Legal Research

Short Notes 1999

 
1

PEARCE, Douglas Wallace - CCA, 18.12.98
Sentence appeal.
Before arraignment, sentencing judge refused application by appellant that counts 9 & 10, based on identical facts, should not be permitted to stand together on basis of double jeopardy. Both counts alleged inflicting GBH, one count maliciously & with intent to do GBH. Other counts included enter building with intent to commit felony; assaults with intent to rob; assault; armed B&E; sexual assault.
For counts 9 & 10, appellant sentenced to concurrent MT 8y, AT 4y on each count & cumulative upon sentence of 3y FT for sexual assault; for remaining counts sentenced to between 1y & 3y to be served concurrently with other sentences imposed.
Double jeopardy - totality of sentence.
Appeal allowed on count 10: resentenced to 2y FT to be served concurrently with other sentences.
2

RAWLINGS, John Albert - CCA, 18.12.98
Conviction and sentence appeal.
2 x indecent assault upon person under 16 (9y & 10y - same complainant); attempt carnal knowledge upon person under 16 (11y).
MT 9m, AT 3m.
40 year delay before allegations to police - admissibility of complaint evidence - admissibility of evidence of other sexual misconduct - directions to jury thereon - Evidence Act 1995 ss.97, 101, 108, 137.
Appeal dismissed.
3

HUTTON, Keith Robert - CCA, 3.4.98
Sentence appeal.
8 x BE&S; 8 x obtain benefit by deception; + 60 similar offences on a Form 1.
MT 2y, AT 2y.
Priors - previously imprisoned.
Applicant aged 47 at outset of offences - excessive drinking - large family to support - alcoholic father - hardship to family.
Appeal dismissed.
4

H, P.A. - CCA, 18.12.98
Conviction appeal.
3 x sexual intercourse with child (10 to 16) under authority.
MT 2y, AT 1y.
Found guilty of 2nd & 3rd counts, acquitted of 1st count.
Leaving of evidence to jury where competing versions of events given - sufficiency of warning under s.165 Evidence Act concerning complainant's evidence & delay in making complaint - verdict unsafe & unsatisfactory - duty of trial counsel to seek directions - admissibility of evidence of complaint.
Appeal dismissed.
5

MAXWELL, Brian William - CCA, 23.12.98
Conviction appeal.
Murder.
Proof of specific intent - partial defence of diminished responsibility - medical condition of depression - evidence of good character - role in criminal trial - relevance to defence of diminished responsibility - evidence not taken into account - error of law - miscarriage of justice - whether verdict supported by evidence - whether substitution for verdict of manslaughter on ground of diminished responsibility.
Appeal allowed: new trial ordered.
6

SPYRIDIS, Nicholas - CCA, 21.12.98
Conviction and sentence appeal.
Knowingly take part in manufacture & supply large commercial quantity prohibited drug (methylamphetamine); supply large commercial quantity methylamphetamine.
MT 5y, AT 2y.
Directions - 4 day adjournment of trial between jury's question & trial judge's answer - whether jury entitled to convict.
Appeal dismissed.
7

LEMURA, Victor James - CCA, 18.12.98
Conviction appeal.
Sexual intercourse without consent; indecent assault.
Crown withheld evidence of earlier complaint on misunderstanding of the law - what course to be taken - delay in complaint - need for Kilby direction in context of Crimes Act 1900 s.405B - need for balanced direction - 'why would complainant lie?'- whether leave to argue this ground should be granted pursuant to Rule 4.
Appeal allowed: new trial ordered.
8

GILBERT, Gavin John - CCA, 10.12.98
Conviction appeal.
2 x assault; armed with firearm with intent to commit assault.
Appellant & victim were married but had separated.
Cross examination of accused concerning fabrication by witnesses of their testimony - need for direction that evidence admitted to show relationship not to be used to conclude accused's propensity to offend - cross-examination of accused about statement by another person - Evidence Act s.44.
Appeal allowed: new trial ordered.
9

KENNEDY, Michael Graham - CCA, 9.12.98
Appeal against interlocutory order refusing permanent stay.
Child sexual assault charges: indecent assault (fellatio); a number of acts of sexual intercourse.
Complainant first complained 3 months after incidents alleged to have occurred but never been able to specify exactly when or where they took place.
During committal applications 2 applications made on behalf of defence for complainant to give evidence at committal. These applications opposed by prosecution & refused by magistrate.
Appeal dismissed.
10

DOUGLAS, Trevor Anthony - CCA, 11.12.98
Crown appeal.
2 x dangerous drive causing death.
12m PD.
Respondent was the driver of a prime mover & trailer which collided with the rear of a station wagon travelling in the same lane. The station wagon became airborne & collided with a large sign on side of road. Two passengers seated in rear of station wagon killed instantly.
Inadequacy of periodic detention.
Appeal allowed: resentenced to
11

WILLIAMS, Grant Raymond - CCA, 11.12.98
Sentence appeal.
1st indictment: 1 x act of indecency (s.61N); 3 x homosexual intercourse (s.78K); + 4 matters on a Form 1.
2nd indictment: 1 x indecent assault (s.61E(1) - since repealed); 2 x homosexual intercourse (s.78K); 1 x indecent assault (s.61N); + 6 matters on a Form 1.
MT 6y 8m, AT 3y 4m.
Concept of totality - objective criminality.
Appeal dismissed.
12

SCOTT, Ernest Clyde - CCA, 8.12.98
Crown appeal against orders granting permanent stay of proceedings.
Proposed indictment containing 7 counts charging indecent assaults, assaults, sexual intercourse without consent.
4 complainants who were either adopted or State wards being cared for by respondent & his wife. Respondent's wife who may have been able to corroborate respondent now deceased.
Evidence not demonstrating exceptional case.
Appeal allowed: issues should proceed to trial.
13

FRANCIPANE, Salvatore - CCA, 23.12.98
Conviction and sentence appeal.
Count 1: fraudulently omit to account ($400,000).
Count 2: false pretences ($220,000); in the alternative fraudulently omit to account.
Jury returned verdict of guilty on counts 1 & 2.
Count 1 - MT 4y, AT 2y
Count 2 - 4y FT.
At the time of the offences, the appellant was a practising.
Elements of offence - meaning of 'account'- whether to order new trial where Crown could not succeed on case put at trial but might succeed at new trial on different case based on same evidence.
Count 1: conviction appeal allowed, verdict of acquittal entered.
Count 2: conviction appeal dismissed; sentence appeal allowed - sentenced to MT 3y, AT 1y.
14

FARAH, Robert Paul - CCA, 11.12.98
Crown appeal.
Accessory after the fact to robbery in company.
3y GBB + fine of $2,000.
Victim a taxi driver - 2 other co-offenders - respondent aged 18 at time of offence - strong subjective features - supportive family - no priors - good character - stable employment.
Lies - public deterrence - custodial sentence - vulnerability of taxi drivers working alone at night.
Appeal dismissed.
15

LAU, Mun Loi - CCA, 4.12.98
Sentence appeal.
1 x knowingly concerned in importation of commercial quantity heroin (6.24 kgs) - 12y with NPP of 8y;
1 x possess unlicensed firearm - 4y FT;
1 x possess firearm on which serial number had been defaced - 2y FT.
Guilty plea - sentences to be served concurrently.
Heroin hidden inside a hi-fi speaker.
Applicant 61y of age - no priors - applicant not principal - following instructions of another - willing participant - 'towards lower end'.
Appeal dismissed.
16

LEONARD, Richard William - CCA, 7.12.98
Sentence appeal.
2 x murder.
Life.
First offence involved applicant killing victim by shooting with arrow fired from compound bow (pleaded not guilty); second offence committed upon a taxi driver by stabbing him (37 stab wounds) with a razor-sharp knife (guilty plea).
Opinion of forensic psychiatrist that applicant was a psychopath - severe personality disorder - drug addiction - no priors - appellant aged 24 - subjective factors - not premeditated - totality.
Appeal dismissed.
17

ELDRIDGE, Jason John - CCA, 22.4.98
Crown appeal.
11 x steal MV; 2 x BE&S; 1 x larceny; 1 x possess implement capable of being used to enter & drive conveyance; + 2 counts taken into account (negligent drive; ride motor cycle whilst unlicensed).
MT 14m, AT 3y.
Pre-sentence custody taken into account.
Offences committed as part of continuing enterprise - all offences committed over a period of almost 4 months
Sentence manifestly inadequate.
Appeal allowed: resentenced to MT 2y, AT 2y 2m.
18

PHEENEY, Natalie - CCA, 3.4.98
Sentence appeal.
2 x armed robbery; 2 x detain for advantage (kidnapping); + a count of stealing taken into account.
MT 2*y, AT 2*y.
Guilty pleas.
Applicant & co-offender, armed with blood-filled syringe, approached 2 passengers on a train telling them it was infected with AIDS - stole 2 gold necklaces & money, ATM cards demanding to know the PIN numbers, all the time threatening to stab victims. They then forced victims to alight from the train at Kingswood, then took one of the victims to a service station to use the ATM machine. Victim alerted store attendant.
Applicant 18 at time of offences, mother of 2y old daughter - Aboriginal - abused as a child by mother's de facto husband - domestic violence.
Appeal dismissed.
19

CHAPMAN, Craig - CCA, 21.5.98
Crown appeal.
Perjury (in the alternative, make false statement on oath).
Pursuant to direction by trial judge, jury acquitted on 1st charge & after deliberation convicted on alternative charge.
2y GBB.
Charges arose out of evidence given by respondent in Local Court when he was charged with possessing protected fauna (s.101(1) National Parks and Wildlife Act 1974). At the hearing he denied going into the national park with a rifle, however, later a rifle bearing the respondent's name was discovered in the park. This led to him being charged with the above charges.
Appeal dismissed.
20

GATIEN, Paul Anthony - CCA, 9.12.98
Conviction appeal.
Indecent assault upon male person.
Appellant indicted on 7 counts, 6 were for sexual offences & one was for AOABH. The judge directed the jury to acquit on counts 1, 2 & 3. The jury acquitted appellant of counts 4, 6 & 7 & convicted him of count 5 only.
Complainant's evidence supported by appellant's admission in record of interview.
Directions - supporting evidence - complaint evidence.
Appeal dismissed.
21

N, P - NSW SC, Graham Barr J, 30.10.98
Count 1: manslaughter (originally charged with murder but pleaded guilty to manslaughter).
Count 2: malicious wounding.
After a fight between the accused's friends & 3 young Aboriginal men outside a shop after the young Aboriginal men had been asked to leave the premises & the accused's friends took it upon themselves to escort them from the shop, the accused armed himself with kitchen knife & accompanied his friends to a park. A group of Aboriginal men in the park saw the accused's group approaching & some of the Aboriginal group armed themselves with fence palings & ran off into a laneway where they were attacked by the accused & his friends, giving rise to the above charges.
Count 1: MT 8y, AT 4y.
Count 2: FT 4y.
22

BOUREL, Alan - CCA, 11.12.98
Sentence appeal.
2 x knowingly concerned in importation of trafficable quantity methylenediozymethylamphetamine (known as MDA or ecstasy).
MT 4*y, AT 2*y.
1,798 tablets analysed as containing 16.3 grams MDMA & 315.5 grams MDP-2-MB (both known as Ecstasy) with an estimated street value of $72,000.
Prior good character - good rehabilitation prospects - break-up of long-term relationship & death of father figure - parity.
Appeal dismissed.
23

N - CCA, 8.12.98
Application for leave to reopen hearing of issue dealt with by CCA (differently constituted) on 21.7.98 - operation of s.126H Evidence Act 1995 in its application to proceedings outside of trial itself, for example on return of subpoena.
During the previous CCA hearing the Court was given misinformation concerning application of District Court Rule Pt.29 r.1. The Court was advised on the day following the hearing & it was directed that application for leave to reopen be listed before the CCA in the ordinary course. In the meantime, the CCA has heard extensive argument about the same issue in another matter & reserved its judgement.
Held: applicant will not be in a position any more prejudicial if there is a refusal of leave, having regard to the circumstance that any trial judge will in the event be bound by the reserved judgement when it is handed down.
Leave to reopen refused.
24

MORRIGAN, Matti - CCA, 4.12.98
Sentence appeal.
Count 1: supply heroin - MT 3*y, AT 2y.
Count 2: supply heroin - concurrent FT 3y.
Count 3: knowingly take part in supply of heroin - concurrent FT 3y.
Joint enterprise - applicant's sister charged with 2nd & 3rd counts. The 1st count related to a transaction which formed part of the larger enterprise in which both sisters were involved which police observed when conducting surveillance. The sister received MT 2*y, AT 1*y.
Applicant involved in enterprise for more than 7 months. In that time she & her sister distributed not less than 10 ozs heroin & deposited $80,000 in supplier's bank accounts.
Addict - difficult childhood - guilty plea at earliest opportunity - prior conviction.
Assistance to authorities - proportionality - discount - parity - sentence manifestly excessive.
Appeal allowed, resentenced: Count 2: MT 2y, AT 1y 4m; Counts 1 & 3: concurrent FT 1*y on each.
25

SMITH, Arthur Stanley ('Neddy') - NSW SC, Simpson J, 10.9.98
Remarks on sentence:
Murder.
Victim shot by accused at Botany Beach - witness forced to bury body - witness threatened - body discovered 12 years later - admissions to fellow-prisoner - fellow-prisoner made tape recordings of admissions.
Contradictions in case accused sought to make.
Premeditated, cold-blooded killing with the accused taking great steps to conceal his crime.
Pleaded not guilty - in poor health, suffering from Parkinson's disease - maintained innocence - declined to participate in sentencing proceedings - assistance to authorities.
Admitted to long history of armed robberies - already imprisoned for murder - distributed heroin on large scale - paid bribes to corrupt police to avoid consequences of his criminality - gave false evidence in 2 judicial proceedings, one of which was to conceal a murder.
Life imprisonment.
26

ALI, Shane - CCA, 9.11.98
Sentence appeal.
Robbery; AOABH.
2y MT, 2y AT.
Applicant snatched bag from a young woman containing the takings of her employer which she was taking to the bank. A passer-by came to her rescue & he was kicked in the chest. A second passer-by came to assist & the applicant was detained until the police arrived.
Applicant was at large at the time of the above offences, having escaped from lawful custody 7 months before. Long criminal history.
Severity - accomplishments attained since incarceration (furthered education, completed drug & alcohol course).
Appeal dismissed.
27

KINGI, Koroneria - NSW SC, Hidden J, 18.12.98
Remarks on sentence.
Murder (of wife).
Accused & wife separated. Young daughter lived with accused, however she spent some time with her mother each week. Accused & wife saw each other during this period & on occasions had sexual relations. Accused believed their separation was temporary & they would be reconciled. On the day in question, the wife told accused she would not return to him & was going to take their daughter away from him & mistreat her. The accused was angry, left the house, obtained an iron bar & knife, returned & struck wife on the head with the bar & stabbed her a number of times. Realising what he had done, he dropped his daughter off at his brother's home & surrendered to the police, making full admissions.
MT 10y, AT 4y.
28

SMITH, Marilyn Anne - CCA, 9.12.98
Crown appeal.
Supply heroin.
MT 3m (to date from 17.5.98 & expire on 16.8.98), AT 9m.
Guilty plea.
Respondent had been in custody, bail refused, on 2 occasions (approx 2 months in 1993 & 1 month in 1997). The effect of the backdating of the MT was to allow respondent's immediate release on parole.
Police surveillance operation - monitored conversations between respondent & de facto as to ongoing supply of heroin. Respondent met a man in a car park & was observed to pass him an object. Both were arrested, the man found to be in possession of 22 foils of powder comprising 61% heroin & 39% glucose (total weight 1.05 grams). Search of respondent's premises revealed powder comprising 60.5% heroin & 39.5% sucrose, some bound with tape, some in plastic bags & some in 15 foils similar to those supplied to the man in the car park. Total gross amount of heroin found at premises was 141 grams with a value of $60,000.
Appeal dismissed.
29

SMITH, Robert James - CCA, 1.4.98
Sentence appeal.
Maliciously inflict GBH (s.34(b) Crimes Act; firing firearm in public place (s.93G(1)(b)); + 3 further charges taken into account (possess unlicensed firearm; possess loaded firearm in public place; carry or fire firearm in manner likely to endanger safety of another).
Guilty pleas.
MT 11m, AT 2y (his Honour finding special circumstances).
All charges arose out of a single series of events which involved applicant & his wife who were separated at the time. Attack upon wife outside her workplace following an argument with her the previous evening, striking the wife repeatedly with the butt of a shotgun with sufficient force to cause part of the wood of the butt to break away. The wife was rescued by 3 members of the public & the applicant was held by these people until police arrived.
Sentence too harsh - insufficient weight given to subjective material.
Appeal dismissed.
30

POLDEN, James Pryde
MITCHELL, Kim Michelle - CCA, 13.11.98
Sentence appeal.
Polden: 3 x BE&S; + malicious damage & larceny of MV taken into account - 1y FT on 2nd count; MT 3y, AT 3y on 1st & 3rd counts cumulative upon the FT.
Mitchell: 2 x BE&S - MT 3y, AT 3y.
Guilty pleas.
Polden played a more significant role in commission of the 2 offences in which Mitchell was involved & also faced punishment for 3 further offences. Mitchell had a prior criminal record.
Sentences manifestly excessive - error in sentencing process - parity.
Polden: Appeals in relation to sentences imposed on 1st & 3rd counts allowed, resentenced to MT 1y 9m, AT 2y 3m; appeal against sentence on 2nd count dismissed & sentence of 1y FT confirmed. Sentences to be served concurrently.
Mitchell: Appeal allowed, resentenced to MT 2y, AT 2y.
31

KARIPIS, Pandelis - CCA, 4.12.98
Sentence appeal.
Supply heroin.
MT 2y 2m, AT 1y 10m.
Applicant apprehended following a covert police operation in which he had agreed, following receipt of cash, to supply heroin. Applicant aged 56 at time of sentence. Past record did not entitle him to any leniency. Already serving a sentence at time of sentencing for above offences.
Totality.
Appeal dismissed.
32

SLATTERY, Carl Rodney - CCA, 9.12.98
Appeal against order refusing permanent stay.
Maliciously discharge gun with intent to do GBH; possess shortened firearm; possess unlicensed pistol.
Drug offences.
Fitness to be tried - special hearing held - found guilty of some offences by jury - subsequent review of forensic patients one year later - now found fit to plead.
NSW Mental Health (Criminal Procedure) Act ss.14, 24, 26.
Leave to appeal refused.
33

BROWN, Mary Veronica - CCA, 9.12.98
s.5F appeal.
Appellant convicted of misprision of felony (common law misdemeanour triable on indictment) involving a sexual offence on appellant's daughter. Crown alleged that appellant's de facto placed appellant's daughter's hand on his penis & used it to masturbate while the appellant sat next to him. Appellant made no attempt to stop the activity nor to bring the matter to the attention of the authorities. The offence occurred in 1981 or 1982. The common law offence of misprision of felony was abolished in 1990. The daughter was aged 13 at the time.
Held: Common law rule that a married woman is immune from prosecution for misprision of felony where the felony is committed by her husband should not be extended to de facto wives.
Appeal dismissed.
34

MADDOCKS, John David - CCA, 12.11.98
Appeal against stated case.
Disobey directions of a traffic control light signal - s.61(2) Motor Traffic Regulations 1935.
Informant alleged the appellant disobeyed a traffic light & a police prosecutor appeared for the informant, the informant not being present. The appellant did not appear & the matter was dealt with ex parte under s.75B Justices Act. Appellant fined. Appellant appealed to the DC under s.122 Justices Act.
Magistrate has jurisdiction to determine matter in absence of defendant - police prosecutor may appear on behalf of informant - DC appeal a hearing de novo, not an appeal stricto sensu.
Matter remitted to the DC.
35

HG - HC, 9.2.99 - 197 CLR 414; 73 ALJR 281
Sexual assault of child under 10 - expert evidence excluded under s.409B Crimes Act 1900 (NSW) - whether evidence of prior sexual assault is evidence of prior sexual activity or experience - whether s.409B applies only to evidence of consensual prior sexual activity or experience - expert opinion to be within field of specialised knowledge - whether must be based on facts themselves admissible - whether parts of opinion severable - refusal to grant adjournment for purposes of calling expert evidence - whether refusal constituted miscarriage of justice.
Appeal dismissed.
36

BARRIENTOS, Carlos Eduardo Navas - CCA 10.2.99
Citation: R v Barrientos [1999] NSWCCA 1
Sentence appeal.
Knowingly concerned in importation of trafficable quantity cocaine (1553.6 grams pure cocaine with a street value of $880,000).
8y with NPP of 5y.
Plea of not guilty.
Appellant, a Venezuelan national, arrived in Sydney aboard a plane from Caracas. A married couple arrived from Venezuela 2 weeks later & were searched by Customs officers - cocaine found concealed in the soles of their shoes (1,149.9 grams in male's shoes; 993 grams in female's shoes). The following day Federal Police conducted a controlled delivery of the shoes with the assistance of the couple. The appellant was arrested shortly after he took possession of the 2 pairs of shoes.
Failure to give discount for assistance to authorities - failure to take into account prior good character & absence of prior convictions.
Appeal allowed: resentenced to 7*y with NPP of 4y 8m.
37

YU, Tit Hoi - CCA, 24.2.99
Citation: R v Yu [1999] NSWCCA 6
Crown appeal.
Attempt obtain possession trafficable quantity heroin (1 kg).
3y 11m with NPP of 2y 1m.
Interstate courier of imported heroin.
Pre-sentence custody taken into account (1y 5m) - previous conviction in Hong Kong for possession of dangerous drug for purpose of trafficking.
Sole ground of appeal that sentence manifestly inadequate.
Appeal dismissed.
38

SLATINEC, Risto - CCA, 16.2.99
Citation: R v Slatinec [1999] NSWCCA 2
Sentence appeal.
Knowingly concerned in importation commercial quantity N-methyl-1 (3-4-methylenedioxyphenyl)-2-butanamine (known as MBDB or Eden) a drug analogue of 3,4-methylenedioxymethamphetamine (known as MDMA or Ecstasy);
supply large commercial quantity prohibited drug being part of same MBDB.
9y with NPP of 6y.
Macedonian national - no priors - good character, references - ongoing assistance relating to a murder in gaol witnessed by the applicant - under extreme protection within gaol.
Isolated offence - low in hierarchy of enterprise - early plea of guilty - deprived & disadvantaged lifestyle - rehabilitation - past co-operation with authorities.
Appeal allowed: resentenced to 8y with NPP of 5y.
39

JIMINEZ, Victor Hugo - CCA, 24.2.99
Citation: R v Jiminez [1999] NSWCCA 7
Sentence appeal.
Import commercial quantity cocaine (3.01 kgs with street value of $786,000).
12y with NPP of 6y 8m.
Courier - reward was to be $30,000 over & above expenses - travelled with wife & infant son to Latin America & returned later the same month. A suitcase had become separated from him in the course of his return flight & arrived in Australia the next day as unaccompanied luggage. Customs officers opened it & found the cocaine. The suitcase was delivered to the applicant by members of the Federal Police & later that day as he left his premises with the suitcase he was arrested - plea of guilty - reasonable prospects for rehabilitation.
Submitted sentence excessive by comparison with general sentencing standards referable to couriers - features of case far more compelling than those applying to 'usual courier'.
Appeal allowed: resentenced to 9y with NPP of 6y.
40

SPITERI, Michael John - CCA, 24.2.99
Citation: R v Spiteri [1999] NSWCCA 3
Crown appeal.
Import commercial quantity cocaine (11.8 kg gross, or 8.347 kg pure with estimated street value of $4.7m).
14y with NPP of 8y.
Drugs contained in a platform or ramp which was exported from Nicaragua in a container with an open landau or coach & delivered to premises outside Sydney.
Principal - wilful operation - without mitigation - solely for profit - no contrition.
Employed - hard-working - member of large family - prior good character - 49 years old.
Ground of appeal: sentence inadequate.
Appeal dismissed.
41

WILLIAMS, Kim - CCA, 22.2.99 - 104 A Crim R 260
Citation: R v Williams [1999] NSWCCA 9
Conviction and sentence appeal.
1 x sexual intercourse with child under age of 16y (aged 15).
MT 3y, AT 3y.
Appellant initially indicted on 3 counts - 2 being for indecent assault & for which the judge had directed an acquittal as s.61E, under which the charges had been brought, had already been repealed before the date of the alleged indecent assault offences.
Complainant, a keen horsewoman, was invited to home of appellant for the weekend to assist him with the muster of some cattle. Offence allegedly occurred that weekend.
Complainant's recollection was that appellant's wife had been present at the home during that time, along with their 3 daughters & that the wife had been pregnant with her 4th child at the time. The offence occurred during the afternoon of the second day.
Adequacy of directions concerning delay in complaint - warning concerning evidence of complaint - unsafe & unsatisfactory.
Appeals dismissed.
42

DAVIS, Brian - CCA, 24.2.99
Citation: R v Davis [1999] NSWCCA 15
Conviction and sentence appeal.
Indecent assault of child under 10; sexual intercourse with child under 10; incitement of child under 10 to commit act of indecency.
MT 6y, AT 2y.
Crown case that offences occurred on the same day at appellant's home located some 7 kms from the complainant's home. Appellant was a friend of the complainant's stepfather. Complainant spent the night at the appellant's home & it was during this time the offences were alleged to have occurred.
Refusal to grant leave to cross-examine complainant - sufficiency of directions concerning complainant's evidence - directions concerning election of appellant not to give evidence - unsafe & unsatisfactory.
Appeals dismissed.
43

TSOUKALOS, Theophilos - CCA, 7.12.98
Conviction appeal.
1 x supply amphetamine; 1 x supply cocaine; 1 x supply heroin.
MT 3y, AT 1y.
Two principal Crown witnesses were members of the Police Service at the time of the alleged offence. By the time the trial was held, one witness had left the Police Service. Each gave evidence of stopping the appellant's vehicle when he was using a mobile telephone while driving. They asked him if he had any drugs. He replied 'a small amount of Procaine'They searched the car & found a black zip-up toiletry bag inside of which was a plastic bag containing envelopes of powder and tablets. The appellant claimed all were Procaine. Later at the police station, the appellant declined to be interviewed. After preliminary testing of some powder, the appellant was told it had tested positively as being amphetamine. To this the appellant said 'It should be Procaine'The contents of the toiletry bag were analysed & found to contain quantities of amphetamine, cocaine & heroin, giving rise to the above charges. The appellant claimed the police officer who had left the Police Service had stolen his wallet containing his wages.
Wrong & confusing directions on possession - failure to properly direct jury on mental element of possession - fresh evidence.
Appeal allowed: new trial ordered.
44

GREENHAM, Gregory Glenn - CCA, 8.3.99
Citation: R v Greenham [1999] NSWCCA 8
Conviction appeal.
3 x aggravated indecent assault.
MT 1y, AT 2y.
Appellant alleged to have sexually interfered with girl over period when she was 13 & ending around time of her 14th birthday.
Adequacy of directions about evidence of sexual conduct other than that charged - need for warning about complainant's evidence - adequacy of directions about delayed complaint - discretion to decline to order new trial.
Appeal allowed: conviction on each count quashed, verdict & judgement of acquittal entered.
45

BOYS, Peter Gerard - CCA, 25.2.99
Citation: R v Boys [1999] NSWCCA 11
Sentence appeal.
8 x sexual offences against 5 girls (carnal knowledge & indecent assault).
MT 7*y, AT 2*y.
Each of the girls had been a pupil of the appellant - 2 separate offences charged in case of each of 3 girls & 1 offence for 2 other girls.
Evidence that appellant 'was a manipulative sexual predator who abused his position of trust, exploited his power & subjected the girls to emotional blackmail'.
Relationship between minimum & additional term - principle of totality.
Appeal dismissed.
46

SMITH, Samuel John Darrell - CCA, 10.3.99
Citation: R v Smith [1999] NSWCCA 28
Conviction appeal.
1 x assault & commit act of indecency upon girl under 16; 2 x commit act of indecency upon girl under 16; 1 x sexual intercourse with person under age of 16.
Appellant in authority at the time of the offences. Complainant was the step-daughter of the appellant's cousin.
Whether unsafe & unsatisfactory - whether medical evidence called on voir dire but not called before jury is 'fresh'or 'new'evidence on appeal. Ignjatic (1993) 68 A Crim R 333 at 336 applied.
Appeal dismissed.
47

LYNCH, Murray - CCA, 12.3.99
Citation: R v Lynch [1999] NSWCCA 32
Conviction appeal.
4 x sexual intercourse without consent in circumstances of aggravation.
Appellant pleaded not guilty to each count. Guilty verdict on counts 1, 2 & 3. Verdict of not guilty entered on trial judge's direction on count 4.
Complainant aged 12y 9m at time of alleged offences.
Adequacy of directions about complaint & corroboration - impermissible questioning by trial judge of doctor about child sexual assault victims generally.
Appeal allowed: convictions quashed, new trial ordered.
48

LEONI, Ricardo - CCA, 2.3.99
Citation: R v Leoni [1999] NSWCCA 14
Conviction and sentence appeal.
Robbery with wounding (in the alternative, robbery in company). Crown accepted plea of guilty to 2nd charge in full satisfaction of indictment.
MT 2y 9m, AT 2y 3m.
His Honour found special circumstances justifying variation from statutory ratio.
Appellant & 2 accomplices gained entry to victim's house pretending to need to use phone - victim aged 65, living alone in house.
Application to withdraw plea of guilty - meaning of 'company'.
Appeal dismissed.
49

HUNTER, Matthew John - 105 A Crim R 223
SARA
, Troy Gordon - CCA, 11.3.99
Citation: R v Hunter and Sara [1999] NSWCCA 5
Conviction and sentence appeal.
Aggravated robbery.
Hunter: MT 12m, AT 12m;
Sara: MT 18m, AT 18m.
Crown case that appellants met the victim in a nightclub & had a disagreement about a wager, resulting in appellants assaulting & robbing victim in a street near the club. Appellants acknowledged the disagreement but maintained it was the victim who had thrown the first punch & they denied robbing him.
Defence case poorly conducted: failure to ensure separate representation; failure to put forward character evidence; failure to object to inadmissible & prejudicial evidence; failure to fulfil basic standards of advocacy.
Whether miscarriage of justice by reason of incompetence of counsel - whether verdict 'unsafe & unsatisfactory'.
Appeal allowed: conviction and sentence quashed, verdict of acquittal entered.
50

SNELL, Keith Hamilton - CCA, 5.3.99
Citation: R v Snell [1999] NSWCCA 26 revised - 10/3/99
Sentence appeal.
Conspiracy (s.86(1) of Crimes Act (Cth) 1914) to breach s.81 of Proceeds of Crime Act (Cth) 1987 - referred to as 'money laundering'.
4y with NPP of 2*y.
Money the proceeds of drug trafficking in illegally imported cannabis & cannabis resin. Offender not party to the importation but involved in conspiracy to use $850,000 of profits to purchase a guest house. Aged 62, -role of initiator & prime mover - had previously acted as 'front man' to conceal assets & launder money - no involvement in drug side of operations.
Guilty plea - prior good character - no priors.
Comparable culpability - parity - trial judge's findings.
Appeal dismissed.
51

CROWDEY, Terrence John - CCA, 5.3.99
Citation: R v Crowdey [1999] NSWCCA 24
Crown appeal.
1 x knowingly concerned in importation of trafficable quantity cocaine.
2*y with NPP of 1*y.
After controlled delivery to respondent's premises, Australian Federal Police seized 37.8 grams pure cocaine with value noted in papers as approximately $21,600.
Aged 39 - initially told lies to police - demonstrable contrition - unlikely to re-offend - co-operation - admission to having played principal role - offer of further assistance to authorities - psychological condition rendering offender more susceptible to influence than other offenders - rehabilitation expectations.
Findings of trial judge - tariff - manifest inadequacy - mental condition - discretions in Crown appeals - constraints on substituted sentence.
Appeal allowed: resentenced to 4y with NPP of 2*y.
52

ADORJANY, Leslie Victor Manasse - CCA, 5.3.99
Citation: R v Adorjany [1999] NSWCCA 37
Sentence appeal.
Possess trafficable quantity cocaine.
10y with NPP of 6y 3m.
Courier intercepted by police on arrival from Colombia with 2,796.2 grams pure cocaine secreted in his luggage. Under controlled conditions, courier later met the appellant. Appellant given a briefcase containing what he thought was the cocaine & paid the courier with his own money.
Aged 46 - no priors.
Identification of role - rank and role of offender.
Appeal dismissed.
53

MERRITT, Noel Richard - CCA, 10.3.99
Citation: R v Merritt [1999] NSWCCA 29
Conviction appeal and Crown appeal.
(a) attempt robbery with wounding - MT 9y, AT 5y;
(b) theft of MV - 1y FT, concurrent with (a);
(c) escape from lawful custody - 1y FT, cumulative with (a) & (b).
Whilst in an armoured van, a security guard was confronted by hooded man holding sawn-off rifle pointed at his head. He grabbed the gun from the offender, forcing the barrel down. The gun went off & the guard was shot in the lower abdomen (charge (a)). Second security guard intervened & chased the man & his co-offenders. A witness saw one of the offenders with a gun enter the back of a car & the car drive off (charge (b)). Charge (c) related to appellant's escape from Industrial Training Centre at Long Bay.
Aged 46 - recidivist history for escape - Aboriginality - delay in Crown filing appeal - special circumstances warranting departure from statutory ratio - priors - imprisoned almost continuously since 1980.
Circumstantial evidence - intermediate facts - roles of judge & jury.
Conviction appeal upheld for (a) & (b): new trial ordered.
Crown appeal allowed for (c): resentenced to MT 1y 8m, AT 1y 4m.
54

MAY, Raymond James - CCA, 10.3.99
Citation: R v May [1999] NSWCCA 40
Crown appeal.
Sexual intercourse without consent.
3y PD.
Female victim aged 18 years. Victim, appellant & another person had gone out drinking. Whilst victim was asleep in passenger seat of appellant's car, the appellant had intercourse with her.
Appellant aged 18 at the time - offender known to victim for number of months - belated plea of guilty - genuine contrition & remorse - offence out of character - regular employment - supportive family - excellent rehabilitation prospects - no priors.
Appeal dismissed.
55

HOWLAND, Robert Paul - CCA, 24.2.99 - 104 A Crim R 273
Citation: R v Howland [1999] NSWCCA 10 revised 3/3/99
Crown appeal.
Dangerous drive occasioning death.
1*y PD.
Respondent drove truck around stationary vehicle into intersection against orange light & collided with a motor cycle. The motor cyclist was killed.
No evidence of excessive speed - no evidence of drinking or drug taking - nothing to suggest momentary inattention or bad judgement.
Aged 22 - remorseful - good character - no priors - special circumstances - Jurisic applied.
Appeal allowed: resentenced to FT 9m, AT 9m full-time custody.
56

KASSOUA, Alla - CCA, 5.3.99
Citation: R v Kassoua [1999] NSWCCA 13
Conviction appeal.
Shoot with intent to murder; armed robbery.
Concurrent MT 4y, AT 3y for each offence.
Two men disguised in balaclavas held up staff of a nightclub & escaped with cash totalling about $10,000. A member of the staff chased them as they left & a gun was discharged by an accomplice of the appellant. No person has been identified or charged as such accomplice.
Failed prior attempt at offence.
Identification - directions on identification inadequate - fresh evidence - unsafe & unsatisfactory.
Appeal dismissed.
57

MUNRO, Roger Gareth - CCA, 9.3.99
Citation: R v Munro [1999] NSWCCA 31
Conviction appeal.
3 x common law bribery.
Verdict of acquittal directed on 1st count. Found not guilty on 3rd count. Appeal concerned only with conviction on 2nd count which charged that appellant offered $5,000 to a councillor of Tweed Shire Council as an inducement to show favour to the interests of the appellant.
Sufficiency of evidence to support count - essential for Crown to prove payment was an inducement - admissibility of evidence - unsafe & unsatisfactory.
Appeal allowed. Verdict & judgement of acquittal entered.
58

NYKOLYN, Danny Anthony - CCA, 9.3.99
Citation: R v Nykolyn [1999] NSWCCA 39 revised - 18/3/99
Reasons for judgement:
Sentence appeal.
Short judgement (* page).
No details of offence.
8y (this is the only detail so far as sentence at first instance is concerned).
Special circumstances - danger of prisoner becoming institutionalised.
Appeal allowed: MT 7y, AT 3y substituted.
59

WHITNEY, James Herbert - CCA, 5.3.99
Citation: R v Whitney [1999] NSWCCA 38
Sentence appeal.
Import commercial quantity cocaine.
7y with NPP of 4*y.
Courier. Guilty plea.
Co-offender sentenced to 10y with NPP of 6y 3m. Co-offender's appeal against severity of sentence dismissed (see Adorjany, unreported, NSWCCA, 5.3.99).
Significant assistance to authorities - parity with co-offender.
Court held that the risk resulting from the appellant giving assistance to authorities has been magnified by specific evidence of realistic & continuing danger to him & possibly to his family. Special weight given to these special circumstances in resentencing.
Appeal allowed: resentenced to 6y with NPP of 3y 9m.
60

RAAD, Julal - CCA, 2.3.99
Citation: R v Raad [1999] NSWCCA 27
Sentence appeal.
Armed robbery (large knife); + Form 1 matters.
MT 5y 3m, AT 1y 9m.
Home invasion.
Victim aged 68, living alone, answered knock on door. Appellant entered & pointed knife at victim's stomach, forced him into lounge-room then the bedroom & demanded money. Victim gave him his wallet & appellant took victim's Visa card & about $50 in cash from it. Appellant demanded PIN number. Victim complied & wrote it down on a piece of paper. Jewellery taken, as well as video camera, TV set & other items. Appellant disconnected telephone & wiped down each of the surfaces he touched.
Record of drug offences - no special circumstances - one Form 1 offence committed whilst on bail - numerous goods in custody - several BE&S - housebreaking - previously imprisoned - general deterrence.
Submitted sentence excessive.
Application for leave to appeal refused.
61

KING, Gregory Paul - CCA, 3.3.99
Citation: R v King [1999] NSWCCA 16
Crown appeal.
Use offensive instrument to prevent lawful apprehension (metal bar).
MT 6m, AT 6m.
Respondent confronting people in the street, threatening to attack them. Police tried to calm him down. Respondent went to his house then started shouting stating he intended to burn down the house. Police entered through a gate & respondent picked up a U-shaped shiny metal object & threatened them. After dropping that object he picked up another bigger bar & swung it around. A constable was hit on the right hand, sustaining lacerations. Respondent on recognizance for similar offence.
Significant criminal history - prior assaults on police while drunk - prior custody for alcohol-related driving offences - history of alcohol-related serious anti-social behaviour.
Manifest inadequacy - necessity to denounce conduct - intoxication.
Special circumstances - alcoholism - physical disabilities.
Appeal allowed: resentenced to MT 12m, AT 18m.
62

LEASK, Stephen - CCA, 12.3.99
Citation: R v Leask [1999] NSWCCA 33
Conviction appeal.
42 x offences against s.31(1) Cash Transaction Reports Act 1988 (Cth) - (since renamed The Financial Transaction Reports Act.)
Financial transactions - repeated banking of cash - most sums greater than $9,000 but never more than $10,000 - intention to avoid reporting required when cash over $10,000 banked.
Standard of proof - reasonable to conclude - purpose - Mens Rea.
Appeal dismissed.
63

WARNER, Allan Douglas Lindsay - CCA, 2.12.98
Sentence appeal.
1 x supply cannabis leaf; + 4 Form 1 offences (goods in custody, possess prohibited weapon, possess prohibited drug, possess equipment to administer prohibited drug).
FT 12m.
Weight of cannabis 3.493 kg with street value of $90,000. Drugs not for sale to public in general; not part of any profit undertaking or scheme.
Aged 52 - guilty plea - prior good character - not in good health - depression & suicidal tendencies - Royal Commission involvement & reports in media had resulted in appellant receiving death threats - protective custody required - forfeiture order made at first instance - no priors.
Appeal dismissed.
64

STEAD, Christian Stuart - CCA, 12.3.99
Citation: R v Stead [1999] NSWCCA 41
Sentence appeal.
Conspiracy to import commercial quantity cocaine.
10y with NPP of 5y.
Appellant one of three people involved in conspiracy to import 4 kgs cocaine into Australia. Cocaine installed in computers in Los Angeles. Appellant denied he was actively involved in the installation of the cocaine. Reluctant to fully discuss his involvement in the offence.
Guilty plea - assistance to authorities - future assistance - parity - sentence excessive.
Leave to appeal refused.
65

ERRINGTON, Frederick James - CCA, 3.3.99
Citation: R v Errington [1999] NSWCCA 18
Crown appeal.
Aggravated dangerous drive causing GBH.
FT 18m by way of home detention + disqualification of driver's licence.
Respondent driving his motor vehicle at 90 kph in 60 kph zone with his wife and two children as passengers. Lost control trying to overtake other vehicles & collided with a large metal post & a wooden power pole. Wife's lower left arm amputated. She underwent microsurgery but subsequently died of multi-organ failure due to sepsis. Daughter suffered leg injuries.
Analysis of blood sample taken from respondent gave a reading of 0.278 grams alcohol per 100 ml blood.
Sentence inadequate. Jurisic followed.
Appeal allowed: resentenced to imprisonment for MT 12m, AT 18m. Order for disqualification of licence confirmed.
66

POWER, Brett Wayne - CCA, 5.3.99
Citation: R v Power [1999] NSWCCA 25
Sentence appeal.
Possess commercial quantity methylenedioxymethamphetamine (known as MDMA or Ecstasy).
9y with NPP of 5*y.
Weight of drug 1,056.5 grams, consisting of approx 16,000 tablets with estimated street value of $1.12 million.
Dutch national arrived at Sydney Airport from Holland with suitcases in which the tablets were found. Applicant subsequently went to hotel where Dutch national was staying & took delivery of the suitcases. When he left the room he was detained by police.
Guilty plea. Middleman in enterprise.
Parity - failure to give adequate weight to guilty plea .
Appeal dismissed.
67

SUCKLING, Daryl Francis - CCA, 15.3.99
Citation: R v Suckling [1999] NSWCCA 36
Conviction and sentence appeal.
Murder.
Life imprisonment.
Deceased a prostitute & regular user of drugs. She had been released from prison on 22.12.87 & was last seen by family & friends just before Christmas 1987. Crown case that appellant had abducted & murdered her. Appellant admitted he had an association with victim but denied abducting & killing her.
Appellant made admissions to fellow inmate. Fellow inmate informed police about admissions upon his release. Appellant released some time later. Police recorded conversations between appellant and fellow inmate.
Admission into evidence of alleged admissions - directions - circumstantial evidence - 'territoriality'- jurisdiction - warnings on identification of personal items of deceased - fresh evidence - unsafe & unsatisfactory - sentence excessive.
Appeal dismissed.
68

GEOGHEGAN, Ian Anthony - CCA, 1.3.99
Citation: R v Geoghegan [1999] 20
Application for leave to appeal against interlocutory order refusing to grant permanent stay (s.5F Criminal Appeal Act).
Indictment related to sexual offences asserted to have been committed some 34 to 38 years earlier.
Offences detected as a result of information communicated to police through Operation Paradox. Part of the Crown case that certain admissions were made by applicant in interviews conducted relatively recently.
Long period of delay since alleged commission of offences - preparation of defence case may be inhibited by reason of long passage of time & difficulty in locating potential witnesses.
Leave to appeal refused.
69

GILLARD, Ronald Douglas - CCA, 5.3.99 - 105 A Crim R 479
GILLARD
, Colleen Therese
Citation: R v Gillard [1999] NSWCCA 21
Conviction appeals.
Ronald Gillard: 3 x sexual intercourse; 3 x commit act of indecency. All offences committed against child between 10 and 16 (namely 13 or 14) under authority.
Therese Gillard: 1 x sexual intercourse with child under 16 (namely 13 or 14) and under authority.
Evidence not admissible under s.66 due to lack of 'freshness'- evidence admissible under s.108(3)(b) but leave never sought by Crown - delay in complaint - directions deficient - evidence of complaint - admissibility - ss.66, 108(3) Evidence Act 1995 - meaning of s.61E(2A) Crimes Act 1900 (now s.61N).
Appeals allowed: new trials ordered.
70

AC - CCA, 2.3.99
Citation: R v AC [1999] NSWCCA 19 revised - 12/3/99
Conviction appeal.
12 x sexual intercourse with child between 10 & 16 under authority.
Crown relied upon evidence including evidence of 2 medical practitioners who concluded there had been penile penetration of complainant's vagina from a time before puberty. Complainant was 11 or 12 years old at time of earliest event relied upon by the Crown.
Appellant denied each of the acts alleged.
Incompetent legal representation - unsafe & unsatisfactory.
Appeal allowed: new trial ordered.
71

BEEBY, Charles Michael - CCA, 11.3.99 - 104 A Crim R 142
Citation: R v Beeby [1999] NSWCCA 30
Applications pursuant to s.5F Criminal Appeal Act 1912 for leave to appeal against 2 interlocutory judgements:-
1. granting Crown leave to withdraw its acceptance of plea of guilty by applicant to a charge of cultivating prohibited plants & to present a fresh indictment;
2. granting applicant a certificate under Suitors' Fund Act 1951 but refusing stay of proceedings on any fresh indictment until certain of applicant's costs were paid by the Crown.
Cases applied: Maxwell v The Queen (1996) 184 CLR 501; R v BWM (1997) 91 A Crim R 260; Moseley (1992) 28 NSWLR 735, 65 A Crim R 452.
Appeals dismissed.
72

MAROTTA v THE QUEEN - HC 9.2.99 - 73 ALJR 265
KING v THE QUEEN
BULL v THE QUEEN
Applicants convicted of offences of sexual intercourse without consent & indecent assault in WA. Special leave to granted on 20.11.98. Applicant's applied for bail pending hearing of appeal. Appeals were unlikely to be heard before March 1999 & it is possible they will not be heard until May 1999. It may be expected that the Court will reserve its decision for some time after the hearing By the time a decision is given the applicants will be eligible for work release or almost eligible for parole.
Circumstances justifying grant of bail - arguable point of substance.
Bail granted.
73

PARSONS v THE QUEEN - HC 9.2.99 - 195 CLR 619; 73 ALJR 270
Despite guilty plea to 5 counts of dishonestly obtaining property belonging to another by deception (s.81 Crimes Act 1958, Vic), appellant applied to Victorian Court of Appeal for leave to appeal against conviction, contending that there had been a miscarriage of justice within the meaning of s.568(1) Crimes Act. Leave to appeal was refused. Appellant had obtained cheques totalling over $160,000 from 5 newsagents by falsely representing that he could arrange to supply cheap copy paper. Newsagents placed orders paying by bank cheques & bearer cheques. Cheques deposited in a company account, the funds dissipated on business expenses. No arrangements were ever made to supply the copy paper.
Complexities & distinctions inherent in common law - cheques - definition - disparity between Australian & English banking practice - banks asserting right to retain possession of paid cheques.
Appeal dismissed.
74

PARSONS v THE QUEEN [No.2] - HC 22.12.1998 - 73 ALJR 279
Applicant had pleaded guilty to a number of counts of obtain property by deception (s.81 Crimes Act 1958, Vic) & was sentenced to 2y 8m with NPP of 2y. He appealed to the Victorian Court of Appeal against both conviction & sentence, despite his pleas of guilty, on the ground that the admitted facts did not reveal commission of the offence charged That appeal was dismissed.
Powers of court on appeal in criminal cases - granting of bail in exceptional circumstances - special leave granted to appeal against conviction & sentence - appeal heard, judgement reserved - circumstances unusual but insufficient to justify bail.
Chamberlain v The Queen (1983) 153 CLR 514; Robinson v The Queen (1991) 65 ALJR 519 considered.
75

MAXWELL, John Charles - NSW SC, Hidden J, 30.3.99
Citation: R v Maxwell [1999] NSWSC 281
Murder.
About 18 months prior to the killing the accused began experiencing auditory hallucinations. He began attending church & reading the Bible. He became obsessed with the idea that passages therein related to him & he believed he was the Son of God. He believed the voices were those of demons who wanted to kill him because he was the Son of God. The accused said his reason for killing the deceased was that the voices told him the deceased was going to kill him.
Defence of mental illness - trial by judge alone - reasons for verdict.
Special verdict of not guilty by reason of mental illness.
76

PANG, Tack Lee - CCA, 12.2.99 - 105 A Crim R 474
Citation: R v Pang [1999] NSWCCA 4
Sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
6y with NPP of 5y.
Role of courier - appellant collected & signed for the heroin & delivered it to an intermediary.
Guilty plea - full & frank statements - considerable assistance to authorities.
Whether trial judge erred in not allowing sufficient discount for assistance to authorities - whether trial judge erred in not making allowance for absence of remissions within NSW criminal justice system when setting non-parole period.
Appeal allowed: resentenced to 5y with NPP of 3y.
77

GIALLUSSI, Barbara - CCA, 12.3.99
Citation: R v Giallussi [1999] NSWCCA 56 revised - 29/3/99
Crown appeal.
5 x defraud Commonwealth (nursing home fraud).
Fine of $20,000 on each count totalling $100,000.
Respondent part-owner of nursing home. Ongoing systematic falsification of records over period of approx 5 years. Total amount involved was $264,110.16.
Guilty plea - no priors.
Sentence manifestly inadequate - no special circumstances - discount for double jeopardy.
Appeal allowed: resentenced to concurrent terms of 3y PD on each count. Noted that fines had been paid.
78

BROWNLEE, Anthony John - CCA, 8.3.99 - 105 A Crim R 214
Citation: R v Brownlee [1999] NSWCCA 57
Conviction appeal.
Obtain financial advantage by deception; a further charge of obtain financial advantage by deception taken into account.
20m FT.
At time of appeal, all but 18 days of sentence had been served.
Appellant was a corporate adviser involved in reorganisation of financial affairs of a Mr Weston for the purpose of concealing Weston's previous tax avoidance. As part of that reorganisation, alleged he either forged or was party to forging or was party to presentation of a signature he knew to be forged as genuine on a contract for sale & transfer of real estate to mortgagees who were pressing companies in which he had an interest for payment. The property was Weston's but the Crown case was that he was unaware of the transfer & had not executed the documents. Appellant's signature appeared as a witness to the questioned signatures. His defence was that he had witnessed Weston's signature.
Statement by co-offender - whether made pursuant to common purpose - Evidence Act 1995 ss.65, 66, 87 - prior consistent statement - credibility rule 15 108.
Appeal allowed: verdict of acquittal entered.
79

WHITE, Julie - CCA, 30.3.99
Citation: R v White [1999] NSWCCA 60
Sentence appeal.
Supply methylamphetamine; supply cannabis leaf; + Form 1 matters: supply ephedrine, amphetamine.
MT 1y, AT 1y.
Guilty plea - full admissions - maintained drugs were for her own use.
Disruptive family background - mother & sister schizophrenic - violent father - appellant left home at the age of 13 - priors - drug habit - appellant the mother of 2 year old son & 3 month old daughter.
Manifestly excessive - hardship to family.
Appeal dismissed. Court directed that applicant be released on parole at expiration of MT.
80

DJT - HC, 12.2.99 - 73 ALJR 460
Application for special leave to appeal against conviction.
A number of counts of sexual assault.
Complaint evidence - possible motive to lie - not objected to at trial - evidence given by family members - exemption from giving evidence - failure to inform witnesses of exemption - evidence of accused's violent conduct admitted.
Application dismissed.
81

GIAM, Tony - CCA, 10.3.99 - 104 A Crim R 416
Citation: R v Giam [1999] NSWCCA 53
Conviction appeal.
6 x make false statement with intent to obtain financial advantage; 1 x cheat and defraud as a director.
Each charge was formulated in such a way that it was not possible to determine which of two statements made by the appellant the jury found to be false.
Indictment - duplicity - unsafe & unsatisfactory.
Inconceivable that sentencing judge would have imposed the sentence he did on the seventh count if that had been the only count.
Appeal allowed: new trial ordered.
82

YZ - CCA, 25.3.99
Citation: R v 'YZ'[1999] NSWCCA 48
Crown appeal brought under s.21E Crimes Act 1914 (Cth).
Preliminary ruling.
Respondent convicted of importing large quantity cannabis resin. Received reduced sentence after signing undertaking in accordance with s.21E(1) Crimes Act 1914 (Cth) that he would give evidence against co-offender - respondent failed to give evidence at that trial.
A preliminary question arose as to whether respondent can challenge, on the appeal, the question whether his failure to co-operate with his undertaking was 'without reasonable excuse'.
Statutory interpretation - administrative law - judicial review - jurisdictional fact - collateral challenge.
Held respondent entitled to contend that he had a reasonable excuse for failing to co-operate in accordance with his undertaking.
83

McKINNEY, Robert - CCA, 10.3.99
Citation: R v McKinney [1999] NSWCCA 51
Crown appeal.
Respondent pleaded guilty to charge of aggravated dangerous drive causing death.
3y PD.
Blood alcohol reading of 0.243 grams alcohol per 100 ml blood.
Crown contended sentencing judge failed to give appropriate weight to principle of general deterrence - sentence manifestly inadequate - R v Jurisic (unreported NSW CCA, 12.10.1998) & R v Kalanj (1997) 98 A Crim R 505 referred to.
Deterrence - double jeopardy.
Appeal allowed: respondent resentenced to MT 1*y, AT 1*y; disqualified from holding driver's licence for 3y.
84

DENNIS, Stephen Charles - CCA, 25.2.99
Citation: R v Dennis [1999] NSWCCA 23
Conviction appeal.
1st charge: robbery with corporal violence;
2nd charge: assault with intent to rob with corporal violence.
Convicted on 2nd charge, found not guilty on 1st charge.
Victim attacked in men's toilet at Waratah Leagues Club. An employee of the club walked into the toilets & saw the victim lying on the floor & the appellant with a wallet in his hand, looking through it. The appellant threw the wallet down & then left the club. Appellant affected by alcohol at the time.
Lies - miscarriage of justice occasioned by reason of Crown's cross-examination of appellant - improper to seek to force appellant to state other witnesses were lying - learned trial judge erred in invoking rule in Browne v Dunn.
Appeal allowed: new trial ordered.
85

BATTIATO, Anna Rosa - CCA, 8.3.99
Citation: R v Battiato [1999] NSWCCA 44 revised - 7/4/99
Sentence appeal.
9 x obtain financial advantage by deception.
MT 2*y, AT 2y (special circumstances found).
Guilty plea. Applicant an employee of a bank using her position to alter nature of certain accounts in such a way as to make funds held therein readily accessible to her but to delay detection of the removal of those funds. Offences committed over period of little more than 3 years, totalling $490,000.
Basis for appeal that sentencing judge overlooked or failed to give sufficient weight to extensive co-operation & assistance given by applicant once she came under suspicion.
Appeal allowed: resentenced to MT 2y 3m, AT 1y 9m.
86

BOWMAN, Heather Theresa - CCA, 17.3.99
Citation: R v Bowman [1999] NSWCCA 55
Sentence appeal.
2 x knowingly take part in supply of methylamphetamine; 1 x supply cannabis leaf; 1 x supply methylamphetamine; + 4 drug-related matters taken into account.
Concurrent MT 12m, AT 4m on each charge.
Appellant's husband & another man involved in drug dealing. Appellant assisted husband as required - role in subject offences minimal. Appears to have been under husband's domination. Psychologist report that she was unable to make good judgements about people or her own behaviour - stays with men who show her affection even if they are violent & abusive.
Guilty plea - priors - on recognizance at time of commission of above offences - drug user - violent & disrupted childhood - much of her adult life disastrous - lost 1st baby to Welfare Authorities in Britain - 2nd child killed when a car mounted the kerb & ran into her - first marriage broke up after 2nd child's death - has other children from previous marriage & one from the present marriage.
Severity - hardship.
Appeal allowed: resentenced to concurrent terms of 12m PD on each count.
87

CHAMI, Abboud - CCA, 2.3.99
Citation: R v Chami [1999] NSWCCA 19 revised - 10/3/99
Conviction appeal.
12 x sexual intercourse with child under 16 under authority. Of the 12 counts, 6 alleged penetration of the vagina by penis & remainder alleged sexual intercourse of other kinds.
Because of the way in which trial conducted, jury had only one question to answer on each count, eg whether appellant had had sexual intercourse as alleged. Appellant gave evidence & denied each of the acts alleged.
Evidence of complainant's prior sexual activity. Appellant claimed other evidence existed about complainant's previous sexual experience but this evidence was not tendered at trial.
Incompetent legal representation (solicitor failed to furnish counsel with material essential to proper defence of trial) - unsafe & unsatisfactory.
Appeal allowed: new trial ordered.
88

A - CCA, 30.3.99
Citation: R v A [1999] NSWCCA 61
Sentence appeal.
24 x larceny MV; 12 x receiving; 4 x obtain money by deception; 1 x attempt obtain money by deception; 3 x steal property other than MVs; 2 x malicious damage to property; 3 x accessory after fact to theft of MVs; 1 x possess implements capable of being used in MV theft.
Aggregate MT 5*y, AT 2y 10m (special circumstances found).
Guilty plea. Applicant 21 when 1st offence committed. Offences continued for about 3 years. Extensive organised car stealing enterprise which covered substantial parts of NSW. Some vehicles stolen 'to order', others 're-birthed'for purposes of sale. Vehicles tended to be expensive. Arrested on number of occasions, savagely beaten after one arrest requiring considerable treatment for injuries. Received some but not large amount of money.
Coercion regarding initial involvement - efforts to sever connection unsuccessful - had even moved to outer suburb - suffered severe assault - significant depression - bi-polar disorder, sleep disturbance, weight loss, poor concentration, suicidal tendencies.
Parental & family support - good rehabilitation prospects - co-operation with authorities - totality.
Appeal allowed: new aggregate MT 2y 8m, AT 1y 2m.
89

COX, Kevin Nicholas - CCA, 31.3.99
Citation: R v Cox [1999] NSWCCA 62
Conviction appeal & Crown appeal.
3 x indecent assault upon child under 16.
Jury convicted on first 2 counts & acquitted on third.
Concurrent 2y PD on each count.
Appellant was the assistant to parish priest at Caringbah at the time of the alleged offences. He & the complainant had developed an affection for each other. He visited complainant's family home on occasion for afternoon tea & officiated at a family baptism & marriage.
Delay of more than 20y between offences & trial - offences said to have occurred in circumstances in which other people might have noticed something, yet there was no independent evidence to support complainant's evidence - no directions given to jury on impact of delay.
Different verdicts unable to be explained by reference to the evidence - Court held inconsistent & therefore unreasonable.
Conviction appeal allowed, convictions quashed.
Crown appeal did not arise.
90

DWYER, James Anthony - CCA, 25.3.99
Citation: R v Dwyer [1999] NSWCCA 47
Conviction appeal.
3 x sexual assault on person under 16; 3 x indecent assault on person under 16; 1 x attempt sexual intercourse with person under 16.
Alleged offences said to have occurred between 1981 & 1985.
Evidence from family's GP that complainant attended his surgery with her mother for symptoms of wheezing & was treated for asthma. Two days later she returned for a further check up & mention was made of vaginal discharge, possibly blood. Complainant was asked to obtain a urine sample, which she did not. Evidence was given of complainant undergoing counselling on 2 occasions during early secondary school years - not related to sexual abuse.
Evidence of counselling should have been inadmissible - counselling in no way related to sexual abuse.
Complaint not recent - summing up - competing versions - who to believe.
Appeal allowed: new trial ordered.
91

DANG, Yu Bin - CCA, 2.3.99
Citation: R v Dang [1999] NSWCCA 42
Sentence appeal & Crown appeal.
Manslaughter - MT 4*y, AT 18m; malicious wounding - concurrent FT 4y.
2 weeks before crime, respondent & deceased involved in physical confrontation. A rifle was produced by the deceased accompanied with threats. On the day of the killing, respondent had come home & an argument ensued. Respondent became concerned about whereabouts of the rifle, found it, loaded it because she was afraid the deceased may have used it against her. An argument ensued & the deceased the appellant shot the deceased. The deceased's child was wounded.
Jury found provocation, rejected defence of self-defence.
No priors.
Sentence appeal dismissed.
Crown appeal dismissed.
92

HEPTONSTALL, Murray - CCA, 10.3.99
Citation: R v Heptonstall [1999] NSWCCA 54 revised - 25/3/99
Sentence appeal.
7 x indecent assault upon child under 16; 4 x sexual intercourse without consent with child under 16.
Aggregate MT 8y, AT 1y 8m.
Offences committed against 4 girls when they were aged between 10 & 14, taking place in the applicant's flat. Applicant a bachelor living alone - knew the families of 3 of the girls & was trusted by the parents of all the girls. Photographs taken of girls & he made them watch lewd videos. He gave them tablets which caused them to fall asleep & when they awoke they were beside him with their pants lowered. Applicant kept notebooks recording the offences.
Applicant aged 37 at time of first offence - bachelor living alone - planned & calculated offences of a period of 5 years - serious breaches of trust - remorse & shame - special circumstances - no priors - in need of extensive supervision following release from prison.
Appeal allowed: resentenced to aggregate MT 7y 3m, AT 2y 5m.
93

RAMIREZ, Aidelyn - CCA, 8.3.99
Citation: R v Ramirez [1999] NSWCCA 52
Sentence appeal.
2 x make false instrument; 2 x use false instrument; 2 x fraudulently falsify application for credit; 2 x obtain money by false statement; 2 x obtain money by deception.
Aggregate MT 2*y, AT 1*y.
Victim & applicant became friendly during a course. Applicant gradually took over management of victim's financial affairs & rewarded herself. Dishonestly obtained title deeds to property including substantial financial advantage. In all a total of approximately $674,795 was obtained.
Applicant aged 43 supporting 5 children - gambling addiction not able to be treated in applicant's locality - counselling for gambling addiction not available at Mulawa - priors for similar offences - previous imprisonment.
Leave to appeal refused.
94

BGS - CCA, 16.4.99
Citation: R v BGS [1999] NSWCCA 89
Sentence appeal.
2 x sexual intercourse with child under 10 (s.66A); 1 x act of indecency by person in authority (s.61E(1A)); 2 x sexual intercourse with child under 16 (s.66(2)); 1 x sexual intercourse without consent in circumstances of aggravation (child under 16 - s.61J(1)).
MT 4*y, AT 3*y.
Offences took place over period of 5 years when victim aged between 7 & 12 years, the first offence taking place on her 7th birthday. The appellant is the father of the complainant.
Degree of violence.
Voluntary disclosure of guilt - Judicial Commission statistics - protective custody.
Severity.
Appeal dismissed.
95

MOLESWORTH, Morna - CCA, 12.3.99
Sentence appeal.
Social Security fraud.
MT 12m, AT 6m (conditional upon entering GBB for the AT) + order for reparation of $73,327.32.
Whilst employed, applicant claimed & received a widow's pension to which she was not entitled; also falsified documents so as to claim & receive another benefit at the same time. Motivation for fraudulent behaviour was applicant's 11 year gambling addiction allegedly caused by break-up of a destructive marriage.
Lonely woman - 68 years of age - extremely violent husband - divorced once children old enough to take care of themselves - except for her eldest son's wife, none of the children have anything to do with her - no likelihood of appellant ever being able to make full reparation - gambling problem.
Significance of gambling addiction as a mitigating circumstance.
Appeal dismissed.
96

COWAN, Corey James - CCA, 10.3.99
Citation: R v Cowan [1999] NSWCCA 49
Sentence appeal.
Breach of CSO.
MT 6m, AT 6m.
Sentenced to 300h CSO following severity appeal for BE&S. Performed obligations under the CSO badly & failed to attend as required, Probation & Parole Service having to chase him up on many occasions. Had served 224 hours of community service at time he was resentenced for the BE&S offence by the Local Court. Pleaded guilty to failing to comply with CSO.
Special circumstances - need for specific & general deterrence.
Severity - failure to properly apply s.26 Community Service [Orders] Act 1979 - failure to attach sufficient weight to length of original sentence or the community service performed.
Appeal allowed: resentenced to FT 3m. Applicant subsequently sentenced to 9m PD for another matter - commencement date of that sentence should be varied to bring it forward.
97

THOMPSON, Paul Neil - CCA, 30.3.99
FALCONER, Terry Wallace
Citation: R v Thompson & Falconer [1999] NSWCCA 50
Sentence appeals.
Manufacture commercial quantity methylamphetamine; manufacture commercial quantity Tetrahydrocannabinol (THC).
Thompson - MT 6y, AT 2y (on methylamphetamine count); MT 8y, AT 2y 8m (on THC count).
Falconer - MT 8y, AT 2y (on each count).
Thompson pleaded guilty to Methylamphetamine charge, not guilty to THC charge; Falconer pleaded not guilty to both counts.
Well planned manufacturing operation. Had it been completed, applicants would have made a lot of money. Neither applicant had any significant criminal history. Thompson considered the more intelligent & it was thought he played the main role. Falconer suffered from chronic depression, had made a number of suicide attempts, including an attempt during trial. Falconer an amphetamine user - portion of the manufacture to be retained for his own use.
Sentences manifestly excessive.
Appeals allowed: both resentenced to: Count 1 - MT 5*y, AT 1y 10m. Count 2 - FT 4*y.
98

SMITH, Brendon James - CCA, 12.3.99
Citation: R v Smith [1999] BSWCCA 45
Sentence appeal.
Aggravated robbery - guilty plea.
MT 2y, AT 2y.
Applicant robbed a man at an ATM machine. Both had been drinking heavily. An argument developed, victim knocked to ground & applicant stomped on his face, causing fracture of the cheekbone, the orbital floor & the nasal bone. Applicant went through victim's pockets & took his money. Applicant alleged victim had made some slur about his Aboriginality & victim struck the first punch.
Aboriginality - youth - troubled upbringing - problem with drugs & alcohol - lengthy history of prior offences, some with violence - encouraging rehabilitation prospects - remorse - future employment - undertaken courses to increase his literacy, numeracy & communication skills as well as having already completed other courses.
Error of fact by judge - credit given for pre-sentence custody & period in rehabilitation centre - sentences otherwise appropriate.
Appeal allowed in so far as to backdate sentences.
99

LAWLER, Andrew Ross - CCA, 3.3.99
Citation: R v Lawler [1999] NSWCCA 17
Conviction appeal.
1 x sexual intercourse without consent.
MT 18m, AT 2*y.
Judge alone trial.
Crown case was that complainant was asleep when she woke to find someone having sexual intercourse with her. Other males were in the room. She struggled, kicked & called out. The males left the room. Complainant came out in a hysterical state, spoke to her flatmates then her parents came & took her away. She said she did not consent to sexual intercourse.
Unsafe & unsatisfactory - questions of credibility - lack of consent - nature & extent of judge's reasons - contrast with comments to jury - allegation of judicial bias or prejudice - when inappropriate.
Appeal dismissed.
100

DSA - CCA, 8.3.99
Citation: R v DSA [1999] NSWCCA 35
Conviction appeal.
3 x carnal knowledge (of his sister).
18m PD.
Verdict of not guilty directed on 2nd count; found guilty on count 1 & not guilty on count 3.
Alleged offences occurred when complainant was 13 to 14 & appellant was 20 to 21. The offences were alleged to have occurred within a few days of each other. The complainant was the 3rd youngest of 8 siblings.
Verdicts - inconsistency. Admissions - complaint evidence - credibility - corroboration - directions - unsafe & unsatisfactory.
Appeal allowed: verdict of acquittal entered on 1st count.
101

EID, Nasrat - CCA, 29.3.99 - 46 NSWLR 116
AWADI
, Tawfic
EL-CHAMI, Mahmoud
Citation: R v Eid & Ors [1999] NSWCCA 59
Appeal against interlocutory judgement.
A warrant had been issued to certain police officers under Listening Devices Act 1984 for purpose of investigating alleged 'offence of conspiracy to defraud, where the conduct constituting the offences involved serious loss to the revenue of New South Wales'Conversations recorded pursuant to the warrant. The alleged conspiracy was an agreement to avoid payment of tobacco licence fees. When charges came before the LC for committal proceedings, the Crown intimated it proposed to rely on recorded conversations pursuant to the warrant. Objection was taken on the ground that the warrant was invalid & hence evidence inadmissible. The Magistrate upheld prosecution submissions that the warrant was valid upon the basis that the offence described in it was a prescribed offence.
Listening device warrant - criminal offence dependent on invalid statute - effect on validity of warrant - s.5F Criminal Appeal Act 1912 - interlocutory judgement - nature of ruling that warrant valid.
Appeal allowed: Court held that warrants were invalid.
102

ERNST, Jason Sidney - CCA, 14.4.99
Citation: R v Ernst [1999] NSWCCA 84
Sentence appeal.
Assault with intent to rob.
4y head sentence (no MT or AT stated in decision).
Circumstances of aggravation - use of beer bottle in attack - element of pre-meditation in that applicant had the woman under surveillance whilst travelling on a train, followed her & ultimately attacked her. Victim suffered a number of minor physical injuries, although psychological terror has remained with her.
Matters raised on appeal: complaints about applicant's lawyers inhibiting him from pleading guilty at earliest opportunity - recognition that alcohol & drugs a significant problem in his life, seeking to address the problem - father a retired prison officer, hence applicant classified as in need of protection.
Appeal allowed: resentenced to MT 2y 3m, AT 9m.
103

MORRIGAN, Sarai - CCA, 14.4.99
Citation: R v Morrigan [1999] NSWCCA 85
Sentence appeal.
2 x supply heroin.
MT 2*y, AT 1*y.
Applicant & her sister involved in a joint criminal enterprise. Applicant's sister charged with 3 counts & received MT 3*y, AT 2y.
Both sisters addicted to heroin - both made full admissions upon arrest, full co-operation & substantial assistance to police to their own cost - have each been threatened & both forced to serve sentence in segregation.
Applicant had no priors - played a lesser role than her sister - the sister had a criminal record.
Sentencing judge found special circumstances. Both had their sentences discounted by 2y for assistance.
Sentence excessive.
Appeal allowed: resentenced to aggregate MT 1*y, AT 1y 2m.
104

McKENDRICK, Bradley John - CCA, 16.4.99
Citation: R v McKendrick [1999] NSWCCA 87
Sentence appeal.
Accessory before the fact to robbery.
MT 2y, AT 8m.
Judge alone trial.
The robbery took place upon a public street when a female employee of a Mobil service station at Ashfield was on the way to the bank with a little under $5,000 in takings. The applicant was the manager of a similar facility at Burwood, hence able to give information to co-offenders as to the likely amount of money that was being taken to the bank, the address of the bank, the expected times of arrival & other information which would enable the crime to be carried out. One of the co-offenders was charged with accessory before the fact & received a much lesser sentence.
Applicant had no significant past record, whereas co-offender had a considerable record & at the time of the above offence was before the courts for matters of some seriousness.
Parity.
Appeal allowed: resentenced to MT 18m, AT 6m.
105

MORROW, Jason Paul - CCA, 10.3.99
Citation: R v Morrow [1999] NSWCCA 64
Crown appeal.
1 x sexual intercourse with person under 10 (9y) - guilty plea.
The plea of guilty was accepted in full discharge of the indictment (the respondent having pleaded not guilty to 3 x sexual intercourse with person between 10 & 16 (10y) & 1 x aggravated indecent assault).
5y GBB conditional upon respondent being placed under supervision & guidance of NSW Probation & Parole Service & undertaking medical & psychological therapy & treatment as advised by his probation officer or professional adviser. Respondent has honoured the terms of this recognizance.
Sentence manifestly inadequate.
Appeal dismissed.
106

RAVET, Shane - CCA, 10.3.99
Citation: R v Ravet [1999] NSWCCA 63
Sentence appeal.
2 x robbery in company; 1 x escape lawful custody; + 11 offences taken into account (relating to obtain advantage by deception & use of stolen credit card).
For the escape charge he received a FT of 6m. It was only against this sentence that the applicant appealed.
The escape occurred shortly after the applicant appeared at the Central LC for sentence on a charge of stealing. He was in the police van conveying prisoners to gaol. The van called in at the Darlinghurst cell complex to take other prisoners on board. The applicant managed to open the door, get out of the van & run off. He was wearing handcuffs at the time & was recaptured shortly thereafter.
When interviewed, he said he had not planned the escape but had done so instinctively. He said he just pushed the doors & they opened. He also said his mental state was not normal because he had been given medication by prison authorities to assist him to control his drug problem.
Appeal allowed in relation to escape lawful custody charge: resentenced to FT 4*m.
107

ROHRICK, Gregory Luke - CCA, 10.3.99
Citation: R v Rohrick [1999] NSWCCA 58
Sentence appeal.
Steal from the person.
MT 3y, AT 2y (special circumstances found).
Sentence at the upper end of the range.
The applicant was in the Commonwealth Bank at Blacktown. He observed the victim, who had her 4 children with her, withdraw $700 in cash from the ATM in the foyer of the bank. He followed her from the bank & grabbed her bag. The victim's 11 year old son grabbed the bag which the applicant was carrying & swung the applicant around. Her 14 year old daughter began hitting him. The applicant put his hand in his pocket & a knife fell out. He then ran off, was pursued by a number of observers & was eventually apprehended & taken to the police station. He denied using a knife & denied being in possession of a knife.
Admissions & the use of evidence concerning the knife - sentence manifestly excessive.
Need for extensive supervision.
Appeal allowed in so far as sentence varied to comprise MT 2*y, AT 2*y.
108

SORENSEN, Michael Christian - CCA, 12.4.99
Citation: R v Sorensen [1999] NSWCCA 79
Sentence appeal.
1st indictment: receiving; + Form 1 matter of being conveyed in a stolen vehicle.
2nd indictment: armed robbery.
3rd indictment: armed robbery.
MT 3y, AT 1y. Pre-sentence custody taken into account.
Applicant was in custody in respect of unrelated offences at the time of sentencing.
Offences on 2nd & 3rd indictments occurred in similar circumstances - applicant successfully attempted to hold up a video store in each case - each video store was operated by a woman & a knife was used to threaten each of them. Applicant was arrested & spent 9m 1w in custody awaiting trial.
Appealed that sentence excessive.
Appeal dismissed.
109

THOMAS, Bruce Malcolm - CCA, 13.4.99
Citation: R v Thomas [1999] NSWCCA 68
Conviction appeal.
Count 1: AOABH;
Count 2: GBH with intent to murder;
Count 3: (in the alternative to count 2) inflict GBH with intent to do GBH.
Found guilty on counts 1 & 2 - sentenced to 4y on 1st count & 15y on 2nd count.
Crown case partly dependent upon alleged admissions to police - subsequent evidence by police officer at Royal Commission that appellant had been verballed - whether miscarriage of justice.
Fresh evidence - whether significant possibility that jury would have acquitted.
Appeal allowed: verdicts of acquittal entered.
110

CAMPBELL, Graham Anthony - CCA, 12.4.99
Citation: R v Campbell [1999] NSWCCA 76
Sentence appeal.
Maliciously inflict GBH - guilty plea. 2 matters on a Form 1 also taken into account (drive unregistered MV, drive uninsured MV).
MT 1y, AT 2y (special circumstances found).
Applicant aged 20 at time of offence - had been at a birthday party at Caves Beach - the party concluded about 1.00 am - affected by alcohol and drugs (marijuana & heroin) at the time. Party goers drifted to a car park. A fight broke out between applicant & victim who was also well affected by alcohol. They were separated by friends & subsequently shook hands. A 3rd person offered both men a lift home. Whilst travelling in the car, the applicant repeatedly struck the victim on the head with a tyre lever or steel rod then pushed him from the vehicle. Applicant claimed victim had provoked the attack by striking him in the face with his elbow. Driver of the car did not support this assertion. Victim suffered fractures, including a skull fracture, & multiple scalp lacerations.
Rehabilitation - contrition - appropriate weight to guilty plea - close to 'worst class of offence'under s.35(b) - general deterrence.
Appeal allowed: resentenced to MT 2m 25d, AT 18m.
111

TIKAS, Constantinos - CCA, 14.4.99
Citation: R v Tikas [1999] NSWCCA 83
Sentence appeal.
Set fire to premises.
Publish false statement.
9m.
A verdict of acquittal was directed on the set fire to premises charge; applicant convicted on the publish false statement charge. The applicant & his co-accused submitted a claim upon an insurance company for various items of equipment which had perished in the fire & overstated the value of that equipment (claim in the order of $60,000).
Strong subjective features - applicant 49 years old - in receipt of disability pension - prior good character - offence occurred at time of break-up of his marriage - living in boarding houses since marriage break-up - not likely to re-offend.
Sentence excessive, sentencing judge overlooking certain relevant matters - error in refusing adjournment to explore applicant's suitability for home detention - medical condition - delay in matter coming to trial.
Appeal allowed: resentenced to FT 4m 20d.
112

QUINLAN, Ralph Reynold - CCA, 12.4.99
Citation: R v Quinlan [1999] NSWCCA 70
Sentence appeal.
1st indictment: 2 x armed robbery; 1 x attempt armed robbery; + 5 offences of steal MV & 1 escape from lawful custody taken into account.
2nd indictment: 3 x assault (which had occurred at a prison farm).
MT 97, AT 5y.
Aboriginal background - prior record.
Special considerations - insufficient weight for guilty plea - rehabilitation prospects - Aboriginality - assistance to authorities.
Totality - subjective matters - proper weight.
Appeal allowed: resentenced to MT 6y, AT 3y.
113

CHI WAH HO - CCA, 9.4.99
Citation: R v Chi Wah Ho [1999] NSWCCA 67
Sentence appeal.
Possess commercial quantity heroin (17 kg pure heroin). Guilty plea.
14y with NPP of 9y.
Applicant a Hong Kong national who entered Australia as a visitor on 17.7.97 & booked into a Sydney hotel. About the same time, heroin was imported into Australia concealed in marble furniture & after being cleared through Customs was delivered to premises in Concord. The consignee of the furniture had made the necessary Customs arrangements & took delivery of the furniture at those premises, then left the country. The premises were kept under observation, as was the applicant. He made 3 trips to the premises. On the 3rd trip, he removed the furniture from the crates & broke it up. Police later entered the premises & found a purple sports bag they had observed him taking there & 2 plastic bags in a cupboard. All were found to contain heroin. The contents were removed. Flour & a small quantity of heroin were substituted. The bags were eventually collected by some other person who was subsequently arrested. The applicant was then arrested in his hotel room. $10,000 in cash was found in his jacket, as well as a crowbar, hammer, screwdriver & pliers in his room.
Sentence manifestly excessive - error in finding appellant 'somewhere between a courier & a warehouser'- insufficient weight placed on guilty plea - remark that offence committed for greed.
Appeal dismissed.
114

MORAN, John Thomas - CCA, 23.4.99
Citation: R v Moran [1999] NSWCCA 92
Conviction appeal.
Malicious wounding with intent to do GBH; assault.
The victim had been drinking with some friends at a hotel for some time. One of his friends gave him some money to buy drinks, then went to the toilet. The victim approached the bar which was congested with people & whilst there he felt a sharp pain in the left side of his midriff area. He suffered substantial injuries & underwent an operation for stab wounds to the abdomen & chest. Unable to identify anyone from photographs shown to him by police & had previously asserted in an aborted trial that the accused was not the person who attacked him. The Crown did not lead this evidence in the subsequent trial but relied upon evidence of 2 men who worked at the hotel who identified the appellant as the assailant. Applicant's counsel tried to elicit from the victim as to whether he recognised the applicant as the person who had assaulted him. The Crown objected to 'any attempt to make an identification'& the judge disallowed the question.
Erroneous rejection of evidence excluding appellant as assailant.
Appeal allowed: new trial ordered.
115

STEVENS, Skeeve - CCA, 15.4.99
Citation: R v Stevens [1999] NSWCCA 69
Sentence appeal.
'Computer hacker'(insertion of data intentionally, without authority and maliciously); + 8 additional offences taken into account. Guilty plea.
3y with NPP 18m.
Applicant utilised another's account & password to access a file which controlled the appearance & content of AUSNet Services P/L's home page. He then proceeded to alter the information contained therein to display a permanent & prejudicial message.
Conscious malice - intent to cause significant harm - not an isolated incident - offences regarded as grave - general deterrence.
Married - personality disorder - supportive psychotherapy - prior computing offence - not previously imprisoned.
Severity of sentence.
Appeal dismissed.
116

SCHREI, Johann - CCA, 9.4.99
Citation: R v Schrei [1999] NSWCCA 74
Sentence appeal.
Escape from lawful custody.
6m.
At time of escape applicant (an Austrian) serving a sentence for importing trafficable quantity of heroin. The applicant & fellow prisoner (Austrian) escaped by cutting a hole in a perimeter fence & made their way into the city & left by bus, eventually arriving in Darwin. The fellow prisoner bought a boat & they both left Australia in the boat. After encountering a cyclone & making an emergency landing in Indonesia, they managed to obtain travel documents & flew to Singapore. The applicant then travelled by bus to Thailand & joined his wife (Thai national) & 2 young children. He was arrested in Bangkok by Thai Immigration officers for immigration offences. 3 months later he was arrested on a provisional warrant pending Australia's formal request for his extradition & held in custody in Thailand until a fresh extradition application had been obtained under the 1911 Treaty (signed in 1911 between the King of Thailand & the King of England). He was eventually extradited to Australia. In all he was held in a Thai prison for 13* months awaiting the extradition.
Insufficient allowance for time spent in Thai gaol - severity of sentence.
Appeal allowed on escape charge in so far as to vary starting & finishing dates.
117

FERNANDO, Vester Allan - CCA, 14.4.99
FERNANDO, Brendan
Citation: R v Fernando & Anor [1999] NSWCCA 66
Conviction and sentence appeal.
Brendan Fernando: murder; aggravated sexual assault.
Vester Fernando: murder; assault with intent to have sexual intercourse without consent in circumstances of aggravation.
Each received natural life.
Worst type of case.
Crown case that appellants abducted deceased (a nurse on duty at Walgett District Hospital), sexually assaulted her & then murdered her.
Confessions & admissions - voluntariness - hostile witness - unreliability of witness - hearsay evidence - failure to call witness - reopening of Crown case - common purpose - comment of accused not giving evidence - separate trials - cross-examination by co-accused - unsafe & unsatisfactory.
Conviction appeals dismissed.
Sentence appeals dismissed.
118

JB - CCA, 27.4.99
RJH
Citation: R v JB, R v RJH [1999] NSWCCA 93
Sentence appeal.
Felony murder.
JB - MT 11y, AT 5y.
RJH - MT 12y, AT 6y.
Victim was walking home from work near Metford Railway station through a parkland near the vicinity of a bridge over a small creek. The co-offenders robbed him of his wallet & attacked him in a brutal manner with a rock weighing approx 2 kgs. He sustained severe head injuries, including multiple fractures to his skull. His wife & daughter found his body the following morning.
Circumstance of aggravation.
De Simoni principle - whether sentence manifestly excessive - proportionality of sentences - objective gravity - guilty plea - assistance to authorities - special circumstances - Aboriginality - youth - intellectual disability - deprived socio-economic background - weight to be given to special circumstances - prospects of rehabilitation.
Appeal dismissed.
119

RGG - CCA, 28.4.99
Citation: R v RGG [1999] NSWCCA 81
Conviction appeal.
2 x sexual intercourse without consent with girl under 16.
Complainant said she was 5 years old when the offences occurred. She claimed her friend's father was the perpetrator of the offences.
Delay - credibility - conflicting evidence - young age of complainant at time of alleged offences.
Whether verdict should be set aside on ground that it was unreasonable or could not be supported having regard to the evidence - matters taken into account - whether verdict of acquittal should be entered in lieu.
Appeal allowed: verdict of acquittal entered.
120

McGARRITY, Kevin Robert Douglas - CCA, 14.4.99
Citation: R v McGarrity [1999] NSWCCA 73
Sentence appeal.
2 x larceny as a servant - guilty plea.
5y with a NPP of 1y 3m.
Salesman of a tobacco company. Turned over the contents of a truckload of tobacco products to a man for which the applicant received $30,000.
Priors - multiple offences of significant dishonesty - gambling problem - guilty plea.
Insufficient weight given to gap of 13 years which had elapsed since applicant had committed any offence - surrender to authorities - sentencing judge's finding concerning gambling to a large extent speculative.
Desirability of parole supervision - reapportionment of MT & AT.
Appeal allowed: resentenced to MT 3y 3m, AT 1y 9m.
121

HN - CCA, 14.4.99
Citation: R v HN [1999] NSWCCA 72
Sentence appeal.
(a) Assault with intent to rob with wounding (armed) - MT 3y 3m, AT 2*y.
(b) Assault with intent to rob in circumstances of aggravation - MT 6m, AT 2*y cumulative upon sentence for (a).
Applicant grabbed school student in headlock at train station & demanded his wallet & keys. He stuck a knife into the back of the student's neck & held it there for 5 minutes. Victim suffered a wound to the back of the neck & lacerations to the hand. While on bail, applicant stepped in front of a person & demanded his wallet. When the victim tried to pass, the applicant struck a blow to his head & threatened him. Two plain clothes police officers in the area then arrested the applicant.
Aged 14 at the time - priors for armed robbery - not previously imprisoned - high degree of culpability - sentence according to law - serious offences - availability of rehabilitation programmes - lack of remorse - failure to grasp seriousness of offences.
On appeal: sentences excessive.
Appeal dismissed.
122

MUIR, Jonathan Paul - CCA, 12.4.99
Citation: R v Muir [1999] NSWCCA 71
Sentence appeal.
7 x BE&S; 1 x B&E with intent.
Guilty plea at Albury DC to above counts. Released on condition bail - committed a further offence of BE&S on the same day - guilty plea.
MT 4y, AT 1y 4m.
Aged 21 - priors including multiple BE&S, burglary, theft, receiving - previously imprisoned.
Juvenile co-offender.
On appeal, applicant claimed to be under the influence of heroin & sleeping tablets at the time of the offences.
Parity - separation from son during early years of son's life.
No particular point of principle
Appeal dismissed.
123

DEVERELL, Craig - CCA, 8.3.99
Citation: R v Deverell [1999] NSWCCA 46
Sentence appeal.
Breach of recognizance.
MT 9m, AT 15m (finding special circumstances).
Originally found guilty of BE&S. Aged 18 years. Sentence deferred upon him entering into recognizance to be of good behaviour for 3y. Two other matters taken into account. A condition of the recognizance was that he was to stay at 'New Beginnings Mission'& not leave without leave of the court, also to subject himself to supervision of NSW Probation Service. Applicant stayed there for about 3 months - was under suspicion for theft & was asked to leave. He had absented himself from the mission on a number of occasions & had used cannabis & alcohol. Returned to live with parents for short time. Notified his parole officer. He was admitted into another rehabilitation establishment - asked to leave because of using cannabis. He contacted his probation officer & arrangements made for him to enter another rehabilitation establishment. Remained there for about 3 days before being asked to leave because of smuggling in tobacco. Returned to parents' home & remained there until Probation Service took action in relation to the various breaches of his recognizance.
No error in sentencing.
Appeal dismissed.
124

BURNS, Stephen John - CCA, 16.4.99
Citation: R v Burns [1999] NSWCCA 88
Sentence appeal.
Aggravated armed robbery; possess shortened firearm; Form 1 - AOABH, malicious damage, larceny of MV.
MT 8y, AT 4y (special circumstances found).
'Home invasion'type offence. Victim awoken by knock on door in early hours of morning. Applicant at the door with shortened firearm. He demanded drugs. Victim told him he had none. Applicant pushed victim in chest with gun & hit him on the head several times. Victim taken to several rooms of the house at gun point as applicant collected valuables. Further threats & assaults occasioned. In the course of events, the rifle discharged & applicant then left. Value of property stolen $3,000.
Victim able to identify applicant.
Aged 22 - guilty plea - co-operated with authorities - priors for drug offences, malicious damage, assault.
Severity of sentence.
Appeal dismissed.
125

BAYEH, Louis - CCA, 20.4.99
Citation: R v Bayeh [1999] NSWCCA 82
Sentence appeal.
Attempt pervert course of justice.
MT 2y, AT 2y.
False affidavit submitted in relation to discharge of firearm offence. Applicant had falsely sworn that a person who was overseas at the time had discharged the firearm. Evidence later withdrawn. Plea of not guilty changed to plea of guilty.
Serious offence with high degree of criminality.
Aged 39 - priors including property offence, violence.
Royal Commission transcript tendered by defence counsel adverse to applicant. Contents of transcript adverse to applicant.
Appeal dismissed.
126

CHAN, Yat Ping - CCA, 29.4.99
Citation: R v Chan [1999] NSWCCA 103
Crown appeal.
Supply heroin; supply trafficable quantity heroin; supply commercial quantity heroin; knowingly take part in supply of large commercial quantity heroin.
Aggregate MT 3*y, AT 2y.
Supplies to police undercover operatives. Respondent the directing party - aged 43. Both he & his wife involved in mixing, cutting, scraping & compressing powder into blocks of heroin. Heavy user of heroin. Wife in gaol - three children cared for by applicant's 70 year old mother - fourth child of 19 months in prison with wife. No priors.
Discount for assistance - family hardship - deterrence - parity.
Sentence manifestly inadequate.
Appeal allowed: resentenced to new aggregate of MT 5y 9m, AT 2y 9m.
127

SALEAM, James - CCA, 27.4.99
Citation: R v Saleam [1999] NSWCCA 86
Application for interlocutory orders seeking production of documents from DPP and Commissioner of Police; application for leave to appeal against order refusing permanent stay of proceedings.
Malicious damage to property (set fire to motor vehicle).
MT 6m, AT 18m.
Judge alone trial.
Claimed at trial that former wife had induced him to commit the offence at the instigation of the police. No such evidence.
Legitimate forensic purpose applied - R v Saleam (1989) 15 NSWLR 14;
Exclusion of prosecution evidence on public policy grounds - R v Ridgeway (1995) 184 CLR 19;
'On the cards'test not satisfied - Alister v R (1984) 154 CLR 404.
Applications dismissed.
128

GAVRANOVIC, Rafael - NSW SC, Newman J, 12.3.99
Reasons for Verdict
Murder.
Plea of not guilty. Defence of mental illness. Killing of tourist near Kings Cross. Defendant suffering from paranoid schizophrenia at the time - delusional - auditory hallucinations. Struck victim on the back of the head with blunt end of a tomahawk blade. The deceased fell to the ground. The accused then struck him 6 times with the sharp end of the tomahawk blade & proceeded to kick him.
Special verdict - not guilty by means of mental illness - s.39 Mental Health (Criminal Procedure) Act.
Note: Helpful outline by Justice Newman of both the law relating to mental illness defence & procedures followed by the Mental Health Review Tribunal following a conviction.
129

DJT - CCA, 24.2.99
Citation: R v DJT [1999] NSWCCA 22
Conviction appeal.
Count 1: indecent assault upon female under 16; Count 2: indecent assault upon female under 16; Count 3: use offensive weapon with intent to commit assault; Count 4: carnal knowledge of stepdaughter; Count 5: indecent assault upon female under 16.
Jury returned verdicts of guilty on counts 1, 2 & 5; not guilty on counts 3 & 4.
Complainant born in 1970. Mother & father separated when she was about 2 years old. Mother began relationship with appellant. Evidence from complainant that she was about 5 years old when appellant began entering her room late at night. Various sexual activities took place. Complainant gave evidence that such events took place close to 4 or 5 times a week & that appellant threatened to kill her or her mother if she told anybody.
Count 5, said to have occurred in 1984, brought pursuant to s.61E(1) Crimes Act. At the time of the alleged offence s.78 (now repealed) provided that prosecutions for such an offence to commence within 12 months of date of offence if complainant aged between 14 & 16.
Complaint evidence - fabrication of evidence - credibility - inconsistency in verdicts.
Appeal allowed only with respect to count 5: conviction quashed:
Appeal dismissed on all other counts.
130

TROTTER, Gary Frederick - CCA, 30.4.99
Citation: R v Trotter [1999] NSWCCA 90
Conviction appeal.
Supply methylamphetamine (deemed supply).
MT 1*y, AT 6m.
Premises where appellant lived together with 3 others (one a child) were searched with his consent. Heroin was found in a plastic bag under a cushion in the living room. When asked about it, appellant said it was his & identified it as heroin. A plastic bag containing methylamphetamine was found at the base of a pot plant. When asked, appellant said it was 'speed'He said it was his & the heroin belonged to another person. Later at the police station, when told the methylamphetamine weighed over 3 grams & attracted the deeming provision, he said the 'speed'was not his but the heroin was. An ERISP followed during which he admitted the white powder was heroin & said it was for his own use. He acknowledged telling police earlier that the 'speed'belonged to him but said he had done this because he thought he would be less likely to be charged for it than for the heroin.
Sufficiency of directions in relation to possession - sufficiency of directions concerning evidence of appellant - whether trial judge erred in directions concerning extent to which Crown could rely on inferential & indirect evidence - whether verdict unreasonable.
Appeal dismissed.
131

HENRY, Paul Anthony - CCA, 12.5.99 - 46 NSWLR 346; 106 A Crim R 149
BARBER
, Stephen Anthony
TRAN, Hoai Vinh
SILVER, Troy David
TSOUKATOS, Theo
KYROGLOU, Bill
JENKINS, John David
Citation: R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111
GUIDELINE JUDGEMENT FOR ARMED ROBBERY
Appropriateness of promulgating guidelines - increased incidence of offence - inconsistency & systematic leniency - appropriateness of custodial sentence - common type of offence - starting point or sentencing range - role of drug addiction in sentencing exercise - use of crime statistics - use of new material in sentencing appeal - particular offences.
Starting point of 4 to 5 years where particular common factors are present.
132

SILVER, Troy David - CCA, 12.5.99
Citation: R v Silver [1999] NSWCCA 108
Crown appeal.
1 x aggravated armed robbery - guilty plea.
MT 6m, AT 2*y.
In the company of 2 others, respondent robbed service station proprietor of cash. Respondent held a replica pistol to victim's head & struck him with the pistol.
Aged 24 years - Aboriginal - drug & alcohol problems - minor criminal history - undergoing rehabilitation.
Failure to give reasons for finding of 'special circumstances'- double jeopardy.
Appeal dismissed.
133

TRAN, Hoai Vinh - CCA, 12.5.99
Citation: R v Tran [1999] NSWCCA 109
Crown appeal.
1 x armed robbery - guilty plea; supply prohibited drug & goods in custody taken into account on a Form 1.
3*y s.558 recognizance.
Respondent & 2 co-offenders robbed a video store attendant of cash. The offenders wore balaclavas & the respondent produced a replica pistol.
Aged 18 years - minor criminal history including firearms & drug offences - offence committed whilst on probation & a recognizance - undertaking rehabilitation - assistance to authorities in giving evidence against co-offenders.
Appeal allowed: MT 2y, AT 1*y.
134

HENRY, Paul Anthony - CCA, 12.5.99
BARBER, Stephen Anthony
Citation: R v Henry & Barber [1999] NSWCCA 107
Crown appeal.
Henry: 1 x armed robbery; 1 x robbery in company - guilty plea - MT 1*y, AT 4y.
Barber: 1 x robbery in company - guilty plea - MT 1y 3m, AT 3y 9m.
In relation to armed robbery offence, respondent Henry robbed a service station attendant of money, threatening victim with knife. In relation to robbery in company offence, both respondents robbed a lone shop assistant of money. Henry threatened victim with a knife.
Henry aged 23 - convictions for drug & dishonesty offences - on bail for 1st robbery offence at time of second robbery & subject to a recognizance at time of both offences - heroin addiction.
Barber aged 19 - convictions for firearms & dishonesty - subject to recognizance at time of offence - heroin addiction.
Failure to give reasons for finding 'special circumstances'- totality.
Appeal allowed: resentenced - Henry: On each offence - MT 3*y, AT 2y.
Barber: MT 3y, AT 2y.
135

KCW - CCA, 12.5.99
Citation: R v KCW [1999] NSWCCA 112
Conviction appeal.
Counts 1 & 2: indecent assault (upon female under 16) - guilty verdict.
Count 3: rape - not guilty verdict.
Count 4: indecent assault - not guilty verdict.
MT 18m, AT 18m on 1st count; concurrent FT 15m on 2nd count.
Complainant on all 4 counts was the same female - appellant the complainant's uncle (brother of complainant's mother).
First offence said to have occurred on complainant's 4th birthday; 2nd offence allegedly when complainant aged between 7 & 9; 3rd offence allegedly when she was 20; 4th offence allegedly when she was 35.
Corroboration - direction to jury - onus of proof - motive to lie - falsification of evidence - verdict unreasonable or not supported on evidence - evidence by adult of childhood events given after long delay.
Appeal allowed: judgement of acquittal entered.
136

STEPHENS, Patrick James - CCA, 22.4.99
Citation: R v Stephens [1999] NSWCCA 80
Sentence appeal against s.13A determination..
Appellant sentenced to life imprisonment in 1987 for the murder of his wife.
At s.13A determination, resentenced to MT 16y, AT 6y.
Applicant placed cyanide into an Orthoxicol capsule & gave it to his wife (a Malaysian woman) who was complaining of a headache, then set about preparing dinner & approximately half an hour later 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.
Appellant a model prisoner - excellent prison record - undertaken & completed courses in computers, mathematics, Spanish & tutor training - attended weekly Bible study courses - undertaking Christian education course.
Error in finding appellant unable to show any contrition - insufficient weight given to guilty plea - failure to give sufficient weight to rehabilitation - sentence manifestly excessive.
Appeal dismissed.
137

McDONNELL, Noel - NSW SC, Smart AJ, 11.5.99 - 107 A Crim R 151
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
On 10.9.77 sentenced to life imprisonment.
Victim & his wife walking home, both highly intoxicated, the victim abusing his wife in obscene terms. The applicant remonstrated with the victim for swearing at the woman. The victim hit the applicant. The applicant retaliated & hit the victim twice in the face.
Two eyewitnesses claimed to have seen the applicant kick the victim once the victim was on the ground. This the applicant denied. The applicant had been drinking heavily on the day of the killing.
Unusual features in that applicant released on licence pursuant to s.463 Crimes Act in 1983 & remained at large until his arrest in 1998, his licence having been revoked by the Parole Board on 30.7.98. Catalyst for Board's action was his conviction for assault in Albury Local Court on 25.6.98, the imposition of a 150h CSO & his breach of that order.
Appeal allowed: resentenced to MT 16y, AT 10y.
138

VELEVSKI, Ljube - CCA, 10.5.99
Conviction appeal.
4 x murder.
Victims were appellant's wife, daughter aged 6 years & twin daughters aged 3* months.
Bodies found in main bedroom, stacked one on top of the other, starting with the twins, then the older daughter & finally the mother on top of them. All had had their throats cut. The bedroom door was locked from the inside. Appellant denied killing them, claimed to have been asleep in his older daughter's bedroom for some 16 hours. No sign of break-in. One contention that wife had killed the children then committed suicide.
Whether verdicts of guilty of murder unreasonable & not supported by evidence - directions regarding circumstantial evidence - directions on lies - directions in relation to onus of proof - verdict unsafe & unsatisfactory.
Appeal dismissed.
139

POLANSKI, Rafal - NSW SC, Wood CJ at CL, 5.5.99
Citation: R v Polanski [1999] NSWSC 433
Fitness to plead.
Murder.
Judge alone.
Crown alleged accused struck victim on head several times with fire extinguisher, stabbed him in the back, ransacked the flat & stole several items. In an ERISP accused admitted striking deceased but claimed he was intoxicated & was fearful of being raped by the deceased. Prior to attack, he said deceased had played pornographic video depicting homosexual conduct between males & offered him $50 in return for oral sex.
Aged 24 - socially maladjusted - gloomy loner - deficiency of moral & social feelings of a psychopathic kind - delusional - evidence by work mates as to odd & disorganised behaviour - bizarre letter sent to mother in Poland - long-standing history of abnormal behaviour - was a difficult child - lack of concentration at school - heavy drug & alcohol user - obsessed with fact that he did not have a girlfriend. At age 18, admitted himself into psychiatric hospital in Poland - complaints of anxiety, nightmares, fears, self-destructive feelings - struck up friendship with older drug user - eventually discharged himself, leaving the hospital with that person.
Held: unfit to be tried at the moment - matter referred to the Mental Health Review Tribunal.
140

SALAMA, Ray - CCA 10.5.99
Citation: R v R Salama [1999] NSWCCA 105
Conviction and sentence appeal.
(a) Maliciously discharge firearm with intent to do GBH - not guilty verdict.
(b) Fired firearm with disregard for safety of another (in the alternative) - guilty verdict.
2y PD.
Husband & wife living in same house but in separate bedrooms. The night of the shooting, appellant claimed to have been woken by a noise like 'sliding doors, sliding windows forced open'He armed himself with a .22 rifle, went upstairs & entered wife's bedroom. He claimed to have tripped in the bedroom, resulting in the gun discharging. His wife suffered a head wound. Appellant said he was a member of the Wakehurst Park Clay Pigeon Shooting Club, hence his ownership of the rifle.
The family had suffered a number of intrusions in the past & the appellant claimed this was uppermost in his mind when he heard the noise.
Inconsistent verdicts - warning to jury - question by jury unanswered prior to verdict.
Appeal allowed: verdict of acquittal entered.
141

PERRETT, Anthony Charles - CCA, 15.4.99
Citation: R v Perrett [1999] NSWCCA 115
Crown appeal.
1 x robbery.
3y GBB.
Victim a pizza delivery person delivering an order to premises in Cherrybrook. At the driveway to the premises, he was met by respondent and co-offender who had entered from an adjoining reserve. The co-offender demanded that victim hand over his bag containing $120, then forced the victim to the ground, pushing his right shoulder. Respondent, wearing a balaclava & in possession of a cricket bat, stood some distance away. After the robbery, the respondent & co-offender fled into the adjoining reserve.
Respondent readily admitted his guilt - fully co-operated with police - appeared remorseful regarding his actions.
Sentencing - trial judge's discretion - mitigating factors.
Inadequacy of sentence.
Appeal dismissed.
142

BREHOI, Nicolas - CCA, 11.5.99
Citation: R v Brehoi [1999] NSWCCA 113
Application for extension of time to appeal against conviction. (Applicant appearing on his own behalf.)
1 x supply commercial quantity heroin; 4 x supply heroin.
Guilty pleas. Offences were contained in 3 indictments.
Sentenced in respect of all of the offences to a total of 6*y, comprising MT 4y, AT 2*y. The MT was to commence on 2.12.93, thus has long since expired & the AT has substantially expired.
Time provided to appeal to CCA - principles for grant of extension of time.
Application for extension of time refused.
143

GEORGIOU, Constantinos - CCA, 25.5.99
Citation: R v Georgiou [1999] NSWCCA 125
s.5F application for leave to appeal against refusal to order separate trials.
Applicant charged upon a joint indictment for 3 counts of murder & 1 count of attempted murder.
Three deceased all members of the Bandido Outlaw Motor Cycle Club. Applicant a member of the Rebels Outlaw Motor Cycle Club, the co-accused an associate of the applicant & a former member of that club. Applicant & co-accused acted in concert from beginning to end. The deceased were killed by gun shot wounds, the shooting taking place in a basement of the Black market Caf* which is not open to the public.
Relevant principles for determining application for separate trial found in R v Middis (NSW SC, Hunt J, 27.3.91). Open to trial judge to find evidence against applicant not significantly weaker than against co-accused.
Leave to appeal refused.
144

KYROGLOU, Bill - CCA, 12.5.99
TSOUKATOS, Theo
Citation: R v Kyroglou & Tsoukatos [1999] NSWCCA 106
Crown appeals.
Kyroglou: BE&S - FT 6m; accessory after fact to armed robbery - MT 6m, AT 6m; larceny on Form 2 - FT 3m.
Guilty plea. Aged 21 - on recognizance at time of offences - drug addiction - successful participant in drug counselling
therapy - high level of support from family - had served MT at time of appeal - no priors.
Tsoukatos: BE&S - FT 6m; armed robbery - MT 12m, AT 12m; robbery - FT 12m. Guilty plea - 9 other offences taken into account. Aged 26 - on recognizance when offences committed - drug addiction - had served MT at time of appeal - priors (breach CSO, BE&S, assault) - previously imprisoned for 6m.
Appropriate sentence - double jeopardy - discretion to dismiss Crown appeal despite inadequate sentence - special circumstances - departure from statutory sentencing formula.
Kyroglou: Appeal dismissed.
Tsoukatos: Appeal allowed: total sentence of 5y comprising MT 1y, AT 4y.
145

CRAMPTON, Alan James - CCA, 1.6.99
Citation: R v Crampton [1999] NSWCCA 130
Conviction appeal.
2 x act of indecency with a boy; 1 x indecently assaulting him; & 2 x indecently assaulting a 2nd boy. Appellant convicted of first count but jury unable to agree about the others.
Appellant a primary school teacher who taught children with learning disabilities. Complainants were 2 of his pupils.
Delay in complaint - trial took place some 20 years after the alleged incidents.
Failure to complain - whether directions adequate - 2 complainants, neither of whom corroborated the other - whether Jones v Dunkel direction necessary - whether necessary to instruct jury that they might take into account a reasonable doubt on one count in deciding any other count.
Appeal dismissed.
Note: High Court appeal allowed, conviction quashed, verdict of acquittal entered.
146

CUTMORE, Jason Dallas Sean - CCA, 28.5.99 - 108 A Crim R 155
Citation: R v Cutmore [1999] NSWCCA 132
Crown appeal.
Kidnapping of 12 year old girl with serious sexual assaults involving some physical injury
MT 4y, AT 5y.
Victim asleep in her bedroom late at night. The bedroom was situated at the front of the house & had a window opening onto a verandah. Respondent entered her bedroom through the window, stating in evidence that his intention was to rob the house. He then decided to sexually assault the victim, placed his hand over her mouth & carried her from the house. She was taken to Glen Innes Showground where various sexual acts were performed upon her.
Victim suffered some vaginal tearing, one tear requiring surgical repair under anaesthesia.
Respondent aged 22* at time of offences - youngest in family of 8 children - deprived background - alcohol abuse prevalent within family - respondent developed serious drinking problem at age of 14 - criminal history with a number of alcohol related offences.
Undervalue of objective circumstances & public deterrence - overestimation of significance of subjective features demonstrating manifest error in sentencing.
Appeal allowed: resentenced to MT 6y, AT 3y.
147

BAUGH, Stuart William - CCA, 27.5.99
Citation: R v Baugh [1999] NSWCCA 131
Crown appeal.
Manslaughter - not guilty verdict;
AOABH (in the alternative) - guilty verdict.
Judge deferred passing sentence - 3y GBB.
Respondent (aged 18) & two companions (16 & 18) were hanging about Sydenham Station asking people for cigarettes. The victim, a musician, was on his way to work in the city after playing at the Portuguese Community Club in Marrickville when he was accosted at the station by the respondent & his companions. He refused to give them cigarettes & was attacked. Self-defence was asserted at trial but was rejected by the jury.
Respondent responsible for seeking out the altercation - occasioned injuries from which victim died by administering the blow which caused victim to fall, hitting his head on a concrete floor.
Consideration of remorse - persistence in false assertion of self-defence wholly inconsistent with assertion of remorse even if the Crown indicated it would not accept a plea to a lesser charge.
Appeal allowed: sentenced to 2y PD.
148

GOVINDEN, Jean Vincent Didier - CCA, 19.5.99 - 106 A Crim R 314
Citation: R v Govinden [1999] NSWCCA 118
Crown appeal.
Accessory after the fact to armed robbery & accessory after the fact to robbery in company; + Form 2 matter of possess shortened firearm.
Guilty pleas.
2y GBB; 200h CSO.
Respondent had been minding a shortened firearm, knowing it to have been used in a robbery. On separate occasion respondent accompanied 3 juveniles to a food store, respondent & one of the co-offenders, who was carrying a toy pistol, entered the store & demanded money, escaping with approx $3,000.
Aged 18 - stable family environment - use of marijuana ceased after arrest - remorse - good character - no priors.
Exceptional circumstances - parity with juveniles - borderline case - guideline judgement not followed - rehabilitation.
Appeal dismissed.
149

DIAZ, Haydee Martinez - CCA, 14.5.99
Citation: R v Diaz [1999] NSWCCA 123
Sentence appeal.
Conspire to import commercial quantity cocaine.
5y with NPP of 2*y.
Conspiracy involved at least 6 other people. Proposed importation was 50 kgs cocaine. Applicant had ceased to be a conspirator 1 week prior to arrest. First became aware of conspiracy only after arriving overseas. Role was not of a principal organiser but assisted organiser directly by interpreting conversations with co-conspirators whilst overseas.
Aged 22 - high order of assistance provided to authorities - prepared to provide future assistance - no priors.
Parity - proportionality of sentence with sentences imposed on co-conspirators.
Leave to appeal refused.
150

GIDLEY, Cecil Walter - NSW SC, Bell J, 26.5.99
Citation: R v Gidley [1999] NSWSC 498
Redetermination of life sentence under s.13A Sentencing Act 1989.
2 x murder; 1 x robbery with striking; 1 x armed robbery.
Pleaded not guilty to the charges of murder but guilty to the two robbery matters.
Jury returned verdicts of guilty in respect of each count of murder. Matter stood over for sentence. On that occasion, 2 further indictments were presented & applicant pleaded guilty to them. They involved escape from lawful custody; stealing; use offensive weapon with intent to prevent lawful apprehension; possess shortened firearm; BE&S; 4 x kidnapping; forgery; uttering; steal from dwelling. There was a further count of armed robbery to which applicant pleaded not guilty.
The murders were committed upon an elderly couple in their home in Naremburn. The applicant struck each of them over the head a number of times with the butt of a shotgun, fracturing their skulls & occasioning the fatal injuries.
Described as a quiet, good, well behaved inmate - good sense of humour, nothing adverse to report - enjoys his hobbies & interests in reading - manages to make his time useful.
Application granted: resentenced to MT 19y, AT 11y.
151

ZAMMIT, David John Patrick - CCA, 28.5.99 - 107 A Crim R 489
Citation: R v Zammit [1999] NSWCCA 65
Conviction appeal.
Murder; armed robbery.
MT 18y, AT 6y for murder; concurrent FT of 10y for armed robbery.
Victim shot by appellant during the course of the robbery from her of the takings of the BP service station of which her husband was the proprietor.
Identification - sufficiency of directions - whether trial judge's directions inaccurate, misleading or failed sufficiently to identify weaknesses or inconsistencies in that evidence - dangers inherent in identification evidence generally - directions on refusal to participate in identification parade - directions on evidence led by appellant of him being in gaol at time of possible earlier sighting - sufficiency of directions on potentially prejudicial answer to question by witness - warnings - discretion to admit photographs of victim.
Whether jury's verdict should be set aside as unreasonable or not supported having regard to the evidence.
Appeal dismissed.
152

MAILES, Graham Edward - CCA, 18.5.99
Citation: R v Mailes [1999] NSWCCA 127
s.5F application for leave to appeal against refusal to order inquiry be conducted under Mental Health (Criminal Procedure) Act 1990 to determine whether applicant unfit to be tried.
Murder.
The trial commenced on 27.4.99. The following day, after deciding not to order an inquiry, his Honour declined to interrupt the trial so that an appeal against his decision could be brought & determined before resumption of the trial. The trial proceeded & at the time of the appeal to the CCA was in its 4th week & defence counsel's closing address had almost been completed, hence counsel for the applicant sought not to proceed with the CCA proceedings but suggested the application should be stood over to a call-over to await the result of the trial.
Leave to appeal refused.
153

BAKER, Mark John - CCA, 28.5.99
Citation: R v Baker [1999] NSWCCA 129
Conviction appeal.
Malicious wounding with intent to murder (s.27 Crimes Act) - found not guilty; in the alternative: malicious wounding with intent to do GBH (s.33) - found not guilty.
Found guilty of statutory alternative charge of malicious wounding pursuant to s.35.
Judge alone trial. 2y MT, 2y AT.
Appellant & victim married - 3 children. Together until Nov 1995. In Dec 1995 A moved back without V's consent. In March 1996 A assaulted V. AVO obtained. A pleaded guilty to AOABH. Second incident occurred. Continual telephone contact. During these conversations A threatened V. Another incident occurred in Nov 1996 when A was served with Family Law related documents which he tore up. Next evening V went outside to check tailgate of her car. Heard 'familiar'sounding car come up the street, walked up driveway, stepped out onto the gutter. It was A's car. She thought he was about to park. She was hit by the front grille of the vehicle & thrown on top of the bonnet. Recalled waking up in bed in her home with ambulance officers in attendance & police officers standing in the doorway.
Failure of trial judge to refer to potential unreliability of complainant's evidence - warning warranted under s.165 Evidence Act - failure to refer to principles of law concerning lies told by appellant - hence breach of s.33(2), s.33(3) Criminal Procedure Act attracting second limb of s.6(1) Criminal Appeal Act.
Appeal allowed: new trial ordered.
154

JENKINS, John David - CCA, 12.5.99
Citation: R v Jenkins [1999] NSWCCA 110
Sentence appeal.
1 x assault with intent to rob whilst armed - guilty plea.
MT 3y, AT 1y.
After consuming quantity of beer, appellant took concealed knife to nearby store, watched sole female shop attendant for some time then approached her from behind. He then placed his hand on her shoulder, pointed the knife at her ribs & demanded money from the till. She refused & he then asked for $20. Alarms were activated & the appellant walked slowly from the store.
Aged 62 at time of offence - interstate truck driver before retirement - depressed after retirement - divorced - little contact with family members - 2 of his 4 children had died - something of a loner - prior good character - priors (street betting in 1963, goods in custody in 1964) - immediate admission of guilt - regret - unlikely recidivist.
General deterrence - special circumstances.
Appeal allowed: resentenced to 2y FT.
155

GHARIBIAN, Johnny - CCA, 26.5.99
Citation: R v Gharibian [1999] NSWCCA 138
Sentence appeal.
1 x supply cocaine - MT 1y, AT 1y;
1 x supply methylamphetamine - concurrent FT 6m
Applicant stopped by police during random breath testing exercise. Police were suspicious of his behaviour & searched his car, finding a small quantity of powder. Found in his car was a set of electronic scales, a razor blade bearing cocaine residue & a large plastic bag containing smaller resealable plastic bags containing a drug.
Whether proper regard had to rehabilitation.
Leave to appeal refused.
156

ALEXANDER, Michael John - NSW SC, Kirby J, 7.5.99 - 107 A Crim R 449
Citation: R v Alexander [1999] NSWSC 413
Redetermination of life sentence under s.13A Sentencing Act 1989.
Aged 24 at time of offence, 38 at time of appeal - murder of landlady & 4 year old daughter - dispute over rent - landlady strangled & stabbed - daughter stabbed - desire for education whilst in prison - evidence of drug use - attempted escape - worst case.
Appeal allowed: re-sentenced to MT 21y, AT 8y.
157

MEISSNER, Joe Ladislaus - CCA, 15.4.99
Citation: R v Meissner [1999] NSWCCA 91
s.5F application for leave to appeal against refusal to grant stay of proceedings.
Supply commercial quantity heroin; supply heroin.
This application arose out of an assertion that the applicant was unable to afford to obtain legal representation for his trial.
No error in refusal of trial judge to grant Dietrich stay.
Application for leave to appeal refused.
158

RUSHBY, Andrew Troy - CCA, 24.5.99
Citation: R v Rushby [1999] NSWCCA 104
Sentence appeal.
1 x sexual intercourse without consent in circumstances of aggravation - MT 5y, AT 3y.
Offences of drive conveyance & drive whilst unlicensed taken into account.
Appellant & co-offender met 13 year old girl. They stole a car, drove north until it broke down in a remote area then abandoned it. Appellant & co-offender discussed raping girl. She walked faster to get away from them. They caught up with her & dragged her into secluded bushland, whereupon both had sexual intercourse with her. They then tore up her clothes & used them to tie her to a tree before departing.
Appellant aged 18y 10m - co-offender aged 16y 3m.
Full & candid admissions whereas co-offender made none - guilty plea at earliest opportunity whereas co-offender pleaded guilty at much later stage - assistance to authorities - appellant to spend his custody in protection - threats made against him by co-offender.
Disparity - co-offender sentenced by different judge - disparate findings of fact - whether justifiable sense of grievance - desirability that one judge sentence both - contrition.
Appeal dismissed.
159

APPLEBY, Malcolm Raymond - CCA, 11.6.99
Citation: R v Appleby [1999] NSWCCA 157
Sentence appeal.
BE&S.
MT 12m, AT 12m.
Ram raid type offence. Applicant & 3 other offenders drove a vehicle through the front doors of a business then stole some lap-top computers. Patrolling security guard informed police, as a result of which they were stopped by police & arrested. Applicant gave false name & address to police upon arrest but his true identity was discovered as a result of a fingerprint check.
Aged 20 - in custody for other matters at time of sentencing - guilty plea - 25 priors.
Appeal dismissed.
160

BENNETT, Toni Leanne - CCA, 24.5.99
Citation: R v Bennett [1999] NSWCCA 102
Sentence appeal.
Armed robbery; assault: + Form 1 matters (attempt armed rob; possess offensive implement).
Aggregate sentence comprising MT 3y, AT 3y.
Applicant & a man she was with went up to a woman who was drawing money from an ATM in Darlinghurst, threatened to stab her with a syringe filled with HIV blood if she tried anything & said all they wanted was to take her money. The man, who was holding a blood filled syringe walked off with the money. A few minutes later they approached another woman in the street, told her to hand over her bag & threatened to stab her with the syringe. That woman ran away. The applicant then approached a man getting out of his car, asked him if he wanted to be a hero & said offensive things to him. He ran away & was not injured. Shortly afterwards, a security officer from St Vincent's Hospital detained the applicant. Whilst being taken into custody, applicant saw the 2 women she had robbed & tried to rob & shouted to them that she knew them, where they lived & had friends who would get them. This was accepted as a matter of aggravation.
Aged 21 - guilty plea - not instigator of offences - difficult childhood - priors - soliciting - carrying cutting instrument - malicious damage - goods in custody - self-administration prohibited drug - not previously imprisoned.
Leave to appeal refused.
161

BERNARD, Roger - CCA, 11.6.99
Citation: R v Bernard [1999] NSWCCA 156
Sentence appeal.
2 x passing valueless cheques; + 1 other matter of similar nature taken into account.
FT 1y PD.
Applicant participated in some commercial ventures from which he hoped to profit. These were unsuccessful & he was made bankrupt. During the time when he was trying to keep the ventures afloat, he passed valueless cheques totalling $470,000. He was able to take advantage of his status as a valued bank customer & allowed to draw against cheques even though they had not been cleared.
Aged 36 - medical practitioner - strong element of leniency built into penalty - mental illness - no priors.
Leave to appeal refused.
162

HOCKEY, Stephen Richard - 9.6.99
Citation: R v Hockey [1999] NSWCCA 149
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon.
MT 3y, AT 2y.
Applicant entered a pharmacy in the evening. He demanded money from the 70 year old wife of the pharmacist. She refused to open the till & the applicant then threatened the victim with a knife. He tried to force open the till with the blade. He fled when the victim's husband came into the store from the rear. The victim was visibly shaken & upset.
Aged 43 - fulfilled all of the criteria in Henry guidelines, but one - not a young offender. Guilty plea - admissions - remorse - steps taken towards rehabilitation.
In breach of recognizance at time of offence - priors for administering heroin; possess cannabis; BE&S - not previously imprisoned.
Appeal dismissed.
163

KARATAS, Murat - CCA, 28.5.99
Citation: R v Karatas [1999] NSWCCA 151
Sentence appeal.
4 x sexual intercourse without consent.
Aggregate sentence comprising MT 6y 9m, AT 2y 3m.
The victim was a 24 year old woman who had come from Hong Kong to study at Wollongong University. She occupied her own flat & purchased a small refrigerator which had to be returned as it was faulty. The applicant was one of the vendor's men who redelivered it. The refrigerator still gave trouble & the vendor agreed to buy it back. The applicant knew this & arrived at the victim's flat early one Sunday morning. She let him into her home, believing he was there to collect the refrigerator. He pretended to examine the refrigerator, asked to use the toilet & later attacked her without warning. He slapped her face, broke her glasses, grabbed her by the hair & pushed her onto the bed. The applicant threatened to kill her if she was not quiet. He then engaged in numerous acts of intercourse over a period of 3 hours
The victim lived alone & was a virgin prior to the attack - suffered nightmares & loss of appetite & ceased to date men - of Chinese origin & suffered great personal shame.
Applicant aged 30 - large man - no contrition - no remorse - prospects for rehabilitation not good - priors for violent offences; dishonesty.
Appeal dismissed.
164

STAHL, Matthew Donald - CCA, 26.5.99
Citation: R v Stahl [1999] NSWCCA 160
Sentence appeal.
Armed robbery; + Form 1 matter of creating a public mischief.
MT 3y, AT 2y.
Applicant hailed a taxi & was taken to his parked car. When the taxi stopped, the applicant took out a knife, held it to be driver's throat & demanded his keys, wallet & takings, then ran to his car & drove away. He later reported his own car stolen.
Aged 27 - epileptic requiring medication - bipolar disease - addicted to heroin - remorseful - co-operated with authorities - guilty plea - within Henry guidelines - priors for BE&S; possess prohibited plant.
Leave to appeal refused.
165

HILL, Scott John - CCA, 28.5.99
Citation: R v Hill [1999] NSWCCA 140
Sentence appeal.
10 x BE&S; 1 x receive stolen property.
Aggregate sentence comprising MT 2*y, AT 2*y.
Applicant and co-offender carried out a series of break-ins, all committed whilst houses unoccupied. The offences were planned & property worth $30,000 was stolen. The applicant also received goods stolen in another break-in.
Aged 18 - subject to recognizance at time of offences - on bail for BE&S offences when receiving offence committed - remorseful - taken steps towards rehabilitation - attended police station voluntarily although refused to give name of co-offender - ceased to drink alcohol - had been accepted into a respectable family - gained employment - enrolled in technical college course - special circumstances - priors for stealing MV; break into MV & steal (committed whilst on bail).
Appeal allowed: resentenced to aggregate of MT 2y, AT 2y.
166

AUSTIN, Mark William - CCA, 24.5.99
Citation: R v Austin [1999] NSWCCA 101
Sentence appeal.
2 x dangerous drive occasioning GBH.
MT 3y, AT 1y.
Applicant pulled out over unbroken lines to overtake a vehicle just before a left-hand bend, travelling at about 150 kph. He lost control of the vehicle & careered into an oncoming vehicle. The applicant's passenger was badly injured, requiring intensive care for 4 weeks. The driver of the oncoming vehicle sustained a head injury which caused cranial nerve palsy, multiple fractures & permanent deforming & scarring whilst the passenger of that vehicle suffered multiple fractures & intensive abrasions requiring hospitalisation. A child in that vehicle received a fractured & lacerated pelvis, requiring hospitalisation. Worst category of case.
Aged 31 - assessed as suitable for CSO & PD - had benefited from prior Probation & Parole supervision - reversion to repeated speeding offences - criminal & traffic record - previous CSOs & recognizances - not previously imprisoned.
Leave to appeal refused.
167

BURRELL, Bruce Allan - CCA, 26.5.99
Citation: R v Burrell [1999] NSWCCA 139
Sentence appeal.
B. Larceny as bailee - concurrent FT 6m.
B. 2 x receive stolen MV - concurrent FT 1*y.
C. Dispose of stolen MV - concurrent FT 1*y.
D. Receive stolen MV - cumulative MT 2y, AT 1y.
E. Possess prohibited weapon - concurrent FT 6m.
Aggregate MT 2*y, AT 1y.
Applicant given a Ruger rifle to sell on behalf of the owner - later told owner it had been stolen, which was untrue. Rifle found several years later at applicant's house. During same search, police found a crossbow & bolts which applicant said he was minding for a friend. He was also seen driving a stolen vehicle, claiming that he had bought it (worth $43,000). Upon searching the applicant's property, police also found a vehicle bearing number plates belonging to a different vehicle which had been stolen - applicant admitted purchasing it & subsequently selling it (worth almost $140,000), admitting he suspected it to be stolen. The car to which the plates belonged was worth $16,000.
Aged 45 - no priors.
Appeal upheld: new aggregate of MT 2y, AT 1y.
168

LE, Lieu Thi - CCA, 7.6.99 - 107 A Crim R 355
Citation: R v Le [1999] NSWCCA 146
Sentence appeal.
Supply prohibited drug (heroin)
MT 6m, AT 2*y.
Applicant acted as an interpreter in a conversation between her friend & a second person who was later discovered to be an undercover police operative. The conversation related to the intended sale of heroin for $72,000. Applicant acted merely as a conduit between two languages - a minimal role. The proposed deal did not take place, although meetings were held at the applicant's home.
Young woman with no priors - sole carer for 2 young children. Full & conscious knowledge of topic of conversation. Father had taken care of children upon incarceration but had died unexpectedly. Care for children had become less than satisfactory. More than one-third of sentence served prior to bail pending appeal. Unlikely to re-offend. No priors.
Appeal allowed: sentence reduced to MT 5m, 27d; AT 2y.
169

BICHENO, Ronald James - CCA, 9.6.99
Citation: R v Bicheno [1999] NSWCCA 148
Sentence appeal.
2 x aggravated dangerous drive causing grievous bodily harm.
MT 2y, AT 2y.
Applicant collided with another vehicle. The driver of that car was a young 19 year old woman who suffered a fractured skull, injuries to the right eye resulting in blindness. In the second count, the victim was the offender's de facto wife who was a passenger in the applicant's car.
Aged 45 - permanent casual removalist - guilty plea - priors for a single speeding offence - not previously imprisoned.
Blood alcohol reading of 0.263% - high range PCA.
Jurisic applied. Principles: Guideline judgements - not a mathematical formula.
Appeal dismissed.
170

TAWAKE, Ishmael - CCA, 7.6.99
Citation: R v Tawake [1999] NSWCCA 147
Sentence appeal.
Robbery in company.
MT 3y, AT 1y.
The Applicant & 2 males entered a video store early one evening, whereupon they produced weapons, including a small hand gun & a knife. They forced an employee of the video store to open a safe & tied an electrical cord around his neck. Following his failure to open the safe, further demands were made. At one stage the victim was pushed to the ground & kicked in the chest.
Aged 20 - offence committed 1 month prior to appearing in court for other matters - breach of CSO - on bail at time of offence - priors for larceny; aiding & abetting robbery.
Appeal dismissed.
171

ARMSTRONG, Mark Anthony - CCA, 3.6.99
Citation: R v Armstrong [1999] NSWCCA 99
Conviction and sentence appeal.
1 x sexual intercourse without consent; 3 x AOABH.
Pleaded guilty to 1 count of AOABH but not guilty to the other counts. After a trial he was found guilty of the other counts.
MT 4*y, AT 2y.
Complainant a young woman who, like the appellant, was addicted to heroin. They met at a methadone clinic & went to his caravan where they drank & talked. Later the applicant sexually assaulted her. Despite her protests, he held her to the bed & had vaginal intercourse with her. She then dressed & ran out of the van. The applicant pursued her & restrained her from leaving until the morning. When she tried to leave, she inadvertently knocked over a bottle of beer, apologised & bent over to pick it up, whereupon the offender punched her in the face. Outside the caravan, he applicant seized her by the throat & struck her several times across the face & side of the head. He also punched her in the stomach & struck her on the jaw.
Aged 36 - young & impressionable - victim aged 20.
Addicted to heroin - lengthy criminal history - no prior violence - not previously imprisoned.
Fresh evidence - whether appellant incompetently represented at trial - whether verdict unreasonable.
Appeals dismissed.
172

MEGGETT, Gregory Paul - NSW SC, Wood CJ at CL, 2.6.99 - 107 A Crim R 257
Citation: R v Meggett [1999] NSWSC 606
Sentence:
1 x import commercial quantity cocaine.
Agents of the Australian Federal Police, in conjunction with officers of the Australian Customs Service, seized a Boston whaler located near the southern boat ramp of the outer harbour of Coffs Harbour. It had previously been launched from a 52 foot ketch which had been kept under surveillance for some time prior to its arrival in Australian waters from Tonga.
244.8 kgs cocaine seized (171.2793 kgs pure) with an estimated street value of between $40m to $50m.
Male - aged 25 - guilty plea - South African citizen - prior good character - dependent personality disorder - substantial discount given for assistance to authorities.
Sentenced to 10y with NPP of 6y.
173

SMITH, Paul Thomas - CCA, 11.6.99
Citation: R v Smith [1999] NSWCCA 126
Conviction appeal.
2 x aggravated sexual assault.
MT 3y, AT 2y.
Appellant found guilty following special hearing under Mental Health (Criminal Procedure) Act 1986. The circumstances of aggravation on the 1st charge were that the appellant had maliciously inflicted actual bodily harm; the circumstances of aggravation on the 2nd charge were that the offence had been committed in company. The appellant punched the complainant more than once in the face with his closed fist, forcibly removed her clothes, dragged her across a bridge, pinned her to the ground & then proceeded to have intercourse with her. He restrained the complainant while the co-offender also had intercourse with her. He then punched the complainant and again had intercourse with her.
Submitted on appeal that trial judge erred in permitting accused to make statement against advice of defence counsel - disclosure by accused that co-offenders found guilty.
Appeal dismissed.
174

OWEN, Christopher William - CCA, 4.6.99
Citation: R v Owen [1999] NSWCCA 133
Conviction appeal.
1 x procure male to commit act of indecency; 2 x indecent assault upon male.
He was acquitted of another count of indecent assault upon a male.
12m PD.
Complainant, aged 14-15, was the appellant's nephew. Crown alleged appellant performed fellatio upon him then had the complainant use a vibrator upon him. The appellant placed a vibrating sander on the complainant's genitals then performed fellatio. Tendency /coincidence evidence was also called from 2 other males. Offences occurred in early 80's & the complainant made a complaint to his mother in 1991. The police spoke to the appellant in 1996 & he was charged in 1997.
Whether verdicts unreasonable and/or not supported by evidence - whether verdicts inconsistent - apparent error as to date of count on which appellant acquitted.
Appeal dismissed.
175

ROBERTS, Reginald George - CCA, 3.6.99 - 106 A Crim R 67
Citation: R v Roberts [1999] NSWCCA 95
s.5F appeal against refusal to grant permanent stay.
Publish false statement with intent to obtain money; steal MV.
The first charge related to a false insurance claim on a motor vehicle. Both the vehicles were found in the applicant's possession - since disposed of by Crown.
Defence applied for a permanent stay on basis that vehicles not available for examination by the defence. Defence relied upon evidence to the effect that in order to identify a particular vehicle it was necessary to check serial numbers of all major components, not just identification plate. Trial judge considered the Crown case was a strong one which did not depend wholly on the identification plate. It was unlikely that the truck found on the applicant's premises had the same chassis number as the truck the appellant had reported stolen 4 years earlier.
Loss of opportunity for defence to produce evidence - unavailability of evidence does not warrant grant of permanent stay - permanent stay ordered only in extreme cases.
Appeal dismissed.
176

HOULTON, Edward Joseph Curtis - CCA, 18.5.99
Citation: R v Houlton [1999] NSWCCA 100
s.5F application for leave to appeal against refusal to grant stay of proceedings.
85 x fraudulent misappropriation. Acts constituting offences said to have been committed between 1989 and 1992 when the applicant was a practising solicitor, involving a total sum in excess of $400,000.
Delay in proceedings - number of prosecution witnesses unknown - inability to pay contribution towards legal aid - medical considerations.
Decision not to grant stay within bounds of discretion. Jago v District Court (1989) 169 CLR 123 applied.
Leave to appeal refused.
177

STEWART, Kevin John - CCA, 19.5.99
Citation: R v Stewart [1999] NSWCCA 119
Conviction appeal.
Aggravated BE&S with intent to commit felony; aggravated BE&S.
MT 12m, AT 3y.
Crown alleged that appellant kicked in the door of victim's premises. He was with a group of people. They stole money & other valuables. Some of the group gave evidence that a person nicknamed 'John-Boy'was the offender & not the appellant. They also asserted that the appellant was not 'John-Boy'However, one of the group gave evidence identifying the appellant as both the offender & 'John-Boy', however, he admitted he was extremely intoxicated at the time.
Role of jury - whether verdicts unreasonable or cannot be supported having regard to the evidence.
Appeal dismissed.
178

NUNAN, Christine Norma - CCA, 28.4.99 - 108 A Crim R 1
itation: R v Nunan [1999] NSWCCA 117
Conviction appeal.
The applicant was sentenced in the DC to a FT of 10w for cultivate cannabis & supply cannabis.
Applicant was granted bail in the Supreme Court on the assumption that an appeal to the CCA against conviction had been lodged. Applicant subsequently found that no appeal had been lodged & surrendered herself. She had been given the wrong appeal form in prison. She was granted bail & was extended time in which to make her application for leave to appeal.
Although the applicant applied for leave to appeal the initial conviction, her primary submission in the CCA was that her sentence had expired, thus there was no need to address her appeal against conviction.
Submission upheld - no order made.
179

CARVER, Phillip Kingston - CCA, 11.6.99
Citation: R v Carver [1999] NSWCCA 135
s.5F appeal against refusal to grant permanent stay.
The applicant sought leave to appeal from refusal to grant permanent stay of proceedings in relation to fraud offences. He submitted that lost documents established facts capable of giving rise to a doubt as to his guilt and as that loss could not be cured by appropriate directions, a permanent stay was warranted. It had been accepted by the trial judge that a number of documents had been lost which would support facts as asserted by the applicant.
Leave to appeal refused.
180

CASSAR, Charles Michael - CCA, 28.5.99
Citation: R v Cassar [1999] NSWCCA 152
Conviction and sentence appeal.
Supply large commercial quantity prohibited drug (heroin).
MT 8y 3m, AT 2y 9m.
Applicant & co-offender observed leaving a house with a green duffle bag. This bag was taken to another house which police later searched. The bag, containing 3.36 kgs of heroin, was found under a mattress. A large number of resealable plastic bags containing heroin were also found. More resealable bags, Glucogen, several sets of electronic scales & a coffee grinder were found. The applicant had rented the premises under an alias & had given a false place of employment. The offence was deliberate & well planned with an enormous potential financial gain - estimated street value of $3.9m.
Aged 33 - no contrition or remorse - role an important one, however, did not manage, control or initiate the operation - good prospects of rehabilitation.
Previous drug offences - previously imprisoned.
Special circumstances - parity.
Conviction appeal dismissed.
Sentenced appeal allowed: resentenced to MT 7*y, AT 2*y.
181

RNS - CCA, 7.6.99
Citation: R v RNS [1999] NSWCCA 122
Conviction appeal.
Count 1: indecent assault upon person under 16y;
Count 2: sexual intercourse without consent upon person under 16y;
Count 3: Sexual intercourse without consent with person under 16y;
Count 4: indecent assault upon person under 16y under authority.
Offences committed against stepdaughter. Evidence of complaint led without any reference to its admissibility under the Evidence Act. Complainant claimed telling her mother prior to 2nd incident that appellant kept trying to grope her. Mother gave evidence that complainant 1st told her of offences 3 years after last incident. Complainant also complained to school friend 1 year after last incident.
Directions - delay in complaint - adequacy of summing up - admissibility of evidence of complaint not properly considered - admissibility of ERISP.
Appeal allowed: verdicts of acquittal entered on counts 3 & 4; new trial ordered on counts 1 & 2.
182

MACKEY, Ryan Joseph - CCA, 24.6.99
Citation: R v Mackey [1999] NSWCCA 167
Sentence appeal.
3 x manslaughter.
MT 6y 1m, AT 2y.
Pre-sentence custody taken into account.
Incident involved several persons. A woman & 2 children (aged 11 & 7) died in a deliberately lit fire at the premises where they were staying. The house had been occupied by a number of persons, some of whom escaped during the fire.
One of the co-offenders had feelings of animosity towards the deceased woman & was the main instigator of the offence but the applicant encouraged the proposal & aided & abetted in the perpetration of the offence. The co-offender received a longer sentence.
Excellent prospects of rehabilitation - remorse - regret - parity - whether manifestly excessive.
Leave to appeal refused.
183

MORAN, John Thomas - CCA, 28.6.99
Citation: R v Moran [1999] NSWCCA 169
Conviction appeal.
Attempt to pervert the course of justice.
FT of 2y to be served cumulatively upon a sentence of 2y PD already being served.
Investigating officers from the NCA & 3 members of the police force executed a search warrant upon the appellant's premises. A large amount of property was removed from his home & garage. During the course of the search, a new golf bag wrapped in plastic was located in the rafters of the garage. Appellant was charged with goods in custody. The appellant, however, claimed the golf bag belonged to him, however, he was unable to find a receipt. Almost 2 years later he handed some receipts over to the NCA, one of which was purported to be for the golf bag. This receipt was false.
Question arising before the CCA was whether the golf bag was a new bag or not. The sentencing judge gave clear directions to the jury in relation to the bag.
'Unsafe & unsatisfactory'- directions on onus of proof & circumstantial evidence - right to silence.
Appeal dismissed.
184

SCHIAVINI, Walter - CCA, 1.7.99 - 108 A Crim R 161
Citation: R v Schiavini [1999] NSWCCA 165
Conviction appeal.
6 x armed robbery; 1 x attempt armed robbery.
MT 4*y, AT 1*y.
Convicted on 5 of the armed rob charges, acquitted on the remaining armed rob charge; convicted on the attempt armed rob charge.
The armed robberies were undertaken by the appellant & 2 co-offenders & targeted premises, comprising bottle shops, a liquor store, a mixed business store & service stations. On each occasion at least one offender was armed with a rifle & on 4 of these occasions another offender carried a knife. Each wore balaclavas, except for 3 of the robberies when one offender wore a gorilla mask.
Admissions recorded in police notebook - entry signed - no tape recording of admissions - whether reasonable excuse.
Appeal allowed: new trial ordered.
185

LOACH, Mark Spencer - CCA, 28.5.99
Citation: R v Loach [1999] NSWCCA 128
Sentence appeal.
Escape from lawful custody; assault police officer in execution of his duty; resist police officers in execution of their duty. A count of possess heroin taken into account on a Form 1.
Total effective sentence: MT 18m, AT 18m.
Guilty plea. Appellant assaulted Const F then ran away from police. The next day, the appellant resisted Consts F & Conway.
Whether irrelevant evidence taken into account - whether sentences excessive - failure to consider alternatives to full-time imprisonment - structure of sentences.
Appeal dismissed.
186

TAHERE, Addis - CCA, 23.6.99
Citation: R v Tahere [1999] NSWCCA 170 revised 5/7/99
Conviction appeal.
Use offensive instrument (car) with intent to prevent lawful apprehension.
MT 18m, AT 6m.
The incident giving rise to the above charge occurred during a police chase during which it was alleged appellant deliberately reversed into a pursuing police vehicle. The only live issue at trial was identification. The Crown called a number of witnesses who claimed to have identified the appellant on the night of the incident. He described the person as 'an Islander'with long black hair. Police did not conduct an identification parade on the night because they could not find a sufficient number of Islanders. The witness was shown a video of 17 faces but he could not identify the appellant from those faces. An in-court identification of the appellant was made by the witness. The trial judge directed the jury to give 'little weight'to the in-court identification.
In-court identification - Crown failed to establish 'it would not have been reasonable to have held'an identification parade at a time reasonably proximate to the trial.
Appeal allowed: new trial ordered.
187

JGW - CCA, 23.6.99
Citation: R v JGW [1999] NSWCCA 116
Conviction and sentence appeal.
3 x homosexual intercourse with male under 10; 1 x attempt homosexual intercourse with male under 10; 1 x homosexual intercourse with male between 10-18; 1 x indecent assault of person under 16.
MT 5y 3m, AT 1y 9m (count 3)
FT 2y (counts 1,2,4,5)
FT 12m (count 6)
It was alleged that the appellant had sexually assaulted his son during 1987-1995 when the complainant was aged between 7-14. The complainant first complained of the assaults to his mother in 1996.
During the trial, the jury were directed to return verdicts of not guilty on counts 4 & 5 since it was apparent that events could not have occurred during the time frame alleged. Leave granted to the Crown to amend the dates in counts 2, 3 & 8 of the original indictment. The jury returned guilty verdicts on all counts in the amended indictment.
Directions as to delay in complaint - directions as to unreliability of complaint evidence - directions on lies - verdicts 'unsafe & unsatisfactory'- amendment of indictment - discretion of judge - tender of ERISP interview wherein accused made formal admissions - credibility & weight.
Appeal allowed on count 4: Conviction & sentenced quashed. In lieu thereof, conviction for homosexual intercourse with male 10 to 18 substituted, sentenced to concurrent FT 18m.
Appeal on all other counts dismissed.
188

ROBERTS, Murray John - CCA, 12.5.99
Citation: R v Roberts [1999] NSWCCA 124
Conviction appeal.
Sexual intercourse without consent.
MT 2y, AT 1*y.
Crown alleged appellant pulled complainant from his car by opening the passenger side door & that the complainant later returned home in a distressed state wearing no trousers. Appellant's case was that the passenger side door was defective & could not be opened from the outside & that the complainant had taken her trousers off at the scene to make it appear as if she had been raped. During the trial, SR spoke to appellant in the present of trial counsel & stated he had seen complainant return home wearing trousers. She appeared normal He said he had tried pulling on the passenger door of the appellant's car but it would not open from the outside. Trial counsel stated it was too late to call SR & that his evidence was not needed. Appellant (aged 50 years) had been known to complainant (aged 23 years) since her childhood.
Miscarriage of justice - failure to call witness at trial - whether decision not to call witness within proper exercise of trial counsel's discretion.
Appeal dismissed.
189

YOUNG, Brian James - CCA, 7.7.99 - 46 NSWLR 681; 107 A Crim R 1
Citation: R v Young [1999] NSWCCA 166
s.5F application for leave to appeal against interlocutory order declining to allow appellant access to documents.
1 x sexual assault; 1 x indecent assault.
Both alleged offences committed upon a teenage girl.
The trial judge declined to grant appellant access to patient's notes, records & files which had been produced in response to subpoenas issued on behalf of the appellant & were directed to the Tamworth Base Hospital, a sexual assault service attached to that hospital & to a psychiatrist.
The complainant had disclosed she was suffering from depression, that she had previously been admitted to the psychiatric ward of the Tamworth Base Hospital, that she had previously been sexually abused & had withdrawn an allegation of sexual assault which she had made against a person other than the appellant. The subpoenaed material came into existence in the course of the complainant's treatment.
Sexual assault communications privilege - whether applies to production of documents on subpoena, directly or derivatively - interpretation of Statutes - analogical or derivative application of Statutes - public interest immunity.
Appeal allowed: order quashed, matter remitted to DC.
190

BRYANT, Paul Matthew - CCA, 29.6.99
Citation: R v Bryant [1999] NSWCCA 181
Sentence appeal.
Manslaughter.
MT 6*y, AT 3*y.
Charged with murder; jury found not guilty of murder but guilty of manslaughter.
Stabbed victim repeated with kitchen knife.
A fight broke out between deceased & applicant in the kitchen of some premises one evening. No injury was inflicted upon the applicant but the deceased received a number of wounds, the principal wound being to the chest & the last penetrating his skull near his left eye, the knife remaining deeply embedded in his skull. The deceased bled to death.
Sentencing judge found stabbing deliberate & voluntary - whether inconsistent with jury's verdict of not guilty of murder - severity of sentence - top of the range
Appeal dismissed.
191

MANSOUR, Antoinette - CCA, 25.6.99
Citation: R v Mansour [1999] NSWCCA 180
Sentence appeal.
Dangerous drive occasioning death.
MT 2y, AT 2y.
Guilty plea. Overtaking truck at speed on wet road, cutting in front of other trucks. Two drivers flashed their headlights during overtaking - head-on collision with oncoming vehicle.
Not mere momentary inattention or misjudgement.
No traffic infringements over period of 23 years of driving - genuine contrition, remorse & shock - blameless life - significant positive contribution to church & schools - suffered significant injuries in accident - continuing to suffer psychological problems - mother of 3 children, 2 still at school.
Whether too great emphasis placed on impact on victim's family - whether sentence manifestly excessive..
Appeal allowed: resentenced to MT 12m, AT 12m.
192

OCAMPO-CAMPUZANO, Jose Dorance - CCA, 2.7.99
Citation: R v Ocampo-Campuzano [1999] NSWCCA 179
Sentence appeal.
Import trafficable quantity cocaine.
MT 5y, AT 3y.
Guilty plea - drug courier. Citizen of Colombia, arrived aboard plane from Buenos Aires. Customs officials found cocaine in a false bottom of his brief case (844.6 grams pure). Hoping to migrate to Australia - intention to seel cocaine in order to fund re-establishment of family in Australia.
Whether manifestly excessive.
Appeal dismissed.
193

BAKER, Diane Elizabeth - CCA, 11.6.99
Citation: R v Baker [1999] NSWCCA 150
Sentence appeal.
Armed robbery; fraud; B&E.
3y 1m with NPP of 2y 4m.
Aged 37 - guilty plea. Broke into home of 89 year old man & threatened him with a knife, took $30 & made him sign a withdrawal slip, threatening him if he called police. She was arrested before any money was withdrawn. The victim received a severe abrasion on his right arm after being pushed against a door by the applicant.
Heroin addict - affected by drugs - at time of robbery had habit costing $2,000 per day.
Sentence causing disruption of rehabilitation course - whether time spent in rehabilitation farm quasi custody & used to reduce sentence - whether sentence manifestly excessive.
Appeal dismissed.
194

LIN, Dong Qing - CCA, 2.7.99
Citation: R v Lin [1999] NSWCCA 178
Sentence appeal.
Supply commercial quantity heroin; knowingly take part in supply commercial quantity heroin.
MT 6y, AT 2y.
Applicant was observed by police passing a 447 gram block of heroin to another. After he was arrested, police located heroin with an estimated value of $462,000 at applicant's home.
More significant role than mere courier.
Guilty plea - first offences.
Whether manifestly excessive.
Appeal dismissed.
195

GOULD, John Royal - CCA, 2.7.99
Citation: R v Gould [1999] NSWCCA 177
Sentence appeal.
1 x indecent assault; 1 x sexual intercourse with child between 10 & 16 under authority; + 2 x carnal knowledge of same girl taken into account.
MT 5y, AT 2*y.
Offences perpetrated by applicant upon his step-daughter, taking place over a period of 3 years when the complainant was aged between 12 & 15. Instances particularised by complainant against background of repeated abuse.
Guilty plea - significant health problems - significant lower back problems & 20% loss of lung capacity - existence of special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
196

COLLIER, Wayne - CCA, 7.6.99
Citation: R v Collier [1999] NSWCCA 137
Sentence appeal.
1 x armed robbery; + 1 x larceny on a Form 1.
MT 1y 10m, AT 2y 2m.
Armed robbery of day/night chemist. The applicant threatened the pharmacist with a syringe containing blood, allegedly infected with AIDS. He stole 11 boxes of Normison capsules, 3 boxes of Rohypnol & 2 boxes of Mersyndol. Affected by drugs at the time. Long history of intravenous drug addiction.
Aged 24 - guilty plea - prior convictions.
Prospects of rehabilitation - need for deterrence - where NPP must reflect object seriousness of offence - whether manifestly excessive.
Appeal dismissed.
197

HESLEHURST, Maxwell John - CCA, 30.6.99
Citation: R v Heslehurst [1999] NSWCCA 183
Sentence appeal.
Fraud; obtain money by deception.
MT 18m, AT 18m.
Aged 32 - guilty plea - prior convictions - persistent fraud offender - 41 other charges taken into account.
Appellant approached people with assertion he had, as a debt collector, some repossessed vehicles in his possession & was prepared to sell each of them for the amount alleged to be outstanding on the hire purchase agreement. He continued with these offences whilst on bail.
Appellant made no appearance on appeal.
Whether manifestly excessive.
Appeal dismissed.
198

CARROLL, Jason - CCA, 30.6.99
Citation: R v Carroll [1999] NSWCCA 176
Sentence appeal.
Assault with intent to rob.
MT 3y, AT 3y.
Aged 27 - guilty plea - on parole & on bail at time of offence. Significant criminal record for dishonesty offences.
The applicant punched the victim in the back while attempting to grab her bag. He was apprehended & held by passers-by until police arrived.
Whether sentence manifestly excessive.
Appeal dismissed.
199

VIRGONA, Vincent John - CCA, 7.6.99
Citation: R v Virgona [1999] NSWCCA 136
Sentence appeal.
Indecent assault upon male; homosexual intercourse with male between 10 & 18; act of gross indecency towards male under 18.
MT 4*y, AT 1*y.
Aged 50 - guilty plea - first offences - offences against nephew by marriage 26 years his junior - complainant aged 9 to 15 at the time of the offences. The applicant sought treatment for paedophilia at the time of committing the last offences & has been involved in a heterosexual relationship for some years.
Rehabilitation - existence of special circumstances to alter sentence - whether manifestly excessive.
Appeal dismissed.
200

SHEPHERD, James Lawrence - CCA, 11.6.99
Citation: R v Shepherd [1999] NSWCCA 162
Sentence appeal.
Supply prohibited drug (cannabis).
MT 9m, AT 12m.
Sentencing judge took 10 days pre-sentence custody into account, whereas applicant had served 8 days pre-sentence custody.
Guilty plea - first offence - part of a scheme to bring a box of marijuana from interstate - domestic courier or go-between.
Aged 26 - married with 2 young children - separated from wife at time of offences - employed as a ceiling fixer - on compensation at time of offence & therefore receiving reduced income - experiencing financial pressures - now reunited with wife & fully employed.
Whether matter could have been dealt with summarily in LC - whether sentence greater in DC - whether sentence manifestly excessive.
Appeal dismissed.
201

AH-SEE, Stephen Brian - CCA, 30.6.99
Citation: R v Ah-See [1999] NSWCCA 175
Sentence appeal.
Armed robbery.
MT 4y, AT 3y.
The applicant, armed with a knife, robbed a person of a sum of money. He was on recognizance at the time of the offence. The offence was not premeditated & was an amateurish effort doomed to failure. Affected by alcohol at the time.
Applicable principles as to sentencing of Aboriginal persons - prospects of rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
202

FLEMING, Nathan Raymond - CCA, 9.6.99
Citation: R v Fleming [1999] NSWCCA 142
Sentence appeal.
Armed robbery; B&E; + 13 other offences taken into account.
MT 4y, AT 4y.
Armed robberies of shopkeepers in small businesses - armed with large knife. Applicant a heroin addict - offences carried out to pay for addiction - subjected to physical injury by drug dealer to enforce payment of moneys said to be owing.
Aged 21 - guilty plea.
Good prospects of rehabilitation - history of chronic ongoing nocturnal enuresis - difficulty of coping with bedwetting in prison - whether sentence manifestly excessive.
Appeal dismissed.
203

FARHAT, Tagro - CCA, 21.6.99
Citation: R v Farhat [1999] NSWCCA 174
s.5F application for leave to appeal against refusal to order permanent stay.
Offences of defrauding Commonwealth.
Bogus claims made on Health Insurance Commission by receptionist & office manager of medical centre.
Manner of investigation - alleged corruption of prosecution - alleged inability to have a fair trial.
Jago v District Court of NSW (1989) 41 A Crim R 307 considered.
Appeal dismissed.
204

BROWN, Richard - CCA, 9.6.99
Citation: R v Brown [1999] NSWCCA 143
Sentence appeal.
Possess shortened firearm; possess unregistered firearm.
MT 18m, AT 6m.
Pre-sentence custody taken into account.
The applicant was observed by police walking along carrying a small backpack. A short time later he dropped the pack in the front yard of a nearby home. The police inspected the backpack which was found to contain a .22 calibre rifle with a shortened barrel & sawn stock. A search of the area resulted in the location of a black wool beanie with 2 eye holes cut out.
Aged 39 - long criminal history - long history of heroin abuse - poor prospects or rehabilitation - unemployed.
Right to silence - whether inference weapon for hostile or unlawful purpose possible - whether sentence manifestly excessive.
Appeal allowed: resentenced to MT 12m, AT 4m.
205

PATSALIS, Michael - NSW SC, Kirby J, 30.6.99 - 107 A Crim R 432
SPATHIS
, Alexios
Citation: R v Patsalis & Spathis [No.1] [1999] NSWSC 649
Application for separate trials.
Jointly charged with murder.
Appropriate test - whether positive injustice to accused if tried jointly with co-accused - use of cut-throat defence - each explains complicity by ignorance of criminal purpose of other.
Common witnesses - convenience of joint trial - any prejudice cured by appropriate direction.
Application dismissed.
206

GRAMMENOS, Maria - CCA, 7.6.99
Citation: R v Grammenos [1999] NSWCCA 145
Sentence appeal.
Multiple counts of make false instrument; equivalent number of counts of use false instrument; 6 x obtain valuable thing by deception.
MT 2y, AT 3y.
Applicant aged 22 - offences covered span of time starting from when she was 16.
Guilty plea - first offences.
The vast bulk of the offences consisted of participation in a scheme whereby a large banking corporation was prevailed upon to pass money to the applicant from various accounts upon her representations to them & the production of some documentation.
Unusual features. The offences began when the applicant became aware that she was born to a surrogate mother. Contact with the birth mother was refused. This triggered a gambling addiction. She refused to attend psychiatric counselling arranged by her parents.
Attempt at rehabilitation - whether sentence manifestly excessive.
Appeal allowed: resentenced to MT 15m, AT 21m.
207

WALKER, John Frederick - CCA, 9.6.99
Citation: R v Walker [1999] NSWCCA 144
Sentence appeal.
Robbery in company; + 1 charge of drive stolen MV.
MT 21m, AT 15m.
The applicant was the driver of a car for 2 robbers who robbed a store of $350 whilst armed with wrenches. The applicant received $80 for his participation.
Aged 25 - guilty plea - unemployed - addicted to heroin - in breach of a CSO at the time of the offence - father of 5 children - youngest child with serious medical problems - de facto finding it hard to cope.
Reduction of MT to enable offender to return to community to undertake training course - whether sentence manifestly excessive.
Appeal dismissed.
208

KHOUZAME, Abdoula - CCA, 2.7.99 - 108 A Crim R 170
SALIBA
, Samson
Citation: R v Khouzame & Saliba [1999] NSWCCA 173
Conviction appeal.
1 x aggravated sexual assault.
Khouzame: MT 6y, AT 3y.
Saliba: MT 5y, AT 3y.
Complainant aged 16,
Complainant affected by alcohol & traumatised by event - difficulty in identifying separate acts of penetration by each accused - possible complainant consented to some acts - need for separation of charges - duplicity.
Appeal allowed: new trial ordered.
209

AHMADI, Ghulam - CCA, 23.6.99
Citation: R v Ahmadi [1999] NSWCCA 161
Conviction appeal.
Supply commercial quantity heroin (180 grams).
MT 2y 8m, AT 2y.
The appellant was arrested in a McDonalds carpark at night. The Crown alleged he was involved in the supply of a quantity of heroin to an undercover police officer immediately prior to his arrest. Co-offender pleaded guilty & gave assistance to police. Appellant had more dominant role than co-offender.
First offence - grew up in Afghanistan - limited intellectual function - limited education.
Admission into evidence conversations between appellant & 2 detectives; admission into evidence of ERISP between appellant & same 2 detectives - parity.
Appeal dismissed.
210

CONSTANTINOU, Sam - NSW SC, 4.6.99 - 108 A Crim R 73
Citation: R v Constantinou [1999] NSWSC 520
Redetermination of life sentence under s.13A Sentencing Act 1989.
3 x murder; 4 x robbery with striking & wounding; 1 x robbery with striking.
Received 3 life sentences.
Applicant & co-accused would target elderly men in order to rob them for money to buy drugs. Each of the attacks involved severe beatings. Did not intend to kill or inflict serious bodily injury or foresee possibility of death.
Applicant aged 19 at time of offences & 24 at time of sentencing - began taking drugs at age 11 - addicted to heroin by age of 18 - presented as rebellious & undisciplined with lifestyle that was irresponsible & without direction.
Age considered - prospects of rehabilitation - co-offender's sentence reduced.
Application allowed: resentenced to MT 30, AT life.
211

GREEN, Malcolm Thomas - CCA, 18.5.99
Citation: R v Green [1999] NSWCCA 97
Sentence appeal.
Manslaughter.
MT 8y, AT 2*y.
On evening of killing, applicant had been at deceased's residence drinking alcohol & watching TV. Applicant accepted deceased's invitation to stay overnight. While he was trying to go to sleep, applicant alleged deceased entered bedroom & made advances toward him which the applicant resisted, but deceased persisted. He then proceeded to punch & stab the deceased to death. Applicant claimed alleged conduct of the deceased triggered memories of his belief that his sisters had been sexually abused by his father. Deceased sustained 10 stab wounds with 16 additional injuries, including a fractured skull.
Applicant aged 22 at the time, deceased 36 - recently separated from de facto - gave himself up to police - genuine remorse - rehabilitation prospects favourable - abusive family history - priors for multiple thefts, multiple cultivate & use illicit drugs, multiple assaults - guilty plea - provocation.
Whether sentence imposed exceeded range of discretion of sentencing judge.
Appeal dismissed.
212

FITZPATRICK, John Peter - CCA, 28.5.99
Citation: R v Fitzpatrick [1999] NSWCCA 158
Sentence appeal.
Larceny of MV; + a Form 1 matter.
MT 18m, AT 6m.
Applicant approached a vehicle parked on a street, used a key he had with him to open it, started the vehicle & drove off. He travelled to the city, removed the compliance plate & exchanged it with another from a vehicle he owned. On a separate occasion he went to another car, opened the locked door & drove the vehicle away using a spare key. He continued to use this car. A friend of the applicant drove the 2nd vehicle to the applicant's house where the applicant exchanged the console from the 2nd car with that of the 1st.
Priors: escape from custody, BE&S, larceny of MV.
Whether sentence excessive.
Leave to appeal refused.
213

PRITCHARD, Peter Harold Joseph - CCA, 14.7.99 - 107 A Crim R 88
Citation: R v Pritchard [1999] NSWCCA 182
Sentence appeal.
Buggery; assault with intent to commit buggery; 2 x indecent assault; + 4 x indecent assault taken into account.
MT 4y, AT 2y.
Applicant a former priest with the Society of St Gerard Majella within the Paramatta Parish. For a time, the applicant was principal of the Newman High School which was run by the Society. In the main, the victims were resident postulants or novitiates undergoing training before taking their vows. The 8 offences involved 8 victims & were committed over a 10 year period.
Impact upon sentencing of the repeal of the offence of buggery pursuant to s.79 Crimes Act - significance of loss of vocation as a priest in consequence of conviction & sentence - question of parity.
Appeal dismissed.
214

BLANCO, Jose - CCA, 14.5.99 - 106 A Crim R 303
Citation: R v Blanco [1999] NSWCCA 121
Sentence appeal.
Knowingly concerned in importation of trafficable quantity cocaine.
12y with NPP of 8y.
The cocaine was brought into Australia from Bolivia by a co-offender, the drugs contained in condoms which the co-offender had swallowed. X-rays revealed the drugs, quantity found was 341.2 grams. Appellant was to receive the drugs from the co-offender & paid money to the co-offender for their delivery. Appellant threatened co-offender's de facto & relatives.
Aged 22 - guilty plea not indicative of contrition - youth & prior good character - inexplicable delay between arrest & charging - deliberately chose not to give full account of his role - no priors.
Manifestly excessive - insufficient weight given to plea of guilty - insufficient weight given to delay in prosecution - insufficient weight given to applicant's youth, clear record - error in determining where applicant stood in the hierarchy of those involved in the importation.
Appeal allowed: resentenced to 10*y with NPP of 7y.
215

AMD - CCA, 24.6.99 - 107 A Crim R 518
Citation: R v AMD [1999] NSWCCA 171
Crown appeal.
2 x supply trafficable quantity cannabis.
3y PD.
The 1st count involved an amount of 446 grams of cannabis leaf & the 2nd count an amount of 9,061 grams.
Police surveillance operation.
Aged 40 - guilty plea - prior drug offences - showed contrition.
Respondent's assistance to authorities established to be accurate, reliable & continuing - benefit to the community of assistance together with impediment to ongoing assistance by full custodial sentence amounting to exceptional circumstances warranting departure from usual course of imposing full-time custodial sentence.
Appeal dismissed.
216

N - CCA 29.6.99 - 106 A Crim R 493
Citation: R v N [1999] NSWCCA 187
Sentence appeal.
Supply prohibited drug (heroin).
MT 28m, AT 14m.
Undercover police operation.
Female - guilty plea - prior drug offences - on parole at the time.
Sentence discounted for co-operation.
Entrapment mitigating factor - pre-trial custody not considered in sentencing.
Ridgeway (1995) 184 CLR 19 applied.
Appeal allowed: resentenced to MT 15m, AT 5m.
217

THOMAS, Christopher Raymond - CCA, 1.7.99
Citation: R v Thomas [1999] NSWCCA 168
Crown appeal.
5 x buggery; 3 x homosexual intercourse with male between ages 10 & 18; 1 x sexual intercourse without consent with person under 16; 1 x indecent assault; + further 16 offences taken into account.
6y with NPP of 4y.
Some offences committed on children under respondent's guardianship.
Aged 52 - priors for sexual & armed robbery offences - respondent sexually abused as a child, leading to sexual disorientation - history of alcoholism.
Not isolated incidents - part of a systematic pattern of sexual misconduct - abuse of children under his care rendered respondent more culpable - public interest in protecting children outweighed mitigating circumstances.
Pearce (1998) 72 ALJR 1416 followed.
Appeal allowed: resentenced to MT 6y, AT 4y.
218

MARKOVINA v THE QUEEN - HC, 26.3.99 - 73 ALJR 655
During course of a criminal trial in WA, counsel referred to sentencing principles in Williams (No.2) [1982] WAR 281. Trial judge did not take those principles into account. On appeal to the WA CCA, counsel again referred to Williams (although it was not the subject of a specific ground of appeal). In its decision, the CCA did not refer to Williams.
On appeal to the HC, the Crown conceded that the CCA erred in not holding that the trial judge had made an error in failing to take Williams into account.
Appeal allowed: orders of the CCA set aside; the appeal to the CCA should be allowed & matter remitted to that Court to consider whether some other sentence should be imposed.
219

GREEN v THE QUEEN - HC, 14.4.99 - 73 ALJR 575
Appellant convicted of conspiracy to commit murder on the evidence of his co-conspirator. Co-conspirator's evidence corroborated by 2 pieces of evidence - one concerning a phone call allegedly made by the appellant; the 2nd a statement made by the appellant to the police. The Crown alleged this statement was a lie & that its falsity corroborated the evidence of his co-conspirator. Appeal to the WA CCA on directions on corroborative value of lies. The CCA agreed there had been no direction, however, it dismissed the appeal by applying the proviso.
Evidence - corroboration - what constitutes - admissions & conduct of accused - false statements - lies told by accused - directions to jury - whether misdirection caused substantial miscarriage of justice.
Appeal dismissed.
220

CHARLIE v THE QUEEN - HC, 13.5.99 - 199 CLR 387;73 ALJR 809
Appellant admitted killing victim by stabbing her with a knife. Central issue was whether appellant had the state of mind required for murder under the Criminal Code (NT), 162(1)(a). On appeal to NT CCA, appellant contended that by reason of s.31 of the Code, the offence of murder created by s.162(1)(a) requires proof that death was foreseen as a possible consequence of the appellant's conduct. The CCA rejected this contention on the basis that s.162(1)(a) prescribes its own mental element & therefore there is no scope for the operation of s.31.
Mens rea - statutory offence - elements of offence - intent - foresight - relationship between general exculpatory provision & specific provision creating offence of murder - Criminal Code (NT), ss.31, 162(1)(a).
Appeal dismissed.
221

CHRISTIE, Wayne Carl - CCA, 28.5.99
Citation: R v Christie [1999] NSWCCA 159
Sentence appeal.
2 x demand money with menaces.
MT 3y, AT 1y.
Applicant entered a building society & passed a pre-written note to a teller & made a verbal demand. The teller removed some notes from her drawer & placed them on the counter. The applicant made a further demand for money & the teller then placed some larger notes on the counter. The applicant then stated he had a gun & placed his hand across his body to indicate this was so. She produced some more money & the applicant left (netting $1,500). He waited outside until everything was clear before entering the premises again & obtained a further $1,000. The offences were planned. No weapon was used, although persons confronted believed he had a weapon. Attempt to disguise himself.
Aged 37 - commenced university course after serving prior imprisonment but did not complete it - history of alcoholism - intoxicated whilst committing first offence but sober during 2nd - expressed sorrow & contrition - wrote to bank manager apologising to employees. Priors include sexual intercourse with child under 10.
Whether sentence excessive.
Appeal dismissed.
222

HELMRICH, Mark - CCA, 24.5.99
Citation: R v Helmrich [1999] NSWCCA 153
Sentence appeal.
Armed with intent to commit indictable offence (stealing); assault; stealing.
MT 3y 9m, AT 1y 9m.
Applicant, wearing a black stocking over his face & a black beanie, entered a supermarket through the front doors, armed with a large kitchen knife & carrying a large cotton bag. He grabbed a shopper around the neck, held the knife to her throat & ordered the attendant to open the cash register drawer & put the money into his bag. The drawer fell to the floor & whilst still holding the shopper, he reached to the floor & collected it, then forced the shopper to another register & ordered her to put money into his bag. The shopper was then forced to the front doors where she was left as the applicant ran off. The sum taken was $2,000.
Planned act of cunning committed for ease of obtaining monies.
Aged 31 - abuser of prohibited drugs & alcohol - lack of motivation toward rehabilitation - early guilty plea - remorse for assault but not for stealing - 18 prior offences - breach of CSO - special circumstances.
Totality.
Appeal allowed: resentenced to MT 3y, AT 1*y.
223

MANGOLINI, Anthony - CCA, 26.5.99
Citation: R v Mangolini [1999] NSWCCA 155
Sentence appeal.
BE&S; possess safe-breaking implements; steal conveyance.
MT 2y, AT 1y.
The applicant & other persons broke into a house whilst owners were overseas after applicant became aware of their absence. Alarms were disabled. They broke into 2 safes inside the house, as well as 3 trap safes. Cutting & oxy implements found in the house had been in the applicant's possession. The MV had been parked in the garage of the house with the battery leads disconnected & was later found facing the opposite direction with the leads reconnected. It had been used by the applicant during the owners' absence. Value of property stolen $77,976, none of which was recovered. Deliberate & pre-meditated.
Priors: numerous traffic offences - goods in custody - steal Cth property - possess prohibited drugs - possess shortened firearm - possess prohibited weapon - steal from dwelling - forced entry - previously imprisoned.
Aged 24 - on 2 recognizances at time of offences - also on bail at time of offences - addicted to heroin - attempting to overcome addiction - special circumstances.
Appeal allowed: resentenced to MT 1y, AT 1*y.
224

BENECKE, Daniel Stephen - CCA, 22.6.99 - 106 A Crim R 282
Citation: R v Benecke [1999] NSWCCA 163
Conviction appeal.
Armed robbery (knife).
Alleged that appellant, wearing a dark-blue sloppy joe with a hood & with a black handkerchief covering his face below his eyes, entered a service station & at knifepoint robbed the console operator of a sum of money.
The Crown adduced 4 pieces of evidence: voice identification; police dog handler whose dog picked up a scent near the service station about an hour after the robbery & followed it to a certain house; 3rd & 4th were of independent witnesses who put the appellant in the general neighbourhood of the service station shortly before the robbery.
Whether error in admission of evidence of police officer from Tracker Dog Squad - whether failure to adequately direct jury in relation to tracker dog evidence - voice identification - whether verdict could be supported having regard to the evidence.
Appeal allowed: new trial ordered.
225

RICHARDS, Warren Austin - CCA, 29.4.99 - 107 A Crim R 318
BIJKERK
, Roy Anthony
Citation: R v Richards & Bijkerk [1999] NSWCCA 114
s.5F appeal against interlocutory order for special arrangements for jury.
Three previous trials had been abandoned due to jury disagreement & jury tampering.
Special arrangements for jury - prevention of fair trial - proceedings to be held in camera - public interest in open proceedings - effect of publicity on fair trial.
Given history, trial judge entitled to believe that the jury could again be interfered with & was entitled to make an order for special treatment of the jury. However, it would be incumbent upon the judge at trial to inform the jury that no adverse inference should be drawn as a result of special treatment of the jury.
Whether appropriate to order jury to be locked up while deliberating.
Appeal dismissed.
226

CHAN, Thanh Ma - CCA, 26.5.99
Citation: R v Chan Thanh Ma [1999] NSWCCA 154 revised - 11/06/99
Sentence appeal - extension of time.
Supply prohibited drug (heroin).
MT 3*y, AT 1y.
Police stopped the applicant when he attempted to enter a club. A search of his pockets disclosed a small foil containing heroin. A search was then made of his car where a set of electronic scales & a package of heroin were discovered. The package in the offender's pocket weighed 0.03 grams & the package in the car weighed 29.8 grams.
Aged 35 - offence committed whilst on parole - early guilty plea - co-operated with authorities - demonstrated contrition - heroin habit, expressed desire to overcome it - attended drug counselling in gaol. Priors for supply heroin.
Special circumstances - encouragement for rehabilitation.
Appeal allowed: resentenced to MT 2*y, AT 1*y.
227

SEN, Abnish Kumar - CCA, 11.6.99
Citation: R v Sen [1999] NSWCCA 199
Sentence appeal.
2 x aggravated dangerous drive occasioning death.
MT 6y 9m, AT 2y 3m.
Two people were killed when the applicant passed through a red traffic light, 5kph above the speed limit. There was considerable concentration of alcohol in his blood at the time (0.219).
Aged 29 at time of offences - early plea of guilty - no special circumstances - remorse - contrition - priors for speeding & fine default.
Trial judge erroneously referred to applicant's speed as being 80 to 85 kph, whereas in fact he was doing 65 kph in a 60 kph zone. This had led to error in relation to the sentencing statistics information upon which the sentencing judge relied when passing sentence. At the appeal, the Crown conceded that the information given to the sentencing judge was incorrect.
Appeal allowed: resentenced to MT 5y 3m, AT 1y 9m.
228

HELENE, Andrew Mark Phillip - CCA, 28.7.99
Citation: R v Helene [1999] NSWCCA 203
Conviction and sentence appeal.
2 x armed robbery; 2 x assault.
MT 2y, AT 2y.
Two school boys were at a bus stop at night waiting to catch a bus home. When the bus did not arrive they went to a telephone booth to call for a taxi. A number of youths approached them. One asked for cigarettes & money. When they refused, the applicant pulled out a machete and held it to one victim's waist. The group of youths then walked away laughing. The victims used the phone to try to call a taxi. The group of youths came back and a co-offender grabbed one victim & demanded money. They took his wallet. The other victim gave them his money as well. The offenders then left.
Aged 19 at time of offences - considerable orthopaedic disabilities from car accident - some contrition - assistance to authorities - priors: drug offence.
Appeals dismissed.
229

JOHNS, Terrence Stanley - CCA, 2.8.99 - 110 A Crim R 149
Citation: R v Johns [1999] NSWCCA 206
Reference from the Attorney-General, pursuant to s.474C(1)(b) Crimes Act 1900 referred this matter to the CCA to be dealt with as an appeal under Criminal Appeal Act 1912.
Appellant convicted of murder. His original appeal against conviction was dismissed by the CCA ( R v Johns (1978) 1 NSWLR 282) as was his appeal against sentence ( R v Johns (1978) 2 NSWLR 259). An appeal to the High Court on both conviction & sentence was dismissed ( Johns v The Queen (1979-80) 143 CLR 108).
Appeal for error of fact or law below - admissions - discretion to reject - relevance of conduct of trial - former law & practice - discretion to reject does not relate to dispute as to making - allegation of police conspiracy - proper directions - general evidence of police corruption - fresh evidence - materiality & cogency - relevance of remoteness as affecting probative value - unadopted admissions - advantages of jury.
Appeal dismissed.
230

PULHAM, Mark Stephen - CCA, 29.7.99
Citation: R v Pulham [1999] NSWCCA 202
Conviction appeal.
Knowingly concerned in the importation of narcotic goods (32.6 grams ecstasy in the form of 400 tablets).
A parcel containing ecstasy tablets was posted from North London to an address in Elizabeth Bay. The addressee had been the tenant there about 4 years previously. The parcel became part of a controlled delivery. The present tenant took the parcel to the appellant. There was no evidence that either the present tenant or the appellant knew what was in the parcel.
The Crown case was 'wafer thin'- insufficient to sustain a conviction.
Insufficient evidence that appellant 'knowingly concerned'& strong defence evidence. Jury verdict constituted miscarriage of justice.
Appeal allowed: conviction quashed, verdict of acquittal entered.
231

TAUFUA, David Uaine - CCA, 30.7.99
Citation: R v Taufua [1999] NSWCCA 205
Leave to appeal out of time against conviction.
Armed robbery.
The applicant was re-tried after a successful appeal to the CCA in relation to a conviction for the above offence. At the re-trial, the jury returned a verdict of guilty & the applicant was sentenced to MT 4y 9m, AT 1y 8m.
Crown case was that applicant & co-offender (who was armed with a knife) entered a mini market in Newcastle & had stolen $266.00 from the cash register as well as 3 packets of cigarettes. The co-offender had pleaded guilty to the charge in 1994 but had refused to name the person who was with him at the time.
Trial judge erred in his directions to the jury about the failure of either party to call certain witnesses.
Whether Jones v Dunkel direction should have been given against the accused or the Crown, or at all.
Appeal allowed: new trial ordered.
232

JAMES, Reginald Robert - CCA, 23.7.99
Citation: R v James [1999] NSWCCA 191
Conviction appeal.
5 x indecent assault (upon female under 16).
The jury had found the appellant guilty on the 1st, 2nd & 5th charges but not guilty on the 4th. The jury was unable to reach a unanimous verdict on the 3rd count.
All offences were said to have been committed when complainant was 13 & living with her parents & some of her 6 siblings in a country town. The appellant was the husband of her oldest sister. He was aged 29 at the time.
Grounds: directions given by trial judge relating to evidence of character that he had adduced; whether miscarriage of justice.
R v Jones (1997) 191 CLR 439 applied. No departure from principle in R v Murphy (1985) 4 NSWLR 42 as to directions given by trial judge about character.
Appeal allowed: conviction quashed, verdict of acquittal entered.
233

ADAM, Gilbert (aka Daewood ODISHOU) - CCA, 23.7.99 - 47 NSWLR 267
Citation: R v Gilbert Adam [1999] NSWCCA 197
Conviction and sentence appeal.
Murder; AOABH.
MT 21y, AT 7y.
Appellant was jointly charged with his brother (Richard Adam). Appellant found guilty of the murder of an off-duty police officer who was killed in the car park of the Cambridge Tavern Hotel, Fairfield. The jury returned a verdict of not guilty by direction on the AOABH charge.
Application for discharge of jury - inadvertent & potentially prejudicial event - material before jury not admitted into evidence - whether direction overcame prejudice - exceptions to hearsay rule - evidence of previous representation admitted because relevant for a purpose other than proof of the fact intended to be asserted by the representation - whether 'purpose'to be ascertained subjectively or objectively - 'fresh in memory'.
Whether verdict unsafe & unsatisfactory.
Appeal dismissed.

Note: This matter was successfully appealed in the High Court and a new trial was ordered.

234

ADAM, Richard - CCA, 23.7.99 - 106 A Crim R 510
Citation: R v Adam [1999] NSWCCA 189
Conviction appeal.
Maliciously inflict GBH.
MT 2y, AT 8m.
Appellant was jointly charged with his brother (Gilbert Adam). Appellant was found not guilty of murder & the jury declined to find him guilty of manslaughter. He was also found not guilty of maliciously inflict GBH with intent but guilty of the statutory alternative of maliciously inflict GBH. The appellant chose not to give evidence.
Evidence within principles in O'Leary v The King (1946) 73 CLR 566 - tendency evidence - evidence of consciousness of guilt - lies - direct liability - accessorial liability - directions on application of standard of proof in a substantially circumstantial case - whether verdict unreasonable & cannot be supported.
Appeal allowed: verdict of acquittal entered.
235

THOMAS, Alan Robert - CCA, 11.3.99 - 107 A Crim R 311
Citation: R v Thomas [1999] NSWCCA 34
Leave to appeal out of time against sentence.
Perjury; attempt to corruptly receive commission; conceal serious offence; pervert the course of justice; corruptly receive commission.
MT 3y, AT 5y.
Offences included an occasion on which applicant had agreed to receive monies for provision of a false alibi for a person charged with murder. Due to the applicant's provision of this false alibi, the person was found not guilty. Offences were committed over a significant period of time. Repeated & deliberate criminality.
Aged 41 - former senior non-commissioned officer of Police Service with commendable service record - married with 2 small daughters - frequent contact with older son from previous marriage - family placed into protection - no priors.
Continuing significant assistance to authorities - special circumstances.
Appeal allowed: MT 3y, AT 4y.
236

HART, Norma Elaine - CCA, 26.7.99
Citation: R v hart [1999] NSWCCA 204
Crown appeal.
Social Security fraud.
300h CSO.
Respondent's husband had been in receipt of Commonwealth superannuation payments. Following his death, an entitlement to such payments accrued to the respondent, commencing on 27.8.97 with arrears to 13.5.87. Thereafter, respondent continued to draw the aged pension without disclosing the receipt of the superannuation payments. Had disclosure been made, the aged pension would have been reduced. Over a period of some 10 years, an overpayment of $75,597 was made.
Aged 74 - prior conviction for drawing unemployment benefits without disclosing her husband was in receipt of superannuation benefits.
Exceptional case due to ill health, disabilities & age.
Appeal dismissed.
237

CORNELISSEN, Peter Joseph Paul - CCA 29.7.99
Citation: R v Cornelissen [1999] NSWCCA 211
Leave to appeal out of time against conviction.
Supply trafficable quantity amphetamines.
MT 9m, AT 13m.
Three detectives 'loaded up'the appellant with amphetamines, then weighed the amphetamines in front of the appellant & charged him with supply. They supported the charge by giving false evidence which they admitted to during the Royal Commission into the NSW Police Service. '... wicked conduct and a serious abuse of power'.
Crown accepted that its case rested entirely upon police evidence & accordingly conceded that the appeal should be upheld.
Appeal allowed: verdict of acquittal entered.
238

SIMON, Shane - CCA, 4.8.99
Citation: R v Simon [1999] NSWCCA 224
Sentence appeal.
Armed robbery.
MT 3y, AT 2*y.
Sentencing judge anticipated applicant would spend approx the 1st year of his AT at a drug rehabilitation centre.
Applicant entered service station holding a blood-filled syringe, pointed the syringe at the console operator & demanded money. The owner entered the shop area & the applicant threatened him as well. Attempt to conceal his face with a t-shirt tied around his neck. The t-shirt fell away several times, allowing the victims to see his face. Incident recorded on video tape by surveillance camera. $75 stolen but later recovered.
Full admissions - affected by Rohypnol at time of offence - guilty plea - grossly disturbed family background - parents deserted the family during his childhood - institution care for lengthy period - extreme educational & verbal skills retardation - personal financial problems - drug dependence - extensive record including matters of dishonesty, malicious injury, traffic offences, drug offences, assaults & steal from the person.
Need to take into account substantial restrictions on liberty in rehabilitation programme.
Appeal allowed: MT 2y 3m, AT 3y.
239

BAGLEE, Anthony - CCA, 4.8.99
Citation: R v Baglee [1999] NSWCCA 223
Sentence appeal.
BE&S - MT 2*y, AT 1*y.
Sentenced at same time to FT 12m for 3 X BE&S; 7 x receiving. Other offences taken into account (obtaining money, furnish false particulars, goods in custody, driving offences, possess cannabis).
Reasonable amount of property involved - applicant seen at property & then running through neighbouring yards with a bag belonging to owners of the property where offence occurred. The applicant's brother also involved, acting as 'lookout'All BE&S offences involved breaking into houses or flats whilst occupants were out, in some instances flyscreens had been removed & windows opened, in one instance the front door of the flat was kicked in.
E2 classification resulting from an escape - forced to serve total sentence in maximum security prison.
Extensive record - guilty plea - positive gaol reports regarding education - taking part in drug & alcohol rehabilitation.
Insufficient credit for pre-sentence custody.
Appeal allowed insofar as dates of sentences varied.
240

COX, David - CCA, 2.8.99
Citation: R v Cox [1999] NSWCCA 220
Sentence appeal.
Aggravated sexual intercourse; 3 x aggravated indecent assault.
MT 2y, AT 1*y.
Circumstance of aggravation was that victim was a child under 16, namely 13. She was the applicant's stepdaughter. Offences occurred whilst victim was on weekend access visits to applicant's home.
Aged 35 - guilty plea. Good employment record until sustaining serious injuries in MV accident, since which he has had to rely upon workers' compensation - has also been self-employed part time in furniture restoration from home. Willingness to attend rehabilitation programme & seek assistance of psychological counselling in connection with his depression & other problems.
On appeal submitted that judge gave insufficient weight to plea of guilty, did not mention matter of remorse & did not deal with the question of rehabilitation sufficiently.
Appeal allowed: resentenced to MT 1*y, AT 1*y.
241

BASILIOUS, David - CCA, 2.8.99
Citation: R v Basilious [1999] NSWCCA 219
Sentence appeal.
Steal from the person; robbery; BE&S.
MT 12m, AT 18m.
Pre-sentence custody taken into account.
Applicant went to home of victim whom he had met the previous day, an argument developed & applicant demanded victim give him his mobile telephone. Victim, aged 16, was slightly built & too frightened to resist. Five days later, applicant saw victim visiting toilets at Chatswood Railway Station interchange. As victim left toilet cubicle, applicant confronted him, grappled with him & stole some items of property. Three months later, applicant broke into a home in Chatswood, stole 60 compact discs which he dropped when making his escape.
Aged 18 going on 19 when offences committed - powerful physique - on probation at the time for 2 other groups of offences, including drug offences, dishonesty offences, failing to appear, malicious damage. Applicant using cannabis at time of commission of offences the subject of the appeal.
Material before sentencing judge about existence of brain damage - some suggesting due to use of illegal drugs, other which suggested as a result of injuries sustained in MV accident.
Subjective features - whether sufficient weight given.
Appeal dismissed.
242

VEITCH, John David - CCA, 14.7.99
Citation: R v Veitch [1999] NSWCCA 185
Conviction appeal.
3 x sexual intercourse with person under 16y.
MT 6y, AT 2y.
Appellant had been indicted on 10 charges relating to sexual offences against his step-daughter (under 16) & under his authority. He pleaded guilty to 3 of those charges which was accepted by the Crown in full discharge of the indictment. A couple of days later, he was further indicted on 3 charges of sexual intercourse with his stepson who was then above the age of 10 & under 16 & who was also under the authority of the appellant. The appellant pleaded not guilty to these charges, however, he was found guilty on all 3 charges. The Crown case was wholly dependent upon the evidence of the complainant.
Relationship evidence - tendency evidence - purpose to be made clear by the Crown & directions given by trial judge accordingly.
Appeal allowed: new trial ordered.
243

KARAGEORGE, Constantine - 30.7.99
Citation: R v Karageorge [1999] NSWCCA 213
Sentence appeal.
Act with intent to pervert course of justice.
This is a sentence appeal following a retrial. The applicant's was successful in his conviction appeal to the CCA in which the new trial was ordered (see KARAGEORGE, unreported, NSWCCA, 17.7.98).
Appellant was a practising solicitor at time of original offence. A conversation was recorded by police between appellant & a journalist which related to publicity to be arranged for the upcoming trial of a client of the appellant so that a stay application could be made. The journalist did not pursue the matter.
Whether applicant entitled to credit for time in pre-sentence custody, bail refused, notwithstanding concurrently serving a sentence for another conviction later quashed.
Appeal allowed: resentenced to MT 12m, thereafter to be released on recognizance for 18m.
244

DELK, Frederick Alvin - CCA, 21.5.99 - 46 NSWLR 340; 106 A Crim R 240
Citation: R v Delk [1999] NSWCCA 134
Conviction appeal.
Steal from the person in circumstances of aggravation.
Whilst in an exclusive jewellery store ostensibly to purchase some jewellery, the appellant lunged over the counter & grabbed three pieces of jewellery, at the same time reaching for the key to release the security lock on the front door of the shop. The salesman moved to the appellant's side of the counter & grabbed him by the throat. During the ensuing struggle, the appellant punched the salesman about the forehead, causing a number of injuries which constituted actual bodily harm. The appellant escaped but was pursued & apprehended. The jewellery was recovered.
The issue at trial was whether the appellant had stolen the jewellery from the person of the salesman, the appellant contending that the property had to be taken from the actual person of the salesman & that it was not sufficient that it was taken from his immediate presence - trial judge rejected this argument.
Steal from the person - not actual person - presence sufficient.
Appeal dismissed.
245

ABDULLAH, Afif & Ors - CCA, 7.7.99
Citation: R v Abdullah & Ors [1999] NSWCCA 188
s.5F application by Commissioner of the Australian Federal Police.
At trial, applicant's counsel began to question a witness in a way which would have revealed the identity of an informer. A solicitor for the Commonwealth Commissioner of Police appeared, relying on public interest immunity in submitting that the witness should not be required to answer such questions. The trial judge ruled that the evidence could be given.
Public interest immunity - confidential police informer - test to be applied - claim for immunity refused by order of trial judge - whether order warranted.
Appeal allowed.
246

ROBINSON, James Allan - CCA, 14.7.99
Citation: R v Robinson [1999] NSWCCA 186
Reference by the Attorney-General under Pt 13A Crimes Act.
Assault while being armed with intent to rob; malicious wounding with intent to prevent lawful apprehension.
14y on 1st count; 8y on 2nd count (no mention made of MT or AT).
The appellant was convicted in 1972 & sought a review of his conviction under pt 13A Crimes Act. At his trial, disputed confessional evidence had been admitted. Later the appellant learnt of material which affected the honesty of the police officers who gave evidence against him. That material concerned things allegedly done by 2 police officers well after they were said to have fabricated the confessional material. The appellant relied upon that material as fresh evidence.
Fresh evidence - whether cogent.
Appeal dismissed.
247

MITCHELL, John Michael - CCA, 21.6.99 - 108 A Crim R 85
Citation: R v Mitchell [1999] NSWCCA 120
Appeal against limiting term nominated.
Accessory before the face to the malicious infliction of GBH.
MT 14y, AT 4y 8m.
On the 2nd day of trial in 1994, the appellant changed his plea to guilty. In accordance with a direction given by the judge, the jury returned a verdict of guilty. The judge then ordered an adjournment to allow medical evidence to be adduced for the purpose of sentencing. At the sentence hearing, appellant's legal representatives sought leave to withdraw the guilty plea & proceed to trial. The court was informed that at trial the appellant would rely on a defence of mental illness. The judge was of the view that since the jury had returned a verdict of guilty, he had no power to allow the plea to be withdrawn & the verdict could only be set aside by the CCA. In 1995 the CCA quashed the conviction & ordered a new trial.
On 8.5.1996 the appellant was found to be unfit to be tried. After a special hearing conducted under the Mental Health (Criminal Procedure) Act, he was found guilty. Pursuant to s.23(1)(b) of the Act, the judge nominated a limiting term of 18y 8m & specified a MT & AT.
Minimum & additional terms - factors to be considered - whether limiting term was manifestly excessive.
On appeal the CCA held that notwithstanding the trial judge's technical error in specifying a MT & AT, no other error had been shown in the limiting term nominated.
Appeal allowed: CCA nominated limiting term of 18y 8m but removed references to MT & AT.
248

LOWNDES v THE QUEEN - HC, 17.6.99 - 195 CLR 665; 73 ALJR 1007
Appellant had been convicted in WA for several sexual offences with a child under 13 & received a total sentence of 6 years. The Crown appealed to the CCA of WA & that Court determined that in addition to the term of imprisonment, there should be an order made under s.98 Sentencing Act 1995 (WA) that appellant be imprisoned indefinitely. The Court also decided that a parole eligibility order made by the DC pursuant to s.89 Sentencing Act should be set aside.
In making the decision to set a fixed sentence & grant a parole eligibility order, the sentencing judge had taken into account recommendations that pharmacological libido suppressant treatment could be commenced in prison & continued on parole. The CCA concluded that there was no reason why the whole treatment programme could not be carried out in prison & viewed the appellant as a danger to society unless the treatment proved successful. It was on this basis that the CCA imposed the order for indefinite imprisonment.
Appellant's central submission to the HC was that the CCA had failed to identify any material error of fact or law on the part of the sentencing judge. He argued that the CCA had dealt with the matter as though it were entitled to substitute its own discretion for that of the sentencing judge, regardless of whether any error had been shown.
Appeal allowed.
249

NELSON, Robert Lloyd - CCA, 10.8.99
Citation: R v Nelson [1999] NSWCCA 221
Conviction appeal.
Steal MV; armed assault with intent to rob; 2 x armed robbery.
Appellant entered a supermarket & held a sawn-off shotgun against an employee, demanding money from a cash register. The employee noticed a green tattoo on the back of one of the appellant's hands. The cash register failed to open. Another employee was then accosted & a demand for money was made. Money was given to the appellant. Another employee handed over further money on demand - she also noticed a green tattoo on the back of one of the appellant's hands. The appellant had tattoos similar to those described by the witnesses. The following day, one of the employees made a picture identification of the appellant from 11 photographs. Many months later, the other employees failed to make a positive identification from a video of still photographs, although one selected 2 of the pictures as being similar to the robber, one of which was a picture of the appellant taken after his arrest.
Picture identification evidence - whether error in not excluding - whether 'unsafe & unsatisfactory'.
Appeal dismissed.
250

WATSON, Ronald - CCA, 12.8.99
Citation: R v Watson [1999] NSWCCA 227
Sentence appeal.
11 x indecently assault female under 16.
Aggregate sentence: MT 6y, AT 2y.
5 counts related to applicant's stepdaughter (in 1976 & 1977 - age 13); 4 counts related to applicant's natural daughter (between 1964 & 1967 - age 9-11) & 2 counts related to applicant's other natural daughter (1969/70 - age 11).
Guilty plea - no priors - attempts at rehabilitation - remorse - aged 65 at time of sentence.
Substantial delay in complaint (ranging from 20-30 years) - special circumstances - first time in prison - need for rehabilitation & supervision.
Appeal allowed: new aggregate - MT 4y, AT 18m.
251

FERGUSON, Marcus Charles - CCA, 27.5.99
WILLIAMS, Steven
Citation: R v Ferguson & Williams [1999] NSWCCA 214
Crown appeal.
Inflict GBH with intent to do GBH.
Ferguson: MT 4*y, AT 3*y.
Williams: MT 4y, AT 3y.
Respondents went to a hotel after having been drinking most of the day. A fight broke out between other people & respondents tried to stop it. The fight became more violent. The victim entered the bar during the fighting & grabbed Ferguson, punched him, knocked him to the ground, got on top of him & held him down by the throat. Williams then tried to pull the victim's hands off of Ferguson. The victim punched Williams. Both respondents then fought with the victim, attacking him for about 15 minutes by stomping, kicking & jumping on him. Williams persuaded to stop & left hotel. Ferguson continued with assault. Victim sustained severe internal injuries & required several surgical procedures to abdomen - fortunate to live.
Ferguson: Aged 23 - Aboriginal - provoked - in breach of recognizance at the time - abusive & incompetent upbringing - alcohol problem - contrition - good work history - priors - guilty plea - special circumstances.
Williams: Aged 31 - Aboriginal - provoked - qualified in number of trades - excellent work history - abusive & deprived background - priors - guilty plea - special circumstances.
Appeal dismissed.
252

FRASER, Shane - CCA, 19.7.99
Citation: R v Fraser [1999] NSWCCA 212
Sentence appeal.
Robbery; + possess prohibited drug (52.3 grams cannabis) taken into account.
MT 12m, AT 18m.
Applicant & a co-offender selected a pharmacy to rob. They had made 2 visits & returned a 3rd time when there were no other customers in the pharmacy & approached the victim (female) standing behind the serving counter. They demanded money. The victim opened the till & both men reached across, removed $180 in notes & ran out of the shop. Immediately prior to their demand, the co-offender had attempted to exchange some needles but had been unsuccessful.
Aged 23 - not wearing disguise - guilty plea at earliest opportunity - remorse - unhappy & disrupted family life - alcoholic & violent father - similar step-father - left home to live on streets at 15 - heroin user - priors for motor vehicle offences - steps taken to rehabilitate himself - special circumstances.
Parity.
Appeal allowed: MT 9m, AT 21m.
253

PAEK, Lenhi - CCA, 30.6.99
Citation: R v Paek [1999] NSWCCA 184
Conviction appeal.
Supply commercial quantity prohibited drug (440 grams heroin).
MT 5y, AT 3y.
The Crown asserted that the appellant supplied heroin to the accomplice. There were only 2 witnesses to the conversations & arrangements made by & between the appellant & the accomplice, namely the appellant & the accomplice. Although there was a good deal of evidence from police officers who observed the movements of the appellant, the accomplice & others, they could not say precisely what was happening from time to time. Reliance was placed on evidence from accomplice.
Adequacy of directions - danger of convicting on uncorroborated evidence of accomplice - appropriateness of directions.
Reasonable jury would have regarded evidence as corroboration of strongest kind - reason why defence counsel did not ask for direction.
Appeal dismissed.
254

CARR, Paul James - NSW SC, Greg James J, 23.4.99
Citation: R v Carr [1999] NSWSC 396
Redetermination of life sentence under s.13A Sentencing Act 1989.
Brutal, savage & unprovoked attack upon the deceased. In the earlier stages of the confrontation it appeared the deceased had tried to defend himself. The injury which finally led to his death was the cutting of his throat, done whilst he was either unconscious or approaching unconsciousness. Motive for killing arising out of a grudge the applicant held from an earlier dispute with the deceased, resulting in the applicant being charged with maliciously wounding the deceased & being sentenced to 12m imprisonment, of which he served a MT of 6m.
Various offences committed whilst in prison, although no offence of violence in gaol since 1990. Reports from Serious Offenders Review Council indicating there may be some question relating to rehabilitation.
Application allowed: sentenced to MT 13*y, AT 6y.
255

McLEOD, George Alfred - NSW SC, Sully J, 17.2.99
Redetermination of life sentence under s.13A Sentencing Act 1989.
Applicant killed the deceased by beating her on the head with an iron bar after having sex with her & after she purportedly had asked him for $100. He claimed that they had had sex before for which she had never asked for money. He said that when she asked for money, he just went berserk & began hitting her over the head with the iron bar. The following day, he entered the Surry Hills Police Station & made full confessions to the police.
Application allowed: sentenced to MT 12y, AT 5y.
256

MAIDEN, Stephen Arthur - NSW SC, Dunford J, 8.4.99
Citation: R v Maiden [1999] NSWSC 311
Redetermination of life sentence under s.13A Sentencing Act 1989.
Applicant & another, both escaped convicts on a spree of criminal activity, lured a young 17 year old who had been hitchhiking into the bush & killed him by breaking his neck. They then buried his body in a shallow grave. There had been a prior agreement between them to kill the victim. Applicant was aged 21 at the time of the murder.
Placed in an institution at the age of 3 & remained in institutional care until mid-teens. From age of 15, had a number of convictions for theft, burglary, steal MV, possess housebreaking implements & escape from youth training centre. At the time of the escape, he was serving a sentence of 4y with NPP of 2y for a BE&S and forgery.
Application allowed: sentenced to MR 18*y, AT 6y.
257

CASSAR, Leanne - NSW SC, Sperling J, 9.7.99
SLEIMAN, Emad
Citation: R v Cassar & Sleiman (judgement No.27) [1999] NSWSC 650
Judgement providing reasons for allowing tender by Crown of covertly recorded conversations between the accused at their flat & between them & other persons on the telephone from the flat.
Confessional evidence - unfairness discretion - infringement of 'right to silence'- limitations on police inquisitorial functions - Judges' Rules - when the 'accusatory stage'of police investigations is reached.
Evidence admitted in part.
258

AYOUB, Nabil - CCA, 12.8.99
Citation: R v Ayoub [1999] NSWCCA 231
Conviction appeal.
5 x sex offences (indecent assault; sexual intercourse). All offences against child between ages of 11-15.
Appellant was found guilty of all above charges but was acquitted of a further count of sexual intercourse when child was aged 12.
MT 3y, AT 1y.
Alleged offences extended over period of approx 4* years: 3 offences taking place at child's family home & 2 taking place at appellant's hairdressing salon. Appellant a relative of the child. Claim by appellant of some bad feelings within family.
Directions - corroboration - delay - 'unsafe & unsatisfactory'.
Faulty directions as to standard & onus of proof - verdicts not reasonably open: R v Dwyer [1999] NSWCCA 47.
Appeal allowed: verdict of acquittal entered.
259

KURTZMAN, Desmond Bryce - CCA, 19.7.99
Citation: R v Kurtzman [1999] NSWCCA 215
Sentence appeal.
Dispose of stolen property outside the State.
2y PD.
Applicant employed as a sub-contractor to transport imported soya bean meal which had been off-loaded from a ship & was to be transported to a storage facility at Yarraville. However, he made 3 deliveries to a company at Moama without prior arrangement & he expected to be paid at a later time ($8,000 per load). The applicant did not tell the persons accepting the deliveries that the soya bean meal was illegally obtained.
Aged 56 at time of sentencing - guilty plea - less than marginal assistance to authorities - good character & work ethic - strained financial situation. Priors in 1960s - not previously imprisoned.
Hardship: travelling involved in serving PD (600 kms round trip, there being no closer PD centre).
Appeal dismissed.
260

PINTOS, Washington Herbert - CCA, 21.7.99
Citation: R v Pintos [1999] NSWCCA 209
Sentence appeal.
3 x aggravated armed robbery.
MT 4y, AT 2y.
Special circumstances found, justifying departure from statutory ratio.
Armed with sawn-off single barrel shotgun, applicant entered premises & demanded money from the attendants on each occasion. The 1st & 3rd offences took place at the same service station, the 2nd at a liquor store. On each occasion, the attendant handed over a relatively small amount of cash. On the 1st occasion, the applicant ordered the attendant into a storeroom & fired a shot into a fixture shelf before leaving. On the 3rd occasion he ordered 2 attendants into the storeroom & closed the door.
Aged 38 at time of appeal - born in Uruguay - came to Australia with parents when aged 8 - married at 17 - has 2 teenage children - separated from wife - children in applicant's custody, at time of sentencing children being cared for by his parents.
Unrepresented on appeal - requested a reduction in sentence imposed.
Appeal dismissed.
261

GCT - CCA, 4.8.99
Citation: R v GCT [1999] NSWCCA 228
Sentence appeal.
Armed with intent to commit robbery.
MT 2*y, AT 10m.
Applicant & co-offender, dressed as police officers, went to the loading dock door of a Franklins supermarket. The manager was called & he observed that one man was carrying a black nylon bag & the other had an air pistol in a holder. Under the pretext of investigating a staff member, they were taken to the manager's office. They asked the manager not to alert any staff & when they reached the office, the manager asked the staff member who was in there to leave. They started discussing with the manager when, by whom & in what manner the store takings were collected & taken from the premises. Whilst this was taking place, staff members became suspicious, having not seen a police car, so they contacted the police, however, the applicant & the co-offender left the premises before they came.
Almost 8 months after the incident, the applicant was spoken to by police & initially made full admissions but later denied making them. Another interview took place on the same day, the applicant making admissions & also implicating his co-offender & a corrupt police officer.
Special circumstances - co-operation with authorities - level of criminality - requirement for continuing drug rehabilitation.
Appeal allowed: resentenced to MT 18m, AT 18m.
262

DINOS, Mick - CCA, 21.7.99
Citation: R v Dinos [1999] NSWCCA 208
Sentence appeal.
Dishonestly destroy or damage property by fire (arson) - MT 3y, AT 1y;
publish false statement with intent to obtain money (fraudulent insurance claim) - concurrent 9m FT.
Applicant & co-accused were joint lessees of a chicken shop in Lane Cove. The business was in financial difficulties, $20,000 being owed in rent. After midnight about 5 April 1991, applicant poured petrol around shop & set it alight, causing a huge explosion & fire, destroying the chicken shop & causing significant damage to a computer shop & a barber shop. Co-accused was acquitted on this charge. Damage to the chicken shop alone was assessed at $982,000. Applicant & co-accused then made an inflated insurance claim, designed to net them each some $50,000 to $60,000 above the true value of the property destroyed. The insurance company declined this claim.
Remarks by sentencing judge that it was a 'miracle that no one was killed or seriously injured'- subjective features - weight - applicant aged 60 at time of sentence - no prior convictions - impressive character evidence - depression - suffered from burns caused by the fire & a broken ankle - effect of full-time custody.
Appeal dismissed.
263

WELLS, Stephen Lawrence - CCA, 4.8.99
Citation: R v Wells [1999] NSWCCA 226
Sentence appeal.
Dangerous drive causing death under the influence of a drug (temazepam & methadone); + Form 2 matters.
MT 4y, AT 2y.
Special circumstances found by sentencing judge.
After having ingested methadone, the applicant was driving along Great Western Highway in an erratic & irresponsible manner, driving fast, changing lanes constantly, sometimes travelling on the grass strip along the shoulder of the roadway then pulling back onto the road in front of other traffic. At one point he lost control of the vehicle & it veered across 2 lanes of traffic & headed towards a concrete barrier, through a gap in the barriers which had been erected to protect workmen who were working on extensions to the M4 motorway & then collided with one of the construction workers. The construction worker was killed instantly. The applicant's vehicle then collided with a parked vehicle within the construction area, went into a spin & the deceased was hit again before the applicant's vehicle came to rest.
Aged 23 - first period in custody - bad driving record - perceived & recognised need for rehabilitation - guilty plea - totality.
Appeal dismissed.
264

TILLMAN, Kenneth Davison - CCA, 30.6.99
Citation: R v Tillman [1999] NSWCCA 164
Conviction appeal.
2 x sexual intercourse with child; 1 x attempted sexual intercourse with child.
The appellant was living with the complainant's mother & her 2 children. The mother fell pregnant to the appellant. In July of the following year, the mother entered hospital because of some problems associated with her pregnancy. Three days after she entered the hospital, the complainant was so distressed that the mother discharged herself & went home. However, she began haemorrhaging & returned to the hospital 2 days later. She remained there until 20 July, having given birth to her son on 13 July. The appellant was looking after the 2 children while she was in hospital. The complainant claimed that the appellant perpetrated the sexual offences upon her during the time her mother was in hospital. She also claimed that the appellant had threatened to kill her mother if she told anyone.
Directions - disclosure & use of medical evidence - corroboration - alternative statutory verdict - warnings - direction by trial judge that appellant's evidence should be 'scrutinised carefully'- 'unsafe & unsatisfactory'.
Conviction appeal dismissed.
265

SCOTT, Stephen Joseph - CCA, 6.8.99
Citation: R v Scott [1999] NSWCCA 233
Sentence appeal.
Dangerous drive occasioning GBH.
MT 2y, AT 2y.
The appellant, a bus driver, had finished a night shift. During the morning of the day on which his shift finished, he went to a club at Menai where he remained until about 4.00 pm. During that period, he consumed a large number of schooners of beer. He left the club, heavily under the influence of alcohol, then drove nearly 4 kilometres along the road when the accident giving rise to the above charge occurred. There was evidence of him driving at high speed, moving in & out of traffic lanes, tailgating other vehicles & generally driving in an aggressive manner. An estimate of speed given by one witness travelling in the same direction was somewhere between 120 and 160 kph. When the 2 lanes merged into one lane, he was attempting to overtake another vehicle, thought better of it, came back in & clipped the back of that vehicle, causing that vehicle to go on the wrong side of the road & collide with another vehicle. A further vehicle also became involved in the collision. One of the drivers suffered very serious injuries. The appellant was breathalysed & a reading of 0.160 was recorded.
Directions - general deterrence - whether sentence manifestly excessive.
Appeal dismissed.
266

PHAM, Hung Van - CCA, 2.8.99
Citation: R v Pham [1999] NSWCCA 225
Sentence appeal.
Robbery in company with wounding; + 3 x goods in custody & 1 x receiving taken into account.
MT 3y, AT 1y.
At about 1.10am on 17 April 1997, a 67 year old man, was working in his shop in Surry Hills when the applicant & a co-offender entered the shop & went to the back. The storekeeper approached them & asked whether he could assist them. The co-offender produced a pistol & demanded money. The applicant was armed with a Ghurkha-style knife. The applicant & the co-offender then began assaulting the storekeeper, the applicant hitting him with the handle of the knife. Another co-offender entered the shop, closed the shutters & kept a lookout. He attempted to open the cash register & then, using a bottle, struck the storekeeper with 2 blows to the rear of the head, while the other two were still assaulting the storekeeper. A passerby noticed what was happening & called the police. All three were arrested.
Not instigator, but willing participant - drug habit.
Guilty plea - parity.
Appeal dismissed.
267

ROBINSON, Stephen Joseph - CCA, 2.7.99
Citation: R v Robinson [1999] NSWCCA 172
Conviction appeal.
2nd trial: indecent assault upon male - MT 18m, AT 6m.
4th trial: act of indecency with male - concurrent FT of 9m.
4 separate trials held as a result of complaints by 4 men. Juries of 1st & 3rd trials discharged, unable to reach agreement. DPP declined to proceed further in respect of those complaints.
Appellant formerly a priest in the society of St Gerard Majella. At relevant time he was a Superior in one of the houses of the Order & also occupied position of Master of Novices.
2nd trial: Appellant declined to be interviewed & did not give or call any evidence at trial. Prosecution case entirely dependent upon testimony of complainant.
4th trial: Appellant gave sworn evidence denying the incident.
Directions - media coverage - evidence - delay - inadequacy of directions on absence of complaint - warnings - 'unsafe & unsatisfactory'- good character of accused - no prior convictions - relevance to guilt.
2nd trial: appeal allowed, verdict of acquittal entered.
4th trial: appeal dismissed.
268

PHILP, Gregory Lee - CCA, 16.8.99 - 108 A Crim R 336
Citation: R v Philp [1999] NSWCCA 253
Sentence appeal.
AOABH.
5y GBB.
At the time of the offence (5 July 1996), applicant was on 12m GBB. Subsequently, during period October to December 1996, applicant had been convicted of assaults culminating in a fine & 150h CSO. No criminal record since that time.
High-handed approach by sentencing judge in dealing with the applicant - aggressive cross-examination of applicant, distinct hostility towards applicant with threatened retribution.
Terms of recognizance - error as to length - inappropriate terms - inappropriate to impose term unrelated to offence - inappropriate to impose term controlling offender's private life - remarks suggesting pre-judgement & lack of impartiality - patronising & hostile attitude - necessity for objective detachment & dispassionate assessment.
Appeal allowed: 3y GBB.
269

STEIN, Chad Norman - CCA, 16.8.99
Citation: R v Stein [1999] NSWCCA 250
Sentence appeal.
Armed robbery in company; assault with intent to rob whilst armed.
MT 3y, AT 2y.
Applicant, co-offender & a juvenile, broke into a Video-Ezy store, applicant armed with a knife, all 3 disguised with stocking masks. Applicant jumped counter & proceeded to pull out various drawers before locating the cash till. Juvenile also jumped counter & held both store attendants (2 young women) in a headlock, pushing their heads together to prevent them seeing anything. Co-offender remained on customer side of counter. Clear evidence that robbery had been planned.
2nd offence involved applicant entering another store, armed with a 30 cm knife. He approached the shop assistant, placed a note on the counter which read 'money or life', produced the knife & told the assistant to open the till. The assistant turned, called for help, went to the back of the store & the applicant ran from the shop, taking no money or property.
Aged 19 - co-offender 2 years older, introduced applicant to drugs - threats made to applicant - 1st time in custody - under strict protection.
Factual error as to number of offences - disparity.
Appeal allowed: MT 2*y, AT 18m.
270

WILKINSON, Nicole Marie - CCA, 9.8.99
Citation: R v Wilkinson [1999] NSWCCA 248
Sentence appeal.
Manslaughter.
MT 3*y, AT 3y.
Applicant & co-accused proceeded to trial jointly, however, during course of the trial co-accused was granted a separate trial & subsequently pleaded guilty to a charge of manslaughter, receiving MT 2y 2m, AT 3*y.
Applicant, an unmarried mother, aged 19 at time of offence. Deceased, her 2nd child, was aged 6 months. Applicant said she noticed a bruise on the baby's ear & subsequently noticed 2 other bruises. On the Saturday, the co-accused informed her that he had been involved in a fall in the shower when bathing the baby. Some days later she noticed the baby was pale & not behaving normally. She said she wanted to take him to a doctor but the co-accused disagreed. The following day she went out & returned home to observe the baby was really pale, moaning & groaning. The next day he was worse & was not eating or drinking. About 4.00 pm that day, she discovered he was not breathing & whilst trying to resuscitate him, the applicant persuaded the co-accused to inform the police that the fall in the shower had occurred on a day other than the Saturday. Baby suffered multiple injuries, including bruises or abrasions to the face, extensive skull fracture, haemorrhages & serious internal injuries, including laceration of the liver, spiral fracture of the right tibia.
Inattentive & disinterested mother - average intelligence - little remorse. Sentencing judge excluded medical evidence that applicant had a serious dependent personality disorder.
Parity.
Leave to appeal refused.
271

MAKLOUF, Anthony - CCA, 23.6.99
Citation: R v Maklouf [1999] NSWCCA 94
Conviction appeal.
Assault with intent to rob.
MT 1y 3m, AT 1y 9m.
Victim a taxi driver. Appellant & another man hailed a taxi in George Street at 2.00 am on 22.11.96, appellant sat in front seat, other man in back seat. Taxi driver was given the run-around, told to drive first to Castlereagh Street to pick up a 3rd man, who was not there, then instructed to drive to Leichhardt & finally to Petersham. He was asked to turn into Railway Street & stop. When he stopped he turned on the interior light. The man sitting in the back seat put something against the right hand side of the driver's head, the driver turned his head, saw the man & that he was holding a black 25 cm long tube which he believed to be a gun. Appellant instructed the driver to put his money on the arm-rest. He placed a $5 note & some coins on the arm-rest & said the rest was in the boot. The man in the back seat got out the taxi to look in the boot. The appellant started getting out the car & the taxi driver immediately accelerated away. He reported the matter to the police.
Directions - whether judge misstated evidence in summing up - identification evidence - admissibility of photographs - probative value or unfair prejudice - whether warning as to photographic identification to be given in absence of request from defendant - verdicts - error of law or miscarriage of justice.
Appeal dismissed.
272

GODDEN, James Earl - CCA, 23.7.99
Citation: R v Godden [1999] NSWCCA 201
Sentence appeal
AOABH; assault with act of indecency; 2 x armed robbery.
Aggregate MT 3y, AT 2y.
The sex offences committed when victim told applicant their relationship was at an end & asked him to leave the house. He did & spent much of the day drinking, returning to her house that night. He forced entry to the house & when the victim left it, he followed her. He pushed her against a fence, grabbed her from behind, dragged her into the house, threw her onto the floor of the lounge room, put his hands around her throat & started choking her. He said 'I want to bash you now and if I wanted to, I could kill you'He then dragged her into the bedroom, threw her onto a mattress, pulled her tights from her & brandished his fist at her, threatening to knock her out. He then undid his belt, started pulling his jeans down but then stated 'I can't do this'& moved away. Victim suffered bruising & abrasions.
Armed robberies committed upon a service station & a liquor store. He wore a mask on both occasions. At the service station he threatened the shop employee, claiming to have an AIDS infected syringe. At the liquor store he was armed with a pistol. On bail at the time of the robberies - no history of violence - problem with drugs.
Whether excessive.
Appeal dismissed.
273

FLOOD, Peter John - CCA, 23.7.99
Citation: R v Flood [1999] NSWCCA 198
Conviction appeal.
Sexual intercourse without consent in circumstances of aggravation.
MT 4y 9m, AT 1y 7m.
Circumstance of aggravation was that complainant had intellectual & physical disabilities. Complainant alleged that appellant came to her home & forced himself upon her. Appellant stated sexual intercourse was consensual. Complainant made immediate complaint.
Refusal of judge to give directions on use of complaint evidence - adequacy of summing up - necessity for direction of law on withdrawal of consent - reliability of witnesses - warnings - whether 'unsafe & unsatisfactory'.
Appeal dismissed.
274

COX, Ian Ormond - CCA, 10.8.99
Citation: R v Cox [1999] NSWCCA 229
s.5F appeal against refusal to grant permanent stay.
Applicant was to go to trial with others on 1.3.99. Proceedings were adjourned to 8.3.99 pending an appeal against a refusal of legal aid. On 9.3.99, that appeal having failed, trial judge refused an application for a permanent stay but adjourned the proceedings for 1 week to enable applicant to apply for leave to appeal from her decision. No application was filed. On 22.3.99 trial judge again refused application for permanent stay but adjourned proceedings for at least 3 months to enable applicant to receive necessary documents & prepare his defence. Evidence before the court strongly suggesting applicant's evidence concerning his financial affairs was not truthful.
Applicant's complaint on appeal was that he was indigent, without representation through no fault of his own & that proceedings ought accordingly to be permanently stayed or a sufficiently long adjournment granted (18 to 24 months sought).
Application refused.
275

W - CCA, 20.8.99 - 109 A Crim R 51
Citation: R v W [1999] NSWCCA 247
Conviction appeal.
Indecent assault upon child; sexual intercourse with child. Both offences related to the same child who was under 10 at the time.
MT 4y, AT 2y.
At trial, appellant acquitted of further charge of indecent assault of same child during same period. Offences alleged to have been committed on appellant's granddaughter who was 8 at the time (December 1992).
Appellant denied guilt - complaints uncorroborated - evidence of complainant contradicted by evidence of appellant & his daughter.
Prior consistent statement - leave for admission on credibility only - suggestion of fabrication not made by mere denial - such suggestion should be expressly put - criteria for leave - criteria for exercise of discretion - criteria for waiver of the necessity for leave.
Appeal upheld: new trial ordered.
276

CARR, Dale Charles - CCA, 23.7.99
Citation: R v Carr [1999] NSWCCA 200
Sentence appeal.
1st indictment: attempt steal MV; AOABH - FT 9m 13d.
2nd indictment: sexual intercourse without consent - MT 3y (cumulative), AT 1y.
The offences on the 1st indictment took place when the applicant & several other men forced entry to a car & were in the process of trying to start it when the owner arrived. A struggle took place, punches were thrown & a rock thrown at the owner. He suffered injuries consisting of a laceration behind the right ear & grazing to his shoulder.
The sexual intercourse without consent took place when the applicant was staying at a boarding house & slept in a bed on an enclosed verandah. There was a 2nd bed at the other end of that verandah & a female person occupied that bed. One night, when the female was asleep, the applicant climbed into her bed & commenced to have sexual intercourse with her. The complainant woke up & protested but the applicant continued.
Failure to find special circumstances - failure to apply principle of totality - failure to have regard to applicant's Aboriginality - failure to impose sentence at lower end of range despite having stated intent to do so.
Appeal against sentence on 1st indictment dismissed.
Appeal against sentence on 2nd indictment allowed: resentenced to MT 2y 3m, AT 1y 9m.
277

TUATARA, Tenaku - CCA, 28.6.99
Citation: R v Tuatara [1999] NSWCCA 242
Sentence appeal.
BE&S.
MT 12m, AT 18m.
Applicant was serving a 15 month prison sentence at Emu Plains Detention Centre when she & another prisoner broke out of gaol. Whilst at liberty, the applicant broke into premises at Rydalmere. She stole property amounting to approx $3,500. She was arrested some days later. At first she denied her involvement in the B&E & it was only after her fingerprints were found that she admitted her guilt.
Guilty plea - priors of same type of offence - Deportation Order to be enforced as soon as current sentence completed.
Applicant submitted 3 page document on appeal, setting out some 'significant compassionate matters', however, the Court did not elaborate.
Appeal dismissed.
278

BLOOMFIELD, Vili - CCA, 21.7.99
Citation: R v Bloomfield [1999] NSWCCA 196
Sentence appeal.
AOABH.
18m PD.
Applicant (father of the victim) became involved in an argument with the victim about pills that were missing from the bedroom of the victim's mother. Applicant did not accept victim's denial. He punched her in the face 5 or 6 times, cutting her lip. He asked her again & she admitted taking the pills. He then pushed her & she fell, whereupon he kicked her in the stomach & side. The victim then went to the bathroom to wash her face & the applicant followed her, punched her again causing her to fall heavily against the door where a protruding screw lacerated the back of her head.
Aged 34 - guilty plea - priors - under the influence of liquor at the time - serious breach of trust by parent towards child.
Delay in reporting assault - lack of medical reports - severity of sentence.
Leave to appeal refused.
279

MANGAN, Kenneth - CCA, 21.7.99
Citation: R v Mangan [1999] NSWCCA 194
Sentence appeal.
Armed robbery in company.
MT 7y 10m, AT 2y 7m.
Pre-sentence custody taken into account.
Applicant & co-offender entered a garden centre as it was about to close, both men disguised with white dust masks & with the applicant holding a gun. The 2 owners & staff were herded into a staff room. The applicant pointed the gun at the manager, who was one of the joint owners, & using offensive & aggressive language, told him to open the safe. They took nearly $9,000. At one point there was a delay in opening the safe & the co-offender urged the applicant to shoot the manager. However, he did not do so. No evidence gun was loaded.
Aged 34 - married with 3 young children - criminal history - caring & loving husband & father - qualified as a chef.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to MT 6y, AT 2y.
280

OTTO, Jason Paul - CCA, 19.7.99
Citation: R v Otto [1999] NSWCCA 190
Sentence appeal.
Steal MV - FT 12m (concurrent with MT);
stealing property. - MT 4y, AT 2y;
+ 9 other offences, some of a similar nature, taken into account.
The applicant & 2 other men went to a carpark & using a screwdriver, entered a parked vehicle. They used the screwdriver to start the vehicle & drove off in it. Two nights later they travelled in that stolen vehicle to the carpark of the Fairfield RSL Club. They drove up behind a woman & a rear passenger reached out of the car & grabbed the woman's handbag. The woman fell to the ground & the vehicle drove off. The woman suffered minor lacerations.
Aged 22 - guilty plea - 'formidable'criminal record for offences of dishonesty, driving offence & drug offences - underwent some treatment for drug addiction but left programme prematurely - special circumstances - contrition - endeavours to rehabilitate himself.
Whether sentence excessive.
Appeal dismissed.
281

MANY, Donald - CCA, 28.6.99
Citation: R v Many [1999] NSWCCA 241
Sentence appeal.
Paedophilic activity - 28 serious offences involving sexual misconduct of various kinds (many aggravated) upon 5 very young boys.
Aggregate MT 8y, AT 4y.
'...disgusting depravity ... perpetrated in an atmosphere that was heavy with the threat of violence...'Acts of the 'gravest culpability'.
All offences were alleged to have been committed between 1.1.96 and 1.4.97. Counts 14, 15, 17 & 28 were laid by reference to s.35 Film and Videotape Classification Act 1984. However, the Act was repealed with effect from 1.1.96 & was replaced on the same day by the Classification (Publications, Film and Computer Games) Enforcement Act 1995.
Guilty plea - on strict protection - subjective features - proper weight.
Appeal allowed in respect to counts 14, 15, 17 & 28 - sentences quashed.Appeal in respect to all other counts dismissed.
282

DI COLA, Vincenzo - CCA, 21.7.99
Citation: R v Di Cola [1999] NSWCCA 195
Sentence appeal.
2 x assault with act of indecency upon child under 10 (9y).
MT 12m, AT 2y (special circumstances found).
The applicant was aged 56 at the time of sentencing, he was married & had 3 children, 2 of whom are adults, the other a teenager. He had formed a relationship with the victim's mother. The offences were committed 7 days apart when the applicant was baby-sitting the child. On the first occasion the child went to bed. The applicant followed her into the bedroom, pulled down her pyjamas & moved up & down on top of her. No suggestion of any penile penetration but there was some penile contact with the child's body. The second offence was similar to the first.
Prior good character - ill-health (diabetes, depression) - insufficient weight - contrition.
Appeal dismissed.
283

REYNOLDS, Wayne Bradley - CCA, 16.8.99
Citation: R v Reynolds [1999] NSWCCA 238
Sentence appeal.
2 x robbery from the person.
MT 2y, AT 2y.
The victims on each occasion were shopkeepers. Each robbery involved them becoming involved in a struggle with the applicant. The 1st victim sustained an injury to her back & arm, the 2nd a punch to the face. $800 was taken, together with a cash register.
Offences committed to support drug habit. The 2nd offence occurred whilst applicant was on GBB for accessory before the fact to stealing & at a time when he was subject to a PD order for stealing'.
Guilty plea - whether sentence excessive.
Leave to appeal refused.
284

BRUCE, Wayne - CCA, 20.8.99
Citation: R v Bruce [1999] NSWCCA 256
Sentence appeal (out of time).
Indecent assault.
MT 8m, AT 3y 4m.
Sentencing judge made orders that when released to parole, applicant to accept supervision of Probation & Parole Service for period of AT. Although release eligibility date had passed, applicant was refused parole by the Board on 25.1.99 & again on 4.6.99, with the Board determining to review his parole in 12 months' time, reasons being that Board's assessment was that applicant would not be able to adapt to a normal lawful community life & that he posed a risk of re-offending & was in need of extensive counselling.
On the night of the offence, the complainant had gone to bed with her de facto husband. She woke to find hands touching her body & breasts. When she realised it was not her husband, she called out, then saw a man wearing a baseball cap with a Coca Cola insignia dive out the open bedroom window. The cap was found beneath the window. Suspicion fell upon the applicant who lived in adjoining premises & was known to wear such a cap. DNA testing showed the cap could have been worn by him, the relevant DNA profile being shared by approx 1 in 1900 people within the community.
Guilty plea - alcohol abuse - most of preceding 15 years spent in custody.
Submission that total sentence of 4y excessive - insufficient weight given to guilty plea & subjective circumstances.
Appeal allowed: resentenced to MT 8m (to expire on 13.12.98), AT 2*y.
285

MORRIS, Kenneth John - CCA, 18.8.99
Citation: R v Morris [1999] NSWCCA 252
Sentence appeal.
1 x robbery; + 1 x BE&S taken into account on a Form 1.
MT 2y 3m, AT 1y 9m.
The robbery offence occurred when applicant approached victim in a telephone booth, threatened him & snatched his wallet. This took place on a day after applicant had been released on bail for the offence on the Form 1 which involved theft of substantial quantity of jewellery from a residential dwelling.
Guilty plea - aged 22 - heroin habit - priors - extensive criminal record, including armed rob - several terms of imprisonment.
Special circumstances - weight - subjective circumstances.
No question of general principle.
Leave to appeal refused.
286

KNOWLES, Glen Gordon - CCA, 6.8.99
Citation: R v Knowles [1999] NSWCCA 235
Sentence appeal.
Robbery in company; + Form 1 offences taken into account (assault, goods in custody, fail to appear, fail to comply with bail undertaking, malicious wounding).
MT 6y, AT 2y.
Applicant & co-offender approached the victim as he was crossing Anzac Parade. They forced him to the ground & he was held down while the applicant removed money from the victim's pockets ($3,500 in $50 notes). The applicant was later identified & arrested.
Guilty plea.
Aged 36 - very extensive & serious criminal history - previously imprisoned - drug & alcohol addiction.
Whether sentence excessive.
Appeal dismissed.
287

FLOOD, Jeffrey James - CCA, 28.6.99
FLOOD, Scott Joseph
Citation: R v Flood [1999] NSWCCA 240
Sentence appeals.
Armed robbery; steal MV; detain person with intent to hold for advantage.
Aggregate: MT 3y, AT 2*y.
The two applicants (brothers) approached the victim in a public car park & told him they intended to rob him. One applicant produced a fishing knife. They then forced him into the back seat of a vehicle, drove him to a number of locations then robbed him of various property and monies.
Male victim aged 19. Both applicants were affected by alcohol at the time of the offences. One applicant was on parole at the time of the offences, the other on a bond.
Scott Joseph Flood: Aged 24 - priors for violence, property offences, driving offences.
Jeffrey James Flood: Aged 29 - priors for drugs, violence, driving offences.
Appeals dismissed.
288

DWH - CCA, 24.8.99
Citation: R v DWH [1999] NSWCCA 255
Conviction appeal.
3 x sexual intercourse without consent; 1 x assault; 1 x assault & commit act of indecency. All offences committed upon a girl under 16, namely 12 years.
Aggregate: MT 5y, AT 3*y.
Appellant the natural father of the complainant, separated from his wife in 1995. The children of that relationship used to visit & stay with the appellant at a flat which he shared with his de facto. The offences were alleged to have occurred on those occasions. All offences were said to have occurred during period 1.1.96 to 30.10.96. All but events alleged concerning the assault charge were asserted by the Crown to be supported by complaints made on 30.10.96. Evidence from complainant's brother corroborating complaint. Evidence given at trial by complainant's grandmother & aunt.
Complaint - prior consistent statement - when admissible exception to hearsay rule - when admissible on credibility - when leave necessary - criteria for grant of leave & exercise of discretion - leave not considered - counts of separate events - complaint on some charges not fresh - significance of delay in complaint.
Appeal allowed: new trial ordered.
289

WILLIAMS, Charles Stanley - CCA, 30.6.99
Sentence appeal.
8 x obtain money by deception; + 3 x obtain money by deception earlier pleaded to; + a further 6 x obtain money by deception taken into account.
MT 3y, AT 1y.
The victims in all cases were very elderly women, with 2 being in their 80s. Offences committed between 24.11.95 & 31.5.97. The sums of money taken from 3 elderly women in particular amounted to $24,010, $6,360 & $16,465 respectively. The sentencing judge characterised the offences as being 'nasty offences'No hope of recovering any of the money.
Aged 70 (will be 71 on 23.12.99) - contrition - physical ailments of 'various kinds'.
Appeal dismissed.
290

HEWITT, William Michael - CCA, 18.8.99
Citation: R v Hewitt [1999] NSWCCA 264
Sentence appeal.
Supply prohibited drug (cannabis); + supply amphetamine & possess LSD & ecstasy taken into account.
MT 12m, AT 12m (finding special circumstances).
Police search of applicant's home disclosed 445 grams cannabis leaf, 30 grams power comprising 3.5% methylamphetamine & various other quantities of methylamphetamine, LSD & ecstasy. Total value of Drugs $22,620.
Whether, in the absence of evidence of trafficking in a substantial degree, sentencing judge should not have so sentenced.
Guilty plea - no relevant prior offences - whether sentence excessive.
Leave to appeal refused.
291

McCARROLL, Colin (aka John McCarroll) - CCA, 16.8.99
Citation: R v McCarroll [1999] NSWCCA 237
Sentence appeal.
Armed robbery in company; + goods in custody & 4 x BE&S on a Form1.
Sentence at first instance not indicated.
Guilty plea came on 6th day of trial, at the end of the Crown case, at which point applicant was re-indicted & entered his plea. Crown case that applicant was one of 2 people who had entered a store armed with revolvers & there robbed 2 Armaguard employees of $42,500 along with two Smith & Wesson firearms. After changing his plea, the applicant reluctantly gave evidence in which he contended that he was not one of the 2 men who had entered the store, but that he had waited in a motor vehicle & had driven the others. He declined to name those who had committed the robbery. Applicant claimed to have received $2,000 for his part in the enterprise, however, his de facto said that he told her he had received $20,000.
No indication given by sentencing judge as to whether any credit had been given for applicant's plea of guilty, nor was any mention made that applicant had been held on protection.
Special circumstances.
Appeal allowed: resentenced to MT 5y, AT 3y.
292

ATONIO, Samuela - CCA, 18.8.99
Citation: R v Atonio [1999] NSWCCA 266
Sentence appeal.
Armed robbery.
MT 3y, AT 2y.
The applicant, together with 3 other people, went to a hotel early one morning wearing balaclava helmets & having in their possession a .22 pistol, a baseball bat & some plastic material which was used to tie people up. They threatened & overpowered 2 hotel staff & a security guard, tied 2 of them up & made them move to the toilet area. The 3rd person (the manager) was forced to open the safe & $21,000 was taken from it. They also took money off the people they had tied up.
Aged 18 - no priors - supportive family - crime committed to provide financial assistance to family because of financial need, not greed - voluntary surrender - frank confessions - co-operation - contrition - good prospects for rehabilitation.
Parity - sentence of co-accused on mistaken appreciation of number of offences of applicant - other circumstances similar - legitimate sense of grievance - armed robbery sentences on their face inadequate - necessity for higher sentences.
Appeal allowed: resentenced to MT 2*y, AT 2*y.
293

RODGERS, Barry William John - CCA, 6.8.99
Citation: R v Rodgers [1999] NSWCCA 260
Sentence appeal.
11 x sexual offences (4 x ss.61D(1), 2 x 61E(1), 5 x 81) + offences on a Form 2 taken into account.
MT 7*y, AT 2*y. The overall sentence of 10y constitutes the maximum applicable for the substantive offence.
Paedophilic activity. Guilty plea. Ages of victims ranged between 6 & 12. At the time of the offences, the applicant was aged between 37 & 51 & at the time of sentence he was 61. Prior convictions in New Zealand for various offences of indecent assault.
Totality - special circumstances - need for further rehabilitation.
Appeal allowed: resentenced to MT 5*y, AT 2*y.
294

YZ - CCA, 27.8.99
Citation: R v YZ [1999] NSWCCA 263
Crown appeal brought pursuant to s.21E Crimes Act 1914 (Cth).
Import large quantity cannabis resin.
MT 6*y, AT 2*y.
Offer of assistance - sentence discounted accordingly - subsequent refusal to give evidence in accordance with undertaking - whether original undertaking given in good faith - whether refusal was 'without reasonable excuse'.
Held: Court not satisfied of lack of good faith; Court satisfied that lack of reasonable cause had been established.
Appeal allowed: resentenced to MT 7*y, AT 2*y.
295

REID, Stephen John - CCA, 25.8.99
Citation: R v Reid [1999] NSWCCA 258
Conviction appeal.
Maliciously inflict GBH with intent.
Appellant claimed victim was behaving very aggressively & threatened & assaulted another man. Appellant contended that victim threatened to kill or seriously harm him. Appellant armed himself with a golf club & struck the victim a number of times. The victim suffered serious injuries. The issue at trial was whether the Crown had negatived that the accused had used no more force than was reasonably necessary. A witness provided substantial support for the appellant & the Crown had intended to call the witness but did not advise the accused until the morning of the trial that they had been unable to locate the witness & proposed to proceed without him. The judge refused to grant an adjournment so the appellant could have the opportunity of locating the witness.
The police alleged there were admissions made to them by the appellant which they did not record.
Incorrect refusal of adjournment to locate witness Crown intended calling - correct construction of s.424A Crimes Act - alleged admissions.
Appeal allowed: conviction quashed, new trial ordered.
296

KING, Matthew Anthony - CCA, 18.8.99
Citation: R v King [1999] NSWCCA 251
Sentence appeal.
Malicious wounding; maliciously inflict GBH.
Aggregate: 3y 9m, AT 6m.
First offence took place during a riot at Coogee Bay on New Year's Even 1994, 2nd offence connected with 1st offence in that it was a follow-on type incident involving victim & others arriving at premises where applicant was visiting a friend. A skirmish took place. When these people were leaving the scene in a van, the applicant threw a brick which hit the victim who had fallen into the roadway as the van had pulled away. He suffered serious injuries requiring major surgery & was left with marked disabilities.
Aged 22 - prior offences including violence & assault police - 2nd offence occurred whilst on recognizance.
Significant psychological problems needing ongoing professional help - need to address conflict resolution, handling anger & relationship issues.
Since offences occurred, applicant had spent a month in the WHO's Rehabilitation Centre, 2 days at the Salvation Army William Booth Institute & had attended some Narcotics Anonymous meetings.
Special circumstances.
Appeal allowed: resentenced to aggregate sentence comprising MT 3y, AT 15m.
297

COOK, David - CCA, 27.8.99
Citation: R v Cook [1999] NSWCCA 234
Sentence appeal.
Robbery; aid & abet attempted robbery; attempt use offensive weapon to prevent lawful apprehension (driving into a police car); + dangerous drive on a Form 1 taken into account.
After correcting error in dates, CCA noted that an effective MT 6y 8m 12d, AT 9m had been imposed at first instance. The period of pre-sentence custody (8m 12d) had not been taken into account.
Aged 30 - priors for dishonesty, possess & supply drugs, robbery with striking, armed robbery - criminal history started when aged 14y. Aboriginal decent - history of deprivation & maladjustment from an early age - turned out of family home at age 12 by mother's de facto - lived on streets of Kings Cross - began drinking alcohol at 13, progressed to cannabis, amphetamines & LSD - began using heroin at age 15.
Has made number of attempts to overcome addiction in residential rehabilitation centres & on methadone programmes - has suffered epilepsy since age 14 - diagnosed with Hepatitis C - intelligence level assessed below average range.
Error as to maximum applicable sentence - s.5(2) Sentencing Act 1989 - special circumstances - pre-sentence custody.
Appeal allowed: sentenced backdated - MT 3*y, AT 2*y.
298

CROWE, Ross David - CCA, 30.6.99
Citation: R v Crowe [1999] NSWCCA 239
Sentence appeal.
Aggravated indecent assault; aggravated act of sexual intercourse without consent.
Cumulative sentences, culminating in an aggregate sentence comprising MT 9y, AT 2y 3m.
Both offences committed upon a young girl to whom the applicant stood in a position of 'familial trust'One of these offences was committed whilst applicant was on a recognizance. The applicant had previously been convicted upon 2 sex offence charges involving the same child when she was under 10 & for which he was placed on a 5y GBB.
Sexual predator - recidivist paedophile.
Accumulation of sentences - principle of totality.
Appeal allowed: resentenced to aggregate MT 6*y, AT 2y 3m.
299

COX, Elizabeth Ann - CCA, 30.8.99
Citation: R v Cox [1999] NSWCCA 246
Sentence appeal.
Murder.
MT 11y, AT 5y.
Deceased a 17y old girl known to applicant. Some animosity between them apparently related to the fact that applicant's sister owed the deceased money. Deceased was lured to applicant's flat by a promise of repayment of the money owed. Deceased arrived with 2 companions (a man & a woman). Deceased was told money was not available. Deceased & her 2 companions left the flat & got into the car in which they arrived. Applicant followed them (armed with a knife), some verbal exchange took place, the deceased got out of the car & the applicant stabbed her once in the abdomen. Despite surgical intervention, the deceased died 4 days later as a result of internal bleeding.
Aged 18 - guilty plea - uncharacteristic act of violence - no previous convictions - progress towards rehabilitation - good character evidence - hardship to applicant's young child.
Special circumstances.
Appeal allowed: resentenced to MT 9*y, AT 4*y.
300

GEORGE, Scott Tony - CCA, 30.6.99
JOHNSON, Brett
Citation: R v George & Johnson [1999] NSWCCA 243
Sentence appeals.
Robbery with wounding.
George: MT 5*y, AT 3*y.
Johnson: MT 5y 9m, AT 3y 3m.
Applicants met victim in a bar & victim bought them some drinks when they ran out of money. At closing time, all 3 left & went to Johnson's flat. When victim left the flat, applicants followed him, each holding a beer bottle. As the victim was walking, he felt a cut to his face. He fell to the ground & handed the applicants his wallet. The applicants took the wallet & kept cutting the victim with the broken beer bottles. The victim escaped & staggered to a police station. He sustained severe injuries. Applicants both affected by alcohol at the time.
George: apologised to victim - serving sentence at time of committing above offence.
Johnson: several priors.
Objective gravity - whether sentences excessive.
Appeals dismissed.
301

FAHDA, Abdulrahman - CCA, 31.8.99
Citation: R v Fahda [1999] NSWCCA 267
Sentence appeal.
Wound with intent to inflict GBH.
MT 3y 10m, AT 3y (2 months of pre-sentence custody served, resulting in effective MT of 4y).
Victim was applicant's then wife. They had been experiencing matrimonial difficulties & slept in separate bedrooms. They had 5 children. Victim claimed applicant hit her over the head with a frying pan. She fell to the floor. He then took a carving knife & stabbed her 3 times in the neck. Their 11 year old daughter came into the kitchen & she said it looked as though the applicant was 'trying to cut her head off'Victim was bleeding copiously. The daughter punched the applicant & pushed him off her mother. Applicant continued swinging the knife at the victim & cut the daughter in the process. The victim fled into the street, applicant caught her & pushed her to the ground. The daughter managed to take hold of the knife & throw it away. The applicant then attempted to strangle his wife. The daughter pushed him from the victim & the victim ran up the street.
Intent - delay in sentencing - psychiatric problems supported by medical reports - good prospects of rehabilitation - weight placed on deterrence.
Appeal allowed: resentenced to MT 2*y, AT 2*y.
302

TRUONG, Nhan Thanh - CCA, 6.8.99
Citation: R v Truong [1999] NSWCCA 272
Sentence appeal.
Demand money with menaces.
MT 3*y, AT 1y 2m.
Protection money racket. Preliminary contact was made with a massage parlour with demands for protection money by the applicant & a co-offender. The 'boss'of the massage parlour was not in at the time & arrangements were made for them to meet with the boss at 7.00 pm two days later. This incident was reported to the police by the manager of the parlour. As a result, the police mounted an operation which included a video camera installed in the office of the massage parlour & police taking up positions within the parlour & strategically placed in the vicinity. The offenders turned up at the parlour & were shown into an office occupied by one of the detectives, while 2 other co-offenders waited in the reception area. The applicant then made demands for protection money. All 4 then left the premises & walked out into the street, where they were arrested.
Parity - insufficient discount for plea of guilty - deterrence.
Appeal dismissed.
303

COX, Noela Patricia - CCA, 20.8.99
Citation: R v Cox [1999] NSWCCA 254
Sentence appeal.
Malicious wounding.
MT 12m, AT 2*y.
Applicant & victim in a dysfunctional relationship involving frequent arguments & violence. Although incidents of violence were mutual, more often than not initiated as a result of applicant's intoxication. When sober described as a 'lovely person', however, when affected by alcohol a 'very obnoxious person'On the day of the offence, she came home well affected by liquor & continued to drink. She then made abusive remarks to the victim & his friend because they were playing computer games & were ignoring her. She went into her bedroom & came back with a hunting knife. The victim used a pillow to protect himself, however, she stabbed him once in the stomach resulting in a deep laceration from which his intestines protruded. He also suffered wounds to his hand & a bite to his arm from which a chunk of flesh was removed.
Recurrent depressive disorder - panic disorder - agoraphobia - sedative, hypnotic or anxiolytic dependence - alcohol dependence - borderline personality disorder.
Guilty plea - special circumstances - whether sentence excessive.
Leave to appeal refused.
304

MA, Chan Thanh - CCA, 26.5.99 - 107 A Crim R 252
Citation: R v MA [1999] NSWCCA 257
Sentence appeal.
Supply prohibited drug (heroin).
MT 3*y, AT 1y.
Police followed applicant into Cabra-Vale Diggers Club carpark in Cabramatta. When he left his car & walked towards the club entrance, police stopped & searched him. They found a small foil containing heroin in one of his trouser pockets (.03 grams). They then searched the car & found a plastic package containing heroin (29.8 grams) which the applicant said he had bought for $4,500 for his own personal use. Also found was a set of electronic scales.
Prior conviction for supply heroin - above offence committed less than 1 month before expiry of additional term of previous sentence.
Plea of guilty - co-operation with authorities - drug addiction - contrition - remorse - counselling - rehabilitation - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to MT 2*y, AT 1*y.
305

LOPEZ, Eduardo - CCA, 12.3.99
Citation: R v Lopez [1999] NSWCCA 245
Sentence appeal.
4 x Social Security fraud (impose upon Commonwealth).
6m on each count.
Appellant, born in Peru, was 22 years old when frauds commenced. During period 1.1.92 to 28.2.96 was in receipt of payments, one to which he was entitled, the other obtained under a false name. Total amount overpaid was $23,891.66.
Acted out of need, not greed - unable to find employment - undertook accounting studies at TAFE - unable to afford to bring wife (whom he married when he returned to Peru on a visit in 1992) to Australia. She came in 1994. They divorced in 1995. Appellant since remarried.
Been in employment since July 1996. Commonwealth Services Delivery Agency uncovered over-payments during a routine check. Appellant readily admitted his guilt when confronted by them & agreed to repay the monies. As at date of conviction had repaid $5,139.53.
Contrition - significance of desisting voluntarily before discovery - significance of agreement to repay - later notification of charges. Appellant already served over a month in full-time custody.
Appeal allowed: resentenced to 18m PD.
306

COLEBROOK, Daniel Michael - CCA, 27.8.99
Citation: R v Colebrook [1999] NSWCCA 262
Conviction and sentence appeals.
BE&S with corporal violence; attempt sexual intercourse without consent; 2 x sexual intercourse without consent; false imprisonment.
Aggregate sentence: MT 7y, AT 3y.
Unrepresented at appeal.
Callous & brutal attack committed in the presence of complainant's small children. Complainant awakened by male intruder who placed a pillowcase over her head & demanded money. She said she had none & he hit her across the face with considerable force, pulled her to the side of the bed & forced her to perform fellatio upon him, threatening to kill her child if she did not do as she was told, then hit her across the back of the head with considerable force. He forced her downstairs to get him a drink then back upstairs & onto her bed. He ripped her pants off & had penile/vaginal intercourse with her. A child entered the room & the applicant forced the child to leave & again attempted intercourse. He punched the complainant around the head & face again, then demanded jewellery & removed the rings from her hands. He held a serrated knife to her throat & took her watch from her wrist, then tied her hands behind her back & threw her onto the floor in her children's room.
Aged 24 - depressive, aggressive personality elements - heavy use of marijuana & alcohol - no remorse or contrition - extensive criminal record (dishonesty, assault, breach of AVO).
Circumstantial evidence - fingerprint evidence - voice identification - totality.
Appeals dismissed.
307

KHAMIS, Yusuf - CCA, 6.8.99
Citation: R v Khamis [1999] NSWCCA 270
Conviction and sentence appeal.
Armed robbery.
MT 3y, AT 1y.
The victim was working as a prostitute in the Kings Cross area. About 3.00 am one morning, Crown alleged she was approached by the appellant & a conversation took place in which it was agreed that sexual activity would take place between them for a nominated fee. It was also agreed that the sexual encounter would take place at the appellant's premises which were not far away. Following an episode of sexual intercourse, the appellant made a request for further sexual intercourse. The victim then demanded further payment. An argument ensued, the appellant left the bedroom & returned carrying an axe. A further argument took place, then the appellant demanded his money back. He attacked the victim with the axe & she suffered wounds as a consequence. She then managed to leave the premises & the police were called. The victim's night's takings had also been taken. The police entered the appellant's premises & an axe was found concealed under a mattress. One of the police officers asked the appellant if it was his axe, however, he denied knowing it was there. In an ERISP at Kings Cross Police Station, this question was not repeated, nor was the appellant's answer referred to.
Procedural unfairness - wrongful admission of evidence - totality of evidence.
Appeal allowed: new trial ordered.
308

GRECH, Mark Andrew - CCA, 6.9.99
Citation: R v Grech [1999] NSWCCA 268
Sentence appeal.
2 x sexual intercourse - s.66F(2) Crimes Act.
MT 3y, AT 2y.
Applicant arraigned on 3 counts under s.66F(2), found not guilty on the 1st count but guilty on counts 2 & 3.
Complainant, intellectually disabled, had been resident in a group home operated by DOCS since 1991. Applicant worked there as a team leader from August 1992. In 1996 complainant placed in a flat owned by Department of Housing & the same DOCS team, led by the applicant, continued to provide him with support & assistance. A little over a month later, complainant's parents became aware of the sexual relationship between applicant & complainant & informed a DOCS senior officer. When interviewed by that officer, applicant admitted having a sexual relationship with the complainant. Complainant aged 20 & 21 at time of offences with functioning age of around 10 years in communication skills & around 7 years 11 months in socialisation skills.
Person in authority having sexual intercourse with person with intellectual disability - importance of deterrence - relevance of alleged mutual loving relationship - whether a matter of aggravation or amelioration.
Appellant aged 26 & 27 at time of offences - submitted no evidence of psychological or other harm to complainant - whether sentence excessive.
Appeal dismissed.
309

CHMAIT, Ziad - CCA, 2.8.99 - 108 A Crim R 218
Citation: R v Chmait [1999] NSWCCA 217
Crown appeal.
Robbery in company; + Form 1 offences taken into account (stealing, BE&S & fail to appear).
MT 6m, AT 2y 3m.
Respondent & co-offender observed a 27 year old woman walk to the night safe of the NAB in Penrith with a night wallet. The pair ran towards her & pushed her to the ground. The co-offender grabbed the night wallet which contained $1,083.70 & passed it to the respondent. They then fled. A number of Penrith Council workers observed what had happened & gave chase, apprehending the pair. The police arrived & the respondent was found to have a Uniden brand scanner two-way radio on him. The money & the night wallet were recovered. Initially, the respondent denied his guilt but later changed his plea to guilty.
Criminal record including theft - above offence committed within very short time of being discharged from prison system - double jeopardy - remorse - steps taken to overcome drug dependency - special circumstances.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to MT 18m, AT 1y 3m.
310

MENZIES, William John - CCA, 2.8.99
Citation: R v Menzies [1999] NSWCCA 222
Crown appeal.
Dangerous driving causing death.
MT 12m, AT 6m. The sentence to be served by way of home detention.
Victim was walking away from school at a pedestrian crossing & was struck by respondent's car approximately 3 paces short of completing the crossing. He had been travelling in excess of 70 kph & claimed not to have seen the victim on the crossing when at the intersection some distance from it, however, the driver of a vehicle travelling behind him was able to see the pedestrian on the crossing.
Appalling driving history, including disobeying traffic lights, speeding, drive without licence, drive with high blood alcohol level.
The above trial took place 22-28.4.98. The sentencing judge made his determination on 19.6.98. After receiving a report from the Probation Service indicating home detention was an available option, he again passed sentence on 14.8.98. Part of the transcript was received by the CCA on 23.10.98 & the remarks on sentence on 4.11.98. The matter was listed for hearing on 6.11.98 & adjourned. The balance of the transcript was received on 19.11.98 & it was not until 29.3.99 that the matter was listed for hearing on 2.8.99.
Crown submitted sentence manifestly inadequate.
Delay - Everett (1994) 181 CLR 295 followed.
Appeal dismissed.
311

DUNSTALL, Glen Roland - CCA, 2.7.99
Citation: R v Dunstall [1999] NSWCCA 271
Sentence appeal.
Dispose of stolen property; + matters taken into account (5 x steal cheque; 1 x present stolen cheque; 2 x dishonestly obtain money).
MT 3y, AT 1y.
The disposal of stolen property involved a number of motor cars with a retail value of $37,000 to $39,000.
Aged 30 - bad criminal record - previously served short terms of imprisonment - assistance to authorities - special circumstances - personality disorder - rehabilitation - totality.
Appeal allowed: resentenced to MT 18m, AT 18m.
312

REEVES, Belinda Paula Anne - CCA, 2.7.99
Citation: R v Reeves [1999] NSWCCA 269
Sentence appeal.
Aggravated dangerous drive occasioning death; 2 x aggravated dangerous drive occasioning GBH.
Aggregate sentence comprising MT 2*y, AT 2*y.
Applicant had been drinking at a hotel from midday until 5.00 pm, had then left the hotel, gone to her uncle's house, had a small meal. She had taken some medication then returned to the hotel & continued to drink. The accident happened about 12.30 am, involving her car leaving the road & colliding with 2 pedestrians, one of whom was killed, the other suffering serious injuries. The third victim was a passenger in the applicant's car. The applicant also suffered injuries in the accident. Blood samples taken from her at the Nepean Hospital returned a blood alcohol reading in excess of .15.
Applicant suffers from bipolar syndrome & knew she should not mix alcohol with the medication that had been subscribed for her psychiatric condition. She was also taking an anti-depressant which had been subscribed following a sexual assault.
Whether sentence excessive.
Appeal dismissed.
313

MELBOURNE v THE QUEEN - HC, 5.8.99 - 198 CLR 1; 73 ALJR 1097
Appellant convicted of murder in SC of NT. Aged 61 with no prior record other than a drink-driving offence in 1975. Defence counsel put much weight upon appellant's good character & a direction was given to the jury that they were entitled to consider the improbability of the appellant committing the offence of murder, having a history of good character for some 61 years & that this was of considerable significance. Counsel raised no objection at trial to the nature or extent of this direction.
On appeal counsel for the appellant argued that this direction was inadequate in that it only went to the probability of the appellant having committed the offence. It was submitted that the jury ought to have been instructed that good character was relevant to the appellant's credibility, in particular the credibility of his pre-trial statements & police interviews.
Appeal dismissed.
314

CHEUNG v THE QUEEN - HC, Kirby J, 27.5.99
Application to vacate hearing date.
Applicant found guilty of being knowingly concerned with importation of prohibited import. He was serving a life sentence with a NPP of 21y 11m, the CCA having dismissed his appeal against conviction. Applicant later indicated he had also intended appealing against sentence in the CCA. Following his unsuccessful appeal, he then made an application for special leave to appeal to the HC against his conviction.
Applicant's special leave application regarding his conviction had been listed on a date before his appeal against sentence. He argued that it would be more practical to have the sentence matter dealt with in the CCA prior to the application to the HC for special leave to appeal. He therefore made an application to the HC to vacate the hearing date of his summons for special leave to appeal against conviction. The counsel of the applicant's choice was not available until the later hearing date.
Application granted.
315

WEBB v THE COMMONWEALTH & Anor - HC, Kirby J, 20.5.99
Application for interlocutory injunction.
Plaintiff had been indicted on charges of conspiracy to launder money. Before the commencement of the trial in the DC of NSW, the plaintiff made an application for an extension of time in which to apply for the release of confiscated property to permit him to fund legal representation for the trial. This application was refused, as was his application for legal aid. The plaintiff then filed a summons for interlocutory relief seeking that the Commonwealth make available sufficient moneys to permit the plaintiff to defend the criminal proceedings. That summons was filed in association with a statement of claim invoking the original jurisdiction of the HC seeking declarations, including a declaration that the Proceeds of Crime Act was invalid as beyond the power of Parliament in accordance with the Constitution (Cth).
Application dismissed. Constitutional question referred to the Full Court.
316

SPELLING, Dylan Chadwick - CCA, 2.7.99
Citation: R v Spelling [1999] NSWCCA 273
Sentence appeal.
4 x obtain benefit by deception; + 9 matters taken into account (passing valueless cheques, failure to pay for liquor & accommodation).
MT 2*y, AT 10m
Total amount involved was approximately $56,000.
The 1st count involved fraudulently obtaining a loan from the Commonwealth Bank wherein the bank suffered a loss of $28,179.56. The 2nd count related to fraudulently obtaining credit from the St George Bank, incurring a loss of $9,435.32 to that bank. The 3rd count again involved St George Bank, wherein the applicant obtained approx $4,156.46 by using a false name. The 4th count involved obtaining a BMW motor vehicle by deception. That car was recovered & no claim for compensation was made.
Previous imprisonment - history of fraudulent conduct, including obtain benefit by false or misleading statement, obtain benefit by deception, multiple counts of make false statement.
Psychiatric evidence that applicant was suffering from depression as well as anxiety at the time of the offences was rejected by the sentencing judge. The sentencing judge also rejected the applicant's claim that he was intent on reform.
Special circumstances.
Appeal dismissed.
317

NAUDI, Vincent - CCA, 25.8.99
Citation: R v Naudi [1999] NSWCCA 259
Conviction and sentence appeal.
9 x sexual intercourse with female under 16; 1 x assault; 1 x AOABH.
MT 6y, AT 2y.
Complainant was 11 years old when her mother died in 1990 & she went to live with the appellant & his wife. The appellant's wife was a close friend of the complainant's mother. All offences were committed during the period 1990-1994. Complainant said that many more sexual activities took place over that period, however, she had been asked to identify particular occasions by means of relating these to particular incidents or events in the home or in the family or to particular outside activities.
Admissibility of evidence - exercise of right to silence & refusal to give blood sample - biologist's evidence of semen found on complainant's nightie - adequacy of directions - summing up - warnings - weight - delay - uncorroborated evidence - failure to give Longman direction - whether sentence manifestly excessive.
Appeals dismissed.
318

BAKER, Michael - CCA, 13.8.99
Citation: R v Baker [1999] NSWCCA 232
Conviction and sentence appeal.
Accessory after the fact to armed robbery.
MT 3y, AT 12m.
Prosecution case that 1st co-offender assisted in purchasing a toy gun, black beanie & pair of white gloves for use in the robbery, the 2nd co-offender carried out the robbery. After the robbery, knowing the robbery had been committed & intending to assist the 2nd co-offender to escape detection or prosecution, the appellant drove him to Canberra & helped him purchase a car there in the 1st offender's name with the proceeds of the robbery.
Appellant unrepresented at trial. Appellant's defence at trial was that he was not an accessory, but that he had committed the robbery. In an ERISP, the appellant attributed the robbery to the 2nd co-offender & denied that he, the appellant, was the robber. The ERISP also contained statements which the appellant said had been made to him by the 2nd co-offender, some before & some after the robbery. He did not object when his ERISP was tendered at trial. However, at trial, he denied that the 2nd co-offender had made those statements to him.
Admissibility of evidence - miscarriage of justice.
Appeal allowed: new trial ordered.
319

CAJUIRES, Juan de Dios Armas - CCA, 10.9.99
Citation: R v Cajuires [1999] NSWCCA 282
Sentence appeal.
Import trafficable quantity cocaine (712.49 grams pure).
8*y with NPP of 6*y.
Applicant arrived at Kingsford Smith Airport on 6.6.98 on a flight originating in Los Angeles & making a brief stopover in Fiji. Applicant travelling alone, in possession of a return ticket. A routine search of a backpack revealed the drug concealed in the lining. He claimed no knowledge of the drug & said the backpack had been given to him by a friend who told him that if someone wanted to buy it from him he should sell it. He claimed he came to Australia for a holiday. However, the applicant pleaded guilty before a magistrate & was committed to the DC for sentence. He gave sworn evidence that his fare had been paid for by a man who had given him the bag to bring to Australia & he was given $1,000 with a promise of a further $3,000 on his return to LA. He admitted he suspected there was something illegal in the bag & the thought that it might be drugs had crossed his mind. He expressed remorse for what he had done, for his lack of candour & attempted deceptions when interviewed by police.
Aged 52 - born in Guatemala - resided in US since age 20 - courier - no priors.
Sentence manifestly excessive - range of sentence - ratio of head sentence to NPP unjustifiably high (little over 76%).
Appeal allowed: resentenced to 7y with NPP of 4*y.
320

SINANOVIC, Hakija - CCA, 19.5.99
Citation: R v Sinanovic [1999] NSWCCA 216
s.5F application against interlocutory orders.
Applicant not able to read or write in English - represented by his wife. Applicant's wife denied legal access to her husband since he was transferred to the MMTC Long Bay complex shortly after September 1998, posing a difficulty in the applicant being able to prepare sufficiently for his trial.
Refusal of magistrate to require attendance of witness - ability to obtain access to legal advice in gaol - refusal to grant stay of proceedings.
Application dismissed. The Court remarked that if the applicant was unable to prepare sufficiently thoroughly for his trial, then an adjournment would have to be granted & if the refusal of access persists it may be that the DC would have to entertain an application for a stay.
321

FAP - CCA, 6.9.99
Citation: R v FAP [1999] NSWCCA 278
Conviction appeal.
Robbery in circumstances of aggravation (maliciously inflicting ABH).
Sentenced pursuant to Children (Criminal Proceedings Act to a control order for 18* m.
At the time of the offence, appellant was 17 years old. Sentencing judge recommended that after he had served 6 months of the control order, the Minister should give consideration to him being released to the Young Offenders Diversionary Programme conducted by a local Aboriginal Land Council.
Crown case was that appellant was one of 3 Aboriginal youths who assaulted & robbed a white youth (aged 17 at the time of the trial) who was travelling home on his bicycle. At trial, there was no dispute that the victim had been robbed by 3 Aboriginal youths & had sustained actual bodily harm. The only issue was whether the Crown could establish that the appellant, who was being tried alone, was one of the 3 offenders. The victim made photographic identification of the appellant in the presence of a police officer. The only witnesses in the Crown case were the victim & that police officer.
Identification evidence - photographic identification - whether verdict unreasonable.
Appeal dismissed.
322

YOUNG, Jeremy Nathan - CCA, 9.9.99
Citation: R v Young [1999] NSWCCA 275
Sentence appeal. Extension of time. Application to withdraw Notice of Abandonment.
Armed robbery; + self-administer amphetamines taken into account.
MT 3y, AT 3y.
The armed robbery was an impulsive act with the applicant bragging he could do a robbery & get away with it after watching 'Australia's Most Wanted', following a day of drinking with friends & family members at his home. He made some attempt to disguise himself & armed himself with a kitchen knife. He entered a service station & started waving the knife at the console operator & the shift manager. He stole $2,415. A short time later he was arrested while running away.
Aged 18y 9m at time of sentence - deprived & distressing childhood - priors - criminal record containing 14 offences (assaults, malicious damage to property, drug offences, driving offences, dishonesty offence), 12 of which were dealt with in the Children's Court - none resulted in a custodial sentence.
Contrition - early guilty plea - all money recovered - commenced rehabilitation - attending literacy & numeracy courses, drug & alcohol course, carpentry course & a chainsaw course. No behavioural problems in gaol.
Miscarriage of justice - sentence excessive.
Notice of abandonment withdrawn; extension of time granted.
Sentence appeal allowed: resentenced to MT 2*y, AT 2y.
323

HOURN, Michael Dennis - CCA, 15.9.99
Citation: R v Hourn [1999] NSWCCA 286
Sentence appeal.
On 15.9.94 applicant pleaded guilty to malicious wounding with intent to inflict grievous bodily harm & was sentenced to MT 1*y, AT 2*y, special circumstances having been found. On 4.12.96 the applicant was arrested in relation to a further assault upon the same victim & he entered a plea of guilty to maliciously inflicting grievous bodily harm. He was refused bail & remained in custody from the day of arrest until he stood for sentence on 5.5.98. He was sentenced to MT 4y, AT 1y.
Failure of sentencing judge to back-date sentence to day upon which he was arrested.
Appeal allowed: resentenced to MT 3y, AT 2y.
324

TORITTO, Franco - CCA, 15.9.99
Citation: R v Toritto [1999] NSWCCA 288
Sentence appeal.
Robbery; assault with intent to rob; + 5 other offences taken into account.
Total sentence comprising MT 3y, AT 1y.
A woman (aged 30) was walking along a street when she noticed a parked white van, she passed the van & continued walking. Suddenly she felt someone grab her at the back of her neck & turned around to see the applicant, who grabbed a chain from her neck. She screamed & then saw the applicant run to the van & get into the front passenger seat. As a result of this incident, she sustained some soreness to her neck. The second incident involved the van pulling alongside another woman (aged 62) who was walking along another street a short time after the first incident. The co-offender got out of the passenger seat of the van & ran towards her & tried to snatch her bag. A struggle ensued, with the victim managing to hold onto her bag. The co-offender was seen by a witness to run to the van. The witness noted the registration number of the vehicle. That motor vehicle was stolen.
Guilty plea - almost 39 at time of sentence - single - unemployed - bad criminal record - none for violence - prior custodial sentence - on parole at the time of the above offences.
Whether sentence excessive - no novel question of principle.
Appeal dismissed.
325

GENTZ, Jennifer - CCA, 9.9.99
Citation: R v Gentz [1999] NSWCCA 285
Crown appeal.
Defraud Commonwealth
2y PD (special circumstances found).
Respondent was an employee with the Department of Defence & performed a dual role at the Defence National Stores & Distribution Centre in that she was employed as both a system operation manager & a certifying officer. This was for reasons of economy & meant the system of checks & balances as to expenditure of Commonwealth monies was removed. In all, some $196,000 was obtained by the respondent. When she gave account of how the money had been spent, some $26,000 still remained unexplained. When discovered, she made a full confession & held a family conference with her de facto husband & her two daughters from a previous relationship. The following day, her de facto attacked her & her daughters with a claw hammer with the intention of killing them & then suiciding. Respondent & her daughters suffered extensive physical injuries, with the one daughter left with permanent brain damage. The sentencing judge found special circumstances in that the respondent had already been punished & if sentenced to full-time custody, this would constitute double punishment.
General deterrence.
Appeal dismissed.
326

FARRA, Fadi El - CCA, 15.9.99
Citation: R v Farra [1999] NSWCCA 283
Sentence appeal.
3 x armed robbery (knife); 1 x robbery; kidnapping.
Aggregate sentence comprising MT 3y, AT 2y.
No actual details of offences except that all offences involved attacks upon young people 'going about their lawful concerns'.
Special circumstances - whether sentences manifestly excessive.
Appeal dismissed.
327

COLBY, Robert Victor - CCA, 26.8.99
Citation: R v Colby [1999] NSWCCA 261
Conviction and sentence appeal.
2 x aggravated sexual assault; 11 x sexual intercourse with person between 10 & 16 by person in authority.
MT 16y, AT 6y.
Appellant a long-time friend of the complainant's family. All but the 1st count related to a period when the complainant was living with the appellant who had been appointed her custodian on the application of the DG of the Dept of Youth & Community Services. The appellant was aged about 50 at the time & the complainant 12 or 13. A key aspect of the Crown case was evidence of 3 former wives of the appellant who told of a similar range of sexual practices, including bestiality & distinctive types of sexual intercourse. They denied collaboration & that evidence was admitted over objection.
Complaint evidence - directions - warnings - wrongful admission of evidence of 3 former wives - misdirections & inadequate directions relating to evidence of former wives - tendency evidence - wrongful admission of evidence - wrongful rejection of evidence - 'unsafe & unsatisfactory'- whether sentences excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 12y, AT 4y.
328

TOWNSEND, Donald Keith - CCA, 14.9.99
Citation: R v Townsend [1999] NSWCCA 294
Conviction appeal.
2 x indecent assault on person under 16; 1 x sexual intercourse without consent with person under 16; 5 x sexual intercourse without consent.
The appellant was the complainant's uncle, he being married to her mother's sister. They were part of a family of travelling show people & had a home base in the East Maitland area. A large part of the year was spent travelling with a fleet of vehicles, delivering fairground rides, etc. The appellant was convicted on 7 of the 8 counts. Complainant gave evidence of sexual interferences by the appellant commencing from when she was 7.
The trial judge made no reference to the ambit of the defendant's case during summing up.
Summing up - trial judge failed to put adequately or fairly the defence case - obligation to summarise case for accused.
Appeal allowed: new trial ordered.
329

BENAIS, Youval - CCA, 26.7.99
Citation: R v Bennais [1999] NSWCCA 236
Sentence appeal (out of time).
Import trafficable quantity prohibited imports (ecstasy - MDMA or MDEA).
6y with NPP of 3y.
Applicant entered Australia in possession of 1,560 tablets containing 61 grams of pure drug. There were 120 capsules, each containing between 5 & 10 tablets, secreted in the applicant's clothing or luggage. The rest he had ingested & these remained in his body until they were removed in hospital.
Guilty plea - drug use - retrenched from place of employment - financially supported his ailing mother.
Whether sentence manifestly excessive.
Application to appeal out of time granted; appeal against sentence dismissed.
330

LO- CCA, 14.9.99
Citation: R v LO [1999] NSWCCA 291
Crown appeal.
Maliciously inflict GBH - 2y GBB;
common assault - 250h CSO.
Two young men were in the foyer section of Sydenham Railway Station at 5.45 pm one evening when they were approached by the respondent and co-offender. The co-offender was described by a witness as physically the larger of the 2 offenders. He was said to have punched the victim, a small person, to the ground & repeatedly kicked at his body. The respondent was seen to kick at the victim & the victim's companion tried to assist the victim. The respondent pushed him away & threatened him. The co-offender continued assaulting the victim, including jumping on the victim's head. This caused a fracture & brain damage.
Juvenile - aged 16 at time of offence - subordinate role in serious assault.
Whether sentence manifestly inadequate - general & specific deterrence - overemphasis placed upon rehabilitation.
Appeal dismissed.
331

SPILLANE, Michael Thomas - CCA, 16.9.99
Citation: R v Spillane [1999] NSWCCA
Sentence appeal.
Import trafficable quantity ecstasy.
7y with NPP of 4y 8m.
Applicant, an Irish national, arrived in Sydney aboard a Singapore Airlines flight. Customs officers searched his suitcase & found 5 packets of white tablets hidden inside a cushion. Later examination revealed 5,686 tablets with a gross weight of 1,706 grams & an MDMA (ecstasy) content of 447.3 grams. When spoken to, applicant appeared to be well affected by alcohol & gave conflicting accounts of not knowing the tablets were there, having come to Australia merely to pick up some bottles of liquor & return them to the UK & also that he intended going to Belgium to buy some tobacco but had boarded the wrong plane.
Aged 44 - priors for dishonesty offences in the UK - disturbed background - chronic alcoholic.
Courier - process of arriving at sentence - evaluation of assistance to police - assessment of ecstasy as middle range drug - range of sentence for offences of this kind.
Appeal allowed: resentenced to 6y with NPP of 3*y.
332

SZETO, Lance William - CCA, 15.9.99
Citation: R v Szeto [1999] NSWCCA 296
Sentence appeal.
Dishonestly obtain goods by deception.
MT 3y, AT 1y.
Above offence related to 33 fraudulent orders placed by applicant over a 6 month period through the computer system of his employer. He was an accounts manager with Digital Engineering Corporation & his duties involved receiving orders from customers & placing those orders onto computer. False invoices were prepared & directed to the primary customers. False credit notes were issued when those customers complained they had not purchased the goods. The applicant sold all the equipment obtained at approximately 70% of the retail value ($762,175). He used the proceeds to 'live the high life'.
Guilty plea - no priors - did not drink alcohol - had given up using drugs in 1997 - support of family & friends - good character evidence - favourable rehabilitation prospects.
Whether sentence manifestly excessive - whether special circumstances exist.
Appeal allowed: resentenced to MT 2y 3m, AT 9m.
333

ELLEISSEY, Oussama - CCA, 15.9.99
Citation: R v Elleissey [1999] NSWCCA 299
Sentence appeal.
Armed robbery.
MT 18m, AT 2y (special circumstances found).
Sentence directed to commence at expiration of a sentence already being served.
The offence involved the robbery of a newsagency, in which the attendant was threatened with a knife. $600 was taken. Offence committed to finance heroin addiction.
Guilty plea - extensive criminal record, including stealing, assault, resist police, BE&S, drug related offences - need for lengthy period of supervised rehabilitation.
Whether sentence manifestly excessive - whether appellant should have been given benefit of a portion of time already spent in custody for other offences - whether question of principle.
Appeal dismissed.
334

MAXWELL, Isaiah - CCA, 15.9.99
Citation: R v Maxwell [1999] NSWCCA 298
Sentence appeal.
4 x BE&S; + further 15 offences of similar nature taken into account, as well as receiving, possess stolen property, goods in custody, possess cannabis.
MT 2y 3m, AT 1y 9m.
Applicant & a co-offender embarked upon a series of offences, breaking & entering domestic or commercial premises & stealing goods which they subsequently disposed of to known receivers. Value of property stolen was $59,000. Property to the value of $17,500 was recovered.
Whether insufficient weight given to applicant's youth (aged 21 at time of offences) - prior good record - co-operation with police - attempts at rehabilitation - impact of incarceration upon 2y old daughter in his care - whether question of general principle raised - whether sentence excessive.
Appeal dismissed.
335

TRINH, Qui Minh - CCA, 21.9.99
CHIEU, Hac Suol
Citation: R v Trin & Chieu [1999] NSWCCA 295
Sentence appeals.
Trinh: 3 x receive motor vehicles; + 7 further matters taken into account - guilty plea.
Chieu: 3 x receiving; + 5 further matters taken into account - guilty plea.
Each applicant received: MT 3y, AT 2y.
Applicants were associates in a criminal enterprise which involved receiving stolen motor vehicles, involving the 'rebirthing' of the vehicles.
Impermissible pre-conception or pre-judgement on part of sentencing judge that full-time custodial sentence only appropriate option - failure to properly take into account particular evidence concerning subjective features of one applicant - failure to deal with applicant Chieu as person having no criminal antecedents - a resulting entitled for applicant Chieu to be re-sentenced more leniently than at first instance.
Appeals dismissed.
336

GREISS, Ayman Edward - CCA, 11.8.99
Citation: R v Greiss [1999] NSWCCA 230
Crown appeal.
Malicious wounding.
400h CSO.
Respondent had stopped his taxi at traffic control lights. The victim, driving in the same direction, had stopped his truck in the adjacent lane. The respondent abused the victim & said he wanted to do a U-turn. The victim told him he could not. A verbal altercation followed. The lights turned green, both vehicles moved off, but were soon halted again. The respondent again shouted at the victim. Both men alighted from their vehicles. Respondent head-butted victim, knocking him to the ground. Victim stood up, invited respondent to fight. Respondent punched him 3 times in the neck, back & ribs, produced a 17cm Phillips-head screwdriver & stabbed the victim in the right side of his body. Victim retaliated by punching respondent in the face. Respondent got into his taxi & drove off. Victim spent 6 days in hospital with injuries to the neck, abdomen & back, as well as a punctured lung.
Whether manifestly inadequate.
Appeal allowed: resentenced to 2*y PD.
337

LEUNG, Jackie Kai Chen - CCA, 15.9.99 - 47 NSWLR 405
WONG
, Nelson Tak Fat
Citation: R v Leung & Anor [1999] NSWCCA 287
Conviction appeals.
Import commercial quantity heroin (knowingly concerned).
Each received 12y with NPP of 7y.
A co-offender, charged with the same offence, was sentenced to 10y with NPP of 6y
5 wooden packing cases, each containing a marble pedestal, arrived in Adelaide marked for delivery to an Adelaide address, intercepted by Australian Federal Police & Customs officers & taken to police headquarters where they were x-rayed. Each pedestal contained a hollowed out section containing packages which proved to be heroin (13.46 kgs, amounting to 9.356 kgs pure). This was replaced with a plaster-of-paris substance containing 5 gms of heroin. In one pedestal, police installed sound recording & transmitting equipment. The crates were delivered to the Adelaide address. The pedestals were then transported to Sydney & police maintained surveillance throughout the journey to Sydney where they were unloaded & placed in the garage of a house in Cherrybrook. Police maintained surveillance of these premises. The following day, the sound recording equipment was activated & some hours later police executed a search warrant. The pedestals had been smashed. In the roof area were the 5 packages that had been placed in the pedestals by police in Adelaide.
Voice identification - voice comparison - opinion evidence - failure to give evidence - directions
Appeals dismissed.
338

ADAM, Richard - NSW SC, Wood CJ at CL, 19.2.99
ADAM, Gilbert
Citation: R v Adam (Richard) and (Gilbert) [1999] NSWSC 144
Remarks on Sentence
Gilbert Adam was found guilty of the murder of an off-duty police officer who was killed in the car park of the Cambridge Tavern Hotel, Fairfield. The jury returned a verdict of not guilty by direction on an AOABH charge.
Richard Adam was found not guilty of murder & the jury declined to find him guilty of manslaughter. Also found not guilty of maliciously inflict GBH with intent but guilty of statutory alternative of maliciously inflict GBH. He chose not to give evidence.
Gilbert Adam: MT 21y with AT 7y.
Richard Adam: MT 2y, AT 8m.
339

KATSUNO Yoshio- HC, 30.9.99 - 199 CLR 40; 73 ALJR 1458
Citation: Katsuno v The Queen [1999] HCA 50 (30.9.1999)
Appellant & 5 others were charged with importing a commercial quantity of heroin contrary to s.233B(1)(b) Customs Act 1901 (Cth). An offence under s.233B(1)(b) may be prosecuted summarily or upon indictment. The appellant was prosecuted upon indictment. The result was that s.80 of the Constitution required the trial to be by jury & to be held in the State where the offence was committed. He was prosecuted in the County Court of Melbourne.
Before a jury was empanelled, appellant sought an order from the trial judge that the prosecutor be forbidden to use information supplied by the Chief Commissioner or, alternatively, that the information be furnished to the defence. The trial judge refused the application & the trial proceeded. The appellant was convicted. An application for leave to appeal to the Court of Appeal was dismissed.
Jury - Commonwealth offence - trial in State court - provision of information by police to prosecutor - information used to exercise challenge - whether practice prohibited - whether breach constituted a fundamental failure to observe requirements of criminal trial - nature of & entitlement to peremptory challenge - relevance of reasons for exercise - Constitutional requirement of trial by jury - representative nature of jury.
Appeal allowed.
340

WU, Mei Qin - HC, 30.9.99 - 199 CLR 99; 73 ALJR 1497
Citation: Wu v The Queen [1999] HCA 52 (30.9.1999)
The appellant had been indicted in the DC of NSW on counts of kidnapping & attempted murder & 2 counts in the alternative to the counts of kidnapping & attempted murder. The trial commenced. On the 10th day, the trial judge discharged one of the jurors & the trial proceeded to verdict with the remaining 11 jurors. An appeal to the NSW CCA was dismissed.
Jury - failure of juror to attend due to reported illness - juror discharged by trial judge - trial continued without juror - whether trial judge erred in discharging juror - whether judge's power or discretion miscarried in the terms in which he exercised it - whether juror incapable of continuing to act - whether the decision to discharge a juror & the decision to continue with fewer than 12 jurors involve separate considerations.
Appeal dismissed.
341

KNEEBONE, Michael Alfred John - CCA, 21.9.99 - 47 NSWLR 450
Citation: R v Kneebone [1999] NSWCCA 279
Conviction appeal.
Sexual intercourse without consent in circumstances of aggravation with person under 16 & under authority of appellant.
MT 6y, AT 3y.
Appellant was acquitted on a charge of indecent assault in circumstances of aggravation.
Complaint aged 14; appellant her mother's de facto. Crown case that appellant went into complainant's bedroom, hit her a number of times, causing her nose to bleed, then had sexual intercourse with her while she screamed for help. Complainant said that at this stage her mother opened the door, saw what was happening, said 'that's enough', then walked away. Complainant then went to the bathroom, appellant went in & pushed her into the bathtub, causing her to bang her head. She packed her bags & went to a friend's house, crying & distressed. The friend noticed her injuries which were consistent with the assault in the bedroom & the bathroom.
Error in allowing evidence to be given of out of court representations made by complainant - failure to adequately direct jury in relation to out of court representations - failure to direct adequately on delay in making complaint - failure to warn jury as to potential unreliability of complainant's evidence - failure of Crown to make adequate & proper enquiries as to availability of appellant's wife to give evidence at trial - 'unsafe & unsatisfactory'.
Appeal allowed: new trial ordered.
342

ARBOLINO, Michael Bruno - CCA, 26.8.99
Citation: R v Arbolino [1999] NSWCCA 249
Sentence appeal.
7 charges relating to acts of indecency & sexual assault in circumstances of aggravation involving a 14y old boy.
Convicted on 1st count of aggravated indecent assault; found not guilty on counts 2-6; jury unable to reach verdict on count 7.
MT 3y, AT 1y.
Crown case that appellant befriended a 14 year old boy & on one occasion put his hand down the boy's pants & played with his penis. Appellant had prior convictions for child sexual assault & was on parole for those offences at the time of the above offence.
Aged 35 - sociopathic personality - frontal lobe damage as a result of head injuries suffered in a car accident - borderline retarded range of intelligence - sexually abused as a child - birth of daughter since above offence resulted in a significant maturing effect upon appellant.
Special circumstances - risk of further brain injury from prison violence - whether sentence manifestly excessive.
Appeal allowed: resentenced to MT 15m, AT 21m.
343

ANDREW, Benjamin Bruce - NSW SC, Sully J, 2.7.99
KANE, Peter Clive Basil
Citation: R v Andrew & Kane [1999] NSWSC 647
Remarks on Sentence
Andrew: found not guilty of murder but guilty of manslaughter. The jury made a recommendation for leniency - sentenced to MT 4y, AT 2y..
Kane: found guilty of murder - sentenced to MT 10y, AT 3y.
Joint enterprise by the prisoners in the killing of a school teacher who, it was alleged, pursued an active homosexual lifestyle & had a particular attraction towards teenaged boys & young men. The killing took place in 1990 but remained unsolved until 1997 when the wife of the prisoner Kane, after their marriage break-up, told police that her husband had told her he and the prisoner Andrew had killed a schoolteacher. The police thereupon re-opened the investigation into the death of the schoolteacher. Evidence showed the deceased had been hit on the head with a baseball bat. His wrists & ankles had been bound with green masking tape. Green masking tape was used to gag & blindfold him. A plastic bag had then been put over the deceased's head & tightly secured around his neck by means of the masking tape, resulting in suffocation.
344

HALL, Brian Morgan - NSW SC, Hidden J, 5.7.99
Citation: R v Hall [1999] NSWSC 631
Remarks on Sentence
Murder; maliciously wound with intent to do GBH; 2 x maliciously inflict GBH with intent to do GBH.
After an altercation outside the Birkenhead Tavern, the prisoner drove his car into a group of people. Some people went to the aid of the two men who had been knocked down & managed to remove one man to the side of the road. The other injured man had been thrown in the air & landed in the middle of the road. His sister & another man went to his aid & as the man began to lift the injured man in an attempt to remove him from the middle of the road, the prisoner drove his car into them. The sister of the injured man died from her injuries a week later.
MT 15y, AT 5y.
345

TANG, Choi Kia - NSW SC, Hidden J, 25.6.99
Citation: R v Tang [1999] NSWSC 630
Remarks on Sentence:
Murder.
For some months prior to his death, the victim had been living with his mother following the breakdown of his marriage. On the night of his death, the prisoner & 3 young companions were stealing mangoes from trees in the backyard of the mother's home. The victim observed this & pursued them. He seized one of them & a struggle ensued. The prisoner & the other 2 men joined in.
The victim was punched & fell to the ground where he was kicked a number of times. He was also stabbed 7 times in the torso & upper left arm. The victim made his way back to his mother's home. His mother attended to his wounds as best she could & he was then taken to Westmead Hospital where he died the following morning.
MT 11y, AT 4y.
346

BARRY, Dale Wesley - NSW SC, Newman J, 18.6.99
Citation: R v Barry [1999] NSWSC 659
Remarks on Sentence
Murder - sentenced to MT 18y, AT 6y.
Maliciously wound with intent to do GBH - sentenced to concurrent FT 12y.
The crime of murder involved the prisoner killing his wife & the crime of maliciously wound with intent involved him assaulting his stepdaughter.
There was evidence of the prisoner assaulting his wife over many years, culminating in the wife eventually leaving him & taking her 2 children from previous relationships with her, as well as the 2 children she & the prisoner had together. There was also evidence of the deceased & the prisoner cohabiting for periods of time after the break-up & the prisoner having access to the children, however, the deceased eventually told the prisoner he was no longer to have any access to the children after some violence involving her son (the prisoner's stepson).
After the separation, the prisoner had been residing with a former workmate & his partner. The workmate gave evidence of the prisoner telling him of his intention to kill his wife.
347

ROSEVEAR, Raymond John - NSW SC, Studdert J, 21.7.99
Citation: R v Rosevear [1999] NSWSC 732
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder of wife.
Applicant & his wife lived in a caravan in a caravan park. After soaking the bedding on the double bed inside the caravan with methylated spirits, the applicant grabbed his wife, pushed her onto the bed, then lit the bedding. The wife suffered burns to 65% of her body & survived in hospital for 3 days before dying of cardiac failure which was due to shock consequent upon the burn injuries. A post-mortem revealed the presence of haematoma consistent with attempted strangulation.
Application allowed: sentenced to MT 15y, AT 5y.
348

LEE, Christopher Roy - NSW SC, Levine J, 23.7.99
Citation: R v Lee [1999] NSWSC 773
Redetermination of life sentence under s.13A Sentencing Act 1989.
The deceased (a young mother) and her baby lived with the deceased's parents. The parents came home to find the baby crying & the deceased lying naked in a pool of blood on the kitchen floor, the blade of a large carving knife having broken off & sticking in her back. A post-mortem examination revealed 23 stab wounds. Witness evidence of the prisoner being seen outside the premises at the relevant time & also being seen walking bare-chested with a garment under his arm. He arrived home bare-chested. The deceased's mother testified that the deceased had been acquainted with the appellant & that the deceased regarded him like a brother.
Application allowed: sentenced to MT 16y, AT 5y.
349

SERGI, Francesco - NSW SC, Bell J, 19.7.99
Citation: R v Sergi [1999] NSWSC 728
Redetermination of life sentence under s.13A Sentencing Act 1989.
On 26.1.1967, the applicant, aged 21 at the time, surrendered himself to police & confessed to having shot his brother & sister-in-law. He handed over the pistol which he had used to commit the offences. The applicant had learnt that his younger sister, who had recently married, had been accused by his sister-in-law of having lax morals suggesting that she had been involved in a sexual relationship with a young man prior to her marriage. The sister's husband had left her & the sister returned home to live. The applicant, being the oldest male member of the family, felt he bore the responsibility for remedying the damage that had been done to the family's honour.
Application allowed: sentenced to MT 11y to date from 26.1.1967 & expire on 25.1.1978, AT to expire on 19.7.99.
350

LEES, Neville Andrew - CCA, 29.9.99
Citation: R v Lees [1999] NSWCCA 301
Conviction and sentence appeals.
Murder.
MT 13*y, AT 4*y.
On the night of the victim's death, neighbours called emergency services after hearing sounds of a struggle emanating from the victim's unit. When police arrived, the appellant was standing over the victim, attempting to pour water onto him. The victim was pronounced dead by ambulance officers. The victim suffered extensive injuries to his head, neck, arms, hands & lower back, the more serious including subdural & subarachnoid haemorrhages, multiple abrasions & lacerations to the face, nasal fractures & a fracture of a rib.
Appellant appealed on the grounds that the trial judge had misdirected the jury on provocation & after the jury had retired, which suggested a possibility they might follow in reaching a verdict at a time when there was no suggestion of any disagreement among them.
Directions to jury - provocation - whether directions on provocation by 'words alone'correct - whether directions on standard of proof correct - whether further directions offended principle in Black - whether special circumstances justifying variation of ratio between MT & AT.
Appeals dismissed.
351

RAPLEY, George Charles - CCA, 14.9.99
Citation: R v Rapley [1999] NSWCCA 302
Crown appeal.
2 x sexual intercourse with person under age of 10; 3 x aggravated indecent assault against person under 10.
5y GBB.
The respondent pleaded guilty to the 5 charges involving sexual abuse of his 8 year old granddaughter. The trial judge's reasons for placing him on a recognizance included the respondent's age (60), absence of criminal record, spontaneous nature of offences, contrition, wishes of victim's immediate family that respondent not go to prison.
Whether sentence manifestly inadequate - whether factors such as age of prisoner, contrition, or wishes of victim's family warrant non-custodial sentence.
Appeal allowed: resentenced to MT 18m, AT 6m.
352

TAYLOR, Stephen John - CCA, 27.9.99
Citation: R v Taylor [1999] NSWCCA 309
Conviction appeal.
Supply trafficable quantity prohibited drug (3.15 kilos cannabis leaf).
The appellant arrived in Sydney on a flight from Adelaide. A sniffer dog had drawn attention to a particular bag & the appellant was observed collecting it. He was detained by police officers & taken to an office where he was asked to open the bag. The activity was filmed on video tape. 3 PVC pipes containing the cannabis leaf were located at the bottom of the bag. The appellant claimed to have packed the bag the day before. At trial he gave conflicting evidence he collected the bag from his sister after making arrangements for her to leave the packed bag on the front porch. His sister gave evidence confirming the arrangement. It was suggested that the sister's de facto had been responsible for placing the drug in the luggage, there being considerable animosity between him & the appellant. The appellant testified that he had lied about packing the bag himself. He said he did this to protect his sister, once it became obvious the cannabis leaf was in the bag.
Claim by appellant to have lied to investigators - Crown case that he told the truth - adequacy of directions to jury.
Appeal dismissed.
353

OINONEN, Lauri Leevi - CCA, 29.9.99
Citation: R v Oinonen [1999] NSWCCA 310
Sentence appeal.
Manslaughter.
MT 8y, AT 3y (special circumstances found).
The appellant had been indicted for murder. His offer to plead guilty to manslaughter was rejected by the Crown.
Appellant an opal miner who suspected his de facto's grandson of stealing some opal from him. Well affected by liquor, he took a .22 rifle, loaded it but did not engage the safety catch, & drove to the house where the young man was staying. He confronted the young man, who denied taking the opal. The victim then attempted to depart from the scene but his way was blocked by the appellant. He sought to escape by running down the street. As he did so, the appellant raised the rifle to his shoulder & fired it. He was fatally struck.
Aged 62 - first period of custody - contrition - remorse - considerations arising out of offer to plead guilty to crime upon which he was ultimately convicted - special circumstances.
Appeal allowed: resentenced to MT 6y, AT 3y.
354

COLGAN, Danielle - CCA, 15.9.99
Citation: R v Colgan [1999] NSWCCA 292
Sentence appeal.
Armed robbery; attempt armed robbery in company; + 4 associated matters taken into account.
MT 1y, AT 1y.
The attempt rob involved a failed attempt to rob a service station. A stolen vehicle was used to drive to & from the scene.
Applicant aged 18 at time of offence - guilty plea. She also admitted to a previous robbery whilst being interviewed for the attempt rob. Her co-offender was a minor at the time of the offence.
Parity.
Appeal dismissed.
355

BAE, Shang Hyun - CCA, 17.9.99
Citation: R v Bae
Sentence appeal.
Maliciously inflict GBH.
MT 3y 3m, AT 1y 9m.
Applicant & a co-offender had been jointly charged on 2 counts of murder. The count alleging maliciously inflict GBH was in the alternative. The jury found the applicant guilty on the alternative charge. The applicant (a Korean national) was part of a group of Korean men who attacked & beat 2 other Korean men. The applicant beat the victims with a wooden baton. Both victims died as a result of the assault.
Worst type of case.
No priors - no assistance to authorities.
Parity.
Appeal dismissed.
356

McGUINNESS, James - CCA, 17.9.99
Citation: R v McGuinness [1999] NSWCCA 304
Sentence appeal.
Dangerous drive causing GBH.
MT 18m, AT 6m.
The applicant was driving his panel van in the early hours in light fog. He failed to negotiate a bend in the road, the vehicle left the roadway & struck a tree. His passenger suffered serious injuries. The applicant had a high blood alcohol reading.
This was his third drink driving offence in a short period of time.
Prior convictions - guilty plea.
Whether sentence manifestly excessive.
Appeal dismissed.
357

LEFTER, Dumitru - CCA, 17.9.99
Citation: R v Lefter [1999] NSWCCA 305
Sentence appeal.
2 x supply prohibited drug (heroin).
MT 6y, AT 2y. Recommendation for deportation.
No details given in judgement regarding offences, except to note 'They disclose a course of conduct of which nothing more need be said than that, in objective terms, it was extremely serious ..'.
Guilty plea - prior convictions - course of serious conduct of supply heroin - long history of alcohol & drug abuse.
Whether sentence manifestly excessive.
Appeal dismissed.
358

UASI, Afa - CCA, 17.9.99
Citation: R v Uasi [1999] NSWCCA 306
Sentence appeal.
Robbery in company; attempted aggravated robbery with wounding; 2 x armed robbery; + 16 more offences of a similar type taken into account.
MT 8y, AT 4y.
The 4 offences charged and 11 of the offences taken into account involved attacks on banks, members of their staff & customers. On one occasion, the applicant stabbed a bank manager twice & on another occasion he assaulted a teller. The other offences involved chemist shops & bag snatching. In all, $238,897 was stolen.
Aged 20 - prior convictions - addicted to heroin - robberies committed to fund addiction - brain damage as a result of head injuries sustained 2 years prior - dysfunctional family - immature - intellectually dull - quick tempered.
Whether sentence manifestly excessive.
Appeal dismissed.
359

PARK, Sung Eun - NSW SC, Greg James J, 2.9.99
Citation: R v Park [1999] NSWSC 921
Judgement on application by Crown to take evidence by video link.
Important witness unable to give testimony - fragmented trial - no sanction for false testimony - meaning of oath under Evidence Act.
Motion dismissed.
360

SHARROCK, Trevor John - CCA, 6.9.99
Citation: R v Sharrock [1999] NSWCCA 289
Sentence appeal.
Sexual intercourse without consent in circumstances of aggravation.
The above offence was only one of a series of sexual assault cases for which the applicant was tried. There was another sexual assault of slightly less serious character in April 1997 & another in May 1997.
MT 12y, AT 4y.
On 6 May 1997, applicant entered isolated home of an elderly woman (aged 80) without invitation. She had one leg amputated & was confined to a wheelchair. After threatening her with a knife, the applicant had sexual relations with her. Meagher JA described the offence as '... the worst that I have come across in my ten years on the bench'.Whether sentence in serious rape should be equal to or exceed sentence in murder case - statutory order - whether trial judge erred in structuring of sentences.
Appeal allowed in part: sentence in relation to 2nd victim quashed, applicant re-sentenced to MT 10y, AT 6y - sentences otherwise confirmed.
361

DARWICHE, Michael - CCA, 15.9.99
Citation: R v Darwiche [1999] NSWCCA 293
Sentence appeal.
3 x receiving.
MT 18m, AT 9m.
Appellant worked with his brother (co-offender) in a panel beating business. The co-offender stole motor vehicles for 'rebirthing'; he was also charged with 2 acts of receiving. The receiving charges with which the appellant was charged related to receiving the stolen motor vehicles. Both brothers received the same sentences.
Guilty plea - assistance to authorities.
Justifiable sense of grievance - lack of parity - discretion to refer for assessment for home detention.
Appeal allowed: resentenced to MT 4m, AT 4m.
362

SANCAR, Yuksel - CCA, 21.9.99
Citation: R v Sancar [1999] NSWCCA 284
Conviction appeal.
Murder.
The applicant & the victim were both prisoners at Junee Correctional Centre. Four prisoners, including the applicant, were involved in a confrontation in the walkway outside the education section, during which time the applicant stabbed the deceased with a weapon that had been fashioned from one half of a pair of scissors.
Intent - self-defence - availability of alternative verdict of manslaughter - directions.
Appeal dismissed.
363

WEBSTER, Patrick John - CCA, 27.9.99
Citation: R v Webster [1999] NSWCCA 313
Crown appeal.
Armed robbery.
MT 6m, AT 3*y.
In the early hours of the morning, whilst armed with a syringe containing red fluid, the respondent & a co-offender had robbed a man in a convenience store of $410 & a packet of tobacco. The offence was recorded on a security video.
MT disproportionately short - rehabilitation to be weighed with objective considerations including personal & general deterrence - MT to reflect period in custody that objective circumstances require be served - effect of guideline judgement in Henry & Ors - necessity for sentencing judges to accept & apply principles.
Criticism by the Court regarding the course of action taken in sentencing by the judge at first instance: '...The guideline judgment in Henry (supra) was intended to provide to sentencing judges rule of policy ... It is not enough to mouth the formula of saying one has referred to that decision, one has to apply it'.
Appeal allowed: resentenced to MT 12m, AT 6m.
364

HORTON, Anne Yvonne - NSW SC, Studdert J, 24.9.99
Citation: R v Horton [1999] NSWSC 983
Remarks on Sentence:
Manslaughter.
The prisoner was charged with murder but pleaded guilty to manslaughter which the Crown accepted in full satisfaction of the indictment.
The prisoner stabbed a friend in the heart with a knife after drinking heavily. She held the knife to the chest of the deceased. The deceased walked into the knife in an inebriated state.
Prior convictions - no previous custodial sentence - chronic alcoholic - offence not premeditated - unhappy adult life - dependent personality disorder - need for general & specific deterrence.
MT 5y, AT 3y.
365

SALAMEH, Sami - CCA, 17.9.99
Citation: R v Salameh [1999] NSWCCA 300
Sentence appeal against s.13A determination..
MT 23y, AT remainder of applicant's natural life.
Applicant & co-offender, each armed with a shortened pump-action shotgun, stocking over face, entered a jewellery shop owned by victim & his family. Their premises were selected because they were seen to be a 'soft target'. The victim's family were in the store at the time. The victim, who was at the rear of the premises, entered the store & almost immediately the applicant discharged his shotgun. The victim died within one or 2 minutes.
Relevance of sentences imposed subsequent to life sentence - principle of totality - whether sentence manifestly excessive.
Appeal dismissed.
366

CROMBIE, John William - CCA, 15.9.99
Citation: R v Crombie [1999] NSWCCA 297
Sentence appeal.
Supply heroin; + 2 further supply heroin charges taken into account.
Small amount of heroin involved.
MT 2y, AT 1*y.
Applicant arrested in the course of a police operation using an undercover officer.
Applicant an active street dealer, albeit an addict dealer - priors for offences of dishonesty & drug related matters, possess housebreaking implements - on GBB at time of supply offences - aged 39 - special circumstances found - above average prospects of rehabilitation - need for extensive supervision upon release.
Whether sentence manifestly excessive - whether sufficient allowance made for fact that case could have been prosecuted in Local Court.
Appeal allowed: resentenced to MT 1*y, AT 1y.
367

GUNES, Elvan Ricky - NSW SC, Newman J, 26.2.99
Citation: R v Gunes [1999] NSWSC 130
Remarks on Sentence:
Manslaughter.
Prisoner originally charged with murder. He pleaded not guilty to murder but guilty to manslaughter which was accepted in full discharge of the indictment on the grounds of diminished responsibility.
The prisoner poured petrol over his father and set him alight. Longstanding family dispute. History of mental illness (depression, paranoia, schizophrenia).
MT 5y, AT 7y.
368

ROBSON, Brian John - NSW SC, Barr J, 26.8.99
Citation: R v Robson [1999] NSWSC 855
Remarks on Sentence:
Manslaughter.
Originally charged with murder, Crown accepted his plea of guilty to manslaughter in full discharge of indictment on basis of unlawful & dangerous act.
Assaulted victim to 'teach him a lesson'for taking prisoner's wife's car and damaging it and other grievances. Two other persons were involved in the offence. Heroin addiction. Good rehabilitation prospects. Married with large family.
MT 3y, AT 2y.
369

NGUYEN, Minh Hieu - NSW SC, McInerney J, 4.6.99
Citation: R v Nguyen [1999] NSWSC 592 revised - 31/08/99
Remarks on Sentence:
Manslaughter.
Originally charged with murder. Pleaded not guilty to murder but guilty to manslaughter. Crown accepted plea in full satisfaction of indictment on basis of unlawful & dangerous act.
Group attack on victim at dance hall following dispute. Prisoner hit victim with baseball bat from which victim died.
Good character. Family support.
MT 3y, AT 1y.
370

LEWIS, Scott Tikao - NSW SC, Sully J, 1.3.99
Citation: R v Lewis [1999] NSWSC 131
Remarks on Sentence:
Manslaughter.
Prisoner had originally been charged upon an indictment containing 5 counts. The 1st count was murder. The prisoner pleaded not guilty to murder but offered a plea of guilty to manslaughter. The Crown accepted that plea in full discharge of the entire indictment.
Member of Rebel Motorcycle Club. The victim (a stranger) was being a 'nuisance'at a pub & was removed by a bouncer, another club member & the prisoner. The prisoner punched & kicked the victim. Other club members then joined in the assault whereupon the prisoner left. The victim died of stab wounds. The prisoner was seriously assaulted in custody because his wife was giving evidence against other club members. Good rehabilitation prospects.
MT 6y, AT 3y.
371

TM, NSW SC, Hidden J, 28.5.99
Citation: R v TM [1999] NSWSC 504
Remarks on Sentence:
Manslaughter.
Originally charged with murder. Pleaded not guilty to murder but guilty to manslaughter in full discharge of the indictment.
The prisoner & friends chased the victim after a confrontation outside a pub. Friends kicked & punched victim who fell to the ground. The prisoner stabbed the victim in leg from which he died.
Aged 17 at time of offence - good rehabilitation prospects - supportive family.
MT 3y, AT 2y.
372

SIMPSON, Anthony Lloyd - NSW SC, Studdert J, 20.8.99
Citation: R v Simpson [1999] NSWSC 842
Remarks on Sentence:
Manslaughter.
The prisoner was originally charged with murder. He pleaded not guilty to murder but guilty to manslaughter in full satisfaction of the indictment.
The victim was electrocuted when trying to get over an electrified wire fence set up by the prisoner to protect his (the prisoner's) cannabis plants. The prisoner found the victim's body, panicked, wrapped it in a quilt & disposed of it in bushland. Friends of the victim became concerned when the victim failed to return & approached a house near the prisoner's property. The occupant of that house phoned the police. Shortly after that a police officer arrived, the prisoner saw the officer & requested that officer to interview him. The prisoner made immediate & full confessions.
Generally good character - special circumstances.
MT 6y, AT 3y.
373

GRENENGER, Nicholas Raymond - NSW SC, Sully J, 23.4.99
Citation: R v Grenenger [1999] NSWSC 380
Remarks on Sentence:
Manslaughter.
The prisoner was indicted upon murder, he pleaded not guilty & the trial proceeded. The jury, however, returned a verdict of not guilty of murder but guilty of manslaughter.
The prisoner struck the victim on the head a number of times with a bar stool during a pub fight.
Age 22 - good character - remorse - no previous imprisonment.
MT 18m, AT 18m.
374

HALL, Susan Maria - NSW SC, Bell J, 23.7.99 - 108 A Crim R 209
HANSLOW
, Colin George
Citation: R v Hall & Hanslow [1999] NSWSC 738 revised - 23/07/99
Remarks on Sentence:
Manslaughter.
The victim lived with Hall, Hanslow and Colin David Simpson. All were intellectually impaired. The victim also suffered from cerebral palsy & both his left arm & left leg were wasted. The victim was beaten by Simpson. Simpson pleaded guilty to maliciously inflicting GBH & was sentenced to MT 8m, AT 4m (pre-sentence custody of 2y 26d having been taken into account). Hall was convicted of manslaughter on the basis that she failed to obtain help for the victim. Hanslow pleaded guilty to accessory after the fact to maliciously inflict GBH.
Good character - intellectual impairment.
Hall: 5y GBB.
Hanslow: 2y GBB.
375

KHOUZAME, Adonis - NSW SC, Michael Grove J, 24.9.99
Citation: R v Khouzame [1999] NSWSC 979
Remarks on Sentence:
Manslaughter; AOABH.
The prisoner had stood trial on murder & AOABH. He was found not guilty of murder but guilty of manslaughter & guilty of AOABH.
The prisoner struck another teenager in street with block of wood. The offence occurred because a group of boys entered street to talk to some girls including the prisoner's sister & cousin. A fight between two groups ensued (Lebanese & Turks).
Age 19 - good character - close & supportive family - good rehabilitation prospects.
Manslaughter: MT 3y, AT 2y;
AOABH: concurrent FT 3m.
376

CLAXTON, Bruce - CCA, 16.9.99
Citation: R v Claxton [1999] NSWCCA 303
Conviction appeal.
Receiving stolen property.
The receiving charge was in the alternative, the appellant having been found not guilty of the 1st charge of stealing.
The property received was a 1997 model Builtwell Stanza horse float. The appellant claimed to have bought the horse float.
Trial judge incorrectly stated in summing the time at which accused must have had knowledge that goods were stolen - correct time of knowledge later stated by trial judge - no recognition of prior mistake.
Directions to jury that there was no doubt that someone stole the horse float - directions on elements of offence of receiving - miscarriage of justice.
Appeal allowed: verdict of acquittal entered.
377

BAKER, Kellie Anne - CCA, 9.9.99
Citation: R v Baker [1999] NSWCCA 277
Conviction and sentence appeals.
Armed robbery with wounding.
MT 2y 3m, at 9M
After visiting a methadone clinic in Granville, the victim went to Blacktown where his parents lived. While sitting near the station in Blacktown Mall, the appellant & a man approached him. The man demanded that the victim give the appellant some money every 'cheque day, which the victim refused. The man then demanded to see what was in the bag that the victim was holding. The appellant then stabbed the victim in the buttock. The appellant & the victim were known to each other, often meeting at the Blacktown methadone clinic. Because of some animosity between them, the victim had changed to visiting the methadone clinic at Granville.
Prior convictions for assault, AOABH, carry offensive implement.
Son aged 12 - elderly parents, mother sick.
Unresponsive answers alleging bad character - cross examination by prosecutor as to motives of other witnesses - lying - relevance of issues at trial - whether miscarriage.
Appeals dismissed.
378

SEWELL, Thomas Joseph - CCA, 27.9.99
Citation: R v Sewell [1999] NSWCCA 307
Conviction appeal - application to go behind pleas of guilty.
20 x fraud type charges (eg, use false instrument, etc).
Miscarriage of justice. Applicant prevented from putting on defence of substance. Applicant submitted he was entitled to claim an honest belief in his entitlement to act in the way he did, notwithstanding that a reasonable, objective mind might think that such a belief was held entirely unreasonably.
Appeal allowed: retrial ordered on all counts.
379

OLBRICH, Reinhold Erhard - HC, 7.10.99 - 199 CLR 270; 73 ALJR 1550
Citation: The Queen v Olbrich [1999] HCA (7.10.1999)
Import trafficable quantity heroin. Guilty plea. Respondent claimed he was a courier. Sentencing judge rejected respondent's evidence, finding he was a principal as far as the drug importation was concerned. The sentencing judge based the sentence on this fact.
On appeal respondent sought appeal against his sentence principally on the ground that the sentencing judge was wrong to reject the argument that onus was on the Crown to prove that respondent was not a courier. The CCA held that the sentencing judge had failed to apply the correct principles, the appeal was allowed, the sentence quashed & the matter remitted to the DC for sentencing.
The Crown sought & was granted special leave to appeal to the HC on the following grounds::
CCA erred in holding that the involvement of an importer of prohibited drugs in the course of events prior to, or subsequent to the actual act of importation itself is a matter which the Crown must prove beyond reasonable doubt; and the CCA erred in holding that in the absence of relevant evidence about the particular role of an importer of prohibited drugs he is entitled to be sentenced on the basis most favourable to him, that is, as a courier acting on behalf of another person.
Appeal allowed: matter remitted to NSW CCA for redetermination.
380

BYRNES & HOPWOOD v THE QUEEN - HC, 12.8.99 - 199 CLR 1; 73 ALJR 1292
Appellants were convicted of offences against Companies (South Australia) Code, s.229(4).
The CCA quashed the convictions but this decision was subsequently overturned by the HC. When remitted to the CCA, the convictions were upheld & the matter referred back to the trial judge for sentencing. The DPP (Cth) successfully appealed against the fines imposed & custodial sentences were ordered.
On appeal to the HC, the appellants challenged the DPP's power to prosecute the appeal against sentence.
Appeal allowed.
381

PAPAKOSMAS v THE QUEEN - HC, 12.8.99 - 196 CLR 297;73 ALJR 1274
Applicant was found guilty of sexual assault at trial. At trial the complainant & a number of other witnesses gave evidence that she complained that she had been assaulted virtually immediately after the event. Trial judge directed the jury that the evidence could be used as evidence of the fact contained in the complaint, namely of intercourse without consent, provided they accepted that evidence. There was no request for redirection. An appeal to the NSW CCA was unsuccessful & the applicant appealed to the HC. In the HC, the applicant argued that where evidence of recent complaint in a sexual assault case is admitted, the trial judge should limit the use of that evidence to that permitted by the common law.
Appeal dismissed.
382

AB v THE QUEEN - HC, 9.9.99 - 198 CLR 111; 73 ALJR 1385
Citation: AB v The Queen [1999] HCA 46 (9 September 1999)
Appellant, a Marist brother teaching in a Catholic school, fled to the US following complaints made by 2 pupils. He was later extradited for 28 child sexual assault offences committed against 6 pupils. When he returned to Australia he instructed his solicitor that he wanted to disclose further matters to the prosecuting authorities & admitted to a further 39 offences against 9 victims.
Principles - offences not forming basis of extradition - extradition law - whether sentencing court required to have regard to public interest in the accused's confession & non-insistence on 'speciality rule'- s.42 Extradition Act 1988 (Cth).
New ground added in appeal to HC - not expressly taken at first instance or in CCA - whether ground could or should be allowed - whether materials before lower courts sufficiently raised point of law for consideration in HC.
Appeal allowed: matter remitted to the CCA to be dealt with in accordance with the reasons for judgement.
383

THOMPSON v THE QUEEN - HC, 2.9.99 - 73 ALJR 1319
Applicant was convicted of entering a house with intent to commit an offence & attempted child stealing. It was ordered that he be imprisoned indefinitely after completing the terms of imprisonment imposed. Applicant complained to the CCA (WA) that the conclusion that he was at high risk of re-offending was based almost exclusively on reports compiled some 12 years earlier, together with short interviews with him. The CCA concluded that pre-sentence & psychological reports had been prepared in some haste & the psychological assessment had not been comprehensive & it commissioned further psychological & psychiatric assessments. The appeal against sentence was then dismissed. The applicant sought special leave to appeal to the HC.
Appeal allowed.
384

ROBINSON v THE QUEEN - HC, 2.9.99 - 197 CLR 162; 73 ALJR 1314
Appellant was convicted of 2 counts of unlawful anal intercourse with a child under 12 years. Alleged offences occurred some 3 years before the trial. The only evidence presented was that of the complainant. Appellant submitted that the Queensland Court of Appeal had erred in deciding there was not an appreciable risk of miscarriage of justice occurring by reason of the trial judge's failure to give an appropriate warning to the jury on the complainant's evidence.
Appeal allowed.
385

TOMSON, Jonathan Konstantine - CCA, 11.8.99
Citation: R v Tomson [1999] NSWCCA 308
Crown appeal.
Dangerous drive occasioning death.
6m GBB.
Respondent was driving with his de facto wife along a road behind another car for some time. As the other car was going very slow, he tried passing that car, however, in doing so he crossed double yellow lines & collided head-on with a car coming from the other direction. The collision resulted in the death of his de facto. At the time of impact the weather was fine & visibility clear.
Guilty plea - good driving record - no drugs or alcohol involved - remorse - not driving at excessive speed.
Whether sentence excessively lenient.
Appeal dismissed.
386

BROWN, Trent Robert - CCA, 19.10.99
Citation: R v Brown [1999] NSWCCA 323
Crown appeal.
1 x supply large commercial quantity methylamphetamine; 1 x offer to supply commercial quantity methylamphetamine; 2 x supply commercial quantity methylamphetamine; + offences of possess prohibited drug taken into account.
MT 2y, AT 3y.
The sentencing judge failed to direct that the sentences be cumulative upon existing sentences. The MT was backdated to 15.9.98, despite the fact that the respondent had been in custody from 2.5.98 on other non-related matters.
Error in sentencing where sentences imposed are subsumed within sentence currently being served for unrelated offence - such a sentence amounting to no sentence at all - hence demonstrating excessive leniency - sentence not commensurate with seriousness of offences.
Notwithstanding assistance to authorities, necessary to impose sentence not unreasonably disproportionate to stated penalty for offences - seriousness of role of couriers considered.
Appeal allowed: resentenced to MT 4y (dating from 31.3.99), AT 3y.
387

FAVERO, William Vincenzo - CCA, 11.10.99
Citation: R v Favero [1999] NSWCCA 320
s.5F application to obtain leave to withdraw pleas of guilty.
Applicant involved in a motor vehicle accident. Police attended the scene of the accident & conducted normal enquiries. Applicant was found to be in possession of 6 kgs of amphetamine, a small amount in a 'bum bag', remainder in the boot of the car in containers inside a canvas bag.
At committal proceedings, applicant pleaded guilty. Subsequent to this his legal representation changed & he received advice that there were arguable defences available to him in respect of both charges upon which he had been committed for sentence. The applicant moved to vacate his pleas of guilty & to have his matters remitted for trial, however, this was refused.
Failure of legal representatives to advise of available defences - principles applicable.
Direct access of client to barrister - observations as to undesirability of this practice.
Application allowed: matter remitted to the DC for trial.
388

NIKAU, Paulo - CCA, 13.10.99
Citation: R v Nikau [1999] NSWCCA 322
Sentence appeal.
Manslaughter MT 8y, AT 4y;
malicious wounding - concurrent FT 4y.
The applicant was originally charged with murder & separately with malicious wounding. He pleaded not guilty to murder but guilty to manslaughter which the Crown accepted in discharge of the murder charge.
After a fight between the accused's friends & 3 young Aboriginal men outside a shop after the young Aboriginal men had been asked to leave the premises & the accused's friends took it upon themselves to escort them from the shop, the accused armed himself with a kitchen knife & accompanied his friends to a park. A group of Aboriginal men in the park saw the accused's group approaching & some of the Aboriginal men armed themselves with fence palings & ran off into a laneway where they were attacked by the accused & his friends, giving rise to the above charges.
Young - Pacific Islander extraction - tragic & disturbed background.
Whether sentence manifestly excessive.
Appeal dismissed.
389

COCKING, Martin James - CCA, 29.9.99
Citation: R v Cocking [1999] NSWCCA 311
Sentence appeal.
Malicious wounding; AOABH.
MT 2*y, AT 1*y.
Female & male friend, together with female's 2 children, were sitting in the female's loungeroom watching TV when the applicant (with whom the female had had a previous relationship), his brother & friend entered the room. Applicant kicked the female in the face, rendering her unconscious then began punching & kicking male victim. One of the other men stopped the assault. The applicant's friend then dragged the male victim out of the house to the front lawn & assaulted him by punching him, then demanded that he phone a taxi. As the male victim attempted to make the call, the applicant's friend removed the telephone from its wall mounting & struck him on the left shoulder with it then whipped him with the telephone cord. The applicant returned to the loungeroom & began assaulting the female victim as she lay unconscious on the floor. The male victim was able to escape & he contacted the police.
Guilty pleas.
The sentence was backdated a little more than 3 months to take into account pre-sentence custody, whereas 6m 26d was actually spent in pre-sentence custody.
Manifest error in dating of sentences.
Appeal allowed to correct error in dating of sentences.
390

PACK, Gregory Phillip - CCA, 14.10.99
Citation: R v Pack [1999] NSWCCA 316
Judgement on appellant's application for costs.
Appellant convicted on a number of charges of sexual assault. He appealed his conviction & on 21.6.99 the CCA began to hear argument. The hearing did not conclude, adjourned part-heard to date to be fixed. The Court as constituted on 21.6.99 was unable to continue with the hearing of the appeal & it became necessary for the appeal hearing to commence afresh before a differently constituted Court. Appellant sought relief for costs fruitlessly incurred for hearing on 21.6.99.
Suitors Fund Act, ss.6A & 6C.
Application not supported under s.6A.
S.6C(1)(c) the concern of the Director General. CCA could make no order under s.6C Suitors Fund Act but 'in our opinion there is merit in the submission that a payment from the Fund would be within the spirit and intent behind s.6A(1)(c) ..'.
391

DUFFY, Julie Ann - CCA, 13.10.99
Citation: R v Duffy [1999] NSWCCA 321
Crown appeal.
Robbery in company.
MT 12m, AT 12m.
Respondent served the full 12m MT & was released to parole on 21.7.99 & has remained at liberty on that parole without committing further offences.
Respondent & a female co-offender attacked a young woman who was standing on a kerb minding her own business & robbed her of some property. The co-offender was armed with a knife & inflicted some cuts upon the victim. Although not particularly serious wounds, the attack caused great distress, anxiety & fear to the victim.
The co-offender received MT 2*y, AT 3y.
Serious criminal offence - whether sentence excessively lenient.
Sully J said that to recommit the respondent to prison '... a very harsh thing to do, and the Court would always need a very compelling case to be made out before doing such a thing'.
Some criticism of the sentencing judge's approach to sentencing.
Appeal dismissed.
392

SMP - CCA, 15.10.99
Citation: R v SMP [1999] NSWCCA 318
Sentence appeal.
Manslaughter.
MT 4y, AT 3y. Direction that sentence be served in a detention centre until the applicant turned 21.
Originally charged with murder but on 2nd day of trial pleaded guilty to manslaughter. Related offence of obtain money by deception taken into account.
Applicant went to house of friend to buy marijuana. The deceased, who was unknown to the applicant, was also at the house. Some unpleasantness occurred between the applicant & his friend on the one hand & the deceased on the other. Deceased then left. When the applicant left, the deceased, who had a knife & had been hiding behind a tree, grabbed him & threw him to the ground. The applicant also had a knife which fell out of his pocket. He picked it up, opened it & as the deceased came towards him he stabbed him in the neck & head, the stab wound to the neck penetrating the deceased's upper spinal cord, causing his death.
Aged 17 at time of offences - low level of culpability.
Whether sentence manifestly excessive - fresh evidence.
Appeal allowed: resentenced to MT 2y 9m, AT 2y 9m.
393

MORRIS, Jason Bradley - CCA, 21.10.99
Citation: R v Morris [1999] NSWCCA 326
Conviction appeal.
Robbery in company.
MT 3*y, AT 3y.
Three males entered the Commonwealth Bank in Newtown; one, alleged to be the appellant, jumped over the counter carrying a screwdriver & opened a staff door enabling the other 2 to enter the non-public area of the bank. Cash totalling just over $4,000 was taken & the 3 then fled to a nearby carpark, climbed into a car & drove off. The bank security cameras had been activated & the developed photographs were shown to police officers, several of whom gave evidence that they recognised the appellant as one of the people in the photographs. A youth worker at a residence where the appellant had stayed also identified the appellant from these photographs.
Content of counsel's address - legitimate criticism of practised witnesses - directions to jury concerning interview with police - directions to jury on failure of accused to give evidence - admissibility of police evidence identifying appellant from bank security photographs - whether conviction unreasonable.
Appeal dismissed.
394

DO, Minh Than - CCA, 19.10.99
Citation: R v Do [1999] NSWCCA 328
s.5F appeal by Crown against refusal of application to vacate trial date.
Respondent indicted for murder after allegedly stabbing a fellow prison inmate. Late evidence that there was a co-offender involved in the fatal stabbing. Co-offender at present in custody in NZ & the subject of an application for extradited. Crown's intention to present an ex officio indictment so as to enable an expeditious joint trial of the respondent and the co-offender.
Appeal allowed: trial date vacated - proceedings to be listed for callover on 5.11.99 - if by that time co-offender extradited, proceedings involving him to be listed at callover on 5.11.99 - at that callover dates for any desired 'Basha'type hearing to be fixed for earliest practicable date in the year 2000.
395

FINNIE, Sydney Thomas - CCA, 19.10.99
Citation: R v Finnie [1999] NSWCCA 329
Conviction appeal.
Obtain cheque by deception; make false statement.
9m PD.
Appellant made an application to a finance company to purchase a motor vehicle. This was supported by a statutory declaration containing false statements. The signature on the declaration was purported to be that of the appellant. Issue at trial was whether the signature was the authentic signature of the appellant or whether it was a forgery placed there by another man.
Handwriting identification - expert witness.
Appeal dismissed.
396

LONIE, John Russell - CCA, 15.10.99
GROOM, Carla Phyllis
Citation: R v Lonie & Groom [1999] NSWCCA 319
Lonie: Conviction and sentence appeal.
Cultivate cannabis leaf; supply cannabis leaf; setting a device capable of inflicting GBH on any person with intent to inflict GBH.
MT 4y 3m, AT 17.
Groom: Conviction appeal.
Knowingly take part in supply of cannabis leaf.
3y GBB (prior good character, poor health, comparatively minor criminality).
Police raid on property in rugged bushland in the hills west of Gosford. 225 mature plants found with street value of $450,000. 1.75 kgs cannabis leaf with estimated street value of $35,000 allegedly found in the home of the appellants. Traps had been set on the property.
Warning as to reliability of evidence - references to Police Royal Commission - corrupt police officer implicating other police in corruption - meaning of 'suffers or permits'- erroneous directions - insufficient evidence to show appellant Lonie had set traps himself.
Groom: Appeal allowed: conviction quashed, verdict of acquittal entered.
Lonie: Appeal allowed, convictions quashed on all counts, verdict of acquittal entered on set device capable of inflicting GBH; new trial ordered on counts of cultivation & supply.
397

ARIKAN, Mehmet Reha - CCA, 20.10.99
Citation: R v Arikan [1999] NSWCCA 331 revised
Crown appeal.
Knowingly take part in manufacture of commercial quantity methylamphetamine.
18m PD.
Police suspected a person of being involved in the widespread distribution of drugs, resulting in a rural property being searched by them. On that property they found some equipment used in the manufacture of methylamphetamine. The respondent was a friend of the principal's associate & had assisted in the selection of the property, helped to transport equipment & a caravan to that property, as well as assisting in the 'cook'. The amount of product seized was 6.4 kgs.
Aged 41 - role 'minimal'or 'minor'- depression - father assassinated by terrorists - no priors.
Whether sentence inadequate.
Appeal dismissed.
398

CAMPBELL, David Alexander - CCA, 20.10.99
Citation: R v Campbell [1999] NSWCCA 332
Sentence appeal.
Manufacture commercial quantity methylamphetamine.
MT 18m, AT 6m.
Appellant had been recruited by a drug manufacturer to obtain a significant quantity of a non-prescription drug (Sudafed), purchasing 13,740 tablets. This was to be distilled in the production of methylamphetamine. He further assisted in this enterprise by removing drugs from packets. He also knew of the ultimate manufacture & distribution of drugs.
Aged 39 - involvement at lower end of scale - early guilty plea - rehabilitation.
Priors for stealing in company, AOABH - previous imprisonment - previous periodic detention - previous recognizance.
Leave to appeal refused.
399

ACOSTA, Octavio - CCA, 22.10.99
Citation: R v Acosta [1999] NSWCCA 334
Sentence appeal; extension of time.
Import trafficable quantity cocaine (1.879 kgs).
MT 6y, AT 2y.
Sentence backdated to take into account pre-sentence custody.
Appellant arrived at Sydney Airport, having travelled from Argentina. He was found to have 4 bottles of liquor in his luggage, one of which was found to contain cocaine. He claimed that he was undergoing financial difficulties & had been approached by someone who provided him with an airline ticket and some money in order for him to take the bottles of liquor to Australia.
Aged 55 - Colombian national.
Submitted on appeal that sentencing judge failed to appreciate differences between sentencing regime in respect of Commonwealth legislation as against State legislation - NPP inappropriate (75% of head sentence).
Appeal allowed: resentenced to MT 5y, AT 3y.
400

VERGARA, Danilo - CCA, 29.10.99
Citation: R v Vergara [1999] NSWCCA 352
Application for leave to appeal against refusal to permit withdrawal of guilty plea.
On 7.3.97, applicant pleaded guilty to having solicited the murder of his de facto. On 25.6.98, he applied to withdraw that plea. That application was dismissed & he was subsequently sentenced to MT 3*y, AT 4*y.
Integrity of plea not bona fide in question - no real prospect of defence - exercise of discretion.
Appeal dismissed.
401

ROSE, Lindsay Robert - CCA, 11.10.99
Citation: R v Rose [1999] NSWCCA 327
Sentence appeal.
5 x murder.
5 life sentences.
Worst case category.
Limits of sentencing discretion when sentencing for 'worst'case category - impact of s13(3) Sentencing Act 1989 (no minimum term) upon a sentence passed pursuant to s19A (2) Crimes Act (life means life sentence) - appropriate weight to the subjective material favourable to applicant in determining whether it was such as to exclude the need for a life sentence pursuant to s19A (2).
Co-operation with authorities - discount - not available as sentence would become unduly disproportionate.
Appeal dismissed.
402

SMITH, Mundarra - CCA, 21.10.99 - 47 NSWLR 419
Citation: R v Smith [1999] NSWCCA 317
Conviction appeal.
Robbery in company.
MT 3y 10m.
Bank robbery in which $16,600 was taken from the National Australia Bank in Caringbah. During the trial, evidence was admitted from several police officers who had identified the appellant from photographs developed from the bank's security camera film.
On appeal, appellant claimed that identification evidence from police officers should have been excluded because it was opinion evidence of a kind which a jury should not have taken into consideration & that the conviction was unreasonable & could not be supported having regard to the evidence.
Appeal dismissed.
Note: High Courtappeal allowed: new trial ordered.
403

WEST, Lee - CCA, 21.10.99
Citation: R v West [1999] NSWCCA 325
Conviction appeal.
Robbery with corporal violence; knowingly being carried in stolen MV.
Bank robbery involving appellant and another man. They entered the bank, the appellant remained in the customer area while the co-accused jumped over the counter, struck one of the tellers & seized a sum of money. They then left the bank & drove away in the vehicle the subject of the second count.
Identification of accused by police from bank security photos - whether admissible - whether opinion evidence - whether unfair or prejudicial.
Appeal dismissed.
404

WHITE, Maxwell John - CCA, 29.10.99
Citation: R v White [1999] NSWCCA 336
Conviction and sentence appeal.
Appellant charged with 8 offences, involving unlawful administration of stupefying drug with intent to have sexual intercourse; act of indecency; assault with act of indecency; sexual intercourse without consent. At the time of sentencing, the appellant was 64 years of age.
There were 3 complainants, 2 of whom were under 16, and one just 16 years.
Aggregate MT 10y, AT 2y.
Coincidence rule - permissible use of evidence where s.97 considerations do not arise at trial - additional term of less than s.5(2) statutory ratio - sentencing discretion.
Appeals dismissed.
405

CHUNG, Wing Piew - CCA, 22.10.99
Citation: R v Chung [1999] NSWCCA 330
Sentence appeal.
Supply large commercial quantity heroin.
Life imprisonment.
Heroin was received from overseas then stored & sold in Sydney. Distribution was on a large scale with a well organised network, the enterprise associated with an international criminal organisation known as Ah Kong with headquarters in Thailand. The applicant threatened violence to ensure co-operation of others & to protect his own interests in the sale of the drugs. Total amount of high grade heroin was equal to 63 kgs with a street value of approx $150 million. Role was very much at the upper end of the scale. Occupied position of seniority in hierarchy.
Aged 39 at time of offence - born in Singapore - disturbed upbringing - victim of physical & mental abuse at the hands of alcoholic uncle - incomplete high school education - not a drug user - no priors.
Appeal dismissed.
406

STRANGLEMAN, Leo - CCA, 25.10.99
Sentence appeal.
Armed robbery.
MT 2*y, AT 10m.
Robbery of an Ampol service station at night. Applicant and co-offender had kept watch from an adjacent property for about an hour until there were no cars or people around the service station. They then went into the service station, the co-offender in front & holding a knife. The applicant had a knife in his pocket but did not produce it. The co-offender pointed his knife at the console operator & took money from the till. The applicant took 8 packs of cigarettes. They then made their escape. The applicant received just under $200 as his share of the proceeds. In all, $400 in cash & 8 packs of cigarettes were taken.
Valuable assistance - no value placed on assistance by judge - special circumstances.
Appeal allowed: resentenced to MT 18m, AT 13m.
407

MOUSSAD, Amani - CCA, 27.10.99
Citation: R v Moussad [1999] NSWCCA 337
Conviction appeal.
Defraud Commonwealth.
The charge encompassed multiple acts of fraudulently claiming moneys which were received pursuant to claims she submitted to the Department of Health and Family Services by way of the Child Care Fee Relief Scheme. These claims overstated the amount to which she, as the owner & operator of a child care centre for pre-school children, was entitled.
Allegation of single criminal enterprise covering a number of offences permissible - directions as to what constitutes an enterprise - duplicity - directions - tendency & coincidence evidence.
Appeal dismissed.
408

INGE v THE QUEEN - HC, 7.10.99 - 199 CLR 295; 73 ALJR 1563
Appellant convicted of murder in SC of SA. Mandatory life sentence. The length of time for which such a sentence will run depends upon the time for which the offender will live. However, a sentencing judge has a discretion in relation to the matter of parole. The SA CCA confirmed the sentence imposed & observed that the appellant was 23 years of age when he committed the offence & that 'his relative youth counts against him in determining the appropriate non-parole period'.
On appeal to the HC, counsel for the appellant submitted that the SA CCA erred in its approach to setting non-parole periods.
Appeal allowed: orders of the SA CCA set aside & the matter remitted to that Court to be dealt with conformably with the reasons for judgement.
409

CAMPOS, Maria Asuncion Chamorro - CCA, 22.10.99
Citation: R v Campos [1999] NSWCCA 339
Sentence appeal.
Count 1: possess trafficable quantity heroin (139.9 grams pure heroin) reasonably having been imported into Australia - 6y 8m with NPP of 4y 8m;
Count 2: possess moneys reasonably suspected of being the proceeds of crime - concurrent FT 15m.
A further count of possess moneys taken into account.
Applicant was arrested at her place of work. She had $6,000 in her handbag. Later the same day, police found 168.6 grams of a substance, containing 139.9 grams pure heroin, in a plastic bag in the wardrobe of her bedroom. They also found a set of scales & a number of small clipseal plastic bags. A factor taken into account was that she had participated in remitting overseas moneys totalling $347,316.57 through 31 separate transactions. The role played by her consisted of taking cash to various banks & arranging for telegraphic transfers.
Relationship of NPP to head sentence.
Appeal allowed on count 1: resentenced to 5y with NPP of 3y.
410

GUST, Colin Alfred - CCA, 22.10.99
Citation: R v Gust [1999] NSWCCA 265
Conviction appeal.
Sexual intercourse without consent.
MT 3y, AT 3y.
Appellant was accused by his cousin of ripping off her clothes, hitting her on the side of her face when she resisted him & then having sexual intercourse with her without her consent. It was some 3 or 4 hours after the appellant had left that she phoned her sister & complained that the appellant had raped her.
Appellant aged in his mid-forties, the complainant in her early thirties.
Whether verdict unreasonable - directions on recklessness as to consent & complaint - whether warning about complainant's evidence required - failure to call character evidence - 'unreasonable'verdict.
Appeal dismissed.
411

SALEAM, James - CCA, 12.10.99
Citation: R v Saleam [1999] NSWCCA 342
Application for extension of time within which to appeal.
Malicious damage.
MT 6m, AT 18m. Pre-sentence custody taken into account.
Judge alone trial.
Applicant made an arrangement with a man for the sum of $400 for the latter to create a 'little fire'to cause some damage to another person's car.
Guilty plea - on bail at time of above offence - sentence already expired prior to institution of appeal -- prior convictions for malicious injury to property, possess firearm, stealing, defacing walls, possess prohibited article, receiving, obtain money by false statement.
Applicant claimed a police detective got applicant's wife to put applicant 'up to it'- claim of entrapment.
Extension of time refused; appeal dismissed as incompetent.
412

GOODIER, Neil Patrick - CCA, 27.10.99
Citation: R v Goodier [1999] NSWCCA 347
Sentence appeal.
Aggravated indecent assault - MT 18m, AT 18m;
attempt aggravated indecent assault - concurrent FT 9m.
Applicant lived a short distance from victims who were young siblings. The little boy (aged 6) went with the applicant to a shed in the applicant's backyard where the applicant tried to pull the boy's pants down. He stopped when the boy resisted then gave him a pornographic picture. The next day the boy & his sister went out to play in the street. Both went to the applicant's house. They were led to a bedroom, shown sexually explicit magazines & the applicant pulled the little girl's clothing aside & kissed her around the genital area. The boy was in the room at the time. The little girl complained to their mother.
Aged 27 - guilty plea - unhappy childhood - alcoholic & abusive father - special circumstances - father of small child.
Priors: indecent assault, BE&S, B&E with intent, peeping & prying - previously imprisoned.
Whether sentence excessive.
Appeal dismissed.
413

BAZZI, Izac - CCA, 27.10.99
Citation: R v Bazzi [1999] NSWCCA 346
Sentence appeal.
(A) Assault - MT 1y 10m, AT 2y
(B) Use offensive instrument (blood-filled syringe) - MT 1y 10m, AT 2y concurrent with (A);
Pre-sentence custody taken into account.
Appellant stole video cassettes from a Woolworths store & ran away. He was tackled by the manager & another employee, hitting his head on the ground & suffering cuts & abrasions. He was taken to the manager's office where he produced the cassettes from his jeans. He requested to go to the toilet & was escorted there by 3 male staff. Upon returning from the bathroom, he produced a syringe filled with red liquid & threatened the staff with it, then escaped & jumped into a nearby stationary vehicle. A woman sitting in the driver's seat saw the syringe, became frightened & jumped out of the vehicle.
Aged 29 - guilty plea - on recognizance at the time - drug problem.
Priors: dishonesty, failure to appear, drug offences, assault w/i to rob, contravene AVO - previously imprisoned.
Whether sentences excessive.
Appeal dismissed on use offensive instrument charge.
Appeal allowed on assault charge: resentenced to FT 15m.
Aggregate: MT 1y 10m, AT 2y.
414

DOUGLAS, Dean - CCA, 25.10.99
Citation: R v Douglas [1999] NSWCCA 345
Sentence appeal.
BE&S.
MT 2y, AT 2y.
The applicant & several others broke into a residence & stole numerous items. These were kept at the applicant's house with his consent & later divided up among all the offenders.
Aged 26 - Aboriginal - drug & alcohol problem - lived in a tin hut - father of 5 young children - assisted authorities - special circumstances.
Priors: dishonesty, drugs, AOABH, driving - not previously imprisoned.
Value of assistance to authorities not indicated - irrelevant matters taken into consideration - matters relied upon by judge from his own knowledge not put to applicant.
Appeal allowed: resentenced to MT 15m, AT 9m.
415

PHAM, Danh Thanh - CCA, 29.10.99
R v Pham [1999] NSWCCA 362
Sentence appeal.
Robbery in company with wounding; robbery in company.
MT 4*y, AT 1*y.
Applicant & 3 co-offenders carried out a planned abduction & robbery of a man by forcing his car off the road. They placed a coat over his head & took him to a secluded park where he was threatened with a gun. His wallet & other personal items were stolen. He was viciously bashed with a piece of 4x2 timber, suffering a broken nose, broken bones in his right hand, some teeth knocked out & multiple lacerations to his face. They asked him where he lived & wishing to protect his wife & young children, he gave the address of his in-laws. The group then went to that address, taking the victim, who was still bleeding, with them. They gained entry & forced an elderly couple & a deaf & dumb child out of bed, made them lie down on the floor, then bound them & covered them with a blanket whilst they ransacked the home. A necklace was ripped from the neck of the elderly woman & other items of property were stolen, as well as $2,200 in cash, $US5, & a quantity of Cambodian currency.
Guilty plea - parity issue.
Appeal allowed: resentenced to MT 3y 9m, AT 2y 3m.
416

CHENEY, Roger David - CCA, 7.10.99
Citation: R v Cheney [1999] NSWCCA 312
Conviction and sentence appeal.
Kidnapping; indecent assault on child under 10; aggravated sexual intercourse (child under 16); enter with intent to commit felony (assault); assault; BE&S; use offensive weapon with intent to avoid lawful detention.
Aggregate: MT 22y, AT 8y.
A spate of offences committed at various holiday units in Port Macquarie. Worst category case
Totality - special circumstances.
Conviction appeal dismissed.
Sentence appeal allowed on kidnap count for which appellant originally received FT 20y.
He was resentenced on this count to a FT of 15y. New aggregate: MT 17y, AT 8y.
417

HAMPTON, Julie Ann - CCA, 25.10.99
Citation: R v Hampton [1999] NSWCCA 341
Sentence appeal.
2 x AOABH; + a further similar charge & 1 charge of common assault taken into account.
MT 2y 3m, AT 9m.
Three women met by chance & an argument ensued. A struggle took place between the applicant & one of the women, with the applicant punching her in the face, head & body, resulting in scratching & bruising. The applicant then took the car keys belonging to one of the women & attempted to leave but was followed by both women. She threw the keys onto the road & as one of the women tried to retrieve them, the applicant stabbed her twice in the back.
Aged 32 - heroin user since early teens - appalling criminal history - had been either serving sentences or been on recognizances almost continuously since the age of 12 - tentative attempt at rehabilitation.
Guilty plea - contrition - remorse - whether sentence excessive.
Leave to appeal refused.
418

NGUYEN, Phuoc - CCA, 28.5.99
Citation: R v Phuoc Nguyen [1999] NSWCCA 451
Conviction appeal.
Robbery with wounding; robbery in company (in the alternative); 3 x robbery in company.
Aggregate: MT 4*y, AT 2*y.
Applicant was part of a group of 4 who abducted & robbed a man, viciously bashed him, took his wallet & other personal items, then demanded to know where he lived. He gave the address of his in-laws. The group went to that house, forced the elderly couple & a deaf & dumb child out of bed & onto the floor, bound them, & covered them with a blanket, then ransacked the home. A necklace was ripped from the elderly woman's neck & other items of property were stolen, as well as $2,200 in cash, $US5, & a quantity of Cambodian currency.
Aged 22 - not guilty plea.
Whether appellant was one of suspects involved - evidence of appellant's fingerprints - telephone calls made by phone registered to address of appellant's sister - descriptions of witnesses matching appellant - whether jury should consider circumstantial evidence.
Whether 'unsafe & unsatisfactory'.
Appeal dismissed.
419

PLEVAC, Josef - CCA, 28.10.99
Citation: R v Plevac [1999] NSWCCA 351
Conviction appeal.
Murder.
Following a successful appeal to the CCA in 1995 in which orders were made for a retrial, the appellant was convicted of murdering his wife who died in hospital after being dowsed with petrol & set alight. They had been estranged at the time, with the wife & young child living in an apartment block in Parramatta. In hospital, before she died, the victim said she was unable to identify her attacker but said it was neither her husband nor her boyfriend. Her attacker had been heavily disguised at the time. There was evidence of the appellant being in the vicinity at the time of the attack.
Letter claimed to be written by deceased deliberately withheld on advice of Senior Counsel - content of letter did not indicate miscarriage, in any event.
Circumstance - motive - relationship evidence - new evidence - psychiatric opinion.
Appeal dismissed.
420

SPM - CCA, 20.10.99
Citation: R v SPM [1999] NSWCCA 338
Crown appeal.
4 x aggravated sexual intercourse without consent (circumstances of aggravation being the malicious infliction of ABH).
Count 1: FT 9m; Count 2: FT 12m; Count 3: MT 18m, AT 3y; Count 4: MT 18m, AT 3y.
All sentences concurrent.
Respondent & victim were married. On the night of the offences they went out drinking. When they returned both were well-affected by liquor & an argument arose. Respondent assaulted victim & dragged her to the bedroom. He had sexual intercourse with her without her consent. He then inserted a small metal bottle into the victim's vagina. He also inserted a 'boondi stick'into her vagina & then into her anus. A further argument developed & victim claimed respondent threatened her with a knife. Police were called & the respondent arrested, initially for breach of an AVO which was in force in favour of the victim.
Whether sentences excessively lenient.
Appeal allowed on Counts 3 & 4: resentenced to MT 2y 3m, AT 2y 3m.
421

BROWN, Debbie-Anne - CCA, 25.10.99
Citation: R v Brown [1999] NSWCCA 349
Sentence appeal.
Deemed supply trafficable quantity methylamphetamine (25.11 grams).
MT 6m, AT 12m.
Crown relied upon the deeming provisions & some equipment associated with dealing found at applicant's premises, including small plastic bags, a set of electronic scales, a plastic bag containing 24 grams of the drug found in a shoe, another plastic bag containing .31 grams found under a drawer & two other plastic bags found in another drawer & marked with weights of 26.2 and 11.4 respectively.
Strong subjective features. User/dealer - uses drugs to help overcome her lack of energy due to Hepatitis C - husband suffers a bi-polar disorder, becoming violent at times - hardship caused to daughter.
Applicant requested she be given PD, however, pre-sentence report commented adversely on her attitude to supervision.
Whether sentencing judge made error in not imposing PD.
Appeal dismissed.
422

PPB - CCA, 29.10.99
Citation: R v PPB [1999] NSWCCA 360
Sentence appeal.
7 x armed robbery in company (2 with a knife, 5 with a .22 sawn-off rifle); steal MV.
MT 6y, AT 2y.
Appellant & co-offenders involved in a spree of stealing cars, then robbing post offices & newsagencies over a period of months.
Discount for assistance to authorities - desirability of judge including arithmetic where discount for assistance given - special circumstances.
Appeal allowed: resentenced to MT 5y, AT 2y.
423

ORCHER, Aaron John - CCA, 12.11.99 - 48 NSWLR 273
Citation: R v Orcher [1999] NSWCCA 356
Stated case.
1. Whether judge at first instance correct in concluding police officer was not at relevant time a 'public justice official'for the purposes of s.326(1)(c) Crimes Act 1900.
2. Whether the action of the arresting police officer an act done in or in connection with a judicial proceeding.
Question 1 answered 'No'.
Question 2 answered 'No'.
424

DHINGRA, Sanjeev Kumar - CCA, 22.10.99
Citation: R v Dhingra [1999] NSWCCA 344
Sentence appeal.
Applicant found guilty upon a charge of contravening s.83G(1) Migration Act 1958 (Cth).
Head sentence of 15m, applicant to be released after 12 months upon entering into recognizance for 3m. Also fined $3,000.
Applicant applied for a stay permit on the basis of satisfying a criterion for a permit because of being married to a woman who he had no intention of living with in a genuine & continuing marital relationship.
Already served 3m 29 days in prison as well as 2m 14d in Villawood Detention Centre.
Special circumstances - parity - sentence manifestly excessive.
Appeal allowed: FT 3m 29d
425

McKENNA, David Wayne - CCA, 22.10.99
Citation: R v McKenna [1999] NSWCCA 358
Sentence appeal.
Defraud Commonwealth (Australian Tax Office).
MT 3y, AT 3y.
22 offences of fraud totalling $558,668.96.
Priors, including an offence of obtain benefit by deception & a driving offence.
Whether sentence excessive - pre-sentence custody not taken into account.
Appeal allowed insofar as to adjust starting date to take pre-sentence custody into account.
426

LISOFF, Nick - CCA, 22.11.99
Citation: R v Lisoff [1999] NSWCCA 364
Crown appeal brought pursuant to s.5F Criminal Appeal Act 1912 (NSW).
Trial judge excluded scientific evidence relating to identification of complainant's blood on accused's clothing. Without this evidence, it was not possible for the Crown to make its case.
Appeal allowed; order made excluding the evidence sought to be led at trial by the Crown on the subject of the location and DNA analysis of blood spotting on the respondent's clothing be vacated; & the trial of the respondent proceed in conformity with the foregoing orders.
427

HATFIELD, Irena - CCA, 28.10.99
Citation: R v Hatfield [1999] NSWCCA 340
Leave to appeal against refusal to grant permanent stay pursuant to s.5F Criminal Appeal Act, 1912.
Murder.
Accused phoned police to say she had tried to wake her husband & had then observed he had been shot & she thought he was dead.
Evidence at trial showed that since the offence, the police or other authorities had lost:
The .22 calibre firearm & silencer found in a river some distance from the scene of the crime; clothing worn by the accused at the time; clothing worn by the deceased; a woollen blanket which was partly covering the deceased when he was found; a glass from the room in which the deceased was found and on which were some bloodstains. Also missing were notes of a number of counselling sessions between a witness, who was a friend of the accused, and a counsellor at the Southern Cross University.
Leave to appeal refused.
428

HINGST, Alan Raymond - CCA, 27.10.99
Citation: R v Hingst [1999] NSWCCA 335
Conviction appeal.
3 x carnal knowledge; 1 x anal intercourse; 2 x indecent assault.
Some offences alleged to have occurred when complainant was 7, others when she was 10.
All offences alleged to have been perpetrated by complainant's step-father in the complainant's bedroom at the family home. The only evidence that the offences occurred came from the complainant herself when just short of her 13th birthday. There was conflicting evidence from her younger sister, who shared the bedroom, as to where the complainant's bed was situated in the room. All offences were said to have occurred at night with the sister asleep & unaware of what was happening.
Verdict unreasonable or not supported by evidence - delay between alleged offence and proceedings.
Appeal allowed: verdict of acquittal entered.
429

REID, Wilfred Lawson - CCA, 12.11.99
Citation: R v Reid [1999] NSWCCA 355
Stated case.
Person to be called as a witness - principles applicable in defining such a person.
Whether trial judge erred in concluding that a person was not a witness for the purposes of s.323(a) at any time when the appellant was said to have procured, persuaded, induced or caused him to give false evidence.
Question answered: 'Yes'Proceedings remitted to DC.
430

TRAN, Ngoc Huy - CCA, 26.5.99
Citation: R v Tran [1999] NSWCCA 218
Conviction appeal.
Robbery with GBH; 3 x robbery in company.
Crown case a circumstantial one, depending upon 3 matters: that the appellant was an associate of the co-offenders & was present with them prior to the offences occurring; that he was found to be wearing a watch stolen from the victim; that his fingerprint was found on some Cambodian bank notes which were said to be the proceeds of the robbery.
Directions - summing up - lies disclosing guilty conscience - introduction of further circumstances in respect of which there was no independent proof - serious misdirection.
Appeal allowed: new trial ordered.
431

McCAFFREY, Brian Andrew - CCA, 23.11.99
ROWSELL, David Francis
Citation: R v McCaffrey; R v Rowsell [1999] NSWCCA 363
Sentence appeal.
Wound with intent to murder.
Both applicants sentenced to MT 9y, AT 6y.
Intent of co-offenders formed while under the influence of alcohol, cannabis & LSD. The victim was a 17 years old schoolboy hitchhiking a ride to Taree. The applicants picked him up, took him to Rowsell's house & told him he could live there & sell drugs for them. Later that evening, after applicants had consumed alcohol & drugs the victim informed them he wished to return home. Applicants became aggressive & repeatedly assaulted him. He was tied up, blindfolded & placed in the boot of McCaffrey's vehicle. They drove to a secluded spot & Rowsell stabbed him in the back of the neck with a knife. He was then kicked down an embankment. Applicants believed he was dead & left the scene.
Aggravating features - premeditation - motive - circumstances leading to the wounding.
Whether sentence manifestly excessive - disparity - mitigating & subjective features - treatment of issue of intoxication.
Appeals allowed: McCaffrey: resentenced to MT 7y, AT 6y. Rowsell: resentenced to MT 7y, AT 6y.
432

CHENG, John Wang Kim - CCA, 18.11.99 - 48 NSWLR 616
Citation: R v Cheng [1999] NSWCCA 373
Crown appeal under s.5F against interlocutory judgement or order: 'That there was insufficient evidence to support the count of conspiracy'.
Matter brought before CCA on basis of urgency, jury not discharged, nor had a verdict been delivered & the matter was stood over pending the decision from the CCA.
Conspire to manufacture prohibited drug.
At the conclusion of the evidence for the Crown, accused's counsel submitted there was no case to answer. By judgement, trial judge concluded there was 'no evidence beyond reasonable doubt of shared intention'and 'My conclusion is that no reasonable jury could properly convict on this charge. Accordingly I will direct the jury that there is no case to answer and that the proper verdict is a verdict of not guilty'.
Proceedings dismissed.
433

DUONG, Quoc Dung - CCA, 17.9.99 - 109 A Crim R 60
Citation: R v Duong [1999] NSWCCA 353
Crown appeal.
Bribery.
MT 2y, AT 1y.
A month prior to the above sentence being imposed, applicant had been sentenced for an offence of supply large commercial quantity prohibited drug & received MT 5y, AT 3*y.
The sentence imposed for the bribery charge ordered to be served concurrently with that imposed for the drug charge.
The bribery & drug charges were related in that the respondent's car had been stopped by police after it was reported that it was being driven erratically. Upon searching the vehicle, the drugs were found. The respondent then attempted to bribe the police officers, making an offer to pay them $100,000. The bribery was to be dealt with in the first trial as a Form 1 matter, however, the respondent wished to contest that charge.
Appeal allowed: resentenced to MT 3y, AT 2y.
434

TU, Vi Cuong - CCA, 22.10.99
Citation: R v Tu [1999] NSWCCA 357
Sentence appeal.
Possess heroin.
MT 6y, AT 3y.
A total quantity of 880 grams with a purity level of between 68% and 70% found in a unit occupied by the applicant. The unit was partially furnished, containing a bed with a mattress, a table & a chair. Applicant nothing more than a minder.
Chinese Vietnamese - unfortunate employment history - cannot speak English - poor health - de facto marriage collapsed - user of heroin.
Sentence excessive - no due consideration to appellant's circumstances.
Appeal allowed: resentenced to MT 4y, AT 2y.
435

LUSCOMBE, Darryl Leslie - CCA, 22.11.99 - 48 NSWLR 282
Citation: R v Luscombe [1999] NSWCCA 365
Stated case.
'Does the District Court have jurisdiction to hear and determine an appeal by the Commonwealth Director of Public Prosecutions from an order of a Local Court Magistrate pursuant to s.19B(1)(d) Crimes Act 1914 (Cth) discharging a person without proceeding to conviction in proceedings for a summary offence carried on by the Commonwealth Director of Public Prosecutions?'
Answer: 'Yes'.
436

PERRY, Brian Terrence - CCA, 12.10.99
Citation: R v Perry [1999] NSWCCA 315
Crown appeal.
Indictment containing 8 counts of sexual offences against 4 young boys: indecent assault; assault with act of indecency; incite person under age of 16 to commit act of indecency; + further 8 sexual offences taken into account.
On 19.2.1999 sentenced to: 18m PD.
On 23.2.1999 respondent pleaded guilty to attempt buggery & sentencing judge again imposed a sentence of 18m PD, to be served concurrently with the sentence passed 4 days previously.
All offences committed over a 6y period - well & carefully planned - befriended victims & sought confidence of parents - took children out on group outings. Offences committed when alone with each child.
Appeal allowed: resentenced to MT 1*y, AT 1*y, + concurrent FT 1* on 2nd indictment.
437

HUNT, Geoffrey Herbert - CCA, 22.11.99
Citation: R v Hunt [1999] NSWCCA 375
Stated case by Freeman DCJ. His Honour had an appeal before him from the decision of a magistrate to make an order for costs in favour of the successful defendant..
'a) Is it necessary before the Magistrate makes an order for costs in favour of a successful defendant that not only the s.41A requirements or at least one of them be made out to the satisfaction of the Magistrate, but that such requirement or requirements be one or more of the reasons or substantially connected with the reasons for the discharge of the defendant under s.41 of the Justices Act?
b) In the event I conclude that the Magistrate ordered costs on an incorrect basis, should I consider for myself whether costs should be awarded or simply uphold the appeal?'
Answer:
a) 'No'.
b) 'His Honour Judge Freeman should decide himself whether costs should be awarded'.
438

IRWIN, Robert James - CCA, 12.10.99
Citation: R v Irwin [1999] NSWCCA 361
Crown appeal.
Count 1: Act with intent to pervert the course of justice - MT 12m, AT 4m;
Count 2: Knowingly give false evidence - concurrent FT 12m.
In addition, pursuant to s.24 Confiscation of Proceeds of Crime Act, sentencing judge made an order that respondent pay $8,220 to the state of NSW.
Respondent, at the time of the above offences, was a Det Sgt in the NSW Police Service & was a long-time friend of a person with a criminal record in drug dealing & who was subsequently investigated by police. This person organised for fingerprints to be wiped from a bag of drugs implicating him in dealings, paying other officers to organise the removal of the prints. During hearings of the Police Integrity Commission, the respondent denied in evidence that that person had ever spoken to him about fingerprints on drug exhibits. This was a lie.
Guilty plea - death of wife led to emotional crisis - high level of shame & contrition - corruption of one other police officer & attempted corruption of a second senior police officer - no priors.
Appeal allowed: resentenced to MT 3y, AT 1y on 1st count, & concurrent FT of 2y on 2nd.
439

TOMA, Elia - 22.11.99
Citation: R v Toma [1999] NSWCCA 350 revised - 29/11/99
Conviction appeal.
Murder.
MT 13*y, AT 4*y.
Appellant & victim Assyrians who had lived in Iraq & who then came to Australia. They were related in that they had married into the same family, which consisted of 3 daughters. The 3rd daughter was also married to an Assyrian. All members of the family, except for the appellant, were related not only by marriage but also by blood & to some extent the appellant was treated as an outsider.
An argument broke out between the appellant & one of the brothers-in-law & the appellant armed himself with 2 steak knives, a rock & a table leg, in addition to a knife he already had. A brawl then took place between the 2 men in which the appellant was hit with a steering lock. The appellant then stabbed the victim, one of the stab wounds penetrating the victim's heart. He died a few days later.
Both victim and appellant found to be aggressors.
Causation - whether special direction on causation required - opinion that prisoner remorseful not admissible.
Appeal dismissed.
440

HALMI, Nicolae - CCA, 14.10.99
Citation: R v Halmi [1999] NSWCCA 354
Crown appeal pursuant to s.5F Court of Criminal Appeal Act against an order permanently staying proceedings on an indictment charging the respondent with supply not less than commercial quantity prohibited drug (heroin).
The trial judge ordered the stay on the basis of his acceptance of a submission made on behalf of the respondent that it would be unfair for the Crown, in prosecuting the respondent, to rely upon the concept that the respondent was in joint possession of the drug in question with at least one other co-offender. Because the Crown had conducted a prosecution against that other co-offender on the basis that he was not in joint possession of the subject drug, it would be unfair for the Crown to proceed against the respondent on the basis of joint possession.
Allegations relating to co-accused - miscarriage of discretion.
Appeal allowed: stay set aside; order that trial of respondent to proceed.
441

ADW - CCA, 26.11.99
Sentence appeal.
8 x serious sexual offences by person in authority.
Sentenced in total to: MT 11y, AT 3y.
The offences involved carnal knowledge & sexual intercourse committed against applicant's 2 daughters, step-daughter, step-son & niece. The offences extended over a 7 year period.
Guilty plea - totality.
Appeal allowed: resentenced to a total MT of 9y, AT of 3*y.
442

SERRATORE, John - CCA, 26.11.99 - 48 NSWLR 101
Citation: R v Serratore [1999] NSWCCA 377
Conviction appeal.
Murder.
Appellant convicted of the murder of his ex-girlfriend. The indictment charged that the appellant 'did murder'the deceased, but the Crown put its case on the alternative basis that either the appellant killed the deceased himself or he arranged for someone else to do so.
Circumstantial evidence - whether certain specified intermediate facts essential - trial judge's directions erroneous but favourable to accused - open to jury to convict on evidence, but not in accordance with trial judge's directions - irregularity such as to constitute miscarriage of justice - hearsay evidence - evidence of relationship between accused & deceased.
Appeal allowed: new trial ordered.
443

GIBSON, Scott Anthony - CCA, 26.11.99 - 110 A Crim R 180
R v Gibson [1999] NSWCCA 370
Conviction appeal.
Robbery with violence.
Appellant & two co-accused allegedly robbed a man of a ring, wallet, personal papers & about $50 cash.
One of the jurors was acquainted with some of the witnesses. This was brought to the notice of the trial judge who questioned the juror. The Crown made submissions to discharge the juror & she was subsequently discharged. The trial judge then gave directions to the jury to disregard anything that that juror may have said to them concerning her knowledge of the witnesses, including any comments she may have made concerning their evidence.
Bias of juror - whether appropriate - direction to jury on discharge of a juror - s.165 Evidence Act 1995 - s.38 Evidence Act 1995.
Appeal dismissed.
444

GIAM (No.2), Tony - CCA, 26.11.99 - 109 A Crim R 348
Citation: R v Giam (No.2) [1999] NSWCCA 378
Crown appeal.
6 x make false statement with intent to obtain advantage - 2y 9m;
1 x cheat and defraud as a director - 5y GBB in the sum of $1,000 with further conditions relating to supervision & curbing gambling habits.
Respondent appealed against conviction on the 6 counts of make false statement & the CCA held those counts were bad for duplicity, allowed the appeal and ordered a new trial. There was no appeal in respect of the other count.
The DPP thereupon instituted the present appeal.
Held: Former approach in sentencing for multiple offences whereby such sentences were structured so that the overall effective sentences were appropriate to the total criminality involved with less regard being had to the appropriateness of the individual sentences for the particular offences is like to mask error & lead to anomalies, & should no longer be followed.
Appeal allowed: resentenced to MT 14m, AT 16m.
445

LMS - CCA, 25.11.99 - 110 A Crim R 172
Citation: LMS v Parole Board [1999] NSWCCA 371
Application pursuant to s.23 Sentencing Act 1989.
Sex offender.
Applicant a prisoner who was refused parole by the Parole Board following a review hearing.
The Board had before it an unfavourable psychological report regarding the prisoner's reluctance to involve himself in more intensive group treatment, due to his perceived fears of personal safety.
Orders:
(1) Direct the Parole Board that, insofar as the psychological report suggested that the applicant had been unwilling to undergo counselling, that report was misleading.
(2) Reserve liberty to applicant to apply, in the event no further hearing of the Board is held within a reasonable time.
446

MEOLA, Vito - CCA, 23.11.99
Citation: R v Meola [1999] NSWCCA 388
Conviction appeal.
3 x sexual offences (not specified).
Appellant was acquitted on counts 2 & 3 but convicted on count 1.
The trial judge deferred passing sentence, expressing his concern about the outcome:
'My reaction to the verdicts was that they are inconsistent in that I could see no explicable reason for the difference. I felt that what happened may have been a compromise by the jury. In light of my concern about the verdict of guilty I believe it to be a fit case for appeal and have granted a certificate accordingly'.
Dating of offence charged on count 1 changed during the course of the trial. That date did not allege a precise date but alleged the offence was committed within a stated range of dates, putting the age of the complainant at 7 to 8 years, at the same time putting the appellant's age at either 11, 12, 13 or 14 years.
'Unsafe & unsatisfactory'.
Appeal allowed: conviction quashed, judgement of acquittal entered.
447

WELSH, Brian John - CCA, 3.12.99
Citation: R v Welsh [1999] NSWCCA 386
Conviction and sentence appeals.
Murder.
MT 12y, AT 6y.
No facts detailing actual killing. Appellant did not dispute he had brought about the death of the victim. Appellant's case at trial was that the level of his criminality in respect of the killing should be reduced, by reason of diminished responsibility, from culpability for murder to culpability for manslaughter.
When the Crown Prosecutor at trial came to cross-examine a psychiatric witness, he took the witness to a psychiatric consultation between another psychiatrist & the appellant, almost line by line through the relevant entry in the appellant's prison medical records. Counsel for the appellant at trial objected that the Crown had the benefit of that psychiatrist's evidence without counsel for the appellant having the benefit of calling him as a witness.
Manner & content of cross-examination of witness by Crown prosecutor unfairly prejudicial to appellant - 'unsafe & unsatisfactory':
Appeals dismissed.
448

GRIGGS, Scott Anthony - CCA, 23.11.99 - 109 A Crim R 484
Citation: R v Griggs [1999] NSWCCA 381
Sentence appeal.
Receiving.
MT 1y, AT 1y.
Applicant appeared in person in the CCA.
Applicant stood trial in the DC on 2 charges, one of BE&S, the other receiving. On 9.2.1999 the trial judge directed the jury to acquit on the BE&S & he was convicted on the receiving charge & the applicant was sentenced that day. The total value of the jewellery on the receiving charge was approx $3,000.
On 24.3.1999 applicant was sentenced in the Hornsby LC for breach of a recognizance which was current at the time of committing the offence of receiving. Reasonable to assume that the magistrate had been influenced by the sentence for receiving in imposing a 12m FT for the breach of recognizance. CCA expressed special need for urgent action to be taken in relation to the sentence for breach of recognizance & noted the Crown had taken an initiative for that matter to be dealt with. (See R v Griggs [1999] NSWCCA 398)
Relevance of lesser maximum penalty under alternative summary proceedings - when & how to be taken into account - whether sufficient allowance made for this consideration.
Appeal allowed: resentenced to MT 10m, AT 8m.
449

GRIGGS, Scott Anthony - CCA, 7.12.99
Citation: R v Griggs [1999] NSWCCA 398
Sentence appeal.
Breach of recognizance.
Appellant was sentenced in the Hornsby LC to a FT of 12m.
Background & context provided in judgement of 23.11.1999. (See R v Griggs [1999] NSWCCA 381).
Appeal allowed: resentenced to FT 10m.
450

HORNE, Sharon Michelle - CCA, 6.12.99
Citation: R v Horne [1999] NSWCCA 391
Crown appeal.
Armed robbery.
MT 7m, AT 18m.
Guilty plea.
Respondent & a co-offender robbed a BP service station. The respondent's role in the robbery was that she stood at the door while the co-offender, armed with a large chef's knife which he pointed & waved towards the victim, approached the victim, demanding money & cigarettes. Approx $44 was handed over to the co-offender, together with 4 packets of cigarettes. Some time later, police approached the car the respondent & her co-offender were travelling in & subsequently arrested Marks in relation to another matter. The police, at this stage, were unaware of the robbery at the service station. At the police station the arresting police became aware of the robbery & both the respondent & her co-offender were interviewed regarding it. The respondent participated in an ERISP wherein she made full admissions, telling police it was the co-offender's idea to do the robbery & that she was not keen on it & that was why she had stood just outside the shop door during the robbery.
Whether sentence manifestly inadequate - discretion - guideline judgement - necessity to consider.
Appeal dismissed.
451

TJP - CCA, 1.12.99
Citation: R v TJP [1999] NSWCCA 408 revised - 9.12.99
Sentence appeal.
Manslaughter
MT 2y 11m, AT 3y (pre-sentence custody of 1m taken into account).
Applicant & 2 co-offenders attacked a 67 years old man of slight build who was sitting on a bench near at ATM eating chips. He was brutally punched & kicked. Applicant gave varying accounts of her role in the attack, however, during her second interview with police she admitted kicking the deceased. Later she denied this.
Insufficient weight given to subjective features, including age, limited intellectual capacity, deprived background, affected by alcohol at time of offence, plea of guilty, contrition, prospects of rehabilitation - assistance to authorities - parity - sentence manifestly excessive.
Appeal dismissed.
452

GARLAND, Wayne Lee - CCA, 10.12.99
Sentence appeal.
BE&S; B&E with intent; plus drive stolen MV & drive whilst unlicensed taken into account.
Concurrent sentences of: MT 2y, AT 18m.
Sentences were cumulative upon sentences already being served. In all, applicant to spend 3y 1m MT & 18m AT.
Applicant & co-offender gained entry into premises by cutting alarm wires, then cutting a hole in the roof above the storeroom. They opened a cigarette strongbox & emptied it & used oxyacetylene in a failed effort to open the safe. In all, $400 in cash, tobacco & cigarettes taken. They gained entry to other premises by forcing the front door with a crowbar, then opened cabinet doors & forced open a locked cabinet door, but found nothing of value. A van was noticed near some other premises & its movements aroused the suspicion of a police officer. A police chase ensued, the van eventually entering a dead end street, whereupon the police chased & caught the applicant. The van had been stolen. Applicant untruthful whilst being interviewed.
Remorse - fear of gaol & brutality - major drug problem - substantial criminal history to finance drug habit.
Effect of aggregation of sentences - since being in gaol has contracted Hepatitis C - need for longer additional term to allow for sustained support & supervision.
Appeal allowed: resentenced to concurrent MT 18m, AT 2y.
453

PIMENTAL, Meliton - CCA, 10.12.99 - 110 A Crim R 30
Citation: R v Pimental [1999] NSWCCA 401
Conviction appeal &
Crown appeal.
Knowingly concerned in importation of commercial quantity of prohibited imports (cannabis resin).
MT 3y 9m, AT 2y 3m.
Importation of large commercial quantity of cannabis resin (4-5 tonnes). The planning of the offence originated in Belgium & a vessel was sent from there to approx 300 miles off the coast of Pakistan to pick up the cargo. Following this, directions were received to proceed to the 33rd latitude where another vessel would be waiting onto which the cargo was to be unloaded. The Australian Federal Police & Customs Officers boarded that vessel when it was 0.093 nautical miles off Nelson Head.
Pimentel was responsible for recruiting the crew, was part of the crew himself & helped transfer the bags of cannabis resin from one vessel to the other.
When importation completed - duress - what constitutes duress - evidence illegally obtained - discretion to admit.
Crown appeal - inadequacy - parity.
Both appeals dismissed.
454

SHORT, Jay William - NSW SC, Sully J, 7.5.99
Citation: R v Short [1999] NSWSC 430
Sentence:
Murder; robbery with corporal violence; AOABH.
Attack upon 3 young women in the early hours of the morning. They had spent some time together at a night club, then arranged to go for a swim in a nearby municipal pool. One woman left the night club about 10 minutes before the others. The 2 who left later were attacked on their way to the swimming pool, both managed to escape & eventually a taxi-driver came to their assistance. The 3rd young woman had been killed & buried by the prisoner. He had also disposed of her clothing & the burial implements. A post-mortem examination revealed the woman had died from ligature strangulation. She had also suffered multiple injuries, including perforation of the right ear-drum.
Admissions to police & others - the finding of a public hair of the prisoner on the deceased's skirt - the finding of 2 pieces of a stick, one piece of which was related to the injuries caused to the 2 women, the other related to the perforating injury to the deceased's right ear.
Sentencing principles - indeterminate life sentence for murder - principles applicable.
Sentenced to:
Murder - MT 16y, AT 4y. Robbery with corporal violence - concurrent FT 5y. AOABH - concurrent FT 2y.
455

CRAMP, William Peter - CCA, 30.11.99 - 110 A Crim R 198
Citation: R v Cramp [1999] NSWCCA 324
Conviction and sentence appeals.
Manslaughter.
MT 7y, AT 2y 4m.
Appellant had allowed the deceased, the 16 year old daughter of a neighbour, to drive his car with the appellant in the front passenger's seat & the deceased's 2 brothers in the back seat. This occurred after the appellant had plied the deceased with alcohol. Whilst driving, the appellant encouraged the deceased to drive faster until ultimately the deceased lost control of the vehicle & the vehicle hit a telegraph pole. Both the deceased & the appellant were thrown out of the vehicle. They were not wearing seat belts. The deceased was killed & the appellant received severe head injuries, as a result of which he has no recollection of events. Blood alcohol concentration of deceased was 0.167 grams per 100 ml blood & the appellant's blood alcohol reading was 0.103 grams per 100 ml blood some 5 hours after the collision.
Alternative bases for a finding of guilty - whether jury must be unanimous as to either basis - manslaughter alternatively by gross negligence & unlawful & dangerous act - whether these bases involved materially different issues or consequences - principles to be applied.
Appeals dismissed.
456

WEGENER, Heinz George - CCA, 8.12.99
Citation: R v Wegener [1999] NSWCCA 405
Sentence appeal.
Supply cannabis leaf.
3y PD.
Domestic airport drug detection dogs reacted to the applicant's suit carrier. The applicant admitted the suit carrier contained cannabis. His briefcase also contained cannabis. In all, 17 parcels containing 7.5 kgs of cannabis were found with an approximate street value of $75,000. His role was that of courier.
Aged 47 - guilty plea - wife & 2 children - father recently deceased - daughter injured in traffic accident - wife ill - father-in-law ill - had recently been defrauded of $200,000 - reputable references of good character - business required international travel - no priors.
Appeal allowed: matter remitted for re-sentencing.
457

CHEUNG, Ying-Lun (aka Gary Cheung) - CCA, 17.12.99
Citation: R v Cheung [1999] NSWCCA 421
Sentence appeal.
Knowingly concerned with importation of commercial quantity of heroin.
Life sentence; NPP 21y 11m.
Appellant had originally appealed against conviction (see Cheung, unreported, CCA, 21.11.97). He thought the Notice of Appeal included an appeal against sentence, however, it did not. Present application filed years later, but because of the seriousness of the matter the CCA granted leave to appeal.
At time of offence, appellant was a senior inspector in Hong Kong Customs Service. Offence involved a ship berthed at Glebe Island Container Terminal in Sydney - cargo included freezer and water heater concealing 148 blocks high grade heroin with gross weight of approx 50 kgs containing 38 kgs pure heroin. Appellant claimed he had not reported movement of heroin because he was protecting his informants - intended reporting matter once heroin had been delivered & informants were safe.
Factual basis of verdict - enquiry by judge of jury - discretion - sentence - factors to be taken into account - worst type of case - duty of judge to find the facts after verdict.
Appeal dismissed.
458

MATO, Peter Francis - CCA, 9.12.99 - 109 A Crim R 121
RUSU
, Monica Charis
Citation: R v Mato & Rusu [1999] NSWCCA 395
Rusu:
sentence appeal - larceny from a bank while being employed by that bank - MT 4*y, AT 1*y.
Mato: conviction appeal - aiding abetting & assisting to commit larceny; alternatively accessory after the fact - MT 4*y, AT 1*y.
3 counts on the indictment: 1st against Rusu; 2nd against Mato on which he was convicted, & 3rd against Mato in the alternative.
Rusu, the last employee left in the bank one evening, entered the safe & stole $476,500, left the bank & went to a car parked outside in which Mato was waiting. Mato regularly picked her up from the bank. Mato appealed that there was insufficient evidence that he was present assisting Rusu when she stole the money.
Mato: trial judge left open to jury the possibility of conviction on the basis of an inappropriate inference - held: conviction unreasonable - no substitution of lesser charge possible - conviction appeal allowed: verdict of acquittal entered.
Rusu: whether sentence excessive - held: sentence within range - appeal dismissed.
459

BOSKOVITZ, Katy Rachelle - CCA, 20.12.99
Citation: R v Boskovitz [1999] NSWCCA 437
Conviction and sentence appeal.
3 x knowingly make false statements with intent to obtain financial advantage
MT 3y, AT 2y.
The false statements, which included creating a false impression, were made by appellant to 3 banks to obtain & maintain credit facilities concerning the financial position of the company of which she was a senior executive & director. Overwhelming Crown case.
Admissibility of prejudicial evidence to establish knowledge - adequacy of summing up - relationship of public deterrence & subjective factors - duties of directors & company executives.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to MT 2y 3m, AT 1y 9m.
460

SCOTT, Phillip John - CCA, 16.12.99
Citation: R v Scott [1999] NSWCCA 434
Sentence appeal.
3 x BE&S.
MT 3y 9m, AT 2y.
2 of the offences were committed in breach of bail conditions then current.
Repeat offender with very bad record. Overwhelming evidence against applicant.
Reference to guideline judgement
MT challenged as excessive in failing to give any, or any sufficient, attention to factors of mercy & rehabilitation.
Appeal dismissed.
461

WONG, Nelson Tak Fat - CCA, 16.12.99 - 48 NSWLR 340; 108 A Crim R 531
LEUNG
, Jackie Kai Chu
Citation: R v Wong & Leung [1999] NSWCCA 420
Crown appeal.
Knowingly concerned in importation of heroin.
MT 7y, AT 5y.
Five hollowed out marble pedestals found to contain packages of heroin. Pure amount of heroin was 9.356 kgs. Following police interception, the pedestals were delivered. Conversations incriminating respondents were recorded.
Major participants in distribution chain - engaged in ongoing process of supply - very top of significant commercial quantity - beyond mere couriers.
Guideline judgements - general deterrence - delay.
Appeal allowed: each respondent sentenced to MT 9y, AT 5y.
Note: High Court appeal allowed (by majority) - matter remitted to CCA for re-determination.
462

FREEMAN, Wayne Ernest Joseph - CCA, 6.12.99
Citation: R v Freeman [1999] NSWCCA 394
Sentence appeal.
Armed robbery.
MT 4y, AT 3y.
Applicant & 2 co-offenders entered a service station wearing balaclavas, armed with knives. One offender grabbed the attendant & held a knife to him, while another attempted to open the till. Attempt unsuccessful & victim was pushed toward it & made to open it. Amount taken was $270, a further $778 taken from the gas tin. Attendant made to lie on the floor, offenders then left.
Aboriginal - aged 34 at time of offence - drug addiction - breach of recognizance at time of offence - guilty plea - assistance to authorities - protective custody - special circumstances - substantial criminal history.
Appeal dismissed.
463

BIMAHENDALI, Eli - CCA, 15.12.99 - 109 A Crim R 355
Citation: R v Bimahendali [1999] NSWCCA 409
Sentence appeal.
Knowingly concerned in importation of prohibited import (methylamphetamine).
6y with NPP of 4y.
Amount of drug 80.1 grams pure; street value between $150,000 & $500,000. Offender had arranged for package to be sent via a friend's clothing import company. Drug was concealed in waist band of pair of jeans & in the lining of a jacket.
Significant criminality.
Indonesian national - aged 31 at time of offence - 'prime mover' - had made the initial enquiries about the means of importation. Priors unknown.
Appeal dismissed.
464

EDWARDS, Mandy Lee - CCA, 17.12.99
Citation: R v Edwards [1999] NSWCCA 411
Sentence appeal.
Knowingly take part in cultivation of prohibited plant (cannabis).
MT 9m, AT 9m.
Applicant charged with cultivate prohibited plant but pleaded guilty to knowingly take part.
Applicant lived on farm property with de facto husband. Police went to the farm & found cannabis plants growing in a shed. Applicant was warned, then she handed over a key to the shed which contained a sophisticated hydroponic irrigation system & 185 cannabis plants, each up to 1 metre in height. Applicant admitted the plants were hers, saying she had been growing them for about a year & that it had been her husband's idea. Cannabis leaf found in containers & bags in the house, as well as a set of drying racks. $100,000 in cash found in the ceiling above the pantry. Applicant admitted the money had come from the sale of cannabis. Firearms were found on the premises.
Delay of more than 4 years between arrest & sentence - inadequate weight given to guilty plea - insufficient weight as to hierarchy - whether sentence manifestly excessive.
No question of principle.
Appeal allowed: resentenced to FT 5m, 1w & 2d (expiring on 17.12.99).
465

MENDOZA-TORRICO, Boris - CCA, 10.12.99
Citation: R v Mendoza-Torrico [1999] NSWCCA 413
Sentence appeal.
Sexual intercourse with child under 10; 2 x commit act of indecency with child under 10.
MT 2y, AT 2y.
All offences committed against same female victim who was aged 9 when they occurred. She was a daughter of a sister of the applicant's de facto wife.
Aged 35 at time of sentence - born in Bolivia - wretched childhood, being subjected to physical violence & sexual abuse - father committed suicide in front of appellant when appellant aged 6.
Whether sentence manifestly excessive. No question of principle.
Appeal dismissed.
466

NICHOLAS, Jason Wayne - CCA, 8.12.99
Citation: R v Nicholas [1999] NSWCCA 433
Conviction and sentence appeal.
Robbery in company.
Bank robbery. 4 males entered the NAB at Caringbah, 1 jumped over the counter & struggled with a bank officer before pushing him away & then using a gun he ordered the bank employees to lie on the floor. He opened the staff door, letting in 2 of his co-offenders, the 4th acting as a look-out by standing at the front door. Money was removed from the drawers & the 4 men then departed, using a stolen Commodore station wagon. Still pictures developed from bank security camera used in identification. Although bank employees were not able to identify any of the men, a police officer at the police station was able to identify the appellant.
Whether conviction unreasonable.
Conviction appeal dismissed.
Sentence appeal adjourned to allow counsel for the applicant to obtain a judgement involving a co-accused, which was not available & upon which he wished to rely.
467

KITIONA, Benjamin - CCA, 6.12.99
Citation: R v Kitiona [1999] NSWCCA 393
Sentence appeal.
Robbery in company; + Form 1 matters of steal from the person, negligent drive, receiving.
MT 3*y, AT 1y.
Applicant & co-offender accosted 2 women (aged 52) at night, snatching their bags, 1 woman being pulled to the ground & dragged along screaming. The women then ran to one of their cars & attempted to block the passage of the offenders' car, however, offenders drove past, scraping the side of the women's car. Premeditation & planning.
Aged 20 at time of offence - guilty plea - poorly educated - unemployed - remorseful - breach of recognizance at time of offence priors for AOABH, aggravated robbery. Previous PD.
Appeal dismissed.
468

MANNA, Adriano - CCA, 10.12.99
Citation: R v Manna [1999] NSWCCA 314
Sentence appeal.
Wound with intent to murder.
MT 15y, AT 5y.
Victim had been refilling vending machines & had returned to his truck. Offender, armed with pistol, demanded money from him. Victim offered him the keys to the machines & when he put his hands in his pocket, the offender shot him. Victim fell from the truck to the pavement. Offender then fired 4 more shots into victim.
Aged 23 at time of offence - incomplete schooling - long history of drug abuse - prone to aggressive behaviour - suicide attempt - unemployed - psychiatric history - priors for supply prohibited drug, malicious damage, possess shortened firearm, driving & dishonesty offences - previously imprisoned.
Whether mental disorder related to commission of offence.
Appeal dismissed.
469

RAMIREZ, Aidelyn - CCA, 8.12.99
Citation: R v Ramirez [1999] NSWCCA 406
Sentence appeal.
Use false instrument; make false instrument.
FT 6m.
Applicant had passed valueless cheques to Coles and K-Mart. She gave false information to Grace Bros to obtain credit. The offences spanned over 3 years.
Aged 41 at time of 1st offence - offences committed whilst on remand - gambling problem - priors for obtain benefit by deception, fraudulent misappropriation, make false statement, other dishonesty offences - previously imprisoned.
Appeal dismissed.
470

YATES, Rogan - CCA, 8.12.99
Citation: R v Yates [1999] NSWCCA 403
Sentence appeal.
Knowingly take part in supply of commercial quantity prohibited drug.
MT 2y, AT 8m.
No facts given.
Applicant aged 32 - no subjective factors set out.
Priors: drug offence, AOABH, indecent behaviour, obstruct police. Not previously imprisoned.
Appeal dismissed.
471

CHILD, Justin Matthew
CHILD, Paul Charles
Citation: R v Child [1999] NSWCCA 407
Sentence appeals.
Paul Child: 3 x fraudulent misappropriation - MT 4y, AT 1y 4m on each count; 1 x obtain financial advantage by deception - FT 2y.
Justin Child: 3 x aid & abet fraudulent misappropriation - MT 2*y, AT 10m on each count.
Paul Child, the father of Justin, controlled the activities of 2 companies. Justin Child, who had no real business experience, undertook all the banking for the companies. Monies were paid by a client of one company & instead of being paid into a special account, they were paid into the bank account of the other company. Paul Child also wrongly advised a doctor in relation to rolling over the doctor's superannuation.
Paul: aged 44 at time of 1st offence - superannuation consultant - multiple cavernous haemangioma - no priors.
Justin: aged 21 at time of 1st offence - multiple cavernous haemangioma - frontal lobe damage to brain following operation when aged 15 - no priors.
Whether sentences excessive.
Appeals dismissed.
472

DITFORT, Michael - CCA, 22.12.99
Citation: R v Ditfort [1999] NSWCCA 442
Sentence appeal.
B&E with intent to commit felony in circumstances of aggravation.
MT 2y, AT 18m.
Offence committed in company of 2 co-offenders, one of whom was in possession of a length of timber, the other in possession of a cricket bat, which co-offenders used to smash the glass window of a shopping arcade & to enter a store in the arcade. The co-offenders removed money from the store. The applicant took cigarettes.
Special circumstances found - cultural & Aboriginal background - deprived upbringing - need for rehabilitation.
The MT was to commence on the day of sentence. Main issue on appeal was the correct commencement date of sentence.
Appeal allowed: commencement and expiry dates adjusted.
473

PONFIELD, Robert George - CCA, 16.12.99 - 48 NSWLR 327
SCOTT, Phillip John
RYAN, Shannon
JOHNSON, Jason Lisle
Citation: In the Matter of the Attorney General's Application (No.1) under s.26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435
Property offences - BE&S.
Sentencing guidelines - appropriateness of a guideline judgement - prevalence of the offence - impact on prison population - particular offender profiles - factors to be taken into account in sentencing.
Type of guideline - quantitative guidelines not appropriate - variety of circumstances in which offence committed - majority of cases heard in LC - sentencing considerations outlines - circumstances of aggravation & mitigation.
474

ABDALLAH, Afif & Ors - CCA, 8.12.99
Citation: R v Abdallah [1999] NSWCCA 380
Conviction appeal.
Knowingly concerned in importation of trafficable quantity of cocaine.
The drugs were intercepted at Sydney airport by Customs officers, found hidden in a scuba air tank being carried by a co-offender. The co-offender agreed to assist police in a controlled delivery of a substitute scuba air tank & the tank was delivered to his home. Later that day another co-offender drove to his home then left carrying the substitute tank in a backpack. He then drove to the appellant's home, the appellant took the backpack from the car & entered his place of residence. When police entered his house, the appellant denied any knowledge of the backpack. A search warrant was obtained & police found the scuba tank under a sheet of corrugated iron in the backyard of the house next door to the appellant's house.
Complaint about structure & clarity of summing up - adequacy of warning about evidence of accomplice - no question of principle.
Appeal dismissed.
475

DUONG, Minh - CCA, 8.12.1999
Citation: R v Duong [1999] NSWCCA 448
Crown appeal.
10 x receiving; + a further 25 charges of goods in custody taken into account.
400 hours CSO.
Respondent was a hairdresser who supplemented his income by dealing in stolen goods, purchasing them in large quantities from known shop-lifters & known drug addicts. Police found stolen goods at his shop, at his house & his de facto's house. He had bought these goods for about one-third their value.
Guilty plea.
Whether sentence inadequate.
Appeal allowed: Total aggregate of MT 3y, AT 2y 11m.