criminal activity first came to her employer's notice in October 2000, whereupon her employment was terminated. Over a period of about 15 months the applicant had stolen $135,199.40 from her employer. She was not charged with any offence until 9.9.2002. She was arraigned before the DC on 24.4.2003 & was to stand trial on 7.9.2004. The trial was estimated to run for 10 weeks but on the first day of trial she pleaded guilty. In 1997, the applicant was the victim of an armed robbery in the Thomas Cook office at Sydney Airport. Her brother gave evidence of the effect this had upon her. Evidence was tendered suggesting she suffered from Post Traumatic Stress Disorder as a result of the hold-up. She was off work for 6 months because of stress & depression. Her brother believed she had not fully recovered by the time she returned to work. The applicant had no criminal record prior to the commission of the above offence, however, since her termination with Thomas Cook, she had been charged & convicted of offences arising from her subsequent employment with NRMA. In June 2002 she was placed on a bond in respect of 3 offences arising from fraudulently altering her payslips to her mother's name in order to assist her mother obtain a personal loan. The sentencing judge indicated that these matters reflected adversely on the applicant's prospects of rehabilitation.
Born on 3.9.1973 in Lebanon - family migrated to Australia in 1984 - close-knit family - engaged to same man for 9 years - obtained a law degree from Sydney University but has never practiced law - obtained a Bachelor in Business degree from the University of Western Sydney.
Delay in charging applicant - health issues - psychiatric condition at time of offending - erroneous pronouncement of sentence - whether any other sentence warranted.
Appeal allowed on technicality: resentenced to 34m with a NPP of 15m.
440

CUNNINGHAM, Brenton - CCA, 30.11.2005
Studdert, Whealy & Howie JJ
Citation: Cunningham v R [2005] NSWCCA 416
Sentence appeal.
2 x supply cannabis leaf; 1 x sell prohibited pistol to person not authorised to purchase it; 1 x possess prohibited weapon without authority; + offences on a Form 1.
Total sentence of 6y with a NPP of 4y.
Sentences were imposed following pleas of guilty entered in the LC & adhered to in the DC.
The offences were detected during an undercover police operation targeting the applicant's activities.
Duress - objective seriousness of firearms offences - directions - insufficient discount for guilty plea - failure to make all sentences concurrent - failure to take account of assistance to authorities - consideration of applicant's health - whether sentences manifestly excessive.
Appeal dismissed.
441

TIDONA, Aurelio - CCA, 2.12.2005
Simpson, Adams & Hoeben JJ
Citation: Tidona v R [2005] NSWCCA 410
Sentence appeal.
Aggravated indecent assault upon person under the age of 16 years (s.61M(1) Crimes Act 1900) - guilty plea on 1st day of trial, sentenced to 5y 2m with a NPP of 3y 11m, commencing 5.9.2003.
Some months prior to the above offence, applicant had been convicted of an offence of commit act of indecency with person under 16 years (s.61N(1) Crimes Act 1900) & received a 1y GBB.
The commission of the s.61M(1) offence constituted a breach of the GBB. For that breach, applicant was sentenced to a FT of 12m, commencing 5.9.2003.
Applicant sought leave to appeal from both sentences.
Applicant was born in 1935. His wife died in early 2002. On 15.11.2002, applicant asked his 13 year old neighbour to do some housework for him. When she arrived at his house, he sat near her & offered her $250 to perform sexual acts with him. He reached over & grabbed the victim's right wrist & squeezed it. The victim pulled away & left the house. The applicant called out to her to come back the next day & not to tell anyone. The victim told her mother & the incident was reported. It was that matter for which applicant received the GBB.
The victim of the s.61M(1) offence was aged 12. She too had been asked to do some housework for the applicant. She had cleaned part of the house & was in the 3rd bedroom when she heard a zip. She ignored it for a while, then turned around & saw the applicant with his underpants & trousers around his knees & his penis exposed. The applicant then asked the victim if she wanted to have sex with him & she replied in the negative. The applicant pulled up his trousers, grabbed the victim by her upper arm & dragged her to the bed. They struggled & after a short time there was a noise in the house & the applicant went to investigate. The victim then ran out of the house. The applicant called after her not to tell anyone. Some 10 days later, the victim told a school friend & they then told the school principal. Police were notified & the applicant was arrested 2 days later.
Use of standard NPP when plea of guilty - error in using standard NPP as starting point for calculation of sentence - error in taking into account prior convictions as an aggravating factor - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5y 2m with a NPP of 3y.
442

WILSON, Michael John - CCA, 30.11.2005
Studdert, Whealy & Howie JJ
Citation: R v Wilson [2005] NSWCCA 414
Crown appeal.
1 x use copy of false instrument.
3y suspended sentence.
The respondent was a professional valuer. He valued a property at Lidcombe & attached a false document certifying that he had professional indemnity insurance when, in fact, his insurance had lapsed. The document was relied upon by the lender, who lost approximately $250,000 because the borrower & owner of the property was a fictitious person. The sentencing judge held that the respondent was not part of the wider fraud involving the fictitious owner & there was no finding that he had knowledge of the fraud. It was important to the approval of the loan that the respondent held professional indemnity insurance cover. There was evidence at trial that the lender would not have advanced the loan had it been known that the certificate given by the respondent was false.
Aged 54 - in a stable de facto relationship - suffered ill-health - chronic pancreatitis - no direct financial benefit accruing to respondent - at time of above offence, respondent was on conditional bail awaiting sentence for 2 false statement offences in respect of which he was later granted a s.558 recognizance - no previous imprisonment.
Whether error in determining sentence should be suspended before determining appropriate length of sentence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with a NPP of 12m, to be served by way of PD.
443

ABDALLAH, Mohamed - CCA, 16.11.2005 - 157 A Crim R 219
Simpson, Johnson & Rothman JJ
Citation: R v Abdallah [2005] NSWCCA 365
Conviction and sentence appeal.
Maliciously shoot at a person with intent to do grievous bodily harm - 8y with NPP of 5*y;
Fire firearm in a public place - 3*y FT;
Fire firearm in a public place - 1 *y FT.
Total sentence of 8y with a NPP of 5*y.
The conviction appeal related only to the charge of maliciously shoot at a person with intent to do GBH.
Applicant, his younger brother & some friends were at a club when a distrubrance occured on the dance floor. Several security guards escorted the applicant's brother & at least one other friend from the premises. A fight then ensued. The applicant's brother removed his shirt & a gun fell to the floor. The applicant retrieved the gun & hid it in his clothing. When a security guard became involved in a fight with the applicant's brother, the applicant fired the gun into an external awning. He then fired a 2nd shot that hit the security guard in the ankle. A 3rd shot was fired from outside the premises towards the club. The applicant left the scene with others in a taxi. The incident was recorded on CCTV.
Aged 20 at time of offences - special circumstances found - no priors.
Expert evidence - videotape with time-counter - still photographs taken from videotape as evidence - whether verdict unreasonable - whether miscarriage of justice resulted from failure to direct jury - indispensable facts of Crown case - meaning of 'shoot at'- evidence referred to in summing up - obligation of trial judge - subjective circumstances - contrition/remorse - criminality - youth - guilty pleas - pre-trial custody - whether sentences excessive.
Conviction appeal dismissed.
Sentence appeal allowed insofar as sentences restructured to take into account pre-sentence custody.
444

MWJ - HCA, 7.12.2005 - 80 ALJR 329
Citation: MWJ v The Queen [2005] HCA 74
On appeal from the SC of South Australia.
Judge alone trial - appellant convicted of 3 sexual offences against a person under the age of 17 years - supposed inconsistencies between evidence of complainant & her mother concerning complaints that complainant made to her mother - whether manner in which trial judge dealt with supposed inconsistencies involved error.
Rule in Browne v Dunn (1893) 6 R 67 - application of rule to an accused in a criminal trial - supposed inconsistencies between evidence of complainant & her mother not put to complainant in cross-examination - whether complainant should have been re-called - consequences for trial judge'ss decision-making.
Appeal dismissed.
445

DIAB, John - CCA, 28.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Diab [2005] NSWCCA 341
Sentence appeal.
B&E with intent to steal; enter building with intent to steal; larceny; Form 1 (larceny).
Total sentence of 3y 7m with a NPP of 2y 7m.
Applicant entered commercial premises by removing 3 ceiling panels & jemmying a door. A female worker heard noises & when she confronted the applicant he claimed to be a cleaner going to get a vacuum cleaner. He walked away & left the premises. Applicant also entered commercial premises & stole 4 laptop computers. Applicant forced the front door of other commercial premises with a long-bladed screwdriver & then unsuccessfully attempted to force an interior door. The applicant was identified by DNA & CCTV footage.
Aged 32 at time of offences - pathological gambling problem - recent offending motivated by need for money - remorse/contrition - some prospects of rehabilitation - caring for ill mother & deaf father - on parole at time of 1st offence - multiple priors - previous imprisonment.
Errors in application of s.21A Crimes (Sentencing Procedure) Act - insufficient allowance for special circumstances - whether sentence excessive.
Appeal dismissed.
446

IESE, Dors (Dawers) - CCA, 6.12.2005
Grove, Studdert & Whealy JJ
Citation: Iese v R [2005] NSWCCA 418
Sentence appeal.
1 x robbery; 1 x attempt aggravated robbery: + Form 1 (1 x aggravated robbery with corporal violence).
Total sentence of 2*y with a NPP of 15m.
The offences on the indictment arose out of a single incident. The applicant accosted a young man who had alighted from a train at Berala Station & was waiting for his father. The victim was robbed of his mobile phone. Credit cards were taken from him. He was then escorted by the applicant & 2 others to a nearby ATM. On the way there, the victim's silver neck chain was removed. Although he was not armed, the applicant threatened to stab the victim if he failed to reveal his PIN number. Attempts to obtain money from the ATM failed. Shortly thereafter, the victim managed to escape. The Form 1 offence was committed 6 months later when the applicant was on bail. It also involved the robbery of a mobile phone at a railway station, during which the applicant punched the victim, who was known to him.
Error in taking into account as aggravating factor that count 1 offence committed in company - delay between commission of offences & sentencing - failure to have adequate regard to applicant's intellectual disability.
Appeal dismissed.
447

448

SKONDIN, Mark Shane - CCA, 8.12.2005
Studdert, Whealy & Howie JJ
Citation: Skondin v R [2005] NSWCCA 417
Conviction appeal.
Malicious wounding.
3y FT.
The offence occurred at night in Arthur Park, Kings Cross. The victim was stabbed & sustained multiple injuries involving a kidney, his spleen & his liver. Both sides of the victim's stomach were affected, as well as both sides of his colon & his diaphragm. The victim identified the appellant as the attacker & the Crown also relied upon a DVD surveillance recording movement at the doorway of a newsagency in which recording the victim asserted that a person who appeared was the appellant. According to the victim, he entered that newsagency after meeting the appellant in the street shortly before he was stabbed. The appellant gave evidence at trial to the effect that he knew the victim but had not stabbed him. He denied being in Arthur Park on the date in question. The issue at trial was whether or not the appellant was the attacker. The victim's companion did not identify the appellant as the attacker.
Failure to request or direct the calling of a witness - error in refusing to permit evidence of alibi to be called - fresh evidence - whether verdict unreasonable - intervention of trial judge - restriction of cross-examination - whether trial miscarried.
Appeal allowed: verdict of guilty quashed absolutely; no new trial ordered.
449

RN - CCA, 2.12.2005
Grove, Sully & Howie JJ
Citation: R v RN [2005] NSWCCA 413
s.5F appeal by the Crown against a ruling upon an evidentiary issue in a current trial in the DC.
Respondent is standing trial on 12 counts alleging serious sexual offences against his stepdaughter. As part of its case at trial, the Crown proposed to lead evidence from the complainant's mother. Before a jury was empanelled, the trial judge was told about this proposed Crown evidence. Counsel for the respondent took objection on the basis that there was a real prospect of concoction between the complainant & her mother. A hearing on the voir dire was conducted. Brief evidence was given by both the complainant & her mother & various statements were tendered. At the conclusion of submissions by the Crown & the respondent's counsel, the trial judge reserved his decision. The reserved decision was subsequently handed down, wherein the trial judge excluded the particular evidence of the complainant's mother.
Admissibility of evidence - coincidence evidence - probative value - prejudicial effect - failure to given adequate reasons for determination.
Crown appeal allowed: challenged ruling set aside.
450

KRSTIC, Dusan - CCA, 10.11.2005
Sully, Hulme & Latham JJ
Citation: R v Krstic [2005] NSWCCA 391
Sentence appeal.
1 x possess prohibited firearm (pistol); goods in custody; possess ammunition; possess steroids; possess methylamphetamine.
Total of 2y 8m with a NPP of 2y; + a fine of $50 on each of possess steroids & possess methylamphetamine.
Police observed applicant driving from his home to the Wollongong Police Station, where he was required to report, pursuant to conditions imposed by the Department of Immigration. The applicant was arrested as he entered the foyer of the police station. His vehicle was searched & police found a Colt .45 calibre self-loading hand gun, with 7 bullets loaded in the magazine. They also found a Motorola portable radio that had been stolen during a break-in at the Helensburgh Fire Station. Later that day, police searched applicant's residential address & found a number of items, including a firearm magazine containing a .45 calibre bullet, one Winchester box containing twelve .45 calibre bullets, one 20ml bottle of stanazol, one 10ml bottle of stanazol, other bottles containing a prescribed restricted substance (steroids) & 4 small yellow tablets (methylamphetamine). The applicant was interviewed by police & declined to make any comment regarding his knowledge of the firearm. At the time, the applicant was on conditional release from the Villawood Detention Centre, having entered Australia illegally. Following his arrest, bail was refused.
Whether error in assessment of objective gravity of firearm offence - failure to find special circumstances.
Appeal dismissed.
451

MURPHY, Michelle Leanne - CCA, 2.12.2005 - 158 A Crim R 375
Studdert, Whealy & Howie JJ
Citation: Murphy v R [2005] NSWCCA 412
Sentence appeal.
1 x conspire to commit armed robbery with offensive weapon.
4y 3m with a NPP of 3y.
The Crown case was based upon intercepted telephone calls between applicant, Wayne Davis (applicant's de facto) & Peter Wilson, during which plans were made to commit a robbery of a Chubb security vehicle. Wilson was the principal organiser. He had access to information regarding Chubb movements, had access to the ATM's, had firearms in his possession & had initiated most of the telephone calls. Davis was Wilson's right-hand man, responsible for hiring people & advising on logistics to carry out the robbery. He was also in attendance at the proposed scenes of armed robbery & had undertaken surveillance in company with the applicant. The applicant's role was limited & was less than that of Davis. However, she was aware of most of the arrangements & Wilson was quite happy to deal with her when Davis was not available. She was present with Davis when he undertook surveillance of the intended locations & she drove him on a number of occasions on errands associated with the conspiracy. The Crown accepted that there was no evidence that the applicant was going to personally or directly participate in any robbery. Wilson was sentenced to 5y 5m with a NPP of 4y. Davis was sentenced to 4*y with a NPP of 3y.
Aged 37 at time of sentence - early guilty plea - gave birth to 1st child 6 weeks prior to sentencing - sexually assaulted twice in the past - victim of a home invasion - suffered from post-traumatic stress disorder - considerable criminal record - previous imprisonment.
Parity - sense of grievance - error in taking into account prior criminal history - whether sentence excessive.
Appeal allowed: resentenced to 3*y with a NPP of 2y 3m.
452

GIANG, Son - CCA, 10.11.2005
Sully, Hulme & Latham JJ
Citation: R v Giang [2005] NSWCCA 387
Sentence appeal.
Ongoing supply of heroin; + Form 1 (goods in custody; possess heroin).
3y 3m with a NPP of 1y 9m.
On each of 4 occasions, applicant sold to an undercover police officer a small foil package or balloon containing heroin in return for $50. The weight of the heroin supplied varied between 0.14 & 0.2 grams.
Aged almost 23 at time of offending - unco-operative with authorities - lied extensively during interview with police - involved in selling heroin to fund own addiction - minor criminal record - had held no gainful employment - had been involved with limited study - caring & supportive family - since incarceration had been drug-free for 7 months - attended anger management, alcohol & other courses in prison.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
453

MOORE, Christopher - CCA, 2.12.2005
Simpson, Adams & Hoeben JJ
Citation: Moore v R [2005] NSWCCA 407
Sentence appeal.
1 x robbery with corporal violence; 1 x armed robbery (with steak knife).
Total sentence of 25m with a NPP of 14m.
A telephone order for a home delivery was received at Dominos Pizza in Queanbeyan at about 6pm. At about 6:30pm, the young pizza delivery man attended the nominated address. At the time, he was carrying approx $120 in cash. When he got out of his car, he was met by the applicant at the bottom of the driveway. As the victim turned towards the front of his car to illuminate a receipt in the headlights, the applicant grabbed him around the neck from behind & wrestled him to the ground. The victim fought back, whereupon the applicant said words to the effect, 'Don't struggle I've got a knife where's the money'The victim then handed over the $120.
Applicant & 2 males got into a taxi & directed the taxi driver to an address in Queanbeyan. When the taxi came to a stop at the nominated address, the applicant placed his left arm around the victim's throat & pulled his body back in the seat. He then produced a steak knife & held it in front of the victim's face. The applicant & one of the males, who was sitting in the front passenger seat, demanded money from the taxi driver. The applicant & the 2 males took the victim's wallet & the bag containing his receipts for the night, then disappeared into nearby bushland. Some weeks later, applicant phoned the Queanbeyan Police Station & admitted his involvement in both offences.
Applicant received 35% discount for surrendering himself to police.
Aged 18 years 3 months at time of offences - mother an alcoholic - applicant & his brother raised by grandmother since infancy - father a heroin addict & had spent long periods in gaol for drug offences - applicant's first contact with father was at age 17 - effect of that visit was to turn a formerly law-abiding young man into a person who became addicted to amphetamines & cannabis - no priors.
Whether error in treating offences as aggravated on basis of emotional harm caused to victims - whether error in taking into account as aggravating factor that offence committed in company - failure to have proper regard to circumstances of applicant's drug addiction/rehabilitation - error in adopting mathematical approach to sentencing exercise - failure to consider whether sentences should have been suspended.
Appeal dismissed.
454

JACKSON, Ian - CCA, 30.11.2005
Spigelman CJ, Sully & Hulme JJ
Citation: Jackson v R [2005] NSWCCA 411
Conviction appeal.
2 x sexual intercourse without consent; 1 x indecent assault.
No details of sentence stated.
The appeal followed a retrial.
Each of the 2 complainants accused the appellant of sexual misconduct. Each had sought the services of the appellant in his capacity as an alternative healer.
The appellant's case essentially rested upon the cross-examination of each complainant. Much of the defence closing address concentrated upon highlighting discrepancies & inconsistencies in the complainants' evidence, with special emphasis on the evidence of each complainant at the 1st trial compared with that given at the re-trial.
Misdirections on coincidence evidence - failure to properly direct on issue of consent - whether miscarriage.
Appeal dismissed.
455

MOHAMAD, Rami - CCA, 28.11.2005
Sully, Hidden & Hall JJ
Citation: Mohamad v R [2005] NSWCCA 406
Sentence appeal.
Not being a licensed firearms dealer, attempted to purchase 18 firearms from other persons who were themselves not licensed firearms dealers.
Provision for the completed offence is found in s.51A(2) Firearms Act 1996. The sentencing judge treated the attempt as carrying the same maximum term.
A sentence of 2y with a NPP of 15m was imposed.
Aged 21 at time of offence - guilty plea - only 1 prior conviction (receive large number of mobile phones) for which a suspended sentence of 2y was imposed.
Challenge to findings of fact by sentencing judge - one finding contrary to Crown concession - whether sentence should have been suspended.
Appeal dismissed.
456

MEARNS, Richard Norman - CCA, 8.12.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Mearns [2005] NSWCCA 396
Conviction and sentence appeal.
4 x aggravated indecent assault; 1 x aggravated sexual intercourse without consent.
Total sentence of 6y with a NPP of 4y.
The appellant lived with the complainant's mother in a de facto relationship between 1991 & late 2000. That relationship commenced when the complainant was 3 years old. The complainant's evidence was that when she was between the ages of 11 & 15, the appellant touched her on the breasts & on the vagina, pushed his fingers into her vagina & exposed his penis to her on various occasions.
Adequacy of Murray direction - direction on contextual or relationship evidence inadvertently raising tendency - whether risk of misuse of that evidence by jury - conduct of trial by counsel - whether sentence excessive.
Appeal dismissed.
457

SMIT, Shiree Anne - NSW SC, Latham J, 8.12.2005
SMIT, Steven Charles
TARRANT, Donna Clare
Citation: R v Smit, Smit & Tarrant [2005] NSWSC 1277
Remarks on Sentence.
Murder.
This was a retrial following a successful conviction appeal: see R v Smit & Ors [2004] NSWCCA 409.
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 - has 4 children - evidence of rehabilitation.
Tarrant: Aged 29 - lowest level participant - lengthy record, including assaults - long-term drug abuse resulting from significant trauma.
Joint criminal enterprise.
Sentences: Steven Smit: 16y with a NPP of 12y.
Shiree Smit: 16y with a NPP of 12y.
Donna Tarrant: 16y with a NPP of 12y.
458

COOPER, Jamie Joseph - CCA, 12.12.2005
Hodgson JA, McClellan CJ at CL, Barr J
Citation: Cooper v R [2005] NSWCCA 428
Sentence appeal.
1 x aggravated BE&S (in company); 1 x possess firearms (2 pistols, 3 revolvers) without being authorised to do so by licence or permit; 1 x dispose of same firearms.
Total of 3*y with a NPP of 2y.
Applicant had been staying with relatives & other people at various houses in Dubbo. While he was staying at one of the houses (No.23 O'Donnell St), he became aware that firearms were kept in the house next door (No.21). He & his 15 year old cousin broke into No.21, forced open safes & took the firearms. The applicant then left some rifles at No.23 & told the wife of the occupant that he would return to collect them. She, however, informed the police & they attended. The 5 handguns were never recovered. Applicant had been in a relationship with a woman who gave birth to their baby boy, however, the baby died in tragic circumstances when he was 3 months old. This had a very bad effect on the applicant. He tried to hang himself & entered a period of very heavy drug use.
Aged 26 at time of offences - guilty plea - difficult upbringing - illegal drug use - little insight into offending - history of blackouts when angry - major depression - post-traumatic stress disorder - need for counselling - 'very negative attitude'- priors - no previous imprisonment.
Whether sentence excessive - sentencing statistics.
Appeal dismissed.
459

KAWASAKI, Noritaka - NSW SC, Barr J, 14.12.2005
Citation: R v Kawasaki [2005] NSWSC 1298
Judgment.
1 x murder; 1 x malicious wounding.
Judge alone trial.
The accused was a 27 year old Japanese man who had travelled to Australia some 8 months prior to the offences. He had been staying in Queensland & on the North Coast of NSW before moving to a hostel in Avalon. The accused smoked cannabis about 5 times a day. The deceased resided at the hostel & worked locally. He was an easygoing young man, very popular with the other residents. The victim of the malicious wounding was the night manager of the hostel. On the weekend before the offences occurred, the accused went in the company of others to a dance party at Shepparton, Victoria. One of his companions bought ecstasy tablets & supplied some to him. By the final day of the concert, he had begun to behave strangely. His companion became concerned & told him to stop taking the tablets. When he returned from the trip, occupants of the hostel noticed a change in him. He became withdrawn, uncommunicative, anxious & stressed, in contrast to his previous demeanour, which was described as happy & friendly. His mannerisms became unusual, laughing inappropriately, crying, making unusual gestures, facial expressions & noises. In the early hours of the morning of 3.12.2004, the accused attacked the deceased & stabbed him in the chest & other parts of the body. The night manager intervened & tried to pull the accused off the deceased, but it was too late. The deceased died before the ambulance arrived. The night manager's injuries consisted of lacerations to a forearm & a finger.
Deliberate killing - persecutory delusional beliefs & auditory hallucinations - persistent cannabis abuse, probably aggravated by ecstasy abuse - symptoms of psychosis.
Special verdict of not guilty by reason of mental illness. Order made for detention in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law
460

DANG, Ngoc Hiep - CCA, 14.12.2005
Studdert, Whealy & Howie JJ
Citation: R v Dang [2005] NSWCCA 430
Crown appeal.
Supply commercial quantity cocaine - 6*y with a NPP of 4y.
Police intercepted phone calls wherein respondent spoke to a supplier & a buyer. Respondent was arrested following police surveillance & was found to be in possession of 893gms of cocaine (82.5% pure).
Aged 24 at time of offending - guilty plea - born in Vietnam - came to Australia with family in 1989 - obtained HSC - completed Diploma in IT - gained employment as computer technician but was dismissed when a computer was stolen from his employer - losing his job a devastating experience - unable to secure further employment in the industry - became increasingly depressed, demoralised, anxious - partner became pregnant - psychological vulnerability - drug use - on bond at time of offending.
Relevance of standard NPP after plea of guilty - whether offence mid-range of seriousness - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 9y with a NPP of 5y.
461

WOOLWORTHS Ltd (Robinson v) - CCA, 14.12.2005
Basten JA, Barr & Hall JJ
Citation: Robinson v Woolworths Ltd [2005] NSWCCA 426
Appeal by way of a stated case from the District Court under s5B of the Criminal Appeal Act 1912 (NSW).
The Department of Health procured minors to purchase cigarettes from retailers as part of its investigation into compliance with s59(1) of the Public Health Act 1991 (NSW) which prohibits the supply of cigarettes to minors. An employee of Woolworths sold cigarettes to a minor so procured by the departmental officers. The issue for determination by the CCA was whether the conduct of the officers in obtaining the evidence of the minor purchasing the cigarettes was 'improper' for the purposes of s138 of the Evidence Act 1995 (NSW).
EVIDENCE - s138 of the Evidence Act 1995 (NSW) - improperly obtained evidence - whether prosecuting authority acted 'improperly' in procuring minors to purchase cigarettes as part of 'compliance testing' - extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) - consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that 'prosecution is used by public health units and the department as a last resort' informed the propriety of the conduct of the Department of Health for the purposes of s138.

The Court answered the questions asked in the case stated as follows:

Q1: Did I err in holding that, for the purposes of s 138(1) of the Evidence Act 1995 (NSW), the prosecutor's conduct was improper?
A: The conduct of the informant was not capable of constituting 'an impropriety'for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a), of the Evidence Act 1995 (NSW).

Q2: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?
A: Inappropriate to answer.

Q3: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in Ridgeway v The Queen (1994) 184 CLR 19?
A: Inappropriate to answer.

462

ZHANG, Anna - CCA, 14.12.2005 - 158 A Crim R 504
Basten JA, Simpson & Buddin JJ
Citation: R v Zhang [2005] NSWCCA 437
Conviction and sentence appeal.
Attempt import large quantity crystal methylamphetamine; possess trafficable quantity crystal methylamphetamine.
Total of 20y with a NPP of 13y 4m.
The offence of attempted importation was committed with Tony Tu, who was tried separately. The appellant ran a company importing foodstuff from China. Bags of the above drug were found by Customs officers in a consignment of foodstuffs from China. The drugs the subject of the possession count were found in a cupboard in the appellant's bedroom. The appellant's case at trial in relation to the attempted importation charge was that Mr Tu had, without her knowledge, used her food importation business to import the narcotics. In relation to the possession charge, her case was that Mr Tu had asked her to mind the bag in which the narcotics were located. She claimed she had no knowledge of the contents of the bag when she took possession of it. The trial judge, utilising the coincidence evidence rule under s.98 of the Evidence Act 1995 (NSW), allowed the evidence of the attempted importation to be used by the jury in relation to the possession & vice versa. On appeal, the appellant argued that the evidence was improperly used as coincidence evidence. A separate ground of appeal was that the trial judge undermined the criminal standard of proof in his summing up by using the phrase 'it was likely that she knew'.
Sections 98 & 101 of the Evidence Act 1995 (NSW) - coincidence evidence - attempted importation of narcotics - possession of narcotics - whether evidence of importation admissible in relation to count of possession & vice versa - whether 2 or more related events established under s.98 - consideration of 'related events' - whether evidence had significant probative value - whether substantial miscarriage of justice - standard of proof - whether reference in summing-up to 'it was likely that she knew' undermined standard of proof of 'beyond reasonable doubt' - whether sentence manifestly excessive.
Appeal dismissed.
463

HARRIS, Frederick O'Neil - CCA, 14.12.2005 - 158 A Crim R 454
Grove, Studdert & Whealy JJ
Citation: Harris v R [2005] NSWCCA 432
Conviction appeal.
Manslaughter.
7*y with a NPP of 4y 11m.
The deceased died on 7.10.2002, but the injuries sustained by him & which the jury found caused death occurred on 30.9.2002 at the Hurstville RSL Club. The injuries sustained included fractures to the lower outside part of the left eye socket & haemorrhages later detected established traumatic injury to the brain. A post-mortem revealed that death was caused by a subdural haemorrhage from head injury.
Admissibility of statement by deceased victim - whether made 'shortly after'asserted fact - whether unlikely that the representations a fabrication - self-defence - whether jury sufficiently alerted as to need for Crown to exclude reasonable possibility of appellant having acted in self-defence.
Appeal dismissed.
464

HOLTEN, Wayne Daniel - CCA, 28.11.2005
Hulme, Hidden & Latham JJ
Citation: Holten v R [2005] NSWCCA 408
Sentence appeal.
The offences arose from 3 separate incidents.
1st incident: 2 x armed robbery.
2nd incident: 1 x armed assault with intent to rob; + Form 1 (common assault, affray).
3rd incident: 1 x armed robbery; 1 x specially aggravated kidnapping; + Form 1 (1 x aggravated car-jacking; 3 x obtain money by deception).
Total sentence of 11*y with a NPP of 8y.
Aged 18 at time of offences - guilty pleas - longstanding addiction to drugs & alcohol - disturbing criminal record - difficult background - supportive parents - previous imprisonment.
Youth of offender - length of effective NPP - sentencing judge's approach to aggravating factors under s.21A Crimes (Sentencing Procedure) Act - whether sentences excessive.
Appeal allowed: resentenced to a total of 10*y with a NPP of 7y.
465

CARR, Peter John - CCA, 12.12.2005
Hodgson JA, McClellan CJ at CL, Barr J
Citation: Carr v R [2005] NSWCCA 439
Conviction appeal.
Armed robbery with wounding.
8y with a NPP of 5y.
While working in his convenience store in Lewisham, the victim was attacked by 2 men, one of whom was armed with a pair of scissors.
The appellant did not give evidence at trial. His defence essentially involved challenging the Crown's identification evidence.
Adequacy of directions concerning identification evidence - unbalanced presentation of essential issue for jury's determination.
Appeal dismissed.
466

BRAITHWAITE, Jarrett - CCA, 16.12.2005
Hodgson JA, McClellan CJ at CL, Hall J
Citation: Braithwaite v R [2005] NSWCCA 451
Sentence appeal.
1 x supply amphetamine, total weight 20.89 grams; 1 x supply MDMA (ecstasy), total weight 17.78 grams; + Form 1 (possess cannabis leaf, goods in custody).
Total sentence of 3y with a NPP of 1y.
On 20.8.2004, applicant was detected by a police sniffer dog at Kings Cross railway station. Police searched his backpack & located a set of electronic scales, a lockable box & an open bag of Glucodin glucose powder.
Aged 21 at time of sentencing - guilty plea - 25% discount allowed - minor criminal record.
Whether youth & immaturity significant - approach to suspending sentence - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 2y with a NPP of 8m.
467

WEISS - HCA, 15.12.2005 - 224 CLR 300; 80 ALJR 444
Citation: Weiss v The Queen [2005] HCA 81
On appeal from the SC of Victoria.
Murder.
Creation & promotion of false alibi by applicant & his de facto - misconduct of defence counsel at trial - judge's interventions in course of cross-examination & examination-in-chief - whether either or both occasioning miscarriage of justice - whether trial judge erred in admitting evidence of age of female with whom applicant allegedly having affair as at time of separation from his I - application of proviso - s. 568(1). Crimes Act 1958 (Vic) - substantial miscarriage of justice.
Appeal allowed: matter remitted to the Court of Appeal, Victoria for further consideration.
468

BANDITT - HCA 15.12.2005 - 224 CLR 262; 80 ALJR 421
Citation: Banditt v The Queen [2005] HCA 80
On appeal from the SC of NSW.
Sexual assault.
Sections 61I, 61R(1) Crimes Act (NSW)- recklessness as to consent to sexual intercourse - whether trial judge erred in his directions to the jury on recklessness - whether recklessness for purposes of offence of sexual intercourse without consent established simply by proof that the accused was aware there was a possibility the other person was not consenting - whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent - whether appropriate to direct juries to apply an ordinary understanding of "recklessness".
Appeal dismissed.
469

TABER, Peter David - NSW SC, Studdert J, 15.12.2005
STYMAN, Ian Craig
Citation: R v Taber & Styman [2005] NSWSC 1292
Remarks on Sentence.
Manslaughter; aggravated B&E & commit serious indictable offence (robbery).
The accused were originally convicted upon charges of murder & aggravated B&E & commit serious indictable offence (robbery), for which they each were sentenced to life imprisonment (see R v Taber; R v Styman; R v Styman [2003] NSWSC 93). They subsequently appealed against their convictions. The appeals were allowed in part, the verdicts of guilty of murder were quashed & an order was made for a new trial of each appellant upon the charge of manslaughter (see R v Styman; R v Taber [2004] NSWCCA 245). Each was successful in his appeal against sentence for the aggravated B&E offence & directions were made for the further filing of submissions & for a hearing date to be fixed. It fell upon the sentencing judge in the instant case to also sentence each accused for the aggravated B&E offence.
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
Each sentenced to a total of 18y with a NPP of 13*y.
470

HAMSHERE, Terry John - NSW SC, Hall J, 15.12.2005
Citation: R v Hamshere [2005] NSWSC 1319
Remarks on Sentence.
Manslaughter.
The accused & the deceased were friends & were drinking at the accused's premises. Two people who gave eyewitness evidence at trial arrived at the premises & noticed that both the deceased & the accused appeared to be intoxicated. Soon after the 2 witnesses arrived, the deceased & the accused began to wrestle. At first this was done in jest, however, it soon escalated into something more serious & both men became more aggressive. When the 2 witnesses began to protest at them fighting, the accused suggested to the deceased that they go outside. The deceased walked outside via the rear door of the premises & removed his shirt. The accused walked to the kitchen sink & obtained a large black handled kitchen knife before going outside. When the deceased saw the knife in the accused's hand, he tried throwing a punch towards the accused. The accused raised his right arm upwards & stabbed the deceased in the neck. One witness phoned for an ambulance, but the deceased collapsed moments later.
Guilty plea entered at first available opportunity - affected by intoxicating liquor at the time - did not act with intent to kill - cognitive & motor functions impaired - contrition - good prospects of rehabilitation - special circumstances.
Sentenced to 5y with a NPP of 3y.
471

DBN - CCA, 14.12.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v DBN [2005] NSWCCA 435
Sentence appeal.
1st indictment:
1 x take & drive conveyance; 1 x aggravated B&E with intent to steal (in company); 2 x malicious damage.
2nd indictment:
1 x robbery in company; 1 x aggravated stealing from the person; 3 x steal from the person.
Form 1 offences (12 x steal from the person, 2 x attempt obtain benefit by deception, 2 x steal MV).
Sentenced to a total of 8y with a NPP of 6y.
Use of aggravating factors under s.21A Crimes (Sentencing Procedure) Act - special circumstances - whether sentence excessive.
Appeal dismissed.
472

LIU, Piu Man - CCA, 25.10.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Liu [2005] NSWCCA 378
Sentence appeal.
Import commercial quantity heroin.
8y with NPP of 4y.
Applicant & her partner arrived at Sydney Kingsford Airport on a flight from Hong Kong wearing body packs containing packages of white powder, subsequently analysed as heroin. The total weight of pure heroin imported by the applicant was 1,582 grams. The pure heroin imported by her co-accused totalled 1,222.8 grams. The applicant was to receive no financial benefit from importing the heroin & was caught up in the enterprise by threats of violence to pay off her partner's gambling debts.
Aged 26 at time of offence - pregnant to co-accused at time of arrest - gave birth in custody - Initially separated from child but since admitted into Mother's and Children's Residential Program - major depressive disorder - does not speak English - submissive personality - poor background - no priors.
Guilty plea - delay - hardship caused by separation from son - hardship caused to son - whether justifiable sense of grievance when considering sentence imposed on co-accused - whether sentence manifestly excessive.
Appeal dismissed.
473

CONNOR, Allan Brian - CCA, 14.12.2005 - 158 A Crim R 389
McClellan CJ at CL, Studdert & James JJ
Citation: Connor v R [2005] NSWCCA 431
Sentence appeal.
5 x aggravated BE&S (in company).
Total of 4y 8m with a NPP of 3*y.
The applicant & his co-offender broke into the Nambucca Heads Golf Club & the Coffs Harbour Golf Club. A 3rd offender joined them in breaking into the Cloncurry Sports Club, the Taree Golf Club & the Smithtown Bowling Club. Money was stolen from poker machines at each of the clubs. The total amount of money stolen was $3,454 & the damage to property totalled $1,960.
Whether justifiable sense of grievance after co-offender resentenced on appeal ( R v Andrews [2005] NSWCCA 199) - whether compensation order oppressive/excessive - compensation direction - principles applicable to co-offenders.
Appeal allowed only for sentence on one count, resulting in a total sentence of 4y with a NPP of 3y.
474

DIAMANTIS, Lucas - CCA, 16.12.2005
Windeyer & Hislop JJ, Smart AJ
Citation: Diamantis v R [2005] NSWCCA 433
Sentence appeal.
Aggravated BE&S (in company); + Form 1 (2 x receive stolen property; 2 x make false statement; 2 x dispose of stolen property).
6y with a NPP of 4y.
In the early hours of the morning, the applicant & another man broke into a shop in York Street, Sydney & stole a quantity of computer equipment, then left in a stolen van.
Whether error in determining standard NPP applied to applicant's case - whether insufficient regard to subjective case - failure to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
475

TRINDALL, Carol Anne - CCA, 14.12.2005
Hodgson JA, McClellan CJ at CL, Hall J
Citation: R v Trindall [2005] NSWCCA 446
Sentence appeal.
2 x steal from the person (s.94 Crimes Act 1900); 1 x assault (s.61 Crimes Act 1900).
Total of 4y with a NPP of 2y.
The applicant had earlier been charged with an offence under s.95 of the Crimes Act 1900. However, the Crown subsequently accepted the applicant's guilty pleas in respect of the offences under s.94 & 91 in satisfaction of the indictment.
Offences under s.94 & s.61 could have been dealt with summarily in the LC.
Appeal allowed: resentenced to a total of 3y with a NPP of 18m, to commence on 7.3.2004. Order made for applicant to immediately be released to parole.
476

GJ - CCA, 16.12.2005
Grove, James & Simpson JJ
Citation: GJ v R [2005] NSWCCA 447
Sentence appeal.
Aggravated incite person under age of 16 to commit act of indecency.
2*y with a NPP of 1y 3m.
The applicant was at home with his 2 daughters. His wife was out. The 11 year old complainant & her younger sister were watching TV. The applicant called the complainant into his bedroom. He was lying on the bed naked. He told the complainant to shut the door & undress. She complied. The applicant told the complainant to sit on the side of the bed & touch his penis. She again complied. She masturbated the applicant to ejaculation. He told her to return to the living room & watch TV, which she did. The applicant told a Probation and Parole officer that what he did was 'a silly experiment'to hurt his wife. He said that he had told the complainant to tell her mother what had happened. He denied committing the offence for sexual gratification.
Aged 46 at time of offence - guilty plea - born in Iraq of Armenian & Assyrian parents - came to Australia with parents at age 11 - good, happy upbringing - relatively significant criminal record but no conviction for any comparable offence - record largely consisted of drug-related offences - addicted to heroin between ages of 22 & 28 - had long since overcome addiction - continued use of marijuana - pre-sentence report - little insight into offending behaviour - little if any appreciation of impact of offence upon daughter - need for treatment to reduce risk of re-offending.
Whether sentence manifestly excessive - whether necessary to show exceptional circumstances for non-custodial sentence - whether custodial sentence called for - whether starting point too high - whether motivation for offence was an aggravating feature - general deterrence.
Appeal dismissed.
477

OKEKE, John Kala - CCA, 16.12.2005
Mason P, Barr & Hall JJ
Citation: Okeke v R [2005] NSWCCA 444
Sentence appeal.
2 x attempt possess trafficable quantity cocaine.
Total sentence of 9y with a NPP of 6y.
On 9 & 10 February 2003, two packages from Brazil were intercepted by Customs at Kingsford Smith Airport. One was addressed to a person by the name of Moore, the other to a person named Phopson. Upon analysis, the Moore package was found to contain 190.3 grams of pure cocaine & the Phopson package 195.8 grams of pure cocaine. The cocaine was removed & the packages reconstructed in order for a controlled delivery to take place. On 11 & 13 February, a man with an African accent phoned the Strawberry Hills Post Office on 3 occasions to make enquiries about the packages. He made arrangements to collect both packages on 14 February. The applicant drove a courier van. He asked another driver from the same organisation to collect the packages from the post office & take them to him. He supplied this driver with a letter purporting to be an authority signed by Moore. This man, who was completely innocent, obliged & collected the packages, then delivered them to the applicant at the courier depot. The applicant put them into his own van & drove to the car-park of a restaurant & phoned a co-offender. The co-offender met the applicant there & the applicant handed the Moore package to him. Police arrested the co-offender in the street. A short time later they stopped & searched the applicant's vehicle. The contents of the reconstructed package were found in the vehicle, together with the remains of the wrappings. The co-offender was subsequently sentenced to 5y with a NPP of 3y 4m.
Parity - whether justifiable sense of grievance - Insufficient weight given to subjective features - whether sentence manifestly excessive.
Appeal dismissed.
478

OBLACH, Renato - CCA, 15.12.2005 - 65 NSWLR 75; 158 A Crim R 586
Spigelman CJ, Sully & Hulme JJ
Citation: Oblach v R [2005] NSWCCA 440
Conviction and sentence appeal.
Import trafficable quantity cocaine.
Sentence not stated.
At trial, there was no dispute that appellant had entered Australia carrying 728.2 grams of cocaine hidden in his clothing. An issue at trial was the defence of duress. Appellant did not testify but relied upon answers he had given to police in a recorded interview. During that interview, he indicated that threats of violence had been made against him & his ex-wife if he did not do as he was told.
Directions - duress - proper interpretation - s.10.2 Commonwealth Criminal Code - meaning of 'reasonably believes'- whether error in directing jury to have regard to objective belief of accused - whether proper to have regard to circumstances as perceived by accused - whether error in not having regard to evidence of threats - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: sentence quashed, matter remitted to DC for further consideration on sentence.
479

KAUFUSI, Moli - CCA, 26.9.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Kaufusi [2005] NSWCCA 434
Conviction and sentence appeal.
Maliciously inflict GBH.
3y with a NPP of 15m.
The appellant & the victim (his girlfriend) had an argument in a restaurant, which escalated once they moved out into the car-park when the victim attacked the appellant both physically & verbally, whereupon the appellant retaliated. The appellant chased after the victim, sat on top of her & banged her head against the concrete surface. This attracted the attention of people in neighbouring buildings & the incident was reported to police. The appellant & the victim then got into a car & drove off. After a short distance, the appellant got out of the car & started walking away. The victim also got out of the car & attempted to seek assistance from passers-by. A car eventually stopped & she was given a lift. One of the passengers in the car spoke to her & noticed blood on her clothing & head. Upon closer inspection, the passenger noticed that part of her ear was missing. The victim told that person & later told a number of other people, including an ambulance officer, a nurse, police officers & doctors, that the appellant had bitten off part of her ear.
Requirement to direct jury on self-defence - no reasonable hypothesis for self-defence - Rule 4 Criminal Appeal Rules - whether verdict unreasonable & not supported by evidence - whether sentence excessive.
Appeal dismissed.
480

LO, Hung - CCA, 16.12.2005 - 159 A Crim R 71
Hulme, Hidden & Latham JJ
Citation: R v Lo [2005] NSWCCA 436
Sentence appeal.
Supply large commercial quantity heroin (1.406.6 grams, purity 65.6-71%); supply commercial quantity heroin (834.9 grams, purity 71-72%).
Total sentence of 11y with a NPP of 9y.
Error in adopting standard NPP as starting point in determination of final sentences - special circumstances - partial accumulation - whether sentences manifestly excessive.
Appeal allowed in part, resulting in a total sentence of 11y with a NPP of 7y.
481

KARDOULIAS, Spiros - CCA, 23.12.2005 - 159 A Crim R 252
ANDRES, Leonardo
Simpson, Johnson & Rothman JJ
Citation: Kardoulias and Andres v R [2005] NSWCCA 456
Sentence appeal and Crown appeal against sentence.
Kardoulias: 1 x conspire to import trafficable quantity heroin - 13*y with a NPP of 8*y.
Andres: 1 x conspire to import trafficable quantity heroin; 1 x conspire to import commercial quantity ecstasy - total sentence of 14*y with a NPP of 9y.
The total weight of the 4 blocks of heroin was 1.395 kgs (708.5 grams pure heroin). The conspiracy to import ecstasy resulted in 5,699 tablets contain8ing 542.6 grams of pure MDMA.
Kardoulias: Sentence appeal dismissed; Crown appeal dismissed.
Andres: Sentence appeal dismissed; Crown appeal allowed - resentenced to a total of 16*y with a NPP of 11y.
482

WSP - CCA, 14.12.2005
Spigelman CJ, Sully & Hulme JJ
Citation: R v WSP [2005] NSWCCA 427
Conviction appeal (applications for extension of time).
1st trial (6.8.2003) - offences committed upon MK:
aggravated assault & commit act of indecency upon person under 16; aggravated sexual intercourse with person under 16.
2nd trial (13.8.2003) - offences committed upon CJ:
2 x assault & commit act of indecency upon person under 16; 2 x sexual intercourse with person under 16 under authority.
Total sentence of 8y with a NPP of 5y
1st trial (6.8.2003): Failure to give Longman warning - prior sexual misconduct - failure to direct jury - failure to caution on admissions.
Applications for extension of time to appeal against convictions on 6.8.2003 refused; refuse leave under Rule 4 Criminal Appeal Rules to argue the 1st to 3rd grounds of appeal.
2nd trial (13.8.2003): Inadequate Longman warning.
Conviction appeal allowed: new trial ordered.
483

BJB - CCA, 16.12.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v BJB [2005] NSWCCA 441
Conviction and sentence appeal.
1 x indecent assault upon person under 16; 2 x buggery.
Total of 5y with a NPP of 3y.
The events the subject of the appeal occurred in 1970. The allegations against the appellant were that when he was aged 17 & living with his parents, he sexually abused his niece who went to live at his parents' home for a period of 3 months. The child was aged 8 at the time.
Form of indictment - whether verdict unreasonable - delay - inconsistencies in complaint evidence - whether error in maximum penalty - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed only in relation to count 1: resentenced on that count to 4y with a NPP of 3y, to commence on 16.4.2004.
484

LI, Shu Qiang - CCA, 13.12.2005
Grove, James & Simpson JJ
Citation: Li v R [2005] NSWCCA 442
Sentence appeal.
Aggravated detain for advantage (in company): + Form 1 (aggravated demand money with menaces).
Total of 5y 4m with a NPP of 3y 9m.
Applicant & his co-offenders detained a young student from China & demanded money from him.
Sentencing judge found that there were special circumstances, yet gave very little effect to that finding - whether error in failure to differentiate between applicant & a co-offender who was charged under a different section of the Crimes Act carrying a different maximum sentence - whether error in imposing a sentence above the middle range when offence found to be in the middle range of seriousness - whether sentence manifestly excessive - parity.
Appeal allowed in part: NPP reduced to 3y 3m.
485

DOCKER, Gerald James - CCA, 8.12.2005
Kirby J, Smart AJ, Patten AJ
Citation: R v Docker [2005] NSWCCA 425
Conviction and sentence appeal.
Count 1: dangerous drive occasioning death - 6y 8m with NPP of 5y;
Count 2: dangerous drive occasioning GBH - 4y FT.
Total sentence of 7y 8m with a NPP of 6y.
Two offences, one accident - admissibility of evidence - facts part of circumstantial case - whether verdict unreasonable - combined effect of facts & circumstances - partial accumulation of sentences - inclusion in sentence on count 1 of additional element because of second offence.
Conviction appeal dismissed.
Sentence appeal allowed only for sentence on count 1: resentenced on that count to 5y with a NPP of 3*y. Disqualification of driving licence for 6y confirmed.
New total sentence to be served: 6y with a NPP of 4*y.
486

LIU, Zhi Meng - CCA, 16.12.2005
McClellan CJ at CL, Studdert & James JJ
Citation: Liu v R [2005] NSWCCA 450
Sentence appeal.
Knowingly take part in supply of large commercial quantity of heroin.
8y with a NPP of 5y.
The activities of the applicant & 2 others came to the notice of the Joint Asian Crime Group who suspected that they were involved in the supply of heroin. The applicant had become involved in the enterprise in order to fund his own heroin addiction.
Parity - whether justifiable sense of grievance - whether sentence excessive.
Appeal dismissed.
487

RE - CCA, 16.12.2005
McClellan CJ at CL, Studdert & James JJ
Citation: RE v R [2005] NSWCCA 429
Sentence appeal.
Aggravated BE&S (in company); specially aggravated kidnapping (in company); robbery in company.
Total sentence of 5*y with a NPP of 2y 9m.
The offences involved the breaking into & stealing from a warehouse, detaining a security guard with the intention of obtaining an advantage & robbing the security guard.
Whether insufficient weight given for guilty pleas & assistance to authorities - whether sentences manifestly excessive.
Appeal allowed in part: new total sentence of 4*y with a NPP of 2y 3m.
488

JONES, Wayne Edward - CCA, 16.12.2005
McClellan CJ at CL, Simpson & Hoeben JJ
Citation: Jones v R [2005] NSWCCA 443
Conviction appeal.
Malicious wounding with intent to do GBH.
The offence involved an attack upon a woman with a club lock. The issues at trial were the identity of the person who inflicted the injuries suffered by the victim and if that person was the appellant, whether he intended to inflict GBH.
Whether trial miscarried as a consequence of Crown's cross-examination & address to the jury in respect of the evidence of one witness - silence of a witness - s.89 Evidence Act 1995 - right to silence.
Appeal dismissed.
489

DOUAR, Mohammad - CCA, 22.12.2005 - 159 A Crim R 154
McClellan CJ at CL, Adams & Johnson JJ
Citation: Douar v R [2005] NSWCCA 455
Sentence appeal (extension of time).
Supply methylamphetamine; + 5 offences on a Form 1.
3y with a NPP of 2y 3m to be served by way of PD.
Applicant's vehicle was stopped by police for exceeding the speed limit. A police officer recognised the applicant as the person he had arrested 10 days before in connection with possession of cannabis & methylamphetamine. In answer to a question from the police officer, the applicant denied that the vehicle was his & said that he did not know whether drugs were contained in the vehicle. The vehicle was searched & a plastic recessed compartment in the dashboard was removed, revealing a bag containing 29 small resealable bags of cannabis, 3 medium-sized resealable bags of cannabis, 7 medium-sized resealable bags of white powder, one small resealable bag containing 4 pink tablets, 2 yellow tablets & 2 green tablets. The powder & tablets were found to contain methylamphetamine weighing 8.12 grams.
Need to fix term of sentence before considering alternatives to full-time custody - application of test under s.6(3) Criminal Appeal Act 1912 by CCA - whether CCA to apply test by reference to events at time of sentence in the DC or at time of hearing by CCA - nature of s.6(3) test - s.6(3) test satisfied.
Appeal allowed: sentence imposed in the DC quashed; matter remitted to the DC for resentencing in accordance with the CCA judgment; question of applicant's bail pending his appearance in the DC to be determined by a single judge.
490

GAGALOWICZ, Matthew - CCA, 22.12.2005
Studdert, Whealy & Howie JJ
Citation: R v Gagalowicz [2005] NSWCCA 452
Crown appeal.
Manslaughter.
8y with a NPP of 4y.
The offence involved 'a frenzied, uncontrolled attack of extreme violence'The deceased suffered extensive fatal head injuries as a result of the offender inflicting multiple blows. The offender then dismembered the deceased's body & buried the dismembered parts in the back yard. There was evidence of lucid planning in cleaning up all traces of evidence of the killing & dismembering. Offender directed others that in order for them not to be implicated in the crime, they should not be present when he disposed of the body & cleaned up.
Aged 19 at time of offence - guilty plea - drug addiction - was not under influence of drugs at time of offence - diabetic - irregular use of insulin - offender intended killing deceased - reasoning substantially distorted by mental condition - loss of self-control - violence 'simply too extensive'for possibility of intending only to cause GBH.
Whether sentence manifestly inadequate - incorrect starting point - error in application of legal principle regarding use of prohibited drugs - error in attaching weight to respondent's diabetes.
Appeal allowed: respondent resentenced to 10y with a NPP of 6y.
491

MISIEPO, Chad Frederick - CCA, 24.11.2005
Simpson, Adams & Hoeben JJ
Citation: R v Misiepo [2005] NSWCCA 405
Crown appeal.
Armed robbery with wounding; + Form 1 (possess cannabis, receive or dispose of stolen goods).
4y 9m with a NPP of 3y (special circumstances found).
The offence was committed some time after 9:00pm in Mortdale. The respondent, in company with 3 others, met the victim near a suburban railway station. The victim believed the purpose of this meeting was for him to supply the offenders with drugs. In fact, the offenders intended robbing the victim of drugs & his money. When the victim arrived, the respondent & one co-offender entered the vehicle, one of them sitting in the front passenger seat, the other in the rear seat. There was no evidence to permit a firm conclusion as to which was which. The offender in the rear seat produced a revolver-style firearm & pointed it at the victim's head, demanding drugs & money. The victim accelerated & the offender in the front seat alighted from the vehicle. The offender in the back seat continued to point the firearm at the victim & fired one round that travelled through the victim's left arm & entered his chest cavity. The offender again demanded the victim's property, whereupon the victim handed over his mobile phone & a bag belonging to another person, which he believed contained drugs. The victim was bleeding profusely. He drove to a nearby hotel & police were notified. The victim had a bullet surgically removed from his chest & remained in hospital for 2 days. The Crown case was that it was the respondent who was in the back seat of the vehicle & therefore he was the offender who actually fired the shot. The judge declined to find that the gun was used by or with the knowledge of the respondent.
Whether finding open after plea of guilty - joint criminal enterprise - whether knowledge of presence of gun implied in plea of guilty - timing of plea - application to withdraw plea - finding that plea entered at earliest possible opportunity - whether finding open - statutory requirement to first set NPP & then specify balance of term - standard NPP - departure from but not explained - Henry guideline.
Appeal dismissed.