Legal Research > Papers by Public Defenders

Court of Criminal Appeal Update : Review of 2010

 

Chrissa Loukas,
Barrister, Public Defender
March 2011

Chrissa Loukas thanks Ms Prita Supomo and Ms Jennifer Wheeler, Research Lawyers, Public Defenders Chambers, for their invaluable assistance in the preparation of this Paper.

Contents

Sentence Appeal cases

1. Standard Non-Parole Period
2. Aggravating Factors
3. Mitigating Factors
4. Procedural Fairness
5. Setting Terms of Imprisonment / Special Circumstances & Statutory Ratio
6. Parity
7. Findings on Sentence
8. Children and Youth
9. Aboriginality and Offenders at Social Disadvantage
10. Mental Illness
11. Sentencing and Statistics
12. Pre-Sentence Custody
13. Plea of Guilty
14. Supply Prohibited Drug - Trafficking to a Substantial Degree
15. Particular Offences
16. Other Sentence Cases
17. Crown appeals / Double Jeopardy


Conviction Appeal cases

1. El Helou [2010 NSWCCA 111
2. Khamis [2010] NSWCCA 179
3. RWB [2010] NSWCCA 147
4. ES (No.1) [2010] NSWCCA 197
5. Rees [2010] NSWCCA 66
6. Johnstone v NSW [2010] NSWCA 70
7. Doklu [2010] NSWCCA 309
8. RWC [2010] NSWCCA 332
9. RG [2010] NSWCCA 173
10. Chishimba [2010] NSWCCA 228
11 . Aytugrul [2010] NSWCCA 272
12. GDD [2010] NSWCCA 62
13. Woodbridge [2010] NSWCCA 185

Annexures / Appendix

A. ss54A-D Crimes (Sentencing Procedure) Act 1999
B. s 21A Crimes (Sentencing Procedure) Act 1999
C. High Court Cases
D. Legislation
E. Supreme Court Cases


 

INTRODUCTION

Welcome to the 4 th Annual instalment of the Criminal Law Update. This paper reviews Court of Criminal Appeal sentence and conviction appeal judgments through 2010. Annexed are summaries of 2010 High Court cases along with recent criminal legislation.

SENTENCE CASES

1. Standard Non-Parole Periods

Where listed offences are committed after 1 February 2003 and the offence is in the mid-range of seriousness, the standard non-parole period (SNPP) is required to be set unless the court determines that there are reasons for not setting the SNPP: s.54B Crimes (Sentencing Procedure) Act1999 (Appendix A). Factors in s.21A Crimes (Sentencing Procedure) Act1999 and the common law are relevant to this exercise. These factors are not a 'narrow list of considerations': Way (2004) 60 NSWLR 168 at 56-57. The application of the SNPP continues to dominate sentence appeals in the NSW CCA.

SNPP must be completely disregarded where offender under 18 years at offence

Section 54D(3) Crimes (Sentencing Procedure) Act1999 provides that the SNPP provisions do not apply if the offender was under 18 at the time of the offence. In BP [2010] NSWCCA 159 and AE [2010] NSWCCA 203 the Court said that it is an error to use the SNPP as a 'guide'where the offender was under 18 at the time of the offence to which a SNPP normally applies. See also JC [2010] NSWCCA 67. Even 'oblique usage'was erroneous and the SNPP must be completely disregarded: BP at [39].

In AE [2010] NSWCCA 203 the applicant was aged 15 at sentence. The judge said at sentence: "I will return for a moment to the significance of the standard non-parole period. As I said earlier it does not apply automatically for amongst other reasons that the offender pleaded guilty. Nevertheless it remains, according to the authorities, as a guideline or perhaps guidepost giving some indication ..'.

Upholding the appeal, the Court said the approach was erroneous in principle.


Per Basten JA (Hall and Latham JJ agreeing):

'[23] Thirdly, and in combination with the last matter, his Honour's reference to the use of a standard non-parole period as a guideline or guidepost, giving an indication of the range of sentencing options, while not erroneous, is troubling. That language, was originally used in a context where the standard non-parole period was, according to the statute, applicable but the Court exercised the discretionary power to depart from it: see, eg, AJP [2004] NSWCCA 434; 150 A Crim R 575 and Davies [2004] NSWCCA 319. To use the standard non-parole period as a reference point in a case to which, by force of the statute, it has no application, is to risk misuse. Further, if some indication is to be derived from such a reference point, it is important to identify why the reference point is not in terms applicable. Most importantly in the present case, that is because of the age of the offender. The underlying reasoning is, no doubt, that the application of a standard non-parole period in the case of a young person is likely to be inconsistent with the principles governing the sentencing of children, as set out above.


 

Inadequate reasons when sentencing for SNPP offence

In Mayall [2010] NSWCCA 37 the Court reiterated the importance of providing adequate reasons in sentencing for a SNPP offence. In this case, there was no assessment of the objective seriousness of the offences or reasons given for departure from the SNPP. However, although the sentencing discretion miscarried, the Court did not consider that any lesser sentence was warranted.

Per Howie J (James and Davies JJ agreeing):


'[30] The complaint is that the Judge failed to determine the objective seriousness of the offences as he was required to do in accordance with the decisions of this Court concerned with the application of the standard non-parole provisions.

[31] Unfortunately it must be said that the sentencing remarks are completely inadequate insofar as they indicate how his Honour determined the sentences he imposed. There is scant regard, if any, to the staged approach that has been held to be necessary where there is a standard non-parole period even after a plea of guilty: MLP [2006] NSWCCA 271; 164 A Crim R 93. Almost five years ago in Mills [2005] NSWCCA 175; 154 A Crim R 40 at [49] Wood CJ at CL said:

... more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order.
[32] With respect, the passage of the sentencing remarks last quoted above is meaningless as to the process by which his Honour determined the appropriate sentence. It does not contain a 'clear identification of the relevant factors'In particular the Judge fails to undertake any assessment of the objective seriousness of the offences or to indicate why he is departing from the standard non-parole period. This is another instance of a failure by a District Court Judge to attempt to carry out the process that this court has mandated when dealing with an offence that carries a standard non-parole period. His Honour's sentencing discretion clearly miscarried. This court will have to consider whether any lesser sentence is warranted.


 

Necessary to describe the degree to which offence departs from mid-range

There have been a number of judgments on this issue.

In McEvoy [2010] NSWCCA 110 the judge found an offence of malicious wounding with intent to cause grievous bodily harm fell 'below the mid-range of objective seriousness.'The CCA said the judge erred in not stating with sufficient precision where in the range of objective seriousness the offence stood.

The Court (at [76]ff) referred to Knight & Biuvanua (2007) 176 A Crim R 338 where the judge had erred in simply finding the offence 'at least in the mid-range of objective seriousness.'In Knight, Howie J said that while one cannot make an assessment with 'absolute precision', a judge should "at least indicate whether the offence is assessed as below, of, or above mid-range of seriousness with some indication as to the degree to which it departs from the mid-range if that is the finding." McClellan CJ at CL said that such a finding meant the offence is above mid-range and that the judge ought to 'define the extent to which it falls above the mid-range.'The Court in McEvoy said that the slightly less prescriptive approach taken by Howie J should be preferred.

Per Simpson J (Grove and RA Hulme JJ agreeing):


'[87] For my part, if, and if so, to the extent that it may be perceived that there is any conflict between the approaches taken by McClellan CJ at CL and Howie J [in Knight's case] I prefer the slightly less prescriptive approach of Howie J. It would be sufficient in my view for a sentencing judge to describe the extent or degree for which the offence departs from a notional offence in the mid-range of objective seriousness.

[88] Even on this standard the finding falls short of what is required. It gives no indication whether the offence fell substantially, significantly, or slightly below the notional mid-range offence.

[89] The error so identified is an error of process. It does not necessarily follow that the finding was wrong. It is not every error of process that will result in a conclusion that the sentence ultimately imposed was erroneous, either manifestly excessive or manifestly inadequate. Here, the complaint about process was put in the context of a contention that, because the non-parole period imposed was so far below the standard non-parole period, her Honour must have failed to treat the standard non-parole period as a reference point. In effect, the error was pointed to as indicative of the reason for what was the core contention of the Crown, that is, that the non-parole period imposed was manifestly inadequate.

[90] It is because the standard non-parole period is to be treated as "a reference point, or benchmark, or sounding board, or guide post" ( Way, [122]) that this Court has required some specification of where in the range of objective seriousness an offence lies. Leaving aside other relevant factors, such as personal circumstances, one would expect an offence classified as substantially below the mid-range of objective seriousness to incur a sentence substantially below the standard non-parole period; an offence slightly below mid-range of objective seriousness to incur a sentence slightly below the standard non-parole period; and the converse where the offence is slightly, significantly, or substantially above the mid-range of objective seriousness.

[91] In fact, taking the approach proposed by Howie J provides some check against error. If an intended sentence has a non-parole period substantially below the standard non-parole period, but the offence is held to be slightly below the mid-range of objective seriousness, then a sentencing judge would be wise to examine whether other factors (for example, personal circumstances) warranted that differential. If they do not, the sentence should be re-considered: see Way, [124]'.


In Sellars [2010] NSWCCA 133, involving supply a commercial quantity of amphetamine, the judge had found the offence fell 'below the middle of the range of objective seriousness.'This was an error as it is necessary for judges to specify the extent or degree to which an offence departs from an offence in the mid range: at [11]. Allowing the Crown appeal, McCllellan CJ at CL (Grove and Johnson JJ agreeing) said:


'[11] It is apparent that although his Honour found that the offence fell below the middle of the range he did not explain the basis of his finding and accordingly there is an error. As Simpson J said in McEvoy [2010] NSWCCA 110 at [89] the error is an error of process. Furthermore, this court has said on a number of occasions that when sentencing for offences for which the Parliament has provided a standard non-parole period it is necessary for judges to specify the extent or degree to which an offence departs from a notional offence in the mid range of objective seriousness: see McEvoy [87] and the discussion of Cheh [2009] NSWCCA 134; Knight; Biuvanua [2007] NSWCCA 283; [2007] 176 A Crim R 338.

[12] In McEvoy Simpson J suggested that there may be a difference in approach to this issue between that taken by Howie J and myself in these decisions. If so it was not intended. When I said in Cheh that a sentencing judge must identify 'with precision'where an offence falls in the scale of objective seriousness (see [22]) I was endeavouring to emphasise that if an offence falls outside the mid range a sentencing judge should identify where it falls rather than merely state that it falls above or below the range.

[13] In the present case because the sentencing judge failed to identify the extent to which the offence fell below the mid range the obligation required of him was not discharged. It is then necessary to consider whether that failure has led to an error in the ultimate sentence. When a judge does not identify where an offence falls upon the range of objective seriousness the possibility that the sentencing discretion will miscarry increases. This will be so both when an offender is being sentenced after trial or has pleaded guilty and the standard non-parole period confined to being used as a 'guide post'.


Other judgments where this issue arose include Dunn [2010] NSWCCA 128; Mitchell [2010] NSWCCA 145; LP [2010] NSWCCA 154; Hamieh [2010] NSWCCA 189.

A sentencing judge is not required to compare a SNPP offence with an 'abstract offence'

In Dunn [2010] NSWCCA 128 and Hristovski [2010] NSWCCA 129 the Court said that a judge is not required to compare the objective seriousness of an offence with 'abstract offences' in the middle of the range of objective seriousness. In these cases, the applicants submitted that the judge erred in finding the offences were in the mid-range without comparing salient features of the offences with 'putative or abstract mid-range- offences'The Court rejected this submission.

In Hristovski [2010] NSWCCA 129 Johnson J (Grove and Johnson JJ agreeing) said:


'[37] With respect to Ground 1, I do not accept the Applicant's submission that it was necessary for the sentencing Judge to articulate an abstract offence for the purpose of comparison with the present case to make a finding as to objective seriousness: Dunn [2010] NSWCCA 128 at [14]-[18].

[38] It is not an essential requirement when sentence is being passed for a standard non-parole period offence that the sentencing Judge must erect an abstract offence in the middle of the range of objective seriousness for the purpose of then comparing that abstract offence with the actual offence before the court. The authorities make clear that the characterisation of the objective seriousness of the instant offence will involve an assessment by the sentencing Judge of features of the offence which bear upon an assessment of its objective seriousness. That is what the sentencing Judge did in this case. Even if there was some error in his Honour's approach (and I do not think that there is), it would be an error of process only and it would not necessarily follow that there was error in the sentence passed: McEvoy [2010] NSWCCA 110 at [89]; Dunn at [20]. I would reject the first ground of appeal'.


Standard non-parole reasoning does not apply where offence does not have SNPP

In Georgopolous [2010] NSWCCA 246 the Court said a judge should avoid making an independent assessment of 'objective seriousness'where the offence does not carry a SNPP. The applicant pleaded guilty to robbery in company under s 97(1) Crimes Act to which no SNPP applies. In sentencing, the judge said: '... It is indeed fortunate that the victim's injuries were not more serious. However, this fact alone does not diminish the objective seriousness of this crime in any significant way. My assessment of the objective seriousness is that it falls slightly above the mid range for offences of its type'.

Per Howie AJ (Allsop ACJ and Adams J agreeing):


'[30] Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period.

[31] In Sivell [2009] NSWCCA 286 McClellan CJ at CL stated:


2 The sentencing Judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period.

3 Although a sentencing Judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in Way (2004) NSWCCA 131; 60 NSWLR 168: see also AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575.

4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed.

5 The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered'.

2. Aggravating factors

Section 21A Crimes (Sentencing Procedure) Act1999 (Appendix B) sets out aggravating and mitigating factors that a sentencer is to take into account in determining the appropriate sentence. This is an area that has given rise to a plethora of appeals in relation to aggravating factors and double counting and continues to do so.

Section 21A(2) is not a checklist

In Gore, Hunter [2010] NSW CCA 330 (involving drug supply) the Court said that s 21A(2) is not to be used as a checklist without any regard to the particular facts and the nature of the offence. In this case the judge erred in finding the offence was committed 'in company' and 'in the presence of a child' when the evidence did not support these findings. Adams J and Howie AJ commented that the factors in s 21A(2) must actually aggravate the offence.

Adams J said:


'[30] ... the mere fact that a particular feature is listed in s 21A(2) should not have a significant effect on a sentence unless, having regard to the ordinary principles of sentencing, it actually aggravates the particular offending in question. In the circumstances here, the mere fact that Hunter may have (in some unspecified way) been in the company of Gore at the time of the supplies to the undercover officers and, no doubt, in respect of the conducting of drug premises, her presence added no significant culpability to these offences and should not have been weighed in the scales'.


Howie AJ said:


'[102] I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considering whether, in light of a discernable policy making the factor aggravating, that it is truly aggravating in the context of the offence being committed. There was no policy that would make the applicant's offending more serious simply because it happened to be in the presence and with the assistance of Ms Hunter in the circumstances of this case. Again any understanding of the approach taken to s 21A(2) by this Court would make it clear that it is not to be used as a checklist without any regard to the particular facts before the court and the nature of the offence for which sentence is being passed. '


Similarly in Dong [2010] NSW CCA 107 the applicant was charged with kidnapping in company with intention to obtain financial advantage (s86(3) Crimes Act). The applicant complained that the judge adopted a "check list" approach to s 21A and effectively double counted that the offence was committed 'in company' and 'for financial gain.' The Court agreed - the judge had viewed these matters as matters of aggravation when they were clearly an element of the offence and this was an error: at [52]-[53].

Where aggravating circumstance can be proved through victim impact statement

In Aguirre [2010] NSWCCA 115 it was not an error to use the victim impact statements to establish an aggravating circumstance (s 21A(2)(g) substantial harm) where the statement was tendered without objection and with no limit as to evidentiary weight. The applicant submitted that an aggravating factor has to be proved beyond reasonable doubt and cannot be proved to the requisite standard by a victim impact statement: Slack [2004] NSWCCA 128 at [62]. Per James J (Simpson J and Barr AJ agreeing):


'[75] Notwithstanding what was said in Slack, this court has from time to time accepted that a matter, even a matter of aggravation, can, at least in some circumstances, be proved by a victim impact statement. In Thomas [2007] NSWCCA 269 Basten JA, with whom Latham J and Rothman J agreed, said at [37]:

In Slack [2004] NSWCCA 128 at [60] Sperling J noted there is further implicit recognition of the entitlement of a sentencing judge to rely upon a victim impact statement in s 28(4), dealing with the use of a victim impact statement given by a family victim 'in connection with the determination of the punishment of the offender'It is unfortunate that the Act gives no greater guidance as to the appropriate use of such a statement, especially where untested, for the purposes of determining sentence. However, it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim. There is some doubt in the present case as to what weight the sentencing judge gave either to the physical effects of the assault or its psychological sequelae.

[76] In Wilson [2005] NSWCCA 219 Simpson J, with whose judgment the other members of the court, so far as is relevant, agreed, referred to the victim impact statements given by the victims in that case and to Sperling J's judgment in Slack. Her Honour commented that it has not been customary for a victim who has supplied a victim impact statement to be cross-examined in the sentence proceedings. Her Honour continued at [28]:

It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded. That really provides the answer to the issue taken here. The victim impact statements were tendered without objection. No argument was addressed to whether their contents should be attributed weight or not. Experienced counsel who appeared for the applicant on sentencing made no attempt to limit the use his Honour was to make of the quite substantial matters contained in the statements, particularly that relating to Mr Gresham.

[77] Her Honour's remarks in Wilson are apposite in the present case. In the proceedings on sentence the victim impact statements were tendered and admitted without objection. No submissions were made in the proceedings on sentence that the use of the victim impact statements should be limited or that the evidentiary weight to be given to them should be limited. In these circumstances the sentencing judge could properly use the victim impact statements to establish the aggravating factor in s 21A(2)(g)'.


 

s.21A(2)(e) - the offence was committed in company

In Gore, Hunter [2010] NSW CCA 330 the Court found that the judge erred in finding a drug supply offence aggravated by being 'in company'just because the applicant used a co-offender to assist in his drug trade. This fact did not mean that the offence was committed 'in company'.

Per Howie AJ:


'[101] That approach should have at least raised a question about whether a factor of aggravation that an offence was committed in company meant that the factor was engaged simply because another person other than the offender was present or engaged in the offending regardless of the nature of the offending or the purpose of the other person's presence. The common law understanding of 'in company'should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person. That factor had no application to the applicant simply because he happened to use Ms Hunter to assist in his drug trade. The prosecutor should not have asserted that it did. Prosecutors should not be leading a sentencing court into error by a failure to understand the approach that is to be adopted to s 21A(2) in light of the numerous decisions in this Court in that regard: see McCullough [2009] NSWCCA 94.

...

[103] Like conspiracy, an offence may be aggravated because the offender has employed others to carry out, or assist, in the commission of a crime. But this is not because the offender is in company with those he employs. Such a circumstance is aggravating because the offender has involved others, perhaps for reward, in carrying out his crime. But there was nothing to suggest that this was the case by the applicant's use of Ms Hunter'.


s.21A(2)(ea) - the offence was committed in the presence of a child

In Gore, Hunter [2010] NSW CCA 330 the applicant's drug supply business was conducted in a house where the applicant's 17 year old son lived. However, there was no evidence the supplies took place in the son's actual presence and it was an error to find finding the offence aggravated by this factor.

Per Howie AJ:


'[104] The common law did not specifically identify as an aggravating factor that an offence was committed in the presence of a child, so no guidance is given to how the section should be interpreted from that source. However, it is not difficult to appreciate that the provision in s 21A(2)(ea) is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child. The commission of the offence may also be deleterious to the child's moral values. It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating. I accept that generally the supply of drugs in the presence of a child would be a factor of aggravation. Again whether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age. No regard seems to have been given to such considerations in this case either by the parties or the court.

[105] But attention must be given to the words actually used in the aggravating factor in the provision, the policy behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt. As Adams J points out, there was no evidence that any offence had been committed in the presence of Ms Hunter's son. The evidence given by Ms Hunter, as set out in the judgment of Adams J, could not have supported the allegation and yet the prosecutor was prepared to leave the evidence in that state.

[106] The aggravating factor in s 21A(2)(ea) was simply not made out on the evidence. This is notwithstanding that it could also be argued that the provision could not be applied where the prosecutor had not chosen to charge the aggravated offence under s 36Z(2) of the Drug Misuse and Trafficking Act'.


 

s.21A(2)(eb) - the offence was committed in the home of the victim or any other person - may apply to 'break, enter and steal'

In Palijan [2010] NSWCCA 14, where the offender was charged with aggravated break, enter and steal (s 112(2) Crimes Act), it was not an error to take into account as an aggravating factor that the offence took place in the victim's home. The element of breaking and entering in s 112(2) does not require the premises to be the victim's home: at [21]-[22].

Per Barr AJ (McClellan CJ at CL and Hislop J agreeing):


'[20] It was submitted on appeal that, given that the offence was break and enter and that the aggravating feature was the use of corporal violence on the victim there was no increased criminality by virtue of the fact that the home broken into was the home of the victim.

[21] The element of breaking and entering in s 112(2) Crimes Act does not require that the premises be the home of the victim. S 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence include -


(eb) the offence was committed in the home of the victim or any other person.

[22] It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant. In my opinion his Honour was entitled to take that matter into account as aggravating the applicant's criminality'.


 

In Aguirre [2010] NSW CCA 115 the applicant was sentenced for 'aggravated take and drive vehicle'. The offence was committed while victim sat in his car in the driveway of his house. There was no error in finding the offence aggravated under s 21A(2)(eb).

s.21A(2)(l) - victim vulnerable

In Ali [2010] NSWCCA 35 the offender, a taxi driver, sexually assaulted his passenger victim who was intoxicated. The Court said there was no error in finding the victim was 'vulnerable.'

s.21A(2)(n) - offence part of a planned or organised criminal activity

In Williams [2010] NSWCCA 15, involving break, enter and steal, the judge erred in finding the offence was 'part of a planned or organised criminal activity': s 21A(2)(n). The applicant had stolen valuable artworks and property worth $120,000 from an isolated rural home. The Court said at [23] that it is only when the offence is part of a more extensive criminal undertaking that s 21(2)(n) applies. The fact that an offence was planned is not sufficient: Fahs [2007] NSWCCA 26 at [21] per Howie J. In the present case, the offence was planned but there was nothing to indicate that it formed part of 'a planned or organised criminal activity': at [21]. The offence was, however, professionally planned in the sense of that expression when used by Grove J in Ponfield (1999) 48 NSWLR 327. The robbery and the goods targeted showed a level of professionalism and these were matters relevant to the applicant's level of criminality: at [22].

Per McClellan CJ at CL (Simpson and Hidden JJ agreeing):


[14] In his remarks on sentence the trial judge considered a submission by the Crown prosecutor which was to the effect that his Honour should find that the offence was the result of professional planning, organisation and execution. This phrase was used by Grove J in the guideline judgment in Ponfield [1999] NSWCCA 435; 48 NSWLR 327. In his judgment Grove J (at [48]) indicated that there were a number of matters which a court should regard as enhancing the seriousness of an offence contrary to s 112(1) of the Crimes Act. These included: 'the offence is the result of professional planning, organisation and execution.'His Honour did not elaborate on the expression.

[15] There may be difficulties in particular cases in determining whether or not an offence was the subject of 'professional planning'However, it is plain that an offence which meets this description will not be spontaneous or committed 'on the spur of the moment'but will have the hallmarks of deliberate planning with the intention of ensuring that the activity can be undertaken with minimal prospects of detection while optimising the potential reward to the offender.

...

[19] Section 21A(2)(n) has been considered by this court on previous occasions. In Fahs [2007] NSWCCA 26 at [21] Howie J said that the provision conveyed 'more than simply that the offence was planned'His Honour suggested that a street dealer who purchased drugs simply to obtain the cash to purchase drugs for his own use is unlikely to fall within the provision (see [22]). However, those responsible for maintaining the drug distribution network are likely to be committing offences which form part of planned or organised criminal activity.

[20] In my opinion the approach adopted to s21A(2)(n) by Howie J is correct. It is only when the particular offence is part of a more extensive criminal undertaking that the subsection is engaged. The fact that an offence was planned does not of itself bring it within the subsection.

[21] In the present case it is plain that before committing the offence the applicant must have taken steps to confirm that the victim was not in his home and made preparations to disarm the alarm system. He must have used a significant vehicle to remove all of the items which were stolen. Those items involved significant art works which could only be effectively disposed of through a confined market. If the applicant's crime was to bring him any significant reward he had to appreciate the nature of the objects he was preparing to steal and believed he had a capacity to dispose of them. However, although the offence was obviously planned there is nothing in the evidence to indicate that it formed part of 'a planned or organised criminal activity'.

[22] This is not an end of the matter. To my mind the particular features of this offence mark it out as one which was professionally planned in the sense of that expression when used by Grove J. In ordinary language this was not the work of an 'amateur'The execution of the robbery and the goods targeted displayed a level of professionalism. These were matters relevant to the applicant's level of criminality. Although the sentencing judge erred I am not persuaded that that error has influenced the appropriate sentence to any significant extent.


 

s . 21A(2)(n) and drug offences

In Knight [2010] NSW CCA 51, where the applicant was a street-level drug supplier, it was an error to find the offences were planned and part of an organized criminal activity under s 21A(2)(n). The offences did not permit a finding that the degree of planning exceeded what would ordinarily be expected in the case of a person supplying drugs at street level. There was no evidence that the offences were part of a planned or organised criminal activity, as that expression has been interpreted by this Court. It has been consistently held that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) is present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning exceeded the degree of planning which would ordinarily be expected in an offence of that kind: Yildiz (2006) 160 A Crim R 218; Fahs [2007] NSWCCA 26; Hewitt (2007) 180 A Crim R 306. However, the Court found that the judge was mindful that the applicant was a street level supplier and that the applicant's offences were planned only to the extent that street level dealing in drugs is ordinarily planned. As the error had no material impact on the sentences imposed the appeal was dismissed: [16]-[27].

In contrast, in Gore, Hunter [2010] NSW CCA 330 the applicant's drug supply business was conducted from a house that had been fortified and drugs were readily available. Howie AJ said that these were relevant considerations in finding the offence had been 'planned':


'[108] Planning is also at least inherent to some degree in an offence under s 25A. It is highly unlikely that it is an offence that can be committed opportunistically because of its repetitive nature. So consideration has to be given to whether the planning in the commission of the particular offence was of such a nature that it could be taken into account as an aggravating factor and the degree to which it aggravated the offending. This analysis was not undertaken.

[109] It is in this regard that I believe that the nature of the premises from which the offence was carried out is a relevant consideration. The fact that the premises were 'fortified', was significant in an assessment of the planning involved and the applicant's commitment to the drug trade. It is one thing to supply on the streets or at licensed premises where the supplier is liable to the risk of being 'ripped off'It is quite another to be supplying in premises that have been adapted for the purposes of securely carrying out the trade. In my respectful opinion it is not to the point that it was lawful for the applicant to adapt his house as he did. The relevant factor is the purpose of the adaptation. It was an aggravating factor in the present case because it showed more than usual planning in the commission of the offence. It was planning to a very significant degree beyond what might be expected in the lower case of offending under the section.

[110] It my opinion it was also a relevant factor that the applicant was prepared to supply drugs whenever a customer wished to purchase them. It shows a commitment to his offending that was beyond what would normally be expected. Those that supply from commercial premises are restricted to hours when the premises are open. Sometimes the supplier might not be available for some reason. But this was not the case for the applicant. The extent of his intention to offer to supply drugs was in my opinion a relevant and aggravating factor. This was so regardless of the lack of evidence about how often he actually supplied drugs on this basis. I also believe it to be a not insignificant factor that the applicant was prepared to supply drugs for, what were obviously, stolen items. Such conduct encourages further crime, just as does a receiver of stolen goods'.


 

3. Mitigating factors

Extra curial punishment and loss of career / public humiliation

In Kenny [2010] NSWCCA 6 the applicant pleaded guilty to child sexual assault offences. The applicant had held a public position as a councillor with a promising political career. It was submitted that the judge ought have taken into account in mitigation that he had suffered "public denigration" and "public humiliation".

The Court said at [49] that whether public humiliation can constitute extra-curial punishment remains unresolved in the High Court: Ryan (2001) 206 CLR 267, and it was unnecessary to determine the issue for the purposes of this appeal. There may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment: see Allpass (1993) 72 A Crim R 561 and King [2009] NSWCCA 117: at [49]. But such a finding was not supported by the evidence in this case: at [50].

The Court noted at [47] that the loss of a career or profession could in an appropriate case be taken into account as extra-curial punishment: see Poynder [2007] NSWCCA 157. It was a matter for the judge as a factual finding to determine whether the impact upon the applicant's political career was a matter that should mitigate the sentence as extra-curial punishment, and the Court was not persuaded that the judge had erred: at [51].

Reduction in sentence where offender's parents reported criminality to police

In Barlow [2010] NSWCCA 215, a Crown appeal, it was not an error to reduce the sentence on the basis that the offender's parents had reported their son's criminality to police. The Crown argued that this rewarded the child for the conduct of his parents: at [44].

Per McCallum J (Allsop and Price JJ agreeing):


'[45] It is uncommon for parents to act in the way Mr Barlow's parents did. Ms Francis noted that, as a consequence, a line of enunciated principle has not emerged on this issue.

[46] In my view, the Crown's characterisation of the regard his Honour had to this question as a "reward" misconceives the purport of his Honour's remarks. The correctness of his Honour's approach must ultimately be analysed by reference to the purposes of sentencing specified in section 3A of the Crimes (Sentencing Procedure) Act. In my view, there is force in the contention put by Ms Francis on behalf of Mr Barlow that the disclosure by parents of criminal conduct on the part of their children ultimately promotes the purposes of sentencing. It is conducive to the protection of the community from the offender; to the promotion of the rehabilitation of the offender and, potentially, to making the offender accountable for his or her actions.

[47] Ms Francis acknowledged that, in the case of an offender who does not "grasp such parental involvement and intervention", the impact of that consideration upon penalty would be negligible, if relevant at all.

[48] That was not the position in the present case. Mr Barlow's immediate response to the attendance of police was one of open and contrite disclosure of matters otherwise unknown to police. The first difficult step towards rehabilitation having been taken out of his hands by parental intervention, Mr Barlow turned to that path with enthusiasm. The combination of those matters was a proper basis for the Judge to conclude that the purposes of sentencing could adequately be met by a less severe sentence than in the case of, say, an offender whose parents help him out the back window as police arrive at the front door. I do not think any error is disclosed'.


 

s 21A(3)(i) Remorse

Remorse is a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. That section is as follows:


'The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows

...

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),'


 

Offender must provide, but need not give, evidence of remorse

In Butters [2010] NSWCCA 1 the offender tendered reports and references containing expressions of remorse but did not himself give evidence. The sentencing judge found that "remorse might have been more forthcoming". The Court held at [17] that s 21A(3)(i) does not require an offender to give evidence before remorse can be taken into account in mitigation. There is only a requirement that an offender provide evidence of remorse: Thomas [2007] NSWCCA 269. In this case there was "ample evidence" to satisfy s 21A(3)(i). The judge did not disregard the evidence of remorse on the basis that the applicant did not himself give evidence but properly took that into account in assessing the weight of the evidence. The Court has previously cautioned against uncritical reliance on material contained in tendered reports where an offender has not given evidence: at [18]; Qutami (2001) 127 A Crim R 369; TS [2007] NSWCCA 194. The judge was entitled to give reduced weight to evidence of remorse as a mitigating factor. The appeal was dismissed: at [21].

Error to find applicant 'not truly remorseful'on basis that applicant failed to identify co-offenders

In Pham [2010] NSWCCA 208, involving supply drugs, the offender tendered reports stating he was remorseful. An agreed statement of facts named his co-offenders but did not identify them. The judge said that there was no real evidence of remorse and that as the applicant did not identify his cooffenders he was 'not truly remorseful': at [19]-[20]. The Court said that the judge was not obliged to accept the assessment made in the reports stating the applicant was remorseful: at [26] citing Butters [2010] NSWCCA 1. However, it was an error to treat the applicant's reluctance to identify his co-offenders as indicative of the absence of remorse and contrition. There are good and well-known reasons why participants in drug offences might display such reluctance: at [27] citing Baleisuva [2004] NSWCCA 344. It was open to the judge to be sceptical about the applicant's remorse, but it was not open to his Honour to find the applicant was not "truly remorseful": at [28].

Restitution as evidence of remorse

In Oh Hyunwook [2010] NSWCCA 148 the Court said that practitioners might note that restitution is a powerful way to demonstrate remorse: at [32]. When asked by the sentencing judge whether he had contributed towards the victim's medical costs, the applicant replied he had not because his lawyers had advised not to have contact with the victim. The sentencing judge had referred to this as 'unfortunate.'The CCA found that the judge had found evidence the applicant was remorseful but that restitution would have demonstrated remorse: at [30]-[32].

Plea of guilty and its significance as evidence of remorse

In Georgopolous [2010] NSWCCA 246, where the offender had pleaded guilty to armed robbery, the sentencing judge said, 'I am unable to see any evidence of remorse (aside from the plea itself) and I do take his plea into account as a mitigation factor.'The Court said this statement was incorrect. A plea of guilty is not evidence of remorse and will rarely by itself be sufficient to meet the pre-conditions for it to be used as a mitigating factor under s 21A(3)(i): at [49]. The Act requires an offender to demonstrate by evidence that s/he is truly remorseful: at [50].

Per Howie AJ (Allsop ACJ and Adams J agreeing):


'[45] In MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159 this Court was critical of a discount given for a combination of a plea of guilty and remorse. The Court indicated at [44] that no separate discount should be given for remorse. But it does not follow, and it would be inconsistent with s 21A(3)(i), that remorse falling within the section cannot lead to a more lenient sentence. Of course, as was noted in MAK & MSK, there is a real risk of double counting in reducing a sentence for the offender's remorse, good prospects of rehabilitation and a finding that he is unlikely to re-offend because these matters are so inter-related. But the statute makes each of them a matter of mitigation.

[46] His Honour did not refer to s 21A(3)(i) but he did take into account the co-offender's remorse and could only do so if the pre-conditions in the section had been met. From what he said in his remarks, it appears that the co-offender met both those preconditions. Minds might differ as to the significance to be given to that factor, but there could not have been a greater dissimilarity between the attitude shown by the applicant to the robbery offence and that shown by the co-offender at the time of sentencing. The applicant could not receive a greater sentence because of his lack of remorse but the co-offender could receive a reduction in his sentence by reason of this mitigating factor. Had the co-offender not received a lesser sentence, he could claim a justifiable sense of grievance because no account had been taken of a mitigating factor present in his case but not in the case of the applicant.

[47] This consideration of remorse brings me back to a finding that his Honour made in favour of the applicant and that I referred to earlier. His Honour stated: I am unable to see any evidence of remorse (aside from the plea itself) and I do take his plea into account as a mitigation factor.

[48] With respect, this finding contains an internal inconsistency and was plainly wrong. The plea carried with it no evidence of remorse. Not infrequently, in my experience, a sentencing court finds that a plea of guilty carries with it evidence of contrition. For the purposes of sentencing, I do not understand that there is any relevant difference between contrition and remorse, whatever subtle distinction might be draw between the two words in the richness of the English language. The issue of remorse, as I have already noted, is governed by s 21A(3)(i).

[49] In my opinion a plea of guilty may by inference amount to evidence of remorse for the purpose of the section but it will rarely be sufficient to meet the pre-conditions for it to be used as a mitigating factor. The plea is simply an admission by the offender of the facts that form the elements of the offence. The court is entitled to act upon the plea regardless of the reason why the offender made the admissions inherent in the plea of guilty. The offender is bound by the plea even if, as appears to be the case here, the offender does not in fact believe he is guilty: see Wong v DPP [2005] NSWSC 129; 155 A Crim R 37. Provided that the offender intended by the plea of guilty to make the relevant admissions, it does not matter why he made those admissions.

[50] Of course, s 22 of the Crimes (Sentencing Procedure) Act requires the court to take into account the fact that an offender has pleaded guilty. But apart from its utilitarian value, I have difficulty understanding how a plea of guilty alone mitigates an offence where, as is now the case under the Act, the offender must persuade the court by evidence that he, or she, is truly remorseful. In any event, in the present case, the plea of guilty was not evidence of remorse where the offender had otherwise shown no remorse. I do not understand how in this case the plea of guilty was a mitigating factor other than by reason of its utilitarian value'.


 

Motive

In Quealey [2010] NSWCCA 116 the applicant submitted that her moral culpability was reduced due to her motive, that is, revenge upon the victim. The applicant believed that the victim had sexually abused the applicant's daughter. Dismissing the appeal, the Court said in this case motive did not reduce the applicant's moral culpability to any significant degree. The applicant had embarked on a deliberate course of conduct and deterrence was important: at [28]-[29]. However, the Court observed that motive is relevant to explaining an offender's conduct and can be an important factor on sentence: Per Latham J (Giles JA and Hulme J agreeing):


'[24] In Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [30] - [33] Howie J said:

The offence was one well above the mid-range of objective culpability. True it was not one where the respondents cold-bloodedly singled out an innocent passer-by as the subject for their drug-fuelled aggression. If such had been the case, the offence would have been aggravated by that fact. I accept that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity to the respondent Mitchell: Swan [2006] NSWCCA 47. But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.

The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell's prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.

It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in Henry (1999) 46 NSWLR 346.

In Swan a significant matter was the fact that the offender was intellectually disabled. He offended against the victim not only in order to achieve personal retribution for the sexual assaults committed against him but also from a misguided view that he was dissuading the victim from assaulting other intellectually impaired persons, as he believed the victim had been doing. In considering what he did and the reason he did it, his intellectual impairment was a relevant factor. It was for this reason that the Court was able to attenuate the need to deter persons from taking the law into their own hands: see per Spigelman CJ at [60]. There was no such attenuating factor in the present case'.

The Court also cited other recent authorities: Rayment [2010] NSWCCA 85; (2010) 200 A Crim R 48 at [106]; Dole & Nguyen [2010] NSWCCA 101 at [4].


 


Ill-health

In Leighton [2010] NSWCCA 280 the judge erred in not giving weight to the applicant's ill-health as a mitigating factor. Price J (Simpson J and Howie AJ agreeing) summarised the principles:


'[34] Section 16A(2) Crimes Act [CTH] states that "the court must take into account such of the following matters that are relevant and known to the court." Section 16A(2)(m) is included in the matters listed under s 16A(2) and provides as follows:

"...the character, antecedents, age, means and physical or mental condition of the person."

[35] The Judge referred in his sentencing remarks to the various health problems from which the applicant suffers and cited Smith (1987) 27 A Crim R 315 in which King CJ authoritatively considered the relevant principles whereby the health of an offender is properly taken into account on sentence. King CJ said at 317:

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

[36] In Badanjak [2004] NSWCCA 395, Wood CJ at CL (with whom McClellan AJA and Smart AJ agreed) considered at [11] that "it is only in a relatively rare case that the Smith principle is applicable." Where ill health is considered to be relevant to the determination of sentence, the extent of the mitigation is to be balanced against the seriousness of the offence: BJW (2000) 112 A Crim R 1.

[37] It appears from the remarks quoted at [30] above that the Judge considered that the applicant's state of health neither provided a greater burden for him whilst in custody nor was there a serious risk of imprisonment having a gravely adverse effect on his health. His Honour gave no weight to the applicant's ill health as a mitigating factor on sentence.

[38] Notwithstanding any treatment that might be provided by Justice Health there is an abundance of evidence, which demonstrates that the applicant's ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living. ...

[39] In my respectful opinion, some weight should have been given to the applicant's ill health in determining the sentences. This was not a case such as Grenfell [2009] NSWCCA 162 upon which the Crown placed some reliance in oral argument where the contention was that the sentencing judge erred in failing to give "sufficient weight" to the applicant's disabilities. When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest. I would uphold this ground of appeal'.


 

4. Procedural Fairness

Offender did not give informed agreement to 'agreed'statement of facts

In Korgbara [2010] NSWCCA 176 the judge sentenced the applicant on the basis of agreed facts signed by the applicant. However, on appeal, the evidence showed that the applicant did not give his informed agreement to that statement and did not in fact agree with important parts of its contents. He had not been given the opportunity to consider the statement before it was tendered: at [14], [24]. The sentencing process had thus miscarried and the matter was remitted to the District Court for re-sentence.

Error to reject disputed evidence not subject to cross-examination

In O'Neil-Shaw [2010] NSWCCA 42, involving an offence of violence, the applicant stated by affidavit that he suffered years of violence by the victim. The prosecution and defence made an agreement that witnesses were not required for cross-examination and the applicant was not cross-examined. The judge rejected the applicant's evidence.

Allowing the appeal and remitting the matter for rehearing, the Court said the judge erred in rejecting the applicant's evidence. The Court said (at [26]-[27]) that where the evidence was not challenged by the prosecution, and was not implausible, the judge was not entitled to reject it or fail to act on it, or at least was not entitled to do so without giving proper notice to the applicant: Chow v DPP (1992) 28 NSWLR 593; Palu (2002) 134 A Crim R 174. It is a rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, so that the witness may respond and the court can assess the response: SWC [2007] VSCA 201; 175 A Crim R 71 at [12]-[15]. Where there has been no cross-examination of witnesses, 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ [2005] 80 ALJR 329 at [39].

The Court further said at [30]-[31] that s 6(3) Criminal Appeal Act1912 would allow a matter to be remitted to the District Court (pursuant to s 12(2)) where the sentencing process miscarried but the CCA is not able to determine the factual dispute and an appropriate sentence.

Where judge did not sentence in accordance with indicated discount for guilty plea

In Trujillo-Mesa [2010] NSWCCA 201 the Court said procedural fairness was denied where the judge said he accepted the Crown's concession that the applicant's sentence would be discounted by 25 per cent but later gave only a 20 percent discount with no opportunity to be heard further on the issue: at [4]. The Court said that the applicant's legal representative had proceeded on the basis of an indication (even if unstated) that the maximum discount would be allowed after his Honour considered the evidence and the submissions of counsel, and that in those circumstances the applicant had been denied procedural fairness: at [29].

Allowing the appeal, per Fullerton J (Hodgson JA and Price J agreeing):


'[27] When his Honour published his remarks on sentence, two weeks after the sentencing proceedings concluded, somewhat unusually, it was the Crown Prosecutor who raised with his Honour the fact that 20 per cent had been afforded the plea of guilty. The transcript records the following exchange:

" Crown Prosecutor: The only thing I did not hear was whether you - was the discount for the plea. I heard 20 per cent.

His Honour: 20 per cent, yes.

Crown Prosecutor: Your Honour I must say that my understanding, and I stand to be corrected, is that your Honour did indicate on the last occasion you would give a 25 per cent discount. I may have been mistaken about that, but that's my recollection.

His Honour: I indicated that, but giving further thought to all the material between then and now, I think 20 per cent is appropriate."

(emphasis added)


[28] His Honour went on to say:

"I don't think I said that's what I would give. I had to consider all the evidence once again."

[29] On the appeal the Crown submitted that whilst the sentencing judge did not expressly state the reason why he did not apply a discount of 25 per cent, it is reasonable to infer from the exchange with Crown Prosecutor extracted above that any greater discount than 20 per cent would have resulted in a sentence that would have failed to reflect his Honour's assessment of the objective seriousness of the offence. The Crown accepted that his Honour might have provided an explanation to that effect in his reasons for sentence but submitted that the failure to give an explicit explanation at that time does not constitute error given that the matter was made clear in his exchange with counsel after sentence was pronounced. While that is a submission that may have disposed of the appeal adverse to the applicant, I am persuaded that the underlined portion in the same extract supports the applicant's submission that her legal representative did in fact proceed on the basis of an indication (even if unstated) that the maximum discount would be allowed after his Honour considered the evidence and the submissions of counsel, and that in those circumstances she had been denied procedural fairness'.


 

Where judge is contemplating sentencing upon a different factual basis than set out in statement of agreed facts - Judge acted appropriately and did not allow stated suspicions about offender's role to affect sentence

In Yaghi [2010] NSWCCA 2, on the basis of the agreed statement of facts, the judge stated he would find special circumstances and the non parole period would be half of the total term. Later, in an exchange with counsel, the judge said although he considered the applicant's role was actually greater than outlined in the facts, his suspicions would not affect the sentence. However, following the lunch adjournment, the judge said that he had reconsidered and he would not be reducing the non-parole period to 50% of the total sentence. The applicant submitted the judge had allowed his suspicions to affect his assessment and this amounted to taking into account matters not part of the agreed facts.

The Court rejected this submission. There was no connection between the raising by the judge of his suspicions about the applicant's role and his decision concerning the non-parole period. The judge only indicated a tentative view then after reconsideration and as a matter of procedural fairness did inform counsel that he had modified his view: at [49].

Dismissing the appeal, per R A Hulme J (Grove and Simpson JJ agreeing):


'[50] The written submissions on behalf of the applicant include reference to FV [2006] NSWCCA 237 and Uzabeaga [2000] NSWCCA 381; 119 A Crim R 452 which are concerned with the need for a sentencing judge to accord procedural fairness when the judge is contemplating sentencing upon a different factual basis than is set out in a statement of agreed facts. The cases are authority for the proposition that a sentencing judge will err if he or she fails to give notice that he or she is minded to sentence upon a basis which differs from that contained in a statement of agreed facts and fails to provide an opportunity for the parties to address on that issue. These cases do not support the applicant's contention.

[51] There are other authorities concerning the same or analogous situations that are on point. They include House [2005] NSWCCA 88 per Wood CJ at CL at [23]; Fairbairn [2006] NSWCCA 337; 165 A Crim R 434 per Basten JA at [2] and Bell J at [37]; and JRB [2006] NSWCCA 371 per James J at [42].

[52] Most pertinently, in Howard [2004] NSWCCA 348 Spigelman CJ said:


[47] ... a trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material.

[53] This is precisely what his Honour .... did in the present case. He indicated a view on a particular topic but, after he had considered the matter further and was contemplating taking a different approach, he informed counsel for the applicant so as to permit an opportunity for him to make further submissions on the topic'.


 

5. Setting Terms of Imprisonment: Special Circumstances and the Statutory Ratio

Section 44 of the Crimes (Sentencing Procedure) Act states:


'44 Court to set non-parole period

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(3) The failure of a court to comply with subsection (2) does not invalidate the sentence'.


 

Risk of institutionalisation as special circumstances - error in not giving full effect to finding of special circumstances

In Jackson [2010] NSWCCA 162 the Court said that a risk of institutionalisation can form the basis for a finding of special circumstances. The Court was referred to various authorities.

Per Fullerton JJ (McClellan CJ at CL and Simpson J agreeing):


'[24] Authority for the proposition that a risk of institutionalisation is a basis for a finding of special circumstances emerges from a number of judgments of this Court. This much is clear from the list of authorities Ms Francis of counsel provided after the Court reserved its decision ( Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66]-[67]; Hooper [2004] NSWCCA 10 at [62]-[63]; Dorsett [2002] NSWCCA 326 at [10]-[11]; Gordon [2004] NSWCCA 45 at [63]; Taufua [2001] NSWCCA 411 at [30] and [36]; Watts [2007] NSWCCA 153 at [6]; Nykolyn [1999] NSWCCA 39)'.


The Court said that the error in this case is not that the judge failed to make sufficiently clear the basis upon which he found special circumstances as mandated by s 44(2), but that the judge failed to give full effect to his finding of special circumstance after accumulation of individual sentences: at [22]-[24], [30]. The Court allowed the appeal.

Where NPP longer than statutory ratio stipulated in s 44 Crimes (Sentencing Procedure) Act - Where sentencing judge silent as to question of special circumstances.

In Briggs [2010] NSWCCA 250 the applicant received a sentence comprised of a non-parole period of 8 years with a balance of term of 1 year and 9 months for a supply drug offence. The ratio of non-parole period to total term was 82 per cent, an increase on the 75 per cent ratio provided for under s 44 of the Crimes (Sentencing Procedure) Act: at [5]. The judge's remarks were silent as to special circumstances.

The Court found the judge did not err in failing to consider and find special circumstances. However, the judge's silence as to his reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent indicated that he may have overlooked giving appropriate focus to the statutory ratio in s 44 Crimes (Sentencing Procedure) Act. Allowing the appeal and imposing a new sentence, Fullerton J (Hodgson JA; Price J agreeing) said:


'[28] It was appropriate for the Crown to emphasise that a sentencing judge is under no obligation to give reasons for not finding special circumstances, and that the question of whether or not a fact (or a combination of facts) is sufficiently special to justify a lower proportionate relationship between the non-parole period and the total sentence is a matter for discretionary judgment in the particular case. It was also appropriate for the Crown to emphasise that this Court should be slow to intervene where it is submitted that special circumstances should have been found in the court below unless it is satisfied that the non-parole period imposed by the sentencing judge is manifestly excessive (see Fidow).

[29] That said, in the present case his Honour made no reference at all to whether the statutory ratio should be varied, with or without reference to special circumstances, before varying it so as to increase the statutory ratio, and that this occurred despite the fact that argument was directed to the question of special circumstances in the sentence hearing. For that reason I am of the view that the question whether there was error in failing to find special circumstances is a legitimate inquiry in this case (see Pevy [2004] NSWCCA 414 per Santow JA at [21]). I am also satisfied that it is appropriate to inquire into whether the sentencing judge's failure to apply the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act was due to oversight - the alternate basis upon which the applicant seeks the intervention of this Court. As Grove J observed in Wakefield [2010] NSWCCA 12 at [26]:


'...It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in Lyndon [2003] NSWCCA 152; Ibraham [2005] NSWCCA 43'.

...

[33] It is not to the point that some lesser non-parole period may have been imposed. What the applicant must establish if this Court is to intervene is that his Honour erred in not finding special circumstances and that, in the result, a non-parole period of 8 years is excessive. I am not persuaded that is the case. I do not consider that his Honour was obliged to find special circumstances or that his discretion in fixing the non-parole period at 8 years miscarried for that reason.

[34] However, and despite the clarity of his Honour's sentencing remarks and his express finding that the non-parole period should be 8 years, his silence as to the reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent leaves me with a sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. In the result, I am persuaded that error is demonstrated in this limited respect and that an adjustment to the non-parole period should be permitted'.


 

Accumulated sentences and special circumstances

In Flynn [2010] NSWCCA 171 the judge found special circumstances when sentencing for a number of offences. However, because the individual sentences were partially accumulated, the non-parole period ended up being more than 75% of the total sentence. The Court found the judge had overlooked the statutory ratio due to the accumulation of sentence and allowed the appeal: at [44].

See also Smaragdis [2010] NSWCCA 276.

Focus is on the total term of sentence

In Dolman [2010] NSWCCA 137, where no special circumstances were found, the judge was informed that his proposed sentence did not accord with the 'statutory ratio'in s44 of the Crimes (Sentencing Procedure) Act (i.e. the non parole period being 75% of the total sentence). The judge responded by increasing the total term and left the statutory ratio as he proposed. On appeal, the Crown conceded that the judge had erred in the manner in which he had arrived at sentence. Allowing the appeal, the Court said that s44(1) of the Crimes (Sentencing Procedure) Act is 'concerned with the manner in which a sentence is pronounced, not how it is arrived at'and the focus is still on the total term of the sentence: at [15], [17].

Per Hidden J (McClellan CJ at CL and Johnson J agreeing):


'[13] Towards the end of his remarks, his Honour expressed the sentence he intended to pass for the ongoing supply as a total term of imprisonment for 3 years with a non-parole period of 2 years and 6 months. He then asked the Crown's representative whether the 'statutory ratio'was 'right'in relation to that sentence. The prosecutor said that it did not appear to be. His Honour then confirmed the non-parole period of 2 years and 6 months, but vacated the total term of 3 years and substituted the term of 3 years and 4 months.

[14] Clearly, by 'statutory ratio'his Honour meant a non-parole period amounting to 75% of the sentence. That result was achieved by increasing the sentence from 3 years to 3 years and 4 months. By that approach his Honour fell into error, as the Crown prosecutor in this court properly conceded.

[15] It is apparent that his Honour determined the non-parole period first and then sought to arrive at the head sentence by the application of the statutory ratio. Section 44(1) of the Crimes (Sentencing Procedure) Act provides that a court, when sentencing an offender to imprisonment, 'is first required to set a non-parole period for the sentence ...'However, that provision is concerned with the manner in which a sentence is pronounced, not how it is arrived at.

[16] This question was considered by Simpson J, with whom Dunford J and I agreed, in Tobar [2004] NSWCCA 391; 150 A Crim R 104 at [31]-[39]. As her Honour put it at [38], the section requires the non-parole period 'first to be specified, or pronounced', but not to be 'the first determined.'The reasoning in Tobar was applied in two subsequent cases, dealt with on the same day: Suaalii [2005] NSWCCA 206 at [23]-[26], and Mauai [2005] NSWCCA 207 at [24]-[27].

[17] The error identified in those three cases was somewhat different from that in the present case. In each of those cases the sentencing judge had reflected a finding of special circumstances by increasing the balance of term of the sentence rather than reducing the non-parole period. Nevertheless, the principle which guided those decisions, affirming the primacy of the head sentence in any sentencing exercise, is applicable to the present case. As Simpson J expressed it in Tobar at [37], 'the focus should still be upon the total of the sentence imposed ...'The principle was restated in Suaalii by Hislop J, with whom James and Hall JJ agreed, at [25].

[18] I am satisfied that in this respect the sentencing process in the present case miscarried, and that this court should intervene'.


 

6. Parity

Where offenders are charged with different offences arising out of common criminal enterprise

In Li [2010] NSWCCA 125 a 5 judge bench said that there has been reluctance by the courts to apply the parity principle where cooffenders are charged with different offences: at [52]. The applicant was charged with a money laundering offence. Another man, V, was charged with a lesser offence arising out of the same enterprise and received a lesser sentence. The appellant appealed on the ground of disparity. The Court referred to Kerr [2003] NSWCCA 234. where the appellant successfully argued disparity with offenders charged with different offences. The Court noted that Kerr has been limited by subsequent authorities. Dismissing the appeal, Barr AJ (Allsop P; Basten JA; McClellan CJ at CL; Simpson J agreeing) said:


'[52] The courts have been reluctant to apply the principle of parity where co-offenders are charged with different offences. A series of cases illustrates this reluctance: see Wurramarbra (1979) 1 A Crim R 291; Gibson (1991) 56 A Crim R 1, a decision of this court; Glen Robertson Watson, 25 February 1992, a decision of this court constituted by Gleeson CJ, Sheller JA and Loveday J in which Wurramarbra was cited with approval; Howard & Others (1992) 29 NSWLR 242, a decision of this court; and Krakouer [1999] WASCA 147.

[53] Kerr, one of the cases cited by senior counsel for the respondent, was decided by this court in 2003. The appellant was convicted of robbery in circumstances of aggravation, namely using corporal violence and inflicting actual bodily harm. There were two co-offenders. One was charged with simple robbery and the other with concealing a serious indictable offence. The sentences imposed on the co-offenders were substantially less than the appellant's. Although reference was made to Lowe and Postlglione, none of the authorities was referred to which have considered the difficulties which arise where co-offenders are charged with different offences. The court intervened and reduced the appellant's sentence.

[54] In Formosa [2005] NSWCCA 363 Simpson J, with whom McClellan CJ at CL and Hoeben J agreed, said this at [39]-[40]

In both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences with that of the appellant. Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties.

The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.

[55] In Pham [2009] NSWCCA 25 Latham J, with whom Giles JA and Mathews AJ agreed, dealt with the principles of parity at [28]-[35]. Her Honour concluded at [36]-[37] as follows
[36] In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified?

[37] If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court.

[56] Finally, in Woodgate [2009] NSWCCA 137 Grove J, with whom Buddin and R A Hulme JJ agreed, having considered Postiglione and other authorities, considered and doubted Kerr. His Honour concluded thus at [45]
In support of argument that parity was germane where offenders face different charges, the applicant relied on Kerr [2003] NSWCCA 234. To the extent that the decision in that case has been said to have possible applicability, it must be a very limited class of case.
[57] I doubt whether Kerr can have any application to the present case. Viana was charged only with being reckless, so the maximum penalty he faced was half as long as that faced by the respondent. He was a young man, apparently acting at the behest of his father who had some authority over him.

[58] I do not think that the respondent has any justifiable sense of grievance by reference to Viana's sentence'.


 

In the earlier case of Jimmy [2010] NSWCCA 60 co-offenders involved in the same criminal enterprise were charged with different offences. The Court (Campbell JA, Howie J and Rothman J in separate judgements generally agreeing) said that the parity principle does have a role to play for sentences imposed for different crimes committed by offenders involved in a common criminal enterprise: at [136] per Campbell JA; [244] per Howie J. Campbell JA set out 'some limits'to the application of the parity principle in this context (Howie J expressly agreed at [246]; Rothman J agreed at [252], [270] subject to additional comments [253]-[270]):


'[203] There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa

2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa

3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar

4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [127]-[134]. However Nguyen stands as one example where that result arose. '

In relation to point 1, above, (that the parity principle cannot overcome sentence differences which arise from the prosecutorial discretion to lay different charges against co-offenders) the Court took the view that Kerr [2003] NSWCCA 23 should no longer be followed on this point: per Campbell JA at [117], [130]; per Howie J at [247]; per Rothman J at [267].

Court of Criminal Appeal may create disparity between co-offenders

In Green and Quinn [2010] NSWCCA 313 a five judge bench considered how to approach a Crown appeal when it is submitted that to intervene would create disparity with another offender who received an apparently excessively lenient sentence. The Crown appealed against the sentences imposed upon coffenders Green and Quinn, but not upon a third coffender KT. The sentence imposed upon KT was 'obviously manifestly inadequate': at [142]. The respondents raised the issue of parity with KT and because there existed conflicting authority a bench of five judges was constituted to hear the appeal: at [62].

Allowing the appeal, the Court (RS Hulme J; McClellan CJ at CL; Latham J agreeing with both; Allsop P and McCallum J dissenting) said that on a Crown appeal the Court can raise the sentence of a respondent while the sentence of a co-ooffender remains unchanged even though a justified sense of grievance may result. The Court declined to follow McIvor [2002] NSWCCA 490: at [32].

RS Hulme J delivered the principal judgment and concluded as follows:


'[133] Sentencing is already sufficiently complicated to discourage the introduction of more absolute or almost absolute rules. In these circumstances and in light of the other factors to which I have earlier referred, the Court should adopt the approach that in a Crown appeal upon the ground of manifest inadequacy of a sentence, any disparity with the sentence imposed on a co-offender that would be created by the allowing of that appeal, and any conduct or inaction on the part of the Crown, particularly if unexplained or unjustified - c.f. JW [2010] NSWCCA 49 at [95] - that has allowed that situation to arise should be factors to be taken into account on the issue of whether the appeal should be allowed and, if it is, on the extent of the sentence to imposed, but the fact of such disparity or conduct (or inaction) on the part of the Crown should not otherwise be a bar to the success of the appeal. Such a test is consistent with the general nature of the discretion that the Court has on a Crown appeal and is best calculated to enable appropriate weight to be given to all relevant factors'.


McClellan CJ at CL agreed and made the following comment


'[32] The relevant principles may be shortly stated. Although a court should endeavour to achieve parity and avoid a sense of grievance in a co-offender this may not always be a just result. When sentencing at first instance a sentencing judge should seek parity between the sentences of co-offenders but may do otherwise if the other sentence is erroneously lenient. The offender being sentenced may have a grievance but it will not be justified. When the Crown appeals one sentence and not the other issues of parity must be considered and, in the exercise of the discretion available to the court, may lead to the appeal being dismissed. But when the court considers it appropriate to increase a sentence it may do so notwithstanding that a sense of grievance may result. Only if the sentence would result in a justified sense of grievance, being one defined by comparison with the sentence imposed on a co-offender who has been appropriately sentenced, could issues of parity cause the court to reject the Crown appeal: ( Lowe (1984) 154 CLR 606).

[33] It follows that I am of the opinion that the decision in McIvor [2002] NSWCCA 490 should not be followed. It must be remembered that the community has an interest in the sentencing of offenders and is entitled to expect that a just sentence will be imposed on all offenders. Where one offender has received a sentence which is so inadequate as to be erroneous the community is entitled to expect that the sentence of a co-offender when reconsidered by this Court will not be fixed by using the sentence imposed by error as the appropriate comparator'.


Allsop P and McCallum J dissented and made the following comment:


'[8] One aspect of the difference that can be seen as implicit in the reasons of Heydon JA and Howie J is that in a Crown appeal the Court itself is being asked to be the instrument for the creation of the appearance of unequal justice. That is a factor that does not attend the Court's consideration in an offender's appeal against severity. The distinction is not entirely logical or syllogistically harmonious, but it pays due regard to the nature of the Crown appeal, as being an application by an arm of the State that has the wider public purposes identified by Howie J in Borkowski at [70]. It also pays due regard to the importance of the Court not being seen to create an appearance of injustice by the exercise of judicial power, at least, for instance, in the absence of circumstances such that were the Court to allow the other offender's low sentence to govern its order in the Crown appeal there would be an affront to the administration of justice.

[9] Thus, in a Crown appeal, it may not be inappropriate for the Court to decline, in the exercise of its discretion, to increase a sentence to a point where the relevant disparity would be so marked as to invoke the operation of the parity principle, unless the circumstances were clearly such as to outweigh the competing, and important, consideration of the Court itself creating the appearance of unequal justice by its own order. As a general rule the product of the rule of law should not be a justifiable sense of grievance or injustice.

[10] The judgment of Hulme J discusses a number of decisions that may be understood to support a different approach. None of those decisions addresses the essential consideration we have outlined. In our view, the principles stated by Heydon JA in McIvor and by Howie J in Borkowski are correct and should be followed.

[11] That approach does not amount to responding to one wrong decision by making another wrong decision. Nor is it a question of condoning an inappropriately lenient sentence imposed on a co-offender as an appropriate comparator. It is, rather, a matter of the Court's acknowledging error in the sentence appealed from (and so serving the broader public purpose of a Crown appeal), but exercising its residual discretion, in an appropriate case and where it would not be an affront to justice to do so, not to intervene in the individual sentence so as to constitute the Court the instrument of unequal justice'.


It is understood special leave will be sought to appeal to the High Court on this matter.

Where co-offender sentenced in Childrens Court

In Ruttley [2010] NSWCCA 118 the Court said that it will be a rare case where the parity principle will apply where the offender is dealt with as an adult and the co-offender is sentenced in the Children's Court albeit for a more serious offence.

Per Simpson J (McClellan CJ at CL and Fullerton J agreeing):


'[54] [The cooffender] KR was charged with a more serious offence, carrying a heavier penalty; he was nevertheless dealt with more leniently. That would, in my opinion, ordinarily give rise to the application of parity principles.

[55] However, there is a significant distinguishing feature: that is, the jurisdictions in which the two offenders were sentenced. The Children's Court operates under its own sentencing regime: see Children (Criminal Proceedings) Act 1987. Principles applicable to dealing with children who have been found to have committed crime are spelled out in s 6. One important principle is the desirability of 'reintegrating'a child who has committed crime into the community.

[56] It will, accordingly, be a rare case in which an adult offender, sentenced in an adult court, can invoke the parity principle where the co-offender is a child, and is dealt with in the Children's Court.

[57] This is not such a case. It is true that, in circumstances such as this, where the age difference between the two offenders is relatively small, that one comes within the more benign Children's Court regime, and the other is subjected to the rigours of the adult penal system, may at times appear to be arbitrary. But that is the consequence of the need for the legislature to identify an age of adulthood, at which an offender is expected to take responsibility for his or her actions'.


 

Parity with respect to special circumstances and non-parole period

In Lau [2010] NSW CCA 43 the applicant was convicted of a more serious drug offence than his co-offender and received a heavier sentence. The Court rejected a submission that the applicant's total sentence be reduced on the ground of disparity. However, there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance: at [15]. This was such a case as the personal circumstances of the applicant and his co-offender were relevantly indistinguishable. The Court reduced the applicant's non-parole period.

Per McClellan CJ at CL (James and Davies JJ agreeing):


'[14] Although I am not persuaded that this Court should intervene in relation to the overall sentence, I am satisfied that having regard to the finding of special circumstances which this Court made in relation to Song Lin, if that finding is not also made in relation to the applicant he would have a justifiable sense of grievance. In Taiana [2006] NSWCCA 398 this Court considered the principles with respect to non-parole periods and issues of parity. Howie J referred to his judgment in Do [2005] NSWCCA 209 where his Honour repeated his remarks in Wahabzadah [2001] NSWCCA 253 in which he said that he did not believe 'that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances'[15].

[15] Because a finding of special circumstances reflects the personal characteristics of an offender, which will commonly differ between co-offenders, disparity is unlikely to be found in relation to a finding of special circumstances in relation to one co-offender and not another. However, Howie J accepted, as I do that there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance.

[16] In my view the personal circumstances of the applicant and of Song Lin are relevantly indistinguishable. The applicant came to Australia only a few weeks before he was arrested for the offence. Like Song Lin his family are in China and he will not have the benefit of their visits to support him. Although Song Lin could point to the fact that he was imprisoned for the first time, which is not true of the applicant, who has served a prison sentence in Hong Kong, nevertheless his personal circumstances are such that his sentence will be served harder than for the average prisoner. He has little English and his difficulty in communicating will also impact upon the harshness of his period of incarceration'.


 

7. Findings on Sentence

Sentencing in accordance with agreed facts where offender gives contradicting evidence

In Zamitt [2010] NSWCCA 29 the judge was entitled to reject the applicant's evidence where the applicant gave sworn evidence inconsistent with the agreed statement of facts tendered by the Crown. The Court cited from Falls [2004] NSWCCA 33 per Howie J:


"[37] If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts."


Here the judge pointed out the factual issues during the applicant's testimony and during addresses. It was open to the judge not to accept the applicant's evidence, not simply because it was in contradiction to the agreed statement of facts: at [27].

Consequences not foreseen by the offender cannot be taken into account

In Josefski [2010] NSWCCA 41 the Court held that a sentencing court must have regard only to those consequences that were intended or could reasonably have been foreseen by the offender: Wickham [2004] NSWCCA 19.

The applicant was charged with break, enter and steal. The applicant submitted that the judge erred in finding as an aggravating factor that the emotional harm caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act1999. The applicant argued that he could not have reasonably foreseen the harm occasioned to the victim on the basis that s 21A(2)(g) was limited by the common law rule that a court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: per Howie J at [25] in Wickham [2004] NSWCCA 19.

Because the Court found that the emotional harm suffered by the victim and the presence of a child in the house were reasonably foreseeable in this case, it was not necessary to decide the issue. However, the principle stated by Howie J in Wickham still represents the law: at [4], [39]. The Court dismissed the appeal.

Per James J:


'[2] As regards the sentence for the offence of breaking entering and stealing, I consider, as does Howie J, that both the emotional harm suffered by Ms Wickham and the presence of her child in the premises were reasonably foreseeable by the applicant. The suffering of emotional harm by a victim of the offence of breaking entering and stealing is not, of course, an element of the offence.

[3] Accordingly, as Howie J says in his judgment, it is unnecessary for the determination of this application to decide the correctness of his Honour's statement in para 25 of his judgment in Wickham [2004] NSWCCA 193, that there is a common law rule that the only consequences of an offence to which a sentencing court can have regard are consequences that were intended or could reasonably have been foreseen by the offender. His Honour's statement was accepted, without discussion, by Kirby J, with whose judgment the other members of the court agreed, in Clarke [2009] NSWCCA 13 at [14] (subject to a qualification which, for present purposes, is irrelevant.

[4] I agree with Howie J's guarded conclusion that it seems that the statement made by his Honour in Wickham should still be taken as representing the common law, particularly having regard to the decision of the Supreme Court of South Australia Court of Criminal Appeal in Agius [2000] 115 A Crim R 387 especially at 405 per Gray J; the decision of the Supreme Court of Victoria — Court of Appeal in Director of Public Prosecution v Arvanitidis [2008] VSCA 189 at [52] per Redlich JA; and the decision of the Supreme Court of Tasmania — Appellate in Lambie v Tasmania [2007] TASSC 10 at [25]-[29] per Underwood CJ'.


Per Howie J:


'[38] In my opinion neither the existence of ss 3A(g) or 21A(2)(g) leads to a conclusion that the common law of this State has been altered by the introduction of those provisions. Neither was intended to alter the law that existed prior to their introduction. Section 3A generally has been regarded as a codification of the common law principles of sentencing: see MA [2004] NSWCCA 92; 145 A Crim R 434 at [23]. It has been held that the purposes of punishment stated in the section are constrained by other sentencing principles that exist under the common law such as the principles of proportionality and totality: MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11]. Wickham is itself authority for the proposition that nothing in s 21A was intended to alter the common law principles of sentencing and see Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57].

[39] It seems, therefore, that the statement made in Wickham and quoted above does still represent the common law of this State. It is unnecessary to ultimately decide the issue but, in the absence of any clear legislative statement to the contrary, it seems that this court should as a matter of comity apply the common law as pronounced in South Australia and Victoria'.


 

8. Children and Youth

Error to reduce sentence so that juvenile may serve entire sentence in juvenile facility

In TG [2010] NSWCCA 28 it was submitted the judge ought to have structured a sentence to allow the applicant to remain in a juvenile facility to aid rehabilitation and so avoid being sent to an adult prison. Dismissing the appeal, Howie J said at [25] that the proper approach is to determine the appropriate sentence and then consider what are the option for how that sentence is to be served: Zamagias [2002] NSWCCA 17. In a case involving a juvenile offender being sentenced at law, the same principle applies. The judge is to determine the sentence and then consider whether it is necessary and appropriate to make an order under s 19 of the Children (Criminal Proceedings) Act. It would be an error to reduce a sentence just to avoid a juvenile spending a period of custody in an adult gaol.

Emotional immaturity and impulsive behaviour as a mitigating factor - emotional maturity and impulse control may not be fully developed until the early to mid twenties

In BP [2010] NSWCCA 159 the applicant was convicted of sexual intercourse without consent. He was just under 17 years old at the time of the offence and had a criminal history of two offences of aggravated sexual assault. Allowing the applicant's appeal, Hodgson J made the following comments about the relevance of youth on sentence: (Rothman J agreeing; Johnson J dissenting in the principal judgment).


'[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22]-[26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM [2008] NSWCCA 158 at [33]-[36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

[6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.

[7] I do not suggest that, in all the circumstances of this case, the youth of the offender should be given such weight as to make a large difference in the ultimate outcome; but I would give it some weight, and on that basis favour a substituted sentence a little shorter than that proposed by Johnson J'.


 

9. Aboriginality and Offenders at Social Disadvantage

In Kennedy [2010] NSW CCA 260 at [50]-[53] the judge remarked at sentence 'there is little evidence here to show that the prisoner was raised in a community the toxic features of which prevented the development of a proper attitude to law abiding behaviour'and thus the Fernando (1992) 76 A Crim R 58 principles did not apply: at [54]. Simpson J (Fullerton and RA Hulme JJ agreeing) said the judge had erred. The applicant was the eldest of eight children of an Aboriginal family with an early history of social deprivation and instability. He had been removed from his mother's care at seven and had no relationship with his father. He had little education and succumbed to drug and alcohol at an early age.

Simpson J also said the Crown's argument on appeal that Fernando did not apply because the applicant 'does not come from a remote part of the community'was incorrect. Simpson J said it is no answer to say that he did not come from "a remote part of the community" - social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote areas or communities: [54]-[55].

Simpson J further pointed out that the Fernando principles apply not just to Aboriginal offenders but generally to offenders suffering social disadvantage, particularly where there is alcohol dependence and addiction:


'[50] In Fernando, Wood J set out a series of sentencing propositions that have too often been taken to have been designed specifically for Aboriginal offenders. So to approach that decision is to misunderstand Wood J's intention.

[51] Indeed, Wood J stated this expressly. Proposition (A) and (B) read:


'(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender'.


[52] That the Fernando propositions were intended to apply generally was stated in Hickey (NSW CCA 27.9.) and re-stated by Wood J in Morgan [2003] NSWCCA 230; 57 NSWLR 533 at [20] and [21].

[53] Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. Particularly relevant, in the circumstances of that case (and this) is the impact of alcohol addiction or dependence. In the proposition lettered (E), Wood J said:

'(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects'.

It is this proposition that senior counsel for the applicant argued was here applicable, but was rejected by the sentencing judge'.


 

10. Mental Illness

In Watts [2010] NSW CCA 315 the applicant was sentenced for malicious damage property by fire. Uncontested psychiatric evidence showed that the applicant suffered from a personality disorder, polysubstance dependence and post-traumatic stress disorder.

Allowing the appeal, the Court found the judge failed to take into account the psychiatric evidence in an appropriate manner: at [27]. The judge erred in applying the principles in Hemsley [2004] NSWCCA 228 by relying on Hemsley as a type of parity argument comparing the position of Ms Hemsley with the applicant: [22]. The judge failed to give due weight to the uncontested psychiatric evidence, as it was not shown that the psychiatric opinions were based on false reporting by the applicant: [25]. The judge erred in seeing the applicant's psychological condition as relevant only to the mitigating factor under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999: that "the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability". [24]. The relevance of an offender's mental disorder transcends a matter of mitigation under this provision: [27].

Per McClellan CJ at CL and Howie J jointly, Schmidt J agreeing:


'[20] Her Honour was referred during submissions to the decision of this Court in Hemsley [2004] NSWCCA 228. That case is authority for the impact of the mental disorder of an offender on the sentencing of that offender. In particular it is not unusual for reference to be made to the following part of the judgment of Sperling J:

"[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]."


[21] As might be expected counsel for the applicant before the sentencing judge relied upon the first three factors set out in that part of the judgment.

[22] With respect, her Honour seems to have misunderstood the submission being made. She treated reliance on that decision as a type of parity argument comparing the position of Ms Hemsley with that of the applicant, rather than as being a case relied upon simply as revealing a matter of sentencing principle. As a result her Honour rejected that decision as having any relevance because "the cases cannot be compared". She came to that conclusion taking into account factors such as that Ms Hemsley had not served a period in custody before being sentenced, that she had a "different personality disorder" to the applicant and that she had used her period in custody "most productively". None of those matters was relevant to an application of the matters set out in the quote above.

[23] TEST The most recent statement of the significance of an offender's mental disorder is to be found in DPP (Cth) v De La Rosa NSWCCA 194 where McClellan CJ at CL stated:


[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, Engert (1995) 84 A Crim R 67; Tsiarias [1996] 1 VR 398 at 400; Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 at [43]-[51]; Harb [2001] NSWCCA 249 at [35]-[45]; Israil [2002] NSWCCA 255; Hemsley [2004] NSWCCA 228 at [33]-[36]; Verdins [2007] VSCA 102 at [32]; Courtney [2007] NSWCCA 195 at [14]-[18]; and Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:
Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: Henry at [254]; Miller [1999] WASCA 66 at [23]; Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; Pearson [2004] NSWCCA 129 at [43]; Henry at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: Skura [2004] VSCA 53; Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]."

[24] None of these considerations was addressed by her Honour. This was chiefly because her Honour saw the applicant's mental disorders, whatever they be, as relevant only to the existence or otherwise of the mitigating factor under s 21A(3)(j) of the Crime (Sentencing Procedure) Act 1999: that "the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability". Clearly this factor did not apply, but the relevance of an offender's mental disorder transcends a matter of mitigation under this provision.

[25] But with respect the passage from the sentencing remarks quoted above, fails, in our opinion, to give due weight to the uncontested psychiatric opinions in evidence before her Honour. True it is that the applicant was not diagnosed with a mental illness or a psychiatric disorder as her Honour recognised, but that was only so far as those terms are relevant to the provisions of the Mental Health Act. We do not believe that either Professor Greenburg or Dr Ellis would agree that the applicant was not suffering from at least one mental disorder. Although the applicant may have been endeavouring to manipulate the psychiatrists, he failed in that attempt. There is no suggestion that the opinions of either psychiatrist were reached as a result of any false reporting made by the applicant. Nor do we understand her Honour's finding that the applicant's condition "appears to be capable of treatment or improvement". This is inconsistent with the reports of both psychiatrists.

[26] Further, contrary to her Honour's statement that there was no support for a contention that the applicant psychiatric state was relevant to the causation of the offence, we have set out above a passage from the report of Dr Ellis in which he gives the opinion that the applicant's mental condition may have resulted in his having less capacity than a normal person to reflect on his decisions. There is, in our opinion, some evidence of that in the applicant's apparent reasoning that he would be in a better position with the Department if he burned down the house in which he was living.

[27] In our opinion her Honour failed to take into account in an appropriate manner the psychiatric evidence. Minds might differ as to the severity of the applicant's mental disorders, but it seems to us they were relevant both to an assessment of the applicant's culpability for his actions and the degree to which the sentence should reflect general deterrence. This ground of appeal is made out. '


 

11. Sentencing and Statistics

In McIvor [2010] NSWCCA 7 the Court said that applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed, even though that range was low, rather than by the range the Court thinks appropriate: at [17].

The applicant was sentenced for two armed robberies and one offence of assault with intent to rob in company. He was sentenced to a total term of 15 years imprisonment with a non-parole period of 9 years 6 months. The applicant submitted that although the individual sentences were appropriate, the effective accumulation resulted in a total sentence that was manifestly excessive.

The Court said the total sentence was outside the pattern of sentences for multiple armed robbery. Although the range of sentences imposed for multiple armed robbery offences is too low, the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed. The appeal was allowed and new sentence of 10 years with a non-parole period of 7 years and 3 months imposed.

Per Howie J (Tobias JA agreeing):


'[17]. In support of the third ground of appeal the applicant has called in aid sentencing statistics and they reveal, as is often the case, that the sentences actually imposed do not appear to reflect the statutory maximum penalty of 20 years. The sentencing statistics are frequently being used to displace the maximum penalty so that the sentencing court and this Court are being asked to have regard to the highest sentence that has been imposed in order to determine the appropriate sentence to be imposed in the instant case. The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low. But the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate.

[18] ... Some of the sentences on their face seem to me to be manifestly inadequate in light of the large number of offences for which sentence was being imposed or that were being taken into account. ..'.


This approach received support in Moore [2010] NSW CCA 188 at [48] per Davies J, McClellan CJ at CL and Hall J agreeing.

However, the Court in Hampton [2010] NSWCCA 278 said that to adopt this view as a general proposition would be to emasculate the role of the Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. RS Hulme J (Beazley JA and Latham J agreeing) observed:


[61] Before I leave my reference to the statistics and prior cases, I think it desirable to refer to some further remarks of Howie J in McIvor at [17-18] and with which Tobias JA agreed, ...

[62] I respectfully agree with his Honour that, 'The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low.'However, I do not agree with his further statement that, 'But the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate'.

[63] Such an approach is adopted when a court has to sentence for an offence decades or so old and sentencing standards have changed in the interim. However to adopt it as a general proposition would be to emasculate the role of this Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. Among the most obvious examples of this are the decisions of this Court in Henry and Jurisic (1998) 45 NSWLR 209 and although both of those cases were decided by 5 judge benches, such a Court has no more power than does the Court when constituted by 3 judges. Furthermore, it is difficult to reconcile Howie J's remarks with the observations of 5 members of the High Court in Poyner (1986) 60 ALJR 616:-


Mr James referred us to the remarks of Bray CJ in Barber (1976) 14 SASR 388 at 389-390 where it was said that if the prevailing standard of sentences for a particular offence is too low, 'it can be raised after due warning, but by steps and not by leaps'. Similarly, in Breed v Pryce (1985) 36 NTR 23, Nader J at 33, said that if the view is taken that past penalties have been too light, the position should be corrected by an upward trend in penalties rather than by an abrupt increase. These statements provide useful guidance which should always be kept in mind, but they do not state a binding principle'.

12. Pre-sentence Custody

Preferable course is to backdate sentence

In Wiggins [2010] NSWCCA 30 the judge said he had 'taken into account'a 4 month period of custody which the applicant had served prior to sentence. The Court said this was an error and that, as the Court has repeatedly stated, the preferable course is to backdate the sentence imposed by a period equivalent to the pre-sentence custody: at [3]-[7]. In this case, it was unclear how the judge had arrived at the sentence by taking the 4 months into account and the Court should not have to speculate: at [11]. However, the appeal was dismissed as no lesser sentence was warranted.

Per Howie J (McClellan CJ at CL and Harrison J agreeing):


'[3] This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. [His Honour then cited from English [2000] NSWCCA 245; per Giles JA at [22]; Howard [2001] NSWCCA 309; per Wood CJ at CL at [25]; Phillips [2002] NSWCCA 167;, per James J at [58]-[60]; Newman and Simpson (2004) 145 A Crim R 361; [2004] NSWCCA 102; per himself at [23]-[27]; and Abdul-Kader (2007) 178 A Crim R 281; [2007] NSWCCA 329;, per Kirby J at [7]-[8].]

...

[7] Despite the repeated endorsement of this court for the preferable course of backdating a sentence to reflect the period of pre-sentence custody, this is yet another case where the sentencing judge has not taken that course and yet given no reasons for not having done so. The result is an application for leave to appeal that could have been avoided by the simple expedient of commencing the sentences imposed upon the applicant six months earlier than the date of sentencing.

[8] I cannot understand why the preferred course is not universally adopted. It has everything in its favour as was made clear in the decision in McHugh (1985) 1 NSWLR 588 almost 25 years ago: it is simple, transparent and does not result in an apparently lesser sentence being imposed than was actually served by the offender. There is nothing that can be said in support of the alternative method. In my view it should cease unless there is a good reason, which the judge clearly specifies, for not adopting that approach. One reason was referred to in White [2009] NSWCCA 118 in the following passage:

[12] There are a number of situations in which it would, or might, be inappropriate to adopt the preferable backdating approach. There is the example referred to in Deeble (CCA, 19.9.1991, unreported), above, of a sentencer preferring to discount rather than backdate a sentence to three years or less so as to make the offender's release on parole on the expiration of the non-parole period an entitlement rather than an eligibility: see, similarly, Leete [2001] NSWCCA 337; (2001) 125 A Crim R 37 at [29]. Alternatives to imprisonment and alternatives to full-time imprisonment are inapt for backdating and there is a statutory bar in the case of periodic detention (s 70).

...

[15] In Starmer [2008] NSWCCA 27 Grove J stated:


[12] However, it is not obligatory for a sentencing judge to adopt the practice and it does not, viewed in isolation, demonstrate error to depart from it. Counsel for the applicant has pointed to cases where this Court has intervened, but in all of them the sentencing proceedings were detected to have been affected by ambiguity so that it was not clearly demonstrated that appropriate account had been given to service of pre-sentence custody; Nasher [2005] NSWCCA 238; Hall [2005] NSWCCA 217; Howard [2001] NSWCCA 309'.

A suspended sentence cannot be backdated

In Pulitano [2010] NSWCCA 45 the Court said that a suspended sentence cannot be backdated to take into account pre-sentence custody. Rather, the pre-sentence custody must be taken into account by reducing the sentence or backdating it when the bond is revoked: at [9]. The Court said it was not necessary to determine which is the preferable course. In this case the judge had taken into account the pre-sentence custody when suspending the sentence and it was open for his Honour to do so: at [10]-[15].

As to pre-sentence custody generally, the Court said that backdating the date on which the sentence is to commence (s 47(2)(a) (Crimes (Sentencing Procedure) Act) is the preferred course, although reducing the sentence imposed can be followed for good reason: at [8].

13. Plea of Guilty

Criminal Case Conferencing Trial Act 2008 s 17(1)(a): Discount of 25% for plea of guilty before committal

The Criminal Case Conferencing Trial Act2008 applies to committal proceedings that are to be heard in the Downing Centre or Central Local Courts in Sydney: s 4.

In Do [2010] NSWCCA 182 and Tran [2010] NSWCCA 183 the applicants pleaded guilty to firearms offences. In both cases. the parties failed to bring the judges' attention to s 17(1)(a) which resulted in the judges failing to allow a discount of 25% for the applicants' guilty plea before committal. Section 17(1)(a) states that if an offender pleads guilty to an offence at any time before being committed for sentence, the court must discount the sentence of imprisonment by 25%. As a material error had occurred, the applicants were re-sentenced.

Permissible to take into account factual dispute against offender on discount for guilty plea.

In Donaczy [2010] NSWCCA 143 the Court said that a judge is permitted to take into account a factual dispute unfavourable to the offender when determining the discount for a guilty plea. The applicant had pleaded guilty to manslaughter. A factual dispute arose around whether the applicant had 'king hit'the deceased victim without warning. The judge rejected the applicant's evidence on this issue and allowed a discount of 20% for the guilty plea. The applicant submitted that it was an error to take into account the factual dispute and that the discount should have been 25%. Dismissing the appeal, Allsop P (Grove and Hislop JJ agreeing) said:


'[35] It was submitted that the sentencing judge wrongly reduced the discount for the plea because of the disagreement that the applicant had with the agreed facts (which disagreement was resolved against the applicant). Reference was made to Thomson; Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [119]-[123] and Borkowski [2009] NSWCCA 102.

[36] I reject this submission.

[37] The applicant is not entitled to any particular discount: Heikkinen [2006] NSWCCA 50 and Nanai [2010] NSWCCA 21. The plea came 16 months after the applicant was arrested and charged, after time and resources had been spent in taking statements and preparing the prosecution. A 20% discount was plainly open.

[38] I do not read his Honour's remarks on sentence as indicating that he took the factual dispute into account. Even if he had, this was not illegitimate: El Hani [2004] NSWCCA 162 at [80].

[39] It was entirely open to the judge to set a 20% discount for the plea of guilty.

[40] Reference was made to the development of a common expectation in the profession for 25% that is reinforced by such things as the terms of the Criminal Case Conferencing Trial Act 2008 (NSW), s 17. That Act has only limited application: s 4. In any event, a discount of 25% can be accepted as usual for a plea at the earliest opportunity. Here, the plea took 16 months to come.

[41] No error in the trial judge's approach has been demonstrated'.


 

14. Supply Prohibited Drugs - Trafficking to a Substantial Degree

The principle is that trafficking in drugs to a substantial degree should attract full-time custodial imprisonment in the absence of exceptional circumstances: Clark (NSWCCA, unreported, 15.3.1990); Gip (2006) 161 A Crim R 173.

Failure to consider whether offender substantially involved in supply

In Scott [2010] NSWCCA 103 the applicant was charged with supply prohibited drug. The applicant claimed that the drugs were for his own personal use. The Court held that the sentencing judge failed to consider whether the applicant had actually been substantially involved in the supply of drugs before applying the principle that a custodial sentence must be imposed unless there are exceptional circumstances. It could not be said that the evidence warranted no other conclusion.

Allowing the appeal, per Hislop J (Allsop P and Grove J agreeing):


'[28] In Gip [2006] NSWCCA 115; (2006) 161 A Crim R 173 Rothman J said in respect of whether an offender has been substantially involved in the supply of prohibited drugs:

[43] ... The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark. Those facts may be an agreement to supply on another occasion, an attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances.

[29] The respondent submitted that his Honour was correct in determining that a full time custodial sentence must be applied in the absence of the applicant demonstrating exceptional circumstances — Pilley (1991) 56 A Crim R 202 at 208, ie circumstances different from the general run of case that come before the courts — Cacciola (1998) 104 A Crim R 178 at 182 and 184. His Honour in reviewing special circumstances had stated that the circumstances in this case were not exceptional.

[30] The applicant submitted that his Honour sought to invoke the legal principle that exceptional circumstances are required before anything other than a full time custodial sentence can be imposed without having made the finding that the applicant was involved to a substantial degree in the supply of prohibited drugs. This was an error of principle and, in consequence, the court was entitled to look at whether a lesser sentence was warranted in law and should have been passed.

[31] His Honour did not expressly consider whether the applicant was substantially involved in the supply of prohibited drugs. In my opinion, it could not be said that the evidence admitted of no conclusion other than that the applicant was substantially involved in the supply of prohibited drugs. Accordingly, error has been established and it is appropriate that the court consider whether a lesser sentence is warranted in law and should have been passed. ........'.


 

In Zahrooni [2010] NSWCCA 252 the applicant also argued that the judge failed to consider the extent to which the evidence established trafficking to a substantial degree. However, the appeal was dismissed. The judge properly found the applicant was a 'user/dealer'and had the judge expressly adverted to the phrase 'trafficking to a substantial degree'he would have concluded the applicant came within that description: at [33].

Per Simpson J (Hoeben and RA Hulme JJ agreeing):


'[27] Particular reliance was placed upon the decision of this Court in Scott. There the applicant was convicted of the supply of 27.1 grams of methylamphetamine of very low purity (1 percent). Because the drug in that case was located in a freezer, it may be inferred that the Crown case there also involved the deeming provision, s 29 of the DMT Act. The sentencing judge considered himself bound, by Clark and subsequent cases, to impose a full-time custodial sentence. He did this without directing his attention to the question whether the offence involved "trafficking in drugs to a substantial degree".

[28] Hislop J, with whom Allsop P and Grove J agreed, held that the failure to make the necessary anterior finding vitiated the sentence. He further held, on the facts of that case, that it could not be said that the evidence admitted of no conclusion other than that the applicant was "substantially involved in the supply of prohibited drugs".

[29] The cases to which I have referred focus largely upon the meaning of the word "trafficking". Whether consideration is given to that word, or to the words "to a substantial degree", the issue is the extent of involvement in supply. Where the supply is on a single, isolated occasion, the circumstances might (or might not) permit a non-custodial sentence. But the authorities are clear that where the dealing involves "trafficking to a substantial degree" it is only in exceptional circumstances that a non-custodial sentence will be imposed. The converse of that proposition, on Mr Zahrooni's argument, is that, if the trafficking is not "to a substantial degree", a custodial sentence is not necessarily inevitable. It would be more accurate to say that the cases cited do not, in those circumstances, require a custodial penalty.

[30] Here, as in Scott, the judge did not make an express finding as to whether Mr Zahrooni's offence involved "trafficking to a substantial degree". But he did, with justification, find that Mr Zahrooni was "a user/dealer".

[31] It is incorrect to suggest that the judge failed to take account of the extent of Mr Zahrooni's involvement. On two occasions he referred to the quantity of the drug (69 grams - more than double the traffickable quantity); the individual packaging (48 sachets); the relatively large sum of money in his possession (having regard to his financial circumstances); and the text message; to this may be added the possession of two mobile telephones.

...

[33] In my opinion, had the judge expressly adverted to the contentious phrase ("trafficking to a substantial degree"), he would inevitably have concluded that Mr Zahrooni's activities came within that description - see the features referred to in [31] above. That is in contrast to the facts in Scott'.


 

Voluntary cessation of criminal activity may be 'exceptional circumstances'

In Pickett [2010] NSWCCA 273 the Court found that the offender's voluntary cessation of criminal activity prior to his arrest amounted to exceptional circumstances to allow other than full-time imprisonment where there was trafficking to a substantial degree.

Per Simpson J (RA Hulme J agreeing; Fullerton J agreeing with separate reasons):


'[73] There is precedent for the course taken by the sentencing judge, in a case that has significant parallels with the present case. In Burns [2007] NSWCCA 228, the respondent to a Crown appeal had pleaded guilty to one charge under s 25A(1), of supplying MDMA (also known as "ecstasy"). A second charge of supplying the same drug was taken into account under Pt 3 Div 3 of the Sentencing Procedure Act.

[74] In that case the respondent was sentenced to imprisonment for 2 years, and, as in the present case, an order was made under s 12 of the Sentencing Procedure Act that execution of the sentence be suspended. The Crown appealed on the ground that the sentence was manifestly inadequate.

[75] In that case, again like the present, the respondent had voluntarily ceased his criminal activity and had in fact moved interstate in order to separate himself from association with those with whom he had been involved.

[76] Harrison J, with whom Spigelman CJ and I agreed, held that:

"27 The voluntary cessation of criminal activity is well recognised as a significant factor to be taken into account by a sentencing tribunal ...

29 ... First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed."

(I would interpolate that the final factor, not applicable in Burns, has some application in the present case.)

[77] In the result, the Court in Burns held that that circumstance was sufficient, together with other circumstances, to take the case into the exceptional category.

[78] I would reach the same result in the present case. That being so, I would dismiss the Crown appeal'.


 

15. Particular Offences

Child Pornography - factors relevant to objective seriousness

In Minehan [2010] NSWCCA 140 the appellant was charged with a number of Commonwealth and State child pornography offences RA Hulme J (Macfarlan and Johnson JJ agreeing) set out a list of factors relevant to an assessment of the objective seriousness of offences of possession, dissemination or transmission of child pornography. His Honour referred to Whiley [2010] NSWCCA 53; Gent (2005) 162 A Crim R 29; Oliver [2003] 1 Cr App R 28; Colbourn [2009] TASSC 108; Hutchins v WA [2006] WASCA 258; Mara [2009] QCA 208:


'[94] Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in De Simoni (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender's activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A CrimesAct 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.


[95] This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness'.


RA Hulme J also referred to 3 other considerations: the importance of general deterrence and denunciation; and that the importance of previous good character is of less significance in these offences: at [96]-[101].

s 97 Armed robbery - error to assess objective seriousness with reference to 'mid-range'rather than Henry guideline judgment

In Kelly [2010] NSWCCA 259 the respondent was sentenced for five armed robberies under s 97(1) Crimes Act. This offence does not carry a standard non-parole period. The judge assessed the objective seriousness of all of the offences 'to be around mid range'and imposed fixed terms of 2 years each for four offences, and a non-parole period of 2 years 6 months for the fifth offence, all sentences to be partly consecutive. The Court held it was an error to globally assess the objective seriousness of all of the offences by reference to a 'mid range offence'The proper procedure was to assess the criminality of each of the offences by reference to the armed robbery guideline judgment in Henry (1999) 46 NSWLR 346: at [47]-[50].

Money Laundering - sentencing principles

In Guo & Oian [2010] NSWCCA 170 the Crown appealed against the sentences imposed upon the applicants for recklessly dealing in proceeds of crime under s.400.4(2) Criminal Code1995 (Cth); and conducting transactions so as to avoid reporting requirements under s.31(1) Financial Transaction Reports Act1988 (Cth). The applicants were each sentenced to imprisonment by way of periodic detention. The Court held the sentences to be manifestly inadequate and allowed the appeal. The Court reviewed a number of authorities which have set out the relevant sentencing principles for these type of offences: at [84]-[91], [92]-[97]. These principles are summarised as follows:

Money laundering offences

At [86] - Sentencing decisions for money laundering offences may provide assistance by way of statements of general sentencing principle, but not by way of identification of a range of sentence - see Van Haltren [2008] 191 A Crim R 53 at 79; Wing Cheong Li [2010] NSWCCA 125.

At [87] - The offences comprehend a wide range of criminality. The principal differentiating factors are the minimum value of money or property and the offender's state of mind. Each case will have other important variables that bear on sentence which will include:

what D did, acts performed and with what authority and over what period of time.

the total value of money or property involved; and whether the money or property belonged to the offender or to another.

degree of planning or deceit

whether actual loss resulted, and the extent of such loss.

the precise nature of proved belief may vary so as to affect the sentence:

see Wing Cheong Li [2010] NSWCCA 125 per Barr AJ at [41]; Olbrich (1999) 199 CLR 270 at [19]; Ansari (2007) NSWLR 89 [119]-[124]

At [88] - The legislative scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender; intentional dealing is more serious than one where the state of mind is recklessness: Ansari (2007) NSWLR 89 at [122].

At [89] - Some factors which bear upon the assessment of the objective seriousness of a money laundering offence:

The offender's belief as to the source of the funds. An offender might be charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds.

The offender's understanding as to the destination of the money or the purposes for which it was to become an instrument of crime.

The amount of money involved. The legislation uses it as the principal means of dividing the offences and as the primary identifier of what is the maximum penalty for an offence.

The number of transactions and the period over which the transactions occurred because they indicate the extent of the offender's criminality. Generally, a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount. The latter may be seen as an isolated offence. When the activity is for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case.

see Huang & Siu (2007) 174 A Crim R 370 at [32]-[36].

At [91] - General deterrence as a sentencing factor for money laundering offences has been emphasised: Huang & Siu at [36].

Financial reporting offences

At [93] - The Financial Transaction Reports Act1988 (Cth) is directed at regulating the cash economy, which can facilitate both tax evasion and money laundering: O'sDriscoll 57 NSWLR 416 [13]-[14]. The legislation gives law enforcement agencies the ability to monitor the movement of large amounts of cash and thus to identify tax evaders and the recipients of proceeds of crime: Leask v Commonwealth of Australia [1996] 187 CLR 579 at 596-597.

At [94] - The offences call for a significant degree of general deterrence - Au [2001] NSWCCA 468 at [7]; Narayanan [2002] NSWCCA 200 at [89]; Rule [2003] NSWCCA 97 at [9]-[10]; Edwards; Ex parte Director of Public Prosecutions (Cth) [2008] 183 A Crim R 83 at [2].

At [97] - As with money laundering offences, sentencing decisions for financial reporting offences may provide assistance by way of statements of general sentencing principle, but not by way of identification of a range of sentence.

In Nguyen [2010] NSW CCA 226, involving dealing with proceeds of crime under s 400.3(1) Criminal Code (Cth), Barr AJ (Beazley JA and Buddin J agreeing), again summarised:


'[58] As I said in Li, I do not think that the number of money laundering cases dealt with so far by appellate courts is sufficient to begin to trace the limits of the proper range of sentencing discretion under subs 400.3(1). And when there are added the first instance sentences to which counsel drew this Court's attention, the position is no different. Moreover, unless there are co-offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: George [2004] NSWCCA 247 per the Court at [48]-[49]. So although the cases referred to are of assistance, it is limited.

[59] A court imposing sentence for an offence under subs .3(1) must have regard first to the maximum sentence applicable, to the minimum value of money or property necessary to bring an offence into the sub-section and to the prescribed state of mind, namely the offender's belief that the money or property was the proceeds of crime. There will be other features, too, including the actual value of money or property dealt with and the proportion, if any, by which that value exceeds the minimum value qualifying for subs .3(1), as well as the period of time over which the transactions constituting the offence were carried out, the authority by which the offender carried out his part and precisely what the offender did and the manner in which the offender acted, which will include consideration of any practised deceit. The nature of the criminal source of money or property may be important. The Court will need to consider whether the money or property was beneficially the offender's or not and, if not, the value of any intended reward. It will be important to consider what part of the money was successfully dealt with and the value of any resulting loss to the community. The precise state of mind of the offender will be important. Just as subss .3(1), .3(2) and .3(3) vary according to a scale of increasingly serious states of mind, rising from negligence to recklessness to belief, so there may be degrees of belief, rising to certain knowledge, as in Maldonado. And there will be other considerations, case by case'.


Drug importation - sentencing principles

In Nguyen; Pham [2010] NSWCCA 238 Johnson J set out the following general sentencing principles for serious federal drug offences:


'[72] The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: Lee at [27];

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; Lee at [25];

(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: Lee at [26];

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong; Leung at 607-608 [64]; Lee at [23]-[24];

(e) the statements by the High Court in Wong; Leung do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong;Leung at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: Barrientos [1999] NSWCCA 1 at [52]-[57]; Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor [2007] NSWCCA 147 at [47]; Onuorah [2009] NSWCCA 238; 234 FLR 377 at [49];

(k) where offenders are not young (Mr Nguyen was 42 years' old and Ms Pham was 32 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler; Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise: El-Ghourani [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: Ferrer-Esis (1991) 55 A Crim R 231 at 230;

(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act1914 (Cth): Taru [2002] NSWCCA 391 at [12]; Bezan at 438 [34]-[36]; Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; SC at [27]; Chea [2008] NSWCCA 78 at [40];

(o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: Poynder [2007] NSWCCA 157; 171 A Crim R 544 at550 [28]; Assafari [2007] NSWCCA 159 at [9]'.

Manslaughter and Culpable Driving Cases

In Bombardieri [2010] NSWCCA 161 the Court reviewed sentences imposed in manslaughter and culpable driving cases.

Break and Enter

In Mapp [2010] NSWCCA 269 Simpson J suggested that in light of s.21A Crimes (Sentencing Procedure) Act1999 the guideline judgment under Ponfield (1999) 48 NSWLR 327 has little continuing relevance.

[10] Ponfield is, in my respectful opinion, of limited utility. Although that matter came before the Court by way of an application by the Attorney General for sentencing guidelines in respect of offences against s 112(1) of the Crimes Act 1900, the Court declined to specify a numerical guideline, instead listing factors that 'enhanced'('aggravated') the seriousness of an offence against s 112(1). This was, in my view, little (if anything) more than a statement of the general sentencing principles that applied at the time. Ponfield was decided before the insertion into the Sentencing Procedure Act of s 21A, which, in statutory form, and somewhat more comprehensively, does the same thing (with general application to all offences, not only offences against s 112(1)). In my opinion, therefore, Ponfield has been largely overtaken by statute.

[11] The reason I say that this illustrates the point made earlier concerning the difficulties confronting sentencing judges is the inclusion in the Ponfield list of the first of the 'enhancing'('aggravating') factors - that the offence was committed while the offender was on conditional liberty. It is now recognised (since the advent of Pt 4 Div 1A) that that circumstance is not relevant to the assessment of objective gravity: Way [2004] NSWCCA 131; 60 NSWLR 168; Kafovalu [2007] NSWCCA 141 at [23]-[27]; Van Rysewyk [2008] NSWCCA 130 at [25].

16. Other Sentence Cases

De Simoni principle

In Bourke [2010] NSW CCA 22; (2010) 199 A Crim R 38 the applicant was sentenced for 'malicious wounding with intent to inflict grievous bodily harm' under s33 Crimes Act. The victim suffered a number of lacerations and fractures after being attacked by the applicant armed with an axe and pole. The applicant submitted that any 'grievous bodily harm', as opposed to 'wounding', could not be taken into account in assessing objective severity: De Simoni (1981) 147 CLR 383; McCullough (2009) NSWCCA 94.

The Court held there was no error. The injuries which were wounds were so severe that they could appropriately be described as grievous bodily harm. 'The fractures to the victim's skull and hands, although, ... not ... wounds, are so related to the blows to the victim which caused the wounding that in order to properly identify the extent and consequence of the wounding consideration of the resulting fractures and their consequence was undoubtedly appropriate': at [53].

The intent to which the applicant pleaded guilty was the intention to do grievous bodily harm. The judge was entitled to have regard to the full extent of those injuries. The applicant was not sentenced for a more serious offence or for an aggravated form of the offence. The case was different to McCullough (a case under 'malicious wounding' s35 Crimes Act) where it was held that the 'wounding' with which the offender was convicted was unrelated to the injuries amounting to 'grievous bodily harm': at [54]-[55].

'Back-up or related offences' limited by penalties available in Local Court

In Collins [2010] NSWCCA 13 the applicant had pleaded guilty to various offences in the Local Court. These offences were placed on a certificate as back-up or related offences and transferred to the District Court pursuant to the procedure available under s 166 Criminal Procedure Act1986. The judge's attention was not drawn to s 168(3) Criminal Procedure Act:


"In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions , and is subject to the same restrictions and procedures, as the Local Court."


Consequently, the judge did not limit sentence to the appropriate maximum penalties and the applicant had to be re-sentenced: at [23]-[24]. The Court went on to find that the judge had erred in assessing the objective seriousness of the offences and that the sentences were manifestly excessive: at [38].

Suspended sentences - The same considerations relevant to determining whether a sentence of imprisonment is appropriate are also relevant to whether sentence should be suspended - this does not amount to 'double counting'.

In Farrawell-Smith [2010] NSWCCA 144, a Crown appeal, the respondent had received two suspended sentences for one offence of recklessly cause grievous bodily harm in company and one offence of reckless wounding in company (s 35(1), (3) Crimes Act). The judge took into account the respondent's assistance to authorities in deciding to reduce the sentence, and then again when determining to suspend the sentence. The Crown argued that this constituted 'double counting.'The ground was rejected.

Per Barr AJ (McClellan CJ at CL and Hislop agreeing)


'[19] It was submitted that since his Honour had already taken account of assistance given and promised when determining the terms of the sentences, taking such matters into account in deciding to suspend the sentences amounted to double counting. Reference was made to S (2000) 111 A Crim R 225 at [19] where the court cautioned against discounting a sentence for assistance to the authorities and separately discounting for the onerous nature of strict protection which, as was pointed out, is the direct result of an offer of assistance.

[20] However, in Dinsdale [2000] 202 CLR 321 the justices of the High Court of Australia held that the discretion to impose a term of suspended imprisonment required a consideration of all the circumstances of the case, not only the rehabilitation of the offender. Kirby J said at [85]


This necessitates the attribution of 'double weight'to all of the factors relevant both to the offence and to the offender — whether aggravating or mitigating — which may influence the decision whether to suspend the term of imprisonment.

[21] In JCE (2001) 129 A Crim R 18 Fitzgerald JA, with whom Whealy and Howie JJ agreed, said, at [17]

If the court is satisfied that no penalty other than imprisonment is appropriate, it must determine what term of imprisonment is appropriate. Other questions then arise. By subs 12(1) of the Act, one of the questions to be considered when the appropriate term of imprisonment is not more than two years, is whether execution of the sentence should be suspended. When that question falls for consideration, the same considerations as were relevant in determining whether a sentence of imprisonment was called for and if so what term of imprisonment was appropriate, again fall for consideration in determining whether execution of the sentence should be suspended. Broadly stated, as Kirby J pointed out in Dinsdale, the material considerations are the objective features of the offence and the personal considerations applicable to the offender including considerations of rehabilitation and mercy.

[22] Reference may also be made to Zamagias [2002] NSWCCA 17 at [26]-[28].

[23] This ground of appeal has not been made good.


Assistance to authorities in other jurisdictions

In Shaw [2010] NSWCCA 23 the Court said that a sentence may be reduced where the offender has provided assistance to authorities in other jurisdictions. In this case the offender's counsel did not ask the sentencing judge for a discount as it was accepted that the offender had received a discount in relation to offences for which he had already been sentenced in Queensland. However, counsel asked that the fact the offender was a person who would give assistance be taken into account as part of his personal subjective characteristics: at [20]. The Court said that because the applicant had already received a discount for his assistance, no error was demonstrated: at [23]. Per McClellan CJ at CL (RS Hulme and Johnson JJ agreeing):


'[14] Decisions of this court and of other courts make plain that a sentencing court should consider assistance provided by an offender not only in respect of the offences for which he is being sentenced but for other offences which may have been committed by others: Many (1990) 51 A Crim R 54. Furthermore, assistance provided or undertaken to be provided to authorities interstate does not make it irrelevant to sentence proceedings in this State: Quinn [2002] NSWCCA 508 at [9] per Sperling J. Even assistance provided to authorities in other countries may be taken into account in sentencing for offences committed in Australia: see De Groot van Embden [2003] NSWCCA 156; 140 A Crim R 403; Kauwenberghs [2008] NSWCCA 98; Sukkar [2006] NSWCCA 92; 172 A Crim R 151; Huang (1995) 78 A Crim R 111.

...

[21] A similar problem was considered by the Victorian Court of Appeal in Allan John Quinn [2005] VSCA 100. In that case the applicant was to be sentenced in Victoria, having been sentenced for like offences committed during substantially the same period in New South Wales and Queensland. The Victorian Court of Appeal concluded that because appropriate recognition had not previously been given for the appellant's assistance when sentenced in the other States regard should have been had to that matter when the appellant was being sentenced in Victoria.

...

[23] There can be no doubt that in the present case the applicant was entitled to have the sentencing judge consider and provide, if appropriate, for a discount on the sentence in New South Wales for assistance provided to the Queensland authorities. However, counsel did not invite his Honour to incorporate such a discount and accepted that the sentencing process in Queensland had appropriately incorporated the discount to which the applicant was entitled. In that event no error has been demonstrated. In any event it is apparent that when imposing the New South Wales sentence his Honour gave careful consideration to the applicant's overall criminality. ..'.

S 10 Crimes (Sentencing Procedure) Act - Dismissal of charges and conditional discharge of offender

(This is a Court of Appeal decision.) In Hoffenberg [2010] NSWCA 142 the Court discussed the factors relevant to a determination of whether a particular offence is 'trivial' under s 10 Crimes (Sentencing Procedure) Act1999. The applicant was convicted and placed on a s 9 bond for damaging property (s 195 Crimes Act). An appeal to the Chief Judge of the District Court was dismissed. The applicant appealed to the Court of Appeal submitting the Chief Judge had applied an incorrect statutory test when exercising the court's jurisdiction pursuant to s 10. The Court dismissed the summons holding there was no error of process by Chief Judge: at [23]. The Court also said that the applicant's actions deliberate act of vandalism placed the offence beyond the trivial and the Chief Judge had made correct findings pursuant to s 10.

Per McClellan CJ at CL (Tobias JA and Basten JA agreeing):


'[25] Accordingly, pursuant to s 10(3), his Honour was required to consider "the trivial nature of the offence." When considering that issue his Honour, in my view correctly, considered whether the applicant's actions were deliberate, in the sense of considered, pre-meditated or deliberated upon. His Honour took the view, as he was entitled to do, that a deliberate act of vandalism placed the nature of the offence beyond the trivial and may, depending on all the circumstances, deny an offender the benefit of an order pursuant to s 10.

[26] Having made this finding his Honour considered the relevant personal circumstances of the applicant referred to in s 10(3) and in particular, the impact of a conviction on his future prospects before reaching his conclusion: see s 10(3)(d). His Honour determined that the personal circumstances of the applicant were not such that it was appropriate to make a s 10 order in relation to a deliberate act of vandalism.

[27] By approaching his decision in this manner, his Honour discharged his obligation to consider the matters raised by s 10(3) of the Sentencing Act and in so doing carried out the task required of a sentencing judge (see Dodd (1991) 57 A Crim R 349 at 354; Whyte (2002) 55 NSWLR 252 at [156]-[158])'.


 

17. Crown Appeals / Double Jeopardy

s 68A(1) Crimes (Appeal and Review) Act 2001 abolishes double jeopardy with respect to Crown appeals

In the Crown appeal of JW [2010] NSWCCA 49; (2010) 199 A Crim R 486 the respondent, who was 15 at the time of the offences, was sentenced for two robbery with wounding offences (s 98 Crimes Act). The respondent, in the company of co-offenders, robbed victims on trains at night. He received a two year suspended sentence for the first offence and 80 hours community service for the second. The Crown appealed against manifest inadequacy.

A five judge bench was constituted to consider s 68A(1 )Crimes (Appeal and Review) Act2001 which abolished double jeopardy with respect to Crown appeals. Section 68A (which commenced in September 2009) states:


'An appeal court must not (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again'.


The Court (Spigelman CJ; Allsop P agreeing; McClellan CJ at CL, Howie and Johnson JJ agreeing except on adequacy of sentence for the first offence) allowed the appeal. The Court quashed the sentence for the second offence and imposed a suspended sentence of two years. Two major issues considered by the Court were double jeopardy and the competency of the appeal.

(i) Double jeopardy

On the issue of double jeopardy, Spigelman CJ considered numerous authorities and concluded:


'[141] The following propositions emerge from the above analysis:

(i) The words "double jeopardy" in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise'.

The Court however retains a discretion to dismiss a Crown appeal on the basis of "unfairness or injustice": Holder & Johnston (1983) 3 NSWLR 245. The discretion is not one to be exercised on the basis of a narrow range of considerations. The principle of double jeopardy, now abolished by statute, is only one basis on which this discretion can be exercised: at [85]. Although s 68A removes the double jeopardy element from the exercise of the discretion to intervene, other aspects remain untouched. So despite the abolition of the double jeopardy principle, there remains a residual discretion to reject a Crown appeal: at [95]. Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene. Matters include the contribution the Crown made to sentencing error by the sentencing judge, conducting an appeal on a different basis to that below and delay in instituting an appeal: at [92]-[93].

(ii) Competency of appeal

The Court rejected the respondent's submission that the Crown appeal was incompetent because the Crown did not set out the grounds of appeal in its Notice of Appeal. Rule 23E Criminal Appeal Rules does not refer to a notice of a Crown appeal containing grounds. However, the Court at [24]-[33] acknowledged that it is a desirable "rule of practice" that a Crown appeal identify grounds of appeal in the notice of appeal, although such grounds need not be identified when the notice is first filed: see Rule 76 Criminal Appeal Rules.

In Carroll [2010] NSWCCA 55; (2010) 267 ALR 57 the CCA said that s 68A does not deprive the essential character of the Court and does not require the Court to proceed in a manner that compromises equality before the law, impartiality or substantive fairness of process. Section 68A removes one aspect from judicial consideration being double jeopardy expressed in JW at [141(ii)] as: "... the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject." It would not lead to inconsistent outcomes: at [30]-[36].

Section 68A and Commonwealth offenders

In DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28, the Court by majority (McClellan CJ at CL, Simpson J and Barr AJ; Allsop P and Basten JA dissenting) held that s 68A applies to Crown appeals concerning federal offences. There was no inconsistency arising under s.109 of the Constitution as between s.68A Crimes (Appeal and Review) Act2001 and s.16A Crimes Act1914 (Cth).

In De La Rosa the Court said that any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced may be taken into account in accordance with s 16A(2)(m) Crimes Act1914 (Cth) (being the 'mental condition' of the offender).

Section 16A(2) of the Crimes Act1914 (Cth) lists matters which a sentencing court must take into account as are relevant and 'known to the court'in reference to actual, rather than presumed, anxiety and distress. Section 68A precludes reliance by the Court upon the presumption that the respondent is suffering anxiety and distress. But it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced: at [162]-[180]; [274]-[282] and [315]; as discussed in Nikolovska [2010] NSWCCA 169 at [99]-[100]. Where there is evidence of an offender's anxiety and distress, a sentencing court can take those factors into account. However, it is not presumed and the weight to be accorded to such evidence will vary from case to case: De La Rosa at [176], [180], [280].

CONVICTION APPEAL CASES

Inconsistency between State and Cth laws - Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) is not inconsistent with Criminal Code (Cth) s 306.2

In El Helou [2010] NSWCCA 111 the Court held that there is no inconsistency between s25(2) Drug Misuse and Trafficking Act1985(NSW) and s 306.2 Criminal Code1995 (Cth) which would render s 25(2) inoperative. The Court (Allsop P; Grove and Hislop JJ agreeing) dismissed the respondent's appeal against conviction. The Court said that the sections are not entirely coextensive or identical and that the elements of each offence are different. A person could commit an offence under s 25(2) but not s 306.2: at [20]. Part 9.1 of the Code is not intended to "cover the field", making clear that the State legislature may make laws in the same field: [23].

This is presently a live issue. Recently, the High Court held in Dickson (2010) 270 ALR 1 (discussed below under 'High Court cases') that a Victorian conspiracy provision was inconsistent with a Commonwealth conspiracy provision on the basis that the State provisions were broader and imposed greater obligations upon an offender than the Commonwealth law.

The High Court has also reserved judgment in Momcilovic (also under 'High Court cases' below). This is a Victorian case challenging the validity of s.5 Drugs, Poisons and Controlled Substances Act1981 which deems that a person is in possession of a drug if the drug is found on land / property occupied by the person unless that person can satisfy the court to the contrary. The issue of inconsistency is based on the fact that the Criminal Code (Cth) contains no deeming possession provision.

Rule in Browne v Dunn - Remedies where rule breached - Exclusion of evidence where rule breached - Generally a matter of last resort in a criminal trial

In Khamis [2010] NSW CCA 179, a sexual assault trial, the applicant attempted to give evidence of a conversation involving himself, the complainant and the complainant's brother. The trial judge refused to allow the evidence as it had not put to the complainant or other Crown witnesses during cross-examination.

The Court ruled the conversation was important and should have been put to all witnesses by trial counsel. The rule in Browne v Dunn (1893) 6 R 67 applied: at [36]. However, the trial judge erred in deciding that the only option was to exclude the evidence. The judge ought to have considered other options including recalling the witnesses under general power or under s.46 Evidence Act. The option of excluding defence evidence should be an option of last resort. A miscarriage of justice had occurred and the Court quashed the conviction and ordered a new trial.

The Court considered a non-exhaustive list of five options open to a trial judge in dealing with such evidence.

Per Whealy J (Campbell JA and Simpson J agreeing):

'[43] First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour, although that was a civil case.

[44] Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. Where however, a witness's evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence ( Bulstrode v Trimble [1970] VR 840 at 848-9); Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act1995). Quite apart from the ability to grant leave under this section, a trial judge may require the relevant witness to be called for further cross-examination or grant an application for the recall of the witness ( Payless Superbarn (NSW) Pty Limited v O'Gara at 556; Burns (1999) 107 A Crim R 330; MWJ at [40].

[45] Fourthly, as indicated by cases such as Schneidas there is, at least in this State, a power in criminal trials to exclude evidence sought to be relied upon by an accused to support a point not put in cross-examination of a witness called by the Crown. This option, in my opinion, should, (in this situation) generally speaking, be a last option and not one of first resort.

[46] Finally, if an accused's evidence is allowed, and there has been a breach of the rule, there may be a need for appropriately fashioned directions to be given to the jury. This option, and the care and caution needed to be taken in respect of it, was the subject of this court's decision in RWB [2010] NSWCCA 147 to which I made reference at the commencement of these reasons. There is no need for me to say anything further on that subject.

In RWB [2010] NSW CCA 147 the Court said that a Browne v Dunn warning was unnecessary in that case:


'[101] These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused's counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw'.


 

Evidence of uncharged acts admitted over objection - Tendency evidence formalities not satisfied

In ES (No.1) [2010] NSW CCA 197 the ruled that a failure to properly categorise evidence of uncharged sexual misconduct resulted in a miscarriage of justice.

The applicant was convicted of child sexual offences. At trial the Crown relied upon evidence from the complainant's sister K that she once saw the appellant touch the complainant in the genital area. The evidence was not tendered as tendency evidence and no notice had been served under s 97 Evidence Act.

The Court said evidence of uncharged acts may be admissible as, at [38]

(1) context evidence (so that the charged acts are not seen unrealistically as being isolated);

(2) motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and

(3) tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has)

The Court went on to comment at [39] that while there may be a theoretical distinction between motive and tendency evidence but it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child because

(a) the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind,

(b) the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and

(c) the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning.

In allowing the appeal and ordering a new trial the Court held that the evidence could not be used as evidence of tendency because the requirements for the admission of tendency evidence under s 97 had not be satisfied: Qualtieri (2006) 171 A Crim R 463; DJV [2008] NSWCCA 272. As context evidence, however, the prejudicial effect of the evidence outweighed its probative value and the evidence should not have been admitted. Moreover the trial judge had directed the jury that K's evidence could not be used unless they accepted it occurred beyond reasonable doubt - a standard of proof required when uncharged acts are used as tendency evidence: at [46].

Misdirection on proper use of relationship evidence - Evidence of complainant not corroborated - Oath against oath - Proviso not available.

In Rees [2010] NSWCCA 66 the Court upheld the applicant's appeal against conviction and ordered a new trial. The applicant was convicted of sexual intercourse without consent (s 61I Crimes Act). Evidence by the complainant of sexual conduct by the applicant over a long period of time prior to the offence was admitted as relationship evidence.

In allowing the appeal the Court held that the trial judge's directions were erroneous, the same directions, provided by the same trial judge, having been held to be erroneous in JDK [2009] NSWCCA 76. The Court went on to say that this being essentially a case of oath against oath, the Court would not apply the proviso (s 6 Criminal Appeal Act which allows the Court to dismiss the appeal because there was no substantial miscarriage of justice).

Per Handley AJA (Grove J and Hislop JJ):


'[17] The case is essentially one of oath against oath, although as I have previously said, there was corroborated evidence of prompt and consistent complaints on and after 30 September.

[18] Nevertheless, one way or another, all the subsequent complaints and conduct come back to the complainant herself. There is no independent corroboration of her primary evidence about the offence.

[19] Crown counsel was asked by the Court whether she was aware of any case where this or a similar Court has applied the proviso where there has been a serious misdirection and the case is essentially one of oath against oath.

[20] Crown counsel was not able to refer the Court to such a case and the Court is not aware of any. The evidence was highly prejudicial though admissible for a limited purpose. It was essential that the jury be given a clear instruction as to the limited use they could properly make of that evidence. In particular they had to be instructed that they could not use it to demonstrate the propensity of the accused to offend in a sexual manner against the complainant. This is a difficult guideline for any jury or indeed any judge to follow in assessing such evidence. In view of its prejudicial nature, I cannot be judicially satisfied that a jury properly instructed about the use they could make of this evidence would inevitably have convicted the appellant.

[21] I therefore propose that the appeal be allowed, that the conviction be quashed and that a new trial be ordered'.


 

Unlawful arrest - Requirement to inform person of true reason for arrest

This is a decision of the Court of Appeal in which the arrest was found to be unlawful. In Johnstone v NSW NSW CA 70 the court considered the common law obligation under Christie v Leachinsky [1947] AC 573 to inform a person of the true reason for their arrest. The accused produced a Medicare card in response to a request for identification, but was asked to provide further identification that contained his address and date of birth. After being told 'if he didn't supply his name and details he would have to be arrested'the accused pushed the police officers and was subsequently arrested and charged with assault offences.

Beazley JA (McColl and Young JJA agreeing) said that in determining whether a person has been advised of the true reason for their arrest, what must be ascertained is whether the person was sufficiently informed of the true reason for the arrest: [56]. What is required will depend on the particular circumstances in each case:


'[56] ... What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is.

[57] The question whether what the person was told was sufficient ' has to be assessed objectively having regard to the information which is reasonably available to the officer': Abbassy and another v Commissioner of Police of the Metropolis [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the ' best statement'of these principles was to be found in Fox v UK (1991) 13 EHRR 157, where the European Court of Human Rights stated:

'... any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness ... Whether the content ... of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features'.

A similar approach had been taken by Manse LJ in Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949.


In this case, the arresting officer thereby failed to satisfy the common law obligation to inform the appellant of the true reason for his arrest: [80]:


'[77] Therefore, in the overall circumstances, informing Mr Johnstone that ' if he didn't supply ... his name and details he would have to be arrested'might have amounted to no more than telling him that if he did not co-operate and supply his details they would not go as lightly on him as they had previously intimated. Put another way, it was not self-evident from Senior Constable O'Neil's statement that the failure to provide his details was the reason, that is, the criminal conduct, for which Mr Johnstone would be arrested. Words which are equivocal or which do not self-evidently refer to the true ground for the arrest, as was the case here, would, in most circumstances, be inadequate to satisfy the common law requirements for an arrest and, being equivocal, did not bring the case within the qualifications to the general principle, as found by the trial judge. In my opinion, the words used here were inadequate to inform Mr Johnstone of the true reason for his arrest'.


 

Section 281 Criminal Procedure Act - whether at the time admission made appellant could reasonably have been suspected of having committed an offence - Refusal by appellant to participate in a record of interview constituted a reasonable excuse for not having a recording

In Doklu [2010] NSWCCA 309 the police attended the scene of a stabbing and spoke to the appellant who had been stabbed by his estranged wife. The following conversation took place:

'After a few minutes of being treated by ambulance officers I spoke with [the appellant] further.

I said, 'What happened here?'

He said, ' I wanted to give her poison and then I was going to take poison but I took poison first. I know I'm going to die. She got up and stabbed me. We quarrelled. We went to the bedroom. I said, 'Stab me please'. She wouldn't stab me.' I said to call the ambulance.

I said, 'What are her injuries?'

He said, 'We were all over the ground'.

I said, 'Did she drink any poison?'

He said, 'I don't remember'.

I said, 'Did you try and get your wife to drink poison ?'

He said, ' Yes' .

On appeal the Court rejected the applicant's submission that the conversation and admissions should have been excluded under s.281 Criminal Procedure Act because they had not been recorded.

Section 282(1)(a) applies where the person making the admission 'was or could reasonably have been suspected ... of having committed an offence.'At the time of the conversation the police officers were investigating a stabbing of which the appellant was the victim. There was no basis for them to have suspected the appellant had committed an offence prior to the admissions being made: at [21]-[22].

Under s.281(2)(a)(ii) a subsequent recording should be made of 'an interview about the making and terms of the admission.'The trial judge had properly found that a refusal by the appellant to participate generally in a record of interview constituted a reasonable excuse for not having a recording: at [27]-[30]:


'[27] I turn then to the alternative basis upon which the trial judge held that s 281 CPA did not render the evidence of Constables Warren and Macarthur inadmissible, that is, that there was a reasonable excuse for the absence of the tape recording of the type described in s 281(2)(a)(ii) (it having been accepted that there was a reasonable excuse for the absence of a tape recording of the type referred to in s 281(2)(a)(i)).

[28] Counsel for the appellant submitted on the appeal that the trial judge was not entitled to find that the appellant's refusal to participate in an interview on 27 August 2006 constituted a reasonable excuse for the absence of a tape recording because the appellant had not been asked whether he would participate in an interview, to use the words appearing in s 281(2)(a)(ii), 'about the making and terms of the admission'The request to the appellant was undoubtedly a general one rather than one directed to that specific topic.

[29] I do not accept this submission. The subsection does not in terms, nor in my view by inference, require the making of a specific request of that nature. There is in my opinion nothing in the subsection that precluded her Honour from finding that the appellant's refusal of a general request for an interview constituted a relevant 'reasonable excuse'As Howie J considered to have been the case in Moussa, it may have been prudent here for Detective Stamoulis to have said to the appellant that he wished to interview him concerning an admission alleged to have been made by the appellant to Constables Warren and Macarthur, in order to foreclose an argument such as was put on behalf of the appellant at the trial and on appeal, but, as Howie J put it, 'a lack of prudence does not equate with a lack of reasonableness.

[30] Acceptance by the appellant of the request for an interview would in all probability have led to him being asked about the statement he had allegedly made to Constables Warren and Macarthur as it was that statement that had resulted in his arrest. In these circumstances her Honour was entitled to take the view that the refusal of the request was the reason why there was no tape recording of the type referred to in the subsection and to take the view that there was nothing unreasonable about the Crown relying upon the refusal of the request as an excuse for the absence of the tape recording'.


 

Tendency /Context Evidence

In RWC [2010] NSWCCA 332 Simpson J provides a summary of the difference between tendency and context evidence:


'[121] Categorisation of the evidence depends upon an analysis of the purpose for which it was tendered.

[122] Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused (hence the term 'relationship'evidence) or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint: see HML [2008] HCA 16 ; 235 CLR 334.

[123] Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges'.


 

See also RG [2010] NSWCCA 173 where the Court discussed the distinction between tendency and context evidence, the differing test for admissibility and the importance in taking into account the stated purpose of the Crown as well as the way the evidence in actually used at trial, to determine the nature of the evidence: at [29]- [37].

Accessorial Liability

In Chishimba [2010] NSWCCA 228 there is a useful summary of the principles of accessorial liability: at [29]-[34], [148].

Principles relating to joint criminal enterprises

[29] It is sufficient at this stage of this judgment to identify the relevant principles by quoting as follows the formulation by Hunt CJ at CL (with the concurrence of McInerney and Sully JJ) in Tangye (1997) 92 A Crim R 545 at 556 - 557) of the directions that should be given to a jury where a 'straightforward joint criminal enterprise'is alleged. This formulation has been treated as authoritative (see for example Osland [1998] HCA 75; (1998) 197 CLR 316 at [73] per McHugh J; Sever [2010] NSWCCA 135 at [144] per Latham J) and was adopted by the trial judge in the present case for the purposes of his Summing-Up (see pp 57 - 59):

'(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission'(at 556 - 557).

Joint criminal enterprises distinguished from aiding and abetting

[30] In Osland McHugh J distinguished between different types of criminal complicity.

[31] First he referred to a 'principal in the first degree'as one who committed 'the whole or part of the actus reus of the crime [that is, the criminal act]'(at [70]). Secondly he said that '[t]hose who [aided] the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime'(at [71]).

[32] His Honour then referred to a further category of derivative liability, that is, principals in the second degree. These were persons 'who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death [where the alleged offence involves homicide]'(at [71]).

[33] McHugh J then identified a further category that is applicable 'where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree'(at [72]). It is with this category that the directions in Tangye (see [29] above) were concerned. In the present case, the Crown alleged that the appellants fell within this category and were thus liable as principals in the first degree. They were not alleged to have been aiders and abettors and thus liable as principals in the second degree. Nevertheless as liability for being an aider and abettor can involve proof of encouragement (see authorities described below from [137] - [146]) and as liability arising out of a joint criminal enterprise requires proof of an arrangement or understanding to commit a crime which may be inferred from encouragement of another in the commission of a crime (see Tangye extract above at [29]), authorities concerned with the former category may be instructive in relation to the latter.

[34] I add that McHugh J observed in Osland in relation to the directions formulated in Tangye that '[i]n accordance with the New South Wales practice, the Court referred to 'carrying out a criminal enterprise' rather than acting in concert. The principles, however, are the same'(at [74]).

DNA Evidence

In Aytugrul [2010] NSW CCA 272 the Crown tendered DNA evidence seeking to link the accused to a murder. Expert evidence was led that that 99.9% of world population could be excluded as having the DNA profile in issue. The appellant submitted that DNA evidence expressed as exclusion percentages and as percentages of close to 100, was unfairly prejudicial and should have been rejected pursuant to s 135 or s 137 Evidence Act.

In dismissing the appeal Simpson J, (Fullerton J agreeing, McClellan CJ at CL dissenting) found there was nothing to suggest the evidence was unduly or unfairly prejudicial, or confusing or misleading nor had there been any deficiency in the directions. Simpson J further held at [196] that neither GK [2001] NSWCCA 413; 53 NSWLR 317 ('relative chance of paternity' evidence) nor Galli [2001] NSWCCA 504; 127 A Crim R 493 are authority for the proposition that 'exclusion percentage'evidence is never admissible, nor that such evidence must inevitably be excluded under either s 135 or s 137.

Conduct of Crown

In GDD [2010] NSWCCA 62 the appellant had been convicted of a sexual assault where it was alleged he physically overbore his sister's fianc*. In allowing the appeal both Simpson J and Grove J found errors made in the final address of the Crown Prosecutor to the jury were such that the conviction was unsafe. One error of particular concern was an invitation by the female Crown Prosecutor to the female members of the jury to use their own life experiences to appreciate how much stronger men are than women.

Per Grove J

[37] I would add a further comment, although it was not the subject of complaint, but I would have some reservation about the propriety of an invitation to a limited group of the jurors, designated by gender, to draw particular inferences in matters pertaining to their fact finding function. Of course, jurors bring their individual characteristics and experiences for use in their task but it is not the role of counsel to urge selective deliberation.

Per Simpson J

[107] To introduce notions of how members of the jury would feel in a particular situation, or to invite them to decide issues of contested fact on the basis of their own life experience - in to which was injected how the Crown prosecutor would feel - was to introduce false and misleading elements in the determination. There is a difference between inviting a jury to bring to bear its (collective) 'experience in life'in the assessment of witnesses, and evaluation of evidence, and inviting the jury to introduce its own factual experience. The former is traditional and acceptable, the latter is not.

...

[121] Counsel inviting juries to examine evidence from a particular point of view will need to exercise caution in expression. That is, in my opinion, a dangerously wrong approach. The question the jury has to decide is whether the participants behaved as they, or other witnesses, said they did. It is wrong to invite juries to determine contested factual issues on the basis of their assessment of how they would feel, how they would react, or what they would do. The task of the jury is to consider and determine the factual issues put before them. It is for the jury to decide whether the conduct did occur (if it is part of the Crown case) or may have occurred (if it is part of the defence case). In doing so the jury must put aside personal prejudices and opinions, and decide rationally, objectively, impartially and dispassionately whether the person in question did or did not behave as alleged. Not infrequently they are asked to consider alleged conduct that is entirely foreign, even alien, to their own experience, and conduct that many would regard as anathema, bizarre, unacceptable.

Sane and Insane Automatism

In Woodbridge [2010] NSW CCA 185 the court considered the difference between sane and insane automatism. On an appeal against convictions for manslaughter and aggravated driving causing grievous bodily harm the appellant argued the trial judge erred in refusing to leave the issue of sane automatism to the jury.

CONCLUSION

The Judicial Commission Statistics for the Court of Criminal Appeal for 2010 sentencing and crown appeals have not as yet been finalised. The statistics for 2000-2009 are set out below. What can be gleaned from the available statistics is that successful severity appeals reached a high point of 46% in 2004, and fell progressively to 34.2% in 2009. Conversely successful crown appeals reached a low point of 49.2% in 2003 and there has been an increase to 64.6% in 2009.

Severity appeals *


 

Year
Number of appeals
Appeals Allowed
Percentage %
2000
313
127
40.6
2001
344
138
40.1
2002
331
148
44.7
2003
272
109
40.1
2004
285
131
46.0
2005
318
141
44.3
2006
259
106
40.9
2007
243
95
39.1
2008
216
83
38.4
2009
228
78
34.2
2809
1156
41.2

Crown appeals *


 

Year
Number of appeals
Appeals Allowed
Percentage %
2000
84
42
50.0
2001
55
34
61.8
2002
80
49
61.3
2003
65
32
49.2
2004
101
52
51.5
2005
58
34
58.6
2006
76
47
61.8
2007
59
35
59.3
2008
62
32
51.6
2009
48
31
64.6
688
388
56.4

Notes
* Figures for 2000-2009 from JIRS: http://sis.judcom.nsw.gov.au/benchbks/sentencing/appeals.html
Appendix A

ss 54A-D Crimes (Sentencing Procedure) Act 1999



54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

54B Sentencing procedure

(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
(5) The failure of a court to comply with this section does not invalidate the sentence.

54C Court to give reasons if non-custodial sentence imposed

(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.
(2) The failure of a court to comply with this section does not invalidate the sentence.
(3) In this section:
non-custodial sentence means a sentence referred to in Division 3 of Part 2 or a fine.

54D Exclusions from Division

(1) This Division does not apply to the sentencing of an offender:
(a) to imprisonment for life or for any other indeterminate period, or
(b) to detention under the Mental Health (Forensic Provisions) Act 1990.
(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily.
(3) This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed.


Table Standard non-parole periods

Item No Offence Standard non-parole period
1A Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work 25 years
1B Murder—where the victim was a child under 18 years of age 25 years
1 Murder—in other cases 20 years
2 Section 26 of the Crimes Act 1900 (conspiracy to murder) 10 years
3 Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) 10 years
4 Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) 7 years
4A Section 35 (1) of the Crimes Act 1900 (reckless causing of grievous bodily harm in company) 5 years
4B Section 35 (2) of the Crimes Act 1900 (reckless causing of grievous bodily harm) 4 years
4C Section 35 (3) of the Crimes Act 1900 (reckless wounding in company) 4 years
4D Section 35 (4) of the Crimes Act 1900 (reckless wounding) 3 years
5 Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) 3 years
6 Section 60 (3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer) 5 years
7 Section 61I of the Crimes Act 1900 (sexual assault) 7 years
8 Section 61J of the Crimes Act 1900 (aggravated sexual assault) 10 years
9 Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) 15 years
9A Section 61M (1) of the Crimes Act 1900 (aggravated indecent assault) 5 years
9B Section 61M (2) of the Crimes Act 1900 (aggravated indecent assault) 8 years
10 Section 66A (1) or (2) of the Crimes Act 1900 (sexual intercourse—child under 10) 15 years
11 Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) 7 years
12 Section 112 (2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation) 5 years
13 Section 112 (3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation) 7 years
14 Section 154C (1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board) 3 years
15 Section 154C (2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation) 5 years
15A Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities) 4 years
15B Section 203E of the Crimes Act 1900 (bushfires) 5 years
15C Section 23 (2) of the Drug Misuse and Trafficking Act 1985 (cultivation, supply or possession of prohibited plants), being an offence that involves not less than the large commercial quantity (if any) specified for the prohibited plant concerned under that Act 10 years
16 Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and

(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

10 years
17 Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and

(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug

15 years
18 Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and

(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

10 years
19 Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and

(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug

15 years
20 Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms) 3 years
21 Section 51 (1A) or (2A) of the Firearms Act 1996 (unauthorised sale of prohibited firearm or pistol) 10 years
22 Section 51B of the Firearms Act 1996 (unauthorised sale of firearms on an ongoing basis) 10 years
23 Section 51D (2) of the Firearms Act 1996 (unauthorised possession of more than 3 firearms any one of which is a prohibited firearm or pistol) 10 years
24 Section 7 of the Weapons Prohibition Act 1998 (unauthorised possession or use of prohibited weapon)—where the offence is prosecuted on indictment 3 years

Appendix B

s 21A Crimes (Sentencing Procedure) Act 1999


21A Aggravating, mitigating and other factors in sentencing

(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.

(6) In this section:

child sexual offence means:

(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or
(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.

serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.

Annexure C

High Court Cases


 

In 2010, nine out of the 49 High Court judgements that were delivered focussed on the criminal law. As noted by Mirko Bargaric, there were two judgments with potentially far-reaching implications. In Dupas (2010) 241 CLR 237 the High Court established a high threshold for the granting of a permanent stay where there has been pre-trial publicity. In SA v Totani (2010) 271 ALR 662, where the invalidity of the SA anti-bikie legislation was confirmed, the Court applied and discussed the Kable doctrine. Two other important decisions, which canvassed the offence of conspiracy, LK (2010) 241 CLR 177 and Ansari (2010) 266 ALR 446 have potential implications for other areas of the (Cth)Criminal Code. In Pollock [2010] HCA 35 the Court gave a relatively liberal interpretation to the defence of provocation: see Mirko Bargaric, ' The High Court on Crime in 2010: Analysis and Jurisprudence'(2011) 35 Crim LJ 5.

1. Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465

(Appeal from NSW)

The High Court held the NSW CCA ( Hili [2010] NSWCCA 109) erred in stating that the 'snorm's for sentencing under the Commonwealth legislation is a non-parole period between 60 and 66%. Such a norm is not in the statute and there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should serve in prison.

The High Court also discussed principles in Commonwealth crown appeals. These principles were applied by the CCA in Nguyen & Nguyen [2010] NSWCCA 331. There is a distinction between the assertion by the crown of, on the one hand, error in the sentencing process that can be identified (e.g. acting on a wrong principle) and, on the other, error that cannot be identified but that emerges from consideration of 'all the matters that are relevant to fixing the sentence'( Hili at [60]). An assertion of manifest inadequacy is an assertion that the result was 'unreasonable or plainly unjust'( Dinsdale [2000] 202 CLR 321). The High Court also rejected the proposition that 'manifest error [in sentencing] is fundamentally intuitive'The CCA is required to consider all of the matters relevant to fixing sentence - in much the same way as a sentencing judge is required to do.

The Court considered the principle of consistency, stating that consistency between cases is found not in numerical equivalence but in the consistent application of relevant legal principles: at [48]-[50]. The Court also reiterated previous statements about the use of bare statistics in sentencing matters. Bare statistics are of little use without the whole of the circumstances as to why such sentences were passed: at [54]. In addition to facts and circumstances of the offences, and personal circumstances, a court ideally has sentences imposed in comparable cases, including, importantly, the reasons for those sentences: at [67].

2. The Queen v LK; The Queen v RK [2010] HCA 17; (2010) 241 CLR 177

(Appeal from NSW)

The High Court dismissed this Crown appeal. The respondents were charged with conspiracy to deal with $1 million being reckless to the fact that the money was the proceeds of crime (s 11.5 and s 400.3 Criminal Code(Cth)). The money was part of a larger $150 million fraud against the Commonwealth. RK had agreed, at LK's request, to allow money to be transferred to his Swiss account. The prosecution did not allege that the respondents were a party to, or had knowledge of, the larger fraud. At trial, the judge directed a verdict of acquittal on the basis that the charge was bad at, or unknown to, law. The Crown's appeal to the NSW CCA was dismissed: LK (2008) 192 A Crim R 456. The High Court held that a person cannot be found guilty of conspiracy under the Code unless s/he has knowledge of the facts that make the proposed act/s unlawful - in this case, that the funds were proceeds of crime.

3. Ansari v The Queen [2010] HCA 18; (2010) 266 ALR 446

(Appeal from NSW)

The High Court dismissed this appeal by affirming the conclusion of the NSW CCA that an indictment charging conspiracy to commit an offence, an element of which is recklessness, is not bad at law: Ansari [2007] 73 A Crim R 112. The charges against the appellants under s 11.5 Criminal Code(Cth) alleged that they conspired to deal with money where there was a risk that the money would become an instrument of crime and were reckless as to that risk. The Court said that under the Criminal Code, recklessness may be proved by intention or knowledge. Thus if the appellants intended that the agreed conduct would be carried out and had knowledge of the facts of the criminal conduct, then the offence the object of the conspiracy charge could have the fault element of recklessness. The Court also held that the NSW CCA did not err in its characterisation of the physical and fault elements of the offence of conspiracy under s 11.5 of the Code: referring to LK HCA 17, above.

4. Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

(Appeal from Victoria)

The High Court dismissed the applicant's appeal against the judgment of the Victorian Court of Appeal not to grant a permanent stay on the basis of prejudicial pre-publicity. The appellant was facing re-trial for murder. There was extensive media publicity of two previous murder convictions and the present charge. The appellant submitted that "the ubiquity and pervasiveness of the [his] reputation as a serial killer, is such that no fair trial can now be had." The Court said at [35] that in seeking to apply the relevant principle in Glennon (1992) 173 CLR 592, the question is not whether the case can be characterised as extreme, but whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR 75 at 111; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; Glennon (1992) 173 CLR 592 at 605. Extensive pre-trial publicity does not render a trial extreme per se and must be balanced with public interest in having the trial continue. In this case, possible prejudice from pre-trial publicity could be dealt with by appropriate directions.

5. South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662

(Appeal from South Australia)

The High Court dismissed an appeal by the State of South Australia against a decision of the Supreme Court of South Australia that s 14(1) of the Serious and Organised Crime (Control) Act2008(SA) (known as 'anti-bikie'legislation) was invalid. The High Court held that s 14(1) and a control order made under it were constitutionally invalid. Section 14(1) requires the Magistrates Court, on application by the Commissioner, to make a control order against a person if the Court is satisfied that the person is a member of a declared organisation. The Court held s 14(1) authorised the executive to 'enlist'the Magistrates Court in implementing decisions of the executive. This was incompatible with the Magistrates Court's institutional integrity: Kable v DPP (NSW) (1996) 189 CLR 51.

6. Dickson v The Queen [2010] HCA 30; (2010) 270 ALR 1

(Appeal from Victoria)

The appellant was convicted of conspiracy to steal under s 321(1) Crimes Act1958(Vic). He had conspired to steal cigarettes which had been seized and stored by Customs in a private warehouse. The Court found that as the cigarettes were in the possession of Customs they were property belonging to the Commonwealth. As a result, the theft provision in s 131.1 of the Criminal Code(Cth) applied and the conspiracy provision in s 11.5 could attach to it. The Court held that the Victorian Law was invalid to the extent it was inconsistent with the Commonwealth offence. The Victorian offence of conspiracy was defined more widely than the Commonwealth offence and imposed greater obligations. The Court allowed the appellant's appeal.

7. Hogan v Hinch [2011] HCA 4

(Appeal from Victoria)

The applicant was charged with breaching Serious Sex Offenders Monitoring Act2005 (Vic) s 42 when he publically identified two sexual offenders protected udner the legislation. In the High Court the applicant sought to challenge the constiututional validity of s 42 on the basis that:

1. impermissibly conferes upon the courts to which it applies a function which distorts their institutional integrity contrary to the implied requirements of Ch III of the Constitution;
2. was contrary to an implication in Ch III of the Constitution that all State and federal courts must be open to the public and carry out their activities in public; and
3. infringed the implied freedom of political communication by inhibiting the ability:
(a) to criticise legislation and its application in the courts; and
(b) to seek legislative and constitutional changes and changes in court practice by public assembly and protest, and the dissemination of factual data concerning court proceedings

The court dismissed the appeal.

Other Cases

Judgments Reserved

Wainohu v State of NSW ; 2.12.2010 - Appeal from NSW

Constitutional Law - Validity of the Crimes (Criminal Organisations Control) Act2009 (NSW) which came into force on 3.4.09 ('motorcycle gang'legislation) - Whether the Act or any provision invalid on the ground that it undermines the institutional integrity of the Supreme Court of NSW - Whether Act is outside the legislative powers of the Parliament of NSW.

SKA v R ; 9.11.2010 - Appeal from NSW

Verdict unreasonable or insupportable having regard to evidence — Test to be applied —Where appellate court had videotape of interview of complainant played at trial — Where appellate court did not view videotaped evidence — Whether appellate court erred in application of test by not viewing videotaped evidence - Opinion of trial judge — Where inconsistencies in complainant's evidence — Where trial judge said 'impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt'— Whether appellate court erred in making no reference to opinion of trial judge.

Momcilovic v The Queen ; 3.9.2010 - Appeal from Victoria

Where person deemed to be in possession of drugs 'upon any land or premises'occupied by person, unless person satisfies court to the contrary: Drugs, Poisons and Controlled Substances Act1981 (Vic) s 5 — Whether s 5 creates legal onus on accused to disprove possession on balance of probabilities or evidential onus to show that s/he was not in possession - Drugs found in applicant's home — Where applicant and her partner gave evidence that drugs were her partner's and applicant had no knowledge — Whether jury should have been directed that prosecution must prove applicant's knowledge of drugs in order to prove possession — Statutory reversal of burden of proof of possession of drugs.

Lacey v The Attorney-General of Queensland ; 30.11.2010 - Appeal from Queensland

Principles regarding Crown appeals — House (1936) 55 CLR 499 — Whether s 669A Criminal Code1889(Qld) requires error by sentencing court — Whether inclusion of words 'unfettered discretion'in s 669A removes requirement for error on by sentencing court before appellate court can substitute an alternative sentence.

Special Leave granted

Cth DPP v Poniatowska ; 12.11.2010 - Appeal from South Australia

Obtain financial advantage from Commonwealth, knowing of lack of entitlement: s 135.2 Criminal Code1995 (Cth) — Respondent fails to declare $71,000 in commission payments while receiving Centrelink payments — Whether omitting to perform act a physical element of offence — Whether existence of legal duty or obligation to perform act, imposed by offence provision or other Commonwealth statute, determinative of question of physical element —'engages in conduct'.

White v DPP (WA); Bowers v DPP (WA) ; 21.10.2010 - Appeal from WA

Confiscation of proceeds of crime — Restraining or freezing order — Applicants did not own and have effective control of property where offences committed — Freezing orders made over applicants' property in place of property where offences took place: Criminal Property Confiscation Act2000 (WA) s 22 — Whether property where offences took place was 'crime-used'property as defined by s 146

R v Muldrock 11.3.2011 - Appeal from NSWCCA

Construction and application of s 54A Crimes (Sentencing Procedure) Act1999 standard non-parole provisions - whether provisions only apply where offence found to be in mid-range - whether provisions apply where offence found to be below mid-range - whether finding under Way that standard non-parole period still a benchmark where offence below mid-range inconsistent with legislation


Annexure D

Legislation 2010


1. Criminal Procedure Amendment (Case Management) Act 2009

Commenced 1.2.2010 - amendments apply to proceedings on indictment where the indictment was presented or filed on or after 1 February 2010: Sch 2 Pt 19.

This Act is designed to make the trial process more efficient.

The Criminal Procedure Act 1986 was amended as follows:

(a) new provisions replaced Chapter 3, Part 3, Division 3 (previously 'pre-trial disclosure in complex trials') with further provisions providing for improved case management of all matters to reduce delays in proceedings on indictment, pre-trial disclosure, pre-trial hearings and pre-trial conferences;

(b) extended s 130A to all proceedings on indictment and to orders whether or not they are pre-trial orders (previously, s 130A provided for pre-trial orders by Judges in sexual offence proceedings to be binding on trial Judges, except in certain circumstances).

At the first court mention, the Court is to give directions as to notice and future conduct of the trial: s 136. The Court has a discretion to determine which (if any) of the measures may be suitable in particular proceedings: s 134(2). But the Court may also waive any disclosure requirements: s 148. The Supreme Court and District Court have each issued practice notes as to standard directions where a Court does not make a direction under s 136 or waives the requirement to do so: Supreme Court Practice Note SC CL 2; District Court Practice Note9.

The prosecution must give notice of its case to the accused that includes matters such as a copy of the indictment, statement of facts and copies of witness statements and exhibits: s 137. The defence must give notice of its response including matters such as notice of alibi or notice of consent under s 90 Evidence Act (Discretion to exclude admissions): s 138. A Court may direct the parties to attend a pre-trial hearing and may make such orders it thinks appropriate for the conduct of the trial: s 139. Direction for a pre-trial conference may be made, the purpose of which is to determine whether the parties are able to reach agreement as the evidence to be admitted at trial: s 140.

The Court may make an order for pre-trial disclosure by both the prosecution and defence: s 141. The prosecution must include in its pre-trial disclosure notice such matters as those matters included in its s 137 notice and copies of documents that could reasonably be considered adverse to the credibility or credit of the accused: s 142. The defence pre-trial disclosure notice must include certain matters such as those matters included in a s 138 notice, whether the prosecution statement of facts is agreed to or disputed and whether it is proposed to call expert evidence. The Court may refuse to admit evidence not disclosed in accordance with pre-trial disclosure orders and to exclude expert evidence where a copy of such report was not provided to the other party in accordance with those orders: s 146.

The form of notices, how notices may be delivered and the types of material that should and should not be provided are set out in ss 149 - 149D.

2. Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010

Commenced 1.10.2010

The Act amended the Crimes (Sentencing Procedure) Act 1999 by abolishing periodic detention and introducing the 'intensive correction order'(ICO) as a community-based sentencing option. The Act was based on recommendations by the Sentencing Council in its 2007 report 'Review of Periodic Detention.' The ICO aims to reduce an offender's risk of reoffending through the provision of intensive rehabilitation and supervision in the community. An ICO is a sentence of imprisonment of up to two years ordered to be served in the community, where offenders can be subject to a range of stringent conditions, such as 24-hour monitoring, regular community work, and educational and rehabilitative activities.

A Court that has sentenced an offender to imprisonment for not more than 2 years may make an ICO: s 7. An ICO cannot be made for prescribed sexual offences: s 66. An ICO cannot be made unless the Court is satisfied the offender is above 18, is a suitable person for an ICO, that it is appropriate in all the circumstances to make such an order, and the offender has signed an undertaking to comply with the ICO: s67. Before a court can make an ICO, a suitability assessment must be made by Corrective Services. Provision for referral and assessment of suitability are in ss 69-70.

Part 3 of the Crimes (Administration of Sentences) Act 1999 deals with the general obligations of offenders, permission for non-compliance with work or reporting requirements, and breaches of intensive correction orders. Corrective Services conducts suitability assessments, supervises offenders, undertakes worksite and home visits, conducts drug and alcohol testing and checks on compliance. The Parole Authority has powers and functions in relation to the suspension, revocation and reinstatement of an ICO.

3. Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009

Commenced 22.2.2010

The Act streamlines the fraud and forgery offences. The Act amended the Crimes Act 1900 as follows:

(a) repealing a number of fraud and forgery provisions and introducing new modernised offences: ss192B-H

(b) creating new offences relating to identity crime: ss192J-L.

The new offences are modelled on the Model Criminal Code and the Criminal Code (Cth).

Fraud offences - Part 4A

'Dishonest'means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to such standards: s 4B. This follows the definition in the Criminal Code (Cth) and as adopted by the Model Criminal Code. 'Deception'; "Obtain a financial advantage" and "cause a financial disadvantage"; 'obtains property'and 'property belongs'are defined: ss 192B-D.

The new offences are:

. by any deception, to dishonestly obtain property belonging to another or obtain any financial advantage or cause any financial disadvantage. Maximum penalty 10 years imprisonment: s 192E.

. intention to defraud by destroying or concealing accounting record. Maximum penalty 5 years imprisonment: s 192F.

. intention to defraud by false or misleading statement. Maximum penalty 5 years imprisonment: s 192G.

. intention to deceive members or creditors by false or misleading statement by an officer of an organisation. Maximum penalty 7 years imprisonment: s 192H.

Identity crime offences - Part 4AB

In response to the rising incidence of identity-type crimes the new identity fraud offences are:

. dealing with identification information with the intention to commit or facilitate the commission of an indictable offence. Maximum penalty 10 years imprisonment: s 192J.

. possess dentification information with the intention to commit or facilitate the commission of an indictable offence. Maximum penalty 7 years imprisonment: s 192K.

. possess equipment to make identification documents or things. Maximum penalty 3 years imprisonment: 192L.

Forgery offences - Part 5A

The new offences are:

. to make a false document (Forgery). Maximum penalty 10 years imprisonment: s 253.

. to use a false document. Maximum penalty 10 years imprisonment: s 254.

. to possess a false document. Maximum penalty 10 years imprisonment: s 255.

. to make or possess equipment etc for making false documents knowing that it is so designed or adapted and with the intention to use it to commit forgery. Maximum penalty 10 years imprisonment: s 256(1).

. to make or possess, without reasonable excuse, any equipment etc designed for the making of a false document, knowing that it is so designed. Maximum penalty 3 years imprisonment: s 256(2).

. to possess any equipment etc capable of being used to make a false document, intending that the person or another person will use the equipment, material or other thing to commit forgery. Maximum penalty 3 years imprisonment: s 256(3).

4. Crimes (Forensic Procedures) Amendment Act 2009

Commenced 17.5.2010

A new Part 8A has been inserted into the Crimes (Forensic Procedures) Act 2000 to allow for the carrying out of forensic procedures on children under 10 years old. A Magistrate may only make such an order for the limited purposes of investigating an offence, assisting in locating or identifying a missing person; or assisting in identifying a deceased person: s 81F(1). A Magistrate must take into account certain matters including the child's age, the child's best interests, the child's understanding and the purpose for which the procedure is required: s 81F(2). Further provisions relate to the informed consent of parents and guardians: s81C, and to the retention and destruction of forensic material: ss 81G-N.

5. Crimes Amendment (Child Pornography and Abuse Material) Act 2010

Commenced 17.9.2010

(i) Amendments to the Crimes Act 1900

Designed was to make the law more consistent with Commonwealth offences.

New terminology and definition of 'child abuse material.'

'Child pornography'is now called 'child abuse material.'Section 91FB, modelled on Commonwealth provisions, extends to a wider range of 'child abuse material', including material that depicts or describes the private parts of a child. Child abuse material is defined as material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose

or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged

or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be a child.

Defence that material produced for child protection, scientific, medical, legal, artistic or other public benefit purposes removed.

The existing offence of producing, disseminating or possessing child pornography is retained in s 91H. However, it is no longer a defence to that offence that the material concerned was produced, used or intended to be used by the defendant acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose. Instead, s 91FB sets out the factors to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive. These factors include literary, artistic, educational or journalistic merit.

Defences

Section 91HA contains similar defences to those available under Commonwealth law:

the defendant's conduct was of public benefit (e.g. conduct necessary for enforcing or administering the law)

the defendant was a law enforcement officer acting in the course of duties,

the defendant's conduct was necessary for scientific, medical or educational research approved by the Attorney General.

It is still a defence for the offence of producing, disseminating or possessing child abuse material that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed child abuse material: s 91HA(1).

Data defined

Section 91FA defines 'data' so that possession of child abuse material includes possession of a computer or data storage device holding or containing the data.

(i) Amendments to the Criminal Procedure Act 1986

Random sample evidence

Section 289B of the Criminal Procedure Act 1986 provides for the use of random sample evidence in child abuse proceedings to limit exposure of police, court staff, lawyers and juries to the sometimes large volumes of offensive material. An authorised analyst may conduct an examination of a random sample of the child abuse material the subject of the proceedings. The prosecution may adduce evidence of the analyst's findings. This evidence may be admissible as evidence of the nature and content of the whole of the material from which the random sample was taken. A court may thus find that any type of child abuse material present in a particular proportion in the random sample of the material is present in the same proportion in all of the material.

Extension of protections afforded to complainants in sexual offence cases

Under s 294D Criminal Procedure Act, the special arrangements that apply to the giving of evidence by complainants in sexual offence cases (eg in camera evidence, CCTV) has been extended to sexual offence witnesses. A sexual offence witness is a witness (other than the complainant) against whom it is alleged that the accused has committed a sexual offence (not being the sexual offence that is the subject of the proceedings).

6. Crimes Amendment (Police Pursuits) Act 2010

Commenced 18.3.2010

The Act created a new indictable offence of failing to stop a vehicle and driving the vehicle recklessly, or at a speed or in a manner dangerous to others, after becoming aware that police officers are in pursuit of the vehicle: s 51B Crimes Act 1900. Section 51B provides that it is an offence if a driver:


(a) knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle;

(b) does not stop the vehicle and

(c) then drives the vehicle recklessly or at a speed or in a manner dangerous to others.


The maximum penalty in the case of a first offence is 3 years imprisonment. In the case of a second or subsequent offence the penalty is 5 years imprisonment.

7. Courts and Crimes Legislation Amendment Act 2010

Commenced 1.11.2010

The Act amended the Criminal Procedure Act 1986 to extend the circumstances in which an alleged victim of an 'offence involving violence'is not required to attend committal hearings. An alleged victim of an offence involving violence cannot be directed to attend committal proceedings where the victim has made a written statement, unless the Magistrate is satisfied there are special reasons why the victim should give oral evidence: s 93 Criminal Procedure Act1986. 'Offence involving violence's is defined in s 94. A new s 94(1)(f) extends the definition of 'offence involving violence' so that it includes an offence the elements of which include the commission of, or intention to commit, any offence that is already defined as an offence involving violence.

8. Courts and Crimes Legislation Further Amendment Act 2010

Commenced various times.

The various amendments include:

Crimes Act 1900

Insertion of new offence s44. The new offence replaces and modernises the current offence of not providing any wife etc with necessities where a person is legally liable to do so and which endangers the life of, or causes serious injury to that person (Commenced 7.12.2010).

Criminal Procedure Act 1986 :

Sexual assault communications privilege - amendments commenced 7.12.2010 and extend to proceedings commenced but not completed before the commencement of those amendments although this does not affect anything done in the proceedings prior to those amendments

Section 249D - definition of a "sexual offence witness" in s 249D, being a witness other than the complainant (ie. a tendency witness), is amended to apply to witnesses against whom the accused person is alleged to have committed a prescribed sexual offence if they occurred in NSW at the time of the commencement of proceedings. The amendment extends 'communications privilege' to witnesses who were the victim of sexual misconduct that did not constitute an offence at the time but is now an offence, and witnesses subject to sexual misconduct that allegedly occurred interstate or overseas.

Section 295 Sexual Assault Communications Privilege - definition of 'criminal proceedings'is amended to include pre-trial and interlocutory proceedings. 'Sexual assault offence'is amended to include acts that would constitute a prescribed sexual offence if those acts: (i) had occurred in this State, or (ii) had occurred at some later date, or (iii) had both occurred in this State and occurred at some later date.

Sections 297-299: Procedures - replaced. The new provisions extend to a protected confider who is not a witness or a party to the proceedings. This includes making provision for notice to be given to such person where there is an application to tender in evidence a document or evidence containing a protected confidence. When determining whether to grant leave a Court must now take into account a number of factors including that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship and that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. The court is also able to permit a confidential statement to be made to it by or on behalf of the principal protected confider (the victim) by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. The court must not disclose a confidential statement to a party other than the victim. (The amendments do not apply to proceedings commenced prior to the commencement of the amendments - commenced 7.12.2010).

Sections ss 132 and 132A - Trial by Judge Alone - both the accused and the prosecutor may apply to the court for an order that the accused be tried by judge alone. The order must be made if both agree but cannot be made if the accused does not agree. If the prosecutor does not agree, the court may make an order if it considers it to be in the interests of justice. The court must not make an order unless satisfied that the accused has obtained legal advice about the effect of the order. Despite these provisions, the court may make an order if there is a substantial risk of jury tampering offences occurring and there is no other way of reasonably mitigating that risk. A new s132A provides for the time within which applications for orders must be made (not less than 28 days before the date fixed for trial) and applications in joint trials. (Amendments apply to criminal proceedings that commenced on or after the commencement of the amendments - amendments commenced 14.1.2011.)

Section 56(3) - Committal proceedings to be heard in open court - allows certain aspects of committal proceedings to be conducted in the absence of the public, but only for the purpose of facilitating the use of an electronic case management system in proceedings under the Electronic Transactions Act 2000. (Amendment applies to committal proceedings instituted on or after the commencement of the amendment - amendment commenced 7.12.2010.)

Criminal Appeal Act 1912

The amendment is related to the sexual assault communications privilege amendments to the Criminal Procedure Act, above. A new s 5F(3AA) allows other parties to appeal against a decision that a document or evidence does not contain a protected confidence. (Applies to proceedings commenced but not completed at time of amendment - amendment commenced 7.12.2010).

9. Evidence Amendment Act 2010

Commenced 14.1.2011

Mutual recognition of certificates relating to privilege against self-incrimination - ss.128, 128A - Sections amended to provide for the recognition in NSW courts of 'certificates of self-incrimination certificates' issued under the provision of another State or Territory (as prescribed in the Regulations).

Unavailability of witnesses - clause 4 Dictionary Definition - Substituted to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.

10. Graffiti Control Amendment Act 2009

Commenced 3.5.2010

A new Part 3A in the Graffiti Control Act 2008 allows a court when imposing a fine to order the offender to perform community service clean up work to satisfy the amount of the fine. Community clean up work is any community service work under the Children (Community Service Orders) Act 1987 or the Crimes (Administration of Sentences) Act 1999 approved by the applicable Minister: s 9C. An offender must be a suitable person for community clean up work and, if a child, must be sufficiently mature to perform the work, and work must be available in the area where the offender lives: s 9D.

Written notice of the order must be given to the offender and the relevant Department and, where appropriate, to the Children's Court: s 9E. A Court must explain the requirements of the order, the consequences of not complying and that the fine may be paid instead of performing the work: s 9F. One hour of clean up work equals $30 of the total fine: s 9G. An order may be revoked in certain cases, for example, where the offender fails to attend for work within 3 months of the order: ss91K-L.

The Act also inserted new offences:

s8A - to supply a spray paint can to a person under the age of 18 years. Maximum penalty $1100. It is a defence that the person charged believed on reasonable grounds that the recipient intended to use the spray can in a lawful situation listed in s 8A(2)-(3): s 8A.

s 8B -being a person under 18 in possession of a spray paint can in a public place. Maximum penalty $1100 or 6 months imprisonment. A court must not sentence a person to imprisonment for this offence unless the person has been convicted of numerous offences and the court 'is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again": s 8B(5).

11. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Prohibition) Act 2010 (CTH)

Commenced 14.4.2010

The Death Penalty Abolition Act1973 (Cth) amended to extend the prohibition on the death penalty state laws so that the death penalty cannot be introduced anywhere in Australia: ss3(3), (4).

New torture offence inserted into s 274 Criminal Code1995.


 


12. Crimes (Sentencing Procedure) Amendment Act 2010

Commenced 14.3.2011

Aggregate sentences

The main amendments are to the Crimes (Sentencing Procedure) Act 1999 to allow for an aggregate sentencing scheme. The aim is to remove some of the complexity involved when sentencing offenders for multiple offences.

s 53A allows a court, when sentencing an offender for more than one offence, to impose an aggregate sentence of imprisonment instead of imposing a separate sentence of imprisonment for each.

s 49(2) provides that the term of an aggregate sentence of imprisonment must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates. It must not be less than the shortest term of imprisonment that must be imposed for any separate offence; or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences.

s 44(2A)-(2B): a court that imposes an aggregate sentence of imprisonment in respect of 2 or more offences may set one non-parole period for all the offences after setting the term of the sentence. The term of the sentence that will remain to be served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances.

Guilty Pleas

Section 22 requires a court to take a guilty plea into account in passing sentence for an offence and allows a lesser penalty to be imposed.

s 22(1) (c) requires a court to take into account the circumstances in which an offender indicated an intention to plead guilty in passing sentence. I

s 22(1A) requires that any lesser penalty imposed by the court must not be unreasonably disproportionate to the nature and circumstances of the offence.

Annexure E

Supreme Court Cases


 

Admissions

Evidence of an admission is not admissible unless recorded and the prosecution establishes a 'reasonable excuse'as to why a recording is not made. 'Reasonable excuse'includes a 'refusal'by the person being questioned to have the interview recorded: s 281 Criminal Procedure Act 1986. In Armstrong [2010] NSWSC 483 (Buddin J) the accused spoke with a police officer 'off the record' and made an admission. The accused then declined to be videotaped or sign any document until he had spoken to his solicitor. The police officer had recording equipment available but had not ascertained at the start of the discussion whether the accused was willing to be videotaped. Buddin J held the Crown failed to establish under s.281 that the accused had 'refused'to have the questioning recorded and therefore the Crown had not established a 'reasonable excuse'.

Adjournment where brief not served in time

In DPP (NSW) v Fungavaka [2010] NSWSC 917 (Hidden J) the Magistrate dismissed the charge against F because the brief had not been served in time. The prosecution's application for an adjournment was dismissed, the reason being that the Magistrate was not satisfied with the explanation for the failure to serve the brief by the date required. Hidden J upheld the DPP's appeal saying that although service of a brief in time is a central consideration, the interests of justice would have been best served by granting the prosecution an adjournment. The Magistrate had based his decision solely upon the failure of the police to serve the brief in time, and did not weigh the competing policy considerations bearing upon the exercise of his discretion: at [41]. See ss 183, 187 Criminal Procedure Act1986.

Police power to require person to disclose identity

Section 11 of the Law Enforcement (Powers and Responsibilities) Act2002 states that a police officer may request a person to disclose his identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged offence occurred. It is an offence to fail to comply with a request made under s 11 without reasonable excuse: s 12.

In DPP (NSW) v Horwood [2010] NSWSC 1447 (Fullerton J), in response to an incident at a hotel, a police officer asked H for his name but H refused. H asked if he was under arrest and the officer told him that he was not. The officer told H he believed that H was present when the incident occurred, that he was required by law to provide his name and that he would be committing an offence if he refused. H refused and was arrested. The magistrate dismissed the charge brought against H because H was a suspect and was exercising his common law right to silence. Allowing the DPP appeal, Fullerton J held that unless and until a person who police believe was present when an indictable offence is committed is arrested and charged, that person, even if regarded as a suspect, is obliged to provide their identification details if requested by an officer who believes that the person may be able to assist police in their investigation. If the person refuses, otherwise than on reasonable grounds, they are liable to be convicted of an offence against s 12.