Legal Research

Short Notes 1998

 
1

BARSKY, Peter Leopoldo - CCA, 12.12.97
Sentence appeal.
Import commercial quantity cocaine (s.233B(1)(b) Customs Act 1901 - max life).
4.233 kgs cocaine, 3.133 kgs pure - wholesale value $507,000, street value $846,000.
Sentenced to 10y with 7*y NPP backdated to date of arrest.
Appellant foreign national who arrived at Sydney on flight from Venezuela via Buenos Aires. Baggage included windsurfer which contained cocaine. Agreed to participate in controlled delivery which led to arrest of co-offender, who was previously unknown to Australian Federal Police. Declined to wear body wire during delivery, declined to give statement to police of what was said, declined to give evidence against co-offender who pleaded not guilty. Applicant anticipated payment of US$40,000 for his role. Readily admitted guilt.
Submitted NPP excessive.
Appeal allowed: resentenced to 10y with 6y NPP.
2

CORNER, John Stewart - CCA, 19.12.97
Crown appeal.
Corporate crime - 2 charges under s.229(4) and 1 charge under s.564(1) Companies (NSW) Code. Charges under s.229(4) were in respect of improper use respondent made of position as officer of 2 companies; charge under s.564(1) related to respondent as officer of company making available certain information to auditor of company's holding company which omitted matter which made information misleading in a material respect.
Sentenced to 18m PD with fine of $23,000.
General and specific deterrence - relevance of good character - lateness of guilty plea - remorse - considerations whether failure to impose custodial sentence demonstrates error.
Appeal allowed: resentenced to concurrent FT of 6m on each offence.
3

CRISOLOGO, Antonio - CCA 12.12.97 - 99 A Crim R 178
Conviction appeal & Crown appeal.
2 x sexual intercourse without consent (s.61I Crimes Act 1900). First count alleged cunnilingus & jury returned verdict of not guilty; convicted on second count which was allegation of penile/vaginal intercourse.
3y PD.
Consequences of CCA finding compromise or inconsistent verdicts - directions - admissibility of out of court statements by accused person.
Conviction appeal allowed.
4

GUTHRIE, Barry - CCA, 10.12.97
Conviction and sentence appeal.
Number of counts charging indecent assault & sexual intercourse without consent upon stepdaughter.
MT 4y, AT 3y.
No special point of principle.
Appeal dismissed.
5

EVANS, William - CCA, 11.12.97
Conviction appeal.
Imposition upon Commonwealth (s.29B Crimes Act 1914 (Cth).
12m PD.
Whilst in receipt of service pension & related benefits, appellant concealed from Department of Veteran Affairs the fact that he was employed as casual teacher by the NSW Department of School Education & was in receipt of substantial income which affected his pension & benefit entitlements.
Whether, in certain circumstances, silence can amount to an untrue representation.
Appeal dismissed.
6

LAWSON, Adam Carl - CCA, 12.12.97 - 98 A Crim R 463
WU
, Lui Ming
THAPA, Krishna Kumar
Crown appeal.
Lawson & Thapa: Import not less than trafficable quantity heroin - guilty pleas - each sentenced to 3*y with 2y NPP.
Wu: Knowingly concerned in importation of not less than trafficable quantity heroin - guilty plea - sentenced to 9y with 6y NPP.
(Max penalty on each offence 25y & fine not exceeding $100,000.)
Lawson & Thapa couriers each aged only 18 - avoidance of tiered process of sentencing - tariff of sentences for drug couriers in R v Ferrer-Essis (1991) 55 A Crim R 231 - youth of couriers, relevance and weight.
Lawson & Thapa: appeals allowed; each resentenced to 6y with 3*y NPP.
Wu: appeal dismissed.
7

CHURCH, Sharon Marie - CCA, 9.12.97
Sentence appeal.
Armed robbery.
MT 1*y, AT 2y.
Period of 17 days during which applicant had been denied bail taken into account.
Robbery with boyfriend - heroin addicts - guilty plea - first offence - held up jewellery store - rifle - pawned goods for $20,000 - full co-operation with authorities.
Appeal dismissed.
8

LOMMAHADTHAI, Krong - CCA, 11.12.97
Sentence appeal.
3 x knowingly concerned in importation of heroin.
13y with 9*y NPP.
Guilty plea - involved in organisational & entrepreneurial basis - 3 co-offenders.
Submitted that NPP excessive.
Appeal dismissed.
9

ROWE, Paul - CCA, 10.12.97
Conviction and sentence appeal.
Malicious wounding.
MT 1y 355d, AT 1y 10d.
Victim security officer at tavern - claim of self-defence rejected.
No special point of principle.
Appeal dismissed.
10

TOO, Moses Bo - CCA, 17.12.97
Conviction appeal.
Murder.
MT 13*y, AT 4*y.
Self-defence - appellant threatened to rape victim's wife - victim responded to wife's call for help & threatened appellant with bottle - appellant stabbed victim.
No viable case of self-defence.
Zecevic v DPP (1987) 162 CLR 645 applied.
Appeal dismissed.
11

McCAULEY, Brian Michael - CCA, 17.12.97
Application for extension of time to appeal against sentence.
Possess commercial quantity heroin.
Quantity involved in relation to 3 co-offenders was 21.5 kg gross, equivalent to 14.9 kg pure. Applicant took delivery from 3 co-offenders of 14.3 kg (9.7 kg pure). Max penalty life.
14y with 9y NPP.
Future co-operation & undertakings taken into account - 12m pre-sentence custody taken into account.
Guilty plea followed sentence indication.
Submitted sentence unduly severe & lacks parity with those passed on co-accused.
Application for extension of time dismissed.
12

T, J. - CCA, 18.12.97
Conviction appeal.
12 x sexual offences committed against 2 complainants (both sisters & both nieces of appellant - 4 x act of indecency; 6 x sexual intercourse without consent; 2 x assault with act of indecency).
No evidence led at trial in support of one count - verdicts of not guilty on 4 counts, verdicts of guilty on remaining 7 counts.
Original complaints in 1985 not proceeded with - complaints revived in 1996 - unexplained differences between allegations made in 1985 & those made in 1996 - absence of corroboration - untruths.
Unsafe or unsatisfactory. M v The Queen (1994) 181 CLR 487; VRJ v The Queen (unreported, HC, 2.12.97) applied.
Appeal allowed: verdicts, convictions & sentences in respect of counts 1, 3, 8, 9, 10, 11 & 12 quashed, judgement of acquittal entered.
13

T, J.J. - CCA, 3.12.97
Conviction appeal.
4 x sexual assault.
MT 18m, AT 6m.
Acquitted on 3 charges and convicted on one.
Alleged inconsistency.
Held differences in verdicts explicable on a rational basis.
McKenzie v The Queen (1996) 71 ALJR 91 applied.
Appeal dismissed.
14

MACRAILD, Cameron Francis - CCA, 18.12.97
Conviction appeal.
Supply cannabis - 'deemed supply'.
Evidence of conversations between undercover police & alleged co-offenders - accused not present at nor referred to by name in conversations - whether hearsay - admissibility - prejudice to accused - discretion to exclude - Evidence Act 1995 ss.59, 60, 87, 135, 137, 165.
Crown entitled to lead evidence to show actual supply - Drugs Misuse & Trafficking Act 1985 ss.25(1), 29.
R v Dodd (1991) 56 A Crim R 451; R v Carey (1990) 50 A Crim R 163; Ahern v The Queen (1988) 165 CLR 87; Tripodi v The Queen (1961) 104 CLR 1 referred to.
Appeal dismissed.
15

NGUYEN, Toan Van - CCA, 18.12.97
Conviction appeal.
Knowingly concerned in importation of trafficable quantity heroin.
Parcel which arrived at Sydney Airport from Singapore found to contain 328 grams heroin secreted in coffee jar. Parcel repacked with substituted material and delivered.
8y with 5y NPP.
Crown case circumstantial - in the particular circumstances trial judge not required to give Peacock direction ( Peacock v The King (1911) 13 CLR 619) - issues sufficiently identified - no miscarriage of justice - verdict not unsafe or unsatisfactory.
Appeal dismissed.
16

PAPAKOSMAS, Christos - CCA, 10.12.97
Conviction appeal.
Sexual intercourse without consent.
MT 3y, AT 1y.
Admissibility of evidence of complaint pursuant to Evidence Act 1995 ss.66, 108(3)(b) - not limited (s.136) - alleged inconsistencies in evidence properly referred to by trial judge - not unsafe or unsatisfactory - fresh evidence - no significant possibility that jury acting reasonably would have acquitted appellant because of this evidence.
Appeal dismissed.
17

PAVY, Errol Peter - CCA, 9.12.97 - 98 A Crim R 396
Application for certificate under the NSW Costs in Criminal Cases Act (1967) following successful appeal from conviction for murder.
Whether institution of prosecution reasonable.
Held, granting certificate pursuant to Costs in Criminal Cases Act 1967 s.2:
(i) The mere fact that conviction set aside as unsafe & unsatisfactory does not necessarily mean it was unreasonable to institute proceedings;
(ii) It was unreasonable to institute prosecution in circumstances where medical evidence available to Crown not capable of excluding reasonable possibility that applicant shaking baby was not the cause of death.
18

SPEDDING, Andrew Douglas - CCA, 11.12.97
Conviction and sentence appeal.
Murder (co-accused acquitted).
MT 11y, AT 4y.
Principal evidence against both was that of an accomplice. Argued that inadequate accomplice warnings were given & that failure to accept accomplice's evidence against co-accused rendered the conviction of the appellant unsafe.
Held adequate accomplice warnings given - conviction not unsafe.
Appeal dismissed.
19

WARD, Mark Anthony - CCA, 3.12.97
Sentence appeal.
1 x aggravated B & E (victim stabbed & left incarcerated in cupboard - max 25y); 1 x attempt robbery whilst armed (max 20y).
54 offences on a Form 2 taken into account in sentencing, comprising 43 x BE&S, 2 x B&E with intent, 9 x larceny, 1 x enter enclosed land.
MT 12y, AT 3y.
Appellant 26y at time of sentencing - extensive criminal history involving offences of dishonesty, some drug matters, serious driving matters and assault.
Appeal dismissed.
20

WHYTE, Gregory John - CCA, 8.12.97
Sentence appeal.
3 x aggravated dangerous drive occasioning GBH.
MT 12m, AT 4m.
Omission to seek consideration of home detention.
Remitted to District Court for consideration.
21

WILSON, Thomas Hudson - CCA, 18.12.97
Conviction and sentence appeal.
Maliciously inflict GBH with intent to do GBH.
MT 14y, AT 4y 8m.
Young woman attacked in home by male intruder armed with a pinch bar - unprovoked and vicious attack - bruising, lacerations, broken bones.
Identification evidence; sufficiency of visual identification of assailant who was wearing balaclava that left central area of face exposed - sufficiency of subsequent video identification - sufficiency of directions.
Appeal dismissed.
22

LETHLEAN, Neil Joseph - CCA, 19.12.97
Crown appeal.
Application for extension of time to appeal against conviction.
Intent to obtain financial advantage by false publication.
Recognizance in the sum of $1,000 to be of good behaviour for 3y.
Abuse of senior position - deterrence of 'rorting'.
Crown appeal allowed: pursuant to s.12(2) Criminal Appeal Act, issues identified by s.5(1)(b) Periodic Detention of Prisoners Act 1981 remitted to Smart J as single judge of Supreme Court to determine. In event of not being satisfied as to such issues, he is to be at liberty to make orders implementing sentence of 2y PD; in the event of any difficulty arising or Smart J not being so satisfied, he is to return the matter to the CCA.
Application for extension of time refused.
23

FORSYTH, David John - CCA, 19.12.97
Conviction appeal.
1 x sexual intercourse with child aged between 10 & 16y.
This charge involved a single act of fellatio upon a boy aged 10 or 11y and who was aged 12 when he gave evidence at trial. Only witnesses at trial were complainant, appellant and police officer.
Refusal by trial judge to discharge jury - exceptional circumstances - possible influence on deliberations by jurors of media coverage of matters close to subject matter of trial.
Appeal allowed: new trial ordered.
24

HOWLAND, John Robert - CCA, 18.12.97
Sentence appeal. (See also Howland, CCA, 1.10.97 where the appellant's conviction appeal was dismissed.)
1 x conspire to manufacture not less than commercial quantity prohibited drug (amphetamine).
MT 2y, AT 3y.
Evidence - transcripts of intercepted telephone conversations - notebooks - handwriting.
Miscarriage of justice - appellant claimed plea of guilty entered upon advice of counsel.
Appeal dismissed.
25

NABALARUA, Peniasi - CCA, 19.12.97
Conviction and sentence appeal.
2 x armed robbery (shot gun).
MT 9y, AT 3y.
Appellant arrested for purpose of questioning - arrest illegal - Williams v The Queen (1986) 161 CLR 278 - admissions made free and voluntarily open on the evidence - no failure in exercise of discretion to admit admissions as not being unfair to appellant - failure of trial judge to properly consider requirements of s.138(3) Evidence Act on admissibility of admissions as contrary to public policy.
Appeal allowed: new trial ordered.
26

SMITH, Barry Neil - CCA, 18.12.97
Conviction appeal.
Carnal knowledge of child under 10y; 2 x indecent assault.
Guilty verdict on counts 1 & 2, not guilty on count 3.
MT 2y, AT 4y.
Delay in complaint - complainant niece of appellant - warning as to reliability of complainant's evidence - inconsistency of verdict - whether conviction unsafe or unsatisfactory.
Appeal dismissed.
27

TALBOT, Leonard John - CCA, 19.12.97
Crown appeal.
1 x B&E dwelling house in circumstances of special aggravation (max 25y);
1 x abduction with intent to carnally know (max 14y);
1 x sexual intercourse without consent in circumstances of aggravation (max 20y).
MT 4y, AT 3y.
Respondent one of four offenders who, armed with knives, tomahawk & shotgun, broke into farmhouse intending to rob owner. Owner was absent but 20y old employee wounded by shotgun and 15y old girl acting as nanny to 3 small children abducted and subjected to brutal sexual violation.
Appeal allowed: resentenced to MT 7y, AT 3y.
28

BYRAM, Maxine - NSW SC, Hidden J, 14.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder and administer poison with intent to murder.
Sentenced to life for murder charge; 9y for administer poison plus 2 minor matters on a Ninth Schedule.
Special circumstances within the meaning of s.5(2) Sentencing Act 1989.
Application allowed; sentenced to MT 11y, AT 5y.
29

DODGE, Kenneth John Peter - NSW SC, Dunford J, 28.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder (received life); assault being armed with intent to rob & assault with wounding (received 14y).
Progress through corrective system good. On 1.8.86, applicant released on licence after serving 10y 4m 25d. In 1994 charged with number of homosexual intercourse offences with person over 10 & under 18 & received MT 2*y, AT 2y. Licence subsequently revoked. Since return to custody, progress excellent.
Application allowed: resentenced to MT 21y 9m 13d, AT 4*y.
30

GILLARD, Roslyn - NSW SC, Michael Grove J, 5.12.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Shot wife, then turned gun on himself & discharged it while holding it under his chin.
At time of s.13A application, applicant almost 60y of age. No priors - remorse expressed on many occasions - unstinted support of deceased wife's blood family - record in prison without blemish.
Application allowed: resentenced to MT 10*y, AT 3*y.
31

HORE, Anthony John - NSW SC, Sperling J, 19.12.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder (received life); rob with wounding & striking (received 14y).
Evidence at trial pointed to intentional murder - attack with a spade upon victim described by sentencing judge as being 'with the greatest of savagery and violence, leading ultimately to the infliction of horrible injuries..'..
Robbery of victim planned at least 2 weeks prior to murder.
Anti social tendencies commenced well before murder - series of offences commencing before age of 13y - previous custodial imprisonment for robbery.
Concurrent expired sentences to be taken into account - weight to be given to personality disorder in mitigation of sentence.
Application allowed: resentenced to MT 13y, AT 7y.
32

LJUBIC, Marajan - NSW SC, Ireland J, 18.12.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Strangulation of his second wife (a Filipino woman) during a domestic argument.
Applicant suffering from physical disability leading to reactive depression - no abnormality of mind at time of murder.
Application allowed: resentenced to MT 12y, AT 3y.
33

ROYALL, Kym William - NSW SC, Dunford J, 26.9.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Forcible entry into bathroom resulting in violent struggle between appellant and deceased. Crown contention that deceased was either pushed or forced out of bathroom window of a sixth floor flat which she shared with appellant; or that she fell from window whilst retreating from or avoiding attack; or that having a well-founded apprehension that if she remained in bathroom she would be subjected to life-threatening violence she jumped out of the window to escape.
Conduct and attitude in gaol regarded as excellent - good prospects of further rehabilitation - family supportive.
Application allowed: resentenced to MT 12y, AT 5y.
34

STEPHENS, Patrick James - NSW SC, McInerney J, 21.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant placed cyanide into an Orthoxicol capsule and gave it to his wife (a Malaysian woman) who was complaining of a headache, then he set about preparing dinner & approximately half an hour later he discovered his wife was dead. He then wrapped her in a sheet, carried her outside & buried her in the back yard, emptying lime over the body before filling in the grave.
Up until time of offence, applicant led blameless & useful life - somewhat socially inept - giant strides towards rehabilitation but yet to face up to fact that he committed the murder - Victim Impact Statement from parents of deceased.
Application allowed: resentenced to MT 16y, AT 6y.
35

FRANKS, Peter - CCA, 11.12.97
Conviction appeal.
1 x supply methylamphetamine; 1 x supply cannabis leaf.
MT 2y 9m, AT 1y 3m.
Fresh evidence - Police Royal Commission Material appeal.
Appeal allowed: new trial ordered.
36

CIVICI, Mehmet - CCA, 2.12.97
Sentence appeal.
1 x attempted robbery (received MT 1*y, AT 2*y); 1 x BE&S (received concurrent 12m FT).
Young offender (20y at time of offences) - drug problem - alleged brain injury from motor accident - co-offender main offender - parity - special circumstances - discount given to co-offender because of assistance provided by him in prosecution of applicant - co-offender had lengthy criminal record.
Appeal allowed: resentenced to MT 1y, AT 2y for attempt rob, 1y FT for BE&S.
37

K, A. - CCA, 29.10.97
Sentence appeal.
Sexual intercourse with person under age of 16y (actual age 7y); sexual intercourse with same victim (then aged 13y).
MT 3y, AT 3y.
Brother and sister - appellant 7 years older than victim. Matters not isolated. Victim traumatised by events - seriously depressed - lengthy periods of counselling.
Appeal dismissed.
38

M, S - CCA, 10.12.97
Sentence appeal.
2 x common assault which carries max 2y; 1 x rob with aggravation (striking) which carries max 20y.
Received MT 18m, AT 6m for rob with aggravation; FT 6m on each common assault offences. All sentences to be served concurrently.
Young offender (16y at time of sentence, 15y at time of offences) - two co-offenders also aged 15y at time of offences - guilty plea - at time of offences, applicant on Griffith remand for similar offence.
Appeal dismissed.
39

MILSOM, Robert Norman James - CCA, 10.12.97
Crown appeal.
2 x aggravated dangerous drive occasioning GBH (blood alcohol concentration not less than 0.192 grams alcohol per 100 ml blood).
Received 400 hours CSO on each count & disqualified from holding licence for 3y.
Guilty plea - respondent sustained injuries in accident, including brain injury - claimed had no recollection of accident - at time of sentencing his drivers licence had been removed in consequence of injuries suffered in accident - a number of previous driving offences, including being disqualified for driving with high range of alcohol.
Appeal allowed: resentenced to concurrent 30m PD on each charge.
40

RADFORD, Gregory Arthur - CCA, 3.12.97
Sentence appeal.
1 x sexual assault (received MT 3y 9m, AT 1y 3m); 1 x AOABH (received concurrent FT 2y).
Applicant and victim married - turbulent relationship - separated - victim had custody of their 2 children & applicant had limited rights of access - applicant had previous convictions for assaulting victim & breaching domestic violence order, for contravening domestic violence order, as well as convictions for various assault offences.
Appeal dismissed.
41

ROBERTS, Peter - CCA, 8.12.97
Sentence appeal.
3 x supply amphetamine; plus drug offences & driving offences contained in two separate Form 2 documents taken into consideration in sentencing.
FT 12m on 1st count; FT 18m on 2nd count; MT 4*y, AT 1*y on 3rd count.
Long history of drug abuse - history of re-offending.
Submitted sentence on 3rd count manifestly excessive - reference made to R v Fathers (unreported, CCA, 31.8.94); R v Simpson (unreported, CCA, 30.11.94); R v Muggeridge (unreported, CCA, 8.10.93).
Appeal dismissed.
42

TRUONG, Van Hung - CCA, 8.12.97
Crown appeal.
Sexual intercourse without consent in company (aggravated) - carrying max 20y.
MT 18m, AT 2y.
Complainant's mouth bitten during commission of offence - respondent's lack of contrition or remorse - sentence manifestly inadequate - Everett v The Queen (1994) 181 CLR 295 & R v Burnett (1996) 85 A Crim R 76 referred to - special circumstances.
Appeal allowed: resentenced to MT 2*y, AT 2y.
43

LEWIS-HAMILTON, Glen Carson - Vict SC, Ct of App, 8.4.97
Conviction appeal.
3 x rape and 3 x sexual penetration of child between ages of 10 & 16.
Guilty verdict on 2 sexual penetration counts, and not guilty on one count of sexual penetration and 3 counts of rape.
Duty of Crown to disclose material affecting credibility of Crown witnesses.
Appeal allowed: new trial ordered.
44

BRADSHAW, Wayne William - WA CCA, 13.5.97
Conviction appeal.
Seek to obtain bribe.
Duty of Crown to disclose material affecting credibility of Crown witnesses - whether duty applied to documents in other proceedings relevant to credit of accomplice witness - whether disclosure would have resulted in different verdict - fresh evidence - whether jury would have acquitted applicant had fresh evidence been given at trial.
Appeal dismissed.
45

K - SA CCA, 30.8.91
Conviction appeal (two appellants: one male, the other female).
Cultivate prohibited drug (cannabis).
Case against female appellant very weak - not much more than her presence on an occasion when male appellant and others were looking at a crop.
Duty of Crown to disclose material affecting credibility of Crown witnesses - effect of lies by accused - uncorroborated evidence of accomplices - directions.
Appeal of female appellant allowed, verdict & judgement of acquittal entered;
Appeal of male appellant dismissed.
46

SWAFFIELD, J.R. & PAVIC, S.F. - HC, 20.1.98 - 192 CLR 159; 72 ALJR 339
Confessions & admissions - admissibility of - discretion to exclude - right to silence - duty to caution.
An appeal from Queensland dealing with the fairness discretion & public policy in relation to confessions. In both cases the confessor had previously refused to be interviewed by police but later made confessions unknowingly to an undercover police officer (Swaffield) and a 'wired up' informer (Pavic).
Pavic: appeal allowed, conviction quashed, new trial ordered.
Swaffield: appeal dismissed.
47

PALMER, Colin Vaughan - HC, 20.1.98 - 193 CLR 1; 72 ALJR 254
Sexual offences - cross-examination of accused as to whether complainant had motive to lie - relevance - inviting jury to speculate - risk of reversal of onus of proof - whether judge's directions capable of neutralising prejudicial effect of cross-examination - alibi - unsafe & unsatisfactory.
Appeal allowed: verdict of acquittal entered.
48

T, K.B. - HC, 9.12.97 - 191 CLR 417; 72 ALJR 116
Sexual offences - maintaining unlawful relationship with child - act to be proved to be done on 3 or more occasions - trial proceeded on 'all or nothing'contest between credibility of evidence of child & of accused - jury not instructed same 3 offences committed on same 3 occasions.
49

HAUGHBRO, Tore Bjorn - ACT SC, 19.12.97
Application to stay prosecution on principles of Ridgeway v The Queen.
Evidence - admissibility of evidence of undercover officer to whom illegal drugs supplied by accused - s.138 Evidence Act 1995 (Cth) - whether evidence 'improperly or unlawfully obtained'- discretion to exclude under s.138 - discretion under Bunning v Cross (1978) 141 CLR 54 - discretion under Ridgeway v R (1995) 184 CLR 19 - whether common law discretions still apply.
Stay refused.
50

AKSOY, Bulent - CCA, 14.5.97
Sentence appeal.
Accessory before the fact to malicious wounding (max penalty 7y).
MT 18m, AT 6m.
Applicant (a bus driver) and some co-workers, disgruntled with their manager, arranged to employ someone to break victim's kneecaps to keep him off work for 6 months. Applicant prime mover in arranging for carrying out of injury to victim. Victim subsequently attacked outside his home by unknown assailant wielding crowbar - suffered injuries to his legs & deep laceration to his head, requiring suturing.
Applicant made ready & frank admissions to police. Co-workers charged but charges not proceeded with.
Submitted insufficient weight given to subjective factors on sentence.
Appeal dismissed.
51

ATKINSON, Robert John - CCA, 9.5.97
Application for extension of time to seek leave to appeal against sentence.
Supply not less than commercial quantity amphetamine; one charge of knowingly concerned in supply cannabis on Form 2 taken into account.
Guilty plea.
MT 3y, AT 12m.
Gross delay in bringing appeal against sentence - disparity of sentence with that of co-offender - appellant's breach of two recognizances & bail significant aggravating factors in sentencing.
Application for extension of time dismissed & leave to appeal against sentence refused.
52

ATTIE, Fred - CCA, 14.5.97
Sentence appeal.
Armed robbery - sentenced to 4y;
Use offensive weapon to prevent lawful apprehension - sentenced to MT 12m (cumulative upon sentence for armed robbery), AT 18m.
Post-traumatic stress syndrome - ratio between total & minimum sentences inappropriate.
Appeal allowed: resentenced to FT 12m for use offensive weapon; and MT 3*y (cumulative upon FT), AT 2y for armed robbery.
53

ELFAR, Deafallah - CCA, 9.5.97
Sentence appeal.
8 counts charged; + 59 matters on Form 2 taken into account.
Counts 1,2,3,5,6,7 & matters 1-56 on Form 2 related to car stealing & parts racket. Applicant ring leader - elaborate scheme involving sale of stolen MV parts - sophisticated, well planned enterprise.
2 counts & 1 matter on Form 2 related to activities to defraud NRMA - on bail at time of one of the offences. 1 count conspire to cheat & defraud GIO by staging MV accident & bringing fraudulent third party claims for damages by alleged victims of accident.
Applicant fled to Jordan whilst on bail - wife contacted a detective & informed him that applicant had gone overseas due to threat against his life made by police. Applicant interviewed by police officers & representatives of Royal Commission into NSW Police Force whilst in Jordan - returned to Australia voluntarily - some details of assistance given to Royal Commission - early guilty plea.
30% discount given (15% for past assistance and 15% for future assistance).
MT 4*y, AT 18m imposed on Count 1; the same or lesser sentence imposed on other counts (taking into account 30% discount).
Submitted insufficient weight given to subjective factors.
Appeal dismissed.
54

ERTL, Milanda - CCA, 7.5.97
Sentence appeal.
Escape from lawful custody.
MT 12m, AT 12m.
Escaped from Norma Parker Centre - arrested some months later whilst working as prostitute in a Kings Cross parlour - claimed she had escaped after contact with ex de facto & forming view that they were getting back together again & the fact that she was not in her right frame of mind, due to having taken some Serepax.
Unfortunate subjective circumstances.
Necessity for strong general deterrent.
Appeal dismissed.
55

FOXE, Brett Cameron - CCA, 7.5.97
Sentence appeal.
Armed robbery in company (shortened double barrel shotgun); steal MV.
Guilty plea.
MT 7y, AT 3y.
Ratio between MT and AT - increased additional term for psychiatric condition.
Appeal allowed: resentenced to MT 6y, AT 4y.
56

HARDY, Phillip John - CCA, 5.6.97
Application for extension of time for leave to appeal against sentence.
18 x sexual offences (indecent assault of a male; sexual intercourse without consent; attempted sexual intercourse; indecent assault).
Overall sentence: MT 7y, AT 4y.
All offences involved one victim. Applicant a teacher at a school attended by victim and some of his siblings, the victim being the youngest. Sexual activities continued from time when victim was 8y until he was 16y old.
Expressions of contrition - pleas of guilty to 13 of 18 charges - limitation of cross-examination of victim - held in strict custody - more onerous than protection - subjected to assault shortly after being sentenced, suffering a number of fractures to his jaw.
Extension of time allowed; sentence appeal dismissed.
57

JONES, Derek Louis - CCA, 16.5.97
Sentence appeal.
4 x BE&S; a further 8 charges taken into account (2 x BE&S, 2 x receiving; 2 x possess stolen property; 1 x possess prohibited drug; 1 x make false statement).
Guilty plea.
Sentence: counts 1, 2 & 3 - 2y 5m 15d; count 4 - MT 2*y (cumulative), AT 3y.
Disturbed background - limited education - limited employment - heroin addiction - participation in methadone programme.
Some offences committed whilst on bail - large amount of stolen property not recovered - lack of contrition - 81 previous convictions.
Appeal dismissed.
58

NASR, Nabil - CCA, 12.5.97
Sentence appeal.
8 x defraud company; 12 further similar matters taken into account.
MT 18m, AT 2y.
Total amount involved was $136,851.20.
Officer of company - position of considerable trust - gambling addiction - first-time offender - expression of sincere contrition - life dramatically affected by conviction and punishment.
Appeal dismissed.
59

STEFF, Gary - CCA, 5.5.97 - 96 A Crim R 1
Sentence appeal.
Escape from lawful custody; steal MV; BE&S; stealing; stealing from dwelling.
Sentence: escape count - MT 4y, AT 1y 4m; other counts - FT 2y (concurrent).
Carefully planned escape - other offences committed whilst at large - already serving a sentence for a previous offence.
Appeal dismissed.
60

PETERS, Philip Peters - HC, 2.2.98 - 192 CLR 493; 72 ALJR 517
Conspiracy to defraud - whether dishonesty an essential element - tests of dishonesty in R v Ghosh and R v Salvo - actus reus and mens rea - agreement to use dishonest means - intention to prejudice or imperil rights or interest of others - directions.
Appeal dismissed.
61

TSOURNAKAKIS, Harry - CCA, 5.5.97
Sentence appeal.
Supply cocaine; supply amphetamine; + 3 charges on a Form 1 (1 x supply amphetamine, 2 x supply cannabis leaf).
MT 1y, AT 2y.
Guilty plea - no priors for serious drug offences (only entry possess implement to smoke cannabis) - good prospects for rehabilitation - no contrition demonstrated.
Appeal dismissed.
62

OWEN, Robyn Therese - CCA, 5.6.97
Sentence appeal.
Manslaughter.
Guilty plea.
MT 4*y, AT 4y.
Offender & victim in volatile relationship - both on methadone programme at time of death - victim stabbed during fight - acute stress disorder with marked anxiety & depression - need for considerable assistance in re-entering community.
Appeal dismissed.
63

LO, Amanda Tze - NSW DC, Judge Sides QC, 27.1.98
Attempt obtain commercial quantity prohibited import, being MDEA (methylenedioxyethylamphetamine - ecstasy). Max sentence is life imprisonment.
Guilty plea.
25,000 tablets seized weighing a total of 7,479.9 grams; average MDEA content 32.2%, equating to 2,408.5 grams pure MDEA.
Sentenced to: MT 4y, AT 2y 8m.
64

CORKIN, Samuel Joseph Trevor - CCA, 6.8.97
Crown appeal.
Sexual offences against young daughter (masturbation, digital, penile) and young friend of his daughter (masturbation, digital); a number of other similar sexual offences upon young daughter taken into account.
Offences against daughter started when she was 8y and continued until she was 15; offence against daughter's friend occurred when she was 10.
MT 2*y, AT 2*y.
Appeal allowed: resentenced to MT 4y, AT 4y.
65

WOODFIELD, Lucas Edward - CCA, 11.6.97
Sentence appeal.
Robbery with corporal violence (s.95 Crimes Act), carrying max of 20y.
MT 18m, AT 2*y.
Apprentice electrician - took daily takings from business, punching employee in face - co-operation with authorities - good reputation - first-time offender - guilty plea.
Appeal dismissed.
66

KONCEK, Martin John - CCA, 1.10.97
Sentence appeal.
Maliciously administering stupefying drug with intent to injure.
PD 12m.
Administered drug & stole possessions - claimed victim had made homosexual advances - to quieten victim down, administered Normison - prior convictions - guilty plea.
Appeal dismissed.
67

KEAL, Anthony - CCA, 7.11.97
Crown appeal.
1 x take away for advantage (kidnapping) - max penalty 14y where victim is liberated without having sustained substantial injury (s.90A); 1 x aggravated indecent assault (max penalty 10y - s.61M(2)).
MT 2y, AT 2y.
Respondent took girl aged 4 years from amusement arcade in Mt Druitt Market Town Shopping Centre where she was playing with her cousins under supervision of her grandmother, placed her into his car, drove to service station on Great Western Highway, bought bubble gum for her & petrol for his car, then drove to a place somewhere on the Northern Road. He removed girl's panties, masturbated himself, after which he rubbed semen about her genital area & replaced her panties. He then drove his car to Penrith Plaza Shopping Centre, about 12 kms from Mt Druitt Market Town, & abandoned her in the shopping centre, where she was found by staff a short time later.
Respondent aged 56 at time of offences - regular employment - well liked & respected - unblemished character & reputation - sexually abused as a child.
Appeal dismissed.
68

PHAM, Hoa Phu
PHAM, Ha Thi - NSW SC, Simpson J, 16.9.97
Application seeking declaration that substantive provisions of Drug Trafficking (Civil Proceedings) Act 1990 are invalid.
Application dismissed.
69

AITCHISON v DPP - SC ACT, 31.10.96 - 90 A Crim R 448
Abuse of process - application for permanent stay - prosecution of alleged offences of indecent assault, etc involving children - indictment presented in 1995 alleging offences in 1970 or 1971 - whether oppressive for matters to proceed - Crimes Act 1900 (ACT) ss,76, 81 (repealed) - child witnesses (or adult who was a child at time of alleged offences) - law applicable in ACT in period 1969-1971 - Evidence Act 1995 (Cth) s.64.
70

APPLEBY, Jeffrey Robert - NSW SC, Ireland J, 18.7.97
Manslaughter.
Guilty plea accepted in full discharge of indictment charging murder.
Deceased was prisoner's brother - altercation between prisoner's mother and prisoner's girlfriend - brother intervened, striking girlfriend with an object - prisoner became enraged & lunged towards deceased with a knife, striking him in chest.
Sentenced to MT 3y, AT 3y.
71

DAGG, Arthur George - CCA, 3.10.97
Sentence appeal.
3 x Social Security fraud; operating bank account in false name.
1st count: MT 2y, GBB 1y; ordered to make reparation to Commonwealth in the sum of $38,364.66.
2nd & 3rd counts: fine of $2,500 in respect of each count.
Between November 1989 and July 1996 applicant received various benefits totalling $58,924.53 under name of George Jack Abraham; between February 1991 & August 1996 applicant received various benefits totalling $38,364.66 under name of Arthur George Dagg.
Hardship to 6y old son - remissions between State & Federal sentencing laws.
Appeal dismissed.
72

KING, Leslie Maurice - CCA, 24.2.98 - 99 A Crim R 288
Sentence appeal against s.13A determination.
Joint trial in April 1985. Appellant had put out a contract for murder of his wife & co-offender had carried it out. During summing up, trial judge directed jury that, even if they found co-offender not guilty, they could still find appellant guilty as accessory before the fact upon basis that someone other than co-offender had carried out the contract. Co-offender found not guilty & appellant found guilty of murder - sentenced to life imprisonment.
New trial ordered by CCA on basis that introduction of alternative basis for liability so late in trial constituted procedural irregularity sufficiently serious as to have produced miscarriage of justice.
Appellant stood trial in May 1989 & was again convicted of murder - sentenced to life imprisonment.
Subsequently, pursuant to s.13A, sentenced to MT consisting of 2 days short of 18y & AT of 5y.
Appeal dismissed.
73

ANGUS, Neil John - NSW SC, Justice David Levine, 3.2.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
' Home invasion'type offence.
Pleaded guilty to murder (received life) & guilty to armed assault on murder victim's husband, in company, with intent to rob (received 7y concurrent). In sentencing, 13 offences on a Ninth Schedule taken into account (6 x armed robbery; 4 x assault with intent to rob; 1 x assault & rob; 1 x escape from lawful custody; 1 x BE&S).
General deterrence - genuine contrition & remorse - rehabilitation - time spent on protection.
R v Purdey (1993) 31 NSWLR 668; R v Borland (Wood J, 4.11.93, unrep); R v Russell Keith Greene (Allen J, 1.7.93, unrep); R v Russell Wayne Bowden (Slattery AJ, 15.12.92, unrep) referred to.
Application allowed: resentenced to MT 16y, AT 6y.
74

VASTAG, Geza - CCA, 11.12.97
Application for extension of time & leave to appeal against sentence.
1 x supply methylamphetamine (approx 83 grams); 1 x deemed supply of 7 grams methylamphetamine taken into account.
On 11.11.94, sentenced to 3y PD for above.
On 11.5.95, arrested & charged with 1 x supply ecstasy tablets; 1 x supply amphetamine powder. On 2.5.96 sentenced to MT 2y 3m, AT 15m on 1st count; 12m FT on 2nd count. PD order cancelled with order to serve balance of period by way of full-time custodial sentence. On 20.6.97 appeal against conviction allowed. Applicant resumed serving PD; was granted bail on 13.8.97 pending hearing of this application.
Effect of allowing appeal against conviction - cancellation of PD order void when convictions quashed.
Appeal allowed: sentence of 3y PD quashed. Taking into account PD & full-time custody already served (312d in all), resentenced to PD commencing 11.11.94 & expiring 3.5.96. As applicant had completed all obligations under PD order, Court ordered his release from PD order.
75

HASENKAMP, Christopher - CCA, 24.2.98
Conviction appeal.
Cultivate commercial quantity cannabis plants.
MT 4y 5m, AT 1y 9m.
Fresh evidence - evidence adverse to principal witness given subsequently in Police Royal Commission.
Issue was whether fresh evidence arising from reports of Royal Commission into NSW Police Service could establish significant possibility that appellant's conviction had been a miscarriage of justice. Fresh evidence related to evidence given at Royal Commission about a police officer who had given evidence for the Crown. Counsel for appellant argued that had this evidence been available at appellant's trial, it could have formed basis for cross-examination of police officer's credibility as a witness.
Appeal allowed: as appellant had served almost all of MT, no new trial ordered.
76

DEAN (No.3), Brett John - NSW SC, Dunford J, 17.3.97
Judgement on order of calling evidence in cases of diminished responsibility.
77

GORDON, Stephen A. - CCA, 6.3.98
Sentence appeal.
1 x robbery; 1 x BE&S; 1 x steal MV; + 6 x steal MV & 1 x robbery on a Form 1.
MT 7y, AT 5y.
Applicant born 1973. Criminal record commenced at age of 14 when he began to use heroin - previous custodial sentences.
Serious offences involving goods of substantial value - minimal violence involved - no weapons used either to injure or threaten.
Held overall sentence imposed was a sentence more appropriate for offences of armed robbery - outside range of proper sentencing discretion - inappropriate weight given to history of appellant and previous incarceration - good prospects of rehabilitation.
Appeal allowed: resentenced (mention is made that sentences indicated on 4 March 1998 be imposed, however, have not been able to locate this decision).
78

CASSANITI v CROUCHER & Ors - NSW SC, Admin Law Div, Dunford J, 21.8.97
Judgement on search warrants - validity - reasonable grounds for issue - sufficiency of description of items -failure to specify indictable offence as required.
79

PUGLISI & McCAMISH v Australian Fisheries Management Authority & Ors - Federal Court of Australia, Hill J, 28.8.97
Search warrants - issued under Fisheries Management Act 1991 and Crimes Act 1900 - validity - whether execution unlawful - whether goods in possession of police before execution of warrant and physically retained in police car later in execution of warrant - whether goods seized under invalid warrant should be returned.
80

COOPER, Damon Ashley - CCA, 24.2.98
Conviction and sentence appeal.
Manslaughter; arson.
MT 12y, AT 6y.
Originally charged with arson & murder - pleaded guilty to arson & defended murder charge on basis of diminished responsibility - acquitted of murder & convicted of manslaughter - trial conducted on basis that voluntariness not in issue - no directions sought or given - argued on appeal jury should have been directed on voluntariness.
Appeals dismissed.
81

HAUSER, Ziggy - CCA, 11.12.97
Sentence appeal.
Attempt obtain possession of commercial quantity methylenedioxymethylamphetamine (ecstasy) - max penalty life.
Sentenced to 6y with 3*y NPP.
Parity in sentencing co-offenders - difference in sentences must reflect differences relevant to sentencing between co-offenders.
Appeal allowed: resentenced to 4*y with 2*y NPP.
82

STANOEVSKI, Liljana - CCA, 24.2.98
Conviction and sentence appeal.
Conspire to cheat and defraud.
Sentenced to FT 9m to be served by way of home detention.
Appellant, a solicitor, was tried on conspiracy to cheat & defraud the NRMA of a sum of money - at time of trial there was an unrelated allegation of forgery against her - appellant had never been charged with forgery - appellant raised issue of good character - cross-examined on facts relating to alleged forgery.
R v Stalder (1981) 2 NSWLR 9 applied.
Appeal dismissed.
Note: High Court appeal allowed, conviction quashed, new trial ordered.
83

VAUGHAN, Mitchell Gary - CCA, 9.12.97 - 98 A Crim R 239
Conviction and sentence appeal.
2 x supply trafficable quantity prohibited drugs (methylenedioxymethylamphetamine (known as ecstasy) and cocaine.
Sentenced to MT 18m, AT 18m.
Prohibited drugs found in wallet containing personal papers of accused - accused's failure to give evidence - appropriate directions - Evidence Act 1995 s.20(2) - Weissensteiner v The Queen (1993) 178 CLR 216, R v OGD (unreported, CCA, 3.6.97), Jones v Dunkel (1959) 101 CLR 298, R v Buckland [1977] 2 NSWLR 452 discussed.
Appeal dismissed.
84

X - CCA, 24.2.98
Petition under s.474B Crimes Act for review of convictions and sentences referred by AG to CCA under s.474C(1)(b).
Held: no error or miscarriage of justice shown but publication of detailed reasons restricted because of sensitive nature of evidence adduced on appeal - supplementary judgement recorded & made available only to parties involved & their legal representative, the AG & one other person.
85

YI, Zi Ming - CCA, 27.2.98
Conviction and sentence appeal.
1st count: sexual intercourse without consent;
2nd count: AOABH;
3rd count: knowingly contravene domestic violence order.
Assault was in response to a severe & unjustified injury inflicted by complainant. Leave to cross examine on incorrect assumptions - evidence inadmissible.
Conviction appeal on 1st count allowed & conviction quashed; sentence appeal on 2nd count allowed and resentenced to FT 6m 10d; leave to appeal against sentence on 3rd count refused.
86

HARRISON, Kevin Frank - CCA, 23.2.98
Crown appeal.
1 x armed robbery; 1 x larceny.
Sentenced to 400 hours CSO on each charge, to operate concurrently.
Whether most exceptional circumstances - voluntary disclosure of guilt - forgiveness by victims.
Appeal allowed: resentenced to 12m PD.
87

LUU, Chan Quan
CHEUNG, Chun Tung - CCA, 12.3.98
Luu: conviction appeal; Crown appeal.
Cheung: conviction and sentence appeal - MT 6y, AT 2y.
Luu: malicious wounding.
Cheung: manslaughter; malicious wounding.
Directions to jury - whether confusing & likely to mislead - whether verdicts unsafe & unsatisfactory - adequacy of sentences.
All appeals dismissed.
88

MONKS, Peter Andrew - CCA, 2.3.98
Sentence appeal.
6 x homosexual intercourse with male under age of 10y - max penalty 25y.
Offences occurred when victim was aged 5y.
Sentenced on each count to MT 12m, AT 12m.
Special circumstances: appellant both mentally & physically disabled - IQ of 63 - back pain caused by prolapsed disc - knee requiring reconstruction - obese - physical age of 33y but mental age of between 8 to 11y - sexually abused as a child by a sibling.
Sentencing of a person with a disability - concept of general deterrence.
Appeal dismissed.
89

A, G.K. - CCA, 2.3.98 - 99 A Crim R 491
Question of law referred for determination.
'Whether or not, a direction having been given and remaining in effect pursuant to s.7(2)(b) of theDirector of Public Prosecutions Act1986 that no further proceedings be taken against an accused on a bill of indictment found under the Act, a court may nevertheless proceed to try the accused upon that indictment'.
Answer: 'No'.
90

OSMAN, Ernest James - CCA, 25.2.98
Conviction appeal.
Sexual intercourse without consent.
Exclusion of evidence as to nature of relationship between appellant & complainant. Whether misdirection to jury concerning evidence relied upon by appellant as evidencing a motive on the part of the complainant to fabricate allegations. Relationship evidence should have been admitted as having significant probative value. Misdirection resulted in jury being misled.
Appeal allowed: new trial ordered.
91

COULSTOCK, Leslie James - CCA, 10.3.98 - 99 A Crim R 143
Conviction and sentence appeal.
1 x actual supply (27.85 grams methylamphetamine); 1 x agree to supply 1 x agree or offer to supply.
Pleaded guilty to actual supply but not guilty to other 2 charges, however, jury found him guilty.
MT 8y, AT 4y.
Undercover police officer solicits supply of drugs - breach of Drugs Misuse and Trafficking Act 1985 s.27 - effect of illegality - Evidence Act 1995 s.138 - onus of proof - Ridgeway v The Queen - evidence of police officer properly admitted.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 6y, AT 3y.
92

RYAN, Vincent Gerard - CCA, 2.3.98
Sentence appeal.
Appellant a priest, pleaded guilty to sexually abusing 12 victims (ages ranging from 6 to 14y) - offences occurred over 20y; additional 39 offences involving a further 16 victims taken into account.
MT 11y, AT 5y.
Sentencing - paedophilia - abuse of trust - severity.
Appeal dismissed.
Note: The appellant was successful in a High Court appeal: orders of the CCA set aside, matter remitted to the CCA for sentencing in accordance with reasons for judgment of the HC.
93

YIN, Yao - CCA, 2.3.98
Sentence appeal.
Attempt B&E with intent to commit felony; intent to kidnap child.
MT 4y, AT 2y.
Assessment as most serious case of its type not erroneous.
Appeal dismissed.
94

McEWEN, Clifford Stuart - CCA, 12.3.98 - 99 A Crim R 421
SIMPSON
, Richard James
SIMPSON, Helen Edwina
MARCOVICH, Mark Fancis
Conviction appeals.
R. Simpson, McEwen & H. Simpson - knowingly take part in manufacture of prohibited drug (4 Bromo -2, 5 Dimethoxyphenylethylamine - commonly known as 'Nexus');
R. Simpson and Marcovich - supply Nexus.
Whether dimethoxyphenylethamine a prohibited drug prior to 1994 amendment to Schedule of Drug Misuse and Trafficking Act 1985 - functions of judge & jury in determining whether it was.
Appeals dismissed.
95

WEBSTER, Daniel James - 10.3.98 - 43 NSWLR 256; 100 A Crim R 26
Sentence appeal.
BE&S (12m PD); use offensive instrument to prevent lawful apprehension (3y recognizance); + 4 offences of BE&S, assault police officer & resist arrest taken into account.
Order subsequently cancelled for failure to attend PD centre, full-time custodial sentence imposed (unexpired part of PD by way of full-time imprisonment for 41 weeks - judge declined to set MT or AT). Appellant did not attend hearing & was not represented as he had not received the Notice of Hearing from the Court (he had changed his address). Applicant subsequently arrested.
District & Local Courts have power to issue warrants for arrest prior to cancellation of PD orders and sentencing.
Appeal allowed: resentenced to MT 6m, AT 3m.
96

DINEEN, Michael - CCA, 25.2.98
Sentence appeal.
BE&S.
MT 2y 3m, AT 2y.
Lengthy criminal history - extensive use of heroin - use of various sedatives - methadone programme.
Offence described as serious - subjective circumstances, plea of guilty & professed intention to abandon life of crime given full weight.
Evidence of mitigating circumstances overlooked in sentencing - no appellable error found.
Appeal dismissed.
97

RADFORD, Brett Stuart - CCA, 4.3.98
Sentence appeal.
Sexual intercourse without consent.
MT 3*y, AT 1*y.
Guilty plea - disturbed personal background - criminal record involving some offences of violence & some of dishonesty - never previously been sentenced to any significant custodial sentence.
Appeal dismissed.
98

V - CCA, 24.2.98 - 99 A Crim R 297
Sentence appeal.
3 x sexual assault without consent; 4 x assault female with act of indecency.
Sentenced to MT 3y, AT 3y. Special circumstances found - period of time that had elapsed - applicant's prior good character - rehabilitation.
Victims were applicant's stepdaughters aged between 9 & 13y and 10 Y 12y at time of offences.
Offences brought to attention of social and mental health workers in 1984. In 1995 victims made official complaint.
Ground of appeal that insufficient allowance given to substantial delay between official notification and criminal proceedings.
R v Todd (1982) 2 NSWLR 517 considered. R v Ware (NSW CCA, unreported, 9.7.97) & R v Brown (NSW CCA, unreported, 22.8.96) distinguished.
Appeal dismissed.
99

MILAT, Ivan Robert Marko - CCA, 26.2.98
Conviction appeal.
Murder.
Photographic identification - witness provided a number of different forms of identification of accused, including selecting accused's photograph from a number of photographs of suspects - argued evidence of photographic identification should have been excluded.
Argued media coverage resulted in unfair trial.
Held trial not unfair. The Queen v Glennon (1992) 173 CLR 592 applied.
Appeal dismissed.
100

ASHFIELD, Gunn-Brit - CCA, 27.2.98
Sentence appeal.
Murder.
MT 16y, AT 5y.
Murder of applicant's 6y old son. Deceased suffered severe injuries as a result of a beating inflicted over several hours at the hands of applicant and her de facto partner, believing deceased had been sexually interfering with his younger sister.
Each offender was treated as equally culpable either as principal in first degree or as accessory aiding & abetting the other and on basis that relevant intent was to inflict GBH upon the child rather than to kill him.
Whether sentence manifestly excessive - whether special circumstances should have been found.
Appeal allowed: resentenced to MT 14y, AT 5y.
101

MALASS, Samir Mohamad - CCA, 3.3.98
Sentence appeal.
Maliciously inflict GBH.
MT 18m, AT 18m.
Appellant one of 60 people involved in brawl. Struck police officer in face with piece of wood - police officer suffered broken nose & tooth; pain & loss of sense of smell.
Record of dangerous driving offences.
Appeal dismissed.
102

CARTER, Glenn William - 29.10.97
Sentence appeal.
2 x use offensive weapon to prevent detention (max penalty 12y); matters contained in Form 1 & Form 2 documents taken into account.
MT 3y, AT 3y.
At time of offences, applicant produced a hypodermic syringe & after jabbing it into himself threatened to use it, claiming that he was HIV infected.
Special circumstances - tragic & miserable life as a young person - subjected to predatory activities of a paedophile - brutally raped by fellow inmates in the prison system during earlier period of custody - would have to serve present sentence on protection - plea of guilty - rehabilitation.
Appeal dismissed.
103

MORRISON, Adam John - 5.9.97
Conviction and sentence appeal.
1 x B&E with AOABH; assault.
MT 18m, AT 6m.
Home invasion offence.
House invaded by large group of 8 or 10 or more men, some wearing balaclavas & some armed with baseball bats. Occupants assaulted.
Identification evidence - directions.
Appeal dismissed.
104

BIGGS, Roger Mark - CCA, 25.2.98
Sentence appeal.
1 x armed robbery with wounding; 1 x use offensive weapon to prevent lawful apprehension; 1 x common law assault.
MT 9y, AT 6y.
Case involved abduction by force, actual physical violence & injury to female victim. When interrupted by person who came to victim's aid, applicant intent on doing even more harm to victim. Applicant then assaulted this other person.
Sentenced on 12 previous occasions for acts of violence or threatened violence, including armed robbery.
Affected by alcohol & some form of drug at time of present offences - dysfunctional upbringing - early plea of guilty - Aboriginal background - reliance placed on Fernando (1992) 76 A Crim R 58 - special circumstances.
Appeal allowed: resentenced to MT 7y, AT 4y.
105

CUTAJAR, Mick - CCA, 6.3.98
Sentence appeal.
BE&S; armed robbery with offensive weapon (replica pistol).
MT 3y, AT 2y.
Applicant a successful sportsman - concern about possible interference with his selection or attempted selection for the 2000 Olympic Games because of restrictions on travel during parole period - probable that applicant will be released to parole at end April 1998 - parole subject to conditions - supervision.
Appeal dismissed, however, recommendation made that Parole Board should allow applicant to travel interstate & overseas for purpose of participating in sporting events whilst on parole.
106

FULLER, Paul Donald - CCA, 4.3.98
Sentence appeal.
Dangerous drive causing death.
At applicant's request, an offence of dangerous drive occasioning GBH taken into account.
MT 3y, AT 2y.
Blood alcohol reading of 0.176 grams per 100 millilitres. Director, Clinical Forensic Medicine Unit of NSW Police Service expressed opinion that blood alcohol concentration at time of collision must have been within range of 0.14 to 0.2 grams per 100 millilitres. Also stated view that all persons having blood alcohol concentration within that range would suffer impairment of driving ability.
No evidence of recklessness or speed found.
On appeal: leniency - insufficient weight given to subjective features - sentencing.
Appeal allowed: resentenced to MT 2y, AT 3y.
107

GRAINGER, Gavin Wade - CCA, 2.3.98
Sentence appeal.
Cultivate prohibited plant; possess 1.028 kgs cannabis taken into account.
18m PD. Applicant legally represented at trial.
Later, unrepresented, applicant made application pursuant to s.25 Periodic Detention Act to cancel sentence of PD. His Honour resentenced applicant to MT 9m, AT 9m, finding special circumstances.
On appeal: initial sentence of 18m PD excessive - sentence arose from circumstance that opportunity of pleading guilty in LC effectively denied to applicant by course which was pursued in relation to a charge of supply which was ultimately not proceeded with.
Held: not necessary to deal with initial sentence - in resentencing pursuant to s.27(4), found error in determining ratio.
Appeal allowed: resentenced to MT 6m, AT 12m.
108

HORAN, Patrick Francis - NSW SC, Hidden J, 20.3.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Pleaded not guilty to murder but guilty to manslaughter (received life). Crown accepted plea on basis of diminished responsibility. Applicant also pleaded guilty to wounding a policeman with intent to murder (received 25y); 5 charges of shooting at other police officers with intent to murder (received 20y); and a charge of common assault upon another officer (received 2y). No NPP specified.
Application allowed: resentenced to MT 16y, AT 6y.
109

HAMMOND, Ronald Charles
FITZGIBBON, Francis Martin - CCA, 24.2.98
Conviction appeals.
Dishonestly obtain valuable thing/cash by false pretences.
The applicants were convicted of offences relating to the sale of two Holden Commodore motor vehicles, the property of the Aboriginal Land Council, by claiming they were the property of Hammond.
Hammond - received 5y GBB, ordered to pay compensation.
Fitzgibbon - received 5y GBB, ordered to pay compensation.
Hammond did not give evidence at trial. Trial judge directed jury concerning this fact. Those directions subject of complaint on appeal.
Appeals dismissed.
110

D, D.W. - CCA, 2.3.98
Crown appeal.
Offences of aggravated sexual intercourse without consent (cunnilingus).
Victim was young daughter from a previous marriage of respondent's wife. Offences came to light because respondent, out of remorse, revealed them to family member who reported them to respondent's wife who in turn reported them to police.
Respondent initially put into Pre-trial Diversion of Offenders programme. Because of breaches of certain conditions, taken off programme some two months later & came before the court for sentencing. The course the sentencing judge took was to remand respondent for sentence for a year, granting him bail on conditions which included undergoing a course of psychotherapy recommended by a psychiatrist & a physician in psychological medicine.
On appeal: general deterrence - criticism as a matter of principle to the use of Griffiths remand, especially in light of observations made by sentencing judge that at end of period of remand, respondent may well receive a custodial sentence.
Appeal dismissed.
111

VAN DOUNG, Ja - CCA, 4.3.98
Application for leave to appeal against interlocutory judgement.
On 5.12.97, applicant made application to DC to have hearing date vacated on ground that media publicity had such a prejudicial effect as to render a fair trial impossible. In refusing this application, judge remarked there was no doubt applicant had received maximum publicity but it was highly unlikely that any juror or prospective juror would link up this publicity with person appearing in the dock on 23.3.98 & during trial.
Application refused.
112

WAYNE, William Henry - CCA, 2.3.98
Sentence appeal.
Cultivate commercial quantity cannabis; deemed supply cannabis.
During course of sentencing proceedings, his Honour inquired of counsel as to maximum penalty available for cultivation of commercial quantity of cannabis & was informed by both counsel that it was 20y. In fact, max penalty at that time was 15y. His Honour proceeded to sentence applicant upon understanding that max penalty for that offence was 20y, imposing a MT of 3y & AT of 1y on cultivation charge & 1y FT on deemed supply charge.
Appeal allowed on sentence for cultivation charge: resentenced to MT 2y 3m, AT 9m.
113

SMITH, Lance Lawrence - CCA, 4.3.98
Sentence appeal.
2 x drive in manner dangerous causing GBH; 2 further offences of same kind on a Form 1 taken into account. Guilty plea.
MT 2y 3m, AT 9m.
All offences arose from one accident when applicant overtook a car, moved to the wrong side of the road & collided with an oncoming car. All 4 occupants of other car sustained significant injuries, the most serious being a young woman who became a paraplegic. Applicant has no memory of collision. Good subjective features.
Appeal dismissed.
114

WEST, Mary Jane - CCA, 11.12.97
Sentence appeal.
1 x obtain valuable thing by deception (s.178BA Crimes Act); 1 x attempt obtain valuable thing by deception (ss.178BA & 344A); 21 x make false or misleading statement with intent to obtain financial advantage (s.178BB); + a Form 2 document containing 285 x obtain benefit by deception & 2 x goods in custody; there was a further Form 2 containing 1 x obtain benefit by deception.
MT 18m, AT 6m.
The above offences involved applicant obtaining 25 credit cards and using them to obtain merchandise & services for herself and her partner to the value of approx $55,000.
At time of above offences, applicant was on 3 recognizances for offences which included passing valueless cheques & obtain benefit by deception.
On appeal, applicant relied upon fact that matters arising under s.442B Crimes Act were not, and should have been, put squarely before his Honour.
Appeal dismissed.
115

B, J. - SC NSW, David Hunt CJ at CL, 20.11.97
Remarks on sentence.
Felony murder.
JB and his cousin (RJH) were tried separately. Pleaded guilty. Originally, JB had agreed to give evidence against RJH, but immediately before JB was sentenced he withdrew that offer.
The deceased was walking along a concrete pathway to his home after disembarking from a train at Metford Railway Station at approximately 6.05 pm. This was a route that he always took to go home. JB and RJH robbed the deceased of his wallet and struck him a number of times around the head, causing his death. Joint criminal enterprise - young offenders.
Sentenced to: MT 11y, AT 5y.
116

H, R.J. - SC NSW, David Hunt CJ at CL, 25.11.97
Remarks on sentence.
Felony murder.
RJH and his cousin (JB) were tried separately. Pleaded guilty. Originally, JB had agreed to give evidence against RJH, but immediately before JB was sentenced he withdrew that offer.
The deceased was walking along a concrete pathway to his home after disembarking from a train at Metford Railway Station at approximately 6.05 pm. This was a route that he always took to go home. It was along this pathway that RJH and JB robbed the deceased of his wallet and struck him a number of times around the head, causing his death. Some evidence that RJH tried to choke deceased. Joint criminal enterprise - young offenders.
Sentenced to : MT 12y, AT 6y.
117

BOLLEN, Mark Andrew - CCA, 25.3.98 - 99 A Crim R 510
Conviction and sentence appeal.
Manslaughter.
MT 4y 3m, AT 1y 3m.
Appellant originally charged with murder: jury found him not guilty of murder but guilty of manslaughter.
At time of trial, friends & relations of victim were in court wearing badges with a photograph of deceased - perception that attempt being made to create sympathy for deceased & to convey pre-judgement of guilt of accused - irrelevance to sentence of victim impact statements containing particular effects of death of deceased upon members of his family - directions - manslaughter - self-defence.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 3y 4m, AT 1y 2m.
118

DAVIES, Grant - CCA, 27.3.98
Crown appeal.
Steal MV; dangerous drive occasioning GBH.
Sentenced to 3y PD.
Driver intoxicated - no finding of excessive speed - minimal findings of fact by sentencing judge.
Appeal dismissed: sentence lenient but not outside range of discretion.
119

CHARLES, Edgar Desmond - CCA, 23.3.98
Conviction appeal.
Perjury; intent to pervert course of justice.
False evidence given at Coroner's inquest - whether material to inquest - test for materiality - whether inquest a judicial proceeding - jury directed that act of misinforming a police officer during an investigation perverts the course of justice - whether direction correct.
Conviction appeal on first count dismissed;
appeal against conviction on second count allowed - conviction quashed & verdict of acquittal entered.
120

K, D.J. - CCA, 23.3.98
Conviction appeal.
Indecently assault female.
Complainant aged 9y at time & under appellant's authority - complaint made about 2 months after alleged event.
Directions - complaint evidence - delay.
Appeal dismissed.
121

M, A. - CCA, 2.4.98
Conviction and sentence appeal.
Multiple charges of child sexual abuse - appellant convicted of one but acquitted of others - whether verdict unsafe or unsatisfactory. Jones v The Queen (1997) 149 ALR 598 applied.
Conviction appeal allowed: judgement of acquittal entered.
122

NGUYEN, Linh Van - CCA, 20.3.98
Conviction appeal.
1 x murder; 2 x malicious wounding.
MT 9y, AT 5y.
Applicant's wife was the murder victim; his daughter & a family friend were the victims of the malicious wounding charges.
No dispute that appellant killed the deceased. Appellant's state of mind at the time was the principal issue at trial.
Whether jury's rejection of defence of diminished responsibility was unsafe & unsatisfactory - nature of issues raised by defence - relevance of medical evidence.
Appeal dismissed.
123

RICHARDS, Warren Austin - CCA, 3.4.98
Conviction and sentence appeal.
1 x supply heroin (received MT 5y, AT 20m); 1 x possess pistol (received FT 18m).
Crown case based entirely on evidence from various police officers as to items allegedly found on appellant at time of arrest, items found at his residence & various alleged conversations between appellant & police officers. Appellant disputed almost all of police evidence. Trial judge admitted evidence over objection & gave directions that it might be unreliable & caution should be exercised. Later in summing up, trial judge said police officers were experienced witnesses & jury should bear that in mind. Counsel for appellant then sought further direction with reference to s.165(2)(b) Evidence Act & McKinney & Judge (1991) 171 CLR 468. Trial judge then put to jury that at time of alleged conversations, appellant was in the presence of police officers only. During the trial, counsel for appellant sought to cross-examine some of the police officers on their credit with reference to material from Royal Commission into the NSW Police Service. The material contained evidence given to the Commission that 3 of the police officers had been involved in fabrication of evidence & records of interview. Trial judge declined to permit cross-examination on basis that evidence had no substantial probative value.
Evidence Act ss 90, 135, 137 & 165 - police evidence not corroborated by independent observers - cross-examination on credit.
Appeal allowed: convictions quashed, new trial ordered.
124

JAMIESON, Matthew - CCA, 24.3.98
Crown appeal.
Maliciously inflict GBH.
MT 15m, AT 21m.
Victim a frail man - injuries regarded as life-threatening - no recollection of attack - left with neurological deficits regarded as permanent.
Unprovoked attack - respondent a young man - had been drinking heavily the day before the attack - no recollection of what happened - tragic background - heavy drinking - resolve to undergo drug & alcohol counselling - benefit of extended supervision on release.
Appeal allowed: resentenced to MT 3y, AT 2y.
125

WANNA, Anwar Sabry - CCA, 6.3.98
Crown appeal.
Offences against Migration Act s.281.
500 hours CSO.
Crown alleged sentence inadequate because of serious circumstances of aggravation - such circumstances not implicit in jury's verdict & not the subject of any clear finding by the sentencing judge.
Appeal dismissed.
126

BALL, Matthew Christopher - CCA, 4.3.98
Sentence appeal.
4 x supply prohibited drugs (8 grams cannabis leaf; 1.41 grams methylamphetamine & 32 LSD tablets).
Concurrent sentences: MT 2y 3m, AT 9m.
All the drugs were found at applicant's home, along with an exercise book recording purchases & sales of drugs over the period 23.7.96 to 3.12.96, indicating a total of 41 instances of supply, the total proceeds amounting to $44,850. He also admitted to having started trading some weeks prior to keeping records & to the fact that cash sales were not recorded.
Early guilty plea - cannabis addiction - supportive family - regular employment - deterrence.
Appeal dismissed.
127

HOANG, Van Dung - CCA, 4.3.98
Conviction and sentence appeal.
Supply heroin.
MT 3y, AT 1y.
Appellant arrested during course of a 'drug deal'set up by the Drug Enforcement Agency. Participants included the appellant as supplier & 2 purchasers (an undercover operative & a police officer). All 3 participants were of Vietnamese origin.
Appellant was born in Vietnam and does not speak English.
Whether unsafe & unsatisfactory - claim of miscarriage of justice arising out of violation of the human rights of the appellant.
Appeal dismissed.
128

KARAISKAKIS, Con - CCA, 3.4.98
Sentence appeal.
29 x imposition upon the Commonwealth.
Concurrent sentences: MT 2m, AT 12m.
Applicant was an auditor at the Australian Tax Office. Used position & knowledge to obtain tax refunds by lodging false tax returns, using genuine tax payers names & tax file numbers, supported by fraudulent group certificates. In all, 29 returns were lodged seeking an amount of $226,971. Some $30,750 had been paid before the frauds were discovered. The whole of that amount has been recovered.
Favourable pre-sentence report, references - good employment history - history of depression related to family difficulties - poor heal of daughter suffering from serious illness requiring constant care & treatment.
Submitted that home detention ought to have been considered - insufficient weight given to daughter's illness & resulting hardship to his family from appellant's incarceration.
Appeal dismissed.
129

LUM, Sai Toung - CCA, 6.3.98
Sentence appeal.
2 x supply cocaine (2 ounces); 1 x deemed supply cocaine (4 ounces). There were 2 matters on a Form 1 - possess cocaine (3 grams) & possess ecstasy (250 grams).
MT 4*y, AT 1*y.
No priors - early guilty plea - sentence inconsistent with general pattern of sentencing for offence type - good rehabilitation prospects.
Appeal allowed: resentenced to MT 3y, AT 1y.
130

SINCLAIR, Alexander - CCA, 4.3.98
Sentence appeal.
Wound with intent to murder.
MT 5y, AT 2y.
Whilst at a Katoomba hotel, the applicant & the victim were involved in an argument. A scuffle took place & applicant was ejected from the hotel. He then walked to his home, later returning with a 20 centimetre blade knife which was secreted up his right sleeve & waited outside the hotel. The victim left the hotel & entered the main bar of another hotel, the applicant following him & waiting outside. After a time, the applicant walked into the bar, approached the victim & in front of a number of patrons, stabbed the victim twice in the abdomen before bar staff managed to subdue him.
Pre-Sentence Report referred to problems in childhood - chronic fatigue syndrome - binge drinking problem - receiving counselling in gaol to address emotional problems - early plea of guilty - no prior convictions.
Appeal dismissed.
131

W, G.N. - CCA, 2.3.98
Sentence appeal.
Malicious wounding.
MT 3y 9m, AT 1y 3m.
After a long 'liquid lunch', the applicant was being driven home by his male friend with the friend's female friend sitting in the front passenger seat & the applicant in the rear seat. He took out a lock handle knife with a 10 cm long blade & cut the female's throat, the wound being 6 cm in length & 2 cm deep & cutting through the platysma muscle & the external jugular vein. The applicant claimed there was no intent & that it was an 'idiotic, stupid, drunken act'Originally charged with malicious wounding with intent to do GBH, he offered to plead guilty to a charge under s.35 at the committal hearing on 3.8.94 & gave written instructions to this effect to his solicitor on 21.11.95. It was not until 10.12.96 that the Crown indicated it would be prepared to accept the applicant's plea under s.35. His Honour took the plea of guilty into account but was not satisfied it was entered at the earliest possible time.
Insufficient weight given to early plea and assistance to authorities.
Appeal allowed: resentenced to MT 3y, AT 1y.
132

NICHOLAS v THE QUEEN - HC, 2.2.98 - 193 CLR 173;72 ALJR 456
Evidence - judicial discretion to admit or exclude - illegally obtained by law enforcement officers as to prohibited imports under Customs Act 1901 (Cth) - amendment to Crimes Act 1914 to prevent rejection of evidence on ground of prima facie unlawfulness - 'controlled operation'. Amendment not usurping Commonwealth judicial power - not applying 'ad hominem' - not undermining integrity of court's processes or public confidence - Crimes Amendment (Controlled Operations) Act 1996 - Crimes Act 1914 s.15x.
Stay of proceedings - not operating as immunity from punishment for criminal offence - not equivalent to verdict & judgement of acquittal.
Separation of judicial power - amendment of Crimes Act 1914 (Cth) as to receipt of evidence in case of certain prohibited imports - amendment purely adjectival & going only to evidentiary matters - not affecting judicial power to determine guilt - no infringement or usurpation of judicial power shown.
133

FORD, John Albert - CCA, 9.4.98
Conviction and sentence appeal.
Counts 1 & 5: aggravated sexual intercourse without consent.
Count 2: aggravated indecent assault.
Counts 3 & 4: attempt aggravated sexual intercourse.
As to counts 1, 3, 4 & 5 sentenced to MT 6y, AT 2y; as to count 2 sentenced to concurrent FT 4y.
All offences were upon daughter of appellant's then de facto wife. The complainant was 10y at time of offences and 12 at time of trial. Complainant gave evidence that offences occurred whilst mother absent. Evidence of mother and neighbour contrary to that of complainant. Mother stated complainant had 'the tendency to fantasise about things, make up stories'.
Unsafe and unsatisfactory - fresh evidence - directions on complaint inadequate.
Appeal allowed on unsafe & unsatisfactory, without considering other grounds: conviction quashed, judgement of acquittal entered on all counts.
134

DEBNAM, Charles Anthony - CCA, 2.3.98
Sentence appeal.
Aggravated dangerous driving causing GBH; + drive whilst unlicensed on a Form 1.
MT 3y, AT 1y.
Applicant drove into rear of milk vendor's motor vehicle causing serious & life-threatening injuries to vendor. Applicant claimed no recollection - had been drinking heavily on day before & on day of accident - blood alcohol reading of 0.217.
Extensive criminal record - convictions for smoking cannabis, stealing, speeding, drive whilst disqualified, assault, resist arrest, possess firearm & use it whilst intoxicated, drive whilst intoxicated, negligent driving.
Submitted judge should have found special circumstances & imposed longer AT & shorter MT.
Appeal dismissed.
135

HARVEY, Warren Craig - CCA, 9.4.98
Conviction and sentence appeal.
6 x indecent assault of child under 16y & under authority (received concurrent FT 2y on each); 4 x sexual intercourse with child under 10y (received concurrent MT 3y, AT 2y on each).
Complainant was daughter of applicant's de facto wife. Complainant first mentioned applicant's alleged criminal conduct to her mother over 5 years after applicant & complainant's mother had ceased living together.
Unsafe & unsatisfactory - directions - delay - credibility of complainant - inconsistencies in complainant's evidence - inconsistencies in complainant's mother's evidence.
Appeal allowed: convictions quashed, verdict of acquittal entered on each count.
136

EL-SALEH, Edean Houssam - CCA, 9.4.98
Conviction appeal.
Import trafficable quantity heroin.
Appellant detained on his arrival at Sydney Airport from Lebanon - 70 small packages concealed in appellant's bowel area containing a gross weight of 300.5 grams with a purity of 46%, yielding approximately 138 grams pure heroin. Appellant claimed he was coerced into committing the offence, with threats being made against himself & his family. Appellant a heroin addict.
Duress - Abousafiah direction (1991) 24 NSWLR 531- rule in Zheng (1995) 83 A Crim R 572- rule in Edwards (1993) 178 CLR 193 - directions on circumstantial evidence.
Appeal dismissed.
137

KHAMSAO, Paivan - CCA, 1.4.98
Sentence appeal.
2 x supply heroin.
MT 3y, AT 1y.
Applicant arrested as a result of surveillance by the Australian Federal Police Regional Investigation Unit. Applicant was observed travelling to Campbelltown in a rented vehicle & later to Canberra. A search of his vehicle disclosed a brown paper bag containing an orange coloured balloon which contained heroin (73.5% pure - no details of quantity given) with a potential street value of $6,600. In an interview with police he admitted he had travelled from Canberra to Cabramatta for the purpose of purchasing heroin which he intended taking back to Canberra & cutting into half gram lots & selling. During the interview, applicant admitted he had previously purchased heroin in Cabramatta & taken it back to Canberra to sell.
Gambling problem - drug addiction - first term of imprisonment - rehabilitation.
No specific evidence of applicant's need for rehabilitation.
Appeal dismissed.
138

PINE, Tevita - CCA, 4.3.98
Sentence appeal.
3 x dangerous drive occasioning GBH; + 1 x drive whilst unlicensed on a Form 1.
MT 2y, AT 18m.
Applicant & wife were travelling in their car, applicant driving, when wife told applicant to 'get out of my life', whereupon applicant accelerated & the vehicle cut across to the left, mounted the kerb, travelled a short distance on the grass verge & collided with a tree. Applicant's blood alcohol reading was 0.149.
5 previous convictions for driving with high blood alcohol reading; 6 convictions for driving whilst disqualified; convictions for assault. Poor health: diabetes, obesity, cardiomyopathy, hypertension, liver & kidney impairment, emphysema & alcoholism - medical evidence life expectancy probably no longer than further 5 to 7 years.
Submitted insufficient weight given to applicant's health problems & reduced life expectancy - application for total sentence to be reduced to not more than 18m & order made for it to be served by way of home detention.
Appeal dismissed.
139

LOSURDO, Charles (v DPP & ANOR) - NSW SC, Hidden J, 10.3.98 - 101 A Crim R 162
Judgement on refusal of magistrate to direct attendance of witnesses at committal. Application of wrong test by magistrate.
Matter remitted to the magistrate for reconsideration.
140

GRANGER, Garry Leslie - CCA, 30.3.98
Sentence appeal.
2 x BE&S; + 1 x BE&S taken into account.
MT 26*m, AT 9*m.
The first offence was upon a general store where applicant stole a safe, 2 padlocks & a box of stamps. The second offence was upon a newsagency where he stole $230 in cash & 402 packets of cigarettes. He was on bail at time of committing third offence when he stole a large quantity of cigarettes & 2 watches. Most of the property stolen was recovered. Damage was occasioned to the properties entered. Previous convictions for driving offences (unregistered vehicle, unlicensed, excessive blood alcohol level), as well as abduction of female. No priors for dishonesty. Prospects of a stable relationship with female friend & employment with his sister. Guilty plea - no assistance to authorities in relation to co-offenders - limited recognition given to question of contrition.
Submitted that sentencing judge erred in failing to find special circumstances.
Appeal dismissed.
141

SURESH v THE QUEEN - HC, 3.4.98 - 72 ALJR 769
Sexual offences.
Prior complaint evidence - admissibility - requirement that evidence of complaint be early or recent.
Effect of admission of prior consistent complaint evidence on credibility of complainant - whether accused deprived of chance of acquittal that is fairly open where prior consistent complaint evidence wrongly admitted - application of proviso.
Summing up to jury - jury directed that complaint evidence relevant to identification of accused as sexual offender.
Prior inconsistent statement - complaint evidence relied on by defence as prior inconsistent statement - admissibility - purpose of rules governing admissibility.
Whether prior complaint evidence should be led which does not specifically identify accused - relevance and probative value of prior complaint evidence which does not specifically identify accused.
142

KELLY, Tania - NSW DC, Phelan J, 3.2.98
Judgement on voir dire.
S.114 Evidence Act - Identification.
Armed robbery.
Voir dire held to inquire as to whether requisites of s.114 Evidence Act had been met, in that it was contended the identification was made in breach of s.114(2) in that the person who made it had been intentionally influenced to identify the defendant.
143

McGOLDRICK, Francis Xavier - CCA, 28.4.98
Conviction and sentence appeal.
2 x supply heroin; 1 x possess unlicensed firearm.
MT 6y 9m, AT 2y 3m.
Crown relied upon evidence from police surveillance of premises, including video tapes of various activities & recordings of conversations obtained in 1993 through listening device. Behaviour observed & terms of conversations recorded said to be consistent with supply of drugs. Police went to premises & found black bag containing blender, scales & revolver cartridges said to be in appellant's possession. Elsewhere on premises, police found revolver. Some years later, at request of DPP, scales & blender examined & traces of heroin found on them.
Police officer at trial reluctant to give evidence of another police officer's fabrication of evidence as he believed the matter had not been dealt with by way of indemnification, describing himself as being in an awkward position. Refusal of trial judge to accede to joint application of counsel to grant certificate under s.128 Evidence Act - cross-examination on credit - Evidence Act s.103 - substantial probative value - reasonable grounds.
Appeal allowed: new trial ordered.
144

NELSON, Raymond John - CCA, 28.4.98
Conviction appeal.
Aggravated indecent assault.
MT 12m, AT 12m.
Complainant 7 or 8y at time of commission of offence.
Evidence of child by closed circuit television facilities. Father present as supportive person. Suggestion that father kicked complainant's chair. Whether grounds for reasonable apprehension of interference with complainant in closed circuit television room. Whether verdict unsafe & unsatisfactory.
Appeal dismissed.
145

MICKLESSON v Parole Board of NSW - NSW Ct of Appeal, 13.8.97
Prerogative orders sought in relation to Parole Board of NSW refusing to make an order for applicant to be admitted to parole.
Applicant convicted of various sex offences committed against stepdaughters. While in prison, submitted to limited psychological counselling & sex offender treatment. Consistently maintained innocence. Pre-release report indicated that due to denial of guilt & lack of therapy any risk of re-offending hard to gauge - parole denied - Judicial review sought. Applicant claimed policy existed in prison system that if offender did not submit to therapy & admit guilt, parole would not be granted. Further claimed that even if regard may be had to such policy, Board erred in not taking into account matters that were in applicant's favour for release.
Held: Not demonstrated that such policy existed in prison system. Even if policy existed it would not have been improper for Board to have regard to it in its deliberations. Not established that Board did not take into account matters that were in applicant's favour for release.
146

CLARK, Garry Raymond - CCA, 17.4.98
Conviction appeal.
Sexual intercourse without consent.
MT 6y 9m, AT 2y 3m.
Alleged rape of young prisoner (19y) whilst in custody.
Jury directed that lies allegedly told by appellant were available to be used as evidence of consciousness of guilt.
Sexual intercourse - whether without consent, to the knowledge of the accused - Crimes Act s.61I - whether inadequacy in directions to jury on that issue.
Appeal allowed: new trial ordered.
147

DAY, Gary Walter - CCA, 23.4.98 - 100 A Crim R 275
Crown appeal.
Supply heroin; supply cannabis; + goods in custody & possess utensil to administer cannabis on Form 1.
18m PD for supply heroin.
5y GBB for supply cannabis.
Special circumstances - wife dead - respondent unemployed - in receipt of sole parent benefit - children aged 12, 13 & 15.
Whether hardship to children should be taken into account in sentencing.
R v WHS (NSW CCA, unreported, 27.3.95); R v Edwards (NSW CCA, unreported, 17.12.96) applied.
Appeal allowed: sentence for supply heroin set aside & FT 16m imposed. Sentence for supply cannabis confirmed.
148

FADEL, Kamille - CCA, 1.5.98
Conviction and sentence appeal.
Murder.
MT 14y, AT 4y.
Deceased attended memorial service for a cousin who had died in Lebanon. After the service he drove to Stanmore to attend a wake, parked his car but before he was able to leave it, another vehicle drew up alongside & a shot was fired from it. Deceased sustained wound to head, causing his death.
Circumstantial evidence - witness takes number plate of car from which fatal shot fired - sufficiency of directions in summing up - whether verdict unsafe & unsatisfactory.
Appeal dismissed.
149

HARRISON, Maxwell Charles - CCA, 24.4.98
Conviction and sentence appeal.
Maliciously damage dwelling house with intent to endanger lives of occupants.
MT 3y, AT 1y 10m.
Appellant convicted of fire-bombing dwelling house - appealed on ground of fresh scientific evidence.
Held: evidence not fresh as it was reasonably available at time of trial & did not materially assist case of appellant.
Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259 applied.
Appeal dismissed.
150

KAY, Roula - CCA, 27.4.98 - 100 A Crim R 367
Application for leave to appeal against interlocutory judgement.
Applicant & 4 others on trial, charged with conspire to supply commercial quantity cocaine & conspire to supply commercial quantity heroin.
Applicant applied for a stay of her trial on the ground that she was unable to obtain legal representation. This was refused & she sought leave to appeal.
Stay of proceedings - legal representation - whether accused's conduct unreasonable - conserving funds for trial.
Appeal allowed: material remitted to trial judge.
151

LILLEY, Ronald Stephen - CCA, 23.3.98
Application for leave to appeal against interlocutory orders.
Applicant sought leave to appeal against interlocutory order upholding National Crime Authority's objection to produce certain documents under a subpoena on basis of protection conferred on Authority by s.51(3) National Crime Authority Act 1984. Essential issue whether there had been a prosecution instituted as a result of an investigation by the Authority within s.51(3) which constituted an exception to provision that documents or matter obtained in course of Authority performing its duties shall not be required to be produced in court.
Leave to appeal refused.
152

MAHARAJ, Paul - CCA, 1.5.98
Conviction appeal.
Dishonestly obtain valuable security by deception (in the form of a cheque in the sum of $50,000).
FT 5m 26d.
This was second trial - previously convicted of different offence arising out of same set of circumstances & had been sentenced to MT 12m, AT 4m. By time of second trial had served 6m 4d of that sentence. At first trial, appellant had been charged under s.178A Crimes Act with fraudulent misappropriation (carrying max 7y). At second trial, Crown repeated charge under s.178A but also charged appellant under s.178BA in the alternative. Following conviction at earlier trial, appellant appealed & new trial was ordered. Sentence following second trial was equal to sentence following first trial, less amount of time already served.
Whether alternative charges permissible - whether evidence of operative deception.
Appeal dismissed.
153

ROBERTSON, Shane George - CCA, 25.3.98
Crown appeal.
AOABH.
2y GBB.
Young daughter of respondent's wife killed in car accident. Respondent felt deep sense of personal grievance against driver of car responsible for accident, was especially resentful of what appeared to be leniency with which driver was treated by legal system. Apprehended violence order made against respondent after he made threats against driver. Whilst subject to apprehended violence order, respondent, his wife & an unidentified male person wearing a balaclava for disguise, went to home of driver, where the respondent and unidentified male assaulted both the driver and driver's wife. Driver suffered cut to head, cut lip, bruising above right eye, swollen right eye & possible fractured nose. Driver's wife sustained severe swelling to right eye & cheek.
Sentencing judge pre-empts calling of evidence by counsel - fails to consider aggravating features of case.
Appeal allowed: matter remitted to DC for determination of sentence.
154

SAXON, Lloyd Arthur - CCA, 21.4.98 - 101 A Crim R 71
Conviction appeal.
Conspiracy to import cannabis (s.233B(1)(b) Customs Act 1901) - money laundering (s.811 Proceeds of Crimes Act 1977 - prior appeal dismissed - court order perfected - fresh evidence - whether Court has jurisdiction to re-open appeal.
Grierson v The King (1938) 60 CLR 431 applied.
Application dismissed.
155

TAYLOR, Warren - CCA, 25.2.98 & 27.4.98
Crown appeal.
B&E; AOABH; + a count of aggravated cruelty to an animal taken into account.
Victim a 62y old woman living alone - attacked in her home.
Respondent claimed to be drunk at the time.
MT 2m, AT 22m.
Adequacy of sentence - discretionary considerations.
Appeal dismissed.
156

V - CCA, 16.4.98 (formerly listed as VAWDREY, John Charles Philip) - 100 A Crim R 488
Conviction and sentence appeal.
2 x sexual intercourse with person under 16 under authority; 1 x aggravated indecent assault; 1 x aggravated sexual intercourse without consent.
MT 4y, AT 2y.
Sexual offences against step-daughter.
Complaints made over 3y after first incident & about 2*y after complainant ceased living with appellant. Suggestion at trial that mother was playing an active role in influencing evidence being adduced.
Ss.102, 103(1), 164 & 165 Evidence Act - need for Murray direction - Crown case in reply - adequacy of summing up.
Appeal allowed: convictions quashed, judgement of acquittal entered on each count.
157

SULLIVAN, Michael John - CCA, 29.4.98
Sentence appeal.
Armed robbery; possess stolen motor vehicle; + one count of stealing on a Form 1.
MT 5y, AT 3y on armed robbery, taking into account Form 1 offence; FT 12m on possess stolen motor vehicle.
The armed rob took place in the National Australia Bank at Pambula, yielding $25,671; the stealing offence involved stealing 4 bottles of perfume from Grace Bros. The perfume was recovered but the money stolen from the NAB was not.
Extensive record, including armed robbery & trafficking in heroin - premeditation - guilty plea - attempts to overcome drug & alcohol addiction.
Submitted sentence manifestly excessive.
Appeal dismissed.
158

MILLE, Raymond - CCA, 1.5.98
Sentence appeal.
9 x larceny as a servant; + 3 further matters on a Form 1.
MT 12m, AT 3m.
Applicant employed as ranger/security guard with TNT Harbourlink, who are responsible for the administration & running of the Sydney Monorail System. Applicant stole monies from electronic ticket machines which housed at each of the stations. Stole $27,755.50 over a period of 6 months.
Early guilty plea - no priors - previous unblemished character - gambling problem.
Submitted sentence manifestly excessive - failed to consider alternatives to full-time custodial sentence - option of home detention.
Appeal dismissed.
159

OINONEN, Lauri Levi - NSW SC, Dunford J, 31.3.98
Judgement - s.138(1)(b) Evidence Act.
Ruling sought to exclude certain questions & answers given by accused when interviewed by police on day of shooting - accused arrested shortly after shooting - claimed he was drunk at time of questioning - questioned at police station & at accused's campsite.
160

FELL, Graham Ronald - CCA, 1.5.98
Sentence appeal.
Escape lawful custody.
MT 18m, AT 6m. This sentence to be served cumulative upon any other sentence already being served.
At time of escape, applicant was serving sentence of 3y comprising MT 2*y, AT 6m. He had already served 18m of that sentence at St Helliers Correctional Centre - some confusion as to whether he had a C2 or C3 classification.
Applicant's excuse for escaping was that his daughter had phoned him on morning of escape & told him she was being hit by ex-wife's new de facto. Ex-wife had also been attempting to change children's surname to that of her new de facto & applicant was upset about that.
Totality - special circumstances.
Appeal allowed insofar as to adjust MT & AT: re-sentenced to MT 12m, AT 12m.
161

SPIRIDONOV, Oleg - CCA, 1.5.98
Sentence appeal.
11 x use false instrument with intent; + 12 similar offences on a Form 1.
MT 3y, AT 12m.
Constructed number of false documents in name of Michail Berlogin, which included NSW interim driver's license, UTS student card, Australian Tax Office receipt & Energy Australia receipt. Applied to ANZ Bank for ANZ Visa card, using false ID for application, also to NAB for Visa card. Form 1 matters included Visa cards or Mastercard. All cards used for cash advances & transactions. Facts sheets tendered asserted police investigations identified $189,797.86 as being fraudulently obtained, proceedings at trial went forward upon basis of $45,000 being obtained. Co-offender absconded. Compensation of about 70% paid to banks by applicant.
Previous record for minor offences of dishonesty in Queensland & a matter relating to counterfeit cheques in Canada.
Applicant qualified in medicine & psychiatry in Ukraine. Upon immigration to Australia unable to achieve registration, failing relevant exams. As a consequence developed depression & an alcohol problem.
Early plea - contrition.
Sentence manifestly excessive.
Appeal allowed: resentenced to MT 2y 3m, AT 15m.
162

PRICE, Alan James - CCA, 29.4.98
Sentence appeal.
Conspire to manufacture commercial quantity Methylamphetamine.
MT 2y, AT 5y.
Applicant & co-conspirator had pleaded not guilty & this resulted in 3 trials - first 2 trials jury could not agree - in 3rd trial applicant & co-conspirator found guilty.
Submitted that sentencing judge failed to extend credit to applicant for the 2y 3m already spent in pre-sentence custody in relation to subject offence.
Appeal allowed: resentenced to MT 2y, AT 1y 9m.
163

PHAN, Dinh Le Phong Anh - CCA, 1.4.98
Sentence appeal.
Possess prohibited weapon (.22) - MT 12m, AT 12m.
Demand money with menaces - FT 12m.
Guilty plea - significant criminal history - shortened firearm - live round in breach - offence committed whilst on recognizance - long-standing heroin addiction - special circumstances - totality principle.
Submitted on appeal that judge failed to adjust sentence to reflect period of pre-sentence custody.
Appeal dismissed.
164

BERNIER, Claude - CCA, 19.5.98 - 102 A Crim R 44
Sentence appeal.
Import commercial quantity cocaine (s.233B(1)(b) Customs Act 1901 - carrying max life imprisonment).
Sentenced to 12y with 7*y NPP.
Applicant, a Canadian national, arrived at Sydney on a flight from Canada. Package attached to his stomach with tape containing 3.6 kgs cocaine with a purity of 86%, yielding pure quantity of 2.0451 kgs. Estimated wholesale value between $220,000 & $260,000 - retail value about $800,000.
No priors - guilty plea - long-standing drug addiction - applicant in debt to his suppliers (a notorious bikie gang) - coerced by his suppliers to discharge his debt by bringing cocaine into Australia - threatened with violence & told his de facto wife would be forced into prostitution if he did not do so.
Lower end of commercial range - approach to sentence in such cases - exceptional subjective features.
Appeal allowed: resentenced to 9y with 5*y NPP.
165

ROWSELL, Stephen Donald - CCA, 3.4.98
Sentence appeal.
Armed robbery with offensive instrument; + 3 similar matters on a schedule taken into account.
MT 14m, AT 2y (21d pre-sentence custody taken into account).
Applicant and co-offender entered newsagency, co-offender produced blood-filled syringe saying to proprietor 'Give me money, I've got AIDS'- co-offender took $200 from till, later giving some of this money to applicant. Evidence did not establish applicant formed any intent to assist co-offender earlier than at the last moment - applicant's assistance little more than being present.
Applicant aged 43 - guilty plea - parity (co-offender received MT 15m, AT 2*y) - strong subjective features - dramatic change in life after suffering heart attack 6y before offence - commenced using illegal drugs - major personality change.
Appeal dismissed.
166

OLDFIELD, John Barrie - CCA, 28.4.98
Conviction and sentence appeal.
Conspire to commit offence outside NSW; 3 x supply commercial quantity prohibited drug; + 2 further offences on a schedule.
MT 11y, AT 3y.
Appeals - abandonment - application for reinstatement of appeal - power of court.
Allegations of bribery & corruption of police officers considered & rejected by sentencing judge - fresh evidence at Police Royal Commission - whether sentencing process miscarried.
Consideration of NSW Sentencing Act 1989 s.5.
Appeal dismissed.
167

JOHNSON, Brett Anthony - CCA, 29.4.98
Sentence appeal.
Escape; + 2 x larceny of MV on a Form 1.
FT 12m on first count; MT 18m, AT 6m on second count (cumulative upon sentence of 2y being served at time of escape).
Guilty plea - priors - totality - parity - special circumstances - diagnosed with psychiatric disorder - desire to attend rehabilitation.
Appeal allowed in so far as sentence varied pursuant to s.11(1)(a) Sentencing Act - MT 12m, AT 12m.
168

FANEITE, Ramon Guillermo - CCA, 1.5.98
Sentence appeal.
Import trafficable quantity cocaine; knowingly concerned in importation of trafficable quantity cocaine.
Sentenced to 6*y with a NPP of 4y on each count.
Applicant and his wife arrived in Sydney on a flight from Venezuela - both subjected to baggage examination & body search. Quantity of cocaine located in soles of shoes worn by both applicant & his wife. Co-operated with authorities, taking part in controlled delivery of the cocaine.
Drug courier - total quantity in excess of 1500 grams (834 grams pure in applicant's shoes, 719 grams pure cocaine in wife's shoes) - good prospects of rehabilitation - suffering heart problem & hypertension.
Appeal dismissed.
169

KOTEVSKI, Bill - CCA, 3.4.98
Sentence appeal.
Malicious wounding with intent to do GBH; + a further offence of AOABH taken into account.
MT 2y 3m, AT 9m.
Application originally came on for hearing on 30.3.98 before a Bench of 2 judges, however, those 2 judges were divided in opinion. Proceedings reheard on 3.4.98 before 3 judges (2 from the original hearing).
Applicant and victim (wife) estranged, living apart with proceedings having been commenced in Family Court - bitterness on both sides - continued to work together in takeaway food business - dispute at work about whether one of their children should be given permission to build carport at property where wife was living - applicant 'snapped', lost self-control & attacked his wife (principal offence). He repeatedly stabbed wife with a scraper on back of head & neck; then stabbed her on back of head & neck using an implement similar to a trowel; applicant then lunged at wife with long-bladed knife, however, another person managed to take knife away from applicant but, in course of struggling with applicant, this person suffered number of scratches & lacerations to his hand (AOABH).
Whether sentencing judge failed sufficiently to take into account applicant's belief that his wife had treated him unfairly - whether sentencing judge should have entered into a
determination of the merits of the matrimonial disputes between applicant & his wife.
Appeal dismissed.
170

WRIGHT, Robert Cecil - CCA, 20.4.98
Conviction appeal.
Sexual intercourse without consent.
MT 6m, AT 1*y.
At trial complainant principal Crown witness. Inconsistencies between accounts given by complainant on different occasions, however, quite a large measure of agreement between the different accounts given by complainant of what happened.
Sole ground: verdict unsafe & unsatisfactory.
Appeal dismissed.
171

SCOTT, Mark Anthony - 29.4.98
Sentence appeal.
Armed robbery - MT 4y, AT 16m; steal MV - FT 18m.
Applicant robbed a service station of $365 in cash, using what was believed to be a sawn-off double barrel shotgun (this in fact turned out to be two lengths of pipe taped together). He left the service station & ran towards his vehicle when 2 students gave chase, however, the applicant managed to drive away. He gave himself up to police within a few days.
Guilty pleas - no special circumstances found - co-operation with authorities - general deterrence - sentence at higher end of range.
Appeal dismissed.
172

GREER, George Stephen - CCA, 25.3.98
Conviction appeals (two) & sentence appeal.
1st appeal: 4 x supply prohibited drugs (heroin and cocaine).
MT 4y, AT 2y on each (concurrent).
2nd appeal (with application for extension of time): 23 x receiving; + 2 x goods in custody taken into account.
FT 12m (concurrent).
Strong Crown case.
Guilty plea - whether plea entered with full knowledge of facts - receipt of competent legal advice - prior convictions.
Appeals dismissed.
173

LEWIS, Daryl Bruce - 24.4.98 - 100 A Crim R 361
Sentence appeal.
2 x solicit to murder.
MT 10y, AT 5y on one count with FT 6y on other (concurrent).
Pleas of guilty.
Two intended victims - intended victims (applicant's sister & her de facto) were witnesses in other criminal proceedings against accused (applicant had been charged with 20 odd counts of sexual assault upon two of his foster sisters).
Appeal dismissed.
174

BESSANT, Glen Thomas - NSW SC, Smart J, 20.5.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Manslaughter.
Whilst in gaol on remand for an armed robbery with wounding offence, applicant told fellow inmate that he was responsible for the fatal shooting of a young girl aged 5y. Applicant later interviewed by detectives, admitting responsibility for the shooting & was charged with murder. He nominated two others as being involved in the killing.
Jury returned verdict of not guilty of murder but guilty of manslaughter.
Special circumstances - history of drug abuse - progress in prison - rehabilitation - good prospects for future employment once released from custody - need to remain drug-free - need for supervision upon release.
Application allowed, sentenced to MT 12y, AT 6y.
175

SELIM, Jacqueline - CCA, 19.5.98
Sentence appeal.
Attempt obtain possession of trafficable quantity prohibited import (cocaine).
3y with 18m NPP, with order for release upon recognizance after expiration of 18m.
Young American female arrested at Sydney Airport importing 2 packages cocaine told police she was to give the packages to two people, one of them being the applicant - she assisted police in controlled delivery of the package to applicant - quantity involved was 221 grams pure cocaine.
Subjective features - applicant from privileged background - in final year at university when arrested - psychologist's report of unhappy upbringing, emotional & physical abuse from father - began taking drugs at a young age.
Following arrest, applicant gave valuable assistance to authorities which was followed by an arrest - willingness to co-operate with authorities in the future - 7m pre-sentence custody drug-free - good prospects for rehabilitation.
On appeal: submitted error in not taking into account as mitigating factor that applicant's addiction to cocaine motivated crime; error in reduction made to take account sentence to be imposed not subject to remission; question of parity.
Appeal dismissed.
176

PIRIMONA, Lawrence Stewart - SC Tasmania, Slicer J, 4.5.98
Application for stay of proceedings which were instituted by indictment alleging commission of crime of receiving ( Criminal Code, s.258). Application based on contention that, absent legal representation, applicant will be unable to obtain fair trial in accordance with principles stated by High Court in Dietrich v The Queen (1992) 177 CLR 292. Accepted by Crown that applicant indigent & had taken all reasonable steps to obtain legal representation & would be without representation at trial. Applicant represented by counsel for purpose of applying for stay, but such representation limited only to application.
Application for stay of proceedings dismissed.
177

CHENEY, Roger David - CCA, 28.4.98
Conviction appeal.
1st count: maliciously inflict ABH with intent to have sexual intercourse;
2nd count (in the alternative): AOABH;
3rd count: AOABH (of police officer).
Tried by judge sitting alone - not guilty plea on each count. His Honour found offences charged in 1st & 3rd counts proved beyond reasonable doubt.
Sentence: 1st count - MT 4y 8m, AT 2y. 3rd count - FT 1y (concurrent).
Appeal against conviction only in respect of 1st count.
Submitted verdict unsafe & unsatisfactory: absence of evidence by alleged victim; quality of evidence of identification; evidence supporting correctness of evidence of identification.
Appeal dismissed.
178

COONEY, Anthony - CCA, 31.10.97
Sentence appeal.
5 x impose on Commonwealth (involving assumption of fraudulent identity in order to obtain payments of Social Security) - sentenced to 18m on one charge; on each of other four charges FT 18m to be served concurrently but cumulative upon the 18m on first charge;
2 x obtain financial advantage by deception (passing of valueless cheque & obtain American Express card with forged documents) - sentenced to concurrent MT 3y, AT 1y.
There were a further 35 matters for dishonesty on two schedules taken into account.
Guilty pleas - extremely long record of previous offences - departure from statutory ratio of AT not exceeding one-third of MT - special circumstances - applicant extremely young - minimal attempts at rehabilitation.
Appeal dismissed.
179

McKNOULTY, Thomas John - CCA, 20.5.98
Conviction appeal and application to set aside previous notice of abandonment in sentence appeal.
Assault with intent to do GBH (max 25y).
MT 13y 6m, AT 4y 6m.
Applicant represented on sentence appeal; appeared for himself on conviction appeal.
Horrific injury - victim reduced to vegetative state - no particular point of principle - severe sentence merited.
Conviction appeal dismissed.
Sentence appeal dismissed.
180

GITT, Stephen Manfred - CCA, 18.5.98
Crown appeal.
1 x armed rob.
500 hours CSO.
Respondent produced a knife, grabbed victim's handbag in shopping centre. When victim resisted, respondent cut the straps & in doing so caused a cut to victim's finger.
Respondent 37 year old man in financial need - emotionally dependent on his wife who suffered from agoraphobia.
Priors, but none including violence.
Appeal dismissed. Sentence inadequate but CCA exercised discretion not to intervene.
181

SERDIUK, Adam George - CCA, 26.5.98 - 100 A Crim R 552
Crown appeal.
Use offensive weapon with intent to prevent lawful apprehension; committal for sentence for 2 x larceny of MV; multiple matters taken into account on schedules.
200h CSO & recognizance.
The use offensive weapon arose out of an attack upon a police officer with capsicum spray - substantial prior & recent record.
Sentence manifestly inadequate.
Appeal allowed: resentenced to MT 15m, AT 9m.
182

UNTAN, Ion - CCA, 13.5.98
Crown appeal.
1st indictment: 2 x possess shortened firearms
2nd indictment: 1 x BE & commit felony in circumstances of special aggravation [s.112(3)].
3 further offences taken into account. Guilty plea on each charge.
Sentence: FT 3y on each firearms charge; MT 3y, AT 2y on the s.112(3) charge.
Submitted that each sentence manifestly inadequate & that process of reasoning which led to sentences was flawed by error.
Appeal allowed in relation to s.112(3) charge - resentenced to MT 5y, AT 2*y.
Appeal dismissed on firearms charges.
Recommendation that respondent be placed in facility with access to psychological or psychiatric counselling.
183

WILLIAMS, Imogen - CCA, 26.5.98
Crown appeal.
2 x supply prohibited drug (methylamphetamine).
FT 15m on each count to be served by way of PD.
Early guilty plea - good rehabilitation prospects - favourable subjective material.
Respondent had previously been subjected to severe beating by partner, resulting in shattered bone behind eardrum necessitating surgical intervention to reconstruct parts of her skull. Ongoing tremor in leg & speech slurring.
Finding of exceptional circumstances open to judge.
Appeal dismissed.
184

LEE, Edward William - NSW DC, Kirkham J, 26.2.97
Judgement on application under s.424A Crimes Act and s.85 Evidence Act seeking exclusion of admissions in police detectives' statements.
Admissions arising out of conversations in police vehicle & at police station prior to ERISP being conducted in presence of accused's solicitor where, on solicitor's advice, he declined to answer any questions.
Crown failed to establish reasonable excuse - not reasonable excuse to say police officers not issued with recording devices.
185

LAM, Van Ty - NSW SC, Hidden J, 20.3.98
Remarks on Sentence.
Manslaughter.
Accused and deceased living in same house. Victim killed by knife wounds during violent incident - deceased aggressive both verbally & physically.
Special circumstances - accused had difficult childhood - came to Australia as refugee - longstanding disturbed behaviour - diagnosed with schizophrenia.
Priors for assault.
Sentence: 5y with 3y NPP.
186

DAWSON, Kenneth James - CCA, 19.5.98
Conviction and sentence appeal.
1st count: AOABH;
2nd count: sexual intercourse without consent in circumstances of aggravation;
3rd count: sexual intercourse without consent.
Sentence: 1st count - 2y 8m with MT 2y; 2nd count - 6y 8m with 5y MT; 3rd count - 4y with MT 3y.
Appellant unrepresented. Alleged inconsistencies in evidence of witness. Failure to call complainant's son. Withholding of medication during trial. Mistreatment by Corrective Services officers.
Priors for minor offences - dysfunctional family background - subjected to mental & physical abuse as child - borderline personality disorder.
Appeals dismissed.
187

YOUNG, Karen Deborah - NSW SC, David Levine J, 20.5.98
Remarks on sentence.
Manslaughter.
Plea on basis of provocation.
Stormy & volatile relationship between accused & deceased. Deceased died of multiple stab wounds. Incident arose when deceased started bashing accused, something 'snapped'in accused & a frenzy developed between her & deceased during which the knife wounds were inflicted.
Special circumstances.
Sentence: MT 3y, AT 3y.
188

BELL, Philip Harold - CCA, 26.5.98
Appeal against refusal to grant permanent stay.
Multiple counts of paedophilic activity.
Arrested in South Africa on 17.1.97 & extradited to NSW on 29.5.97 to face 175 charges. Crown proposes to run 3 trials, first involving 38 counts & 5 complainants; 2 further persons proposed to be called to give tendency or coincidence evidence. Estimated first trial will take 6 to 8 weeks. Originally set down for 20.4.98, now listed to commence in July '98. Legal aid refused; an appeal in that regard unsuccessful. Application for stay made, applicant claiming he is indigent & cannot therefore obtain his own legal representation & that any trial held will be unfair & any conviction liable to be quashed on that account. The judge accepted that it would be a daunting prospect for a layman to run his own case in such a trial but refused a stay.
Evidence that applicant has sufficient funds overseas.
Leave to appeal refused.
189

TU, Ronnie - CCA, 20.5.98
Sentence appeal.
4 x sexual intercourse with person between ages of 10 and 16y.
MT 12m, AT 2y on each charge (concurrent).
Successful baker & pastry cook - advances made to girl aged 14 working in bakery.
Guilty plea - first offences - remorseful - unlikely to re-offend - loss of status in Vietnamese community.
Appeal dismissed.
190

KARAGIANNIS, Mario - CCA, 27.5.98
Sentence appeal.
1 x BE&S; + 2 further offences of malicious damage on a schedule.
Sentenced to 2y with MT of 18m. Such sentence to commence on date upon which it was imposed (3.9.97). Applicant was serving a sentence for stealing offences at the time of sentence, due to expire on 21.11.97.
Applicant & 4 others involved in a BE&S of a service station. A short time later their vehicle was stopped and searched, revealing 59 cartons of cigarettes & 43 other packets of cigarettes, as well as $184 in cash found in a bank bag.
Fairly extensive criminal record with a number of BE&S & dishonesty offences.
Applicant submitted sentence manifestly unjust & that sentence was a 2y sentence cumulative on a 6 month sentence already being served.
No substance in either ground.
Appeal dismissed.
191

DOCTOR, Michael Werner - CCA, 20.5.98
Crown appeal.
Supply prohibited drug (cannabis leaf); + a further charge on a schedule of having in his possession $1,500 which was suspected of being stolen or otherwise illegally obtained.
300h CSO.
Amount of cannabis leaf was 12 pounds, with potential wholesale value of $72,000 & potential street value of $100,000.
Respondent & his de facto wife used a vacuum packing machine in the packaging of the cannabis leaf into bags & then transporting these bags in a suitcase containing other personal items to Mascot, where both were arrested. A friend of both had participated in the activities.
The sentencing judge described the respondent's involvement as not being so great, that he had been influenced by the other two participants & that he was satisfied the respondent was 'on the periphery'.
Appeal allowed: resentenced to FT 18m to be served by way of PD.
192

SOONIUS, Franciscus Geradus Josef - CCA, 29.5.98
Conviction and sentence appeal.
Import commercial quantity prohibited drugs - MDMA (Ecstasy).
11y with 6y NPP.
Customs officers found drugs secreted inside a suitcase - 29,450 tables of 3/4 methylenedioxymethamphetamine (MDMA) weighing in total 6.135 kgs, comprising 3.340 kgs pure MDMA - retail value $70 per tablet with a total retail value of $2,063,000 - wholesale value of $15 per table with a total wholesale value of $400,000.
Assistance to police - psychiatric problems.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 9y with 5y 3m NPP.
193

MLACIC, Branko - CCA, 25.5.98
Sentence appeal.
Knowingly take part in supply prohibited drug (heroin); + possess 5 grams cannabis; goods in custody & drive whilst disqualified taken into account.
MT 3y, AT 1y; disqualified from driving for 2y.
Prior convictions - involved in sophisticated organisation - hardworking - real prospects of rehabilitation.
Appeal dismissed.
194

PHAM, Trung Hieu
NGUYEN, Quoc Linh - NSW SC, Hidden J, 15.5.98
Remarks on Sentence.
Nguyen - 2 x robbery in company; 1 x attempt robbery in company. Guilty plea.
Pham - 2 x robbery in company; 1 x attempt robbery in company; manslaughter. Guilty plea.
Robbery in company charges involved both accused demanding money or heroin from two separate victims ($183 & $30 handed over).
Attempt robbery charge involving both accused & the manslaughter charge involving Pham arose when both accused demanded money & heroin from another victim who claimed he had none. He was searched, a fight broke out, the victim produced a knife & lunged at Pham; Pham seized the knife & stabbed the victim in the chest.
Sentence:Pham - MT 5y, AT 3y on manslaughter charge; FT 3y on each of robbery charges (concurrent). Nguyen - 2y GBB.
195

TOCKNELL, Shaun Gerald - CCA, 28.5.98
Crown appeal.
3 x assault with intent to rob whilst being armed with offensive weapon.
300h CSO on first count; Griffiths remand on other two counts.
All three offences arose out of bungled armed robberies upon a newsagency & 2 takeaways over a period of 3 hours. Respondent's intention was to obtain money for food & drugs. Prior to setting out, he had injected himself with half-weights of amphetamines. The enterprise was a pathetic, 'ludicrous'venture and on all three occasions the applicant ran away empty-handed when challenged by staff.
Frank admissions to police - early pleas of guilty - no priors - youth (18 at the time) - disturbed childhood - drug dependency - borderline personality disorder - remorse.
Appeal allowed: sentence on 1st count confirmed; orders on 2nd & 3rd counts quashed & substituted with recognizance of $1,000 to be of good behaviour for 2y.
196

WATTS, Arthur - CCA, 27.5.98
Conviction appeal (purported conviction on 2nd count & conviction on 1st count).
1st count: intercourse without consent - s.61D (complainant under 16y);
2nd count: unlawful carnal knowledge - s.71 (complainant under 16y);
3rd count: unlawful carnal knowledge - s.71 (complainant under 16y).
Pleas of not guilty entered on each count. Shortly after pleas entered, wording on 3rd count amended to 'sexual intercourse'(s.66C).
Verdicts of guilty returned on counts 1 & 2, not guilty on count 3.
By the time of sentence, offences alleged by counts 2 & 3 were statute barred by s.78 (now repealed). The sentencing judge proceeded to sentence applicant in respect of 1st count but refrained from either recording a conviction or sentencing in relation to 2nd count. At sentence hearing & at appeal hearing Crown conceded that counts 2 & 3 could not properly have been brought.
Appeal allowed: conviction & sentence on 1st count quashed; verdict on 2nd count set aside and new trial ordered.
197

FRANCKS, Peter Clarence - CCA, 21.5.98
Sentence appeal.
Rape; carnal knowledge; assault with act of indecency (upon stepdaughter);
carnal knowledge (of daughter);
aggravated indecent assault (upon granddaughter);
MT 4y 9m, AT 2y 9m on rape charge; with lesser terms on the other charges to be served concurrently with the sentence for rape. His Honour made it plain that he structured the sentences having regard to principle of totality.
The offences were committed over many years, with the earliest offence having been committed in 1969, the most recent being in 1995.
Special circumstances - guilty pleas - applicant's age (born in 1938) - respiratory problems, including asthma - sentencing judge described appellant as having above average prospects for rehabilitation.
Additional material presented on appeal as to deterioration of appellant's respiratory function. CCA noted that this deterioration not helped by appellant's increased smoking habit whilst in custody.
Appeal dismissed.
198

KONDRATIEW, Brett Michael - CCA, 22.5.98
Crown appeal.
2 x dishonestly obtain financial advantage by false representation to telecommunication service providers (AT&T and Telstra).
250h CSO, 50h of which to be spent at an attendance centre. Respondent's offer to repay total amount of $51,066 at rate of $300 per month accepted.
These offences involved the respondent using a device hooked up to public telephones to provide an open line to make international calls & the illegal use of calling card numbers to make toll-free calls from his home.
Respondent an expert in use of computers - regarded as being obsessed with them.
Appeal allowed: resentenced to 2y 9m PD.
199

CROTTY, Jason David Alan - CCA, 6.4.98
Crown appeal.
Breach of recognizance imposed by CCA on 28.2.94.
Respondent originally convicted of armed robbery (robbery of taxi driver at knifepoint). On 28.2.94, CCA upheld a Crown appeal against sentence & imposed a 3y s.558 recognizance.
On 13.1.96, respondent involved in a fracas, was convicted in the Local Court of AOABH & sentenced to 200h CSO.
This latest Crown appeal (6.4.98) dealt with the breach of recognizance imposed by the CCA on 28.2.94.
Special circumstances - respondent's attempts to rehabilitate himself from amphetamine addiction - lapse of time since commission of offence - successful in finding employment.
Appeal allowed: resentenced to MT 12m, AT 12m.
200

DIAMANTIS, Lucas - CCA, 18.5.98
Crown appeal.
BE&S in circumstances of special aggravation; steal MV.
Guilty plea - special circumstances - efforts whilst in custody to come to terms with long-standing drug addiction.
Sentenced to MT 3y, AT 2y on BE&S; FT 1y on steal MV.
Co-offender sentenced before respondent & received same sentence. Subsequently, Crown appealed against the sentence imposed upon co-offender. The CCA allowed that appeal in respect of the BE&S charge & imposed a MT of 5y & an AT of 2*y.
On appeal, Crown submitted that Diamantis should receive no less. Respondent's counsel submitted he should receive no more, but acknowledged he would have to receive same sentence as that imposed upon co-offender.
Appeal allowed: resentenced on BE&S charge to MT 5y, AT 2*y.
201

HO, Kevin Chi - 102 A Crim R 37
TAM
, Alan v DPP (Cth) - NSW SC, Ireland J, 15.5.98
Judgement:
Injunction against Crown - order restraining DPP (Cth) from calling witness - Evidence Act (NSW) 1995, ss.36 & 138.
Offences under s.233B Customs Act.
The issue was whether the Court should grant a co-offender an injunction restraining the Crown from calling him to give evidence in the Crown case against another co-offender.
Injunction granted. Court ordered that DPP (Cth) be restrained from calling Tam to give evidence on behalf of the Crown in trial of Ho.
202

CHANT, Stuart Arthur
MADDEN, Ronald Joseph - CCA, 12.6.98
Conviction appeals.
Chant: 1 x sexual intercourse without consent.
Madden: 1 x sexual intercourse without consent; 1 x indecent assault.
Complainant affected by alcohol & drugs at time offences occurred. Defence counsel suggested complainant had motive to lie arising out of concern that consensual sexual intercourse with appellants might adversely affect her relationship with a witness at the trial.
Directions given in relation to complainant's motive to lie appropriate, absence of reminder suggested in R v Uhrig not raised at trial - leave to appeal under R4 Criminal Appeal Rules refused.
Restriction of cross-examination of witness as to prior sexual relationship with complainant no basis for appeal.
Directions concerning effect of alcohol & drugs on issue of complainant's consent appropriate, no objection taken to shorthand terms in which direction given at one point in summing up - leave to appeal under R4 refused.
Conviction appeals dismissed.
203

FRUGTNIET, Brian - Ct of A & CCA, 25.6.98
Application to set aside judgement of CCA on 21.6.96.
Whether a judge who issued warrants under the Listening Devices Act 1984 was disqualified from sitting on an appeal against conviction by reason of apprehended bias - principles relating to re-opening a prior hearing & determination of the CCA, particularly on ground of denial of procedural fairness - whether CCA has power to make declaration that prior determination of that Court was invalid and/or quash such a prior determination on ground of apprehended bias.
Application and summons dismissed.
204

Q, F. - CCA, 17.6.98
Crown appeal.
1 x armed robbery with wounding.
Griffiths remand.
Whether offence called for full-time custodial sentence. Respondent aged 15y with bad prior record but strong subjective circumstances. Desirability of back-dating sentence imposed on appeal to allow respondent to continue with rehabilitation courses - Children (Detention Centres) Regulations 1995, Regs 34 & 35.
Appeal allowed: resentenced to MT 18m, AT 12m to be served in a detention centre & that he be allowed to continue with existing courses.
205

RICH, Shane Warren - CCA, 17.6.98 - 102 A Crim R 165
Conviction appeal.
Sexual intercourse without consent in circumstances of aggravation (upon a 13y old boy).
MT 4y, AT 1y 4m.
Impermissible cross-examination of accused as to whether Crown witnesses had fabricated their evidence - impermissible address to jury by Crown prosecutor based on that cross-examination - substantial miscarriage of justice.
Appeal allowed: new trial ordered.
206

SOBOLEWSKI, Daniel Konrad - CCA, 17.6.98
Conviction and sentence appeal.
1 x supply trafficable quantity cannabis leaf;1 x supply trafficable quantity mescaline.
Judge alone trial.
MT 1y, AT 2y.
Special circumstances.
Exclusive physical control - people other than accused having, or having had, access to place where drugs found - inadequacy of evidence of possession.
Appeal allowed: verdict of acquittal entered.
207

DAVIS, Camm William - CCA, 5.6.98 - 100 A Crim R 573
Conviction appeal.
Murder.
The 3y old daughter of a woman with whom the appellant had formerly had a relationship, alleged that the victim had sexually assaulted her. Evidence that victim also admitted to indecently assaulting 5y old niece of appellant.
Appellant, who regarded the 3y old girl as his step-daughter, went to victim's premises, woke him up & beat him around the chest & head with a tree branch, thereby causing his death.
Whether in order to constitute provocation such as will reduce a charge of murder to manslaughter, the conduct or words of the deceased must take place in the presence of the accused.
Provocation - conduct of victim not within hearing or presence of accused - 'hearsay provocation'- R v Quartly (1986) 11 NSWLR 339 followed.
Appeal dismissed.
208

BARGWANNA, Sean - CCA, 15.6.98
Conviction appeal.
Robbery.
MT 18m, AT 2y.
Robbery of German tourist in Kings Cross.
At trial appellant did not give evidence & no evidence was called in the defence case.
Where an accused person does not give evidence it is only in extraordinary cases that a judge should not warn a jury that there may be reasons unknown to them why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent: R v OGD (unreported, CCA, 3.6.97); Wilde v The Queen (1987-88) 164 CLR 365 followed.
Appeal dismissed.
209

FITZSIMMONS, Robert George - CCA, 15.6.98
Conviction appeal.
Count 1: sexual intercourse.
Count 2 (alternative count): assault & commit act of indecency in circumstances of aggravation.
Counts 3, 4, 5 & 6: assault & commit act of indecency in circumstances of aggravation.
Complainant was school friend of appellant's step-daughter & often visited appellant's house to play with her friend. Incidents complained of occurred when complainant was aged between 7 & 9 when she was in Year 3 & Year 4.
Corroboration - verdict unsafe & unsatisfactory.
Where the conviction of the accused on a number of counts was based on uncorroborated evidence of complainant yet on other counts where evidence of complainant was uncorroborated a jury acquits, then in the absence of evidence suggesting that complainant's evidence was more reliable in relation to counts upon which jury convicted, the court will interfere. M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 72 ALJR 78 applied & followed.
Appeal allowed: verdict of acquittal entered.
210

HEFFERNAN, Shayne Keith Bryant
PETERS, Brent Richard - CCA, 16.6.98
Conviction and sentence appeals.
Dispose of stolen property; supply prohibited drug (cannabis leaf).
Heffernan: MT 1*y, AT 1y.
Peters: MT 1*y, AT 1y.
Admissibility of evidence of appellants in earlier proceedings - allegedly fabricated evidence of police - necessity to refute - considered decision to give evidence on legal advice - discussion of principles applicable under common law & Evidence Act 1995 & which applied & whether it made any difference - apprehended bias not established. Special circumstances arising out of allegedly fabricated evidence, very lengthy trial based in part upon it & acquittal.
Conviction appeal dismissed.
Sentence appeals allowed: Heffernan - MT 11m, AT 16m on each count (concurrent); Peters - MT 12m, AT 18m on each count (concurrent)
211

WELLS, Trevor Roy - CCA, 17.6.98
Two indictments.
5.6.95 indictment: Conviction appeal.
1 x indecent assault; 2 x unlawful sexual intercourse without consent - complainant aged 12y at the time. Jury returned verdicts of not guilty on 1st count but guilty on 2nd count; unable to reach unanimous verdict on 3rd count - jury discharged. Sentenced to MT 4y, AT 16m.
One ground: verdict unsafe & unsatisfactory.
8.6.95 indictment: 1 x commit act of indecency - complainant aged 13 or 14y at the time. Plea of guilty entered & appellant asked that 2 further matters be taken into account involving acts of indecency with third victim who was 10y old at the time. Sentenced to MT 2y, AT 2y cumulative upon earlier sentence.
5.6.95 indictment: appeal allowed, verdict of acquittal entered.
8.6.95 indictment: pursuant to s.24A Criminal Procedure Act, sentence adjusted by advancing commencement date of both MT and AT.
212

SWINDALE, Eric John - CCA, 22.6.98
Sentence appeal.
Manslaughter; + 2 firearm offences taken into account (unlicensed firearms, possess shortened firearm).
MT 10y, AT 10y.
Applicant originally charged with murder but pleaded guilty to manslaughter on basis of diminished responsibility.
Lengthy criminal record - brain damage caused by head injury - history of alcoholism.
Fresh evidence - sentencing judge drew inferences on misunderstanding of what medical reports actually contained - further reports obtained. Future dangerousness to the public - not established beyond reasonable doubt that applicant poses a serious risk in the future.
Appeal allowed: resentenced to MT 9y, AT 3y.
213

HINES, Colin Con - CCA, 25.5.98
Sentence appeal.
Armed robbery.
MT 4y 8m, AT 2y 4m.
After gaining entry to victim's premises, appellant entered victim's bedroom, placed a paring knife against victim's neck & demanded money. Victim gave appellant $50 from his wallet. Appellant then tied victim's hands behind his back & his ankles together, then threatened that if he rang the police he would return & kill him. He also threatened to cut off victim's ear. On his way out, he stole a shirt, a cigarette lighter & a packet of cigarettes.
Bad criminal history - chronic alcoholic & drug addict - need for personal and general deterrence.
Appeal dismissed.
214

MILLAR, Glen - CCA, 25.5.98
Sentence appeal.
Escape from lawful custody.
MT 2y, AT 2y.
At the time of escape, appellant already serving lengthy gaol sentence for a number of offences of escape, as well as armed robbery, assault & possession of firearm. Appellant escaped by hiding in empty carton. Claimed he escaped because of belief of suffering sexually transmitted disease. Guilty plea.
Appalling criminal history - history of drug abuse.
Appeal allowed: resentenced to MT 1*y, AT 2*y.
215

RAPLEY, Shea Dominic - CCA, 27.5.98
Sentence appeal.
Break and enter.
MT 12m, AT 8m.
Trashed home of person with whom mother allegedly having an affair.
Guilty plea - no relevant prior offences - co-operation with authorities.
Appeal dismissed.
216

B, M.R. - CCA, 27.4.98
Sentence appeal.
Armed robbery; + 1 x malicious wounding & 1 x assault on a Form 1 taken into account.
MT 3y, AT 3y.
Whilst engaging in oral sex in a public toilet, the applicant removed the victim's wallet from his trousers, an altercation took place & the victim was stabbed in the chest. The struggle continued & the victim was stabbed again, also in the chest.
Form 1 offences included slashing victim across arm with kitchen knife, then threatening victim's brother who had tried to intervene.
Guilty plea - applicant had prior convictions for assault, hinder police & threaten witnesses. He had significant problems with anger control. Some attempts at rehabilitation. Aged 17y at time of offence.
Appeal dismissed.
217

MOORE, Bradley Wayne - CCA, 23.4.98
Crown appeal.
Armed robbery.
Griffiths remand.
Threatened restaurant owner's child with blood-filled syringe. Offence committed to finance drug habit - threat from dealer to pay outstanding monies for drugs previously supplied.
Appropriateness of Griffiths remand.
Appeal allowed: Order for Griffiths remand quashed & matter remitted for re-sentencing.
218

DIAMOND, Jack Victor - CCA, 19.6.98
Conviction and sentence appeal.
1 x wound with intent to do grievous bodily harm (this in the alternative to a charge of wound with intent to murder).
MT 6y 9m, AT 2y 3m.
Offence occurred at Long Bay Gaol - appellant & a co-offender stabbed victim.
Cross-examination of accused in relation to his prior record - first-hand hearsay evidence.
Error in rejection of evidence relevant to motive - verdict not unsafe & unsatisfactory - no question of principle involved.
M (1994) 181 CLR 487; Jones (1997) 149 ALR 598 applied.
Conviction appeal allowed: new trial ordered.
219

MACKENROTH, Anthony - CCA, 19.5.98 Note: You might find this wrongly referred to as MACKINROTH in some research material.
Sentence appeal.
Escape from lawful custody; take & drive a conveyance without consent of owner.
FT 18m (concurrent) on each count, to commence at expiration of sentences applicant already serving.
Guilty plea.
On protective custody for previous offences - on 6.5.97 transferred to St Heliers Correctional Centre at Muswellbrook & placed in main stream of gaol, deprived of protection. It was from that prison that he escaped. Whilst there he was intimidated, threatened & a knife was shown to him with the warning that unless he removed himself from the gaol it would be used on him. He became increasingly fearful. No suggestion of pre-planning or premeditation in relation to either offence.
R v Rogers (1996) 86 A Crim R 542 relied upon to demonstrate mitigation.
Appeal allowed: resentenced to MT 12m, AT 6m.
220

ATKINS, Martin David - CCA, 27.5.98
Sentence appeal.
12 x BE&S; 2 x dispose of stolen property; + 22 offences on two schedules (including dispose of stolen property & BE&S).
MT 2*y, AT 2*y.
Applicant spoken to by police in relation to a BE&S offence as a result of his fingerprints having been identified as being at scene of offence. Applicant indicated his willingness to assist police by accompanying them on a 'drive along' in order to nominate premises upon which he had committed BE&S offences in the past.
Early pleas of guilty to all charges. Sentencing judge found special circumstances.
Submitted insufficient weight given to subjective features of case & significant part that Ellis principle ought to have played in sentencing process.
Appeal dismissed.
221

T, G.E. - CCA, 25.6.98
Conviction appeal.
Sexual offences: 2 x carnal knowledge of girl under 10; 7 x carnal knowledge of girl over 10 but under 17.
Directions - relationship of complainants & appellant - complaint - s.405B Crimes Act - invitation to jury to consider whether Crown witness had motive to lie - significant delay in complaint - inconsistent verdicts - whether unsafe or unsatisfactory.
Appeal dismissed.
222

ROBSON, James Lindsay - CCA, 18.6.98
Conviction appeal.
Sexual offences committed against a boy aged 6.
1 x aggravated sexual assault;
2 x homosexual intercourse with child under 10;
1 x aggravated act of indecency.
MT 16m, AT 14m.
Credibility of complainant - delay in making complaint - reasonableness - whether unsafe or unsatisfactory - M v The Queen (1994) 181 CLR 487.
Appeal dismissed.
223

MOORE, Lorraine Elizabeth - CCA, 16.6.98
Sentence appeal.
Manslaughter.
MT 2y 11m 21d, AT 3y.
Guilty plea - minor criminal record - intoxicated - stabbed partner in chest with kitchen knife during argument - victim of domestic violence - difficult childhood - spontaneous offence - remorseful - dependent children - good prospects of rehabilitation.
R v Fernando (1992) 76 A Crim R 58 applied.
Appeal dismissed.
224

WINDRED, Carrol Lynn - CCA, 17.6.98
Sentence appeal.
Numerous sexual offences perpetrated upon daughter by applicant & her second husband, including incite to commit acts of indecency; aid & abet husband to have unlawful carnal knowledge of daughter; sexual intercourse with child (mother performing cunnilingus upon daughter); aid & abet husband to incite child to commit act of indecency with her (child sucking mother's breasts whilst husband had intercourse with her & the child); AOABH.
Sentenced to MT 4y, AT 4y.
Offences occurred over about 8 years & culminated in regular weekly sexual intercourse with the child. Husband charged with sexual offences against complainant but committed suicide before coming to trial. Applicant's defence at trial was that she had only ever committed these offences under the duress of her husband. The jury rejected that defence.
Gross breach of trust - need for general deterrence.
On appeal: submitted incompetence of solicitor - deprivation of ability to plead guilty.
Appeal dismissed.
225

READING, William Thomas - CCA, 30.6.98
Appeal against redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Sentenced to life imprisonment. In 1984, after serving 5y 2m 17d, appellant released on 5y licence under s.463 Crimes Act, the effect of which was to suspend the sentence. Appellant remained at large after expiration of 5y period until licence was revoked with effect from 15.3.96 after appellant had assaulted his de facto.
Appellant applied to SC for determination of MT and AT pursuant to s.13A(2) Sentencing Act. Application granted: resentenced to MT 10y, of which the appellant had served just over 6y & an AT of 4y.
Appeal pursuant to s.13A(12) on basis that sentencing judge had imposed sentence with a component for preventative detention & had erred in not fixing AT to run from an earlier date.
Held: sentencing judge erred in not taking into account period during which appellant was at large on licence.
Appeal allowed: sentence adjusted.
226

BOSKOVITZ, Katy Rachelle - CCA, 12.6.98
Application for leave to appeal under s.5F Criminal Appeal Act against refusal to grant permanent stay.
Applicant originally charged in 1993 with 21 offences under s.178BA Crimes Act. Following paper committal in September 1993, the 21 charges were subsumed in an indictment containing 11 counts. In March 1998, an ex-officio indictment was presented containing 4 counts under s.178BB in substitution for the previous indictment.
Application for permanent stay refused.
On appeal, applicant asserted new charges different from those charged at time of committal, that they were in breach of an agreement made with the Crown & applicant was prejudiced by the change in the Crown's approach.
Held: new charges not relevantly different from those originally charged.
Application for leave to appeal dismissed.
227

K, P.A. - CCA, 26.6.98
Conviction appeal.
Count 1: indecent assault (complainant under 16y);
Count 2: sexual intercourse (complainant under 10y);
Count 3: indecent assault in circumstances of aggravation.
Jury returned verdicts of not guilty on 1st count & guilty on 2nd and 3rd counts.
Sentenced to: MT 2y, AT 18m on 2nd count, with FT 12m on 3rd count (concurrent).
New evidence - whether fresh evidence as to one count may have influenced jury.
Overall effect on both convictions.
Appeal allowed: new trial ordered.
228

VUCENOVIC, Milovan - CCA, 16.6.98
Conviction and sentence appeal.
Maliciously inflict ABH with intent to have sexual intercourse; maliciously inflict GBH; + a further summary matter of contravene an Apprehended Domestic Violence order.
MT 3y, AT 1*y.
Appellant & victim were married - stormy relationship, culminating in victim leaving matrimonial home. Victim obtained an Apprehended Domestic Violence order against the appellant to restrain him from approaching the flat where she lived. Appellant gained entry to victim's flat by subterfuge & sexually assaulted her. At the time of the offence, the victim had received a substantial share of proceeds from the sale of former matrimonial home as a result of Family Court proceedings, which was a matter generating hostility in the appellant.
Identification evidence - lies - 'alibi'evidence - 'fresh'evidence.
Conviction appeal dismissed. Leave to appeal against sentence refused.
229

WHITE, Gregory Christopher - CCA, 29.5.98
Sentence appeal.
9 x steal from a person; + 4 further offences taken into account.
MT 5y, AT 2y.
All offences involved bag snatching. Whilst being interviewed by police regarding the first offence, the applicant admitted to having stolen bags from other elderly women which led to a further 8 charges being brought against him. There were 2 victims in their eighties, 3 in their seventies, 3 in their sixties & one 47 year old.
At time of sentence, applicant not quite 24y but already had significant criminal record, including 14 counts of BE&S, 2 counts of B&E with intent to steal, 2 counts of stealing and one count of steal from a dwelling.
Serving sentence on protection - assistance to authorities.
Submitted sentence manifestly excessive .
Appeal dismissed.
230

EMINONI, Kenneth Charles Edward - CCA, 22.6.98
Sentence appeal.
8 x armed robberies; + knowingly take part in supply of heroin, possess heroin & failing to appear taken into account.
MT 5y, AT 3y.
Robberies were committed in business establishments, mainly post offices. On each occasion, applicant armed with replica automatic pistol. In all, $13,000 taken. Applicant on bail at time of robberies - all premeditated - purpose of robberies to obtain money for heroin addiction.
On appeal, submitted sentence manifestly excessive in view of applicant's age (22y at sentence), plea of guilty, prospects of rehabilitation & that he had been injured in one of the attacks.
Leave to appeal refused.
231

JOHNS, Mark Gerard - CCA, 27.4.98
Sentence appeal.
1 x assault with intent to rob.
MT 3y, AT 2y to commence at expiration of pre-existing sentence of 9m for an unrelated matter.
Guilty plea.
Assault took place in home of victim, when the appellant & 3 others came uninvited into victim's house, demanding drugs or money from the victim. When the victim said he had none, he was attacked, kicked & struck on the head with the butt of a rifle carried by one of the co-offenders.
Submitted sentence imposed manifestly excessive.
De Simoni v The Queen (1981) 147 CLR 383.
Appeal dismissed.
232

OLBRICH, Reinhold Erhard - CCA, 6.7.98 - 103 A Crim R 149; 45 NSWLR 538
Sentence appeal.
Import trafficable quantity heroin (1,184 grams).
8*y with a NPP of 6y.
Applicant claimed he was a courier. Sentencing judge rejected this, finding he was a principal as far as the importation was concerned & based the sentence on this fact.
On appeal submitted that sentencing judge was wrong to reject the argument that the onus was on the Crown to prove, beyond reasonable doubt, that the applicant was not a courier.
Burden of proof - degree of involvement of the person convicted of importing drugs - whether matter of 'aggravation'or 'mitigation'.
Appeal allowed: sentence quashed, matter remitted to DC for sentencing.
Note: Appeal to the High Court allowed: matter remitted to NSW CCA for redetermination.
233

WALSH, Christopher John - CCA, 5.3.98
Conviction and sentence appeal.
Maliciously inflict GBH with intent to do GBH.
MT 5y, AT 1y 8m.
Appellant deliberately ran down his former wife who suffered multiple injuries.
Whether guilty plea vitiated by appellant's alleged lack of knowledge that intent an essential element of guilty plea. Whether guilty plea constituted true admission of guilt. Whether in sentencing evidence accepted that offence committed on the spur of the moment. Whether in sentencing psychiatric evidence of appellant's state of mind taken into account.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 3*y, AT 2y.
234

MEWETT, Trevor James - CCA, 2.7.98
Conviction and sentence appeal.
7 x sexual intercourse without consent.
MT 4y, AT 1y 4m.
Not guilty plea: appellant claimed that consensual intercourse took place.
Jury returned with verdict of guilty on each count.
Whether verdict unsafe & unsatisfactory - Held not: M v The Queen [1994] 181 CLR 487; confirmed in Jones v The Queen 72 ALJR 78.
Whether trial miscarried - Held that events which took place, in particular prosecution splitting its case (which meant that matters raised were not put to key witnesses in cross-examination by defence counsel) led to denial of procedural fairness which must be afforded to the accused. Accordingly, a significant miscarriage of justice occurred: R v Chin (1984-85) 157 CLR 671.
Appeal allowed: conviction & sentence quashed; new trial ordered.
235

HAYNES, Kevin John - CCA, 29 May 1998
Sentence appeal.
2 x supply prohibited drug (* gram cocaine value $100; 2 lbs cannabis leaf); 1 x cultivate prohibited plant (cannabis).
MT 18m, AT 18m.
Applicant & his wife tried jointly - guilty plea. At sentence, exceptional circumstances were found in favour of applicant's wife concerning a psychologist report - she received 500h CSO on 1st count & was placed on a recognizance in respect of each of the other counts.
References referring to community work, particularly for the aged, tendered on behalf of both accused. Both accused were 'social users'of drugs.
Parity - justifiable sense of grievance - Lowe v The Queen (1984) 154 CLR 606.
Appeal allowed: resentenced to MT 12m, AT 12m.
236

FING, Trevor Leslie - CCA, 22.6.98
Sentence appeal.
1 x supply commercial quantity methylamphetamines (457.5 grams); 7 x dishonestly obtain valuable thing by deception; 2 x dishonestly obtain financial advantage by deception; 3 x dishonestly attempt obtain money by deception; 2 x dishonestly attempt obtain valuable thing by deception; possess firearm.
MT 7y 9m, AT 2y.
Late guilty plea - prior convictions - drug offence committed whilst on bail - obtained over $300,000 by fraudulent scheme - lack of contrition - attempt to cast doubt on innocent man.
Appeal dismissed.
237

GIPP, Gregory Bernard - HC, 16.6.98 - 194 CLR 106; 72 ALJR 1012
Appeal from conviction for sexual offences. Objection not taken in courts below - Role of courts of criminal appeal.
Grounds: (a) Whether verdict unsafe & unsatisfactory. (b) Whether prosecution entitled to enter nolle prosequi to only 2 of 7 charges in indictment & whether evidence entered on nolle prosequi charges should be left before jury. (c) Whether evidence of general history of past sexual behaviour admissible & whether trial judge's directions to jury flawed on use to be made of that evidence & standard of proof required.
Appeal allowed on ground (c): remitted for retrial.
238

MILSON, Kylie Jane - CCA, 27.4.98
Sentence appeal.
1 x assault with intent to prevent lawful apprehension; 1 x escape from lawful custody; + a further 12 matters on a Form 1 taken into account (including stealing, larceny, drive whilst disqualified).
Sentence not stated.
Guilty plea.
Offences committed whilst on various recognizances - extensive record starting when applicant aged 15y - sad & unsatisfactory upbringing - had not availed herself of counselling - little or no attempt to overcome drug addiction - repeated abuse of bail conditions.
Leave to appeal refused.
239

QI, Zhen - CCA, 22.6.98 - 102 A Crim R 172
Crown appeal.
Armed robbery; + a charge of kidnapping taken into account.
2y PD.
Home invasion type offence.
After robbing husband & wife in their home at gunpoint, the respondent & two co-offenders kidnapped their daughter to ensure payment of a ransom of $50,000.
Excessive weight given to subjective features - inadequate appreciation of leniency of PD - incorrect reasoning & appreciation of sentence required consequent upon Crimes (Home Invasion Amendment) Act 1994.
Appeal allowed: resentenced to MT 2y, AT 2y.
240

BROOKS, Kevin George - CCA, 14.7.98 - 44 NSWLR 121; 102 A Crim R 367
Conviction appeal.
2 x sexual intercourse with child under 10y; 1 x aggravated indecent assault.
Presiding judge assumed it necessary to conduct an inquiry as prescribed by s.13(2) Evidence Act 1995, expressing himself satisfied child was competent to give evidence which was ambiguous in that it may have referred to evidence on oath or pursuant to special facility established by s.13. The girl entered witness box & was examined & cross-examined before the jury without being sworn.
Evidence of child witness - competence - Evidence Act s.13.
Appeal allowed, new trial ordered.
241

TRUONG, Sua Van - CCA, 22.6.98
Conviction and sentence appeal.
Accessory before the fact to B&E dwelling house & stealing whilst armed; steal MV.
Withdrawal from enterprise of accessory to B&E - not present when offence committed - need to put defence of honest belief that offence not going ahead - withdrawal directions - whether difference between principal & accessory in directions required as to withdrawal.
At time of appeal, appellant had already served 13m 8d on accessory count (which was half the sentence imposed).
Appeal against conviction on steal MV dismissed.
Conviction appeal on accessory to B&E count allowed: verdict of acquittal entered.
242

FERNANDO, Brendan - NSW SC, Abadee J, 23.5.97
FERNANDO, Vester Allan
Judgement on admissibility of photographs of deceased's body in a paddock where it was located & of the injuries that were suffered.
S.137 Evidence Act.
243

HAMPTON, Kylee Jane - CCA, 25.6.98 - 101 A Crim R 399
Sentence appeal.
3 x manslaughter.
MT 8*y, AT 2*y.
Charges related to deaths of a woman & her 2 children in a house which had been set alight by the applicant. Applicant & a number of co-offenders had deliberately lit fires in 2 separate areas on the ground floor of the house.
Sentencing Act s.5(2) - additional term - whether there were 'special circumstances'which justified a larger additional term.
Appeal dismissed.
244

WHITE, Raymond Leslie - CCA, 23.6.98
Sentence appeal under s.13A(12) Sentencing Act against redetermination of sentence under s.13A comprising MT 16y, AT 5y.
The applicant was originally sentenced to life imprisonment for a carefully planned premeditated murder, where the deceased was killed by a gunshot wound to the chest & his body thrown from the parapet of the Pheasants Nest Bridge near Wilton. The motive for the murder was the relationship that had developed between the deceased & the applicant's wife.
Whether lack of contrition could be taken into account - assertion of innocence - factors in mitigation - whether explanation of conduct constitutes matter of mitigation.
Appeal dismissed.
245

GIESELMANN, Melissa - CCA, 13.7.98
Sentence appeal.
Murder.
MT 12*y, AT 5*y.
Applicant convicted of murdering her custodian at Bankstown Youth Refuge. Her plea of guilty to manslaughter on ground of diminished responsibility had been rejected by the Crown. Age of applicant at time of offence was a little over 17 years. Sentencing judge characterised crime as vicious & senseless killing with an objective gravity demanding a lengthy sentence - regard had to age of offender, unhappy & unfortunate upbringing & her mental state.
Principles - protection of community - parity of sentence of co-offender - whether sentence manifestly excessive.
Appeal dismissed.
246

KARAGEORGE, Constantine - CCA, 17.7.98 - 103 A Crim R 157
Conviction appeal.
Act with intent to pervert course of justice.
MT 3y 4m, AT 1y 8m.
Appellant was a practising solicitor at time of offence. Conversation recorded by police between appellant & a journalist which related to publicity to be arranged for upcoming trial of a client of the appellant so that a stay application could be made. The journalist did not pursue the matter.
Listening devices - admissibility of evidence thereby gathered - Australia Federal Police Act 1979, Listening Devices Act 1984 (NSW), Customs Act 1901 - interrelationship - necessity to prove compliance with conditions in Federal warrant - before evidence admissible in State prosecution - Crimes Act 1914 (Cth) s.43 - Crimes Act 1900 (NSW) s.319.
Appeal allowed: new trial ordered.
247

SWEENEY, John Gerard Patrick - CCA, 14.7.98
Conviction and sentence appeal.
1 x indecent assault - Crimes Act s.81 (now repealed); 2 x indecent assaults - s.61E(1).
MT 18m, AT 9m.
Sexual assaults by founder of religious order on postulant - one count not requiring proof by Crown of absence of consent in distinction from 2 other counts - no unfairness in joinder - whether conviction unsafe & unsatisfactory.
Appeal dismissed.
248

PETROFF, David Robert Lee - CCA, 20.7.98
Conviction and sentence appeal.
7 x obtain money by deception; 3 x knowingly make false statement with intent to obtain money.
Found not guilty of counts 2 & 9 by direction but found guilty of remaining counts.
MT 12m, AT 12m.
Issue of identification - adequacy of directions in unusual circumstances of case - adequacy of directions on standard of proof.
Conviction appeal allowed in part - conviction & sentence imposed upon count 6 quashed; conviction appeal on counts 1,3,4,5,7,8 & 10 dismissed.
Sentence appeal allowed in part - sentence appeal on counts 1,3 & 7 dismissed; sentences imposed upon counts 4,5,8 & 10 quashed & resentenced to MT 11m, AT 11m.
249

DENG, Lisa - CCA, 10.7.98
Conviction and sentence appeal.
Knowingly take part in supply of commercial quantity prohibited drug (heroin).
MT 5*y, AT 3*y.
On 17.12.96, the CCA had quashed appellant's earlier conviction on the same charge & ordered a new trial. Appellant pleaded not guilty. On 10.7.97, jury returned verdict of guilty.
Crown case at trial was that appellant supplied mobile phones & pagers & introduced several potential customers to a man running a drug syndicate & who had over 10 kgs heroin in a storehouse. Appellant also said to have chased up debts owing to drug syndicate.
On appeal - indictment relied upon several isolated acts in once count - directions to jury on different case for prosecution than was put - misdirections/failure to direct as to 'attempt'- directions as to elements of offence - admission of certain evidence.
Appeal allowed: new trial ordered.
250

URQUHART, Frank - CCA, 17.6.98
Sentence appeal.
1 x threaten to use offensive weapon (knife); larceny (taking of a wallet from a shop).
GBB on first count; 18m PD on second count.
Appeal against cancellation of PD order, whereupon a sentence comprising MT 38w, AT 38w was imposed.
Over a long period of time, applicant was granted leave of absence for ill health but subsequently in a report from a medical officer he was found fit to comply with the PD order. He was served with notices for failing to report on 6 dates.
Exercise of discretion under s.27(4) Periodic Detention of Prisoners Act 1981 - effect of periodic detention upon medical condition of defendant.
Appeal allowed: resentenced to MT 9w 2d, AT 66w 5d.
251

KHOURY, Sam - CCA, 17.6.98
Conviction appeal.
4 x supply prohibited drug (heroin).
Not guilty plea. Jury returned verdict of guilty in respect of first 2 counts & not guilty in respect of 3rd & 4th counts.
Head sentence of 5y, with MT commencing on date when appellant finishes a sentence for an unrelated matter.
Crown case was that at a party sexual activity occurred & on 2 occasions, 2 women who had agreed to engage in sexual activity & subsequently be provided with drugs, were in fact injected with heroin by the appellant. Each separate injection was the subject of the individual counts.
Directions - error in directions as to onus of proof - unsafe & unsatisfactory - applicable test.
Appeal allowed: new trial ordered.
252

MORGAN, Peter - CCA, 24.6.98
Sentence appeal.
Robbery.
MT 2*y, AT 2*y.
Applicant approached a woman in a car park after she had unloaded shopping into her car & was in the process of closing the driver's door & said 'Get out or I will kill you'The victim said he was pointing something small & silver towards her. The applicant took hold of her right arm, dragged her from the car & took her handbag. Applicant then sat in the car while the victim called for help - claim made that at the time the applicant was affected by prior ingestion of intoxicant.
Considerable criminal record.
Ground of appeal: sentence too severe.
Appeal dismissed.
253

BYRNE, Kerry Anne - CCA, 3.7.98
Interlocutory ruling
Crown appeal upheld.
Respondent to undergo kidney operation on 12.7.98 - CCA postponed giving judgement, making orders & imposing sentence until 5.8.98 to allow for recuperation. If operation did not proceed on 12.7.98 or by 14.7.98, CCA will not further postpone imposition of sentence.
254

HAWORTH, Kevin Arthur - CCA, 15.7.98
Crown appeal.
Carnal knowledge of person between age of 10 & 17y (his daughter); + 5 matters taken into account, including 2 indecent assaults, an act of indecency, carnal knowledge (all upon the same victim) & a charge of carnal knowledge of another girl aged between 10 & 16y.
3y PD.
Offences committed when respondent was very young, some 19 or 20 years before coming to trial.
Unhappy & unfortunate background - expression of shame and remorse - accepted as 'witness of truth'- completely rehabilitated.
Appeal dismissed.
255

BARGWANNA, Darren Roger - CCA, 3.7.98
DAVIS, Glen Lisle
Interlocutory decision
Points of substance & difficulty raised.
Davis to complete MT on 4.9.98; Bargwanna complete MT on 4.9.99.
The Court states it would appreciate the assistance of counsel relating to count 5 & the following jury question & the judge's answer:
'Q: Relating to Indictment 5, if Bargwanna is found not guilty can O'Brien or Deyes be found guilty?
A: If Bargwanna is found not guilty O'Brien and Deyes must be found not guilty'.
256

BOTERO, Ruben - CCA, 24.6.98
Sentence appeal.
Supply commercial quantity prohibited drug (cocaine) - MT 5y, AT 2y;
Supply commercial quantity prohibited drug (heroin) - concurrent FT 3y.
Over a period of a few months, officers of the Drug Enforcement Agency, with the assistance of an informant who was registered with the NSW Crime Commission, conducted an investigation into an arrangement in which illegal drugs were being distributed in Sydney.
Prior convictions - drug dealer - drug addict - suffering mental disorder - general deterrence of little weight in circumstances.
Appeal dismissed.
257

MANKOTIA, Blinder Kumar - NSW SC, Sperling J, 21.7.98
Ruling on admission of photographic material.
Ruling sought as to whether Crown should be permitted to tender certain still photographs & a video recording showing deceased's fully clothed body on the floor of the flat where she was killed. Some photographs depicted wounds to neck & face & holes in deceased's clothing caused by stabbing, as well as pooled & spattered blood. Other photographs were taken at the mortuary after the wounds had been cleaned of surface blood.
Counsel for accused submitted Court should refuse to admit still photographs objected to & the whole of the video film, pursuant to s.135 and/or s.137 Evidence Act 1995.
Ruling: some photographs excluded & the whole of the video film excluded. Video found to have a dramatic quality to it.
258

MANKOTIA, Blinder Kumar - NSW SC, Sperling J, 27.7.98
Judgement No.2 - Rulings on witness evidence.
Evidence Act s.65(2)(b) & s.65(9).
Ruling sought in relation to admissibility of evidence which Crown wishes to adduce from various witnesses who were associates of the accused and/or the deceased in the period Christmas 1996 to 25.3.97.
Held: Probative value of evidence concerning particular conversation outweighs any prejudice to accused arising from possible use of evidence by the jury as evidence of tendency. The evidence of the conversation will therefore not be excluded under s.135 or s.137.
259

BUDDLE, Brett Craig - CCA, 22.6.98
Sentence appeal.
7 x BE&S; 2 x armed robbery.
Effective total sentence of MT 3y, AT 3y.
Sentencing judge overlooked provisions of s.9(3) Sentencing Act.
Appeal allowed: commencement dates of sentences adjusted.
260

MOLLOY, Matthew Edward - CCA, 29.5.98
Sentence appeal.
Count 1: escape from lawful custody - 2y PD;
Counts 2,3 & 7: armed robbery - 4y, 6y & 3y respectively;
Counts 4,5 & 6: stealing - 1y.
Sentences all concurrent and in relation to Count 3 there was an AT of 4y, the sentencing judge having found special circumstances in relation to that count.
Young offender - sentence to be served in protection - rehabilitation.
Letter from applicant tendered to sentencing judge explaining reason for escape - applicant claimed letter not given sufficient weight. Procedural unfairness: Held not.
Appeal dismissed.
261

DODD, John Charles
KAVINMETHAVEE, Prachaya - CCA, 30.6.98
Sentence appeal.
Conspire to import trafficable quantity heroin.
Dodd: 12y with 9y NPP.
Kavinmethavee: 6y with 4y NPP.
Dodd & 3 persons who had been recruited as couriers flew to Thailand on separate flights & met up with Kavinmethavee in Bangkok. Arrangements were made to purchase heroin for $6,000. Dodd returned to Sydney, having supplied Kavinmethavee with $3,000 to arrange for purchase of a further quantity of heroin. The 3 couriers concealed condoms filled with heroin in their bodies & they & Kavinmethavee prepared to fly back to Sydney but were apprehended at Bangkok airport. The couriers were arrested & have subsequently received sentences of death in Thailand, commuted to 50y imprisonment. Kavinmethavee not prosecuted in Thailand & allowed to return to Sydney where he was apprehended upon arrival.
Whether s.235(3) Customs Act 1901 (Cth) applicable: held not.
Sentences excessive.
Appeal allowed, applicants resentenced: Dodd: 10y, with 6*y NPP. Kavinmethavee: 4y, with 2*y NPP.
262

BARBARA, Frank Anthony - CCA, 14.7.98
Conviction appeal.
Dangerous drive occasioning death (2 counts in the alternative, first count alleging drive whilst under influence of intoxicating liquor; second count alleging drive in manner dangerous to another person or persons).
Jury convicted on first count.
MT 3y, AT 3y.
Claim that death not in any way attributable to elements of dangerous driving - alternative elements - charge to jury requiring instruction concerning each - Crimes Act s.52A(8) - expert evidence - failure to summarise case being advanced by accused.
Appeal allowed: new trial ordered.
263

BLOOMFIELD, Frederick William - CCA, 15.7.98 - 101 A Crim R 404
Sentence appeal.
Maliciously inflict GBH; AOABH.
MT 2y 9m, AT 1y.
Mens rea - whether uncertainty as to precisely what happened tantamount to doubt as to cause of injury - degree of violence involved in assault as material consideration - whether special circumstances for purpose of s.5(2) Sentencing Act.
Appeal allowed: resentenced to Mt 2y 1m, AT 8m.
264

NICHOLSON, Bradford Fegan - CCA, 22.7.98 - 102 A Crim R 459
Appeal against refusal to grant permanent stay.
Supply not less than large commercial quantity cannabis resin.
Rare & exceptional case where permanent stay should be granted - unreasonable delay in District Court in listing matter for trial on many occasions & then not proceeding - 5 trial dates fixed & 5 times trial not reached - prejudice resulting from delay - no fault of Crown or accused - accused's funds exhausted - ultimately forced to rely on legal aid - one eyewitness dead & another ill & reluctant - missing exhibit & police record (if any).
Appeal allowed: order that permanent stay be granted.
265

FOSTER, Stuart Mark - CCA, 14.7.98
Sentence appeal.
3 x sexual intercourse with person between ages of 10 & 16y whilst that person was under his authority.
Concurrent MT 3y, AT 1y on each charge.
Victim was step-daughter of applicant & was aged 15y 9m at the time of the offences.
Isolated occasion - too much weight given to general deterrence - adequate attention not paid to subjective features - regret - remorse.
Appeal allowed: resentenced to concurrent MT 2y, AT 1y on each charge.
266

SHERWOOD, K. - CCA, 24.7.98
Conviction appeal.
Murder.
Applicant & M. Gieselmann were co-offenders in the killing of a worker at the Bankstown Youth Refuge (see Gieselmann, unreported, CCA, 13.7.98).
Applicant was 17 at the time of the offence. Pleaded not guilty of murder but guilty of manslaughter on ground of diminished responsibility at time of killing. Plea not accepted by Crown & the jury subsequently returned a verdict of guilty of murder.
Directions - whether trial judge failed to direct jury correctly as to expert medical evidence - trial judge's summing up of 'substantial impairment'which constitutes part of third element needed for a s.23A defence criticised.
Appeal dismissed.
267

FERNANDO, Florante - CCA, 20.7.98
Sentence appeal.
MT 18m, AT 18m.
Demand money with menaces; attempt armed robbery; + 2 matters taken into account (demand money with menaces & possess prohibited drug).
On recognizance at the time. Drug addiction. Pleas of guilty entered.
Applicant unrepresented at appeal.
Court held sentences very lenient.
Appeal dismissed.
268

SMALL, Kevin John - CCA, 16.7.98
Sentence appeal.
2 x robbery whilst armed with offensive weapon - concurrent MT 4*y, AT 2*y on each count;
2 x steal MV - concurrent 12m on each count (already expired).
Overlapping concurrent sentences - reimposition after appeal & pleas of guilty upon further indictment - totality.
No error in approach or assessment of sentencing judge.
Appeal dismissed.
269

MATI, Vae Fila - CCA, 16.7.98
Conviction and sentence appeal.
AOABH - FT 18m;
Robbery - MT 3y 5m 20d, AT 4y (cumulative upon FT of 18m).
Appellant appeared for himself in the appeal.
Victim alleged that when leaving a hotel at 9pm one evening, he was the victim of an unprovoked attack by a man who punched him. He fell to the ground & the man then kicked him whilst he was lying on the ground. He described the assailant as a Pacific Islander, tall, solid, muscular & with long hair. The attack caused the victim to lose consciousness & when he regained his senses, he found his coat & about $650 in cash was missing. Appellant identified as the attacker from a photograph shown to the victim.
Appellant gave evidence at trial that he was with his girlfriend at relevant time, having met her at about 7.45pm. Bank records showed a withdrawal from a bank ATM at 8.56pm. Appellant claimed he & his girlfriend then went to a bottle shop, arriving at about 9.10pm. His girlfriend's testimony confirmed that of the appellant.
No particular point of principle.
Appeal dismissed.
270

PANICO, Jerry - CCA, 30.4.98
Conviction and sentence appeal.
Supply prohibited drug (Lysergide).
18m PD.
After being called to a melee involving a number of males at a pub, 2 police officers observed appellant behaving in an aggressive manner & using offensive language & warned him about his behaviour & advised him to leave, but he refused. He was arrested & placed in the back of their police van. Whilst in the van, he was observed to drop something on the floor. Later the object was retrieved & proved to be a resealable plastic bag containing 5 pieces of silver foil which contained 7 pieces of white paper perforated into squares of 1cm x 1cm. There were 51 squares in all, each imprinted with a cartoon character & upon analysis each was shown to contain 0.00007 grams Lysergide. Appellant denied knowledge of plastic bag or its contents, maintaining they were not his.
Verdict unsafe & unsatisfactory - quantity of drug in lower range of trafficable quantity.
Appellant 20 at time of offence - on bail at the time - supportive family - offer of full-time employment in the event of not being sentenced to full-time custody - general deterrence.
Appeal dismissed.
271

MANKOTIA, Blinder Kumar - NSW SC, Sperling J, 30.7.98
Judgement No.4 - Admissibility of evidence.
Ruling sought as to whether Crown should be entitled to adduce certain evidence from police officers to whom accused gave himself up following death of deceased.
Held: Because it was a spontaneous statement by the accused, made in circumstances where he himself wished the police to be called so that he could give himself up, there is no unfairness to the accused in admitting that evidence.
272

PHILLIS, Matthew Russell - CCA, 16.7.98
Crown appeal.
Supply large commercial quantity amphetamine.
MT 2y 3m, AT 9m.
Total weight of drug seized was 2.8 kgs - estimated street value $280,000.
During a Drug Enforcement Agency operation concerning distribution of amphetamines in western suburbs of Sydney, telephone intercept placed on mobile service of respondent's business partner. As a result of intercepted calls between respondent & partner, surveillance was commenced at home of respondent. Respondent observed seated in his car parked in his neighbour's driveway. Neighbour seen walking from his house & entering front passenger seat of respondent's vehicle whereupon respondent drove to another address, the neighbour got out of the vehicle & a short time later returned carrying a white plastic shopping bag & again entered the vehicle & the vehicle was driven away. Shortly thereafter the vehicle was stopped & searched by police. A white shopping bag & a blue cardboard box containing clear plastic bags of white powder were located behind driver's seat. Upon analysis this powder was found to contain amphetamine.
Appeal allowed: resentenced to MT 3y, AT 1y.
273

MARKS v THE QUEEN - HC, 19.5.98 - 72 ALJR 1134
Identification evidence from photographs - names of persons photographed included but obliterated - whether witness read or could read name on photograph - discretion of trial judge.
Held: Discretion of trial judge did not miscarry in accepting police evidence that a name identifying a person photographed was unable to be read on a material day & in directing the jury that the identifying witness was therefore unable to read the name on that day. A reformulation of the issue in the CCA (NSW) was no more than a distinction without a difference.
274

SINANOVIC v THE QUEEN - HC, 11.6.98 - 72 ALJR 1050
Procedure - order that process not be issued without leave of Justice - principles governing application for leave - recourse to international law futile as transcending Australian domestic law - no error disclosed in relevant proceedings.
Criminal Law - matters connected with conduct of defence - unrepresented accused - indigent person - illiterate person with poor command of English - appeal against conviction - 'Dietrich' principles not extending to.
275

McEWAN, Lindsay Peter - NSW SC, Graham Barr J, 9.7.98
Sentence:
Manslaughter.
Deceased was assaulting his girlfriend. This attack went on for 15 minutes. Offender & another person witnessed attack. Attempts were made to stop the deceased. Offender went into house, got a rifle & shot deceased in chest, killing him. Offender & deceased intoxicated at the time.
Priors - remorse - steps at rehabilitation - low chance of recidivism - unhappy childhood - sexually abused as a child by a relative - emotionally disturbed & depressed - highly suicidal.
Sentenced to MT 5y, AT 3y.
276

SHEIL, Karen Marie - CCA, 20.7.98
Sentence appeal.
7 x larceny as a clerk; + 12 x larceny as a clerk taken into account.
MT 2y, AT 2y.
All offences committed against her employer during a period of about 6 months, netting the applicant $79,311.
Priors for similar type of offence - further offences committed whilst on bail for above offences.
Special circumstances found by sentencing judge - full & frank admissions - single parent - child with epilepsy & learning disability.
Held: sentence within sound exercise of sentencing discretion.
Appeal dismissed.
277

FERNANDO, Florante - CCA, 20.7.98
Sentence appeal.
Demand money with menaces; attempt armed robbery; + 2 matters taken into account (demand money with menaces & possess prohibited drug).
MT 18m, AT 18m.
On recognizance at the time. Drug addiction. Pleas of guilty entered.
Applicant unrepresented at appeal.
Court held sentences very lenient.
Appeal dismissed.
278

ROMANOV, Alexander - CCA, 26.6.98
Sentence appeal.
Dangerous driving occasioning death.
MT 18m, AT 18m & disqualified from holding or obtaining a licence for a period of 3y.
Appellant had consumed a considerable quantity of alcohol & was driving his motor vehicle, according to his estimates, at between 65 to 70 kms per hour in a 60 km zone. Approaching a moderate right-hand bend, he braked harshly & the vehicle skidded then mounted the kerb & collided with a pedestrian. The motor vehicle then collided with the front of a shop, causing extensive damage to both the shop-front and the motor vehicle. The pedestrian died prior to the arrival of an ambulance.
Accident occurred at 2.50am. Blood alcohol reading taken at 3.30am showed concentration of 0.12 grams per 100 ml blood. At trial, a forensic pharmacologist expressed the view that at the time of the collision applicant's blood alcohol concentration would have been within range of 0.125 to 0.140 grams per 100 ml blood.
Held: sentence not excessive.
Appeal dismissed.
279

HITCHCOCK, Victor Gordon - CCA, 13.7.98
Crown appeal.
12 x obtain benefit by deception.
Sentenced to FT 7m on only one count (23m pre-sentence custody taken into account); 3y GBB on other 11 counts.
The course of the respondent's conduct involved using a number of aliases & presenting cheques to obtain or attempt to obtain various goods, eg computers, printers, camera, refrigerator, motor vehicles, residential accommodation.
Sentence not inadequate - sufficient weight given to objective gravity of offences - leniency appropriate.
Appeal dismissed.
280

LAMBRINOS, Dominic Michael - CCA, 17.7.98
Crown appeal.
Defraud Commonwealth (by obtaining cheque for $598,952.16 from Australian Taxation Office to which he was not entitled).
FT 12m to be served by way of PD & to be placed on 3y GBB once that sentence had been served.
Originally sentencing judge indicated sentence of 4y with 1y NPP, however, matter stood over for assessment to be made regarding suitability of respondent to serve NPP by way of home detention. A sentence of the kind his Honour had in mind was not available pursuant to the Home Detention Act 1996 & his Honour subsequently imposed sentence as indicated above.
Respondent had previously been charged with a cognate State offence to which he had entered an early plea of guilty. After committal it was found there was a legal defect & respondent consented to the filing of an ex officio indictment preferring the Commonwealth charge against him. Respondent pleaded guilty to that charge at earliest opportunity.
Appeal allowed: resentenced to 3y PD after which respondent be placed on a 2y GBB conditional upon him undergoing medical & psychiatric treatment.
281

DIAZ, Robuen Barrioquito - NSW SC, Graham Barr J, 9.6.98
Judgement.
Murder; malicious wounding.
Not guilty plea
Accused, who was employed as a pizza delivery person, was 19y at time of offence. He attacked three people & beat one of them to death after a disagreement over a late delivery.
Fitness to plead - suffering psychotic illness - schizophrenia - balancing continuing health of accused & protection of public.
Found not guilty by reason of mental illness.
Order for detention in hospital until released by due process of law.
282

BARBARO, Pasquale & ORS - CCA, 20.7.98
Crown appeal against interlocutory orders.
This was an appeal by the Crown from an order staying respondents' retrial until after the retrial of a third party.
Held: fact that respondents' trial could not occur until after date scheduled for third party's trial made the appeal largely academic. The CCA noted that the dismissal of this appeal did not mean that the respondents' retrial should be deferred until third party had exhausted all his appellate rights. This would be a discretionary matter for a District Court judge if any application for a further stay of proceedings was made.
Appeal dismissed.
283

BJH - CCA, 30.7.98
Sentence appeal.
1 x aggravated indecent assault; 1 x sexual intercourse with child under 10.
MT 2*y, AT 2*y.
Complainant the daughter of appellant, aged 8 at times of commission of offences.
Guilty plea - frank admissions.
Held: sentences not manifestly excessive.
Observations concerning utility of Judicial Commission statistics.
Appeal dismissed.
284

JAMES, Ross Anthony - CCA, 30.7.98
Conviction appeal.
Supply prohibited drug (methylamphetamine). Crown case was not one of actual supply but rather one of possession, deemed by the relevant statutory provisions to have been possession for the purpose of supply.
While cross-examining accused, Crown prosecutor called for production of statement given by accused to his instructing solicitor. This call was permitted & Crown prosecutor was given access for purpose of cross-examining accused as to date of statement.
Held: an impermissible breach of client legal professional privilege resulting in miscarriage of justice.
Appeal allowed: new trial ordered.
285

JOHNSTON, Bernard Lawrence - CCA, 31.7.98 - 45 NSWLR 362
Conviction appeal.
3 x sexual intercourse without consent in circumstances of aggravation.
Complainant was aged 15 years at the time of the offences. No complaint was made for almost 5 years.
Directions - warnings - trial judge failed to properly direct jury regarding delay in complaint - convictions unsafe & unsatisfactory.
Appeal allowed: convictions quashed, judgement and verdict of acquittal entered.
286

LEMOTO, Andrew James - CCA, 24.7.98
Crown appeal.
Dangerous drive causing death (2 victims).
500 hours CSO.
Respondent was aged 18 at time of offence - had been holding a provisional driver's licence for about 4 months - travelling at about 60-70 kms per hour - street poorly lit, heavily lined with trees - other than darkness, no adverse weather conditions. Vehicle collided with 2 elderly pedestrians who were crossing the road - they were killed instantly.
Sentence manifestly inadequate - full-time custody appropriate - restraint on sentence.
Appeal allowed: resentenced to FT 2*y to be served by PD.
287

N - CCA, 21.7.98
Leave to appeal against interlocutory judgement or order in the DC.
Applicant, accused of sexually assaulting his son, sought production of certain documents, including confidential counselling communications which were privileged from production under s.126H Evidence Act. Trial judge declined to make order as to whether or not access should be given to material produced in answer to subpoenas issued.
Privileged document - District Court Rules Pt.29 r.1.
General principles - failure to make an order - whether 'judgement'or 'order'.
Leave to appeal refused.
288

ORROCK, Shane Leon - CCA, 22.7.98
Sentence appeal.
Supply prohibited drug (heroin - 6 grams).
MT 2y, AT 1y.
Guilty plea - drug habit - some of the drug used to feed that habit but some used to supply to others.
Failure to take into account significant assistance provided to authorities - parity.
Appeal allowed: resentenced to MT 16m, AT 8m.
289

TOOMEY, Bradley John - CCA, 22.7.98
Sentence appeal.
Armed robbery.
MT 3y, AT 3y.
Armed with screwdriver, appellant entered convenience store wearing balaclava - threatened the proprietor & an employee before stealing money from the two cash registers & fleeing from the shop.
Guilty plea - prior convictions - addicted to drugs & alcohol - offence motivated by addiction.
Submitted on appeal that sentence excessive - judge overstated objective seriousness of offence.
Appeal dismissed.
290

WILSON, Michael - CCA, 20.7.98
Judgement on application for leave to appeal.
Conviction appeal.
Supply trafficable quantity prohibited drug (methylamphetamine).
Alleged inconsistency between Commonwealth & State legislation.
Held: no such inconsistency.
Leave to appeal refused.
291

WILSON, Michael - CCA, 20.7.98
Sentence appeal.
Supply trafficable quantity prohibited drug (methylamphetamine); + further 4 matters taken into account on a Form 2.
2y PD.
Guilty plea - pre-sentence custody served.
On appeal: sentence manifestly excessive.
Appeal allowed: resentenced to MT 42w, AT 33w.
292

TZINBERG, Steven Kyle - CCA, 22.7.98
Sentence.
Convicted after trial for deemed supply commercial quantity methylamphetamine; applicant had pleaded guilty to an indictment containing 1 x larceny of MV; 3 x steal from cars. He also asked the judge to take into account multiple charges of goods in custody; steal from cars; attempt steal from car, make & use false instruments, BE&S from motor cars.
The purity of the methylamphetamine was low, ranging from 1.5% to 3% to 3.5%, & the prosecution relied on s.4 (the admixture provision) of the Drug Misuse and Trafficking Act. The amount of admixture was about 530 grams, whereas commercial quantity is 250 grams.
MT 5y, AT 3y for dishonesty offences; concurrent FT 3y on supply charge.
Disturbed childhood - drug addiction - severe gambling addiction - since commencing custody, embarked upon rehabilitation, treatment & counselling for drug & gambling problems.
Parity.
Appeal dismissed.
293

PEISLEY, Terrence Matthew - NSW SC, Newman J, 7.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
2 x murder.
Applicant shot both victims. Bad blood evidently had existed between them, the one victim having been accused of sexually interfering with daughter of applicant's de facto, the other having sexual intercourse with de facto.
Application allowed: sentenced to MT 14y, AT 10.
294

NGUYEN, To Ngoc - NSW SC, Studdert J, 13.8.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Shooting in restaurant.
Application allowed: sentenced to MT 16y, AT 5y.
295

IRVING, Donald Bruce - NSW SC, Wood CJ at CL, 10.6.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder (stabbing); maliciously throw corrosive liquid (hydrochloric acid) with intent to cause GBH (s.47).
At first trial, convicted on s.47 charge & sentenced to 12y with 5y NPP. Jury unable to agree on murder count.
At retrial, applicant convicted on murder charge & sentenced to life.
Application allowed: sentenced to MT 21y 3m, AT 7y.
296

ELLISON, Brett Leroy - NSW SC, David Levine J, 13.3.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant took a young girl in his ute to a remote country area where he had sex with her. Afterwards he pushed the girl from the back of the utility & drove over her a number of times. He then dragged her body into a nearby creek & left her there.
Application allowed: sentenced to MT 16y, AT 6y.
297

ELCOATE, Eric Thomas - NSW SC, Hidden J, 8.5.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder; maliciously inflict ABH with intent to have sexual intercourse.
Life on murder charge; 9y on sexual assault charge with no NPP.
Murder victim was husband of sexual assault victim. Applicant was a boarder in their home. The wife retired to bed, leaving her husband & applicant in the loungeroom. Husband was asleep on a sofa. Some hours later, applicant shot husband in the head at close range then went to bedroom of wife where sexual assault took place.
Application allowed: sentence to MT 15y, AT 6y.
298

PHILLIPS, Kevin John - NSW SC, Bruce J, 2.4.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder; threaten to inflict ABH with offensive weapon with intent to have sexual intercourse; sexual intercourse without consent.
Victim a woman working in premises where applicant employed as a security officer. On the Sunday of the murder, before going off duty, applicant concealed carving knife in his jacket & carried a black metal torch, then took lift to 8th floor where victim was working at the time. After looking around the floor for her he returned to the lift area & found victim waiting to go down. They went down in the lift together. When door opened on ground floor, applicant grabbed victim, held knife to her throat & made threats, then forced her into a store room & had intercourse with her. Afterwards, he struck victim on head with torch then plunged the knife into her chest, put her into a plastic bag & cut her throat. After trying unsuccessfully to put the bag containing her body into his car, he dumped her in the street & drove off.
Application allowed: MT 18y, AT life.
299

BUSHELL, Stephen Joseph - CCA, 7.8.98
Sentence appeal.
1 x import trafficable quantity MDMA;
1 x import trafficable quantity MDEA (described as a drug analogue of MDMA).
These drugs also known as 'Ecstasy'.
Sentenced to 7*y with 4y NPP on 4.9.97; on 14.5.98 sentence corrected to 7y with 4y NPP.
Applicant & de facto arrived in Sydney on a flight from London. A search of applicant's luggage revealed 4,970 tablets concealed in false bottom of suitcase (1.4921 kgs). Upon analysis, tablets found to contain 166.77 grams pure MDMA & 165.09 grams pure MDEA. De facto allowed to return to United Kingdom.
Minor convictions for dishonesty & drug possession.
Insufficient weight - assistance to authorities - hardship to family - isolation from friends & acquaintances by being imprisoned in Australia.
Held that none of the grounds made out.
Appeal allowed merely to correct procedural error in sentencing - sentencing judge's sentence of 7y with 4y NPP reimposed.
300

FISK, Colin John - CCA, 21.7.98
Sentence appeal.
24 x serious sexual misconduct (victim 1 - indecent assault, buggery; victims 2 & 3 - sexual intercourse without consent, homosexual intercourse, aid & abet act of homosexual intercourse).
MT 9y, AT 3y.
First victim aged about 14 at time of first offence & about 19 at time of last; 2nd victim aged about 13 at time of first offence & 15 at time of last; 3rd victim aged 14 or 15 at time of first charge & about 15 at time of last. All victims from dysfunctional families. Applicant admitted these were not isolated acts, but representative of a lifestyle.|
Assistance to authorities - Royal Commission into NSW Police Service - exposure of existence of organised paedophilic activity linked with organised police racketeering - insufficient weight.
Appeal dismissed.
301

FRASER, Robert McKay - CCA, 10.8.98
Conviction appeal.
4 x indecent assault; 2 x homosexual intercourse with male aged between 10 & 18; 1 x sexual intercourse with child aged between 10 & 16.
Appellant found not guilty of further 2 offences allegedly committed against same person at later date. Acquittal directed on further count by reason of inability of Crown to date alleged offence.
All offences for which appellant convicted allegedly occurred over 3 separate days. Crown relied on conflicts between evidence given by appellant at trial & statements made in an ERISP conducted after arrest, relating to the period during which complainant had performed odd jobs for appellant & type of work performed. Crown submitted conflicting statements demonstrated consciousness of guilt.
Admissibility of evidence relating to incidents not the subject of charges tendered to prove relationship & guilty passion - directions relating to lies by accused - verdicts unsafe & unsatisfactory.
Appeal allowed: new trial ordered.
302

BYRNE, Kerry Anne - CCA, 5.8.98 - 104 A Crim R 456
Crown appeal.
Aggravated dangerous drive causing death - MT 12m, AT 4m by way of home detention & disqualified from holding driver's licence for period of 3y;
aggravated dangerous drive occasioning GBH - 3y GBB.
Grossly affected by alcohol at time of accident. Had also been smoking cannabis. Her brother had pleaded with her not to drive & had offered to do the driving but she had
refused. Her one child died as a result of the accident & the other seriously injured. Respondent also suffered serious injury. Respondent had never held a full driver's licence.
Priors include stealing, possess cannabis, being an unlicensed driver.
Subjective features: hardship to respondent's children - respondent's ill-health.
Held subjective features must not lead to inadequate sentence - objective seriousness of offence - general deterrence.
Appeal allowed: custodial sentence MT 11m, AT 2y; order for disqualification for 3y confirmed; no variation to order for recognizance in respect of GBB.
303

REID, Anthony George - CCA, 24.7.98
Sentence appeal.
2 x indecent assault against child aged 9y & 10y; 1 x buggery committed on child aged 14y (these offences were committed against applicant's younger brother who was 10y younger than the applicant).
After applicant had been found guilty of these 3 offences, he pleaded guilty to a number of further offences committed against children.
Sentenced to total 16y, with total FTs or MTs of 12y.
The applicant himself was sexually abused as a child & such abuse a contributing factor to commission of offences - whether sentence manifestly excessive.
Special circumstances found: first time in gaol - need for psychological treatment - need for longer than usual period of supervised liberty.
Appeal allowed: resentenced to sentences totalling 12y with FTs or MTs totalling 8y.
304

BLACK, Leroy Frank - CCA, 23.7.98
Crown appeal.
1 x manslaughter; in the alternative aggravated dangerous drive causing death & aggravated dangerous drive occasioning GBH.
Guilty plea to alternative counts, which Crown accepted in full satisfaction of indictment. Further 3 offences on a Form 1 taken into account.
Sentence: MT 2y 3m, AT 2y 3m; disqualified from holding driver's licence for 3y.
Unlicensed driver, travelling at 110 kms p/h in 60 km zone - drove through intersection against red traffic light, colliding with car - driver of other car killed instantly, passenger of other car severely injured leading to removal of portion of liver, removal of spleen, insertion of catheter to drain blood from chest cavity - underwent surgery on 2 further occasions.
Respondent claimed no recollection of collision. Denied consuming any alcohol. Blood sample taken found to contain not less than 0.107 grams alcohol per 100 ml blood. Forensic pharmacologist estimated blood alcohol level to have been in range of 0.120 to 0.135 per 100 ml at time of collision.
Crown appeal upheld: resentenced to MT 3y, AT 2y; disqualification from holding driver's licence for 3y confirmed.
305

STACKELROTH, Neredith Joy - CCA, 9.4.97
Conviction appeal and leave to appeal against sentence.
Being a director of a nursing home she defrauded one of the residents of a sum of money.
6m PD.
The resident had given appellant authority to operate his savings bank account. She withdrew all the money & deposited $900 of it into an account styled as Neredith Joy Stackelroth as trustee for David Elliott. The charge against the appellant related to the balance of $1,763.53. After the death of the resident, his son commenced making enquiries about his father's bank account & raised the matter with the police. The police officer principally concerned with the investigation conducted an interview with the appellant & a formal written record of it was signed by the appellant, however, the police officer died after the committal proceedings against the appellant.
Evidence Act s.165 - adequacy of warning.
It was argued that, in admitting evidence of a statement by a deceased police officer as to an interview he had with the appellant, the trial judge failed to give adequate warnings as to its possible unreliability.
Held warnings given were adequate.
Conviction appeal dismissed; leave to appeal against sentence refused.
306

WILSON, Paul Robert - CCA, 15.7.98
Conviction and sentence appeal.
Assault with intent to rob.
Attack upon a taxi driver. Taxi driver had managed to press alarm button which connected him to the taxi cab base. The base operator rang the police. Police arrived & taxi driver went with them to locate the appellant. He was located & arrested. The taxi driver gave evidence that he had shown police the red marks on his neck & the investigating officer gave evidence that he had not seen a red mark on the taxi driver's neck.
Appellant unrepresented at trial.
On appeal submitted trial judge erred in: directing that no evidence to contradict evidence of complainant; failing to advise appellant on failure to give evidence; failing to direct jury there may have been reasons for appellant not giving evidence; admitting evidence of transcript of committal hearing.
Appeal allowed: conviction & sentence quashed, verdict of acquittal entered.
307

S, H.A. - CCA, 13.8.98
Sentence appeal.
Murder.
MT 12y, AT 5y.
Guilty plea. Appellant was juvenile at time of offence.
The deceased, who was known to the appellant, was attacked in his home by the appellant & a co-offender. The attack involved repeated acts of violence & brutality. The cause of death was stated as head & facial injuries & stab wounds to the chest & neck.
Applicant & co-offender were convicted of different offences therefore considerations of parity did not apply.
Submitted on appeal sentence manifestly excessive.
Sentencing of juveniles - gravity of offence major consideration - brain damaged & possible epileptic - Aboriginal brought up in environment of neglect & alcohol & drug abuse - undernourished & sickly - no prior record - remorse - good prospects of rehabilitation.
Appeal allowed: MT 10*y, AT 6*y.
308

CHMIELOWIEC, Wladyslaw - CCA, 21.7.98
Sentence appeal.
Act of indecency with person under 10y; aggravated sexual intercourse without consent.
Guilty pleas.
MT 4y, AT 18m.
Complainant is the grand-daughter of applicant's wife & was residing in applicant's home, together with her grandmother & her brother aged 7. Complainant aged 9 at time of offences.
The first offence relates to the applicant compelling complainant to perform act of masturbation upon him & 2nd count relates to when applicant compelled complainant to perform fellatio upon him to point of ejaculation. Not isolated events.
Submitted on appeal that there were special circumstances.
Appeal dismissed.
309

KANE & ORS (Cth DPP v) - NSW SC, Common Law Division, David Hunt CJ at CL, 10.9.97
An application made by Cth DPP for orders restraining defendant from using or otherwise dealing with a document which came into his possession, having been erroneously sent to him from the Cth DPP Office in Canberra, & to require him to deliver that document up to the plaintiff. Application based in the alternative upon equitable obligation of confidence & legal professional privilege.
Application granted.
310

CARROLL, John - CCA, 27.8.98
Conviction appeals (reference from Attorney General under s.474C(1)(b) Crimes Act).
Two convictions at 2 separate trials.
1. Armed robbery - 10y with 7*y MT.
2. Conspiracy to commit armed robbery - concurrent FT 4y; (there was a possess unlicensed firearm offence as well, but this was not the subject of the reference - concurrent 2y).
Fresh evidence - tainted police evidence - whether convictions should be quashed - whether new trial should be ordered - exercise of discretion under s.8(1) Criminal Appeal Act 1912 - relevant discretionary factors - credibility - 4 previous trials - time spent serving sentence imposed - strength of prosecution case.
Appeals allowed: verdicts of acquittal entered.
311

COOK, Wayne John - CCA, 24.8.98
Conviction appeal.
Robbery in circumstances of aggravation.
Identification evidence - requirements of warning to jury - 'looked extremely like the person'- not evidence of identification - omission or misdirection in summing up - point not taken at trial.
Pitkin v The Queen (1995) 69 ALJR 612 applied.
Appeal dismissed.
312

THEW, Roy Shane - CCA, 25.8.98
Crown appeal.
2 x attempted murder.
Guilty plea.
Respondent had driven his car into his garage whilst his infant daughters were asleep in the back of the car & attempted to poison himself & them with carbon monoxide.
MT 2y 9m, AT 3y.
Central issue on appeal whether sentencing judge had taken sufficient account of objective gravity of offences to which respondent pleaded guilty.
Appeal allowed: resentenced to concurrent MT 5y, AT 4y on each count.
313

KILMORE, Kate - CCA, 13.8.98
Sentence appeal.
Murder.
MT 10y, AT 4y.
Guilty plea.
Stabbed Irish tourist walking along Glebe Point Road.
On appeal, applicant submitted: LAC coerced her into pleading guilty; sentence excessive for guilty plea; dissatisfied with representation of LAC; media coverage affected outcome of case; unfairly treated by judge because victim a tourist.
Appeal dismissed.
314

PETERSON, Peter - CCA, 12.8.98
Application for extension of time to re-open appeal for an additional argument to be entertained (sentence imposed too severe).
Applicant was originally on trial for multiple BE&S & dishonesty offences for which he received MT 4y, AT 2y. His appeal against that sentence was allowed in so far as to backdate the sentence (see Peterson, 5.5.97).
R v Saxon (unreported, NSW CCA, 21.4.98) referred to.
Application for extension of time refused.
315

CROWL, James Albert - CCA, 20.8.98
Application to seek leave to re-open previous appeals against conviction & sentence (dismissed - see Crowl, 10.7.97).
Originally tried on indictment containing 24 counts, each odd numbered count alleging offence contrary to s.178BA Crimes Act (dishonestly obtain by deception), each even numbered count alleging offence contrary to s.178A (fraudulently omitting to account). Although indictment did not specify counts as alternatives, Crown case conducted on basis that jury invited to consider s.178BA counts first & only to consider s.178A counts in event they not satisfied former had been proved. Jury invited to acquit on counts 1, 3, 5, 7 & 9. Convicted on remaining 7 primary counts & also on 5 counts of fraudulently omitting to account which were paired with those counts upon which acquittal had been invited.
Concurrent FT 1y on each of 5 counts (s.178A) and concurrent MT 2y, AT 1y on each of 7 counts (s.178BA) to be served cumulatively upon FT.
Grierson v King (1938) 60 CLR 432; R v Saxon (unreported, NSW CCA, 21.4.98) referred to.
Application dismissed.
316

KINGSWELL, Raymond Joseph - CCA, 2.9.98
Conviction appeal.
Attempt obtain possession of commercial quantity heroin.
Sentenced to life with 15y 4m NPP.
X collected packages containing heroin from private post box at newsagency then left packages on applicant's balcony & drove away. Applicant placed packages in his car then drove away, taking indirect route to point where he was stopped by police. Claimed he did not know what packages contained. Police officer said applicant had employed counter-surveillance techniques in driving. Applicant called expert witness who cast doubt upon some of police officer's evidence.
Leave to cross-examine - identification - expert witness - ss.38 & 79 Evidence Act.
Appeal dismissed.
317

WILLETT, Matthew Daryl - CCA, 21.8.98
Sentence appeal.
Malicious wounding.
MT 15m, AT 5m.
Guilty plea.
Attack upon female, unknown to applicant, on a dance floor which culminated in applicant striking victim on right side of her face with a schooner glass which broke & victim suffered sizeable laceration to right cheek under the eye, together with some less serious facial injuries. Sentencing judge described objective facts as very serious.
Applicant, a sub-lieutenant with Royal Australian Navy, had been at sea for 10 days prior to incident - relatively little sleep during this period - had taken large amount of medication for tension headaches, hay fever - considerably affected by liquor at time of incident. Expressed no recollection of incident, which was accepted by sentencing judge.
Powerful subjective case - remorse - shame - no priors - good family background - good character evidence.
On appeal submitted sentence failed to give weight to unusual subjective case.
Appeal dismissed.
318

STANTON, Kerry Elizabeth - CCA, 24.7.98
Conviction appeal.
AOABH; accessory after the fact to robbery.
Appellant & complainants were neighbours living in semi-rural area with history of animosity between them. Complainant, a man aged 64, was mowing a firebreak on his property, his wife sitting nearby. Appellant drove her son to that area but remained in the car. Appellant's son grabbed complainant from behind & punched him a number of times in the face then kicked him when he fell to the ground. Complainant's wife gave evidence that the appellant called out 'Bash him, bash him'The complainant's wife had a camera with her & was seen taking a photograph of the affray. Appellant's son took the camera from her, returned to the car & the car drove off. Later the camera was recovered but without the film.
Unreliable evidence - warning required or advisable - disputed oral admissions by accused - refusal to give warning - Evidence Act 1995, s.165.
Appeal allowed: new trial ordered.
319

WINSOR, Darren James - CCA, 13.8.98
Conviction appeal.
Wound with intent to murder.
MT 8y, AT 4y.
The victim was a cattle farmer & the appellant had worked on the property for about 2* months as a general station hand. Appellant accused of shooting victim (4 times in all).
Appellant appeared for himself at appeal. Submitted that: hatred expressed by a witness made her unbelievable; trial judge admonished her about this testimony giving a warning about perjury; expert witness stated no positive ID could be made regarding weapon used; trial judge erred in his judgement based upon recent widely reported illness from which he was suffering at the time of the trial; corroborative evidence provided by two elderly witnesses as to vehicle seen at scene not taken into account; victim claimed no conflict or reason for appellant to harm him.
Appeal dismissed.
320

GALWAY, David John - CCA, 19.8.98 103 A Crim R 35
Crown appeal.
Knowingly take part in cultivation of commercial quantity of cannabis plants (520 plants).
400h CSO (after taking into account 2m 9d pre-sentence custody).
Excess weight placed on evidence of good character - not guilty plea - priors - stood to gain substantial profit from enterprise - sentence out of all proportion to seriousness of the crime.
Appeal allowed: resentenced to FT 6m.
321

CROSS, Robert James - CCA, 8.9.98
Conviction appeal.
Murder.
The victim was shot 3 times in the head at an isolated location. Appellant claimed the mother of the victim killed the victim & that he was coerced by victim's mother into assisting to dispose of the body.
Evidence of expert extending beyond area of expertise; prejudicial effect of witness accusing defendant of separate crime - whether jury should have been dismissed - actual or apparent bias by trial judge - evidence at committal of witness who was unable to give evidence at trial - Evidence Act 1995 (NSW) s.65 - directions - evidence of TV interview - new evidence adduced at trial - not served on defendant - defendant's right to recall witness - judicial comment - reasonable doubt as to involvement of witness in the crime - whether imputes reasonable doubt as to defendant's guilt.
Appeal dismissed.
322

LEWIS, Scott Tikao - CCA, 8.9.98
Conviction and sentence appeal.
1 x murder; 2 x in company with others use unlawful violence towards deceased; 2 x AOABH.
Directions - corroboration - unreliable witnesses - conflicting directions - Evidence Act ss.164, 165 - elements of AOABH - elements of affray - flight of accused - defendant's failure to give evidence - Evidence Act s.20 - separate trials - inconsistency in Crown case against co-accused - where co-accused subsequently acquitted by direction - whether verdict unsafe & unsatisfactory.
Appeal allowed: new trial ordered on all charges.
323

SIMPSON - HC, 23.7.98 - 194 CLR 228; 72 ALJR 1199
Murder - Code provisions - culpable homicide (Tas) - act known by offender to be 'likely'to cause death - test that offender 'knew, or ought to have known'- how construed - not requiring prosecution to prove actual state of knowledge & awareness of particular offender - right of jury to draw inferences not to be circumscribed - assessing consequences if offender had stopped to think - Criminal Code Act 1924 s.157(1)(c).
324

B (DPP v) - HC, 23.7.98 - 194 CLR 566; 72 ALJR 1175
Sexual offences - reservation of questions for Full Court (SA) - as to primary judge's power to refuse to accept nolle prosequi - trial not commenced - questions not 'arising at the trial'- questions excessively wide & unrelated to facts in issue - orders of Full Court purporting to answer questions set aside - Criminal Law Consolidation Act 1935 s.350(1a).
High Court - nature & extent of judicial power - advisory opinion - beyond power of Court - resolution sought of question as to judicial power to refuse to accept nolle prosequi on criminal trial - purported determination by intermediate court of appeal set aside.
325

DIMITROVSKI v RYAN - HC, 19.6.98 - 72 ALJR 1172
Procedure - person charged brought before justice - reasonable grounds for suspicion - to be evident at time when person charged - Police Act 1892 (WA) s.69.
326

ALLEN - HC, 19.6.98 - 72 ALJR 1173
AOABH.
Alleged misdirection - as to irrelevance of award of victim's compensation to complainant - supplementary directions to jury after summing up - to put compensation question 'right out of your minds'- not operating to withdraw directions in summing up itself.
327

ZAFIRIS, George - CCA, 14.9.98
Conviction & sentence appeal.
1 x indecent assault upon person under 10 (9); 2 x sexual intercourse with child under 10 (9); 1 x sexual intercourse with child between 10 & 16 (10) under authority; 2 x indecent assault with person under 16 (10) under authority.
Direction to jury to return verdict of not guilty on 4th count due to deficiencies in evidence by complainant as to incident the subject of that count.
Jury returned verdicts of not guilty on counts 1 & 5, but guilty on counts 2, 3 & 6.
MT 18m, AT 12m on each count.
Conduct of legal practitioners - incompetence of counsel - relevant principles - points or objections not taken below - role of CCA - failure to make or delay in making complaint - corroboration - directions - warning on uncorroborated evidence.
Appeal allowed: convictions quashed.
328

BARGWANNA, Darren Roger - CCA, 16.9.98
DAVIS, Glen Lisle
Conviction appeal.
Bargwanna: 1 x attempt sexual intercourse without consent; 1 x sexual intercourse without consent.
Davis: 1 x sexual intercourse without consent.
Multiple accused - photographs of sexual activities taken by a Crown witness who gave evidence at committal hearing - witness not called by Crown prosecutor at trial - whether verdicts unsafe & unsatisfactory.
Appeal allowed: convictions & sentences quashed.
329

BASAGA, Lorima - CCA, 19.8.98
WELEILAKEBA, Sunia Cama
Crown appeal.
Weleilakeba: 1 x malicious wounding; 1 x armed robbery; 1 x attempt armed robbery - guilty pleas - MT 18m, AT 2*y.
Basaga: 1 x armed robbery; 1 x attempt armed robbery - guilty pleas - 3y PD.
Armed robbery of bottle shop - armed with screwdriver - victim struck with broken bottle - required 38 stitches - manifestly inadequate sentence.
Appeal allowed: Weleilakeba - MT 3y, AT 1y; Basaga - MT 2y, AT 1y.
330

SHIRVANIAN & Anor (DPP v) - Ct of Appeal, 24.6.98 - 44 NSWLR 129; 102 A Crim R 180
Stay of proceedings.
Information charging offence (goods in custody) triable summarily - powers of magistrate - whether has power to stay.
Held: Magistrate has power to grant permanent stay when conducting a summary trial.
331

PENNEY, Michael Ross - HC, 13.8.98 - 72 ALJR 1316
Inadequate police investigation - appellant convicted of attempted murder of wife by setting fire to car - whether verdict unsafe or unsatisfactory or productive of 'miscarriage of justice'entitling appellant to acquittal or retrial - whether misdirection on elements of offence & motive - relevance in this context of marital discord.
Appeal dismissed.
332

PEARCE, Douglas Wallace - HC, 10.9.98 - 194 CLR 610;72 ALJR 1416
Double jeopardy - appellant charged with & convicted of two offences arising out of same facts - whether plea in bar available - whether abuse of process - whether double punishment.
Appeal allowed: set aside order of CCA dismissing application for leave to appeal against sentence; remit matter to CCA to be dealt with consistently with reasons for judgment of HC.
333

FARRELL, Alan Arthur - HC, 13.8.98 - 194 CLR 286; 72 ALJR 1292
Expert evidence & credibility of witnesses - whether expert evidence admissible which discloses existence of mental disability likely to bear on reliability of complainant's evidence - whether possibility of impairment of memory by alcohol & substance abuse within experience of ordinary persons - whether knowledge of effect of anti-social personality disorder within experience of ordinary persons - jury direction on weight to be given to expert evidence about credibility & reliability of complainant witness - whether misdirection deprived appellant of fairly open chance of acquittal.
Appeal allowed: set aside order of CCA of Tasmania & in lieu thereof allow appeal to that Court, quash convictions & order new trial on counts 1, 2, 3, 4, 5 & 6.
334

DUFF, James William - CCA, 17.9.98
Conviction & sentence appeal.
Supply heroin (57.37 grams, 48.5% purity).
MT 18m, AT 18m.
Whether representation by appellant an admission - whether trial judge erred in exercise of discretion to exclude evidence of an admission pursuant to s.90 Evidence Act - lies - whether error of law in directions - whether miscarriage of justice: r.4 Criminal Appeal Rules - exercise of discretion not to discharge jury - whether discretion miscarried - whether conviction unsafe & unsatisfactory in sense of failure to provide fair trial.
Whether sentence should be reduced in view of assistance to authorities post-dating sentence - whether sentence for offence under s.25(1) Drugs Misuse and Trafficking Act excessive.
Appeal dismissed.
335

GANDERTON, Todd Ronald - CCA, 17.9.98
Conviction & sentence appeal.
3 x aggravated dangerous drive occasioning GBH.
MT 1y, AT 2y on each charge to be served concurrently & disqualified from holding driver's licence for 3y.
Guilty plea.
Whether conviction should be set aside despite plea of guilty - appellant not informed of possible defence under s.52A(8) to charges of aggravated dangerous driving causing GBH: s.52A(4) Crimes Act.
Appeal allowed: new trial ordered.
336

MURRAY, James Francis - CCA, 11.9.98
Conviction appeal.
Armed rob; steal MV (get-away car).
Appellant acquitted on 3rd charge of possessing 12 gauge shortened shotgun allegedly found by police in a bag in his bedroom. Appellant not present when search warrant executed. Contended shotgun planted by police. Appellant also gave evidence of prior corrupt conduct against him by detective sergeant in charge of search. Officer unable to give evidence at trial as he was suffering from a psychiatric illness. Appellant relied on alibi evidence. A number of witnesses gave evidence as to alibi. Store manager identified appellant from photograph.
Long delay in bringing appeal: 4y after trial concluded & 6y 8m after alleged offences.
On appeal : adequacy & accuracy of identification directions - verdict unsafe & unsatisfactory.
Appeal dismissed.
337

STITT, Warwick Roger - CCA, 8.9.98 - 102 A Crim R 428
Sentence appeal.
Defraud Commonwealth; imposition on Department of Social Security.
Sentenced to 5*y with NPP of 5y on first count; concurrent 12m on second count.
The first count involved applicant perpetrating massive fraud on Taxation Dept extending over more than 5 years ($624,509.81) involving lodging of tax returns in the names of fictitious employees of non-trading companies, including in such returns false group certificates fabricated by applicant, and subsequently resulting in the fictitious employees becoming entitled to refunds from the Tax Department. The second count involved obtaining unemployment benefits by deception to the value of $55,392.79.
Need for general deterrence - relationship between head sentence and NPP.
Appeal allowed in part: head sentence confirmed, NPP changed to 3y 8m.
338

HEYNE, Ian Eric - CCA, 18.9.98
Conviction and sentence appeal.
Manslaughter.
FT 18m.
Appellant tried for manslaughter of his wife who died when she was trapped inside their burning house. Appellant had poured petrol around interior of house but cause of ignition unknown. Crown case was that appellant had caused the death of his wife by an unlawful & dangerous act or by criminal negligence.
On appeal: trial judge's directions challenged on manslaughter, causation & interest of accused & his Honour's decision to give further directions to jury after deliberations had commenced - unsafe & unsatisfactory.
Appeal dismissed.
339

LARDNER, John William - CCA, 10.9.98
Sentence appeal.
Common assault.
MT 10m, AT 10m cumulative upon a sentence applicant was already serving. Guilty plea.
Applicant woke victim in early hours of morning, hit her forcefully in the face & after some time left the house. Applicant on conditional liberty at time of offence.
Extensive criminal record including stealing & so-called street offences, assault, assault police, assault occasioning ABH, assault female, robbery in company.
Emotional reactions by victim of fear, panic, anxiety etc - whether amounting to ABH - whether applicant sentenced for more serious offence than that to which he pleaded guilty.
Appeal dismissed.
340

SHILLINGSWORTH, William Robert - CCA, 13.8.98
Sentence appeal.
Manslaughter.
MT 4*y, AT 4y.
Originally charged with murder, but pleaded guilty to manslaughter which was accepted by the Crown in full satisfaction of the indictment.
Offence committed whilst applicant was on parole after serving MT 6m for two counts of common assault.
Extensive criminal record including 17 convictions for various forms of violence & other convictions for malicious damage, larceny, resist arrest.
Provocation - culpability - appropriate weight - directions - overstated strength of prosecution case - overstated evidence of degree of violence displayed by applicant.
Appeal dismissed.
341

THACKRAY, Howard William - CCA, 19.8.98
Crown appeal.
Drive in manner dangerous occasioning death; drive under influence of intoxicating liquor occasioning death; + 1 matter on a Form 1 (failing to stop & give assistance).
FT 18m home detention.
Guilty pleas - remorse.
The accident occurred at 6.15 pm & respondent's blood was taken for analysis at approximately 8.30 pm and showed a blood alcohol concentration reading of 0.326.
Prior driving offences with a conviction for an offence of high range PCA (blood alcohol reading almost 4 times over prescribed limit).
Sentence manifestly inadequate - should not have been ordered to be served by way of home detention.
Appeal allowed: resentenced to MT 3y, AT 1y.
342

NGUYEN, Manh Tien - CCA, 23.9.98
Conviction and sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
Sentenced to 9y with NPP of 5y.
Three crates, each containing a vase, were flown from Bangkok to Sydney. Customs officers at Sydney Airport identified the existence of heroin after a presumptive test on part of the consignment & notified Federal Police. Powdered heroin was found inside the base of each vase: total weight 14 kgs, with 10 kgs analysed as pure.
Common purpose & joint enterprise - knowledge & intent - inferences - state of mind - absence of interpreter - controlled delivery & removal of most of heroin.
Severity of sentence - parity.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 7*y with NPP of 3y 9m.
343

FISHER, Steven - CCA, 18.9.98
Sentence appeal.
Armed robbery.
MT 2y, AT 6m
Applicant entered a post office with a stocking pulled over his head & holding a small kitchen knife, ordered the postmaster & his wife to lie down on the floor & give him money. The postmaster gave him the cash from a drawer. The safe was on a time lock & the post master told the applicant that if the lock was turned, it would set off an alarm at the police station. That statement appeared to frighten the applicant & he panicked & fled. As he did so, he removed the stocking from his head, thereby exposing his face to a video surveillance camera as well as to a customer who was then entering the post office. He was seen to enter a white car & the registration number was taken.
Guilty plea - no priors - good employment record - actions out of character - 'baffling'- counselling required - would benefit from significant period under supervision.
Special circumstances - statutory ratio.
Appeal allowed: resentenced to MT 15m, AT 15m.
344

MANGOLINI, Anthony - CCA, 17.8.98
Sentence appeal.
3 x use false instrument; 1 x steal from a dwelling; + 14 x use false instrument on a Form 1 taken into account.
MT 2*y, AT 1y.
Guilty plea.
Applicant was befriended by an old & confused man. He took advantage of that old man's confusion to obtain monies out of his bank account. Whilst the sum was not large, it was the whole of the victim's savings. As an aggravating circumstance, the offences were committed in breach of a recognizance.
On appeal, submitted that sentencing judge should have had regard to special circumstances & adjusted statutory ratio between MT and AT to allow for rehabilitation & the fact that this would be the applicant's first time in prison.
Appeal dismissed.
345

GEORGE, John William - 14.9.98
Sentence appeal.
Obtain financial advantage by deception; make false instrument; use false instrument.
2y PD on 1st count; 4y GBB on remaining counts.
Guilty plea.
The first count involved the applicant making a complex series of deposits & withdrawals on an account he had at a building society, resulting in him being paid $24,300 to which he was not entitled. The money was used to pay gambling debts. Whilst on bail in respect of that offence, he committed the other two offences.
The applicant attended PD on only 8 occasions, failing to attend on 20 occasions.
On appeal, the applicant asked the Court to replace the PD order with an order for community service as it was difficult for him to attend PD owing to the fact that he had found a job as a car salesman which involved weekend work.
Appeal dismissed.
346

HOUDA, Hassan - CCA, 14.9.98
Sentence appeal.
16 x false pretences.
MT 18m, AT 18m.
Applicant had a business selling petrol. Offence arose out of a series of cheques given by applicant to wholesale representatives, none of which was met upon presentation. Applicant disposed of petrol stocks at discount rate. When confronted at 5.00 am one morning by wholesaler, applicant advised him money would be available from the bank at 10.00 am that morning. However, by 10.00 am he had departed on an overseas trip.
Psychiatric illness - weighting of sentence for general deterrence.
Appeal dismissed.
347

S, P.K. - CCA, 1.10.98
Conviction appeal.
3 x indecent assault with person under 10y; 2 x sexual intercourse with person under 10y.
General indication from counsel he was 'seeking good character direction'- not properly particularised - precise application - no anticipatory rulings given by trial judge as to consequences of calling by accused of evidence of good character - submitted resultant miscarriage of justice. Held: there was not.
Judge's summing up - various particular criticisms especially as to directions concerning reliability of complainant's evidence. Held: no errors demonstrated - Longman 168 CLR 79 referred to.
Submission verdicts unsafe & unsatisfactory. Held not.
Appeal dismissed.
348

NGUYEN, Minh Hieu - CCA, 1.10.98
Conviction appeal.
Murder.
Directions as to: joint criminal enterprise - meaning of 'GBH'- identification - references by trial judge to 'strange pseudo military insignia'on item of appellant's clothing - flight as evidencing consciousness of guilt - onus & standard of proof - intoxication - distinguishing capacity to form requisite intent. Summing up confused & unfocused.
Appeal allowed: new trial ordered.
349

C, R.J. - CCA, 1.10.98
Conviction appeal.
1 x indecent assault with person under 16y (10) & under appellant's authority; 1 x sexual intercourse with person under 16y (10).
Suggested inadequacies in directions as to: complaint evidence - prior inconsistent statements - prior good character. Failure to call available evidence of prior good character (held failure gave rise to miscarriage of justice: D (1986) 86 A Crim R 41 followed). Verdicts unsafe & unsatisfactory.
Appeal allowed: new trial ordered.
350

AZZOPARDI, Joseph - CCA, 1.10.98
Conviction and sentence appeal.
Solicit to murder.
MT 15y, AT 5y.
Directions as to truthfulness of statements made by appellant in ERISP when appellant did not give sworn evidence at trial - meaning of 'solicit'- comment by trial judge on failure of accused to give sworn evidence. Sentence excessive - special circumstances.
Conviction appeal dismissed.
Sentence appeal upheld: resentenced to MT 12y 9m, AT 4y 3m.
Note:Appeal to the HC allowed: conviction set aside, new trial ordered.
351

S, J.T. - CCA, 18.9.98
Conviction appeal.
Count 1: indecent assault (complainant 13 or 14 years) - FT 12m;
Count 2: indecent assault (complainant 13 or 14 years) - FT 12m;
Count 3: incite to commit act of indecency (complainant 13 or 14 years) - FT 12m;
Count 4: homosexual intercourse (complainant 14 or 15 years) - FT 3y;
Count 5: incite to commit act of indecency (complainant 13 or 14 years) - FT 12m;
Count 6: indecent assault (complainant 13 or 14 years) - FT 12m;
Count 7: attempt to have sexual intercourse (complainant 14 years) - MT 3y, AT 3y.
Delay in complaint - unsafe & unsatisfactory .
Appeal allowed: verdict of acquittal entered on count 4, new trial ordered on counts 1,2,3,5,6,7.
352

McDONALD, Malcolm John - CCA, 12.10.98
Crown appeal.
Aggravated dangerous drive causing death; aggravated dangerous drive occasioning GBH.
MT 2y, AT 3y.
Inadequacy of sentence - significance of priors - relationship between MT and AT - special circumstances justifying longer AT, ss.5(2) & (3) Criminal Appeal Act 1912 - statement of reasons - double jeopardy.
Appeal allowed: sentenced to MT 3y, AT 3y.
353

HOPTON, John Dean - CCA, 8.10.98
Conviction appeal.
Dangerous drive occasioning death.
Directions - failure to keep proper lookout - distinction between negligence & drive in manner dangerous - degree of inattentiveness.
Appeal allowed: verdict of acquittal entered.
354

CHU, Wai Thung - CCA, 16.10.98
Sentence appeal.
Import trafficable quantity heroin.
7y with 4*y NPP.
Whether foreigner entitled to leniency - discount for assistance to authorities - whether appropriate to hand down guideline judgement.
Appeal allowed: resentenced to 6y with 3y 9m NPP.
355

BELL, Philip Harold - CCA, 8.10.98
Appeal against two interlocutory judgements.
Stay - separate trials for counts in indictment - prejudicial pre-trial publicity - whether deprived of fair trial - proper instruction by trial judge - mitigating effect of time - capacity of jurors to listen to & implement directions.
Appeal dismissed.
356

BEHAR, Ilan - CCA, 14.10.98
Crown appeal.
Import commercial quantity MDMA (Ecstasy).
6y with 18m NPP.
Inadequacy of sentence - discount for assistance to authorities - relationship between head sentence & NPP - role in importation relevant to sentencing - appropriateness of guideline judgement - additional evidence in Crown appeal with respect to guideline judgement.
Appeal allowed: 6y with 30m NPP.
357

GOWARD, Russell John - CCA, 16.10.98
Sentence appeal.
Make false or misleading statement.
MT 2y, AT 10m.
Offence against Securities Industries (NSW) Code, s.125 - whether sentence excessive - held not except for small arithmetical error - no question of principle.
Appeal allowed in part: AT varied - 8m.
358

JURISIC, Christopher Tom - CCA, 12.10.98 - 45 NSWLR 209
Crown appeal.
3 x dangerous drive occasioning GBH.
18m home detention; disqualification of driver's licence for 1y.
Guideline judgements - consistency of sentencing - appropriate penalty - s.11 Home Detention Act 1996 - home detention as means of serving term of imprisonment - re-sentencing on Crown appeal - double jeopardy.
Appeal allowed: resentenced to 1y MT, 1y AT.
359

MARKARIAN, Anthony Vasken - CCA, 16.10.98
Sentence appeal.
1 x supply prohibited drug (heroin); 1 x deemed supply prohibited drug (heroin).
MT 3y, AT 1y on 1st count; FT 2y on 2nd count.
Addict/supplier - level of criminality - special circumstances.
Appeal allowed: MT 18m, AT 18m on first count; FT 18m on second.
360

PUCKERIDGE, Roy - CCA, 2.11.98
Conviction appeal.
Murder.
20y with MT 15y.
Appellant charged after body of elderly woman found buried. Decomposition inhibited pathological examination to determine exact circumstances leading to death. Appellant's flatmate pleaded guilty to being accessory after the fact to murder prior to appellant's trial.
Cause of death - equivocal medical opinion of possible causes - statements of accused demonstrate belief as to culpability but not fact of causation.
Appeal allowed: verdict of acquittal entered.
361

WELSH, Roderick Douglas - CCA, 14.12.98
Conviction appeal.
Aggravated sexual intercourse without consent (used a knife).
Alternate count of sexual intercourse without consent.
Complainant is the appellant's sister & was sleeping over at the appellant's house at the time of the offence.
Counsel chose not to address jury on alternative count - whether trial judge misdirected jury by not directing on alternative count - Criminal Appeal Rules, Rule 4.
Appeal dismissed.
362

KALAJZICH, Andrew Peter - CCA, 2.11.98
Appeal against s.13A determination.
Appeal under s.13A(12)(a) Sentencing Act 1989 against determination of MT & AT to replace sentence of penal servitude for life for murder of appellant's wife. S.13A determination set sentence at MT 25y, AT 3y.
Consideration of totality of criminality by original sentencing judge is not relevant where life sentence mandatory (pre 1989 Act) but is a relevant consideration when determining sentence under s.13A - short additional term appropriate where rehabilitation effectively achieved in that appellant extremely likely to re-offend.
Appeal dismissed.
363

PANTOJA, Maximo - CCA, 5.11.98
Conviction appeal.
Murder (of wife).
MT 13*y, AT 4*y.
DNA testing - evidence of matches & of statistical unlikelihood of chance matches - directions to be given by trial judge about DNA evidence - jury experiencing difficulty in reaching agreement - whether improper pressure put on jury to reach verdict - whether proof of motive essential - Evidence Act s.38.
Appeal dismissed.
364

RAE, John - CCA, 2.11.98 - 45 NSWLR 546; 104 A Crim R
Stated case.
Threats by telephone - whether threat must direct to intended recipient - whether offence requires that offender threatened to commit actual harm - Crimes Act 1914 (Cth) s.85AE(a).
Matter remitted to DC for determination.
365

DEGEN, James Christopher - CCA, 12.10.98
Sentence appeal & judgement on admissibility of evidence.
Conspire to supply large commercial quantity cocaine.
MT 3y, AT 3y.
Admissibility of evidence on application for leave & on re-sentencing - parity.
Admission of evidence declined.
Sentence appeal allowed: resentenced to MT 2y, AT 3y.
366

SPIES, Peter Mannery - CCA, 17.9.98
Conviction appeal.
Defraud creditors (1st count under s.176A Crimes Act; 2nd count in the alternative under s.229(4) Companies Code (NSW).
Directions - intent to defraud - improper use of position - intent to advantage.
Appropriate application of s.7(2) Criminal Appeal Act 1912.
R v Chew (1991) 173 CLR 626; R v Byrnes (1995) 183 CLR 401 applied.
Appeal allowed: verdict substituted to guilty of offence charged in 2nd count. Sentenced to 12m PD as ordered by primary sentencing judge.
367

E, A. - CCA, 10.9.98
Conviction appeal.
Sexual intercourse with child under 10 (7).
400h CSO.
Delay in reporting of offence (8 years) - uncorroborated evidence - contradictions in evidence - unsafe & unsatisfactory - error in directions - elements of offence - fairness of summing up.
Appeal allowed: verdict of acquittal entered.
368

B, M.A. - CCA, 18.9.98
Sentence appeal.
Armed robbery.
4y 3m, with NPP of 2y 3m.
Guilty plea - first offence - robbery of co-offender's landlady - during offence placed cardigan over victim's head & struck her with metal pole - offer to give evidence against co-offender.
Appeal allowed: resentenced to 4y, with NPP of 2y.
369

BUDIMAN, Herry - CCA, 8.9.98 - 102 A Crim R 411
Sentence appeal.
Knowingly concerned in importation of commercial quantity methylenedioxymethamphetamine (ecstasy) - 8095 tablets comprising 591.6 grams purity.
8y, with NPP of 6y 3m. Sentence backdated by 8m to take pre-sentence custody into account.
Drug courier - role in importation - lowly based in drug organisation - knowledge of drugs contained in speaker boxes.
Appeal dismissed.
370

CHANG, Spencer Ho Kong
HUNG, Lay Hy - CCA, 1.10.98
Conviction appeal.
Demand money with menaces.
Accused were involved in a protection racket & were members of a group known as 'Sing Wo'.
Mental element of offence - adequacy of directions.
No question of principle determined.
Appeal dismissed.
371

DAWSON, Brett - CCA, 16.9.98
Sentence appeal.
Larceny of MV.
Originally sentenced to 2y GBB - subsequent breach of terms. Then sentenced to PD.
Application made for cancellation of order.
Drug addict - recent attempt at rehabilitation - recent birth of child - special circumstances for varying parole period.
Appeal allowed in part: sentence of 84w affirmed, but NPP of 63w reduced to 42w.
372

WU, Raymond - 12.10.98
Sentence appeal.
Dishonesty offences (use of false diplomas).
2y with NPP of 1y.
Callous & cold blooded event - preyed on desperate people - absconded whilst on pre-trial bail.
Appeal dismissed.
373

NGUYEN, Hung - 102 A Crim R 577
TRAN
, Huy Lam - CCA, 30.10.98
Conviction appeal.
Supply commercial quantity heroin.
Judge describing photograph as perhaps misleading in summing up when matter never put to witness & never raised by either counsel - judge recalling witness after summing up concluded - judge speculates - identification evidence - adequacy of coverage of defence in summing up - judge not required to use phrase 'may be unreliable'.
Appeal allowed: new trial ordered.
374

WU, Mei Qin - CCA, 6.10.98 - 103 A Crim R 416
Conviction appeal.
1 x kidnap; 1 x attempt murder;.
Alleged error of law - discharge of juror during trial - in presence of jury - continuation of trial with only 11 jurors - fairness of trial - trial of indictment according to law - discretion.
Appeal dismissed.
375

HORTON, Ann Yvonne - CCA, 2.11.98 - 45 NSWLR 426; 104 A Crim R 306
Conviction appeal.
Murder.
Admissibility of unrecorded questioning as an 'admission'under s.424A Crimes Act - whether 'admission'under s.424A has same meaning as in the Evidence Act 1995 - whether an exculpatory statement is an 'admission'as defined in the Evidence Act.
Held: 'admission'has same meaning in Crimes Act s.424A & Evidence Act. Exculpatory statements are included in the meaning of 'admission'as defined in Evidence Act. Evidence of unrecorded questioning inadmissible.
Appeal allowed: new trial ordered.
376

AY, Murat - CCA, 30.10.98
Conviction and sentence appeal.
Solicit to murder.
MT 7y 4m, AT 2y 5m.
Elements of offence - jury adequately directed on case as conducted at trial - change of emphasis on appeal - summing up still adequate - appellant in disturbed mental condition pressed by person solicited to proceed - appellant not supplying final details or attending final meeting - severity of sentence.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 5y 3m, AT 1y 9m.
377

WARBURTON, Paul Gerard - CCA, 15.9.98
Conviction appeal.
Intercourse without consent.
Unreliable evidence - lack of warning to jury on mental illness of complainant & overdose of medication she had taken - s.165(1)(c) Evidence Act 1995 - failure to exercise common law discretion.
Appeal dismissed.
378

McKENZIE, John Lochlan - CCA, 16.9.98
Conviction appeal.
1 x sexual intercourse with child; 1 x incite child to commit act of indecency; 1 x indecently assault child (child under 10y at time of each offence).
MT 3y, AT 2y on 1st count; concurrent FT 2y on each of the other counts.
An earlier trial had commenced the year before but after the complainant had given evidence the Crown applied for leave to amend indictment presented at that trial. The judge discharged the jury because of possible confusion for the jury regarding the order of incidents being changed as well as dates of incidents being changed.
Warnings - directions - verdicts unsafe & unsatisfactory.
Appeal allowed: verdicts of guilty quashed.
379

EL MOUSTAFA, Najoud - CCA, 14.10.98
Sentence appeal.
Supply prohibited drug (cocaine - 27.7 grams with a purity of 47% plus a further small plastic bag containing 0.3 grams).
MT 18m, AT 14m.
Co-accused (the driver of the car) had arranged for the appellant to supply an undercover police officer with 1 oz of cocaine. Co-accused charged with being an accessory. Appellant described as being a courier.
Sentence imposed on co-offender was 500h CSO.
Parity.
Appeal allowed: resentenced to MT 1y 3m 6d, AT 1y 2m.
380

GRAFF, Julius
LEAITUAALESI, Davina Iouisa
T, R. - NSW SC, Graham Barr J, 25.9.98
Murder (of taxi driver); robbery (of another taxi driver).
Both incidents involved vicious attacks upon taxi drivers on two separate occasions.
Sentence: Graff - MT 18y, AT 5y for murder count; FT 8y for robbery count.
Leaituaalesi - MT 10y, AT 6y for murder count; FT 6y for robbery count.
T, R. - MT 11y, AT 6y for murder count; FT 6y for robbery count.
381

IVERS, Benjamin Peter (by his tutor Susan Maree IVERS) v GRIFFITHS & ANOR - NSW SC, Common Law Division, Newman J, 22.5.98
Plaintiff sought orders to set aside orders made in Children's Court relating to offences of possess implements capable of being used to enter conveyance contrary to s.114(1)(b) Crimes Act 1900 & charge of receiving contrary to s.188. Point raised on behalf of plaintiff was that learned magistrate allowed evidence of previous convictions to be admitted into evidence in rebuttal of presumption of doli incapax.
Plaintiff aged 10y 36d & 10y 164d at relevant times of commission of offences.
Held: magistrate did not err in admitting evidence of prior convictions as proof that plaintiff knew acts were seriously wrong as opposed to being merely naughty.
Summons dismissed with costs.
382

PAPP, Jayson Leonard Andras - NSW SC, Wood CJ at CL, 24.9.98
Count 1: murder (of mother)
Count 2: inflict GBH with intent to murder ( father)
Alternative to count 2: maliciously inflict GBH with intent to do GBH.
A further statutory alternative available to Count 2: maliciously inflict GBH.
Judge alone trial.
Accused poured methylated spirits upon his parents. Some time later he threw 2-stroke fuel around the room & onto his mother & father then set it alight with a cigarette lighter.
History of paranoid delusions, auditory hallucinations, drug & alcohol abuse - feelings of not being in control of his thoughts, of having other persons inside his body.
Diagnosed as probably suffering from a schizophreniform psychosis at the time of the offences - dangerously violent when in a psychotic state.
Accused found not guilty by reason of mental illness with an order that he be detained in strict custody in a psychiatric hospital until released by due process of law.
383

HILLIER, Mark Anthony - CCA, 14.10.98
Sentence appeal.
Aggravated BE&S
Guilty plea.
Disputed issues of fact going to charge in indictment.
Remitted to DC pursuant to s.12(2) Criminal Appeal Act.
384

ASLETT, Dudley Mark - CCA, 16.10.98
Sentence appeal.
Escape.
FT 3m.
Applicant had been hospitalised because of repeated attempts to commit suicide by slashing his arm. It was from hospital that he made his escape, being apprehended some 20 minutes later. Applicant claimed to have escaped as part of a suicide bid as he wished to be shot by prison officers.
Prior for escape - guilty plea - contrition - personality disorder.
Appeal dismissed.
385

WINTER, Gary Adam - 9.10.98
Sentence appeal.
Aggravated driving occasioning death.
MT 3y 3m, AT 2y 3m.
Applicant was under 25 years of age with a blood alcohol reading of .157.
Assistance to authorities - sentencing discretion.
Appeal dismissed.
386

KIELY, Maria - CCA, 14.10.98
Sentence appeal.
Supply prohibited drug (heroin - 11.61 grams); + goods in custody ($8,630) & possess heroin (2.55 grams) on a Form 1.
MT 2y, AT 2y.
Sole ground of appeal was that sentencing judge erred in holding that applicant not entitled to discount in sentence for further assistance rendered to authorities since her earlier sentencing for identical offences for which she was sentenced by the sentencing judge.
Appeal dismissed.
387

SUGAHARA, Toru
WATANABE, Toshi - 16.10.98
Sentence appeal.
Import commercial quantity prohibited drug (heroin).
Watanabe: 11*y with NPP of 7*y (1511.2 grams pure heroin).
Sugahara: 10y with NPP of 7y (1511.46 grams pure heroin).
Both appellants had entered Australia on separate days each with two packs of heroin strapped to their bodies. Whilst Sugahara pleaded guilty, he claimed that he was tricked by Watanabe into believing it to be marijuana.
On appeal:-
Watanabe: co-operation with authorities;
Sugahara: assistance to authorities - onerous situation in prison - does not speak English - mother taken his imprisonment badly with threats to end her life.
Appeals allowed:-
Watanabe: 10y with 6y NPP.
Sugahara: 9*y with 5y NPP.
388

ASHLEY, John Joseph - CCA, 14.9.98
Sentence appeal.
2 x AOABH; 1 x stalking with intent to cause fear for personal safety.
MT 2y, AT 2y.
Guilty plea.
On appeal: accuracy of certain material placed before sentencing judge - remarks by sentencing judge on that material - severity of sentence - failure by sentencing judge to give due weight to guilty plea thereby sparing victim ordeal of trial - special circumstances.
Appeal allowed: resentenced to MT 1y 9m, AT 1y 9m.
389

REEKS, Valda May - CCA, 16.9.98
Sentence appeal.
Malicious wounding with intent to do GBH.
MT 12m, AT 3y.
Applicant shot her husband who was asleep in the bedroom. The shot penetrated the back of his right shoulder.
On appeal: sentencing judge erred in assessment of level of violence to which applicant had been subjected to before the shooting; sentencing judge was wrong to characterise offence as one involving premeditation; sentencing judge misled by Crown into imposing custodial sentence, applicant claiming there were alternative means of punishment more appropriate which recognised subjective features of applicant's case.
Appeal dismissed.
390

SUFONG, Robert - CCA, 27.4.98
Sentence appeal.
Act of indecency upon person under 16; aggravated act of indecency upon person under 16; aggravated act of indecency upon child under 10.
On 1st count, sentenced to MT 3y to date from 10.5.97 & expire on 9.5.2000 with an AT of 2y; FT 2y on remaining counts.
At the time applicant stood for sentence for above offences, he had already been sentenced on 14.12.94 for offences of similar nature though of greater degree of seriousness & had received MT 2*y to run from 10.11.94 & expire on 9.5.97. Fixed terms were also imposed.
Totality - need for extended period of supervision.
Appeal allowed in order to restructure sentences: MT 2*y, AT 2y 4m.
391

TINDLE, Edward Allan - CCA, 8.10.98
Crown appeal.
Knowingly take part in supply of prohibited drug (methylamphetamine).
Guilty plea.
500h CSO imposed by Judge Armitage QC on 1.5.98.
Co-accused pleaded guilty to charge of supply prohibited drug & on 2.4.98 was sentenced by Judge Bellear to MT 9m, AT 2y.
Brought to Court's attention that by 24.8.98 respondent had already completed CSO requirements & found employment. Court critical of the Crown in not seeking to expedite hearing of the appeal while the CSO was still being served, the Chief Justice stating: '... there may be some defect in the internal arrangements of the Director of Public Prosecutions in terms of becoming aware of the current state of sentences, particularly community service orders, from which the Crown appeals on the basis of inadequacy'.
Appeal dismissed.
392

FONOFEHI, Terrence Albert
VERSCHURR, Maxwell Lambertus - NSW SC, Simpson J, 5.11.98
Sentence:
Fonofehi:
guilty plea to robbery whilst armed with offensive weapon (replica pistol); robbery whilst armed with dangerous weapon (pistol).
Verschuur: guilty plea to robbery whilst armed with dangerous weapon (pistol); assist person knowing he had committed felony of malicious wounding; + 5 further offences taken into account (possess cannabis plants, cannabis leaf; administer prohibited drug; cultivate 7 cannabis plants; possess firearm for which he did not have a licence).
Discount for giving assistance to police:-
Where there is evidence that threats have been made against the accused and/or members of their families and the threats are real, then the discount should be greater.
Where the benefit to the community is greater (ie a murderer brought to book as distinct from a jay-walker) then the discount is greater.
Fonofehi: sentences totalling MT 4y, AT 1y 4m.
Verschuur: sentences totalling MT 1y 9m, AT 1y 3m.
393

KARHANI, Essam - CCA, 14.10.98
Sentence appeal (application brought out of time).
Armed robbery; aggravated sexual intercourse.
MT 5y, AT 4y.
Guilty plea. Applicant just under 17 at time of offences. Under s.19 of the Children (Criminal Proceedings) Act 1987 the applicant is serving his sentence at the Kariong Juvenile Centre until he is 21, whereupon he will be transferred to the Parklea Correctional Centre. He is currently studying for his HSC.
On appeal, applicant sought orders that sentencing judge's order under s.19 be revoked & that pursuant to s.19 orders be made that the applicant serve his sentence at a
detention centre until 30 November 1998 to facilitate the completion of his HSC examinations.
Application upheld: order varied to allow applicant to remain in juvenile detention centre until 30.11.98.
394

GLASBY, Gary Zane - NSW SC, Sully J, 11.6.98
Sentence:
Murder. Not guilty plea. Crown case was that accused had contracted with the victim's wife to murder the victim in consideration of payment to the prisoner by victim's wife of a large sum of money (evidence to put the amount at or about $30,000; also evidence suggesting a figure as high as $50,000). The Crown case was that the prisoner & prisoner's wife had both taken part in the actual killing, the prisoner as principal in the first degree & his wife as principal in the second degree, she having been present at the time & place of the killing. Crown contended that victim was a man given to promiscuous sexual encounters & the prisoner took advantage of this fact so as to lure the victim, using a promised sexual encounter with prisoner's wife as bait, to a lonely car park adjacent to a public reserve where the prisoner shot the victim in the head.
Sentenced to life.
395

P, R.C.
P, M.C. - CCA, 16.9.98
Sentence appeals.
Sexual offences (indecent assault).
MT 9m, AT 3m.
Appellants were brothers who committed sexual offences against their female cousin.
Guilty pleas - no relevant priors - offences occurred over 20 years before, occurring while appellants still juveniles - illicit touching offences.
Representative counts - full confession & apology - little likelihood of re-offending.
Appeal allowed: sentence reduced to time already served.
396

JAP, Wiratno - CCA, 20.7.98
Sentence appeal.
Malicious wounding with intent to do GBH; discharge firearm in a public place.
Sentences totalling MT 7*y, AT 2*y.
Applicant born on 22.7.76. He was in Australia on a student visa. Evidence that he received an allowance from his family in Indonesia that enabled him to pursue his studies without the need to support himself by any exertion of his own.
Priors for carrying a cutting weapon & also for stalking or intimidating with intent to cause fear of personal injury. Both of these offences were dealt with by way of fines.
On appeal, applicant submitted that sentencing judge did not give sufficient weight to his extreme youth & that his Honour fell into error in the way he distributed the head sentence between minimum and additional terms.
Appeal dismissed.
397

BATISTE, Donna Maria - CCA, 31.3.98
Application for leave to appeal against a decision by Flannery J in the DC refusing to grant a stay of proceedings in respect of applicant's second trial, there having been a hung jury at the first trial.
Conspiracy to defraud certain persons.
Application for the stay was based in part upon documents that were missing & upon deceased witnesses.
The CCA held that it had not been established that there was sufficient doubt as to the correctness of his Honour's reasoning on issues of fact to warrant grant of leave.
Appeal refused.
398

SMITH, Trina Le - CCA, 20.8.98
Sentence appeal.
Import trafficable quantity cocaine.
3*y with 2y NPP.
Assistance to authorities taken into account in sentencing.
Two packages containing cocaine found on applicant during routine search by Customs officers at Sydney Airport. The first package consisted of 465.2 grams with a net weight of 223.3 grams pure cocaine, whilst the second package consisted of 441.9 grams realising a net weight of 221 grams pure cocaine, totalling 444.3 grams of pure cocaine in all.
Applicant entered this venture for financial gain. She was to be paid $5,000 for her involvement. Her co-offender pleaded guilty to attempting to obtain possession of 221 grams of pure cocaine for which she received 3y with 18m NPP. An appeal brought by the co-offender was dismissed.
Parity.
Appeal dismissed.
399

PODETTI, Scott - CCA, 14.9.98
Sentence appeal.
Supply cannabis.
FT 3y to be served by way of periodic detention. Failure to undertake conditions of periodic detention led to the matter being brought back to the DC whereupon the sentencing judge made a cancellation order & sentenced the applicant to MT 21m, AT 8m 28d.
On appeal: special circumstances making reference to diagnosis of applicant's mother with a serious medical condition, as well as family problems.
Appeal dismissed.
400

MARKS, David Allan - CCA, 2.5.97
Conviction appeal.
Armed robbery.
MT 3y, AT 2y.
Victim saw robber for 2-3 seconds at close range in good light in dramatic circumstances & had good frontal & side view of his face. Victim gave an accurate general description of the robber & later identified the crocheted table cloth the robber had over his face before its removal & the shirt he was wearing. Victim identified appellant as the robber just over a month later from a photocopy photograph included as one of 12 'mug'shots.
Identification evidence - judge's comments to jury about course of future hearing - whether identification evidence prejudicial - s.137 Evidence Act.
Appeal dismissed.
401

WIGHTMAN, Shannon Ray - CCA, 2.11.98
Crown appeal.
2 x armed robbery; 2 x BE&S; 1 x assault police.
MT 15m, AT 15m.
Manifestly inadequate - respondent later sentenced for further armed robbery - sentence for later armed robbery postponed pursuant to s.24A Criminal Procedure Act.
Appeal allowed - resentenced to: FT 2*y to commence on 17.2.98 & expire on 16.8.2000; & MT 2y 9m to commence 17.8.2000 & expire 16.5.2003) with an AT of 3y 3m (to commence on 17.5.2003).
402

CASSELL, Barry John - CCA, 6.11.98 - 45 NSWLR 325
Stated case.
Charges of false evidence in a material particular under s.87 Independent Commission Against CorruptionAct - adequate particulars of charges & aspect of materiality - 'False or Misleading'in s.87 are disjunctive & create separate offences - knowledge of falsity to be proved but not knowledge of materiality - materiality question of law or fact - admissibility of copy documents where originals lost - admissibility of transcript when very small sections of tape recording destroyed - tender of whole of evidence relating to admissions required along with exculpatory material relating to admissions but not other material - valid hearing - presumption of regularity.
403

ROBERTSON, Douglas Allan - CCA, 6.11.98
Sentence appeal.
Deemed supply commercial quantity cocaine (655.2 grams).
MT 4*y, AT 2*y.
Guilty plea
Sentencing - appropriate range.
Appeal dismissed.
404

KAIVA, Fatu - CCA, 9.11.98
Sentence appeal.
Armed robbery.
MT 3y, AT 3y.
Guilty plea - pre-sentence custody.
Special circumstances.
Appeal allowed insofar as sentence backdated to take pre-sentence custody into account.
405

TAYLOR, Anthony Eugene - CCA, 9.10.98
Conviction appeal.
Deemed larceny of MV; possess loaded firearm.
Sentences totalling MT 2*y, AT 10m.
Directions - flight - ambiguous - oral admissions - evidence of involvement - evidence of admissions.
Appeal allowed on count of larceny of MV - new trial ordered.
406

WHITE, Andrew Peter - CCA, 20.8.98
Sentence appeal.
42 x knowingly make false statement in a claim for a medical benefit; 11 x forgery.
Concurrent terms of 2*y in relation to each count with 3y GBB upon release.
At time of sentencing, applicant serving number of sentences for dishonesty - subject to 3 bonds at time of offence - offer to make reparation - obsessive compulsive disorder.
On appeal: delay - totality - weight given to subjective circumstances - sentencing pattern - order for reparation - sentences excessive - leniency.
Appeal allowed insofar as recognizance reduced to 2y.
407

DARWICH, Faisal - CCA, 16.9.98
Sentence appeal.
Receiving; + 11 x goods in custody on Form 1.
MT 18m, AT 1y.
Applicant disposed of stolen bicycles through pawnbroker shops.
Youth - priors - property, drug & driving offences - previously imprisoned - serving another gaol term at time of sentencing.
Totality.
Resentenced to MT 1y, AT 1y.
408

FORRESTER, Ross - CCA, 16.10.98
Sentence appeal.
2 x make false accusation.
MT 6m, AT 12m.
Applicant falsely accused his sister of assaulting his wife in two separate statements to police.
Prior offences - assault - steal - not previously imprisoned.
Evidence put before the Court in affidavit form as fresh evidence - psychiatric illness - competence of legal representatives.
Appeal dismissed.
409

BANKS, Shane Robert - CCA, 17.8.98
Sentence appeal.
Maliciously inflict GBH.
MT 12m, AT 12m.
Appellant & another engaged in argument outside victim's caravan. Victim came out & suggested applicant move on. Applicant attacked victim, kicking him in stomach, head & back whilst on the ground. Victim suffered quite severe injuries including fractured jaw which has left him with steel plates in lower jaw - completed number of courses whilst in custody..
Priors - driving, property & violence offences - previously imprisoned.
On appeal submitted sentence outside range.
Appeal dismissed.
410

EVANS, Philip Gregory - CCA, 16.10.98
Sentence appeal.
1 x BE&S; 1 x accessory after fact to malicious damage by fire.
Concurrent 6m FT on each charge.
Applicant & co-offender decided to steal petrol from a business, broke padlock & entered premises, looked for money & attempt to break into drink machine with oxyacetylene torch. Loaded quantity of tools into car, filled car with petrol then left premises but returned with applicant's car & loaded it with tools & filled it with petrol. Applicant drove outside premises & co-accused returned to bowser, sprayed petrol around it & set fire to it.
Contrition - serving sentence imposed in Queensland in NSW prison - loss of remissions available in Queensland - priors - driving, property, violent, dishonesty offences - previously imprisoned.
Appeal allowed insofar as to vary the fixed term to commence on 26.5.99 instead of 27.11.99.
411

GUIRGIS, Roger Stani - CCA, 12.10.98
Conviction appeal.
1 x aggravated sexual intercourse without consent.
MT 1y 4m, AT 2y.
Appellant picked up victim (a prostitute) & drove her to remote industrial area, gave her $50 for vaginal sex. When victim produced a condom, appellant punched her & forced her to have oral sex with him without a condom. Appellant returned victim to vicinity where she worked & she reported incident to police immediately.
No priors.
Directions - warnings.
Appeal dismissed.
412

CARUSI, Rafaele - CCA, 13.11.98
Conviction appeal.
Supply commercial quantity heroin.
MT 5*y, AT 2y.
Reliability of police informant - original tape of conversation between informant & appellant missing - record of identification of money handed by police to informant for payment to appellant missing - criticism of police investigation - copy tapes conclusive of appellant's guilt - verdict not unsafe or unsatisfactory.
Appeal dismissed.
413

COOPER, David William - CCA, 13.7.98
Crown appeal.
Supply prohibited drug (amphetamine).
12m GBB.
Respondent serving 250h CSO. After serving 82 hours, order revoked & judge deferred passing sentence conditionally upon respondent entering into recognisance. Judge also dealt with sentence severity appeal which arose out of driving offences which respondent committed whilst subject to the CSO.
On recognisance at time of offence - substance abuse - attempts to deal with drug problem - priors - property & driving offences.
Special circumstances - variation of statutory ratio pursuant to s.52 Sentencing Act:- respondent's age; first conviction for a drug offence; prospects of rehabilitation & fact that respondent returning to custody after period of liberty.
Appeal allowed: resentenced to FT 5m & disqualification of licence for 12m.
414

FLEMING, Mark - HC, 11.11.98 - 197 CLR 250; 73 ALJR 1
Appeal from a decision of the NSW CCA.
Trial by judge sitting alone - failure by judge to include in reasons for judgement a warning required to be given to jury - whether failure demonstrates breach of Criminal Procedure Act 1986 (NSW), s.33(3) - whether failure amounted to wrong decision on question of law - whether, despite failure, no substantial miscarriage of justice occurred - relevance of 'unsafe and unsatisfactory'.
Orders made allowing appeal, setting aside order of CCA, quashing verdict & ordering retrial on all counts.
415

HOPPER, Damien Peter - CCA, 19.11.98
Sentence appeal.
2 x steal MV; 1 x possess unlawful implement capable of being used to enter & drive a conveyance (screwdrivers & a dent remover); 1 x BE&S (computer equipment worth $15,000); + further offences taken into account (goods in custody; malicious damage; car stealing).
Sentences totalling: MT 2*y, AT 2*y.
Full admissions - early plea - young offender (17 at time of offences) - ongoing support of parents.
Parity.
Appeal dismissed.
416

PARSONS - HC, 5.6.98 - 72 ALJR 1325
Where an applicant had been granted special leave to appeal to the HC from dismissal by SC of Victoria Court of Appeal of his appeal against conviction on charges of obtaining property by deception, the HC refused his application for bail pending hearing of the appeal. Although applicant would have been a good risk if granted bail, his argument, that the value of a successful appeal would be diminished by his service of a significant proportion of the minimum sentence imposed, did not reveal exceptional circumstances necessary to enliven admission to bail in criminal appeals. Robinson v The Queen (1991) 65 ALJR 519 followed.
417

KRAKOUER v THE QUEEN - HC, 6.8.98 - 194 CLR 202; 72 ALJR 1229
Evidence - matters relating to proof - directions as to possession of illegal drug - statute deeming possession to include intent to sell or supply - direction that same provision applicable to attempting or conspiring to commit offence against Misuse of Drugs Act 1981 (WA) - serious misdirection where 'possession'not established by prosecution - going to root of proceedings - consequent miscarriage of justice requiring new trial - not attracting proviso to Criminal Code s.689(1).
418

HANLEY, James Eugene - CCA, 9.10.98
Crown appeal
Knowingly take part in supply of commercial quantity prohibited drug (methylamphetamine).
MT 12m, AT 4m.
Insufficient weight given to objective seriousness of offence - too much weight given to subjective features - discretion to dismiss appeal on basis of subjective matters not exercised.
Appeal allowed: resentenced to MT 2y, AT 8m.
419

COCHRANE, Stephen Thomas - CCA, 7.10.98
Conviction and sentence appeal.
Aggravated sexual intercourse (use of a knife & punching of complainant).
MT 4*y, AT 8m.
Trial judge's direction to jury had effect of imposing obligation on accused to give explanation as to how complainant received injuries was unfair & prejudicial & tended to reverse onus of proof - due to inadequacies & inconsistencies in Crown case, jury's verdict unsafe & unsatisfactory.
No reversal of onus of proof - verdict not unsafe & unsatisfactory - assessment of objective gravity of offence.
Appeal dismissed.
420

PAL, Vinod - CCA, 19.11.98
Conviction appeal.
2 x sexual intercourse with child under age of 10 (5y), the first count relating to digital intercourse, the second to penile intercourse.
Appellant found guilty of one count & not guilty of the other count.
Inconsistencies in complaint - tainted evidence - unsatisfactory medical evidence - verdict unsafe & unsatisfactory - M v The Queen (1994) 181 CLR 487
Appeal allowed: conviction and sentence quashed.
421

WATSON, Stephen - CCA, 18.9.98
Sentence appeal.
Attempt have possession trafficable quantity cocaine (1.89 kgs, 1.43 kgs pure, street value $800,000).
MT 6y, AT 3y.
Guilty plea - range of sentences - role of applicant as courier - weighing factors in sentencing - relevance of applicant's previous good character - relevance of applicant's addiction as motivation for role in crime.
Appeal dismissed.
422

CHURCH, Robert Anthony - CCA, 6.11.98
Crown appeal; &
respondent's application for extension of time & leave to appeal against sentences.
BE&S; 2 x use offensive weapon with intent to hinder police; use firearm without licence or permit; 2 x detain child under age of 12.
MT 1y, AT 3y.
Respondent & wife estranged.
Siege - respondent armed with bow & arrow & pistols.
Crown appeal allowed: resentenced to MT 2y, AT 2y (special circumstances).
Leave refused to applicant to appeal against sentences.
423

WILSON, Glen Barry - CCA, 20.11.98
Conviction and sentence appeal.
Aggravated sexual intercourse without consent. Judge alone trial.
MT 6y, AT 2y.
Permissibility of cross-examination of complainant as to prior sexual activity with third party - s.409B(3) Crimes Act 1900 - adequacy of reasons for conviction - s.32(2) Criminal procedure Act 986 - whether 'special circumstance'for the purpose of s.5(2) Sentencing Act 1989 in accumulation of sentences.
Appeal dismissed.
424

ESPOSITO, Giuseppina - CCA, 20.11.98 - 45 NSWLR 442
Conviction appeal.
Murder.
MT 12y 9m, AT 4y 3m.
Whether evidence of out of court representations made to police officer by a witness who was available at the trial fell within hearsay exception - admissibility of 'admission'in recorded interview conducted following drug use by accused - whether denial on its face an exculpatory statement but relied upon as a lie is an 'admission'under the Evidence Act - meaning of 'truth of admission'- whether judicial intervention in cross-examining accused prejudicial to fair trial - whether error of law in jury direction as to intoxication & intent.
Appeal allowed: conviction quashed, new trial ordered.
425

HALL, Scott Michael - CCA, 11.11.98
Sentence appeal.
Malicious wounding; + 4 offences on a Form 1 (2 x AOABH, 2 x assault).
MT 2y, AT 1*y.
Applicant unrepresented at appeal.
Guilty plea.
Insufficient weight given to psychological assessment - insufficient weight given to pre-sentence report - level of intoxication through combined action of alcohol & drugs a mitigating circumstances affecting 'voluntariness'of actions - rehabilitation.
Appeal dismissed.
426

KISKARPATI, Leslie Marton - CCA, 4.11.98
Conviction and sentence appeal.
3 x sexual intercourse without consent (digital, cunnilingus, vaginal intercourse); 1 x common assault.
Sentences totalling: MT 18m, AT 18m.
Appellant unrepresented at appeal.
Appellant and complainant had been in a relationship but were separated at the time of the offences.
On appeal, complaint as to summing-up - the terms of the complaint - evidence about consistency of complainant's injuries with her allegations - evidence of appellant's intoxication - unsafe & unsatisfactory.
Appeal dismissed.
427

ENVIRONMENT PROTECTION AUTHORITY v CSR Ltd (t/a CSR Woodpanels) - CCA, 19.11.98
Appeal against stated case, following order that appellant supply respondent with certain particulars of an alleged offence.
Environmental Offences and Penalties Act 1989, s.12(3) does not relieve the obligation to supply particulars of date(s) of offence.
428

ADAMS, Harold John - CCA, 25.11.98
Sentence appeal.
Conspire to defraud Cth of sales tax revenue ($156,051.20).
12m with NPP of 6m + 6m GBB upon release.
Applicant had devised scheme to avoid paying sales tax on soft drinks by purchasing drinks under pretext they were for export then selling them on domestic market.
Guilty plea - excellent character - medical condition - availability of home detention as an alternative form of punishment - severity.
Appeal dismissed.
429

WU, Thomas Chehen - CCA, 12.11.98
Conviction appeal.
Manslaughter.
Trial judge held voir dire to determine admissibility of video recorded police interview - trial judge held material admissible - whether error in allowing evidence - whether answers given to police were voluntary in requisite legal sense & in context of Evidence Act 1995 - whether objections based on s.138 ought to have been upheld - whether trial judge erred in refusing to direct verdict of not guilty at close of Crown case.
Evidence sufficient to be left to jury - admissions - voluntariness - Evidence Act ss.84-86, 138.
Appeal dismissed.
430

HERRING, Keith David - CCA, 24.11.98
Conviction and sentence appeal.
Murder.
Appellant convicted of murdering wife & sentenced to life. He appealed against that conviction, was re-tried & again convicted & sentenced to MT 18y, AT 4y 3m.
New counsel came into trial after it had commenced - whether trial judge erred in allowing adjournment - state of mind of deceased - whether trial judge properly directed jury deceased's state of mind only relevant to question of suicide - appellant lied as to whereabouts at time of death - whether evidence properly left to jury - whether trial judge erred in allowing Crown to re-open case - whether AT should have been one-third of MT if special circumstances not found.
Appeal dismissed.
431

PUCKERIDGE, Roy - CCA, 3.11.98
Urgent application by the Attorney General seeking order pursuant to provisions of s.24(2) Criminal Appeal Act.
This application followed a successful appeal against conviction (NSW CCA, 2.11.98).
Prosecution applied for special leave to HC - application for stay of order quashing conviction - application for detention of accused pending hearing of appeal in HC.
Application refused.
432

KENT, Luke - CCA, 8.10.98
Conviction appeal.
1 x aggravated sexual assault; 3 x sexual assault; 1 x act of indecency.
Fitness to plead.
Psychiatric assessment tendered before Judge Madgwick at sentence hearing indicating accused not fit to stand trial, whereupon his Honour referred the matter to the CCA for the purpose of quashing the jury's verdicts.
Appeal allowed: conviction quashed, matter referred back to DC with direction that DC refer applicant to Mental Health Review Tribunal in accordance with s.14(a) Mental Health (Criminal Procedure) Act 1990 (NSW).
433

PYRITZ, Diane Catherine - CCA, 23.11.98
Sentence appeal.
Dangerous drive causing GBH.
2y PD + licence disqualified for 12m.
Sentencing judge found appellant had failed to exercise appropriate care because of being momentarily preoccupied & did not exercise degree of care required on approaching a dangerous intersection in light of obstruction of view by trees.
On appeal: sentence manifestly excessive & sentencing judge in error in considering he was obliged to impose a custodial sentence.
Appeal allowed: applicant fined $1,000 & licence disqualified for 12m.
434

LAU, Yee Kam - CCA, 2.12.98 - 105 A Crim R 167
Conviction appeal.
Co-accused convicted upon knowingly supply heroin, jury satisfied he was unaware that the amount of heroin he passed to appellant exceeded 250 grams.
Mental element required - warning to jury under s.165(1) Evidence Act re police evidence - fresh evidence.
Appeal dismissed.
435

CHENG, Jeffrey Wai Chan - CCA, 30.11.98
Conviction and sentence appeal.
Demand property with menaces with intention to steal.
MT 5y, AT 3y.
Protection racket enterprise - owner of restaurant contacted police after attempts had been made by a group to contact him for the purpose of paying protection in the form of money & meals - surveillance by police.
Joint criminal enterprise - no evidence of pre-concert - Boyle & Merchant (1914) 10 CAR 180; R v Clear (1968) 52 CAR 58; Tripodi (1960-61) 104 CLR 1; Ahern (1988) 165 CLR 87; Taouk (unreported CCA, 17.12.92)
Appeal allowed: verdict of acquittal entered.
436

HISTOLLO P/L v D-G of NATIONAL PARKS & WILDLIFE SERVICE - CCA, 10.12.98
Appeal pursuant to s.5AB Criminal Appeal Act 1912 from convictions, sentences & cost orders after trial in the Land & Environment Court.
Knowingly destroy, deface or damage, or knowingly cause or permit destruction or defacement of or damage to, a relic or Aboriginal place.
Appeal by way of re-hearing - fresh evidence - knowingly concerned - wilful blindness - variance between charge & evidence - knowingly damage relics.
Necessary element in offences charged - actual knowledge - not made out.
Appeal allowed: verdicts of acquittal entered, question of costs remitted to Land & Environment Court.
437

NORTH, Raymond William George - CCA, 4.12.98
Conviction appeal.
Maliciously inflict GBH.
Victim seriously injured when struck in face by a beer glass. Essential issue at trial was whether Crown established assailant was the appellant.
Whether verdict unsafe & unsatisfactory - warnings as to acceptance of identification evidence - failure of Crown to call a witness - Buckland direction ( R v Buckland [1977] 2 NSWLR 452) not required if witness was not material as to guilt.
Appeal dismissed.
438

VAN-PRAAG, Lee Alexander - CCA, 30.11.98
Sentence appeal.
Robbery with striking & wounding.
Originally sentenced by Judge Rummery QC to 2y PD. That order subsequently cancelled by Johnston J, who declined to set MT & AT. Unexpired period of initial sentence consisted of 89w plus two penalty periods, totalling 91w.
Applicant not present at proceedings before Johnston J, a warrant was issued & the applicant placed in custody. Applicant had no opportunity to explain circumstances in which he failed to comply with obligations under PD order.
Interference of original order with applicant's employment, standover tactics experienced in gaol, ascertainment by criminal elements of his home address all resulted in applicant going into hiding.
Appeal allowed: original & subsequent sentences quashed, applicant released.
439

YIN, Moui - CCA, 30.11.98
Sentence appeal.
Supply heroin.
MT 4y, AT 2y.
Quantity of heroin was 196.9 grams with purity between 45-52%, less than commercial quantity.
Charge arose out of police undercover operation.
Sentencing direction - R v Bloomfield (CCA, unreported, 15.7.98) - use of sentencing statistical information.
On appeal: sentence manifestly excessive.
Appeal dismissed.
440

M, R.J. - CCA, 30.11.98
Conviction and sentence appeal.
Count 1: act of indecency - sentenced to 12m FT.
Count 2: threaten to injure to prevent investigation - sentenced to MT 1*y, AT 3y.
Pleas of guilty entered.
2nd count arose out of events during which appellant made statements concerning a named police officer during a 'siege'type situation.
Misapprehension as to prescribed statutory maximum on 1st count - concession by Crown that evidence could not support charge on 2nd count.
Appeal allowed on 1st count: resentenced to 8m FT.
Appeal allowed on 2nd count: leave granted to withdraw plea of guilty, conviction & sentence quashed, judgement of acquittal entered.
441

S, R.P. - CCA, 18.9.98
Application for bail pending determination of Appeal to the High Court.
4 x sexual assault (upon daughter).
MT 6y, AT 2y.
Applicant brought an appeal against conviction & sentence to the CCA. That appeal was dismissed. He subsequently lodged an application for special leave to the High Court.
Appeal dismissed.
442

HILL, Thomas James - CCA, 4.12.98
Sentence appeal.
Dangerous drive occasioning death; + drive whilst disqualified on a Form 2.
MT 3y, AT 3y.
Guilty plea.
Applicant had been drinking prior to driving (5-6 middies full strength VB beer & a rum & coke) - blood alcohol reading of 0.113.
Driving in excess of 22 kph over speed limit - victim was applicant's closest friend - applicant physically injured in accident - psychologically devastated.
By reference to decision in Jurisic, submission made that question to be determined is extent to which applicant had 'abandoned responsibility for his conduct'.
Appeal allowed: resentenced to MT 2y, AT 2*y.
443

TRELOAR, Jared Gregory
SCHAAF, Albert - CCA, 4.12.98
Sentence appeal.
Treloar: 1 x armed robbery; 1 x accessory after the fact to BE&S - guilty plea.
Schaaf: armed robbery.
Charges against both applicants arose out of same incident. Treloar was armed, Schaaf was not. Schaaf was on probation for robbery in company at the time.
Same sentence imposed on both applicants: MT 1y, AT 2y.
Report from expert in field of education not tendered before sentencing judge, in which he expressed opinion it was highly desirable Treloar commence his HSC at beginning of 1999.
Counsel for Schaaf submitted judge in error in considering that nothing in his actions would entitle him to be dealt with differently to Treloar.
Treloar: appeal allowed - resentenced to MT 9m, AT 2y 3m, provided he attend school.
Schaaf: appeal dismissed.
444

HUTTON, Kerry Ian - CCA, 2.12.98
Sentence appeal.
Sexual intercourse with person between ages of 10 & 18y; + self-administer, supply & possess cannabis on a Form 2.
MT 2*y, AT 10m.
The complainant was 16y 1m & applicant 48 at the time. Prior to offence, applicant had made cannabis available to the complainant.
Priors.
Remorse - rehabilitation - parity.
Appeal dismissed.
445

A, C.A. - CCA, 4.12.98
Sentence appeal.
2 x aggravated sexual assault (digital penetration, with girl a little under 15y); + 1 x possess unauthorised firearm taken into account.
MT 3y, AT 2*y.
At the appeal, the Crown prosecutor acknowledged primary judge's finding that possession of unauthorised firearm was a very serious offence that on its own warranted a custodial sentence was incorrect.
Submission that misconduct of applicant, although reprehensible, fell into less serious category. This was not challenged by the Crown.
Sentence manifestly excessive.
Appeal allowed: resentenced to MT 1y, AT 1y.
446

CACCIOLA - CCA, 15.10.98 - 104 A Crim R 178
Crown appeal.
8 x supply prohibited drug (methylamphetamine); + 1 offence on a Form 1 (possess Ecstasy).
3y GBB; + order to pay $3,600 in compensation to Crown (the amount being what undercover police officers had spent in buying drugs from the respondent).
Guilty pleas.
Substantial subjective features - favourable pre-sentence report - double jeopardy - feelings of lack of worth - drug free since arrest - anxiety, depression, hopelessness - remorse.
Appeal dismissed.
447

MAXFIELD, Robert Paul - CCA, 5.11.98
Conviction and sentence appeal.
AOABH - 18m FT;
Robbery with corporal violence - MT 4*y, AT 2*y;
Larceny - 18m FT;
Escape lawful custody - 2y FT.
Aggregate: MT 4*y, AT 2*y.
Applicant appealed only against escape conviction & sentence. He was in Liverpool Court complex where he was about to be sentenced & as he was escorted through doorway into courtroom, he ran towards exit. Police officer in foyer of court saw applicant being pursued by prison officers & restrained him.
Priors: violence, deception, property & drug offences. Previously imprisoned.
Appeal dismissed.
448

ATKINS, Louise Ann - CCA, 3.11.98
Crown appeal.
1 x deemed supply large commercial quantity methylamphetamine (1,276 grams);
1 x deemed supply Bromo-2,5-dimethosyamphetamine (Nexus - 187 grams).
Sentenced to concurrent 300h CSO for each offence.
On 1.7.98 DPP informed respondent he was considering an appeal. On 18.8.87 DPP filed notice of appeal. Remarks on sentence became available to Crown on 20.10.98, transcript of sentencing proceedings only becoming available just before appeal. Problem associated with material being produced by Court Reporting, creating difficulty for Crown appeal
Aged 26 at time of offence - strong support from family - completed CSO at time of appeal - rehabilitation - no priors.
Appeal dismissed.
449

BALDACCHINO, Lenny Emmanuel - CCA, 3.11.98
Sentence appeal
Murder.
MT 8y, AT 8y (special circumstances found).
Guilty plea - confession to undetected crime.
Applicant developed relationship with victim's estranged wife. Applicant shot victim while he was sleeping when victim's estranged wife encouraged applicant to kill him so that she would not have to pay victim $20,000 in property settlement.
Murder remained unsolved until applicant confessed to police after he had become a Jehovah's Witness.
Appeal dismissed.
450

ANGUS, Neil John - CCA, 11.11.98
Sentence appeal under s.13A(12)(a) against redetermination of life sentence (see Angus, NSW SC, Justice David Levine, 3.2.98).
MT 16y, AT 6y.
Sentence excessive - subjective features - additional material - proportionality - parity - MT manifestly excessive.
Appeal dismissed.
451

COMBER, Deborah Lee - CCA, 11.11.98
Sentence appeal.
Dangerous drive causing death; dangerous drive causing GBH.
MT 22m, AT 20m; disqualification from holding licence for 5y.
Guilty pleas - under influence of heroin at the time.
Sentencing judge expressed appropriate penalty on 1st count was a total of 5y but she reduced this by 18m (12m from MT & 6m from AT) for assistance given to authorities & her undertaking to co-operate & give evidence against any persons charged with offences arising out of information provided by her during interview with police.
On appeal: starting point of total term of 5y was excessive.
Appeal dismissed.
452

CUMMINS, Anthony Atkinson - CCA, 23.11.98
Conviction and sentence appeal.
Knowingly take part in supply of commercial quantity prohibited drug (methylamphetamine - 404 grams).
MT 1y, AT 2y cumulative upon sentences imposed earlier in the year for 3 x aggravated BE&S for which he received MT 4*y, AT 1*y (co-offender for the aggravated BE&S offences received 2y PD).
Public policy discretion to exclude evidence obtained after unlawful police conduct - trial judge refused to exclude - alleged disparity between sentences of appellant & co-accused.
Appeal dismissed.
453

HAMMAN, Stirling Milburn - CCA, 1.12.98
Crown appeal; &
Sentence appeal (respondent seeking leave to appeal out of time).
Income tax offences (understating income over a 3 year period by $656,636).
2y PD.
Respondent had paid tax due & additional tax by way of penalty once caught - guilty plea.
On appeal by respondent: sentencing judge's failure to apply ss.16G & 19C Crimes Act - the fact that a number of cheques would have been declared in later years - 2y delay by DPP in laying charges.
Crown appeal dismissed.
Appeal against sentence allowed: resentenced to concurrent 14m PD for each offence.
454

KELLY, Selwyn James - CCA, 23.11.98
Sentence appeal.
4 x aggravated indecent assault; + 2 x supply LSD taken into account.
MT 2y, AT 1y (special circumstances found by sentencing judge).
There were 2 complainants aged 11 to 14 at time of offences (one complainant was the appellant's stepdaughter).
Guilty plea.
Matters of aggravation - insufficient regard to plea of guilty - prior good character - inappropriate consideration to available sentencing options.
Appeal dismissed.
455

SIGANTO, Colin Joseph - HC, 3.12.98 - 194 CLR 656;73 ALJR 162
Appeal from CCA of the Northern Territory.
Appellant convicted of an offence against s.192(3) Criminal Code (NT): sexual intercourse without consent.
Sentencing - factors to be taken into account - whether distress occasioned by victim giving evidence an aggravating factor - whether sentence manifestly excessive - parity principle.
Appeal allowed: orders to remit the matter to CCA of Northern Territory for consideration of issues raised by s.411(4) Criminal Code (NT).
456

THOMPSON, Paul Neil - CCA, 13.10.98
Conviction appeal.
1 x manufacture methylamphetamine (amount in excess of commercial quantity - guilty plea);
1 x manufacture tetrahydrocannabinol (THC - amount in excess of commercial quantity - not guilty plea).
Sentences totalling MT 8y AT 2*y.
Planned police operation involving raid on rural property near Brewarrina.
Co-accused attempted suicide during trial.
Failure to discharge jury after police informed court material witness refused to go to court because of fear for his life - admission of evidence of telephone interceptions - admission of evidence & photographs relating to execution of search warrant - video recorded interviews - directions
Appeal dismissed.
457

WEBB, David - CCA, 9.11.98
Sentence appeal.
1 x aggravated robbery; 2 x stealing; + number of matters on 2 Form 1 documents.
Except for matters on second Form 1, all offences committed on same day when applicant embarked upon series of robberies of women in public places, stealing handbags, wallets, money & other items, assaulting with a varying degree of seriousness a number of his victims. Remaining offences of similar nature, although assaults were not as sustained or brutal.
MT 6y, AT 4y.
On appeal: sentences manifestly excessive - sentences outside range having regard to sentencing statistics - inadequate weight given to plea of guilty, contrition, lack of premeditation, totality.
Appeal allowed insofar as sentences backdated to when applicant taken into custody.
458

WILLIAMS, Stephen Michael - NSW SC, Adams J, 14.10.98
Judgement.
Manslaughter verdict.
Originally charged with murdering of his mother.
Victim struck a number of times about the head - evidence from highly qualified forensic pathologist suggested injury which caused death may not have been direct or indirect result of these blows.
Causation - intention.
Guilty.
459

DERBIN, Peter Anthony - NSW SC, Ireland J, 20.11.98
Judgement on defence of mental illness.
Sole defence raised was one of mental illness.
Attempt to suffocate with intent to murder; maliciously inflict GBH with intent to do GBH.
At time of offences, accused suffering from chronic schizophrenia for which he had received treatment, including hospitalisation & prescribed medication over some years. Accused also user of cannabis with history of alcohol abuse, also sniffed butane gas from cigarette lighters. Told psychiatrists that on day of offences he imbibed alcohol, smoked cannabis & sniffed butane gas. Claim of 'voices'directing him to assault & attempt to kill victim.
Ruling that it was open to jury to consider defence of mental illness including as part of acute phase of schizophrenia the triggering effect of alcohol & inhalation of marijuana smoke & butane gas: Bedelph (1980) 1 A Crim R 445.
460

DERBIN, Peter Anthony - NSW SC, Ireland J, 20.11.98
Sentence:
Attempt to suffocate with intent to murder; maliciously inflict GBH with intent to do GBH.
Victim prisoner's mother. Plea of not guilty on each count. Guilty verdicts returned on both counts.
Vicious attack upon mother, which included punching her, gouging her eyes & attempting to suffocate her with a pillow. One of the victim's eyeballs was completely removed during the attack, the other displaced from the eye socket to the extent that it had to be surgically removed.
Mental illness - alcohol & drug abuse - sniffing of butane.
See judgement on defence of mental illness (NSW SC, Ireland J, 20.11.98)
MT 6y, AT 6y.
461

DUTTON, Walter Thomas - NSW SC, Dowd J, 4.9.98
Redetermination of life sentence under s.13A Sentencing Act 1989.
On 20.1.89, deceased & his de facto were in the Court House Hotel in Wilcannia & were confronted by the applicant who told victim he was going to stab him. Deceased & de facto then left the hotel. The following night deceased & de facto entered same hotel. Deceased was sitting at a table at the bar, the applicant bumped into the deceased & stabbed him in the back with a long sharp knife, removed the knife, laughed, passed a remark & returned to his home. The deceased was taken to hospital by his de facto but died shortly afterwards.
Model prisoner - voluntary Aboriginal liaison officer at Broken Hill Corrective Services institution - attended alcohol counselling - built up skills - developed his education - worked as cleaner - applied himself to Aboriginal art - described as a good artist with much potential.
Upon release wishes to continue working as Aboriginal liaison officer, particularly with young people. If unsuccessful in this regard, will endeavour to get a job with relatives in the National Parks & Wildlife Service. Also proposes to continue doing art.
Application allowed: resentenced to MT 10*y, AT 5*y.
462

WHITE, Gregory Keith - SC NSW, 9.10.98, Sperling J
Redetermination of life sentence under s.13A Sentencing Act 1989.
Sentenced to life in 1988 for the murder of his wife.
Deceased bludgeoned to death in her home when only she, the applicant & their daughter were at home. Applicant tried to conceal blood stains on carpet by covering them with a rug.
Two motives for killing deceased: to clear the way for his relationship with another woman; an insurance payout.
Applicant still maintains he did not kill his wife - exemplary behaviour in prison - model prisoner setting good example for other inmates, particularly young offenders - played active role in Young Offenders Program - C1 classification - strong support of family & friends to assist him in resuming a normal life in the community - wishes to renew relationship with his daughter.
Application allowed: resentenced to MT 12y, AT 4y.
463

G, M.J. - CCA, 4.11.98
Conviction appeal.
Multiple sexual misconduct offences (actual offences not specified).
Found guilty on counts 1, 3, 4 & 7; not guilty counts 2 & 8; not guilty by direction on counts 5 & 6.
Evidence of complainant's prior sexual relations with other young men not put forward by appellant's counsel at trial because of a misunderstanding of s.409B(3)(c) - verdict of not guilty on count 2 inconsistent with verdicts on counts 1, 3 & 4.
Appeal allowed: new trial ordered on counts 1, 3, 4 & 7 - conditional bail set.
464

NGUYEN, Thanh Hung - CCA, 4.12.98
Sentence appeal.
Offence not stated.
12m PD. Because of erratic attendance, application was made pursuant to s.27(1)(c) Periodic Detention of Prisoners Act for balance of term to be served by way of full-time custody. Notices were sent to applicant but he failed to appear & on 24.7.97 PD order was cancelled & appellant arrested on 29.5.98. He has been serving full-time custodial sentence since then.
R v Wilson (1997) 93 A Crim R 301; R v Webster (1998) 43 NSWLR 256 referred to.
Appeal allowed: resentenced to FT 6m 5d, released on day of CCA hearing (4.12.98).
465

RODGERS, Barry Williams John - CCA, 11.11.98
Sentence appeal.
11 x sex offences (not detailed); + a further 11 offences taken into account.
When appearing in the CCA, applicant told Court he had applied for legal aid but had been refused. Because of real issues raised in the application to the Court, the matter was adjourned to enable applicant to make a further attempt to secure legal representation.
466

THOMPSON, Cameron Gordon - CCA, 10.12.98 - 104 A Crim R 510
Sentence appeal.
Supply prohibited drug (lysergide).
2*y PD + fine.
Appellant failed to report for detention on 6 occasions. He did not appear at hearing of application for cancellation. Sentenced to MT 79w, AT 27w.
Evidence of special circumstances.
Appeal allowed: resentenced to MT 52w, AT 53w.
467

KENNY, Nils John Edward - CCA, 10.12.98
Appeal against orders made refusing application for permanent stay & refusing application for separate trials.
Two complainants - denial of procedural fairness in holding in reserved judgement that evidence given on hearing of application should be ruled inadmissible - incorrect approach on application for separate trials in trial judge himself deciding whether there had been concoction between complainants.
Appeal upheld, matter remitted to DC for further consideration.
468

MERHEB, Andrew Nabil - CCA, 2.12.98
Sentence appeal.
1 x robbery in company; 1 x AOABH.
MT 11m 2w, AT 2y.
Applicant's brother had pleaded guilty to charge of armed robbery with wounding arising out of same incident & sentenced to a control order of 6m with an AT of 6m.
Applicant & his brother (two of a set of triplets) were aged 17 at time of offences.
Parity - extraordinary circumstances.
Appeal allowed: resentenced to FT 6m.
469

MURDOCH, Alexander - CCA, 10.12.98
Conviction and sentence appeal.
Manslaughter.
MT 10y, AT 5y.
Victim aged 3y was son of applicant's de facto.
In written submissions applicant made reference to having been on medication at time of offence & in oral submissions stated he had a mental illness at the time. Also taking amphetamines.
Plea of guilty - informed decision to plead - no basis to permit recanting - serious case - sentence at high end of range appropriate.
Appeal dismissed.
470

O'BRIEN, Paul Anthony
DEYES, Philip - CCA, 30.10.98
Conviction and sentence appeal.
Sexual intercourse without consent; attempted sexual intercourse without consent.
Multiple accused - photographs of sexual activities taken by Crown witness who gave evidence at committal hearing - witness not called by Crown prosecutor at trial.
Jointly tried with two other persons: Darren Roger Bargwanna & Lisle Davis. On 18.9.98 appeals of Bargwanna & Davis were upheld & verdicts of acquittal entered.
Unsafe & unsatisfactory.
Appeal allowed: verdicts of acquittal entered.
471

REYNOLDS, Barry Thomas - CCA, 7.12.98
Crown appeal.
3 x indecent assault; 3 x act of indecency; 1 x carnal knowledge; 1 x buggery.
MT 3y, AT 2y.
All offences committed against applicant's stepchildren between ages of 12 & 13.
Appeal allowed: resentenced to MT 8y, AT 3y.
472

SERRATORE, John - NSW SC, Graham Barr J, 17.9.98
Judgement on application for stay of proceedings.
Indictment containing 2 counts - solicitation to murder & murder. Whether charge contained latent duplicity - possible accused acted as principal or accessory.
Complicity - Crown do not have to specify whether alleging accused is principal offender or accessory provided not unfair.
473

OSLAND, Marjorie Heather - HC, 10.12.98 - 197 CLR 316; 73 ALJR 173
Murder.
Acting in concert - joint trial of 2 accused - jury convicted one accused but unable to reach verdict in respect of other - whether verdicts inconsistent such that conviction unsafe & unsatisfactory.
Defences - 'battered woman syndrome'- whether proper subject for expert evidence - whether sub-category of provocation or self-defence or a separate defence - directions.
Complicity - understanding or arrangement between accused - liability of one for acts performed by another.
Causation - multiple acts contributing to death - whether contribution of one accused sufficiently significant in own right to sustain causal link.
Appeal dismissed.
474

LOSURDO, Charles (DPP v) - Court of Appeal, 23.9.98 - 103 A Crim R 189; 44 NSWLR 618
Application for leave to appeal from judgement of Hidden J on 10.3.98.
Committal proceedings - cross-examination of witnesses - consideration of meaning of expressions 'substantial reasons'& 'special reasons'- comments on limits & extent of cross-examination in committal proceedings since coming into force of Justices Amendment (Committals) Act 1996; Justices Act 1901 ss.41(6), (8), (8A), (9) & (10), 48E, 134; Evidence Act 1995 Pt 3.11, ss.136, 137, 138, 139.
Appeal dismissed.
475

MARKOVINA v THE QUEEN - HC, 17.9.98 - 72 ALJR 1522
Powers of High Court on appeal - bail - after special leave granted & appeal pending - no special circumstances shown - applicant seeking to distinguish between application for leave to appeal against conviction & sentence & appeal as to sentence only - validity of distinction doubtful - bail refused.
476

MARKOVICH v THE QUEEN - HC, 9.10.98 - 72 ALJR 1639
Drug offences - identity of prohibited substances - Nexus - Schedule to Act and Act itself covering drugs with structure & properties of Nexus - not specifically naming Nexus - later additional of Nexus to Schedule but after alleged offence committed - intention of legislature derived from text of enactment - later amendment of Schedule irrelevant - Drug Misuse and Trafficking Act 1985 (NSW).
477

GRAHAM v THE QUEEN - HC, 30.9.98 - 195 CLR 606; 72 ALJR 1491
Evidence - complaints - spontaneity - fresh in the memory of the person who made the representation ( Evidence Act 1995 (NSW) s.66) - how construed - temporal relationship usually likely to be measured in hours or days - not concerned with vividness or 'quality'of recollection - statutory exception to hearsay rule - credibility rule - case of alleged fabrication - admissions - records of interview - admissibility of record properly challenged.
478

LEE v THE QUEEN - HC, 30.9.98 - 195 CLR 594; 72 ALJR 1484
Hearsay rule - exclusions from - previous representation by witness including alleged confession by accused - incorporated in written statement to police - witness later having no recollection of confession - evidence of something said out of court not to be converted into evidence of fact not intended to be asserted - construction of Evidence Act 1995 (NSW), ss.59, 60 - recommendations of Law Reform Commission - belief or disbelief of witness of what he had been told of no relevance - statement by witness wrongly received in evidence - accused losing chance fairly open to him of being acquitted - no application of proviso to Criminal Appeal Act 1912.