Legal Research

Short Notes 2000

 
1

BEARD, Stephen - CCA, 7.12.99
Citation: R v Beard [1999] NSWCCA 392
Sentence appeal.
Corruptly receive benefit as an inducement for providing confidential information.
MT 1y, AT 1y.
The appellant was employed as a subpoena clerk in the records & administration department of a bank. Whilst he was in gaol, bail refused, he was approached by a man who passed on information about him to a person known as 'Bill'Bill told a man named Curut, who phoned the applicant at work, then subsequently met him. He persuaded the applicant to pass on information to him about the bank's male clients. This the applicant agreed to do in return for payment. The information passed on formed part of a fraudulent scheme whereby money was withdrawn from accounts of clients whose details had been passed on, totalling approx $95,000. Curut's role was to pretend he was the client of the bank on each occasion on which money was withdrawn.
Parity - substandard investigation by police - initial statement not signed by applicant - state of health - coercion into commission of offence.
Leave to appeal refused.
3

GUPTA, Yateender Kumar - CCA, 2.12.99
Citation: R v Gupta [1999] NSWCCA 384
Sentence appeal.
7 x knowingly make a report which was false in a material particular (s.15 Financial Transaction Reports Act 1998 (Cth)).
Aggregate head sentence of 2y, no NPP.
Applicant was an accounts manager & later Company Secretary. He received money on behalf of his employer & overstated by $4.7 million the amounts of money received by making false declarations in order to assist company clients evade paying tax.
Aged 32 at time of offence - mature man with family support - performed voluntary humanitarian work while awaiting sentence - no priors.
Remissions - totality.
Appeal dismissed.
4

CAMUS, Yves - CCA, 15.12.99
Citation: R v Camus [1999] NSWCCA 425
Crown appeal.
Possess commercial quantity prohibited imports (ecstasy)
MT 5y, AT 3y.
Respondent was found in a hotel room with 736.5 grams of ecstasy. He was acting as a middleman for a person from Bali. Likely earnings of $40,000 from participation in the venture.
Argentinian - offence motivated by greed - priors unknown.
Appeal allowed: resentenced to MT 6y, AT 4y.
5

KHAMAS, Danny - CCA, 25.11.99 - 108 A Crim R 499
Citation: R v Khamas [1999] NSWCCA 436
Crown appeal.
2 x attempt armed robbery; 1 x assault.
2y PD.
All 3 counts arose out of the once incident when the respondent & a co-offender sought to obtain the takings of a McDonald's restaurant from the female manager & a security guard, using a replica semi-automatic pistol. The security guard was punched & kicked.
Appeal allowed: resentenced to 3y PD.
6

RYAN, Shannon - CCA, 16.12.99
Citation: R v Ryan [1999] NSWCCA 432
Sentence appeal.
8 x BE&S - MT 2y, AT 2y;
3 x receiving - concurrent FT 2y.
Planned & deliberate. Worked from a 'shopping list' & list of target properties. Offences committed with one co-offender over 1 month period. Estimate value of property stolen $30,000, about half recovered.
Appeal based upon parity with a co-offender whose sentence had been reduced by an earlier decision of the CCA.
Held: some adjustment justified by reason of parity.
Appeal allowed on BE&S charges: MT reduced to 1*y, AT 2y; on receiving charges FT 1*y..
7

VAN DEN AKKER, Brigette Anne - CCA, 15.12.99
Citation: R v Van Den Akker [1999] NSWCCA 426
Sentence appeal.
Attempt export prohibited export (ecstasy - 324.8 grams); export further quantity of ecstasy (18.8 grams).
7*y with NPP of 4*y.
The applicant's co-offender had been under police surveillance for some time. They had obtained a telephone intercept & listening device warrant for his hotel room at Sebel Town House. The telephone intercepts revealed him telephoning the applicant & arranging for her to transport drugs from Sydney to Amsterdam via Bali. The applicant was subsequently searched by Australian Customs Service officers at Sydney airport. The search revealed 3 A4 sized packages located on the thigh region of both her legs & 3 smaller packages about her groin area. Total number of tables approx 5,000.
Co-offender received 8y with NPP of 5y, however, the Crown appealed & the sentence was increased to 10y with NPP of 6y.
Submitted on appeal that sentence passed falls within range for offences of importation but not necessarily appropriate for offences of exportation or attempted exportation - parity.
Appeal dismissed.
8

TAMOTSU, Sekine - CCA, 26.11.99 - 109 A Crim R 193
Citation: R v Tamotsu [1999] NSWCCA 400
Conviction and sentence appeal.
Import trafficable quantity heroin - 7y; import trafficable quantity heroin - 11*y with NPP of 7*y.
Appellant arrived in Sydney on a flight from Tokyo. Customs officers detained him & he was found to be wearing a body pack around his waist, the compartments containing 18 separate packages of white powder which, upon analysis, were found to be heroin (1,481.5 grams). He claimed in a ROI that he did not know he was carrying heroin, believing it to be contraceptive pills. He admitted to travelling to Australia in almost identical circumstances in 1996.
Whether insufficient evidence of elements of offence - whether probative value of coincidence evidence outweighs prejudice - whether sentence appropriate - parity with co-offender.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 7y on 1st count; 10y 3m on 2nd count, NPP of 6y 3m.
9

HOUDA, Fady - CCA, 22.11.99
Citation: R v Houda [1999] NSWCCA 372
Conviction appeal.
Sexual assault without consent.
A young woman was at an RSL club with friends & was dancing with a friend when she noticed a man, who she did not know, dancing in a circle around her. He asked her to go outside with him for a talk & she agreed. Outside the club he kissed her & gave her a love bite, then led her past a bowling green to a church verandah. He pushed her onto the ground & took his clothes off, then tried to remove her underpants & she tried to pull them back up. He had sexual intercourse with her. The complainant tried to get away by grabbing onto a fence & pulling away from him. She was dragged along the ground & she told him to stop & tried to yell out for help but the appellant threatened to shoot her. Afterwards he threatened to shoot her if she told anyone. She told her friends & her mother & the police were called. She was taken to hospital & medically examined. The doctor found evidence consistent with the facts she related, including abrasions to her left elbow & buttocks & a bruise consistent with a love bit on the front of her neck. Appellant denied he was the perpetrator.
Use of lies as showing a consciousness of guilt - proper directions.
Appeal dismissed.
10

KEMP, Kevin James - CCA, 6.12.99
Citation: R v Kemp [1999] NSWCCA 404
Sentence appeal.
Supply prohibited drug (heroin) - FT 5y;
supply commercial quantity prohibited drug (methylamphetamine) + 10 further offences, including offences involving drugs, failure to appear & fraudulent impersonation - MT 6y 9m, AT 2y 3m.
Applicant responsible for distribution of large amounts of heroin in Port Macquarie & neighbouring areas. Payments totalling approx $306,000 were received by applicant & were put into one or other of 3 bank accounts which he had opened in false names, using false or forged documents. The supply methylamphetamine charge arose when the applicant was stopped by police & was seen to drop 2 packages containing heroin on the roadway. He was searched & cocaine was found in his pocket & on the floor of the car. The police also found a suitcase containing 262 grams of methylamphetamine & 2 packages containing 28 grams of heroin at residential premises in a bedroom that had been occupied by the applicant.
Aged 46 at time of sentence - Aboriginal descent - disadvantaged childhood - had been in institutions or gaols for a substantial part of his life - substantial criminal record, including armed robberies & supply drugs - motivation greed.
Whether sentence for supply methylamphetamine manifestly excessive - guilty plea - appropriate sentences - assistance to authorities - rehabilitation - special circumstances
Appeal dismissed.
11

SIMPSON, Peter Frederick - CCA, 10.9.99
Citation: R v Simpson [1999] NSWCCA 367
Crown appeal.
Aggravated dangerous drive occasioning death.
MT 3*y, AT 1*y.
Respondent was driving a table-top truck which overtook a coach at a speed only slightly in excess of the speed limit. The truck hit a concrete barrier then crossed to the other side of the road, colliding with an oncoming vehicle, resulting in the death of one person.
Age 43 - guilty plea - extreme contrition - driving for 20 years - no priors.
Appeal dismissed.
12

HASHMI, Naeem Raza - CCA, 13.8.99
Citation: R v Hashmi [1999] NSWCCA 439
Sentence appeal.
Import commercial quantity heroin.
5y with NPP of 3y.
Appellant arrived at Sydney Airport from Pakistan with 2.35 kilograms of heroin (1.881 kgs pure) strapped to his body. He admitted his role in the importation & said he was due to return to Pakistan 2 days later. A controlled delivery was carried out by the authorities & a co-offender, an Australian citizen, was apprehended. The co-offender was on work release whilst under sentence for the importation.
Pakistani national - mature age - legal background - motivated by desire to provide dowry for his daughter - aware of risks involved.
Significant assistance to authorities resulting in 50% discount - alleged threats by co-offender whilst in prison - no priors.
Appeal dismissed.
13

NGUYEN, Paul Phuoc Duoc - CCA, 21.10.99
Citation: R v Nguyen [1999] NSWCCA 333
Conviction and sentence appeal.
Manslaughter - MT 6y, AT 4y;
2 x malicious discharge of firearm with intent to avoid lawful apprehension - concurrent FT 4y;
kidnapping - concurrent FT 4y.
Appellant, armed with a rifle & other items, went to home of ex- de facto intending to confront her in relation to money. He tied up his ex- de facto's mother & gagged her. When the 2nd daughter returned home the appellant also tied her up. She later escaped & alerted police. When police arrived the mother had died as a result of asphyxiation. Police forced entry to the house & an exchange of gunfire resulted, one police officer receiving minor wounds.
Vietnamese - aged 42 at time of offence - refugee prior to coming to Australia - self-employed - special circumstances - no priors.
Appeal dismissed.
14

PONFIELD, Robert George - CCA, 16.12.99
Citation: R v Ponfield [1999] NSWCCA 422
Crown appeal.
3 x BE&S; + an offence of possess implements capable of entering & driving a conveyance & an offence of failing to appear taken into account on Form 1.
18m GBB.
Respondent had a significant criminal record for BE&S & associated crimes. After being arrested & charged when he was found to be in possession of the loot from one of the BE&S offences, he was released on bail, but then failed to appear. A year later he was arrested after another BE&S.
Efforts at rehabilitation.
Whether sentence manifestly inadequate.
Appeal allowed: sentenced to MT 6m, AT 18m.
15

WHITE, Ricky James - CCA, 20.10.99
Citation: R v White [1999] NSWCCA 366
Conviction and sentence appeal.
Aggravated indecent assault; 2 x aggravated sexual intercourse with child by person in authority; + 3 charges of aggravated indecent assault concerning another complainant taken into account.
MT 5y, AT 3y.
Complainant was a friend of the daughter of the appellant's de facto wife. She was aged 11 at the time & was staying at the appellant's home while the appellant's de facto was staying in hospital with a sick child. The appellant's step-daughter was also sexually assaulted. The appellant told the complainant that if she ever told her mother or her mother's boyfriend what had happened, then terrible things would happen to them. The appellant's step-daughter, being a witness to the assaults on the complainant, was subpoenaed, however, her reaction was so extreme when told of this, including threatened suicide, that medical opinion was obtained & she did not give evidence.
Alleged inconsistencies in Crown case - claim of bias - whether sentence excessive - no issue of principle.
Appeal dismissed.
16

BLANCH, Peter - CCA, 23.11.99
Citation: R v Blanch [1999] NSWCCA 389
Sentence appeal.
Extension of time.
Malicious wounding with intent to do GBH - FT 4y;
escape lawful custody - MT 2y, AT 3y cumulative upon the sentence for malicious wounding; steal of MV - concurrent FT 1y.
The applicant & 2 co-offenders were prisoners in the same correctional institution from which they escaped. They then made their way to a motel & while there they broke into the room of another guest at the motel who was assaulted by each of the offenders &stabbed a number of times by one of the applicant's co-offenders. The assaults were carried out over a period of time. This was done to get his PIN number. The victim underwent surgery. Sentencing judge described the assaults as brutish & dreadful in their consequences to the victim.
Parity - whether sentence excessive.
Appeal dismissed.
17

TARANTO, Graham John - CCA, 16.12.99
FREEMAN, Janice Margaret Freeman (aka KELLY)
Citation: R v Taranto & Freeman [1999] NSWCCA 396
Conviction appeals.
Taranto: malicious wounding with intent to do GBH - MT 10y, AT 4y.
Freeman: malicious wounding - MT 2y, AT 1*y.
The Crown witness claimed to have seen Taranto shoot the complainant & it was from his evidence that it was inferred Freeman knew Taranto was armed. Both appellants complained that the trial judge failed adequately to warn the jury that the evidence might be unreliable. The witness had a substantial criminal record, including the use of firearms. He was a registered police informer & he acknowledged having gained a benefit for a charge he faced because of his willingness to give evidence against the appellants.
Whether Crown witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - failure to give 'accomplice direction': s.165(1)(d) Evidence Act - no reasons given for that decision - whether direction to jury required.
Appeals allowed: convictions quashed, new trial ordered.
18

CARTER, Kevin Carter - CCA, 24.11.99
Citation: R v Carter [1999] NSWCCA 376
Sentence appeal.
Robbery in company.
MT 2y, AT 2y.
Victim assaulted & robbed of $150 in cash in the early hours one morning by 3 young men, one of whom was the applicant. Victim subsequently admitted to hospital with numerous facial cuts requiring stiches. Also suffered extensive facial bruising, as well as bruising & soreness to his torso.
Delay - leniency - parity - sentencing of co-offender - material differences.
Appeal dismissed.
19

HUDD, Patrick - CCA, 16.12.99
Citation: R v Hudd [1999] NSWCCA 382
Conviction appeal.
Conspire to pervert the course of justice.
Crown case was that the appellant was stopped by police who carried out a search but found nothing. They took him to his house & they found a considerable quantity of heroin there. The appellant was charged with supply heroin. The appellant then set about recruiting people to give false evidence at his trial. Part of the Crown's evidence were documents, that were written by the appellant but pertaining to be witness statements, tendered before the court.
Fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice.
Appeal dismissed.
20

JOHNSON, Jason Lisle - CCA, 16.12.99
Citation: R v Johnson [1999] NSWCCA 431
Sentence appeal.
7 x BE&S; + 18 similar offences taken into account.
MT 3y, AT 3y.
Ongoing criminality - no actual details given for above charges.
Aged 26y 5m at time of sentence - substantial criminality - extensive criminal record extending back to when he was 16y - prior imprisonment.
Dysfunctional person & familial background - guilty plea - well-entrenched heroin addiction - rehabilitation.
Applicant submitted that sentencing judge wrongly failed to take into account the requirements of the Drug Court Act 1998.
Appeal dismissed.
21

WATSON, Peter Malcolm - CCA, 21.12.99
Citation: R v Watson [1999] NSWCCA 417
Conviction and sentence appeal.
Supply commercial quantity prohibited drug (amphetamines).
MT 6y, AT 2y.
Undercover police operation.
Misdirecting and/or failing to direct jury adequately as to essential ingredients of offence - adequacy of directions on common purpose, joint enterprise, ordinary meaning of 'supply', evidence relied upon by Crown as to supply, facts upon which certain inferences were to be made - visual identification - voice identification - inconsistent verdicts - miscarriage of justice - whether sentence excessive.
Conviction appeal allowed: new trial ordered.
22

MURRAY, James Francis - CCA, 17.12.99 - 108 A Crim R 430
Citation: R v Murray [1999] NSWCCA 402
Conviction appeal.
Robbery in company.
MT 2*y, AT 2*y.
A policeman was involved in an incident with a car & recorded a description of the driver & traced the registration of the car to a de facto couple who told him the car had been stolen. The female initially said she did not know who stole the car but subsequently named a woman & gave detailed description of the appellant & supplied his name. Police compiled a video tape of 15 photographs of males including the appellant & this was viewed by the male & 2 policemen. An identification parade was not conducted because the officer-in-charge of the case considered the evidence of the de facto couple was recognition rather than identification evidence owing to their prior acquaintance with the appellant. The identification of the appellant pre-dated the Evidence Act & therefore its identification provisions did not apply.
Identification evidence - photographs - prospect of corruption of identification by de facto couple - cross examination improper.
Appeal dismissed.
23

MacDONALD, Peter Graeme - CCA, 3.2.2000 - 110 A Crim R 238
Citation: R v MacDonald [2000] NSWCCA 1
Conviction appeal.
4 x supply commercial quantity prohibited drug (methylamphetamine).
Plea of guilty entered.
During sentence proceedings, the court was invited to deal with four outstanding offences with which the appellant had been charged at the time of his arrest for the drug offences. There was discussion as to the appropriate mechanism by which they might be disposed of & ultimately the four matters were dealt with pursuant to the provisions of Pt 10 of the Criminal Procedure Act 1986. Counsel appearing for the appellant contended that the court did not have jurisdiction so to do.
Whether plea of guilty on arraignment constitutes 'conclusion of the trial of an accused person for an indictable offence'.
Appeal allowed: convictions & sentences on each of the four charges quashed. 'In a case where an accused pleads guilty upon arraignment the provisions of Pt 10 (now Pt 2 Div 4) do not apply and the court does not have the jurisdiction to deal with back-up and related offences other than by means of taking such offences into account on a Form 1 pursuant to s.21 (now s.161) of the Act'(per Bell J, p.12, para.26).
24

McDERMOTT, Lance - CCA, 24.11.99
(aka MAXWELL, Lance)
Citation: R v McDermott @ Maxwell [1999] NSWCCA 379
Sentence appeal.
Receiving (motor car parts); + offences taken into account:- supply prohibited drug ($20 bag of cannabis) plus a further 2 bags of the drug.
Applicant pleaded guilty to the charge of receiving, however, he failed to appear for sentence & a bench warrant was issued. The applicant had gone to the United States where he was apprehended for trafficking in cocaine (12 grams) & served a sentence in South Carolina. Following imprisonment, he was held in detention awaiting his deportation to Australia. Whilst in detention, he notified the Australian Federal Police that he would be returning to Australia & that he wished to clear up outstanding matters. On arrival in Australia, he was apprehended by Federal Police.
Totality - failure to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
25

BK - CCA, 8.2.2000 - 110 A Crim R 298
Citation: R v BK [2000] NSWCCA 4
s.5F appeal against interlocutory judgement refusing application for stay of proceedings.
Refusal to grant stay based on Dietrich principle - appellant indigent - appellant had taken all steps in his power to secure legal aid but had been unsuccessful - appellant not the cause of any delay in failure of charges to be heard at trial - trial judge concluded public interest must prevail over difficulties of the appellant.
Appeal dismissed, interlocutory order affirmed.
26

KALACHE, Leslie - CCA, 4.2.2000 - 111 A Crim R 152
Citation: R v Kalache [2000] NSWCCA 2
Crown appeal.
1. Knowingly take part in manufacture large commercial quantity methylamphetamine - FT 6y;
2. Knowingly take part in supply large commercial quantity methylamphetamine - FT 6y;
3. Knowingly take part in supply commercial quantity cocaine - FT 3y;
4. Knowingly take part in supply commercial quantity ecstasy - FT 3y;
5. Knowingly take part in supply cannabis leaf - FT 3y;
6. Knowingly take part in manufacture large commercial quantity methylamphetamine - FT 5y;
7. Act with intent to pervert the course of justice - MT 1*y, AT 2*y.
Sentences on first 6 charges to be served concurrently.
Other matters taken into account.
Respondent the lynch-pin of a well organised, high-volume & high-profit drug trafficking network. 'Appalling background of antecedent drug-related crime'.
Guilty pleas - co-operation with authorities.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced as follows:- Count 1 - FT 18y.
Count 2 - MT 20y, AT 3y.
Count 3 - FT 12y.
Count 4 - FT 12y.
Count 5 - FT 5y.
Count 6 - FT 14y.
Count 7 - FT 2y.
27

KMD - NSW SC, 1.12.99
Citation: R v KMD [1999] NSWSC 1171
Judgement:
2 x robbery with corporal violence.
The prisoner & 6 others went to the home of a Mr Nguyen intending to buy heroin from him. A Mr Do was visiting there at the time. The prisoner & his co-offenders purchased & smoked heroin then one of them suggested they rob Mr Nguyen & Mr Do, to which they all agreed. Mr Do was punched by one of the co-offenders & knocked across the room, then he was punched & kicked & lay unconscious. Mr Nguyen was kicked & punched in the face & in the head, his attackers removed his wallet. He was then kicked in the chest. Some offenders began removing property from the unit & Mr Nguyen managed to get away. During the course of the robbery, another friend (Mr Doan) of Mr Nguyen entered the unit & he was forcibly carried into a bedroom & attacked until he lost consciousness. One of the co-offenders found a large knife, stabbed both Mr Do and Mr Doan. Mr Do died of his wounds & Mr Doan was seriously hurt. He had to have 37 sutures to the head & also underwent surgery to remove a blood clot from his brain.
Prisoner aged 16*y when offences were committed.
Sentence: On the one count of robbery with corporal violence, received MT 1y 9m, AT 3y; On the other offence of robbery with corporal violence released on probation for a period of 18m.
28

TRAN, Son Thai - NSW SC, 1.12.99
Citation: R v Tran [1999] NSWSC 1146 revised - 3/12/99
Sentence:
Manslaughter; malicious wounding.
Prisoner broke into the home of his estranged wife by smashing the window to the bedroom where his wife, mother-in-law & son were sleeping. The mother-in-law attempted to contact police by telephone, the prisoner took hold of the phone & the mother-in-law ran from the room. The prisoner followed her into the hallway of the house & stabbed her repeatedly with a broken pair of scissors. The prisoner's wife attempted to intervene & sustained a stab wound to the back of her left shoulder. The deceased walked back to the bedroom where she collapsed & died. The prisoner then tied up his wife & young son. After a number of hours, the wife said she would tell police there had been a home invasion & intruders had killed her mother & also suggested the prisoner should wipe all surfaces to remove his fingerprints. He did this & then left. The wife & son broke free & sought assistance from neighbours. The wife was admitted to hospital. Initially she gave police an account that 3 men invaded the home, but 2 days later she supplied them with a statement nominating her husband as the killer.
Born in South Vietnam - aged 37 at time of sentence. Aged 14y when government of North Vietnam came to power in South Vietnam. After he left school he was placed in a labour camp & remained there for more than 5 years. Following his marriage, he was re-arrested after an unsuccessful attempt to leave Vietnam & spent a further year in custody. Following his release from prison, he & his wife & child escaped from Vietnam in a refugee boat.
Substantial impairment by abnormality of mind.
Manslaughter: MT 3*y, AT 2*y.
Malicious wounding: FT 12m.
29

PHILLIPS, Tracey Louise - NSW SC, 17.12.99
Citation: R v Phillips [1999] NSWSC 1175
Judgement on admissibility of evidence.
Murder of infant child.
Crown sought to lead evidence surrounding the deaths of 2 of the accused's other children.
Evidence - tendency & coincidence - whether probative value substantially outweighs prejudicial effect.
Voir dire - admission of evidence rejected.
30

MINOGUE, Rodney Joseph - CCA, 27.10.99
Citation: R v Minogue [1999] NSWCCA 427
Sentence appeal.
BE&S; take conveyance without consent of owner; + an offence of possess prohibited drug taken into account.
Aggregate MT 2y, AT 8m.
Applicant broke window of business selling bicycles, placed a bicycle into a nearby MV & was about to load a 2nd bicycle when he was apprehended by police. Combined value of bicycles $16,400. Some marijuana found in his pocket at time of arrest. MV used by applicant reported stolen 9 days earlier.
Aged 32 - institutionalised at early age - long history of drug & alcohol abuse - compulsive nature - need for counselling - extensive criminal history. Priors for drug offences, property offences, violent offences, driving offences. Imprisoned on 4 previous occasions.
Appeal dismissed.
31

MRW - CCA, 10.12.99 - 113 A Crim R 308
Citation: R v MRW [1999] NSWCCA 452
Conviction appeal.
1 x indecent assault of girl under age of 16y.
3y GBB with supervision component.
The appellant had gone to trial on 2 counts of indecent assault upon the same complainant, however, the jury acquitted him of one count.
Admissibility of complaint evidence - admissibility of prior consistent statement - conduct of Crown prosecutor - duty of fairness - improper address - contrary to standards of fairness, Bar Rules and Prosecution Guidelines - consideration of principles referred to in Kneebone [1999] NSWCCA 279 - substantial miscarriage of justice - discretion to order new trial where miscarriage fault of Crown prosecutor.
Appeal allowed: verdict of acquittal entered.
32

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.
33

JACKSON, Wilfred - CCA, 2.12.99
Citation: R v Jackson [1999] NSWCCA 387
Conviction appeal.
1 x unlawfully took girl from custody of her parent.
MT 1y 3m, AT 1y 3m.
The girl was under the age of 16 years at the time.
The appellant had also been charged with having sexual intercourse with the girl & carnally knowing her but was acquitted of those offences.
Nature of offence - effect of girl voluntarily leaving - comparison with other offences - necessity for accused to take some active role in depriving custodial parent of possession - issue for jury - necessity to put defence in summing up - new trial or acquittal - criteria for exercise of discretion - recommendation for reform of relevant offences.
Appeal allowed: verdict of acquittal entered.
34

BLAKEMAN, Kerry Vernon Short - CCA, 9.9.99
Citation: R v Blakeman [1999] NSWCCA 415
Sentence appeal.
Conspiracy to import narcotic goods (ecstasy).
3*y with NPP of 2y 3m.
296 tablets containing 25.4 grams pure drug, well in excess of trafficable quantity.
Applicant had arranged with co-conspirator to have drugs sent from Germany, concealed in 3 packages of cassette tapes & sent to 2 different addresses. The applicant posted the articles himself whilst on holiday.
Aged 37 - served in NZ armed forces - married - father of 6 - safety supervisor - had been traumatised when a victim of armed robbery - injured in MV accident.
Priors for self-administration of prohibited drug; possession of drug administration equipment. No convictions recorded.
Appeal dismissed.
35

SIMON, Edward Roy - CCA, 15.9.99
Citation: R v Simon [1999] NSWCCA 418
Sentence appeal.
Escape lawful custody; steal MV; damage property; larceny; stealing; use offensive weapon to avoid lawful apprehension.
Aggregate MT 6y, AT 2y.
Appellant escaped from industrial Complex at Long Bay while serving sentence for AOGBH. While at liberty he committed a series of offences in Kings Cross area. When police tried to apprehend him for stealing a woman's bag, he drove the vehicle he had stolen the previous evening directly at the police.
Aged 23 - lengthy criminal history - Aboriginal descent - disadvantages childhood. Priors: sexual offences, property offences, violent offences, driving offences. Previous imprisonment.
Appeal allowed: resented to aggregate consisting of MT 2*y, AT 5y.
36

HAWKINS, Alfred - CCA, 20.8.99
Citation: R v Hawkins [1999] NSWCCA 276
Sentence appeal.
BE&S; 3 x larceny.
On BE&S & 2 larceny offences received 12m PD; on 3rd count of larceny received 3y GBB.
Applicant breached requirements of GBB by committing 2 further offences: failure to pay for hotel accommodation & larceny. On a number of occasions he failed to report to the PD centre & his PD order was cancelled & he was sentenced to 44w full-time imprisonment. The sentencing judge declined to fix a MT & AT.
Aged 22 - air-conditioner mechanic - history of gambling - marital breakdown. Priors: BE&S, larceny, MV offences, multiple dishonesty offences, tax evasion, breach PD, breach recognizance, fine default.
Appeal allowed: resentenced to MT 36w, AT 8w.
37

JAWOROWSKI, Zigmunt Bruno - CCA, 29.10.99 - 108 A Crim R 489
Citation: R v Jaworowski [1999] NSWCCA 430
Sentence appeal.
Dangerous drive causing death in circumstances of aggravation.
MT 6y, AT 2y.
Note: This offence was considered to be worse than Jurisic.
Applicant drove vehicle out of his driveway & collided with a motorcycle which came to rest under the vehicle. Applicant attempted to move his vehicle but was stopped by a passing motorist. He became agitated & went into his house to make a phone call & on his return it appeared he had consumed a quantity of alcohol. When police arrived he informed them he had consumed a brandy & dry ginger ale earlier in the day. A breath test returned a reading of .240. A later breath test conducted at the police station returned a reading of .270.
Aged 43 - well educated, intelligent - unemployed - divorced - disqualified driver at time of offence - previous major depressive illness - severe depression at time of present offence - remorse. Prior driving offences.
Appeal allowed: sentence restructured as MT 5y, AT 3y.
38

MUSSETT, Michael - CCA, 15.9.99
Citation: R v Mussett [1999] NSWCCA 419
Sentence appeal.
BE&S; carried in a conveyance without consent.
Aggregate MT 2y, AT 2y.
Applicant was a passenger in a MV stolen the previous day by his co-offender. Police pursued & stopped the vehicle & arrested both men. Co-offender had accelerated & driven the MV in a dangerous way, injuring the police officer standing beside the car. Earlier in the day, the co-offender had broken & entered a residence & stolen property while the applicant waited outside in the stolen MV.
Aged 24 - unemployed - single - trade qualifications - drug dependence - subject to 2 recognizances at time of offence. Prior offences: violence - drugs - sexual - property - fraud/dishonesty - MV/drive. Previously imprisoned on 3 occasions.
Appeal allowed: MT 1*y, AT 2y.
39

FRANCE, Darren John - CCA, 29.10.99
Citation: R v France [1999] NSWCCA 428
Sentence appeal.
Malicious wounding.
MT 2*y, AT 2*y.
Applicant called his girlfriend from public telephone & an argument took place during which he was heard swearing loudly & observed hitting the handset against the side of the booth & kicking at an advertising stand nearby. When asked to lower his voice & modify his language, an altercation ensued resulting in a head injury to the victim which required medical attention.
Aged 19 - single - unemployed - alcohol & drug abuse - criminal activity to support drug habit - on drugs at time of offence - surrendered to police - demonstrated prospects of rehabilitation. Prior offences: drugs - property - violence - driving. Previously imprisoned.
Special circumstances.
Appeal allowed: resentenced to MT 1y 9m, AT 1y 9m.
40

BULLING, Steven Shane - CCA, 29.10.99
Citation: R v Bulling [1999] NSWCCA 429
Sentence appeal.
2 x demand money with intent to steal.
MT 3y, AT 1y.
Applicant entered convenience section of service station, giving console operator the impression he was armed with a weapon & demanded money. He was given $355. Two days later he stole $155 & cigarettes. At time of 2nd offence applicant was affected by alcohol.
Aged 40 - unemployed - in breach of recognizance at time of offences - unstable & dysfunctional childhood - long criminal history - long-standing problem with alcohol. Prior offences: sexual, fraud/dishonesty, property, violence. Previously imprisoned on 6 occasions.
Tasks of sentencer - reliance on counsel.
Special circumstances.
Appeal allowed: sentences restructured as MT 2y, AT 2y.
41

BARRY, Maxwell Raymond - CCA, 17.9.99
s.5F(3) appeal against interlocutory judgement refusing application for permanent stay.
Homosexual intercourse with male above age of 10y & under age of 18y.
Complainant born on 10.9.1968, offences said to have occurred between 16.10.1985 & 9.9.1986 (the day before he reached 18y). Submissions made that evidence of the complainant was not such as to be capable of satisfying a jury beyond reasonable doubt that offences in fact occurred before he reached 18. Another submission was that a jury would not be able to decide as to whether s.79 or s.78K Crimes Act was the appropriate section upon which it was to deliberate.
Leave to appeal refused.
42

MASTRONARDI, Fabian - CCA, 16.2.2000 - 111 A Crim R 306
Citation: R v Mastronardi [2000] NSWCCA 12
Crown appeal.
1 x armed robbery - 3y GBB;
1 x concealing serious offence - 3y GBB.
Offences arose out of 2 incidents in which respondent accompanied 2 co-offenders who demanded money from taxi drivers. During 1st incident, co-offenders produced a knife & a syringe; during 2nd incident a knife was produced.
No prior convictions - guilty plea - some attempts to overcome drug problem.
Failure to consider PD - sentencing judge erroneously applied principles relating to young offenders to 27 year old offender - whether sentences manifestly inadequate.
Appeal allowed: resentenced for armed rob to 3y PD; & for conceal serious offence to 1y PD.
43

NICHOLAS, Jason - CCA, 14.2.2000
Citation: R v Nicholas [2000] NSWCCA 11
Sentence appeal.
Robbery in company; + a Form 1 matter of BE&S..
MT 4y, AT 3y.
Robbery was committed on a bank with 3 other males, one of whom jumped the counter to gain access to the staff area. That co-offender successfully appealed his sentence which was reduced from MT 3y AT 3y to MT 2y 3m AT 2y 9m.
At time of offence, applicant was subject to recognizance whereas the co-offender was not.
Parity with co-offender whose sentence was reduced on appeal.
Appeal allowed: resentenced to MT 3y, AT 2*y.
44

ARMSTRONG, Darren - CCA, 14.2.2000
Citation: R v Armstrong [2000] NSWCCA 16
Sentence appeal.
Armed robbery (syringe).
MT 3y, AT 3y.
Guilty plea.
Robbed service station proprietor whilst armed with a syringe. Unclear whether syringe was filled with blood. Applicant told police he was an intravenous drug user & had been desperate for access to drugs at time of robbery. Robbery committed to get money to buy drugs.
Assistance to authorities.
Appeal dismissed.
45

THOMPSON, Karen Ann - CCA, 14.2.2000
Citation: R v Thompson [2000] NSWCCA 15
Sentence appeal.
Assault & rob with offensive weapon.
MT 1*y, AT 2*y.
Applicant approached taxi driver & threatened him with a small folding knife, demanding money. The driver got out of the cab & the applicant said she was going to bite him & that she had AIDS. Taxi driver struggled with her & sought assistance from a nearby hotel security guard. A struggle ensued & the applicant kicked the victim & managed to free herself, dropping the knife. However, she did not flee the scene & the police came and she was arrested.
Fairly extensive record - personal, social & family life sad & deficient.
Guideline judgement of Henry applies retrospectively to offences committed before its promulgation. Whether plea of guilty adequately considered.
Appeal dismissed.
46

BIGIC, Bogdan - CCA, 11.2.2000
Citation: R v Bigic [2000] NSWCCA 9
Sentence appeal.
Import prohibited imports (methorphan & methylamphetamine).
9y with NPP of 6y.
Applicant's role was to pick up 3 co-offenders from Sydney airport when they arrived from Los Angeles. The 2 female co-offenders were carrying a large quantity of methorphan & methylamphetamine (approx 2,255 grams worth between $474,000 & $1.1 million). They were accompanied by a male who was the principal in the enterprise. When the 3 co-offenders were apprehended at Sydney airport, the 2 women immediately admitted their involvement & co-operated with authorities. Applicant was arrested 3 weeks later as he was attempting to leave for Los Angeles. The female co-offenders were sentenced to 3*y with NPP of 18m.
Application of guideline sentence concerning 'high-range'drugs - parity - 'mid-level'involvement in enterprise.
Appeal dismissed.
47

MARCHANDO, Thomas Dale - CCA, 11.2.2000 - 110 A Crim R 337
Citation: R v Marchando [2000] NSWCCA 8
Appeal against refusal to grant withdrawal of plea of guilty.
Import prohibited drug (methorphan & methylamphetamine).
Sentence not stated in judgement.
Applicant pleaded guilty to being knowingly concerned in importation of prohibited drug. He travelled on the same flight to Australia as 2 women who were carrying a quantity of methorphan & methylamphetamine & had allegedly coached them. When apprehended, the 2 women immediately admitted their involvement & co-operated with authorities.
Applicant initially pleaded not guilty but changed his plea after the trial judge admitted evidence taken by video link from a Los Angeles travel agent who identified applicant as collecting the tickets for himself, the 2 women & another co-accused (see R v Bigic [2000] NSWCCA 9).
Applicant said he did not intend to admit guilt and submitted that the judge erred in refusing to permit change of plea & that he erred in admitting video link evidence.
Appeal dismissed.
48

EVANS, Jason Jeffrey - CCA, 21.2.2000
Citation: R v Evans [2000] NSWCCA 20
Sentence appeal.
Aggravated armed robbery.
MT 6y, AT 3y.
50% discount given for assistance to authorities which led to arrest & prosecution of very serious major offenders. No details of actual offence given in judgement.
Appellant became acquainted with a gang of criminals through his friendship with a young girl, as a result of which he came under the influence of the girl's father who was an active member of a gang involved in serial armed robberies.
When spoken to by police, the appellant made a full confession & gave them all the information at his disposal.
Aged 27 - no priors - significant assistance to authorities - ongoing assistance to authorities - early plea of guilty - circumstances of involvement - truly remorseful - on witness protection requiring re-location upon release.
Whether sentence excessive.
Appeal allowed: resentenced to MT 5y, AT 2*y.
49

HUGHES, Peter Charles - CCA, 15.2.2000
Citation: R v Hughes [2000] NSWCCA 3
Conviction appeal.
6 x buggery.
MT 3y, AT 3y.
The above offences were related as having occurred in 1979, 4 of which were alleged to have occurred in the appellant's grocery shop in Vaucluse. The complainant gave graphic evidence at trial of the circumstances surrounding the crimes & the fact that they were committed whilst he was employed in the appellant's shop
There was some dispute about the time and place the offences were alleged to have taken place.
Time & place of offence - made essential to guilt by conduct of trial - absence of new evidence causing miscarriage.
Appeal allowed: new trial ordered.
50

RYAN, Jodie Ann - CCA, 24.2.2000 - 110 A Crim R 262
Citation: R v Ryan [2000] NSWCCA 5
Sentence appeal.
Maliciously inflict GBH with intent to do GBH.
MT 3y, AT 3y.
Condition of parole be that applicant attend a residential drug rehabilitation place such as Guthrie House.
Applicant, believing victim had stolen drugs & $500 from her, hit victim very heavily on the head with a wheel lock. Victim suffered large, deep laceration & depressed skull fracture which required surgery. Sentencing judge also dealt with an appeal by applicant against a sentence which had been imposed by a magistrate, consisting of MT 10m, AT 3m, involving a violent assault on another female in a dispute over money & drugs. Sentencing judge vacated the orders of the magistrate & sentenced the applicant to FT 10m for that offence.
Long criminal history - mainly property offences & minor drug offences - long-term drug addiction - long-standing depression.
Inadequate weight as to attempts at rehabilitation & psychological factors - taken steps to further her education.
Appeal dismissed.
51

KAMA, Torrence - CCA, 14.2.2000 - 110 A Crim R 47
Citation: R v Kama [2000] NSWCCA 23
Crown appeal.
Maliciously inflict GBH.
MT 9m PD, AT 18m.
Vicious assault by respondent, then aged 17y 8m, & a co-offender, then just under 16y. A 3rd person involved in the attack acted as a lookout. Evidence of an eyewitness accepted by sentencing judge. Respondent & co-offender stomped on the victim's head continuously, and also punched him on the head. Photographs available which confirmed part of the eyewitness' account & showed the foot of the respondent coming into contact with the head of the victim on a number of occasions. Victim suffered severe head injuries & brain injuries consistent with evidence of attack & was diagnosed as having permanent brain injury.
Sentence manifestly inadequate - double jeopardy.
Appeal allowed: resentenced to MT 2y PD, AT 1y PD.
52

S - CCA, 24.2.2000 - 111 A Crim R 225
Citation: R v 'S'[2000] NSWCCA 13
Crown appeal.
Knowingly take part in manufacture of large commercial quantity prohibited drug (amphetamine).
MT 18m, AT 18m.
Respondent involved in the organisation & transport of equipment & chemicals, the commencement of the drug manufacturing process as well as the recruitment of others to assist. The respondent was involved in the storage of chemicals & equipment, the transhipment of some chemicals & regular attendance at the premises to monitor & assist & also manufactured at least one of the items of equipment himself.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to MT 3y, AT 1y.
53

HAMILTON, William Edward - CCA, 16.2.2000
Citation: R v Hamilton [2000] NSWCCA 31
Crown appeal.
4 x armed robbery.
MT 1y, AT 3y.
The robberies were committed over a period of little more than one month.
1st offence occurred when respondent entered a service station armed with a large knife. He took $300 in notes & apologised to the female attendant, saying he was 'desperate'.
2nd offence committed upon same service station, respondent armed with large knife. On his departure, respondent asked male attendant to give cops a 'shitty description of me'.
3rd offence took place when the respondent, armed with large knife, entered another service station & took $60.
4th offence occurred when respondent, armed with small knife, entered yet another service station. He pushed a young boy who was being served out of the way, then pushed the female employee against a brick wall, held the knife at her waist & removed $350 from the till.
Special circumstances - double jeopardy.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to MT 2y, AT 3y.
54

MORGAN, Raymond George - CCA, 25.2.2000
Citation: R v Morgan [2000] NSWCCA 7
Conviction appeal.
Robbery with corporal violence.
Robbery of a St George Bank was carried out by 2 people who were seen by a number of persons who were either bank employees, customers in the bank at the time or persons near the bank either immediately before or immediately after the robbery. An accomplice was seen waiting in the car. Photographs of the 2 offenders were taken by a security camera within the bank. Photographs taken by the security camera were later shown to witnesses & only one eye witness identified the appellant as one of the offenders. An expert in the field of photogrammetry (a science of taking measurements from photographs) gave evidence that if his calculations of the offender's height were correct, the offender was not the appellant.
Conviction unreasonable - Crown failed to inform appellant & his legal advisers that a Crown witness had been charged with attempt pervert course of justice - fresh evidence - wrongful admission into evidence of photographic identification - cross-examination of witness about different conclusions reached by another witness in another case - cross-examination about matters not in evidence.
Appeal allowed: new trial ordered.
55

KOERT, Beatrice - CCA, 18.2.2000
Citation: R v Koert [2000] NSWCCA 21
Sentence appeal.
Import commercial quantity prohibited drug (cocaine - 2,435.4 grams pure - estimated wholesale value $325,000).
MT 3y, AT 2y.
On arrival from Chile & prior to her arrest, appellant was seen walking awkwardly at Sydney Airport. When asked, she denied carrying anything on her legs. A search revealed body packs containing cocaine. Later in the day, she agreed to assist the authorities & booked into a hotel to await a phone call from someone who would collect the cocaine from her. Over a period of 5 days, although she received phone calls, none were to do with the drugs & the operation was terminated by the Federal Police.
Guilty plea - full co-operation with police - information of moderate value - South African citizen - traumatic childhood - traumatic marriage - husband had tried to murder her - she ran away to Brazil to escape his abuse, leaving her 2 children with her husband's parents whom she trusted - was missing children, decided to return to South Africa but had not funds & a friend introduced her to people who could 'help'her obtain funds.
No priors - depression - appellant appeared for herself - said she saw little difference between her sentence & that imposed on directors of drug syndicates.
Appeal dismissed.
56

VAN DEN BROEK, Martin Gerritt - CCA, 10.2.2000
Citation: R v Van Den Broek [2000] NSWCCA 10
Conviction appeal.
Dangerous drive causing death.
MT 3y, AT 3y.
Basis of appeal was admission into evidence by trial judge of evidence from 2 police officers that appellant had admitted to them that he was the driver of the MV. One police officer attending the scene of the accident at a time when the person killed was still trapped in the passenger side of the vehicle said he had spoken to the appellant & the appellant had admitted being the driver. The 2nd police officer attended the scene but only spoke to the appellant some hours later when the appellant was in hospital that night. He also gave evidence that the appellant had admitted being the driver. There was also evidence from others of having seen the appellant in the driver's seat. However, some time before the accident, another driver saw the car stopped on the side of the road & gave evidence that at that stage the appellant was in the passenger seat. Evidence from a doctor, who treated the appellant in hospital, that the appellant had told him he was the driver.
Appeal dismissed.
57

TAUMAIALO, Keli - CCA, 18.2.2000
Citation: R v Taumaialo [2000] NSWCCA 14
Conviction and sentence appeal.
2 x sexual assault without consent in circumstances of aggravation.
At the conclusion of the trial for the above offences, the appellant appeared for sentence after pleas of guilty to AOABH & larceny contained in a separate indictment.
Appellant & complainant had been acquainted for a short time before offences, he then aged 20y & she 14. Complainant went with appellant to his home, intending to go to church with his family & friends. A number of the family proceeded to the church & while waiting at the home for the car to return for them, the appellant took the complainant into his room where forced penile intercourse & an act of fellatio took place.
Evidence - discretionary exclusion - summing up - directions on delay in complaint - mild intellectual disability - whether sentence excessive.
Appeal dismissed.
58

McINTYRE, Stuart James - CCA, 24.2.2000 - 111 A Crim R 211
Citation: R v McIntyre [2000] NSWCCA 6
Conviction appeal.
1 x B&E & maliciously damage property by fire; 1 x steal MV.
Substantive issue at trial was whether Crown could prove that the fire had been started by the appellant & whether Crown could prove that the appellant was not a part-owner of the vehicle & that he had no bona fide claim of right to drive it.
Whether trial miscarried by reason of trial counsel's conduct & incompetence - criticism of appellant by judge - directions upon appellant's case - directions to consider whether payment by appellant of $400 towards purchase of a MV may have been by way of a gift.
Appeal allowed: new trial ordered.
59

LOCKE, Shane Morris - CCA, 21.2.2000
Citation: R v Locke [2000] NSWCCA 19
Sentence appeal.
Aggravated robbery; + offences on a Form 1 taken into account (driving offences & offence of failure to appear).
MT 2y, AT 1*y.
Appellant had missed the last train of the evening & the victim offered him a lift in his car. Appellant, his young nephew (aged 11) & victim were in the car when the victim said that, rather than transporting them that night, he could offer them overnight accommodation whereupon he took them to a house which had no electricity & at the house the victim made remarks which were clearly & understandably taken by the appellant to indicate that the victim was sexually interested in the appellant's young nephew. The appellant became upset & attacked the victim, then robbed him & took his car. Evidence before the court showed the reason for the robbery & taking the car was very much provoked by the appellant's perceived need to take his nephew away from danger. Possibility that appellant's vulnerability to becoming upset was enhanced by his prior ingestion of intoxicating liquor.
Guilty plea - aged 39y - Aboriginal background - desire to address alcohol problem - special circumstances.
Appeal allowed: resentenced to MT 18m, AT 12m.
60

GOONAN, Patrick Michael - CCA, 8.2.2000
Citation: R v Goonan [2000] NSWCCA 25
Conviction and sentence appeal.
Armed robbery - MT 10y, AT 3y 4m.
At a separate trial: escape from lawful custody - FT 1y 9m; possess shortened firearm - MT 3y 9m, AT 2y 9m.
After sentence for the armed robbery, appellant appealed. The appeal was heard on 19.3.93 & dismissed. Recently appellant lodged a petition under s.474 Crimes Act seeking a review of his conviction & on 22.11.99 the AG referred the matter to the CCA to be dealt with as an appeal under the Criminal Appeal Act. Principal foundation for appellant's petition arose from the fact that 2 of the police officers who gave evidence at his trial & during the course of his appeal (one ground was that fresh evidence had become available) have been shown to be guilty of dishonesty. Earlier appeal records show that Crown case at trial relied solely upon admissions alleged to have been made by appellant to police officers & admissions recorded in a signed ROI. Appellant's case was that he had made no admission but had signed the ROI because police told him if he didn't do so they would charge him with a number of other robberies & charge his wife with being an accessory to them.
Present ground of appeal was a claim there had been a miscarriage of justice because one of the robbers who had pleaded guilty was not available to give evidence at the appellant's trial, having been threatened by police that if he did so, they would 'load him'with another armed robbery.
Appellant has already served more than the MT for the armed robbery.
Conviction appeal allowed for the armed robbery offence & a verdict of acquittal entered.
Sentence appeal for other offences allowed insofar as sentences backdated to date they were imposed.
61

HUYNH, Ding Khoung - CCA, 14.2.2000
LAM, Tuan Van
TA, Non Huu
Citation: R v Huynh, R v Lam, R v Ta [2000] NSWCCA 18
Crown appeals.
Affray. Early pleas of guilty.
Lam: 3y GBB; Ta: 2y GBB; Huynh: 2y GBB.
There was a brawl in the vicinity of a roller skating rink between 2 groups of young men, mostly of Vietnamese origin. Eye witnesses estimate up to 30 persons involved. One youth was stabbed to death, a 2nd sustained a broken leg & other injuries, the respondent Huynh sustained a knife wound to his left wrist. All participants in the brawl were of Asian appearance, a number of them were armed with machetes & other weapons, including a tomahawk. Some climbed on vehicles & smashed them with machetes. Described by trial judge as a 'frightening melee'.
Whether sentences manifestly inadequate.
Appeals dismissed.
62

PRESTA, Bruno - CCA, 21.2.2000
Citation: R v Presta [2000] NSWCCA 40
Sentence appeal.
5 x kidnapping; 21 x aggravated sexual assault; + 10 offences taken into account on Form 1.
Aggregated MT of 14y 3m, AT 9m.
Principal charges involved 5 victims, offences on Form 1 involved 2 further victims, one of an AOABH & another of homosexual intercourse without consent on person aged 15y.
Elements of sadism involved.
Insufficient weight given to plea of guilty - failure to comply with s.439(2) Crimes Act - insufficient weight given to fact that appellant will serve his sentence in protective custody - contrition - forfeiture of house - rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
63

RASO, Mario - CCA, 16.2.2000
Citation: R v Raso [2000] NSWCCA 22
Conviction appeal
2 x indecent assault on female under 16; 1 x sexual intercourse without consent on female under 16 & in the alternative 1 x sexual intercourse with female under age of 16.
Appellant found not guilty on first 3 counts but guilty on the 4th charge.
2y PD.
Appellant was married to complainant's sister. Complainant alleged that on one occasion he grabbed her breast, on another he tried to kiss her & was touching her around the breasts & vaginal area. She spoke to one of her teachers about the incidents. Some months later, the complainant said the appellant raped her. The following day she told a friend about it. Another time, the appellant was dragging her towards the bedroom when her sister came in. Her sister took her to the police station & she spoke to a female police officer but couldn't remember making a formal statement. She spoke to two school counsellors & then some months later went to the police.
Inconsistent verdicts - unsatisfactory nature of complainant's evidence - verdict 'unsafe & unsatisfactory'.
Appeal dismissed.
64

PULIDO, Alfonso - CCA, 2.12.99
Citation: R v Pulido [1999] NSWCCA 438
Sentence appeal.
Possess trafficable quantity prohibited import (cocaine).
MT 4*y, AT 2y.
Applicant agreed to receive a parcel sent by post from Columbia. It was intercepted & found to contain 600 grams pure cocaine. He pleaded guilty to an offence contrary to s.233B(1) Customs Act.
Whether head sentence outside range appropriate for offence - whether NPP excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing.
Leave to appeal refused.
65

TRAN, Van Dung - CCA, 23.12.99
Sentence appeal.
Manslaughter.
MT 4*y, AT 1y 5m.
Applicant had pleaded not guilty to murder & following an adjournment in which the prosecution carried out some ballistic tests, he was reindicted. He maintained his plea of not guilty to murder but pleaded guilty to manslaughter.
Applicant killed his brother who was some years younger & in Year 12 at the time. He suspected his young brother of stealing money, gold and jewellery from their mother in order to buy marijuana. He claimed to have wanted to scare his brother, however, he gave 3 versions: 'of not intending to shoot; an intention to shoot; & an intention to shoot but he shot at a time at which he did not have an intention to shoot'He also claimed his brother moved & the bullet hit him in the upper right side of his head.
Priors for driving offences - no previous imprisonment.
Contrition - sentencing discretion.
Appeal dismissed.
66

McNALLY, Garry Michael - CCA, 6.12.99
Citation: R v McNally [1999] NSWCCA 449
Sentence appeal.
1 x affray - MT 2y 3m;
1 x assault - FT 6m (concurrent).
Applicant had been employed on a property & had left personal effects & furniture on the property. He returned, along with friends, to collect his possessions. On being admitted to the property, the owners were harassed and terrorised, one of the friends producing a gun & pointing it at the owners. The applicant engaged in verbal abuse directed towards the owners & also threatened to strike the male owner with a crowbar. The harassment & threatening went on for some hours.
Weight - attributing greater role & criminality to applicant than to co-offender - parity - failure to find special circumstances.
Appeal dismissed.
67

HA, Bao Vinh - CCA, 26.11.99
Citation: R v Ha [1999] NSWCCA 385
Sentence appeal.
Knowingly concerned in importation of trafficable quantity heroin; possess trafficable quantity prohibited imports (heroin).
MT 8y, AT 4y.
Born in Vietnam, came to Australia in 1987 aged 17, now an Australian citizen. Maintained ties with Vietnam & opened a coffee lounge in Ho Chi Minh City, also became involved in another business venture in that city. He travelled frequently between Australia & Vietnam & sent a quantity of heroin from Vietnam to Australia by post. The heroin was in heat-sealed plastic bags contained in envelopes addressed to one or other of 2 post office boxes, one in applicant's name, the other in his fiancee's name. Police intercepted 20 such envelopes between March & June 1997, the gross weight of heroin in them was 449.7 grams, average purity of 70.7%, yielding a total of 317.9 grams pure heroin. When searching applicant's home in Sydney, police found 15 heat-sealed plastic bags containing 123 grams heroin, purity 70.8%, yielding 87.72 grams pure heroin. They also found a glass jar with a further 206.3 grams heroin, purity 67.4%, yielding 138 grams pure heroin. The total gross weight of heroin seized was 779.9 grams, yielding 544.6 grams pure heroin.
Aged 28 - no prior convictions - good education & employment record - continuing support of family & fiancee - remorse.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 10y, with NPP of 6*y.
68

BELL, Trevor Dean - CCA, 27.10.99
Citation: R v Bell [1999] NSWCCA 423
Sentence appeal.
Aggravated BE&S.
MT 4*y, AT 1*y.
Applicant smashed the bedroom window of a house & he and his de facto wife entered & began to collect a large amount of property. In smashing the window, applicant injured his hand & while the two of them were in the house, he shed a good deal of blood & onto the property of the occupants. Police arrived & no property was in fact removed from the house, but a great deal was damaged as a result of the blood shed by the applicant. The female occupant of the premises estimated the damaged property to be valued at about $3,000.
Plea of guilty.
Long criminal history (70 prior offences, 9 of which were BE&S & enter with intent to commit felony) - Aboriginal descent - history & background with many of the characteristics & features described in R v Fernando (1992) 76 A Crim R 58 - from age of 7 lived in institutions or with relatives because of instability arising from parents' alcohol abuse - addicted to heroin.
Parity - insufficient attention paid to circumstances of early life & drug addiction - remark by sentencing judge stereotyping Aboriginal community.
Appeal allowed: MT 2*y, AT 2*y.
69

NGUYEN, Kiet Huu - CCA, 25.2.2000
Citation: R v Nguyen [2000] NSW CCA 44
Sentence appeal.
Demand money with menaces.
MT 3*y, AT 1y 2m.
Organised attempt at extortion from operators of a brothel. A group of men attended to enforce demand, some of them were armed.
Inferences of knowledge available to sentencing judge.
Leave to appeal refused.
70

MURCHIE, Richard - CCA, 27.10.99 - 108 A Crim R 482
Citation: R v Murchie [1999] NSWCCA 424
Sentence appeal.
Robbery in company; assault; malicious damage; + a count of possess prohibited article taken into account.
MT 3y, AT 3y.
Offence of robbery in company committed when, in the company of 3 other young men, applicant entered a bank, jumped the counter & opened staff access door, permitting 2 of his co-offenders to enter the staff area. They removed cash amounting to $16,610. Photographs taken from video surveillance equipment showed customers present in the bank who were subjected to a degree of violence or threats of violence by the offenders. One of the men said he was going to shoot somebody. Police executed a search warrant at applicant's home & after questioning the applicant about a good deal of material they found there, the applicant picked up a sword which was lying on the table & pointed it towards one of the police officers, claiming to be crazy & he threatened to stab the police officer. The 2 officers backed out of the room & shut the door & the applicant stabbed the sword into the back of the door 5 times. A can of pepper spray was found in the applicant's room during the search.
Sentence excessive - parity - failure to take into account pre-sentence custody.
Appeal allowed: resentenced to MT 2y 3m, AT 2y 9m.
71

CLOGHER, Sandra - CCA, 8.12.99
Citation: R v Clogher [1999] NSWCCA 397
Conviction appeal.
3 x recklessly make statements false in material particular with intent to obtain monies for another.
Appellant was the secretary of a company & both she & her husband were directors. The company entered into 2 contracts with the Department of Public Works. Under those contracts the company was entitled to claim progress payments at the end of each month & 14 days after the claim the Department would issue a progress payment certificate & 14 days thereafter was required to pay the specified amount. Under clause 43 of the contracts, the Department required statutory declarations that all workers, sub-contractors & suppliers had been paid all monies for work performed. These statutory declarations were made, however, complaints were received from sub-contractors & suppliers that they had not received payment. When contacted, the appellant indicated the company had been experiencing cash flow problems. The company was placed into provisional liquidation. There was evidence that sub-contractors, suppliers & workmen were owed substantial amounts of money at the time the appellant made each of 3 statutory declarations.
Statements made to ensure compliance by another with contract - not necessary under the contract for payment of monies - nature of materiality - directions to jury.
Appeal dismissed.
72

GRIGGS, Lee Jason - CCA, 29.2.2000 - 111 A Crim R 233
Citation: R v Griggs [2000] NSWCCA 33
Crown appeal.
Robbery in company.
2y GBB.
Respondent & 2 co-offenders equipped themselves with balaclavas, a kitchen knife each, gloves, & masking & wrapping tape & entered a mixed business store just before closing time. They forced 2 male staff members to the floor & used tape to tie their hands behind their backs, then they took more than $600 from 3 tills & 18 packets of cigarettes. Respondent was arrested a week later & co-operated with police, admitting his role in the offence. Co-offenders received 150 hours Community Service.
Aged 19 at time of offence - minor record in Children's Court - truthful witness - marijuana use - voluntarily entered a rehabilitation programme - supportive family.
Appeal allowed: resentenced to 18m PD.
73

S.D. - CCA, 25.2.2000
Citation: R v S.D. [2000] NSWCCA 43
Sentence appeal.
6 x armed robberies; + a further 25 offences taken into account (20 armed robs, 5 assault with intent to rob whilst armed).
MT 7y, AT 3y.
In 4 cases, the offensive weapon used was a knife & in 2 cases a blood-filled syringe. No other details about the armed robberies provided.
Offences committed shortly after release on parole for similar offence.
Long criminal history.
Particular discount available to offender - substantial assistance to authorities - special circumstances found by sentencing judge.
On appeal: sentences imposed did not sufficiently reflect leniency to which applicant was entitled for providing evidence against himself where the Crown case would have otherwise failed & the discount for valuable assistance to the authorities.
Appeal dismissed.
74

ALLBON, Nathan Grant - CCA, 25.2.2000
Citation: R v Allbon [2000] NSWCCA 41
Sentence appeal.
1st indictment: malicious wounding with intent to inflict GBH; 2nd indictment: BE&S + malicious damage by fire taken into account.
MT 4y, AT 4y. Guilty pleas.
Applicant broke into a pie shop & stole $180 & then set fire to paper bags under a counter. He was on bail for this matter when he committed the malicious wounding. He entered the victim's home through a closed but unlocked wire screen door & removed a knife from a drawer. The victim was a severely handicapped person & sight impaired. He was sitting in a darkened room with the TV going & the applicant stabbed him 15 times, causing grievous injury to a number of parts of the man's body. He left the premises, having washed the knife & replaced it in the drawer. He pulled the door shut which activated a deadlock. The applicant's mother, who was visiting somebody in the same block of units, heard sounds of distress & ambulance officers were called & were able to break into the flat & take the victim for treatment.
Applicant born with cerebral palsy - intellectually & physically disabled - long criminal history - some 90 appearances in courts for offences - because of being handicapped, has been treated with a considerable amount of leniency.
Too much weight given to general deterrence - rehabilitation.
Appeal allowed in part to adjust commencement date of sentences.
75

LIPOHAR & WINFIELD v THE QUEEN - HC, 9.12.99 - 200 CLR 48574; 74 ALJR 282
Jurisdiction.
Conspiracy to commit fraud.
The appellants unsuccessfully sought orders under the Supreme Court Criminal Rules 1992 (SA), r.8, to quash & stay proceedings on the informations charging them with conspiracy on the grounds that the informations did not disclose an offence triable in South Australia. The basis of this contention was that the conspiracy was formed wholly outside the territorial boundaries of South Australia and, as such, there was no offence against any law of the State and the Local Court lacked jurisdiction to receive the informations.
Whether triable in State court - where conspiracy formed outside State - connection between State and subject of offence.
Appeal dismissed.
76

PUCKERIDGE - HC, 21.12.99 - 74 ALJR 373
Crown appeal.
Murder.
Respondent was acquitted by the CCA of NSW which held that the verdict of guilty of murder was not supported by the evidence. The Court determined that the Crown had not excluded the possibility that the victim's death was unrelated to the attack perpetrated by the respondent.
Whether evidence capable of satisfying jury beyond reasonable doubt that act of defendant caused death of victim.
Appeal allowed: decision of the CCA reversed.
77

PETERSON, Jason Andrew Peterson - CCA, 25.2.2000
Citation: R v Peterson [2000] NSWCCA 47
Sentence appeal.
Sexual intercourse without consent; malicious wounding; steal from the person.
MT 6y 9m, AT 2y 3m.
Applicant attacked a young woman, had forcible sexual intercourse with her, stripped her & took her clothes. He also took her purse. At one point, he wounded her. Applicant left & his victim was found naked & unconscious in a public place near a railway station.
Both applicant & victim affected by alcohol at the time.
Aged almost 30 at time of appeal - Aboriginal - poor prior record - many offences of violence committed in domestic context.
Significance of violence to individual counts - status of history given to psychiatrist as evidence.
Appeal dismissed.
78

GREY, Anthony Stephen - CCA, 3.3.2000 - 111 A Crim R 314
Citation: R v Grey [2000] NSWCCA 46
Conviction appeal.
5 x steal MV; 4 x dispose of stolen MVs.
MT 3y, AT 2y.
Appellant involved in systematic theft & 're-birthing'of Ford motor vehicles & their subsequent re-sale. All offences alleged to have been committed between April & November 1992. Crown presented its case on circumstantial basis, relying on doctrine of recent possession. Appellant did not dispute possession or disposal of vehicles, but denied stealing them & converting them or knowing they had been stolen. He claimed to have received 4 vehicles from another (who was a Crown witness) & that he had purchased the 5th vehicle & given it to that man to repair.
Witness - disclosure of prior convictions - defence aware that witness was police informer but not that he had received consideration for such in his own sentencing proceedings - whether absence of cross examination led to miscarriage.
Appeal dismissed.
Note: High Court appeal allowed: convictions quashed, a new trial ordered on all counts.
79

CONSTANTINOU, Sam - CCA, 3.3.2000
Citation: R v Constantinou [2000] NSWCCA 42
Appeal against redetermination of life sentence under s.13A Sentencing Act 1989.
3 x murder - sentence at 1st instance: concurrent life sentences;
5 x robbery with striking & wounding - sentence at 1st instance: 10y.
Application was made for redetermination of life sentences & on 4.6.99 James J granted the application & resentenced the appellant on each of the 3 counts of murder to concurrent MT 30y, AT life. At the time of that application, the sentences on the robbery counts had expired.
All crimes involved mugging selected older male victims by attacking them from behind. At trial, Crown relied alternatively upon reckless indifference to human life or upon felony/murder as an ingredient for proof of murder in each case. Trial judge found that appellant should be regarded as having committed felony/murder.
Psychiatric or psychological assessment not provided to primary judge inhibiting findings of future prospects - new evidence tendered on appeal.
Appeal allowed: resentenced to MT 25y, AT 10y.
80

APORO, Mita - CCA, 23.2.2000
Citation: R v Aporo [2000] NSWCCA 48
Sentence appeal.
2 x assault; 1 x assault police officer in the execution of his duty; 1 x threaten witness.
In respect of first 3 counts: FT (actual sentence not mentioned, except that at the time of the hearing of the appeal, it had expired);
4th count: MT 2*y, AT 1*y.
The above offences involved violence in & about a hotel in Manly.
The sentencing judge erroneously made orders concerning parole, overlooking that the power of the court to order parole is limited to sentences of 3 years or less.
Recidivist - priors for assault, AOABH, affray - described in the CCA as 'something of a thug'.
Impositions for related assaults served within encompassing term - pattern of sentence - statistics kept by Judicial Commission relevant.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to MT 1*y, AT 6m.
81

DE GRUCHY, Matthew Wayne - CCA, 2.3.2000 - 110 A Crim R 271
Citation: R v De Gruchy [2000] NSWCCA 51
Conviction appeal & application for leave to appeal against sentence.
3 x murder.
On each count: concurrent MT 21y, AT 7y.
Appellant was convicted of the murder of his mother, his sister & his brother, each killed in the family home.
All suffered multiple head wounds. The mother & sister were found in their beds, the brother in the garage. As well as the wounds to the head, the brother had also suffered wounds to his torso. He smelled strongly of petrol & his arms were blistered. His shirt & short were soaked in petrol.
Directions to jury - whether case for accused put fairly - whether verdict unreasonable having regard to evidence - sufficiency of directions concerning comments by Crown - whether summing up unbalanced.
Conviction appeal dismissed; application for leave to appeal against sentence refused.
82

KHATTER, Naresh - CCA, 29.2.2000
Citation: R v Khatter [2000] NSWCCA 32
Crown appeal.
Dangerous drive causing death.
2y PD.
The deceased, his wife & daughter were visiting the respondent's home. The 2 men began to consume alcohol in the early evening. After a meal, the men left in the respondent's car at about 11.30 pm, the respondent driving & the deceased in the front passenger seat. They were travelling to Bankstown to visit a friend of the deceased & were on a 6-lane, well lit, almost deserted highway. The respondent lost control of the vehicle which failed to take a bend. It struck the median strip, travelled across the wrong side of the road, mounted the far kerb, collided with a fence, rolled several times & collided with a tree & continued a further 51 metres before coming to a halt on its roof in the front yard of a house. The vehicle had travelled 112 metres from the point where it first struck the median strip. The deceased died instantly.
Appeal allowed: resentenced to FT 3m.
83

NGUYEN, Minh Hieu - CCA, 16.2.2000
Spigelman CJ, Hulme J, Smart AJ
Citation: R v Nguyen [2000] NSWCCA 45
Sentence appeal.
Manslaughter.
MT 3y, AT 1y.
Pre-sentence custody taken into account.
Applicant was arrested & charged with murder & he was subsequently convicted. He appealed against his conviction & a new trial was ordered. He was again indicted for murder & pleaded not guilty to murder but guilty to manslaughter. The plea was accepted on the basis of an unlawful & dangerous act, namely striking the deceased with a baseball bat around the neck & head. The Crown case was that the applicant was engaged in a common criminal enterprise to assault & attack the deceased. Many of the facts were in dispute & the judge made detailed findings, all of which were open & justified by the evidence.
Act out of character - solid family ties - reasonable employment record - guilty plea.
Ratio of AT to MT - special circumstances.
Appeal dismissed.
84

ELOMAR, Khaled - CCA, 21.2.2000
Hidden J, Carruthers AJ
Citation: R v Elomar [1999] NSWCCA 459
Sentence appeal.
Supply prohibited drug (cannabis); + offences on a Form 1 - 2 x possess heroin, 1 x goods in custody, 3 x unlawfully possess prescribed restricted substance.
MT 9m, AT 1y 9m.
Police, acting on information received, executed a search warrant at the applicant's premises & located a plastic bag containing a block of cannabis & 26 small resealable plastic bags, each containing cannabis. A further search located items which gave rise to the Form 1 matters.
23 prior offences, including robbery (either alone, in company or armed); dishonesty and/or violence - on parole at time of subject offence.
Matter could have been dealt with in the LC - whether sentence manifestly excessive.
Appeal allowed: MT 9m, AT 1y 3m.
85

MURRAY, Denis Michael - CCA, 8.2.2000
Hulme J, Carruthers AJ
Citation: R v Murray [1999] NSWCCA 457
Sentence appeal.
1 x indecent assault on child under 16 by person in authority; 4 x aggravated indecent assault.
Aggregate: MT 18m, AT 18m.
Applicant in de facto relationship with complainant's mother who had a child from a previous relationship. Complainant was a little over 5y old when the indecent assault was committed. The other offences took place over a period until the child was aged almost 12. When the child was a little over 6y, she told her mother about the incidents that had occurred & the mother separated from the applicant, but she returned to him after 6 months on his promise that the misconduct would cease. However, the conduct continued for a further 5 years.
Aged 58 years - no prior record - shameful of conduct - remorse - prior good character - attempts at rehabilitation.
Applicant appeared for himself n the CCA. His grounds of appeal were as follows:
'My counsel failed to use materials supplied for leniency to its fullest benefit. Failed also to use term of reference provided. My counsel appeared rather antagonistic towards me and failed to represent me as I expected'.
Appeal dismissed.
86

MRISH, Nabil - CCA, 8.2.2000
Spigelman CJ, Hulme J, Carruthers AJ
Citation: R v Mrish [2000] NSWCCA 17
Sentence appeal.
Possess firearm - FT 18m;
2 x pervert course of justice - MT 2y 3m, AT 9m on 1st of these counts & FT 2y on 2nd.
Applicant was arrested with respect to the 2 pervert course of justice charges & during the course of the execution of a search warrant on his home, a firearm & ammunition were discovered. The counts of pervert the course of justice arose from the applicant's conduct with respect to a murder charge against his brother, George Mrish.
Whether sentence excessive - failure to identify special circumstances - failure to take into account time spent in custody.
Appeal dismissed.
87

ZAIA, Karen Marie - CCA, 23.2.2000
Grove, Greg James JJ
Citation: R v Zaia [2000] NSWCCA 52
Sentence appeal.
Armed robbery; + 1 x BE&S on a Form 1 taken into account.
MT 3y, AT 2y.
Appellant, wearing a baseball cap & sunglasses, entered small shop & accosted the operator with a kitchen knife. She took approx $145. When she left, she dropped the knife. The owner of the shop pursued her & she was later handed to police. The Form 1 offence occurred one month before the appellant appeared for sentence.
Aged almost 30 - no priors - drug addiction - rehabilitative steps - severance of relationship with co-offender who introduced appellant to heroin - special circumstances..
Appeal allowed: resentenced to: MT 2y, AT 2y.
88

STANLEY, Peter Kenneth - CCA, 16.2.2000
Sully J, Carruthers AJ
Citation: R v Stanley [1999] NSWCCA 460
Sentence appeal.
Armed robbery (knife).
MT 4y, AT 3y.
On being released from gaol for a prior offence, applicant consumed excessive amounts of alcohol & ingested some drugs. He wanted more drugs & was misinformed that the male occupant of the house next door had drugs on the premises. He went to those premises, armed with a 14cm knife. The occupant was not there, however, a young 18 year old friend of his was & the applicant punched him in the throat & cheek area, asking for drugs. The victim eventually was able to satisfy the applicant that he knew nothing about drugs & gave him $20 from his wallet to get rid of him. The applicant took the money & left the house.
Applicant unrepresented in CCA - aged 32 - Aboriginal - itinerant life - convictions in NSW, NT & other States - prior record commenced when aged 16 - dysfunctional family background - lived on streets in Melbourne - addicted to drugs & heavy consumption of alcohol - sexually abused as a child - on recognizance at time of subject offence.
Reference to Judicial Commission statistics - whether sentence excessive.
Appeal allowed: resentenced to MT 3y, AT 2y.
89

ARMAND-ISKAK, Sheon Alexander - CCA, 10.12.99
Beazley JA, Newman, Greg James JJ
Citation: R v Armand-Iskak [1999] NSWCCA 414
Sentence appeal.
Maliciously inflict ABH with intent to have sexual intercourse; + 2 charges of common assault taken into account on a Form 1.
MT 6y, AT 5y.
Applicant had been drinking & boarded a westbound train at Bondi Junction. His female victim boarded the train at Town Hall station. Having noticed the applicant staring at her, she changed carriages at Redfern. The applicant followed her & after the train left Redfern station he approached her & told her to take her pants off, then he grabbed her by the hair. He told her again, but she refused. The applicant then punched her on the forehead & face. The applicant continued to attack the victim & she continued fighting him off. At one point he had her on the floor but she managed to kick him in the groin & free herself, then the train stopped at Burwood station & she jumped off. The applicant continued to pursue her & some other passengers & station staff gave chase. Two passengers were hurt by the applicant before he was restrained & police arrived & arrested him.
Significant criminal history, including 2 similar offences, one involving armed robbery as well, the other robbery & larceny.
Remark by sentencing judge of dangerous propensity to prey on young women - insufficient weight given to plea of guilty - whether sentence manifestly excessive.
Appeal dismissed.
90

K - CCA, 24.2.2000
Grove, Sully, Simpson JJ
Citation: R v K [2000] NSWCCA 24
Crown appeal.
Manslaughter.
4y GBB with conditions.
Respondent & deceased first met at Central Railway Station. By November 1995, respondent was living in deceased's one-bedroom unit. Before August 1996, that arrangement came to an end. Late August 1996, respondent resumed living in deceased's unit for a period of 2 months when he was not roaming the streets, committing offences & abusing drugs. Deceased had access to drugs & would pass them on to the respondent. Respondent claimed deceased had sodomised him about a week or two prior to the killing. He said he returned to the unit to collect his personal belongings & claimed that while there, the deceased made sexual advances. Being afraid of being sexually attacked, he went to the kitchen, took a kitchen knife & attacked the deceased. The wounds included a 135 mm cut to the throat, a stab wound to the head, penetrating the skull & 4 stab wounds to the upper part of the deceased's' back, varying in depth between 90 & 100 mm, 3 of them penetrating bones. All 4 wounds to the back penetrated one of the deceased's lungs.
Sentencing judge found provocation, diminished responsibility. Greater part of remarks on sentence devoted to evidence concerning respondent's subjective circumstances, being so deeply affected by them as to have given them a weight impermissibly disproportionate to the objective gravity of the offence.
Tragic upbringing - developmentally delayed in 1st year of life due to lack of care by alcoholic mother - removed from her - gross behavioural, emotional, educational & cognitive problems by age of 6 - inadequacies in persons with whom he was fostered - placed in Bernardos, then in other foster care, then back to his mother - mother could not cope & he was removed from her care. Institutionalised, then rejected once again by his mother - lived on the streets.
Aged 16y 9m at date of killing - aged 19y 8m at time of sentence - some criminal antecedents - remorse.
Appeal dismissed.
91

KORKMAZER, Yilmaz - CCA, 6.12.99
Fitzgerald JA, Newman, Greg James JJ
Citation: R v Korkmazer [1999] NSWCCA 454
Conviction appeal.
Very short judgment.
Appellant convicted for an offence against s.33 Crimes Act 1900, whereas he pleaded guilty to an offence against s.35 of the Act.
Agreed appropriate course was that the appeal should be upheld.
Appeal allowed: conviction quashed.
92

HENMAN, Gregory Charles - CCA, 8.3.2000
Fitzgerald JA, Abadee, Barr JJ
Citation: R v Henman [2000] NSWCCA 58
s.5F application for leave to appeal against orders declining to stay certain proceedings, or, alternatively, granting a conditional stay pending appropriate medical examination of complainant.
Complainant an alleged victim in sexual assault proceedings.
Whether discretion miscarried - whether applicant unable to receive fair trial.
Leave to appeal refused.
93

BLICK, Jesse David - CCA, 14.3.2000 - 111 A Crim R 326
Sheller JA, James, Dowd JJ
Citation: R v Blick [2000] NSWCCA 61
Conviction appeal.
Robbery (armed).
Some cash & a bum bag were stolen during a robbery. The victim gave the police a description of the offender as a man with a goatee beard. A week later he was shown a bum bag which he identified as his & he was also shown photographs of 12 men, including one of the appellant. The photograph of the appellant was the only one of a man with a goatee beard.
At trial, appellant pleaded not guilty. Basis of Crown case rested on identification evidence. Trial judge refused appellant's application to have photographic identification evidence excluded under s.137 Evidence Act.
Probative value of evidence - danger of unfair prejudice - judicial discretion - weight to be given - residual discretion.
Appeal allowed: judgment & verdict of acquittal entered.
94

BJW - CCA, 14.3.2000 - 112 A Crim R 1
Sheller JA, James, Dowd JJ
Citation: R v BJW [2000] NSWCCA 60
Crown appeal.
5 x sex offences (indecent assault, carnal knowledge, sexual intercourse); 1 x AOABH.
Aggregate MT 2y, AT 8m.
Complainant was the respondent's step-daughter & she was aged between 9 & 23 at the time of the offences.
Evidence at trial that respondent suffered chronic lower back pain, epilepsy & migraine attacks, requiring regular medication. Medical evidence that long-term imprisonment might contribute to depression. Sentencing judge gave effect to medical evidence & substantially reduced sentence. Trial judge gave little details of the facts & circumstances of the offences & nothing was said of the impact of the respondent's conduct upon the complainant.
General deterrence - position of trust - child sexual abuse within family unit - respondent's health - overly generous discount.
Appeal allowed: resentenced to aggregate MT 3y 9m, AT 1y 3m.
95

CHAMI, Bassam - NSW SC, Studdert J, 8.12.99
Citation: R v Chami [1999] NSWSC 1268
Sentence:
Manslaughter.
Deceased, aged 34, celebrating Anzac Day with friends at Auburn Village Tavern. About midnight deceased became involved in an argument in the tavern. Security staff intervened, then a fight erupted between security staff & a number of persons near the doorway of the tavern. The incident was recorded on video within the tavern. The deceased went outside & became involved in a fight on the footpath. Shortly after, the prisoner approached the deceased & stabbed him in the left side of his chest with a knife.
Sentenced to: MT 5*y, AT 3y.
96

RISTESKI, Steve - NSW SC, Dunford J, 13.12.99
Citation: R v Risteski [1999] NSWSC 1248
Sentence:
Manslaughter (unlawful & dangerous act).
The prisoner & a group of friends went to the Sydney Harbour Casino to watch a televised World Cup qualifying soccer match between England & Italy. An argument broke out between prisoner's group & some English fans. The prisoner was recorded on video as having punched the victim to the side of his neck. The victim then staggered, walked a short distance & collapsed unconscious to the floor. As the victim was falling to the floor, the prisoner threw a punch, then he kicked at the head area of the victim while he was on the floor in an unconscious state.
Special circumstances.
Sentenced to: MT 3y 4m, AT 2y (2m pre-sentence custody taken into account).
97

FORRESTER, Helen - CCA, 7.3.2000
Sheller JA, James, Dowd JJ
Citation: R v Forrester [2000] NSWCCA 66
Crown appeal.
Robbery in company.
2y GBB.
Reduced sentence because of undertaking to assist law enforcement authority. Respondent failed to fulfil that undertaking.
Respondent went before another judge for sentence on a charge of assault with intent to rob in company & wounding. The judge was invited by the Crown to deal with the breach of recognizance & the respondent was sentenced to FT 6m. It was against this sentence that the Crown appealed.
Notice of appeal in respect of order by one judge but Crown case directed to sentence pronounced by another judge.
Appeal misconceived.
Appeal dismissed.
98

GIRI, Nitin - NSW SC, Studdert J, 21.12.99 - 109 A Crim R 499
KARKI
, Ivesh
R v Giri & Karki [1999] NSWSC 1269
Sentence:
Murder.
Deceased subjected to violent assault after he left a nightclub. It seems the reason for the assault was because the deceased had laughed at the way the prisoner Kiri's brother was dancing. The deceased was knocked to the ground & kicked. According to one witness, he was also stomped upon. He sustained severe head injuries. He was unconscious when admitted to hospital & later died.
Each sentenced to: MT 12y, AT 5y.
99

MARKAR, Kiriakos - CCA, 10.3.2000
Beazley JA, Newman, Greg James JJ
Citation: R v Markar [2000] NSWCCA 72
Sentence appeal.
Obtain possession of commercial quantity prohibited import (cocaine).
MT 4*y, AT 1*y.
Net weight 2.635 kgs pure cocaine, street value approx $1.5 million.
Customs intercepted an Express Mail Service package addressed to an electronics communications company in Sydney. Inside the package was a satellite receiver & the cocaine was located within the receiver.
Inappropriate weight given to plea of guilty - sentencing ratio - whether sentence manifestly excessive.
Appeal dismissed.
100

WADE, Douglas James - CCA, 10.3.2000
Fitzgerald JA, Barr J, Smart AJ
Citation: R v Wade [2000] NSWCCA 56
Conviction appeal; application for extension of time within which to appeal against conviction.
Murder - sentenced to life imprisonment;
sexual intercourse with child under 10 - sentenced to FT 10y.
Atrocious sexual assault on deceased child who was the 22 month old daughter of the appellant's girlfriend. The injuries which killed her were inflicted on her during a period of 15-30 minutes when she was alone in the house with the appellant & her 3 year old brother.
Application for extension of time filed little less than 9 years after sentence - whether admission of 'relationship'evidence constituted miscarriage of justice - sufficiency of evidence of penetration - directions on necessary mental elements.
Extension of time refused.
101

CAPPER, Wayne Bradley - CCA, 14.3.2000
Fitzgerald JA, Abadee, Barr JJ
Citation: R v Capper [2000] NSWCCA 63
Sentence appeal.
Knowingly concerned in importation of trafficable quantity ecstasy.
MT 3y, AT 2y.
Ecstasy imported was 478.8 grams gross, equivalent to 167.1 grams pure.
Effect of sentence on applicant's children - applicant in sole parenting role, their mother having been hospitalised with a mental illness - whether taken into account by sentencing judge - children now made wards of the State - whether Court should show mercy.
Leave to appeal refused.
102

AZAR, Maurice Joseph - CCA. 21.2.2000
Grove, Greg James JJ
Citation: R v Azar [2000] NSWCCA 26
Sentence appeal.
2 x BE&S; 1 x receiving; + 16 matters taken into account on a Form 1.
MT 9y, AT 3y.
Sentence imposed in light of applicant's extensive prior record. Sentencing judge referred to frank evidence of applicant that he was by occupation a thief & has had little or no other work throughout his life. Prior criminal record commenced in 1972 when he was a child. Some offences committed whilst on parole. Problem with drugs - on methadone programme - engaging personality - cannot keep hands off other people's property.
Fresh evidence - medical condition of much greater seriousness than known at time of sentencing - effect of condition on trial judge's assessment of prospects of recidivism.
Appeal allowed: resentenced to aggregate MT 7y, AT 3y.
103

SHERRY, Stephen - CCA, 29.2.2000
Sully J, Carruthers AJ, Smart AJ
Citation: R v Sherry [2000] NSWCCA 35
Crown appeal.
Manslaughter.
MT 2*y, AT 2*y (special circumstances found).
Respondent indicted for murder. Found not guilty of murder but guilty of manslaughter.
Respondent & deceased had been living in a de facto relationship for 6-7 years & had 2 children. Relationship very volatile, marked by outbursts of violence & drunkenness. In 1997, they separated & the deceased had custody of the 2 children, respondent visited them regularly. During a very violent altercation, respondent grabbed victim's throat & pushed her head forcefully against a wall, then punched her in the head a number of times. He took a large kitchen knife & pointed it at her chest. Victim was stabbed below her right ear & died as a result.
Aged 36 - lengthy criminal record but not previously imprisoned - progress toward rehabilitation.
Double jeopardy - special circumstances.
Appeal allowed: resentenced to MT 3*y, AT 2*y.
104

PRIEST, James Phillip - CCA, 21.2.2000
Grove, Greg James JJ
Citation: R v Priest [2000] NSWCCA 27
Sentence appeal.
Malicious damage of property by fire.
MT 2*y, AT 1*y.
After consuming alcohol, applicant & his partner had an argument. Applicant became very angry after his partner left & told a neighbour he was going to burn down the house. After checking the house was unoccupied, he gave his partner's cats to a neighbour, set fire to the house then sat on a verandah of a neighbouring house. The fire engulfed the house & all property inside was lost. Applicant knew the house was not insured. No-one was injured.
Asserted provocation - remorse & contrition - many previous offences including B&E, stealing.
Whether sentence excessive.
Appeal dismissed.
105

VAN DYK, Shane Hermanus - CCA, 17.3.2000
Meagher JA, Simpson J, Smart AJ
Citation: R v Van Dyk [2000] NSWCCA 67
Conviction appeal.
A number of sexual offences including sexual intercourse without consent; carnal knowledge.
MT 3y, AT 1y.
Offences allegedly occurred in 1983 & 1984 when complainant was 14 & 15 but trial did not take place until October 1998. Complainant did not report the matter to police until September 1996 when she was aged 26 & in her 3rd year of a primary school teaching course at university studying a subject called 'Children at Risk'. On 26 September 1984, when complainant was 16 weeks pregnant she had undergone an abortion.
Admissibility of evidence going to complainant's conduct & attitude towards accused - leaving of alternative verdicts of carnal knowledge - correct construction of ss.61D, 61G & 78 Crimes Act - directions as to complaint, delay - unique case where accused denied acts of indecency or intercourse but admitted consensual intercourse - alternative case of consent not put - competence of trial counsel - summing up did not fairly put defence case - failure of defence counsel to obtain ruling from judge as to whether evidence of appellant's prior conviction admissible in event that defence adduced evidence of good character in a particular respect.
Appeal allowed: new trial ordered on Counts 3,4,5,7,8 & 9.
106

ATTIE, Fred - CCA, 17.3.2000
Simpson , Barr JJ
Citation: R v Attie [2000] NSWCCA 70
Sentence appeal.
Escape lawful custody.
MT 5y, AT 8m.
Applicant was serving a sentence for robbery at the John Morony Correctional Centre at Windsor. He & another prisoner were involved in the care & maintenance of a wildlife centre there & were permitted to go into bushland to collect branches for aviaries. They stole a car & got away from the area. Someone recognised the applicant more than 3 weeks later & he was recaptured.
Exceptional case - his case file, containing entirely false information about him, stating he was an informant, had been shown to other prisoners. As a result, the applicant suffered assaults & threats to both himself & his family. When he approached the gaol authorities a uniformed member of the Intelligence Department told him he would receive assistance if he would inform on Lebanese inmates. He refused & never received help.
General deterrence - criminality in escaping significantly mitigated by circumstances.
Appeal allowed: resentenced to 3y GBB.
107

SLR - CCA, 25.2.2000
Hidden J, Carruthers AJ
Citation: R v SLR [1999] NSWCCA 464
Sentence appeal.
1 x steal from the person - FT 3m;
1 x AOABH - FT 6m;
1 x steal from a dwelling - FT 3m;
1 x steal from the person - MT 4m, AT 2y.
Custodial sentences were imposed with a direction they be served in a juvenile detention centre.
18 year old female, pregnant at time of sentence - fresh evidence that facilities unavailable for appellant to keep child after confinement in juvenile centre - such facilities available in adult prison under Mothers and Children Programme.
Appeal allowed: order varied to provide for appellant to serve her sentence in a juvenile centre until she gives birth to her child & thereafter be transferred to an adult prison.
108

LILLEY, Ronald S - CCA, 10.3.2000 - 111 A Crim R 468
Fitzgerald JA, Barr J, Smart AJ
Citation: R v Lilley [2000] NSWCCA 57
Crown appeal.
Knowingly take part in supply commercial quantity heroin - 2*y PD;
attempt pervert course of justice & supply heroin - 3y GBB.
2 further offences were taken into account (goods in custody, possess cannabis leaf).
Guilty plea - pre-sentence custody.
Circumstances of offence of supply confused & respondent's role & intended role unclear. Sentencing judge gave no indication whether he considered respondent was unable, or did not intend, to supply the commercial quantity of heroin which he agreed or offered to supply.
Long criminal history stretching back for decades involving previous drug offences - reasons for leniency extended are of minimal weight: ie, support by marital partner, poor health, inability to tolerate prison at his age are all of little significance in relation to intention to supply commercial quantity & attempt to pervert the course of justice.
Sentences must reflect objective gravity of offences.
Appeal allowed: resentenced to aggregate MT 3y, AT 2y.
109

COCKING, Keith Alan - CCA, 14.2.2000
Sully J, Carruthers AJ
Citation: R v Cocking [1999] NSWCCA 463
Sentence appeal.
12 x indecent assault.
Overall MT 4*y, AT 2*y.
The offences were upon females under the age of 16. An additional 28 allegations of sexual assault contained in statements of complainants were tendered to the Court. Complainants were from 2 generations of applicant's extended family & also included children of some of the complainants. Over the period of the offences, applicant was aged between 25 & 55.
Aged 68 at time of sentence - no prior convictions.
Fresh evidence that at the time of sentence the appellant was, unknown to him, suffering from prostrate cancer & other medical conditions - whether additional evidence should lead to a reduction in sentence.
Appeal allowed: MT varied on Count 5 to commence a year earlier, thereby reducing the sentence to MT 3*y, AT 2*y.
110

BOWHAY, Adam John - CCA, 14.3.2000 - 111 A Crim R 271
Stein JA, Hulme & Greg James JJ
Citation: R v Bowhay [2000] NSWCCA 54
Conviction and sentence appeal.
Murder.
MT 16y, AT 7y.
Victim paid undue attention to appellant's female companion & appellant asked victim to go with him to a party in order to move him away from the female. A fight broke out outside & the appellant threw the victim to the ground, strangled him & punched him in the head, stabbed him in the throat several times, jumped on victim's chest & head & kicked him in the ribs.
Aged 19 at time of offence - grossly affected by alcohol, cannabis, amphetamines & heroin - no priors.
Whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing-up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen (1997) 191 CLR 334- s.6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - whether sentence manifestly excessive.
Appeals dismissed.
111

WATERMAN, Nelson - CCA, 23.2.2000
Grove & Greg James JJ
Citation: R v Waterman [2000] NSWCCA 29
Sentence appeal.
Dispose of stolen property; escape lawful custody.
Aggregate MT 1*y, AT 1y.
At time of escape, applicant serving sentences for BE&S, steal from dwelling & breach of recognizances. During the escape, applicant came into possession of a considerable quantity of electrical goods, a Medicare card & a Bankcard. He was arrested whilst trying to pawn the goods, using the cards for identification.
Age unknown - priors - previously imprisoned.
Parity - special circumstances.
Appeal allowed: sentence reduced.
112

RAL - CCA, 25.2.2000
Grove J, Smart AJ
Citation: R v RAL [2000] NSWCCA 53
Sentence appeal.
Carnal knowledge; rape; buggery; indecent assault; AOABH; common assault.
Aggregate MT 12y, AT 4y.
Offences upon 7 victims, all members of applicant's family. The criminal conduct spanned some 27 years & included anal intercourse with his step-daughter causing her serious injuries & pain; penile-vaginal intercourse with his 8 years old step-daughter & when she screamed he placed his hand over her mouth & prevented her from breathing until he had finished; anal intercourse with step-son aged between 7 & 9; penile-vaginal intercourse with female aged 4 & to prevent her screams he placed a pillow over her head until he had finished; kicked female child aged between 10 & 12 while wearing steel-capped boots, victim rendered unconscious & could not attend school for several months; attacked his 9 year old natural daughter & persisted despite her screams; grabbed his 8 year old son by the hair, dragged him to the bathroom, put his head down the toilet; when the same victim was aged 4 he was forced to commit acts of depravity with the family dog; the same victim was also subjected to acts of fellatio.
Aged 31 at time of first offence - aged 71 at time of sentence - victims suffered extreme emotional, psychological & physical torment - no relevant priors.
Delay in detection of offences - age of appellant.
Appeal dismissed.
113

LAY, Siew-Long Riew - CCA, 23.2.2000
Grove, Greg James JJ
Citation: R v Lay [2000] NSWCCA 30
Sentence appeal.
2 x armed robbery with wounding; 11 x armed robbery; + offences on a Form 1 (assault with intent to rob, use heroin, possess heroin, possess unlicensed firearm).
Aggregate MT 5y, AT 5y.
Weapons involved in principal charges were knives with blades 15-20 cms in length. General modus operandi was for applicant to present a small item at the counters of various services stations & when the victim turned to the register, a knife was produced, the victim threatened & ordered to hand over monies. One wounding occurred when victim attempted to disarm applicant & his hand was cut, the other wounding occurred when victim opened the register & applicant ran behind the counter, waved the knife around & victim received a cut to the hand.
Aged 19 at time of offence - early admission of guilt - on bail at time of offences - heroin addiction - self-directed efforts toward rehabilitation - special circumstances - priors for armed robbery - not previously imprisoned.
Appeal allowed in part insofar as Order under s.19 Children (Criminal Proceedings) Act 1987 varied to allow service of sentence in detention centre until end of MT or date of release.
114

CROCKER, Gordon James - CCA, 14.3.2000
Sheller JA, Dowd, Barr JJ
Citation: R v Crocker [2000] NSWCCA 79
Sentence appeal.
Rob & inflict GBH - MT 12y, AT 3y;
Steal MV - FT 15m (concurrent);
Maliciously destroy MV by fire - FT 15m (concurrent);
Murder - MT 10y, AT 5y (cumulative).
The appellant, in company with 2 friends, went to a park with the intention of mugging someone. Appellant attacked & hit a man with a steering lock, hitting him between 10 & 16 times & only stopped when pushed away by one of his friends. They took the victim's keys & opened his car, took his wallet & shared the contents amongst themselves. They returned later, took the car to an isolated place & burnt it. They left the victim in the park. 10 days later, appellant armed himself with a screwdriver & attacked another man in a park, pushed the screwdriver into the man's throat & then stabbed him about the throat, face & head 47 times. He took a credit card that had a slip of paper with a PIN number on it & withdrew $200 from the deceased's account.
Whether 'statutory norm' - relationship between MT & AT - whether statutory requirement to give reasons for so-called departure from conventional sentencing structure - mitigating effect on sentence of guilty plea & absence of past violence where crimes horrific - regard to enormity of criminal conduct.
Appeal dismissed.
115

HANLON, Bradley James - CCA, 16.2.2000
Sully J, Carruthers AJ
Citation: R v Hanlon [2000] NSWCCA 55
Sentence appeal.
Aggravated dangerous drive occasioning death.
MT 3y 9m, AT 1y 3m.
As appellant's vehicle was rounding a bend towards a bridge, he lost control of the vehicle & crossed the double lines into oncoming traffic & there was a head-on collision. Appellant's passenger (his brother) was killed in the crash.
Aged 25 at time of offence - early plea of guilty - remorse - high range PCA - special circumstances - no significant priors.
Appeal allowed: resentenced to MT 3y, AT 2y.
116

WATKINS, Kenneth William - CCA, 29.3.2000
Sheller JA, Hulme, Dowd JJ
Citation: R v Watkins [2000] NSWCCA 76
Conviction appeal.
6 x sexual intercourse with person under 16y (aged between 10 & 12).
Concurrent MT 18m, AT 6m on each count.
Complainant the only Crown witness. Trial took place almost 16 years after alleged offences. Each offence alleged to have been perpetrated by the father of the complainant's friend & alleged to have occurred during the night when complainant stayed overnight at friend's house.
Whether miscarriage of justice. Whether verdict unreasonable & unsupported by evidence - where complainant's evidence wrong in relation to when offences committed & where significant feature of occasion in which offences committed wrong - where trial judge directed jury to return same verdict on every count - no direction that each could only relate to one event - possibility of conviction for matter not charged.
Appeal allowed: verdict of acquittal entered on each count.
117

BAKER, Kelly Anne - CCA, 17.3.2000
Spigelman CJ, Grove, Hidden JJ
Citation: R v Baker [2000] NSWCCA 85 revised - 28/03/2000
Crown appeal.
Malicious damage by fire.
MT 3m, AT 9m.
Respondent was on bail pending prosecution for armed robbery at the time of the subject offence. The act constituting the subject offence was throwing a 'fire bomb'(a glass bottle containing inflammable substance with tightly-rolled piece of cloth that had been lit) against a garage roller door. The garage adjoined an occupied dwelling owned by the Department of Housing. Four days before the offence, the respondent had made threats to the female occupant that she was going to fire bomb the cars belonging to the occupants of the dwelling. In his judgment, the CJ said that Crown appeals are too frequent, especially when no error is relied upon other than being manifestly inadequate.
Whether sentence manifestly inadequate - 'weight'- 'special circumstances'.
Appeal dismissed.
118

PAGETT, Melissa Dianne - CCA, 23.2.2000
Hidden J, Carruthers AJ
Citation: R v Pagett [1999] NSWCCA 466
Sentence appeal.
1 x armed robbery.
MT 18m, AT 2*y.
Guilty plea - co-offenders.
On 22.11.96, applicant was sentenced to MT 18m, AT 2*y for earlier offences of armed robbery. Applicant was released to parole when MT expired, however, she failed to comply with certain parole conditions, failed to inform Probation & Parole Service of her change of address & failed to report. On 24.11.98, unaware of the applicant's location, Parole Board revoked applicant's parole & ordered her to serve the balance of the AT of 1y 11m & 2d. The applicant decamped after the subject offence was committed & she was eventually taken into custody on 24.2.1999 to commence the balance of the AT.
Parity - whether sentencing judge should have taken into account that an offender required by the Parole Board to serve an AT by reason of breach of parole conditions might well expect an early review of that direction.
Appeal dismissed.
119

GIARRATANO, Anthony - CCA, 14.2.2000
Sully J, Carruthers AJ
Citation: R v Giarratano [1999] NSWCCA 455
Sentence appeal.
6 x make false instrument; 8 x use false instrument; 13 x steal valuable security; + 57 similar matters on a Form 1 taken into account.
Aggregate MT 2y, AT 2y.
Applicant was employed by a company as a clerk & he would prepare cheques for payment to the company's creditors. The cheques were marked 'Not Negotiable'& appropriate signatures were obtained from officers of the company. Applicant would then alter a number of these cheques by adding the words 'Petty Cash'and, as Carruthers J said in his judgment, 'For some extraordinary reason, bank tellers then handed cash to the applicant,...'This criminal conduct continued for almost 2 years & involved a total of $367,000. The Commonwealth Bank repaid all monies to the company.
Sentences imposed close to lower end of range - surprising Crown did not appeal.
Application for leave to appeal based purely on subjective grounds - finding gaol hard - missing his wife & 3 children - efforts at rehabilitation during incarceration.
Leave to appeal refused.
120

MITCHELL, Michael John - CCA, 14.2.2000
Sully J, Carruthers AJ
Citation: R v Mitchell [1999] NSWCCA 465
Sentence appeal.
1 x possess housebreaking implements; 1 x B&E with intent to commit a felony; + a number of matters taken into account under two Form 2s, including matters of dishonesty & larceny.
MT 3y, AT 1y.
' Ad misericordiam'application, based on subjective circumstances.
Applicant appeared for himself in the CCA.
Guilty plea - aged 35 at time of sentence - long criminal record - long addiction to drugs - brain damage caused by very serious MV accident - undertaken drug & alcohol counselling - attends narcotics anonymous meetings - now on a stable dose of methadone - started a building studies course by correspondence with TAFE - thought he would have been an ideal candidate for the Drug Court at Parramatta - supportive wife & family.
No error demonstrated in sentencing process.
Appeal dismissed.
121

ROBINSON, Melissa Anne - CCA, 25.2.2000
Hidden J, Carruthers AJ
Citation: R v Robinson [1999] NSWCCA 468
Sentence appeal.
89 x obtain benefit by deception.
MT 18m, AT 2*y.
Special circumstances found by sentencing judge regarding hardship caused to applicant's 3 young children. Applicant in custody in NSW, while her family reside in Western Australia, her mother-in-law looking after the 3 children.
Applicant was employed by a company; duties included bookkeeping, collection of monies, maintaining company records, preparing wages & banking. Her employer would sign blank cheques & she would, by making the cheques payable to cash, appropriate the money for her own use. A total of $85,131 was stolen from her employer.
Priors include 11 x larceny as a clerk; & breach of recognizance
Subjective circumstances - gambling addiction - whether sufficient weight given to hardship upon applicant's immediate family, particularly her children.
Consideration by the CCA of administrative & legislative facilities available to mitigate hardship.
Appeal dismissed.
122

LEONARD, Alfred Archibald - CCA, 23.2.2000
Grove, Greg James JJ
Citation: R v Leonard [2000] NSWCCA 28
Sentence appeal.
1 x accessory after the fact to robbery - MT 12m, AT 4m;
assault on police officer - FT 6m.
Applicant accepted a lift with a friend in a stolen car, not knowing the vehicle was stolen. He was sitting in the car when his friend robbed an elderly lady of her handbag. When his friend returned to the car, the applicant drove them both away from the scene. When pursued by police, he abandoned the vehicle & was chased by a police officer. He struck the officer in the right eye with his fist.
Long and appalling criminal record - aged 34 at time of offence - early guilty plea - assistance to authorities - prospects for rehabilitation.
Parity - special circumstances - rehabilitation.
Appeal allowed on count 1: resentenced to MT 7m, AT 3m.
123

EVERETT, Kylie - CCA, 21.2.2000
Hidden J, Carruthers AJ
Citation: R v Everett [1999] NSWCCA 467
Sentence appeal.
2 x dangerous drive occasioning death; + 2 offences taken into account on a Form 1 (being an unlicensed driver, self-administer prohibited drug).
MT 2y, AT 2y.
Applicant was driving a Ford Fairlane when she lost control of the vehicle & collided with a large road sign. Her husband & her 2 year old son from a previous relationship were killed, her 4 year old daughter survived. Heroin, syringes & other equipment concerned with the injection of heroin were located in the vehicle by police officers. An examination of a blood sample from the applicant revealed that at the time of the accident, she was under the influence of morphine & cannabis within a toxic to lethal range.
Guilty plea - history of addiction to heroin & other drugs - priors for 9 offences of being an unlicensed driver & other driving offences - has never held a licence.
Subjective circumstances - has dependent 4 year old daughter - consideration by CCA of administrative & legislative facilities available to mitigate hardship.
Appeal dismissed.
124

WHEELER, Matthew - CCA, 16.2.2000
Sully J, Carruthers AJ
Citation: R v Wheeler [2000]SWCCA 34
Sentence appeal.
4 x robbery; 1 x attempted robbery; 2 x robbery in company; + matters on a Form 1 taken into account (2 x assault, 4 x theft of MV).
Aggregate MT 9y, AT 3y.
The 7 principal matters were committed on 7 separate days over a period of some 5 months & involved 5 banks, a branch of the NRMA & a branch of a credit union, each accompanied with threats of shooting, although no weapon was produced. In total, some $28,000 was taken.
Aged 21 at time of sentence - offences committed whilst on parole & whilst in breach of a 3y GBB.
Principle of totality - error in sentencing process - sentence measurably beyond upper limit of range.
Appeal allowed: resentenced to aggregate MT 6y, AT 2y.
125

SHAUER, Valadu Leon - CCA, 17.3.2000
Simpson, Barr JJ
Citation: R v Shauer [2000] NSWCCA 91
Sentence appeal.
Maliciously inflict GBH - MT 1*y, AT 1*y;
AOABH - concurrent FT 1*y.
After an altercation at a bowling club wherein the applicant was hit by a man, the applicant went away & returned with a long piece of wood & swung it in a full baseball swing to the head of the man who had hit him, & then he hit the man's friend on the head.
Aged 24y - no relevant criminal history - prior good character - delay in matter going to trial - delay in sentencing after verdict caused by need to wait for preparation of pre-sentence report - good rehabilitation - not likely to re-offend.
Whether sentences excessive - could have been dealt with by way of CSO or PD - provocation
Appeal allowed: resentenced on 1st count to FT 10m; on 2nd count to concurrent sentence of 6m. No need for additional period.
126

MITCHELL, Timothy Mervyn - CCA, 20.3.2000
Abadee, James JJ
Citation: R v Mitchell [2000] NSWCCA 103
Sentence appeal.
AOABH - MT 2y 3m, AT 1y 6m; assault - concurrent FT 8m; malicious damage - concurrent FT 8m.
Applicant became involved in an argument with female complainant. He pushed her from the veranda, then kicked her a number of times while she was on the ground. Her boyfriend tried to pull him away. The applicant elbowed him to the head & punched him a number of times to the head. The female got up & tried to push the applicant away, then she & her boyfriend got into her car. The applicant started bashing in the bonnet of her car with an iron bar. The female got out of the car & approached the applicant to try & take the iron bar away from him. The applicant struck her on the head with the iron bar & she fell unconscious to the ground. The boyfriend then managed to drag her into the car & he drove to the police station & reported the incident. Female complainant suffered extensive injuries.
Whether sentence excessive - guilty plea - unsatisfactory legal representation - rehabilitation.
Leave to appeal refused.
127

HANNA, Sassine - CCA, 20.3.2000
Abadee, James JJ
Citation: R v Hanna [2000] NSWCCA 102
Sentence appeal.
Cultivate commercial quantity cannabis; supply commercial quantity cannabis.
MT 3y 4m17d, AT 1y 3m.
594 mature cannabis plants discovered growing in applicant's market garden, planted in rows directly into the ground & irrigated. Applicant admitted growing them & was arrested. Police searched a shed at the rear of applicant's dwelling & located 131 polystyrene foam vegetable boxes, each containing cannabis leaf, plus a number of hessian bags which were found to contain cannabis leaf. The gross weight from the boxes and bags yielded in excess of 219 kgs. Small bags of cannabis leaf were found in applicant's home under his bed. Some $14,500 was found secreted in different parts of the home.
Guilty plea - first offender - favourable character evidence - ipso facto marriage & birth of child - assistance to authorities.
Special circumstances - statutory ratio.
Leave to appeal refused.
128

DAVIES, Travers Jamie - CCA, 4.4.2000
Sheller JA, Hulme, Dowd JJ
Citation: R v Davies [2000] NSWCCA 84
Conviction and sentence appeal.
Dangerous drive causing death.
MT 18m, AT 18m.
Collision with a pedestrian at an intersection. Some witnesses gave evidence that the lights in the direction in which the appellant was travelling were red, whilst others, including a police officer, stated that the lights for the pedestrian crossing were red.
Whether verdict unreasonable - whether sentence excessive.
Appeals dismissed.
129

McDOWALL, Catherine - CCA, 24.3.2000
Abadee, James JJ
Citation: R v McDowall [2000] NSWCCA 95
Sentence appeal.
1 x supply prohibited drug (heroin); + on a Form 1 possess prohibited drug (amphetamine).
MT 3y, AT 1y.
Police approached 2 women whose car was parked in the driveway of a service station & searched their MV. They located a black Adidas backpack on the floor of the front passenger seat. Inside was a small red cash tin containing a number of plastic satchels. 3 of these satchels contained white rock & white powder. The women were arrested & cautioned & a further search of the bag revealed a small set of electronic digital scales & a cigarette packet containing small balloons. There were some other items found in a lady's purse for which the co-offender was charged.
Sole parent in receipt of Social Service income - drug addiction - stress of caring for her dying mother - attempts to improve her education in order to find worthwhile employment.
Powerful subjective features - procedural fairness - erroneous finding by sentencing judge. - special circumstances.
Appeal allowed: resentenced to MT 18m, AT 18m.
130

KOVACS, Lajos - CCA, 31.3.2000 - 111 A Crim R 374
Beazley JA, Simpson J, McInerney AJ
Citation: R v Kovacs [2000] NSWCCA 74
Conviction appeal & Crown appeal.
Attempt obtain possession of commercial quantity prohibited drug (heroin).
MT 9y, AT 4y.
An aggravating circumstance was that he had previously (in 1993) been convicted on a charge of importing a trafficable quantity of heroin & at the time of the attempt obtain possession offence, he was at liberty under a work release programme.
A Pakistani national arrived at Sydney Airport with several packages of heroin strapped to his body - total gross weight was 2.5 kgs, yielding 1.881 kgs pure heroin. He co-operated with authorities & was installed in a hotel room, under police surveillance, awaiting contact from someone from the Australian end of the enterprise. The appellant arrived at the hotel room some days later & the heroin & some money changed hands.
Tendency evidence - discretion - irrelevant considerations - failure to give adequate weight to material considerations - directions - Crown submitted sentence manifestly inadequate.
Conviction appeal dismissed.
Crown appeal allowed: resentenced to MT 10y, AT 5y.
131

MUAVAE, Peter - CCA, 24.3.2000
Abadee, James JJ
Citation: R v Muavae [2000] NSWCCA 88
Sentence appeal.
MT 3y 9m, AT 1y 3m.
2 x robbery in company; 2 x steal MV; 1 x armed robbery; + a Form 1 matter (negligent drive).
Applicant was in Sydney on holiday from New Zealand & met a school friend who introduced him to drug use & supplied him with drugs. Over the period during which the offences were committed, both offenders engaged in significant drug & alcohol use. The offences were committed upon taxi drivers.
Guilty plea - no priors.
Parity - special circumstances - lesser culpability than co-offender.
Appeal allowed: resentenced to MT 2y 9m, AT 2y 3m.
132

HAWKINS, Luke John - CCA, 16.2.2000
Sully J, Carruthers AJ
Citation: R v Hawkins [1999] NSWCCA 462
Sentence appeal.
Robbery in company.
MT 1y, AT 2y.
Applicant & co-offender, wearing balaclavas, robbed a food bar. As the applicant reached to take the money, one of the victim's managed to pull the balaclava off his head & was able to identify him as a customer of the shop. The co-offender then struck the victim over the head with a large stick & both offenders ran off. Another person, together with a number of other men, confronted the applicant & his co-offender shortly after the offence & the applicant was struck in the face, the money taken by this person, some of it he returned to the victim but he retained some for himself as well. He was later arrested & charged with demanding money with menaces & concealing a serious offence.
Applicant aged 18 at time of offence - full admissions - assistance to authorities - an only child - mother a chronic alcoholic, heavily dependent upon applicant - left school aged 15 - worked in several jobs - unemployed at date of robbery - full-time employment at time of appeal - offer to pay compensation.
Appellant entitled to benefit of assistance to authorities - alleged lack of parity with co-offender who was a juvenile.
Appeal allowed: MT 6m, AT 1*y.
133

ZREIKA, Abdul Hakim - CCA, 23.2.2000
Hidden J, Carruthers AJ
Citation: R v Zreika [2000] NSWCCA 75 revised - 17/03/2000
Sentence appeal.
Conceal serious offence - FT 3m;
Pervert the course of justice - MT 9m, AT 15m;
Threaten witness - FT 12m.
The applicant knew that a certain person had committed an offence of robbery on a supermarket but failed to report it. He subsequently requested that a certain female conceal information from the police in relation to the robbery. The applicant also made threats to another female with the intent to influence her against giving evidence in a judicial proceeding.
On bail at the time of 2 of the offences - priors.
Young offender - 17y 9m at time of 1st offence, 18y 7m at time of 2nd offence, & 19y 13d at time of 3rd offence - whether sentences excessive.
Appeal dismissed.
134

BIKIC, Nedjelko - CCA, 30.3.2000 - 112 A Crim R 300
Stein JA, Sully, Kirby JJ
Citation: R v Bikic [2000] NSWCCA 106
Crown appeal brought pursuant to s.5F Criminal Appeal Act 1912 (NSW).
Appeal sought to have an interlocutory order vacated. An order was made by Hidden J that the respondent be granted a separate trial. The respondent was one of 7 persons the Crown proposed to indict jointly upon an indictment of having murdered 2 victims.
CCA came to the decision that the material before Hidden J was insufficient to justify his decision to grant a separate trial.
Crown appeal allowed: separate trial vacated.
135

QUANSAH, Sonny - CCA, 31.3.2000
Fitzgerald JA, Abadee, Barr JJ
Citation: R v Quansah [2000] NSWCCA 64
Crown appeal.
Import trafficable quantity cocaine.
MT 2y 6m, AT 2y 2m.
Respondent arrived in Sydney on a flight from Tahiti. In his luggage was a wooden statue containing 2.985 kgs cocaine mixture, yielding 643.7 grams pure cocaine. At first he denied concealing the drug, but later admitted that the contents were cocaine & said he had paid $2,000 for the statue & at the time of purchase was told that it contained 1-1* kgs. He maintained it was for his own use. He said he had started using the drug some 2 years previously.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to MT 4y, AT 2y.
136

K - CCA, 17.3.2000 - 111 A Crim R 116
Simpson, Barr JJ
Citation: R v K [2000] NSWCCA 73
Sentence appeal.
Escape lawful custody - FT 3y; knowingly take part in manufacture of large commercial quantity prohibited drug (ecstasy) - MT 2y, AT 3y cumulative upon the FT.
At time of escape, applicant was serving a term of imprisonment for manufacture prohibited drug, knowingly concerned in importation of LSD & possess unlawfully imported narcotic goods. He was attending Meadowbank TAFE pursuant to pre-release arrangements but failed to return to the prison & was apprehended by police more than 10 months later. During an ERISP he admitted to being involved in the manufacture of ecstasy whilst in prison & his escape had been engineered to allow a greater level of participation because of a lack of success on the part of those more closely engaged in the operation.
Prior drug offences - previous imprisonment.
Discount - substantial assistance to authorities - whether sentence excessive.
Appeal allowed: escape lawful custody FT 2y; drug offence concurrent MT 4y, AT 2y.
137

MASON, Stuart William - CCA, 22.3.2000
Abadee, James JJ
Citation: R v Mason [2000] NSWCCA 82
Sentence appeal.
Supply prohibited drug (methylamphetamine).
MT 3y, AT 1y.
An undercover police operative attended the home of the applicant & his de facto to purchase amphetamine & the transaction was completed. He was charged on the basis of having supplied 3.1 grams methylamphetamine. Applicant had agreed to supply further quantities of the drug, however, the further supply was not the subject of any charge. Applicant was a small cog in a sophisticated dealing operation.
Sentencing judge made reference to an earlier sentence imposed on 10.9.1998 for 2 x AOABH. At that time, applicant had not been charged with the supply offence. There was a delay in charging him with that offence. Six months of the sentence for the drug charge ran concurrent with the pre-existing & unrelated sentence.
Error in applying wrong maximum penalty for offence charged - offence could have been dealt with in the LC.
Appeal allowed: resentenced to MT 12m, AT 6m.
138

LE, Vinh - CCA, 7.3.2000, Sully, Hulme & Hidden JJ
Sully, Hulme, Hidden JJ
Citation: R v Le [2000] NSWCCA 49
Conviction appeal.
Various sexual offences, including sexual intercourse without consent, assault with act of indecency upon person under age 16y, sexual intercourse without consent upon person under 16y; as well as assault charges.
The above offences were perpetrated upon three victims. The three victims had been subjected to a pattern of abuse over a period of about 6 months. The appellant pleaded not guilty to each count & was found not guilty on 2 counts, & convicted on 8 remaining counts.
Directions to jury - evidence of sexual abuse - whether trial judge erred in directions to jury with regard to use to which they should put evidence - complaint evidence - tendency evidence - whether verdicts unreasonable or cannot be supported by the evidence.
Appeal dismissed.
139

AG - CCA, 31.3.2000
RJM
Spigelman CJ, Ireland, Simpson JJ
Citation: R v AG and RJM [2000] NSWCCA 86
Conviction appeal.
A number of sexual offences, consisting of assault with intent to commit buggery & indecent assault. All offences perpetrated against young boys. The one boy was RJM's son, who was living with him. Also living with RJM were RJM's daughter, his grandmother & AG. AG & RJM shared a bedroom.
The jury returned verdicts of guilty on each count against AG & 3 counts against RJM. They acquitted RJM on 1 count & were unable to agree & were subsequently discharged in respect of 2 counts.
The sole ground of appeal by each appellant was that the verdicts could not be sustained, having regard to what was said to be the unsatisfactory nature of the evidence.
Appeals dismissed.
140

PATSALIS, Michael - NSW SC, Kirby J, 23.2.2000
SPATHIS, Alexios
Citation: R v Patsalis & Spathis [No.22] [1999] NSWSC 1320
Remarks on Sentence:
Murder.
The victim had a small business restocking cigarette vending machines. Patsalis discussed with the victim the prospect of obtaining cheap cigarettes. He arranged for the victim to meet him one evening, supposedly to buy contraband cigarettes. The victim was carrying $58,500 on him. After travelling in two vehicles from Bankstown to Marrickville (a truck driven by the victim with Patsalis, the other vehicle driven by Spathis) Spathis parked his car & entered the truck & drove to Botany, the victim between Spathis & Patsalis. Whilst parked, the victim was stabbed & his money removed. His body was eventually taken to Terrey Hills where it was doused with petrol & set on fire. The truck was taken to Chester Hill where it was set alight.
Sentencing felony murder - assistance to authorities - s.442B Crimes Act 1900 - special circumstances.
Sentenced to: Patsalis - MT 16y, AT 5*y.
Spathis - MT 14y, AT 5y.
141

JOLLEY, Scott Martin - CCA, 15.3.2000
Simpson, Barr JJ
Citation: R v Jolley [2000] NSWCCA 69
Sentence appeal.
15 x armed robbery; 2 x robbery.
MT 9y, AT 3y.
Offences committed over a period of 7*m & at the time the applicant was already serving a 2*y sentence for a robbery that was committed shortly after the last of the above offences. The new sentences were accumulated upon that term. Applicant made full admissions to authorities. Without his assistance, the Crown would only have been able to charge him on 2 counts.
Sentences outside range of sentencing discretion - strong subjective features - need for extended period on probation - deep-seated psychological problems.
Appeal allowed: resentenced to MT 5y, AT 3y.
142

POWELL, Christopher John - CCA, 13.3.2000
Simpson J, Smart AJ
Citation: R v Powell [2000] NSWCCA 108
Sentence appeal & extension of time in which to appeal.
Malicious wounding - MT 3y, AT 1*y (special circumstances found);
2 x common assault - concurrent FT 6m on each count.
A further offence of breach apprehended violence order upon victim of the malicious wounding was taken into account.
The appellant, an Aboriginal man, brandished 2 knives at 2 friends of his girlfriend, after becoming jealous of the male whom he believed was making advances towards his girlfriend. His girlfriend locked herself in the bedroom & he kicked the door in & stabbed her twice in the lower back. He told police that she had fallen onto the knife on two occasions.
Offences unprovoked - minor prior offences - guilty plea - remorse - disadvantaged & unsettled upbringing - health problems associated with alcoholism - attempted suicide - relationship formed late in life - escalation of depressive illness - compelling special circumstances.
Sentencing judge should have applied principles in Fernando.
Appeal allowed on malicious wounding count: resentenced to MT 2*y, AT 2y.
143

HOUGHTON, John Robert - CCA, 10.3.2000
Fitzgerald JA, Abadee, Barr JJ
Citation: R v Houghton [2000] NSWCCA 62
Crown appeal.
26 x fraudulently apply company property.
Concurrent MT 18m, AT 6m on each count.
Respondent was the managing director of a company managing mainly superannuation funds. His whole working history involved working in the superannuation industry. He eventually set up his own business in 1977 & he was responsible for investment of monies received & he would invest in speculative endeavours. He started gambling heavily in 1991. He used trust monies to feed his gambling habit, as well as making personal loans to members of his family. The owners of the money lost nothing as it was all insured.
Offences committed over a period of 3* years.
Guilty plea - aged 54 years - man of prior good character - history of high blood pressure - onset of diabetes.
Whether sentence manifestly inadequate.
Appeal dismissed.
144

PERA, Benjamin - CCA, 17.3.2000
Spigelman CJ, Grove, Hidden JJ
Citation: R v Pera [2000] NSWCCA 109
Crown appeal pursuant to s.5F Criminal Appeal Act challenging rulings made in the DC that indicated the intended rejection of evidence of visual identification of respondent by a witness, as well as evidence of a subsequent identification of respondent by the same witness from a photographic display shown to him by police about 4* months later.
Pre-trial ruling in DC - exclusion of some identification evidence - other evidence available to Crown - whether appeal against interlocutory ruling lies.
Appeal dismissed.
145

ROBINSON, Dennis Noel - CCA, 31.3.2000 - 111 A Crim R 388
Fitzgerald JA, BarrJ, Smart AJ
Citation: R v Robinson [2000] NSWCCA 59
Conviction appeal.
2 x indecent assault; 1 x sexual intercourse without consent.
Aggregate MT 4*y, AT 1*y.
Appellant acquitted of 2 counts of sexual intercourse without consent.
Crown case depended on uncorroborated evidence of complainant, who was aged 13 at the time of the alleged offences & who did not complain until some 13 years later. All offences alleged to have been committed on the same complainant in a single period of little more than 3 months.
Whether verdicts of guilty consistent with verdicts of acquittal - whether verdicts 'merciful' - whether verdicts compromised - whether verdicts reasonable.
Appeal allowed: convictions on 1st, 2nd & 3rd counts quashed, new trial ordered.
146

GLC - CCA, 31.3.2000
Sully, Simpson JJ, Carruthers AJ
Citation: R v GLC [2000] NSWCCA 99
s.5F appeal against refusal of an application for separate trials.
Sexual offences against 2 complainants, occurring some 4 or 5 years apart. Sexual conduct could not be classified as bearing striking similarities - 5 year age difference between complainants.
Crown sought to rely upon tendency & coincidence evidence - consideration of appropriate procedure where question of possible concoction may arise between complainants in charges of sexual misconduct involving more than one complainant - such questions should be dealt with by the trial judge.
Appeal dismissed.
147

DURSUN, Durak - CCA, 7.3.2000 - 111 A Crim R 460
Sheller JA, James, Dowd JJ
Citation: R v Dursun [2000] NSWCCA 68
Crown appeal.
MT 2*y, AT 2*y.
Supply commercial quantity prohibited drug (cocaine); + 4 other offences taken into account (supply cocaine, possess unlicensed pistol, possess cannabis leaf).
Respondent & a co-offender supplied 990 grams of cocaine to undercover police officers.
Priors: BE&S, drug offences, possess prohibited imports, conspire to import prohibited imports - previously imprisoned for lengthy period.
Aged 33 at time of offence - late guilty plea - assistance to authorities - married with several children - gambling problem - drug addiction - special circumstances.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to MT 3*y, AT 1*y.
148

HOWARD, Stuart John - NSW SC, Bell J, 17.12.99
Citation: R v Howard [1999] NSWSC 1228
Remarks on sentence:
Manslaughter.
Pleaded not guilty to murder - jury returned a verdict of guilty of manslaughter.
Aged 31 at date of offence. Had been friendly with deceased, who was also aged in early 30s. Both lived with their de facto partners in a block of units. There was a deterioration in the relationship between the 2 men, the deceased having borrowed a guitar from the prisoner's partner which he subsequently pawned. He also borrowed money from her, the bulk of which had not been repaid. Deceased's younger brother had a falling out with him & moved into the prisoner's flat. On the night of the killing, the deceased knocked on the prisoner's door, the door was opened & the deceased forced his way into the premises, knocking the prisoner to the floor. The deceased was in an aggressive mood & threatened the prisoner. The prisoner got up, walked to his kitchen & returned to the lounge area with a carving knife. He was observed by his friend & the deceased's brother to run towards the deceased & stab him. The deceased suffered 2 stab wounds, one of which was fatal.
Provocation - remorse - good prospects of rehabilitation.
MT 5y, reduced by 38 days to take pre-sentence custody into account; AT 1*y.
149

LIDDICOAT, Michelle - CCA, 13.3.2000
Simpson J, Smart AJ
Citation: R v Liddicoat [2000] NSWCCA 111
Sentence appeal.
Carried in a conveyance without consent of owner - FT 12m; assault with intent to rob in circumstances of aggravation - MT 3y, AT 1y.
Applicant & a co-offender were travelling in a MV which had been stolen 4 days earlier. The co-offender was driving. The vehicle stopped outside the Petersham fire station & the applicant alighted from it & approached a middle-aged woman who was about to enter the fire station. The applicant took hold of the woman's handbag & they both struggled over the bag. The co-offender shouted at the applicant to get in the vehicle, which she did, & the woman remained in possession of her bag. The applicant had a knife at the time which she said was for the purpose of cutting the strap of the bag.
Almost 32 at time of offences - long-standing drug problem - mother of 4 children but had custody of none of them - lengthy criminal record - ongoing attempts at rehabilitation.
Parity - special circumstances.
Appeal allowed: resentenced on charge of assault with intent to rob to MT 2y, AT 2y.
150

PAUL, Christopher Peter - CCA, 17.3.2000
Simpson, Barr JJ
Citation: R v Paul [2000] NSWCCA 117
Sentence appeal.
Attempted aggravated sexual assault.
MT 7*y, AT 2*y.
The victim was a 13 year old girl walking on a footpath in a country town. The applicant grabbed her by the shoulders, punched her to the head 4 times, demanded money, threw her to the ground, removed her shorts, removed his own pants & attempted to have sexual intercourse with her. The victim was crying & pleading with him.
Extensive criminal record - aged 49 at time of offence - priors, including aggravated rape - addicted to heroin for 30 years - chronically dysfunctional.
Whether sentence was manifestly excessive - whether sentencing judge in error in failing to find special circumstances.
Appeal dismissed.
151

BELLORINI, Dora - CCA, 7.3.2000
RUIZ, Evelyn
Grove, Sully, Simpson JJ
Citation: R v Bellorini and Ruiz [2000] NSWCCA 50
Sentence appeals.
Four US nationals arrived from Argentina via NZ, 2 of them were the offenders. Each person was carrying a backpack containing 4 kilograms of pure cocaine.
Ruiz: Import commercial quantity cocaine.
MT 4y 9m, AT 3y.
Guilty plea - assistance - admitted not isolated offence - remorse - good prospects of rehabilitation - 2 young children distressed by her absence - no recent history of drug use - incarceration in foreign country - no priors in Australia or the US.
Appeal dismissed.
Bellorini: Import commercial quantity cocaine; possess commercial quantity cocaine.
MT 6y, AT 3y.
Aged 62 at time of offence - late guilty plea - admitted not isolated offence - familial considerations - no priors in Australia or the US - parity.
Appeal allowed - resentenced to MT 5y, AT 3y.
152

RAT - CCA, 24.3.2000 - 111 A Crim R 360
Dunford, Hulme, Barr JJ
Citation: R v RAT [2000] NSWCCA 77
Conviction appeal.
2 x indecent assault; 1 x carnal knowledge.
Appellant stood trial on the above counts, as well as a further 3 counts of carnal knowledge. At the close of the Crown case, the trial judge directed the jury to return a verdict of not guilty on the one carnal knowledge count & the jury subsequently found the appellant not guilty on another 2 counts of carnal knowledge.
The appellant was the complainant's step-father.
Complainant's evidence essential on each count - different verdicts on different counts - appellant acquitted on counts where complainant's evidence could be tested - appellant convicted on counts where complainant's evidence could not be tested - whether guilty verdicts unreasonable.
Appeal allowed: verdict of acquittal entered.
153

SPILLER, Daniel Patrick - CCA, 21.2.2000
Hidden J, Carruthers AJ
Citation: R v Spiller [2000] NSWCCA 36
Sentence appeal.
3 x aggravated indecent assault.
Aggregate MT 2y, AT 2y.
Offences committed upon stepdaughters when aged between 6 & 9 years. Evidence that the 3 counts were not isolated incidents but were part of a pattern of indecent behaviour over a 3 year period. Applicant had been living in a de facto relationship with the mother.
Aged 30 at time of appeal - priors for unrelated offences - made full admissions - brain damage as a result of an accident - past heavy drinker & user of heroin.
Whether sentence manifestly excessive.
Appeal dismissed.
154

SWAN, Anthony Dean - CCA, 22.3.2000
Abadee, James JJ
Citation: R v Swan [2000] NSWCCA 114
Sentence appeal.
Robbery in company; + 3 matters taken into account on a Form 1 (stealing mobile phone, common assault, failure to appear).
MT 2y, AT 2y.
On the same day, co-accused pleaded guilty to the same offence & asked that a breach of a 4y recognizance for stealing from the person be taken into account. She was sentenced to MT 18m, AT 18m with a direction that no action be taken on the breach of recognizance because of the penalty imposed in relation to the robbery.
Applicant, his girlfriend & nephew approached the victim (aged 13) as he walked through a vacant lot near his home. Applicant offered to sell a pair of sports shoes to the victim for $20, he was then punched & when he fell to the ground, the applicant stole $50 from him. Victim received cuts & minor injuries to his lips.
Aged 24 at time of offence - Aboriginal - unemployed - priors - parity - special circumstances.
Appeal allowed: resentenced to MT 18m, AT 18m.
155

BMT - CCA, 15.3.2000
Simpson, Barr JJ
Citation: R v BMT [2000] NSWCCA 112
Sentence appeal; application for extension of time & to go behind abandonment of an application for leave to appeal filed earlier (leave & extension granted).
Aggravated sexual assault; + an offence of malicious damage taken into account.
MT 9y, AT 3y.
Victim was applicant's cell-mate's partner. Applicant had met her when she visited her partner in gaol. When he was released on parole, he went to the victim's house & subjected her to degrading & violent sexual acts lasting 3* hours, all the time threatening her. He was armed with a large carving knife. The victim's 3 year old son was present at the time of the offences. The victim eventually managed to escape with her child to a nearby house.
Aged 48 at time of offence - alcoholic & violent father - violent mother - slow learner - number of attempts at suicide - a beating in gaol caused brain damage - lengthy criminal history including buggery, assault with act of indecency, sexual intercourse without consent, rape, indecent assault on female, aid & abet AOABH, maliciously inflict GBH with intent to murder. Whether sentence excessive.
Appeal dismissed.
156

HARRIDEN, David George - CCA, 22.3.2000
Powell JA, Hulme, Dowd JJ
Citation: R v Harriden [2000] NSWCCA 118
Conviction appeal.
Malicious wounding.
400h CSO.
During a street disturbance outside a tavern in Queanbeyan, a police constable had arrested a man & was struggling with him on the road. While in this situation, his baton was removed from his belt & he was struck twice over the head, causing wounds, one of which bled profusely & required stitching. Shortly thereafter the appellant, carrying a baton, moved in the direction of the tavern where he was apprehended by 2 doormen on duty at the tavern. Both doormen were firm in their evidence that they had seen the appellant remove the baton & strike the constable with it & that they had kept their eyes on the appellant until they apprehended him.
Verdict unreasonable - Court also asked to take into account a comment made in Crown Prosecutor's address about failure of appellant's legal advisers at trial to call appellant's brother.
Appeal dismissed.
157

REGINA, Josef Richard - CCA, 20.3.2000
Abadee, James JJ
Citation: R v Regina [2000] NSWCCA 100
Sentence appeal.
Escape from lawful custody.
MT 2y, AT 1y.
Applicant was sentenced for 2 x BE&S, 1 x cultivate prohibited plant, 1 x supply prohibited drug. He appealed against those sentences, the CCA allowed the appeal & he was resentenced. He was then transferred to the Grafton Correctional Centre. Whilst there, a prisoner with whom he was sharing a cell & with whom he had become friendly was seriously assaulted by other prisoners. The applicant was transferred to a minimum security correctional centre at Glen Innes, having signed an undertaking not to escape or attempt to escape if he was transferred. Three days after the transfer, he simply walked out of the centre & hitchhiked to Queensland. Some time later he went to the Northern Territory & whilst there committed an offence of cultivate a commercial quantity of cannabis. His sentence of 2y was reduced by one-third by reason of remissions. After completion of this sentence, he was not extradited to NSW and was finally arrested in Queensland almost 4 years later when he was charged with possess dangerous drug & possess tainted property.
Whether sentence excessive.
Appeal dismissed.
158

CASSELL - HC, 10.2.2000 - 201 CLR 189; 74 ALJR 535
Appellant gave evidence before an Assistant Commissioner at a hearing of the ICAC & was subsequently charged & convicted of giving false evidence. A hearing de novo appeal against conviction & sentence was held in the DC where a no case submission was made by counsel for the appellant. This submission was turned down & a stated case was made to the CCA.
Main ground of appeal before the HC questioned the validity of the hearing conducted by ICAC on the ground that there was no evidence to prove that the Commissioner 'determined'that the Assistant Commissioner would hear the ICAC proceedings & therefore the Crown had not proved every element of the offence.
Federal & State investigative authorities (NSW) - ICAC - determination by Commissioner that Assistant Commissioner would hear case - validity of purported hearing - sufficiency of evidence to prove valid hearing - burden of proof
Appeal dismissed..
159

HEARD, John Edward - CCA, 5.4.2000
Simpson J, Smart AJ
Citation: R v Heard [2000] NSWCCA 107
Sentence appeal.
Supply commercial quantity amphetamine.
MT 3y, AT 4y.
Applicant part of the Kalache drug organisation. Although not close to the centre of the Kalache operation, he was known to Kalache. Applicant's association led back to Watkins, who was closely linked to Kalache.
Applicant entered an early guilty plea, whereas many within the Kalache group did not plead guilty at such an early stage. Sentence imposed on Watkins out of balance with that imposed upon applicant. Sentence imposed upon Watkins was 5*y, with MT 3y.
Parity.
Appeal allowed: resentenced to MT 2y 2m, AT 2y 10m.
160

BOND - HC, 9.3.2000 - 201 CLR 213; 74 ALJR 597
Applicant pleaded guilty to 2 charges of failing to act honestly in his capacity as company director with intent to defraud that company & shareholders. He was sentenced in the SC of WA to a total maximum of 4 years to be served cumulatively upon a sentence he was then serving. The Cth DPP appealed against this sentence on the ground that it was manifestly inadequate & the CCA of WA increased the sentence to 7 years to be served cumulatively.
Applicant applied for special leave to the HC on the ground that the respondent did not have the legal and constitutional power or authority to institute the appeal against sentence.
Inconsistency of laws - power of states to vest functions in officers of the Cth - applicability of de facto officers doctrine.
Appeal allowed.
161

SUN, Sio Meng - CCA, 17.3.2000
Simpson, Barr JJ
Citation: R v Sun [2000] NSWCCA 87
Sentence appeal.
AOABH; kidnapping.
Aggregate MT 3y, AT 2y.
Chinese national, in Australia on a student visa, lured by a colleague of the applicant to a karaoke bar on pretext that 2 of his friends wanted to meet him there. He went in & a waiter took him to a private room where applicant and others were waiting. Applicant was known to victim as they had attended school together. He was badly beaten by applicant & his friends. They took his money, a keycard & visa card & asked him for his PIN number. When he told them he did not know the number, he was again viciously assaulted & told he would be killed if he did not tell them. One of the assailants said he might really not have the number. He was tied to a chair & left alone in a room & about 5.30 the next morning the applicant & one of the others returned & told him to write down details of his family in Hong Kong, which he did. He was also told he would have to go to a bank to withdraw a large sum of money. Some time later, all 4 assailants returned & took him to a bank & ordered him to withdraw the money & sent him inside. He had been given a jumper to cover up his bruises. Instead of asking for money, the victim asked for help & the police were called & the four kidnappers were caught.
Parity.
Appeal dismissed.
162

KYRIACOU, Jack - CCA, 17.3.2000
Simpson, Barr JJ
Citation: R v Kyriacou [2000] NSWCCA 115
Sentence appeal.
B&E with intent to steal; resist police officer; assault police officer; larceny of MV.
Aggregate MT 3y, AT 2y.
Offender obtained a stolen MV & with a co-offender broke into & entered a tobacconist's store. They were attempting to remove goods from the premises when police apprehended them. Offender & co-offender escaped. Offender drove the stolen MV at high speed, causing a police officer to have to jump aside. He was arrested shortly afterwards away from the vehicle & the vehicle was recovered. A large number of packets of cigarettes were found in the vehicle.
Aged 42 at time of offence - heroin addict - need for fund for drugs - on parole at time of offences - lengthy criminal history, including drug, fraud/dishonesty, property & driving offences - previously imprisoned on 7 occasions.
Appeal dismissed.
163

REGINA, Josef Richard - CCA, 20.3.2000
Abadee, James JJ
Citation: R v Regina [2000] NSWCCA 100
Sentence appeal.
Escape from lawful custody.
MT 2y, AT 1y.
Applicant was sentenced for 2 x BE&S, 1 x cultivate prohibited plant, 1 x supply prohibited drug. He appealed against those sentences, the CCA allowed the appeal & he was resentenced. He was then transferred to the Grafton Correctional Centre. Whilst there, a prisoner with whom he was sharing a cell & with whom he had become friendly was seriously assaulted by other prisoners. The applicant was transferred to a minimum security correctional centre at Glen Innes, having signed an undertaking not to escape or attempt to escape if he was transferred. Three days after the transfer, he simply walked out of the centre & hitchhiked to Queensland. Some time later he went to the Northern Territory & whilst there committed an offence of cultivate a commercial quantity of cannabis. His sentence of 2y was reduced by one-third by reason of remissions. After completion of this sentence, he was not extradited to NSW and was finally arrested in Queensland almost 4 years later when he was charged with possess dangerous drug & possess tainted property.
Whether sentence excessive.
Appeal dismissed.
164

GLEESON, Jamie Paul - CCA, 20.3.2000
Abadee, James JJ
Citation: R v Gleeson [2000] NSWCCA 101
Sentence appeal.
2 x dangerous drive occasioning GBH.
MT 18m, AT 6m: + disqualified from holding a driving licence for 3y.
Applicant lost control of the vehicle he was driving & it spun into the path of an oncoming vehicle. The passenger in the applicant's car & the driver of the other car both suffered extensive injuries & required lengthy hospitalisation.
Excessive speed - blood alcohol concentration of 0.149 grams per 100 mls of blood - previous convictions for driving with low range prescribed concentration of alcohol in 1991 & 1995 for which applicant had been fined.
Subjective features - de facto wife in prison - young child fostered out - applicant's desire to be released to look after his daughter.
Leave to appeal refused.
165

LUCK, Neville John - CCA, 12.4.2000
AMADIO, Leon John
Ireland, Hidden JJ, Carruthers AJ
Citation: R v Luck and Amadio [2000] NSWCCA 119
Sentence appeals.
Luck: maliciously inflict GBH with intent; common assault - MT 5y, AT 2*y.
Amadio: maliciously inflict GBH with intent - MT 4y, AT 2*y.
A brutal attack by the applicants upon a man in the toilets of an RSL Club, resulting in severe & permanent brain damage to the victim. The common assault perpetrated by Luck was upon another man who tried to stop the attack.
Whether sufficient weight given to subjective circumstances - common ground that sentences were in the upper range for the offence.
Appeals dismissed.
166

MAIN, Robert Michael - NSW SC, Adams J, 19.11.99
Citation: R v Main [1999] NSWSC 1174 revised - 15/02/2000
Redetermination of life sentences under s.13A Sentencing Act 1989.
Murder; assault & attempt to rob whilst armed (.375 magnum revolver) - sentenced to concurrent terms of life imprisonment on each count. Whilst in prison he committed another murder (a contract killing) & was sentenced to life imprisonment for that crime.
Continued drug use whilst in prison - repeated failure of drug tests - not yet rehabilitated.
Purpose of s.13A Sentencing Act 1989 - element of retrospectivity - significance of rehabilitation - relevance of Victims' Impact Statements.
Application dismissed: applicant not to reapply for a period of 2 years.
167

IDDLES, Matthew - CCA, 10.4.2000
Dowd, Hulme JJ
Citation: R v Iddles [2000] NSWCCA 128
Sentence appeal.
Robbery in company.
MT 18m, AT 18m.
Applicant & a co-offender stole $550 from a supermarket. The applicant pushed an employee & took the money from the till.
Motivated by drug addiction.
Aged 19 at time of offence - early guilty plea - remorse - co-operation with authorities - extensive record.
Special circumstances.
Appeal allowed insofar as sentence corrected to direct release at end of NPP.
168

ABOU-JIBAL, Faouzi - CCA, 10.4.2000
Dowd, Hulme JJ
Citation: R v Abou-Jibal [2000] NSWCCA 127
Sentence appeal.
Aggravated robbery (maliciously inflict ABH).
MT 2y, AT 18m.
On the day of the offence, the applicant gambled away $5,000 which was a deposit that should have been given to his father. He discussed with another person (who was not identified) his intention to commit a criminal offence & then the applicant waited outside a bank & as the victim walked up the stairs, he grabbed hold of her handbag. The victim resisted, resulting in her being pulled down the stairs. She was admitted to hospital suffering from a fractured left collar bone, a swollen left ankle, sore left side, sore ribs & abrasions.
Not a simple bag snatching - not a spur of the moment offence.
Serious gambling addiction - prior convictions - undertaken education courses - Victorian suspended sentence current at time of offence.
Whether sentence excessive.
Appeal dismissed.
169

RPS - HC, 3.2.2000 - 199 CLR 620; 74 ALJR 449
Appellant was convicted of 4 counts of unlawful sexual intercourse with his daughter. The prosecution case was based largely on the complainant's evidence & the accused opted to give no evidence at trial.
Comment by judge on accused's failure to give evidence - suggestion of guilty - misdirection & non-direction.
Appeal allowed: new trial ordered.

170

SLATER, Darren Alan - NSW SC, Sully J, 26.11.99
MICHAEL, Nathan Isaac
Citation: R v Slater and R v Michael [1999] NSWSC 1144
Redetermination of life sentences under s.13A Sentencing Act 1989.
Both prisoners, at the age of 18, met a young female outside a night club & drove her to a deserted area. They put her out of the car when she refused to have sex with Michael. Slater punched her & asked Michael to hand him a baseball bat. Slater used the baseball bat to strike the victim across the back of the head, he then removed her jeans & boots with Michael's assistance. Both prisoners then drove away with some of the victim's clothes. A short time later they returned, fearing the victim might have been able to identify their vehicle. They picked her up & drove her to a deserted area near Flat Rock Creek Dam. While she was still alive, they dragged her to the edge of the dam & pushed her over an observation deck. She sustained gross head & brain injuries & a broken neck & died almost immediately.
Slater: Application granted: resentenced to MT 18y, AT 6y.
Michael: Application granted: resentenced to MT 16y, AT 5y.
171

AJL - CCA, 12.4.2000
Powell JA, Hulme, Dowd JJ
Citation: R v AJL [2000] NSWCCA 104
Conviction appeal.
3 x assault and commit act of indecency.
400h CSO.
Appellant an ordained minister of religion & at the time of the alleged offences was a teacher at a private school. The complainant was aged 16 & was in Year 10 at the time.
Complaints - whether 'fresh in the memory'of the complainant - long delay - admissibility.
Appeal allowed: new trial ordered.
172

CLARKE, Rodney Thomas - NSW SC, Newman J, 15.12.99
Citation: R v Clarke [1999] NSWSC 1225
Redetermination of life sentence under s.13A Sentencing Act 1989.
1 x murder - life imprisonment;
2 x unlawful sexual intercourse - two head sentences of 20y with NPP of 18y;
1 x unlawful sexual intercourse - 10y with NPP of 8y.
Prisoner forced entry into young girl's bedroom, had vaginal & anal intercourse with her whilst smothering her.
Application dismissed: applicant not to reapply for a period of 3 years.
173

LUONG, Loan Phuong - CCA, 14.4.2000
Priestley JA, Foster AJ, Smart AJ
Citation: R v Luong [2000] NSWCCA 139
Crown appeal.
1 x supply commercial quantity heroin.
MT 8m, AT 2y 10m.
Respondent was in joint possession of the heroin with her de facto in a car that was stopped & searched. Both were resident in Melbourne & the respondent was 6 months pregnant at the time. The heroin was found secreted under the back seat. The sentencing judge found that greed was the reason for the offence but thought it was probable that it was the husband's greed, the respondent having assisted him because of their relationship. The respondent's husband was a heavy gambler.
Whether sentence manifestly inadequate.
Appeal dismissed.
174

LE, Hiep Van Em - NSW SC, Michael Grove J, 20.8.99
Citation: R v Le [1999] NSWSC 993
Redetermination of life sentence under s.13A Sentencing Act 1989.
Applicant showing signs of recovery from alcoholism - Applicant diligently applied himself to work conducted in gaol.
Application allowed: resentenced to MT 12y, AT 8y.
175

BIJKERK, Roy Anthony - CCA, 14.4.2000 - 111 A Crim R 443
Grove, Sully, Simpson JJ
Citation: R v Bijkerk [2000] NSWCCA 122
Conviction appeal.
Conspiracy to import commercial quantity drugs (cocaine).
MT 4y, AT 2*y.
Appellant & 2 others agreed to import 4 kgs cocaine from the USA. Appellant undertook 2 dummy runs. 2 cartons of coffee granules, with drugs hidden in the cartons, were shipped from the USA. A faked Australian Customs stamp was affixed to an invoice prior to export in order to circumvent inspection of the cartons once they arrived in Australia. Police were aware of the plans to import the drugs as they had the co-offenders under surveillance. The drugs were intercepted upon arrival & were substituted & the appellant arrested at the place where delivery was made.
Police informant - entrapment - correctness of interlocutory ruling in DC - discretion - 'unwary innocent' test - error in distinguishing Ridgeway - evidence - 'competing desirabilities'.
Appeal dismissed.
176

ORTH, Phillip James - CCA, 10.4.2000
Dowd, Hulme JJ
Citation: R v Orth [2000] NSWCCA 126
Sentence appeal.
2 x sexual intercourse without consent; 1 x attempt sexual intercourse without consent.
MT 6y, AT 3y.
Applicant followed the victim as she was walking along a city street at 5 am on a Sunday morning on the way to join her friends at a nightclub. The victim became aware of him & tried to get away, however, the applicant grabbed her, placed his hand over her mouth & threatened to kill her. He dragged her into a doorway, ripped off her clothes & sexually assaulted her. A security guard across the street observed the assault, the victim called out to him & the offender fled. The security guard gave chase &, with the help of 2 council workers, caught the applicant who was hiding under a truck. Police were called & he was arrested.
Aged 26 - early guilty plea - lack of premeditation - good character - prior traffic offence - not previously imprisoned.
Totality - intoxication.
Appeal dismissed.
177

AMBATSIDIS, John - CCA, 14.4.2000
Simpson, Barr JJ
Citation: R v Ambatsidis [2000] NSWCCA 125
Sentence appeal.
2 x supply commercial quantity heroin.
Aggregate MT 3y 9m, AT 2y 3m.
Applicant agreed to supply an undercover police operative with 1 kg of heroin. This agreement was never completed. Applicant travelled from Melbourne to Sydney to supply a .22 gram sample of heroin to the same undercover police operative.
Aged 30 at time of offences - immature & dependent personality - heroin addition - supportive family - priors include property, drug & firearm offences - not previously imprisoned.
Special circumstances - weight - whether sentence excessive.
Appeal dismissed.
178

DUMA, Paul - CCA, 19.4.2000
Simpson J, Smart AJ
Citation: R v Duma [2000] NSWCCA 132
Sentence appeal.
Robbery with corporal violence; 1 x aggravated robbery; being carried in conveyance without consent of owner; assault police officer in execution of his duty.
Aggregate MT 3y, AT 1y.
Applicant, 2 males & a female tore 2 gold chains from victim's neck. They knocked victim to the ground then punched & kicked him. They stole his wallet, cigarettes & lighter. Victim suffered bruises & pain. Co-offenders were juveniles.
Applicant & others stole a car & drove to a bank where they told staff & customers to lie on the floor. They stole $40,000 then fled in a stolen car. One customer had been knocked unconscious.
Applicant was later pursued by police in a high speed chase. He struggled with police whilst being apprehended & the police officer suffered minor injuries.
Aged 18 at time of 1st offence - gambling problem - priors include malicious wounding, conceal serious offence, dangerous drive - previous imprisonment.
Special circumstances - youth - Henry considered.
Appeal allowed in part: resentenced to aggregate MT 2*y, AT 1*y.
179

TOOMALATI, Kaisarina Rosalita - CCA, 22.3.2000
Powell JS, Dowd, Hulme JJ
Citation: R v Toomalati [2000] NSWCCA 105
Crown appeal.
Maliciously inflict GBH.
3y GBB.
Respondent, accompanied by 2 friends, confronted victim at her place of work about having an affair with respondent's husband. An argument developed & applicant tried to grab the victim but her friends restrained her. The friends told her to leave the victim alone, but she ignored this & when the victim turned to leave, applicant grabbed her & punched her in the face. A stranger tried to intervene but the applicant used an implement which she used to stab the victim in the left side of the face causing injury to her eye & the victim fell to the ground, bleeding from the eye. Respondent kicked the victim in the face then left with her friends. Victim underwent surgery & her left eyeball was removed.
Pacific Islander - aged 28 - mother of 4 young children - separated from husband - violent & disruptive childhood - violent marriage - depression - attempts at suicide - need for anger management - receiving treatment - supportive family - remorse - on recognizance at time of offence - priors (3 x offences of violence) - not previously imprisoned.
Adequacy of sentence.
Appeal dismissed.
180

MAHER, Craig - CCA, 12.4.2000
Hulme, Dowd JJ
Citation: R v Maher [2000] NSWCCA 147
Sentence appeal.
Sexual assault - 3y FT.
Aggravated sexual assault - cumulative MT 5y, AT 3y.
Applicant smashed window of a caravan, unlocked the door & sexually assaulted the female occupant.
Applicant knocked on the door of another caravan & when the woman living inside opened the door, he pushed her backwards so that she struck her head on the refrigerator. Applicant forced the woman to lie on the floor & punched her in the eye when she tried to stand, again causing her to strike her head. The applicant then sexually assaulted her.
Aged 41 at time of 1st offence - prior for property offence - not previously imprisoned.
Discount - likelihood of re-offending - recidivism scale - mental capacity - general deterrence.
Appeal dismissed.
181

RUSH, Shayne Charles - CCA, 1.5.2000
Stein JA, Dunford, Simpson JJ
Citation: R v Rush [2000] NSWCCA 134
Crown appeal.
2 x kidnapping; 1 x act of indecency; 1 x aggravated sexual assault; + Form 1 offences (3 x stealing, goods in custody, act of indecency).
Aggregate MT 6y, AT 3y.
Respondent mistakenly charged under s.61N(1) instead of s.610(1).
All offences were committed in two shopping centres & were perpetrated upon a 9 year old girl, a 12 year old girl and a 19 year old woman.
Aged 33 at time of 1st offence - no contrition - no pre-sentence report - psychiatric examination refused - long criminal history including stealing, driving offences, possess prohibited drug, malicious damage - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed in relation to 2 counts: resentenced to aggregate MT 7*y, AT 3*y.
182

DWIGHT, Rodney John - CCA, 14.4.2000
Hulme, Dowd, JJ
Citation: R v Dwight [2000] NSWCCA 164
Sentence appeal.
4 x armed robbery; + Form 2 matters taken into account (8 x armed robbery, 1 x BE&S, 2 x steal MV).
Aggregate MT 8y, AT 4y.
The 4 armed robs involved a liquor outlet, 2 newsagencies & an RSL Club, the property stolen was $7,000, $18,300, 88 cartons of cigarettes & $12,500 respectively. It was in the course of leaving the scene of the last offence that the applicant was arrested.
Aged 23 at time of sentence - had been a difficult child - father physically & emotionally abusive towards him - relationship with mother close - feelings of guilt & shame - priors include self-administer prohibited drug, dishonesty & assault - previous imprisonment.
Failure to take mental condition into account - failure to give appropriate discount for pleas of guilty & admissions of guilt - whether sentence excessive.
Appeal dismissed.
183

REID, David Charles - CCA, 5.5.2000
Hulme J, Carruthers AJ
Citation: R v Reid [2000] NSWCCA 166
Sentence appeal.
1 x accessory after the fact to steal from a person; 1 x larceny of MV.
Aggregate MT 18m, AT 2y.
Applicant & co-offender broke into a car at Beecroft Railway Station carpark & drove off in it. Near West Pennant Hills Shopping Centre, co-offender leaned out the passenger side of the MV & grabbed a handbag from a woman. The 2 then drove off, the applicant driving. The victim's husband followed them & then the police. Offenders managed to get away. Later in the day, the applicant was found hiding in the backyard of a nearby house.
Guilty plea - drug addiction - removed from Aboriginal family at age 2 & placed in white foster care at age 3 - identifies strongly with Stolen Generation - left foster home at age 15 - began a series of detentions in juvenile centres before entering adult correctional system.
Parity - objective circumstances - antecedents - whether sentence manifestly excessive.
Leave to appeal refused.
184

R - CCA, 14.4.2000
Hulme & Dowd JJ
Citation: R v 'R'[2000] NSWCCA 163
Sentence appeal.
Count 1: robbery in company - FT 2y;
Count 2: robbery in company; Count 3: attempt robbery in company - MT 2y, AT 2*y cumulative upon the sentence imposed on count 1.
Unremarkable robberies involving the applicant & 2 co-offenders wherein on 2 occasions they approached 2 separate women in the street & on each occasion demanded money. The third offence occurred when one of the co-offenders made an unsuccessful attempt at grabbing a woman's handbag. The 1st offence netted $4, the second offence $27. In each case, a knife was produced & the victims threatened.
Aged 20 at time of offences - heroin addiction - alcohol problem - addiction related to trauma of sexual abuse for a number of years up to age 12 - priors - on recognizance at time of subject offences. Full admissions - assistance to authorities - contrition - well motivated towards rehabilitation. Totality - special circumstances.
1st count: appeal dismissed.
2nd count: appeal allowed, resentenced to NPP 6m.
3rd count: appeal allowed: MT 6m, AT 2y.
185

SUTTON, William Lewis - CCA, 12.4.2000
Hulme & Dowd JJ
Citation: R v Sutton [2000] NSWCCA 145
Sentence appeal
1st matter: 3 x BE&S; 1 x possess housebreaking implements; 1 x enter land with intent to commit offence.
MT 1y 3m, At 2y 9m.
2nd matter: receiving (multiple); obtain benefit by deception. All offences committed prior to his arrest for the charges in the 1st matter - aggregate MT 2y, AT 10m.
Overall effect: MT 3y 3m, AT 3y.
The offences dealt with in the 2nd matter were the subject of the appeal to the CCA.
Guilty plea - long criminal history going back almost 30 years for dishonesty offences - drug addiction - alcohol problem - genuine & concerted attempt to overcome these problems.
Principle of totality.
Appeal dismissed.
186

RYAN, Keith Wayne - CCA, 22.3.2000
Abadee, James JJ
Citation: R v Ryan [2000] NSWCCA 98
Sentence appeal.
2 x armed robbery; + offences taken into account (2 x armed robbery, 2 x goods in custody, 1 x possess prohibited drug).
Aggregate MT 6y, AT 4y.
Robberies of a TAB branch & a post office as well as a service officer in the post office. All offences, both in the indictment & the form, were committed whilst on parole. Hand gun & syringe used as weapons.
Aged 41 at time of sentencing. Aboriginal descent - numerous convictions, both as a child & as an adult - tragic personal features - severely deprived background - alcohol & drug dependency - institutionalised - since adulthood, in total has spent only 4 years out of gaol - lacking life skills of either his own people or society generally - cognitive defects.
Whether sentence manifestly excessive.
Appeal dismissed.
187

DUTHIE, Trevor Charles - NSW SC, Newman J, 15.12.99
Citation R v Duthie [1999] NSWSC 1224 revised - 01/01/2000
Remarks on sentence
Manslaughter.
Indicted on a charge of murder but Crown accepted plea of guilty to manslaughter.
The basis upon which the Crown accepted the plea was that at the time of the killing, the accused's responsibility for his actions was diminished by an abnormality of mind.
The accused claimed he & his cell-mate made a pact to commit suicide. They tried suffocation but this did not work, so the accused used a shoe lace to tie up the deceased's arms & legs & then strangled him with another shoe lace. The accused claimed to the authorities that he was assisting his cell-mate to die. He failed to carry out his own suicide. He then went to sleep & some hours later alerted prison authorities. Earlier in the evening, both the accused & his cell-mate had been given Valium to calm them down on their admission, as both had been ingesting drugs & were in a disturbed state when admitted.
Aged 35 at time of sentence - long criminal history, including offences of violence - spent good portion of adult life in custody - hepatitis C positive - drug addiction - chronic schizophrenic - borderline intelligence.
Sentenced to: MT 3y 8m, AT 3y.
188

WILSON, Darryl Grant - NSW SC, Newman J, 3.12.99
Citation: R v Wilson [1999] NSWSC 1235
Remarks on sentence.
Manslaughter.
Accused indicted for the murder of his father, to which he pleaded not guilty but guilty of manslaughter. The Crown accepted this plea in full satisfaction of the indictment.
One Sunday morning, accused & his father met at The Spit to change the oil in their boat, after which the deceased made comments which the prisoner took as threats against his girlfriend, believing his father would be prepared to kill his girlfriend & force accused to return to his wife & children. Both had consumed a small amount of alcohol. Accused hit his father, resulting in lacerations to the back of his head, bruising to his right shoulder, a laceration to the bridge of his nose & grazes to the rear of his shoulders. After feeling & listening for the deceased's heart & breath, he wrongly concluded that his father was dead, lifted him over the side of the boat & threw him into the water.
Aged 42 at time of sentence - solicitor by profession - no prior record - excellent character - guilty plea.
At the time of the killing, the deceased was on bail on a charge of conspiracy to murder the male partner of his former de facto. He had been convicted of aggravated sexual assault on a minor & convicted for threatening a witness, but successfully appealed both convictions.
Strong degree of provocation - exceptional case of manslaughter.
Sentenced to 3y GBB.
189

GILBERT - HC, 23.3.2000 - 201 CLR 414; 74 ALJR 676
Murder - appeal against conviction - misdirection by trial judge - failure to leave manslaughter to jury - whether jury properly instructed would necessarily have returned verdict of guilty of murder - whether no substantial miscarriage of justice actually occurred - whether failure to leave manslaughter to jury constitutes substantial miscarriage of justice where jury's verdict of guilty of murder consistent only with satisfaction of elements of offence of murder.
Appeal allowed: conviction set aside, new trial ordered.
190

FRASER, Gregory - CCA, 24.3.2000
Abadee, James JJ
Citation: R v Fraser [2000] NSWCCA 97
Sentence appeal.
22 x obtain property by deception; 1 x stealing; 2 x make false instrument & then use false instrument.
MT 3y, AT 2y.
Applicant obtained goods or services by proffering valueless cheques, drawn by him on an account with insufficient funds, in most cases drawn on the account of a business. No attempt to conceal his true identity. Where cheque drawn on account of the business, applicant represented himself as a director & produced his own driver's licence.
Total value of goods & services obtained $107,078. Goods to the value of $12,252 recovered. Ultimate net loss $94,826.
Assistance to authorities in prosecution of another offender - not in position of trust - method of operation not elaborate - offences committed because of gambling addiction, not greed - guilty plea - remorse - already commenced own rehabilitation.
Special circumstances - whether sentences manifestly excessive.
Appeal allowed: resentenced to MT 2y 3m, AT 1y 3m.
191

MASTERS, Catherine - CCA, 10.4.2000
Hulme & Dowd JJ
Citation: R v Masters [2000] NSWCCA 146
Sentence appeal.
BE&S; use weapon to resist arrest (knife); + Form 1 matters.
Aggregate MT 18m, AT 2y.
Applicant entered a house intending to steal. An occupant of the house & some others confronted her & she told a false story as to why she was there. She was told to remain in the house while the police were called, however, she grabbed a knife & threatened to use it before running from the house with the knife.
Priors include stealing, receiving, assault, malicious damage, malicious wounding, possess prohibited drug - previously imprisoned.
Aged 22y at time of offence - drug problem - clean for 2 years - performance in response to previous CSO & supervision orders unsatisfactory - starting to take control of her life.
Whether sentence excessive.
Appeal dismissed.
192

RIDDELL, John - CCA, 10.4.2000
Hulme & Dowd JJ
Citation: R v Riddell [2000] NSWCCA 144
Sentence appeal.
Escape lawful custody.
MT 5m, AT 4m.
Sentencing judge found that the escape was really a cry for help, rather than an attempt for personal freedom, arising from the applicant's concerns about the welfare of his wife who had threatened to commit suicide. He had made some attempts earlier in the day to talk to some gaol authorities with a view to having some compassionate latitude extended to him but apparently was unable to talk to them. The escape occurred at a place where the applicant was liable to be seen & was seen & he suffered injuries from the razor wire. Prison warders found him a very short distance from the gaol, walking along the road & he made no further attempt to escape & offered no resistance to them. He acknowledged guilt at the first opportunity.
Aged 46 at time of offence - priors - previously imprisoned.
Special circumstances - appropriate sentences.
Appeal allowed: sentence confirmed - Parole Order made.
193

SMIROLDO, Shane Anthony - CCA, 14.4.2000 - 112 A Crim R 47
Sheller JA, Hulme & Dowd JJ
Citation: R v Smiroldo [2000] NSWCCA 120
Sentence appeal.
Supply prohibited drug (methylamphetamine).
MT 2*y, AT 2y.
On 4 separate occasions, within a 30 day period, the applicant sold a quantity of methylamphetamine to an undercover police officer. Quantities sold were 0.37, 0.49, 0.86 & 26.6 grams for $50, $50, $100 & $900 respectively.
Aged 21 at time of first offence - addicted to cocaine, amphetamines & alcohol since death of his son (aged 6 weeks) - steps taken to change lifestyle.
Priors include BE&S, B&E with intent, goods in custody, stealing, offensive language, driving offences - no previous drug offences - previously imprisoned.
Whether sentence excessive.
Appeal dismissed.
194

SMITH, Timothy Edward - CCA, 10.4.2000
Hulme & Dowd JJ
Citation: R v Smith [2000] NSWCCA 148
Sentence appeal.
Sexual intercourse without consent.
MT 4*y, AT 2*y.
Applicant, who had been drinking heavily, & the victim had been watching a movie together. Victim went to the toilet & on her way back to the lounge, the applicant intercepted her & had sexual intercourse with her without her consent. There were also allegations of other acts of sexual intercourse.
Aged 40 - Aboriginal - problems with alcohol since early age - contrition & remorse.
Priors include sexual assault, possess prohibited weapon, assault, assault police, stealing, false pretences, B&E, fail to leave licensed premises, maliciously inflict GBH, offensive behaviour, resist police, fail to appear, escape, carry offensive implement, intimidation. Previously imprisoned.
De Simoni principle considered.
Appeal allowed in part: sentence confirmed - Parole conditions quashed.
195

SOK, Samantha - CCA, 14.4.2000
Hulme & Dowd JJ
Citation: R v Sok [2000] NSWCCA 121
Sentence appeal.
Robbery in company; + Form 1 matters.
MT 3y, AT 2y.
Applicant armed with a Stanley knife & co-offender armed with a meat cleaver, entered the premises of the 72 year old victim with the object of robbing her. Two children aged 6 & 3* were also in the house. Co-offender put his arm around the victim's neck & held the meat cleaver at her throat. The 6 year old was clinging to her during the attack. The applicant took $200 concealed beneath the victim's clothing. The victim later required resuscitation with oxygen because of her terror.
Aged 21 at time of offence - likelihood of psychological deficiency - expressed remorse - heroin addict - alcoholic & abusive father - in DOCS care since age 12 or 13.
Priors include receiving, trespass, use of prohibited drug. Not previously imprisoned.
Henry considered - Jurisic considered - secondary role.
Appeal dismissed.
196

BURKE, Roslyn Kay - NSW SC, Greg James J, 28.4.2000
Citation: R v Burke [2000] NSWSC 356
Remarks on Sentence:
Murder.
Guilty plea. Plea accepted by the Crown on the basis that at the time of the act causing death, the offender had an intent to cause GBH but that the Crown was unable to discharge the necessary onus to show an intention to kill or a foresight of that consequence.
Intellectual & personality impairment - intoxication - use of knife - tragic life - Aboriginality - special circumstances.
Sentenced to 9y with NPP of 5y.
197

O'CONNOR, Todd Anthony - CCA, 14.4.2000
Priestley JA, Simpson J, Foster AJ
Citation: R v O'Connor [2000] NSWCCA 124
s.5F appeal by the Crown against decision to grant permanent stay.
Drug offences.
Respondent's trial was aborted without any fault on his part or his legal representatives. Crown intended to arraign respondent & a co-accused for a joint trial. Complexities of the trial included the unfitness of one of the police witnesses to give evidence, the use of material from the Police Royal Commission, & voice identification of 250 telephone intercepts. Respondent applied for legal aid but was refused. He sought a stay of proceedings on the basis of the asserted unlikelihood of a conviction or, alternatively, on the basis of the principles discussed in Dietrich (1992) 177 CLR 292. He provided evidence that he was unable to fund legal representation from his own resources. The trial judge found he met the Dietrich indigency test & granted a permanent stay.
On appeal, Crown submitted that evidence of respondent's financial position insufficient to permit conclusion he was unable to fund his own representation. In the alternative, the respondent was entitled to a temporary stay.
Appeal allowed: order for permanent stay quashed - trial to be stayed until legal representation available to respondent or until further order made by the DC.
198

LEVY, Barrie Ronald Bruce - NSW SC, Dowd J, 31.3.2000
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant & deceased had been involved in criminal activity for some time, having been co-offenders in a B&E in 1965 when they stole 77 furs. Both received prison sentences for that offence. Once released from prison, the applicant became involved with another man, Barnhart, in criminal activities. Applicant & Barnhart planned to blow safes & went to the deceased's residence to induce him to join in the enterprise. The deceased agreed to take part. They drove to a site & while outside looking at a building, the applicant knocked the deceased to the ground & then started hitting him with a wrench. Barnhart tried to stop him, but the applicant pointed a pistol at Barnhart & told him to keep out of it. The applicant then proceeded to beat the deceased with a mattock. Barnhart gave evidence that the applicant went "off his head". Barnhart was then told to dig a grave between 2 concrete blocks & both the applicant & Barnhart placed the deceased's body in the grave. Applicant broke the deceased's legs with a mattock to get them to fit in the grave.
Good rehabilitation - undertaken educational studies - employed as a librarian within the prison - assists inmates with legal or procedural problems within the gaol system.
Application allowed: sentenced to MT 30y 10m 20d, AT 5y.
199

ADLER, George - CCA, 8.5.2000
Grove, Hidden & Greg James JJ
Citation: R v Adler [2000] NSWCCA 152
Conviction appeal.
Multiple counts of obtain by deception.
At the commencement of the trial (16 February) appellant was represented by senior & junior counsel & a solicitor. On 2 March, representation ceased. Trial judge ruled that the trial would continue & the appellant conducted his defence without legal representation. The trial lasted 3 months.
Withdrawal of legal representatives - continuance - whether trial unfair - indictment - duplicity - content of charge to jury - sufficiency of evidence on particular count - probative value - unfair prejudice
Appeal dismissed.
200

DALLY, Craig Brookes - CCA, 11.5.2000 - 115 A Crim R 582
Sully J, Carruthers AJ, Smart AJ
Citation: R v Dally [2000] NSWCCA 162
Conviction and sentence appeal.
Manslaughter.
MT 5y 3m 13d, AT 2y (time spent in custody taken into account).
Jury returned verdict of not guilty of murder but guilty of manslaughter.
Appellant & deceased shared a flat, appellant paying deceased for accommodation & food. Both men had a lot to drink on the day of the killing & an argument developed, resulting in deceased telling appellant to get out. Appellant declined unless deceased refunded rent paid in advance. The argument continued, then appellant went into the kitchen & got a long carving knife. Deceased continued haranguing & abusing appellant, then he went over to appellant & started pushing & pulling at him. Appellant stabbed deceased once, the knife going through the coronary sac, aorta & lung. Death estimated to have followed in a couple of minutes. Appellant phoned for an ambulance & the police. Self-defence raised.
Directions - unanimity in respect of manslaughter - intoxication. Sentencing on basis of manslaughter by provocation - sentence unduly harsh & severe.
Jury agreement as to manslaughter does not require basis or variety of manslaughter to be agreed.
Appeal dismissed.
201

CJB - CCA, 5.5.2000
Hulme J, Carruthers AJ
Citation: R v CJB [2000] NSWCCA 161
Sentence appeal.
1 x carnal knowledge - FT 3y.
7 x sexual intercourse with child between 10 & 16 - cumulative MT 4y, AT 3y.
The applicant was the complainant's stepfather. The complainant gave birth to 4 children fathered by the applicant.
Aged 39 at time of sentence - schizoid personality - lack of self-confidence - dependent attributes - antisocial attributes.
Complaint that carnal knowledge count different in name only, not different in type - whether sentence excessive.
Leave to appeal refused.
202

HUTCHISON, Derek John Wayne - CCA, 22.3.2000
Abadee, James JJ
Citation: R v Hutchison [2000] NSWCCA 113
Sentence appeal.
Use offensive weapon with intent to prevent lawful apprehension (a motor vehicle); + offences taken into account (drive in dangerous manner, drive whilst disqualified, possess prohibited drug, dispose of stolen property, obtain property by deception).
MT 2*y, AT 2y; disqualified from driving a MV for 5 years.
Applicant arrested by police after a high-speed chase which covered a distance of approx 120 kilometres & involved the applicant driving in a dangerous manner at high, excessive speeds. At times he drove on the wrong side of the road. He ignored traffic signals, as well as repeated requests from his passenger to stop the car. At one point, the applicant side-swiped a police vehicle.
Applicant appeared for himself at the hearing of the appeal & claimed he agreed to plead guilty only after his counsel & the Crown agreed he would not receive a sentence longer than 18m. He claimed that rather than him directing his vehicle towards the police, 'they were trying to ram me'Claimed he had been treated more severely than similar offenders & asserted he should have received PD or home detention. Whether sentence excessive.
Leave to appeal refused.
203

MASSART, Phyllis - CCA, 1.5.2000
Dunford J, Foster AJA, Smart AJ
Citation: R v Massart [2000] NSWCCA 150
Crown appeal.
2 x supply methylamphetamine; 3 x supply amphetamine.
Five concurrent sentences of MT 1y, AT 3y.
Strong Crown case. Respondent supplied the drugs to a man who then supplied the drugs to an undercover police officer. No evidence that respondent higher in hierarchy of criminal activity than the man.
Priors for goods in custody & receiving. On CSO at time of instant offences.
Schizophrenia or schizo-affective disorder - respondent suffering from delusions & disturbed judgment - tactile hallucinations - exceptional case.
Whether sentences manifestly inadequate.
Appeal dismissed.
204

KIRKWOOD, Rita Rose - NSW SC, Bell J, 3.3.2000
Citation: R v Kirkwood [2000] NSWSC 184
Remarks on Sentence:
Manslaughter.
Pleaded not guilty of murder but guilty of manslaughter in full discharge of the indictment.
Accused & deceased had known one another for 4 to 5 years. They had a sexual relationship although they maintained separate homes. The relationship was a volatile one, with them fighting & arguing over petty things. Both drank substantial quantities of alcohol. During an argument, the deceased took a 12'knife from a kitchen drawer & held it in his hand. The accused took hold of the knife by the blade, then she poked the knife at the deceased's chest & it went in, penetrating the upper lobe of his lung & going into his pericardium. The depth of the wound was 15cm.
Aged 63 - part-Aboriginal - little formal schooling - itinerant lifestyle & loving relationship with parents - married - had 7 children - a number of family deaths over the years, including some of the accused's children - admission to psychiatric hospital for 6 months in 1972. Marriage break-up - dependence on alcohol - formed another relationship - de facto died of cancer.
Sentenced to MT 12m, AT 18m.
205

CARROLL, Lee Dean - NSW SC, Greg James J, 19.5.2000
Citation: R v Carroll [2000] NSWSC 410
Remarks on Sentence:
Indicted for murder, but pleaded guilty to manslaughter on basis of diminished responsibility. Two other offences were taken into account (assault & possess shortened firearm).
Accused, carrying a green cloth bag containing a loaded shotgun, went to visit a woman in a unit. When told by flatmate that she wasn't there, he sat in the lounge room. Another man present at the time & sitting in the lounge room, asked the accused what his name was. The accused took exception to this & removed the shortened shotgun from the bag & shot the man in the throat & upper chest. He then told the female to lie on the floor or he would shoot her as well. The deceased subsequently died in hospital.
Aged 25 at time of sentence - Aboriginal - long history of depression - alcohol & drug abuse - family considered committing him to a mental hospital - suicidal - youngest of 11 children - limited education - family has tragic history involving mental illness - epileptic - history of severe self-mutilation - borderline personality disorder - prone to violence - special circumstances.
Sentenced to 12y with NPP of 7*y.
206

K - CCA, 18.5.2000
Mason P, Heydon JA, Smart AJ
Citation: R v K [2000] NSWCCA 200
Sentence appeal.
Import trafficable quantity heroin.
7y with NPP of 4y.
Applicant arrived in Sydney by plane from Indonesia, with 999.5 grams heroin mixture concealed at the bottom of his briefcase - purity 72.1%, net weight 720.6 grams pure heroin, estimated street value $1 million - $1.5 million.
Assisted authorities with controlled delivery. Guilty plea.
Born in 1974 - family moved to France - parents separated when applicant was 8 - his mother became ill with AIDS when he was 12 & died when he was 17. Father had moved to Brussels & remarried & had a 3 year old son. Three days prior to the death of the mother, the father collected the applicant & his brother & took him to live with them. Applicant got on with his stepmother & stepbrother, but felt he did not belong in that family setting.
No sense of belonging anywhere - few emotional attachments of any significance - little insight - emotionally under-developed - no priors in Australia.
Whether sentence excessive.
Appeal allowed: resentenced to 5y with NPP of 3y.
207

MM - CCA, 24.5.2000 - 112 A Crim R 519
Powell JA, Hulme & Dowd JJ
Citation: R v MM [2000] NSWCCA 78
Conviction appeal.
14 x sexual assault offences, including assault & commit act of indecency, buggery, sexual intercourse, incite to commit act of indecency, AOABH.
Aggregate MT 6y, AT 2y.
All offences were alleged to have been committed against the appellant's son, who was aged above 10 & under 16 at the time of such offences.
Complainant accused of fabricating evidence & cross-examined to demonstrate motive. Accused not cross-examined to demonstrate absence of motive. What, if any, direction to jury called for or permissible.
Relationship evidence - tendency evidence - similar facts - admissibility - prior sexual acts between complainant & accused - directions.
Appeal allowed: new trial ordered.
208

KEIR, Thomas Andrew - NSW SC, Adams J, 29.2.2000
Citation: R v Keir [2000] NSWSC 111
Remarks on Sentence:
Murder.
Deceased was married to the accused. Accused became extremely possessive of his wife & jealous of her relationships, not only with other male friends or acquaintances but also with male members of her own family. Evidence that from time to time, the accused threatened to kill her if she ever left him for another man.
Intent to cause GBH - gravity of 'domestic'murder - use of Victim Impact Statement.
Sentenced to: MT 18y, AT 6y.
209

CAMPBELL, Brendan Bernard - CCA, 1.5.2000
Hulme J, Carruthers AJ
Citation: R v Campbell [2000] NSWCCA 154
Sentence appeal.
Multiple offences including obtain money by false or misleading statements, use false instrument, BE&S, receiving; + matters on a Form 1.
Aggregate MT 4*y, AT 1*y.
Applicant opened a bank account in a false name using a number of false documents, then he applied for a merchant facility & was granted one. He drew 9 cheques & cashed 6 of them. The total amount fraudulently withdrawn was $95,487.10. Applicant also stole property valued at $15,000 from a residence. He bought a TV set, stereo, walkman & printer from a man who had left some other property at his unit which the applicant believed to be stolen.
Aged 30 at time of offences - early guilty plea - assisted police fully - drug addiction - alcohol abuse - history of hypomania. Priors for assault, malicious injury, BE&S, stealing, AOABH, unlawful entry, malicious wounding, resist arrest - appalling record for dishonesty offences -. Previous imprisonment.
Alleged failure to allow discount for assistance to authorities - sentence allegedly manifestly excessive - special circumstances.
Appeal allowed to adjust sentence to comply with Pearce - overall sentence not disturbed.
210

SMITH, Henry William - CCA, 1.5.2000 - 114 A Crim R 8
Dunford J, Foster AJA, Smart AJ
Citation: R v Smith [2000] NSWCCA 140
Crown appeal.
5 x fraudulently omit to account; + further 14 similar offences taken into account on a Form 1.
Counts 1,2,4&5 - FT 3y.
Count 3 + matters on Form 1 - MT 3y, AT 2y.
Over a period of 3 years, respondent (a solicitor) received money from several clients for the purpose of investing it on registered first mortgages. Instead of using the money for this purpose, he used it to finance his practice, make 'interest'payments to other clients & to cover general living expenses. He prepared false mortgages, certificates of title & epitomes of mortgage to complete the deception. His practising certificate was suspended in Queensland for similar activity. He relocated to NSW & continued the frauds. When his practising certificate was suspended in NSW, he used another solicitor's practising certificate to commit similar frauds.
Aged early 50s - early plea - co-operated with police - devoted family man - depressive illness - unlikely to re-offend - no priors.
Whether sentences manifestly inadequate.
Appeal allowed on count 3: sentence increased to 6*y with NPP of 4*y.
211

PLAYER, Adam - CCA, 12.4.2000
Priestley JA, Foster AJ, Smart AJ
Citation: R v Player [2000] NSWCCA 123
Stated case concerning admissibility of certain evidence tendered by Crown in a prosecution case.
The charges resulted from a drunken aggressive & destructive rampage in the early hours of a Saturday morning. Later events closely related in time & place to alleged offence. Not propensity evidence but admissible as going to appellant's state of mind.
Question in stated case:
'Did I err in law in admitting evidence of the appellant kicking over two rubbish bins and attacking a 'for sale'sign, either by way of karate chop, kick or both as referred to in paragraph 1 of the case?'
Answer: 'No'.
212

ZONEFF v THE QUEEN - HC, 25.5.2000 - 200 CLR 234;74 ALJR 895
Correctness of a direction given by a judge of the DC of SA in a criminal trial with respect to evidence of the appellant in his trial which the jury could have inferred to be false.
Directions to jury - lies by defendant - whether going to credibility or indicating guilt - comments by trial judge raising consciousness of guilt - proviso - circumstances for application in strong Crown case.
Appeal allowed: convictions on counts 2-7 quashed, retrial ordered.
213

EASTMAN v THE QUEEN - HC, 25.5.2000 - 203 CLR 1;74 ALJR 915
Constitutional law - appellate jurisdiction of HC - appeal from FC - whether HC has power to receive new evidence in an appeal from FC - whether power to receive new evidence is different in appeals from Federal & State courts - interpretation - relevance of historical background to Constitution.
Fitness to plead - issues not raised at trial - fundamental failure of trial process. Whether material before appeal court suggested trial judge erred in failing to raise issue as to applicant's fitness to plead.
Appeal dismissed.
214

NAUDIN, Eric - NSW SC, Dowd J, 4.2.2000
Citation: R v Naudin [2000] NSWSC 18
Remarks on Sentence:
Manslaughter.
Accused pleaded not guilty to murder but guilty to manslaughter by unlawful & dangerous act.
Both the deceased & the accused, who were friends & who were both chefs, had been drinking wine since 9.00 am the previous morning. At about 1.00 am on the day of the killing, an argument broke out between the 2 men concerning a game of cards they were playing. The deceased evidently then took one of his chef's knives & held it close to the prisoner's face, whereupon the prisoner asked him to put the knife down. The deceased continued to hold the knife, touching the point with his thumb & abusing the accused. The accused said he managed to take the knife away from the deceased then he 'put it into him'An ambulance was called & the deceased was taken to hospital, however, he died at 2.20 am.
Frank & open admissions - endeavoured to assist deceased - untreated psychotic illness - alcohol abuse - several admissions to detoxification centres - high average intelligence - social judgement affected by persecutory beliefs.
Sentenced to: MT 3y, AT 3y.
215

SAXON, Ian Hall - CCA, 14.7.2000
Meagher JA, Grove & Bergin JJ
Citation: R v Saxon [2000] NSWCCA 268
Sentence appeal. Escape from lawful custody.
Whether error in finding escape was well planned; whether insufficient weight given to assistance.
Appeal dismissed.
216

WATKINS, Tracey Narelle - CCA, 3.5.2000
Dunford J, Foster AJA, Smart AJ
Citation: R v Watkins [2000] NSWCCA 151
Crown appeal
Count 1: Knowingly take part in manufacture large commercial qty methylamphetamine - 3y GBB;
Count 2: Knowingly take part in supply of commercial quantity ecstasy - MT 6m, AT 12m.
Respondent part of the Kalache organisation. Police investigation involving monitored telephone calls & captured listening device conversations, as well as physical & video surveillance, & forensic chemistry provided evidence of respondent's part in offences. Respondent pleaded guilty at earliest opportunity, however, asserted she only had a minor role in the commission of the offences & there were significant subjective factors to be taken into account. There was a dispute as to her level of involvement, resulting in the trial judge receiving evidence & making findings.
Aged 30 at time of sentence - deeply entrenched in the criminal element - ability and/or willingness to extricate herself in doubt - sees herself as a 'victim'- priors for stealing, larceny, possess prohibited drug, goods in custody - not previously imprisoned.
Appeal allowed: 1st count: resentenced to MT 1y, AT 18m; 2nd count: sentence varied to a FT of 6m.
217

TULLOH, Mark Andrew - CCA, 3.5.2000
TAYLOR, Karen Lee
Hulme J, Carruthers AJ
Citation: R v Tulloh & Taylor [2000] NSWCCA 179
Sentence appeals.
Tulloh: Supply heroin; knowingly take part in supply of heroin - MT 2y 9m, AT 11m.
Taylor: Supply heroin; knowingly take part in supply of heroin - MT 2y 9m, AT 11m;
conspire to defraud Australian Postal Corporation - 3y GBB.
Guilty pleas. Both heroin addicts. They followed a practice of placing coded telephone calls to a George Scripcariu, ordering various amounts of heroin, driving from Goulburn to Sydney on a daily basis where an exchange of money & heroin would take place & then going back to Goulburn & selling the heroin from their residence to persons who would call in to purchase it - they had approx 10 sales per day. During the period covering 1st charge, about $18,150 was paid to Scripcariu, estimated weight of heroin between 60 & 90 grams. 2nd charge involved making arrangements with person named Bourke to purchase * ounce heroin for $4,000 on behalf of a 4th person, Swan, who was flying to Brisbane; attendance at Sydney & purchasing that heroin from Scripcariu then passing it over to Swan. The 3rd charge against Taylor involved her obtaining Australian Post money orders in amounts of $10, fraudulently altering the amounts to $710 or $810 & cashing them. In total, she obtained approx $2,300 which was used to purchase heroin.
Whether sentences excessive.
Appeals dismissed.
218

RYAN, Kevin Sean - CCA, 9.5.2000
Spigelman CJ, James & Ireland JJ
Citation: R v Ryan [2000] NSWCCA 184
s.5F appeal.
Demand money with menaces.
Whether permanent stay of proceedings available due to delay of trial. Reluctance of Court on appeal to interfere with exercise of trial judge's discretion to refuse stay.
Appeal dismissed.
219

RLS - CCA, 1.5.2000
Hulme J, Carruthers AJ
Citation: R v RLS [2000] NSWCCA 175
Sentence appeal.
3 x armed robbery (twice with .22 calibre shortened rifle, once with knife); 1 x assault with intent to rob whilst armed with a knife; + 13 offences on a Form 1 (4 x armed rob, 2 x larceny of MV, 1 x larceny from a MV, escape lawful custody). During the course of the escape on the Form 1, applicant committed 2 further offences (AOABH, maliciously inflict GBH).
Aggregate MT 4*y, AT 4*y. Sentencing judge ordered that until expiration of MT, the sentences be served in a detention centre.
Aged 16 at time of offences - long criminal record - previously subjected to control orders resulting in him being in custody for 9 months - became addicted to alcohol at age 12 & to heroin at age 14*.
Recent significant efforts at rehabilitation - completed a bricklaying course - participating in painting & decorating course - actively sought drug, alcohol & psychological counselling - supportive parents & family.
Failure to adequately take subjective features into account - whether sentence excessive.
Appeal dismissed.
220

OSBORNE, Leonard Rappley - CCA, 1.5.2000
Hulme J, Carruthers AJ
Citation: R v Osborne [2000] NSWCCA 158
Application to set aside summary dismissal of application for leave to appeal against sentence.
2 x BE&S; maliciously damage property by fire or explosives; steal MV; + 25 offences on a Form 1; + 1 other offence on a 2nd Form 1.
Aggregate MT 4y, AT 16m.
During episode of above criminal conduct, applicant was twice granted bail & on each occasion committed further offences.
Very bad record - criminal career commenced when he was 17 - thereafter continuously before the courts - drug addiction - 'exemplary'efforts at rehabilitation whilst in prison.
Whether failure to set aside could or would lead to a miscarriage of justice.
Application refused.
221

MURRAY, Eric Leonard - CCA, 3.5.2000
Hulme J, Carruthers AJ.
Citation: R v Murray [2000] NSWCCA 159
Sentence appeal.
Receiving.
Aggregate MT 3y, AT 18m.
Guilty plea.
Police executed a search warrant as a result of information obtained from telephone intercepts between applicant & another. They located a blue plastic bag containing items of jewellery & jewellery pouches. Following the execution of a 2nd search warrant, police found other items.
Aged 68 - prior criminal record - dysfunctional family - received little formal education or training - some time spent employed as bell boy, barman, ship's steward & employed on the wharves - employment intermittent in recent years - married to same wife for 45 years.
Poor health - severe head injury at an early age requiring restorative surgery - diminished cognitive skills which may be due to head injury, meningitis - suffered heart attack 4 years ago - suffers from circulatory & gastrointestinal disease with periods of internal bleeding - occlusion of carotid artery.
Relevance of fact that matters could have been dealt with in the LC.
Appeal dismissed.
222

LONDON, Darren Robert - CCA, 5.5.2000
Hulme J, Carruthers AJ
Citation: R v London [2000] NSWCCA 165
Sentence appeal.
Armed robbery; armed robbery with wounding; + Form 1 containing 22 offences, many of them violent.
Aggregate MT 12y, AT 4y.
Applicant entered second-hand dealer's shop, produced a gun & demanded money. Shop owner said there was none & opened the till to show him. Applicant made more demands & received same response. He threatened to shoot shop owner in the leg, then the head & to kill him. He shot the shop owner in the leg then ran from the shop.
Applicant, armed with a gun, bailed up employees in a hotel & demanded that they open the safe. He shot an employee, who was opening the safe, in the arm.
Aged 26 at time of first subject offence - thrown out of home at 14 due to misbehaviour - lived on streets for a number of years - drinking problem - drug user - severely clinically depressed - showing insight into past behaviour - priors - previously imprisoned.
Subjective circumstances - objective circumstances - R v Morgan, R v Pearce & R v Henry considered.
Leave to appeal refused.
223

MITCHELL, Gary Thomas - CCA, 26.5.2000
Spigelman CJ, James & Sperling JJ
Citation: R v Mitchell [2000] NSWCCA 188
Conviction appeal.
1 x sexual intercourse without consent.
The issue at trial was whether the complainant had consented to sexual intercourse. She said she did not, while the appellant said she did. The jury accepted the complainant's evidence. The question on appeal was whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent.
Whether verdict unreasonable - whether misdirection - relationship - guilty passion - no question of principle.
Appeal dismissed.
224

CARRION, Roy - CCA, 26.5.2000 - 49 NSWLR 149; 113 A Crim R 39
Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ
Citation: R v Carrion [2000] NSWCCA 191
Crown appeal.
Knowingly take part in supply of ecstasy; knowingly take part in supply of cannabis leaf.
3y PD on each count.
Police surveillance, including use of listening devices directed at a flat occupied by Leslie Kalache. Respondent & his brother visited the flat on 10 occasions in less than a month. On one occasion when the respondent visited alone, conversations were recorded. Evidence that respondent involved in selling drugs. Sentencing judge found that respondent & his brother had both spent lengthy periods in gaol; respondent under the influence of his brother; fears of security in gaol arising out of a belief of a fate similar to that of his brother who was murdered after his return to prison; taped evidence from listening device that respondent did not want to become involved; Kalache had preyed upon respondent's brother with intention of recruiting him & this in turn drew the respondent into them.
Guilty plea - remorse - proven rehabilitation in relation to drug use demonstrated by series of clear urine tests.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to concurrent 3y with NPP of 2y 3m.
225

UNG, Heeng - CCA, 29.5.2000 - 112 A Crim R 344
Smart AJ, Ireland & Hulme JJ
Citation: R v Ung [2000] NSWCCA 195
Conviction and sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
16*y, with NPP of 11y.
800 boxes of tins of canned pineapple were imported into Australia. Seven boxes contained 78.073 kgs heroin (pure form 54.504 kgs) concealed in the tins. Wholesale value in Australia $14.5 million, street value $110 million. Federal police arranged a controlled delivery, with a Federal Agent posing as the truck driver's assistant. Evidence was obtained from a listening device in one of the boxes & by a camera/microphone concealed under the truck. At trial, the Crown tendered an edited videotape which was admitted into evidence.
Admissibility of evidence of knowledge of appellant & co-offender - statements made out of court - whether hearsay - purpose for which evidence admitted - circumstantial evidence directions - directions as to use of co-offender's evidence - no request for warning.
Appeal dismissed.
226

MANLEY, Jonathon Harold - CCA 26.5.2000 - 49 NSWLR 203; 112 A Crim R 570
Wood CJ at CL, Sully & Simpson JJ
Citation: R v Manley [2000] NSWCCA 196
Application for an order for costs pursuant to s.2 Costs in Criminal Cases Act 1967 (NSW ).
Applicant was convicted of murdering his infant son & received a substantial term of penal servitude.
Whether present Bench of the CCA has jurisdiction to grant the application - whether, if such jurisdiction exists, it should be exercised in favour of the applicant.
Pursuant to Supreme Court Rules part 52A r5, the Court may 'exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings'Those rules do not apply to the Court in the exercise of its criminal jurisdiction (SCR Pt75 r2 and s.17 Supreme Court Act) or to the Court of Criminal Appeal. No comparable provision exists in the Criminal Appeal Rules. Question of interpretation not free from doubt - legislation unclear - may not have given effect to intention expressed.
Statutory provisions set out & relevant principles discussed.
Certificate granted (by majority). By reason of s.17 of the Court of Criminal Appeal Act, no costs can be awarded in relation to the appeal or in relation to this application.
See also: R v Johnston [2000] NSWCCA 197.
227

JOHNSTON, Bernard Lawrence - CCA, 26.5.2000
Wood CJ at CL, Sully & Simpson JJ
Citation: R v Johnston [2000] NSWCCA 197
Application for an order for costs pursuant to s.2 Costs in Criminal Cases Act 1967 (NSW ).
Applicant was convicted of 3 x sexual intercourse without consent in circumstances of aggravation. He appealed against those convictions, the appeal was upheld, & a verdict & judgment of acquittal was entered.
Whether present Bench of the CCA has jurisdiction to grant the application - whether, if such jurisdiction exists, it should be exercised in favour of the applicant.
Application refused.
See also: R v Manley [2000] NSWCCA 196
228

JONES, Leslie Carl - CCA, 23.5.2000
JONES, Leslie Shane
Spigelman CJ, Hulme J, Carruthers AJ
Citation: R v Jones & Jones [2000] NSWCCA 186
Conviction appeal.
Conspire to supply prohibited drug (cannabis leaf).
Leslie Carl Jones: MT 2y 348d, AT 358d;
Leslie Shane Jones: MT 3y 341d, AT 15m 23d.
Crown case wholly circumstantial - the conspiracy to be inferred primarily from evidence of duly authorised intercepted telephone conversations involving the alleged conspirators.
Evidence incapable of establishing conspiracy alleged by Crown - trial judge's directions as to elements of offence inadequate & misleading - failure to warn jury not to speculate about evidence - failure to specify scope of conspiracy that had to be proved - failure to discharge jury after Crown prosecutor, in his closing address, made a submission that the accused would have been expected to call 2 co-offenders, that their failure to do so was unexplained & therefore the jury could infer that any evidence from them could not assist the case.
Sufficiency of evidence of agreement as distinct from expectation - failure to call witness.
Appeal allowed: convictions and sentences quashed.
229

RICHMOND, Paul Stephen - CCA, 3.5.2000
Dunford J, Foster AJA, Smart AJ
Citation: R v Richmond [2000] NSWCCA 173
Crown appeal.
Hindering investigation.
300 hours CSO.
Respondent was a passenger in a BMW which went through a red light & collided with a minibus. The BMW was travelling at a speed in excess of 60-70 kph. The driver of the minibus was killed & another occupant seriously injured. The driver of the BMW left the scene. The respondent was wedged in the car & had to be removed. He was in hospital for 5 days, suffering from fractured ribs & bruising. At the scene, he stated he was the driver & asserted the light was green & he was driving very slowly. When questioned by police, he maintained this story. Two years later, he forwarded a statement to police indicating the real name of the driver. He said he had lied in order to conceal from his wife a sexual relationship with the driver of the vehicle.
Aged 36 at time of offence - suffering depression - lost his business - now employed in responsible position & doing well - priors for driving under the influence - not previously imprisoned.
Appeal dismissed.
230

WOOD, Martin - CCA, 3.5.2000
Hulme J, Carruthers AJ
Citation: R v Wood [2000] NSWCCA 155
Sentence appeal.
Robbery in company (3y PD). PD order later cancelled & unexpired portion ordered to be served as custodial sentence of MT 17m, AT 10m 3w.
Applicant (an employee of a service station) & co-offender robbed an employee of $21,620, being the property of the service station owner. Co-offender was armed with a long knife & applicant was aware of this fact. Co-offender used the knife to terrify & subdue the employee who was tied to the door handle of a room in the service station. Applicant used his knowledge of the security system to remove money from a safe.
Aged 24 at time of offence - alcohol & drug addiction - supportive family - assistance to authorities - remorse - contrition - impressive attempts at rehabilitation - priors for steal from the person, carry cutting weapon, stealing - prior PD.
Special circumstances.
Appeal allowed: sentence restructured to MT 17m, AT 10m 3w PD.
231

CLARKE, Jade Lillian - CCA, 5.5.2000
Hulme J, Carruthers AJ
Citation: R v Clarke [2000] NSWCCA 160
Sentence appeal.
1 x robbery in company; + 2 offences on a Form 1 taken into account (armed with intent to commit indictable offence, larceny).
MT 3y, AT 2y.
Applicant & another, who was armed with a knife, entered a service station shortly after 1.00 am & confronted an employee who was working alone. Co-offender pushed the man in the back, causing him to fall against a display cabinet, then placed the blade of the knife against the man's throat & threatened to cut him if he didn't open the cash register drawer. The employee refused. Applicant reached over the counter & removed cash stored underneath the counter then she attempted to open the register. The co-offender continued to threaten the employee until he opened the register & the applicant removed all the notes from the till, then ran from the store.
Aged 18 at time of offence - co-operated with authorities - early guilty plea - pregnant - drug addiction - excellent prospect of rehabilitation - no priors.
Alleged failure by sentencing judge to achieve parity of sentence between co-offenders - appellant pregnant at time of sentence.
Appeal dismissed.
232

MASON, Daniel - CCA, 29.5.2000
Sully & Adams JJ
Citation: R v Mason [2000] NSWCCA 207
Sentence appeal.
1 x aggravated assault with intent to rob.
MT 4y, AT 1y 4m.
Applicant on parole at time of subject offence which occurred 3 days after his release from prison after serving a sentence for maliciously inflicting ABH with intent to have sexual intercourse. He was staying at Somersby House at the time. He asked a carer (a 58 year old woman) to make some sandwiches for him. She did this & took them to his room & gave them to the applicant. As she turned to walk back to the dining room, he asked her where the billiard cues were kept & she walked with him to the pool room & pointed to the cues standing against a wall. After further conversation, the applicant grabbed the carer in a headlock, with his hand over her mouth & dragged her towards the toilet. The carer struggled to free herself & the applicant punched her in the mouth & her left eye, then he locked her in a toilet. Some time later another carer arrived & released the victim.
Totality - special circumstances - application & substance of R v Henry (1999) 46 NSWLR 345.
Appeal allowed: resentenced to MT 3y, AT 2y 4m.
233

WALKER, Michael Shand - CCA, 23.3.2000
Spigelman CJ, Ireland & Simpson JJ
Citation: R v Walker [2000] NSWCCA 130
Conviction appeal.
Murder.
MT 14y, AT 5y.
Appellant got into a taxi & asked female driver to take him to a number of destinations. At one stage she activated an alarm indicating that she felt under threat, then she drove towards the nearest police station. The appellant aimed a gun, concealed by a towel, at her back & discharged the gun, killing the taxi driver. He then attempted to drive the taxi away but was unsuccessful & was caught by police.
Whether error in allowing certain evidence of a police informer into evidence - verdict of guilty of murder unreasonable.
Appeal dismissed.
234

BARRY, Dale Wesley - CCA, 13.4.2000
Stein JA, Dunford & Sperling JJ
Citation: R v Barry [2000] NSWCCA 138
Sentence appeal.
Murder - MT 18y, AT 6y; malicious wounding - concurrent FT 12y.
Applicant & victim married but separated. Violent relationship. On day of killing, applicant, who had been drinking, entered the family home & he & the victim argued. Applicant told the victim to lie on the floor, then he stabbed her at least 4 times & beat her around the face with a padded stool. He then stabbed his step-daughter in the upper abdomen, the wound penetrating some 6-7 cm into her hepatic artery & portal vein.
Aged 39 at time of offences - abnormality of mind - depression - mood & personality disorders - alcoholism - violent childhood - excellent work record - contrition. Priors include 3 assaults - previous recognizance, CSO, AVOs.
Totality - delay.
Appeal dismissed.
235

HOON, Jade Elizabeth - CCA, 19.4.2000
POUOA, Aigailetai
Stein JA, Dunford & Simpson JJ
Citation: R v Hoon & Pouoa [2000] NSWCCA 137
Crown appeal.
Hoon: supply prohibited drug on 3 or more occasions within 30 days - MT 8m, AT 6m.
19 at offence - heroin addiction - link between addiction & offence - age & addiction made her vulnerable - parents separated when she was 3 - assaulted by stepfather - slight chance of rehabilitation - assistance to police - priors - not previously imprisoned.
Pouoa: supply prohibited drug on 3 or more occasions within 30 days - MT 8m, AT 6m.
18 at offence - heroin addiction - reason for participation - age & addiction made her vulnerable - good rehabilitation prospects - admissions - raised in hardship - priors - not previously imprisoned.
Hoon sold 0.25 grams heroin to undercover police officer for $80. Pouoa sold balloon cap of heroin to undercover police officer for $80 on 3 separate occasions. Both offenders supplied drugs on daily basis.
General deterrence - double jeopardy - parity.
Appeal dismissed.
236

HANSELL, Jerry Leslie - CCA, 14.4.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Hansell [2000] NSWCCA 141
Conviction and sentence appeal.
Armed robbery.
MT 4*y, AT 1*y.
In car park, appellant approached 2 women putting shopping into their car. Threatened to stab one woman in the stomach unless she gave him her handbag. She took off her backpack, he picked it up, then approached the other woman who was sitting inside the car with her legs outside the car & made the same threat. She refused, he cut the straps, took it, then he drove off.
Aged 32 at offence - suffered severe emotional disturbance with death of his son - depression - involved in charity work - disability from back condition - no contrition - poor record - priors for dishonesty, stealing, drugs, assault, malicious injury, possess offensive weapon, drive manner dangerous, etc - previous imprisonment.
Identification evidence not sufficient to be satisfied of appellant's guilt beyond reasonable doubt - R v Henry distinguished - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 5y with NPP of 3y 9m.
237

GEOGHEGAN, Margaret - CCA, 21.2.2000
Hidden J, Carruthers AJ
Citation: R v Geoghegan [2000] NSWCCA 93 revised - 12/05/2000
Sentence appeal.
Armed robbery; + Form 1 offences (demand money with menaces, larceny).
MT 2y, AT 2y.
No facts provided.
Aged 32 - severe anaemia - priors for 9 x larceny, drive whilst cancelled - not previously imprisoned.
Fresh evidence - physical illness - imprisonment more burdensome.
Appeal allowed: sentence restructured to MT 21m, AT 2y 3m.
238

STEENSON, Robin John - CCA, 5.5.2000
Stein JA, Dunford & Simpson JJ
Citation: R v Steenson [2000] NSWCCA 143
Conviction appeal.
2 x sexual intercourse without consent.
The jury returned verdicts of not guilty on the 1st count & guilty on the 2nd Count.
FT 12m.
Appellant & complainant had been living together in de facto relationship characterised by verbal abuse & physical violence. He awakened her one evening & penetrated her vaginally with his penis whilst she indicated her lack of consent. Following this he inserted his penis into her anus. She suffered bruising to her body & a discharge of blood & mucus from her anus.
Verdicts inconsistent - verdict of guilty unreasonable.
Jones (1997) 191 CLR 439 distinguished.
Appeal dismissed.
239

KENNY, Ryan - CCA, 23.2.2000
Hidden J, Carruthers AJ
Citation: R v Kenny [2000] NSWCCA 92
Sentence appeal.
Supply prohibited drug (methylamphetamines); + Form 1 offence related to principal offence.
MT 12m, AT 12m.
No details of case given. Aged 24 - admitted having dealt in drugs - drug abuse - role of user/dealer - stable de facto relationship - good work record - special circumstances - no priors.
Appeal allowed: resentenced to MT 6m, AT 12m.
240

DESBOROUGH, Rodney - CCA, 1.5.2000
Hulme J, Carruthers AJ.
Citation: R v Desborough [2000] NSWCCA 170 revised - 17/05/2000
Sentence appeal.
1 x sexual intercourse with person between age of 10 & 16; aggravated indecent assault.
Aggregate MT 1*y, AT 1y 9m.
Applicant intoxicated & sitting in bed watching TV. His daughter came into the room & they started to tickle each other. Applicant pulled daughter's undies off & performed cunnilingus on her, then took his underpants off & placed his penis adjacent to her vagina. Both agreed what he did was wrong & replaced their clothes. Applicant called his wife & confessed, then put the daughter on the phone to talk to her mother. Applicant later called the Child Abuse Prevention Centre & told them of the incident.
Aged 40 at offence - daughter 11 - admissions to police - early guilty plea - genuine contrition & remorse - alcohol a substantial factor - abuse of trust - immediately desisted - no priors.
Whether too much weight given to general deterrence.
Appeal allowed: resentenced to FT 12m, Court declining to set NPP.
241

BURKE, Roslyn Kay - NSW SC, Greg James J, 28.4.2000
Citation: R v Burke [2000] NSWSC 356
Remarks on Sentence:
Murder.
Guilty plea. Plea accepted by the Crown on the basis that at the time of the act causing death, the offender had an intent to cause GBH but that the Crown was unable to discharge the necessary onus to show an intention to kill or a foresight of that consequence.
Intellectual & personality impairment - intoxication - use of knife - tragic life - Aboriginality - special circumstances.
Sentenced to 9y with NPP of 5y.
242

JANS, Gunter Detlef - NSW SC, Michael Grove J, 14.6.2000
Remarks on Sentence:
Manslaughter.
Partial defence of diminished responsibility. Guilty plea.
Accused stabbed his wife with a kitchen knife. He reported the killing & made reference to the location of his car near Sydney University (where he worked on the maintenance staff). When police arrived there, they found the accused on the roof of the 12 storey Fisher Library, his behaviour considerably distressed. He was coaxed down & arrested.
Accused was subjected to taunts & accusations by his wife over an extended period. She had had a mastectomy & chemo therapy for cancer & her family thought her odd behaviour was associated with this. Eldest son, a professional nurse, spoke to a number of people about her behaviour & suggestions were made of the development of paranoid schizophrenic tendencies. There was evidence that the victim's father had Huntington's Chorea & her mother a significant psychiatric condition. Highly likely that at the time of death, the victim was suffering from Huntington's Chorea, which is genetic in origin & associated with a single autosomal dominant gene with virtually 100% rate of manifestation.
Aged 55 - likelihood of re-offending remote - support from 3 sons.
Sentenced to 4y GBB.
243

TOWERS, Kevin Walter - NSW SC, Michael Grove J,18.5.2000
Citation: R v Towers [2000] NSWSC 420
Remarks on Sentence:
Malicious wounding.
The original charge of murder was abandoned.
The wounding occurred during an extended binge drinking. Accused assaulted the victim with broken glass as a consequence of the victim allegedly making sexual advances on a female.
Guilty plea - alcohol & drug addiction - low intelligence.
Sentenced to: 3y GBB.
244

GALEA, Raymond - NSW SC, Michael Grove J, 12.4.2000
YEO, Keng Kwee
Citation: R v Galea & Yeo [2000] NSWSC 301
Remarks on Sentence:
Yeo: murder.
Galea: accessory after the fact to murder.
Galea did not participate in the actual commission of the murder. His culpability arose from his knowledge that Yeo had committed the murder and, with that knowledge, acted with the intention of assisting her to escape detection or prosecution. Yeo & Galea had been in a de facto relationship. However, Yeo left Galea & entered into a sexual relationship with the victim while working as a nurse in a psychiatric hospital. The victim was a patient in that hospital. Yeo obtained a pistol from Galea & shot the victim in the head & neck, killing him. She confessed the killing to Galea & both Yeo and Galea dismembered the body for disposal.
Yeo: sentenced to 24y with NPP of 18y.
Galea: 8y with NPP of 6y.
245

ESPOSITO, Guiseppina - NSW SC, Dunford J, 23.3.2000
Citation: R v Esposito [2000] NSWSC 284
Remarks on Sentence:
Manslaughter.
Originally indicted for murder. At arraignment, accused pleaded not guilty to murder but guilty to manslaughter. That arraignment followed an earlier trial where the jury found the accused guilty of murder but the CCA allowed her appeal & ordered a new trial.
The killing occurred as a result of the accused stabbing a man in the street. The accused was in the company of 2 males at the time. The 2 males left the scene after the killing. The accused later sold 2 gold rings apparently belonging to the deceased & used the money to buy heroin.
Aged 34 - guilty plea - priors - drug problems.
Computer skills acquired whilst on remand awaiting trial - multi-drug dependency - somewhat less than successful attempts at rehabilitation - needs significant period of conditional liberty with close supervision - special circumstances.
Sentenced to MT 8y, AT 4y.
246

McGRATH, Andrew Mark - NSW SC, Michael Grove J, 18.5.2000
Citation: R v McGrath [2000] NSWSC 419
Remarks on Sentence:
Murder.
This was a revenge killing. Accused suffocated the victim with a wet towel. The victim was the accused's former girlfriend's partner. The accused was the natural father of his former girlfriend's 2 children. The children referred to the victim as father. The victim sexually assaulted the children.
Sentenced to: 18y with NPP of 13y.
247

DUNN, Robert Joseph - CCA, 15.5.2000
Sully J, Foster AJA, Carruthers AJ.
Citation: R v Dunn [2000] NSWCCA 171
s.5F appeal.
Multiple charges of paedophilia. The police raided the home of the accused 13 years ago & confiscated videos showing accused in sexual acts with teenage boys. The accused paid police officers $40,000 to recover the videos. The accused was given indemnity when corrupt police were investigated.
Whether indemnity extended to acts of paedophilia recorded in videos.
Indemnity from prosecution - Application to strike out charges.
Appeal dismissed: indemnity related to act of bribery, not paedophilia.
248

DANN, Nicholas Trevor - CCA, 19.5.2000
Spigelman CJ, Heydon JA, James J.
Citation: R v Dann [2000] NSWCCA 185
Conviction appeal.
2 x homosexual intercourse with 7 year old stepson (fellatio, anal intercourse)
The victim was the appellant's step-son & was aged 17 at time of offences. Stepson performed fellatio upon accused. Accused had anal intercourse with step-son. All events took place in the family home.
Expert evidence should have been rejected - evidence of uncharged conduct inadmissible and/or should have been excluded - failure to direct jury regarding unreliability of complainant.
Appeal allowed: new trial ordered.
249

GOFF, Craig Leslie - CCA, 11.5.2000 - 112 A Crim R 485
Grove, Ireland & Adams JJ
Citation: R v Goff [2000] NSWCCA 194
Conviction appeal:
1st indictment: Manslaughter; + 2 offences taken into account (AOABH, BE&S).
Appellant & another asked victim to leave their home & a fight ensued. The fight continued outside the house. Appellant last saw victim walking down driveway. Cause of death found to be bleeding into the abdomen. Victim also suffered multiple rib fractures.
MT 6*y, AT 5*y.
Sentence appeal:
2nd indictment: AOABH; assault; possess shortened firearm.
Fixed terms subsumed by sentences in 1st indictment.
Appellant joined in an argument between 2 couples. He approached one man & punched him. The man retaliated by hitting & kicking him. Appellant produced a rifle & pointed it at the man, threatening to shoot him, then hit the man on the head & shoulders with the butt of the rifle. He also threatened bystanders with the rifle. The rifle was not loaded.
Aged 31 - guilty plea - multiple priors - previously imprisoned.
Failure to direct jury on issue of self defence - obligation cannot be extinguished by waiver of counsel - expression beyond reasonable doubt - caution against definition in other terms - observations on response to jury enquiry during deliberation.
Conviction appeal allowed on 1st indictment: new trial ordered.
Sentence appeal allowed on 2nd indictment: aggregate 3y with NPP of 2y 3m.
250

GPP - CCA, 19.5.2000
Dunford, Hulme & Barr JJ
Citation: R v GPP [2000] NSWCCA 181
Conviction appeal & leave to appeal against sentence.
Multiple sexual offences against 4 children. The Crown presented a separate indictment for each complainant & the 4 trials were heard consecutively.
Aggregate MT 6y, AT 2y.
Complainants aged 13, 8, 9, 10 at time of offences.
Aged 22 at 1st offence - offences committed over lengthy period - obese - long-standing back injury - angina - to serve sentence on protection - lack of contrition.
Directions - complaint evidence - corroboration - delay - whether verdict unreasonable - whether sentences excessive.
Conviction appeal dismissed. Leave to appeal against sentence refused.
251

SMITH, Samuel William - CCA, 1.5.2000
Hulme J, Carruthers AJ
Citation: R v Smith [2000] NSWCCA 178
Sentence appeal.
2 x armed robbery; 1 x steal conveyance; 1 x aggravated armed robbery; + Form 1 matters taken into account.
Aggregate MT 4y, AT 2y.
No facts provided.
Youth aged 18 - guilty pleas - hard life without benefit of stable & supportive family - early involvement with alcohol & drugs - priors dealt with in Children's Court (driving offences, assault, offensive language, unlawful entry, drug & property offences, escape, resist arrest). Subjected to control orders but not previously imprisoned in adult gaol.
R v Henry considered.
Whether sentence excessive.
Appeal dismissed.
252

SOLOMONS, Gregory John - CCA, 13.6.2000 - 114 A Crim R 89
Mason P, Heydon JA, Smart AJ
Citation: R v Solomons [2000] NSWCCA 215
Sentence appeal.
2 x knowingly concerned in importation of prohibited drug (ecstasy) - 8y with NPP of 5*y;
supply cannabis - FT 9m.
The appeal was against the sentence on the ecstasy count only.
Two packages containing a total amount of 572.3 grams ecstasy tablets, yielding 146.5 grams pure ecstasy were intercepted & the Australian Federal Police monitored a controlled delivery of each of the packages. This surveillance led the police to the appellant & they further observed him going to a storage unit which was rented in his name. There they found $115,000 in cash, shopping bags containing cannabis, a flick knife, knuckle duster, as well as electronic scales, a Vac Seal heat-sealing machine, hydroponic equipment, lamps, lights, fertiliser & other material. Total quantity of cannabis in the storage unit was 3,209 grams.
Distinction between principal & courier - whether sentence excessive.
Appeal dismissed.
253

GEE, Stephen Robert - CCA, 26.5.2000 - 113 A Crim R 376
Spigelman CJ, Grove & Hidden JJ
Citation: R v Gee [2000] NSWCCA 198
Conviction appeal.
5 x armed robbery.
Appellant was acquitted by direction of 3rd count after Crown prosecutor conceded there was insufficient evidence on that count.
Robberies committed on one occasion against a bank & on all other occasions against building societies, all occurring between June & August 1997. On each occasion appellant acted alone. The only issue at trial was whether the appellant was that man.
Co-incidence evidence - adequacy of directions to jury - recognition evidence - admissibility of out of court recognition from photographs - Crown witnesses' evidence unfavourable.
Appeal dismissed.
254

FOWLER, Warwick - CCA, 23.5.2000
Wood CJ at CL, Hulme & Barr JJ
Citation: R v Fowler [2000] NSWCCA 142
Conviction appeal.
Murder.
The deceased was shot & killed by 3 bullets. He was the appellant's brother-in-law.
Rejection of defence evidence - directions to jury - error in directing witness - error in directing on lies - sufficiency of directions on motive - whether McKinney direction or warning required - providing the jury with transcript of trial - sufficiency of directions concerning lies - leave to cross examine witnesses under s.38 Evidence Act - use of term 'dock statement'- whether Weissensteiner direction appropriate.
Appeal allowed: new trial ordered.
255

NANAI, Satuala - CCA, 23.5.2000
Grove, Greg James & Bell JJ
Citation: R v Nanai [2000] NSWCCA 204
s.5F appeal.
Application made to trial judge that appellant's employment was in danger of being terminated as a result of the necessity that he interrupt it for the purpose of attending his trial.
Application for bail during course of hearing or, alternatively, application to dispense with bail - inability to excuse.
Appeal incompetent: dismissed.
256

HOUVARDAS, Michael - CCA, 18.5.2000
Mason P, Heydon JA, Smart AJ
Citation: R v Houvardas [2000] NSWCCA 203
Sentence appeal.
4 x knowingly concerned in principal offences committed by his wife (1 x false pretences; 3 x imposition).
MT 9m, AT 9m.
Applicant prepared false tax return for his wife for 1992 tax year & enclosed photocopy of a group certificate, signed by him, stating his wife had earned $104,000 in the tax year & that tax instalments of $38,650 had been deducted. The ATO issued a refund cheque in the amount of $38,650, which was banked by the wife. The money was used in their business. In fact, the wife had not been paid any salary in that tax year & no tax instalments had been deducted. Group certificates signed by the applicant were enclosed in tax returns for years 1990, 1991 & 1993. They falsely recorded tax instalment deductions from the supposed salary paid to his wife. Neither the salary payments nor the tax deductions had taken place. No refunds were paid in respect of these returns.
Parity.
Appeal dismissed.
257

JCW - CCA, 6.5.2000 - 112 A Crim R 466
Spigelman CJ, Ireland & Simpson JJ
Citation: R v JCW [2000] NSWCCA 209
Sentence appeal.
Counts 1 & 2: carnal knowledge of girl under 10 (6) - s.67 Crimes Act;
Counts 3 & 4: carnal knowledge of girl under 16 (13/14 & 14/15) - s.71.
At time of sentencing, counts 1 & 2 carried a maximum of life imprisonment & counts 3 & 4 carried a maximum of 10 years' imprisonment.
Count 1: MT 10y, AT 2y; Counts 2, 3 & 4: concurrent FT 4y.
At time of offences in counts 3 & 4, s.78 prohibited prosecution after expiration of 12 months, if victim aged between 14 & 16.
Applicant pleaded guilty to all counts. Basis upon which sentences were imposed was that the charges were representative of a number of similar incidents which occurred over a period of time. Applicant admitted as much. However, charges for counts 3 & 4 based upon incorrect legislation & applicant's conviction for those charges could not be sustained. CCA had to decide what was an appropriate sentence in relation to counts 1 & 2.
Offences barred from prosecution by statute - sentencing on basis that pleas of guilty representative of other similar acts of sexual misconduct - weight given to guilty plea - weight given to fact that applicant himself sexually abused as a child.
Appeal allowed, applicant resentenced: count 1 - 10y with NPP of 8y; count 2 - concurrent 4y FT.
258

MOFFATT, Anthony - CCA, 23.5.2000 - 112 A Crim R 201
Wood CJ at CL, Foster AJA, Adams J
Citation: R v Moffatt [2000] NSWCCA 174
Conviction.
Murder.
MT 6y, AT 5y.
Trial by judge alone.
Appellant had been drinking excessively & argued with the victim. During the argument, he struck the victim with a hammer & then strangled him. The victim was in poor health due to advanced cardiac disease & alcoholism.
Role of CCA - causation - whether death of deceased caused by act of appellant - where more than one possible cause of death - where constitutional defect - admissibility of admissions - confabulation - reliability of admissions.
Appeal dismissed.
259

ISMAIL, Khodr - CCA, 8.6.2000
Giles JA, Grove & Greg James JJ
Citation: R v Ismail [2000] NSWCCA 217
Conviction and sentence appeal.
Malicious wounding with intent to do GBH.
Indictment included 2 counts pleaded in the alternative to that upon which appellant was convicted. As the jury found a verdict of guilty upon the principal count, verdicts were not taken on these alternatives which charged, in the 2nd count, use offensive weapon with intent to hinder member of the police force from investigating an act, and the 3rd count, malicious wounding. All counts related to the same incident & were directed against the same victim.
The charges related to a deliberate wounding of a female police officer by running her down with a motor vehicle.
Express pleading of alternative of malicious wounding - sufficiency of charge to jury - comment by judge concerning issue actually being contested.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
260

PEARSON, William Edward - CCA, 13.6.2000 - 114 A Crim R 80
Dunford J, Foster AJA, Smart AJ
Citation: R v Pearson [2000] NSWCCA 149
Conviction appeal.
Dishonestly destroy property with a view to making a gain.
Appellant was the owner of a smash repair business & the prosecution case alleged that he deliberately started a fire in the premises. There was no dispute that the fire commenced before 7.30 pm & that the appellant had left the premises shortly before the fire was noticed. He was the last to leave the premises. The Crown relied upon expert evidence pointing to the fire having been deliberately lit.
Business in financial difficulties at the time - appellant in dispute with landlord.
Possibility of spontaneous combustion or electrical malfunction - failure to give directions to jury - failure to discharge jury - inadvertent contact of solicitor with 2 members of the jury - failure to disclose contents of an MFI.
Appeal allowed: new trial ordered.
261

RAMOS, Alan De Silva - CCA, 26.5.2000 - 112 A Crim R 339
Grove & James JJ
Citation: R v Ramos [2000] NSWCCA 189
Crown appeal.
4 x supply prohibited drug (methylamphetamine, ecstasy).
MT 6m, AT 18m.
Respondent supplied methylamphetamine on 4 separate occasions in 1 month to an undercover police officer, selling 4.9 grams for $250 on the 1st occasion & 27.4 grams for $800 on another occasion. Respondent indicated to undercover officer that he could also supply ecstasy tablets. On the final occasion, the undercover officer purchased 100 ecstasy tablets & 4 ozs methylamphetamine & 100 tablets (26.6 grams) containing traces of methylamphetamine & caffeine.
Aged 19 at offences - early guilty plea - subject to bond & CSO at time of sentence - arrogant attitude to the law - employed as a capable & energetic apprentice mechanic - supportive family - priors - not previously imprisoned.
Objective gravity - general deterrence.
Appeal dismissed.
262

R - CCA, 31.5.2000
Sully & Adams JJ
Citation: Citation: R v R [2000] NSWCCA 212 revised - 20/07/2000
Sentence appeal.
Aggravated armed robbery; discharge firearm in manner likely to endanger life.
Aggregate MT 4y, AT 2y.
Applicant, wearing a balaclava & armed with a loaded .44 calibre magnum revolver, entered a nursery shop & demanded money from a 57 year old woman. She turned to run, he grabbed hold of her & threw her to the ground, struck her on top of the head with the revolver butt causing a fracture to her skull, took money from the till, searched for more money, then ran from the store whilst removing his balaclava. A passing motorist saw him & pursued him into the grounds of a nearby school. He approached the applicant, who fired one round from his revolver towards the feet of the man causing a ricochet which struck him on the ankle. Applicant demanded the man's car keys but was refused. He started walking towards the car, then fired a further round at the man but missed. The man rushed the applicant & struggled with him & a further round was fired whilst he attempted to disarm the applicant. During the struggle the applicant kicked him in the head. Two men nearby intervened & a further struggle ensued, during which one of those men was kicked in the head. Police arrived shortly thereafter.
Guilty plea - aged 35.
Whether sentence manifestly excessive.
Appeal dismissed.
263

WILLIAMS, Stephen Michael - CCA, 14.4.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Williams [2000] NSWCCA 136
Sentence appeal.
Manslaughter.
MT 6y, AT 2y.
Applicant lived with his mother, a woman in her early 70s. She was frail & suffered from ill health, spending a great deal of time in bed. After consuming a large quantity of alcohol, the applicant struck his mother a number of times about the head & face, causing significant bruising & a subdural haematoma which resulted in her death.
Aged 39 at time of offence - solitary & unhappy life - drinking problem - father had history of drinking, was violent towards mother - no significant remorse or contrition - prior offence of assault - not previously imprisoned.
Appeal against declining to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
264

CHUNG, Wai Fung - CCA, 20.4.2000
Priestley JA, Sperling J, Foster AJA
Citation: R v Chung [2000] NSWCCA 153
Sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
14y with NPP of 9y.
Australian Federal Police intercepted 2 express post packages which arrived on a flight from Thailand & found 4.775 grams of pure heroin concealed within 23 stereo speakers. They removed the bulk of the heroin & substituted another substance then delivered the packages to the address indicated & 2 co-offenders took possession of the packages. The co-offenders took the packages to the address of another co-offender & then departed. The applicant arrived shortly thereafter. A listening device had been planted in the package & it recorded the applicant opening the packages, discussing their contents & indicating that he was superior in the chain of command to the other man.
Aged 41 - suffered from rheumatic valvular disease - clearly the person in control - priors not known.
Appeal dismissed.
265

ALI, Yeakub - CCA, 17.5.2000
Priestley JA, Foster AJA, Sperling J
Citation: R v Ali [2000] NSWCCA 177
Conviction appeal.
1 x act of indecency towards person under 16; 1 x indecent assault; 3 x sexual intercourse without consent.
Complainant was the daughter of the appellant's de facto wife. Offences alleged to have occurred during period December 1991 to March 1994. Complainant 11 at commencement of that period & 13 at the end of it. She was 18 at the time of trial. The offences involved appellant masturbating himself in the complainant's presence; touching her breast on the outside of her nightie; penile-vaginal intercourse on 3 separate occasions.
Use of evidence as to credit as evidence of fact - point not taken below - no miscarriage of justice - evidence to re-establish credit - rational answer to attack on credibility.
Prior inconsistent statement - complaint evidence.
Appeal dismissed.
266

LAWSON, Leslie Harold - CCA, 14.6.2000
Stein JA, Dunford & Sperling JJ
Citation: R v Lawson [2000] NSWCCA 214
Conviction appeal.
Sexual intercourse with child under 10.
The complainant was 8 years of age & living with her mother at the time of the offence. Her natural father was not living with them, although she saw him from time to time. The appellant, a friend of the complainant's mother, stayed with them temporarily. There was no suggestion of an intimate relationship between the complainant's mother & the appellant. The mother was admitted to hospital & the complainant stayed overnight with a friend of the family before going on to stay at an institution for a time. The appellant took the complainant to her home to collect clothing & it was alleged that the offence was committed there on that occasion. The appellant was aged 40 at the time.
Complaint evidence - sexual assault history taken by doctor - evidence as to truth of history - discussion of R v Welsh - restriction of cross-examination under s.409B(3)(c) Crimes Act - incompetence of counsel - whether miscarriage of justice.
Appeal dismissed.
267

AHMED, Sam - CCA, 15.5.2000
Spigelman CJ, Heydon JA, James J
Citation: R v Ahmed [2000] NSWCCA 199
Conviction appeal.
Armed robbery.
MT 3y, AT 3y.
Appellant approached the driver of a van that had been loaded with cigarettes. He sprayed the driver in the face, blinding him in the right eye & partially blinding him in the left eye. He demanded the keys from the driver & raised his arm as if to spray the driver's face again. The driver began to run away & the appellant chased him, then the driver threw the keys down & the offender picked them up, got into the van & drove away. Another vehicle followed the van.
In dispute at trial was whether the Crown could establish that it was the appellant who had committed the armed robbery. The victim of the armed robbery was unable to identify the appellant as being the robber & hence the Crown case was a circumstantial one.
Whether Crown failed to prove case against appellant - error in not dismissing jury when one of its members was absent due to long adjournment of trial because of judge's illness - error in summing up.
Appeal dismissed.
268

RELIC, Luba v DPP - NSW Court of Appeal, 26.4.2000
Beazley JA, Stein JA, Heydon JA
Citation: Relic v DPP & Anor [2000] NSWCA 84
Convicted & fined for contravening restriction in AVO. Unsuccessful appeal to the DC. Summons seeking order that orders made in DC be quashed.
Whether error of law on the face of the record - whether jurisdictional error - whether judge should have warned more onerous sentence was contemplated.
Although a judge has power under Justices Act 1902 s.125 to increase a sentence imposed by a magistrate, the judge is obliged to give the complainant a warning of the sentence contemplated & the opportunity to seek leave to withdraw the appeal.
Conviction confirmed, order that sentence be quashed & proceedings be remitted to DC to resentence.
269

BARBARO, Pasquale - CCA, 26.5.2000 - 112 A Crim R 551
ROVERE
, Carmelo
Spigelman CJ, Wood CJ at CL, Grove J
Citation: R v Barbaro & Rovere [2000] NSWCCA 192
Conviction appeal.
Barbaro: knowingly take part in cultivation of large commercial quantity cannabis plants - MT 3*y, AT 14m.
Rovere: conspire to cultivate large commercial quantity cannabis plants - MT 5m 25d, AT 2y.
Cannabis was grown, concealed within a large crop of corn. The cannabis crop consisted of about 20,000 plants.
Witness evidence - identification - cross-examination by Crown of its own witness - refusal of separate trials - refusal of stay of proceedings - evidence of observer - hearsay - quality of identifying or similarity testimony - photographic selection for identifying purposes - fairness of selection - discretion to order new trial - verdict unreasonable.
Appeals allowed: Barbaro - new trial ordered. Rovere - judgment of acquittal entered.
270

WATTS, Michael Arthur - CCA, 14.4.2000
Dowd & Hulme JJ
Citation: R v Watts [2000] NSWCCA 167
Sentence appeal.
Possess offensive weapon with intent to commit indictable offence; use offensive implement with intent to commit indictable offence.
Aggregate MT 6y, AT 2y
Applicant approached a family at a small fire at a campsite & asked a woman if he could join them at the fire. She refused & he asserted his right to sit near the fire & was asked to leave by the woman's husband. The applicant refused & got into a fight with 2 men, hitting one of them before he left. He returned with a rifle & pointed it at the head & then the genitals of one man, asking him how he would like it if he blew these parts of his anatomy off. He was then disarmed by other members of the family. After repeatedly demanding the return of his gun, he drove through the campsite a number of times in a dangerous manner aiming his vehicle at two members of the group near the camp.
Aged 43 - serious alcohol problem - multiple priors - previously imprisoned.
Totality - whether sentence excessive.
Appeal allowed: resentenced to aggregate MT 4y, AT 2y.
271

BEATTIE, John Patrick - CCA, 15.5.2000
Spigelman CJ, Heydon JA, James J
Citation: R v Beattie [2000] NSWCCA 201
Application for extension of time in which to appeal against conviction and sentence.
1 x BE&S.
MT 1y, AT 2y.
Victim & his family returned home from a holiday & victim noticed signs of a forced entry through a window at the rear of the house. A number of items of property were missing. A police fingerprint expert succeeded in developing fingerprints on 2 pieces of glass from the window. Another police fingerprint expert compared photographs of the fingerprints with fingerprints taken from the applicant & found that they matched. This fingerprint evidence was the basis of the prosecution case against the applicant. At a sentence indication hearing, applicant accepted indication. He was later indicted & pleaded guilty. Three further offences were taken into account & he was convicted & sentenced in February 1994.
On appeal, applicant claimed he did not intend pleading guilty & only did so as a result of pressure from his solicitor.
Application for extension of time refused.
272

SCOTT, John Herbert - CCA, 23.5.2000 - 112 A Crim R 543
Wood CJ at CL, Hulme & Greg James JJ
Citation: R v Scott [2000] NSWCCA 187
Conviction appeal.
Supply commercial quantity prohibited drug (heroin).
Appellant had also been charged with supplying a large commercial quantity of that drug but the jury had returned a verdict of not guilty to that charge.
Sentencing judge defined the offence charged as potentially including the receiving of the heroin for supply, the possession of the heroin for supply & the sale or distribution of the heroin. The quantities of heroin allegedly resulted from the accumulation of various smaller quantities acquired by the appellant & a co-offender, processed by them & distributed in numerous transactions.
Asserted failure by accused to call witnesses - directions to jury - application of Jones v Dunkel principle to case of accused occasioning miscarriage.
Appeal allowed: new trial ordered.
273

SMITH, Arthur Stanley - CCA, 14.6.2000
Stein JA, Dunford & Sperling JJ
Citation: R v Smith [2000] NSWCCA 202
Conviction and sentence appeal.
Murder.
Deceased was found buried in the sand at Foreshore Beach, Botany. Approx 6 months before the body was discovered, the appellant told a prison informer that he had killed the deceased. The confession was recorded by a lawful listening device. The Crown alleged that on the night of the deceased's disappearance, he was shot dead by the appellant on the beach at Botany. He then directed an associate who was with him at the time to bury the body. The associate later gave evidence at the appellant's trial.
Failure to give Jones v Dunkel direction - inconsistent evidence - alternative scenario put to jury - directions - motive to lie - failure to exclude evidence of taped conversations - agent of the State - failure to discharge of the jury - error in finding murder fell into worst category - unreasonable conviction - whether sentence manifestly excessive.
Appeal dismissed.
274

HJS - CCA, 9.6.2000
Spigelman CJ, Ireland & Simpson JJ
Citation: R v HJS [2000] NSWCCA 205
Conviction appeal.
10 x sexual assault upon person under 16 years.
All offences were committed against appellant's own 4 daughters, 5 counts being with female under the age of 16, and 5 counts with female under 10 with an incident occurring when one of the daughters was about 6, another daughter said she was about 4 or 5 when she was first abused by her father. The mother claimed she was unaware of the sexual abuses until she was told when the daughters were grown up & had left home.
No error on the part of the trial judge in refusing application for separate trials - erroneous introduction of name of unrelated complainant, an irregularity without miscarriage of justice - whether Crown entitled to lead evidence in reply - duty of judge to give directions on consumption of alcohol, regardless of the views of counsel - complaint evidence wrongly admitted under s.66 Evidence Act 1995 & which may not have been admitted under s.108(3) - nevertheless no miscarriage of justice
Appeal dismissed.
275

PRFN - CCA, 21.6.2000
Giles JA, Grove J, Greg James J
Citation: R v PRFN [2000] NSWCCA 230
Conviction and sentence appeal.
Manslaughter.
MT 3y, AT 3y.
Issues of provocation & diminished responsibility were left to the jury, but the trial judge rules that the issue of self-defence should not be left to the jury.
Appellant was aged 14 when he was raped by the deceased & this had a profound psychological effect on the appellant. He believed that there would be a further sexual assault & was also fearful of the safety of his baby nephew. The killing of the deceased was carefully implemented.
Role of immediacy of threat to appellant - no realistic hypothesis that appellant could have believed on reasonable grounds that killing necessary in self-defence.
Appeal in relation to conviction on sole ground that issue of self-defence should have been left to the jury. Whether provocation established by law - motivation - revenge - rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
276

TANG, Joshua Li Chao - CCA, 13.6.2000 - 113 A Crim R 393
Grove, Ireland & Adams JJ
Citation: R v Tang [2000] NSWCCA 219
Conviction appeal.
Supply large commercial quantity prohibited drug (heroin).
MT 5y 3m, AT 1y 9m.
Police conducted a search of premises at which appellant was staying, finding packages of heroin secreted in the wardrobe & under the bed cover. Appellant denied any knowledge of the heroin.
Possession of heroin found in premises - whether premises jointly occupied - whether appellant had possession - effect of failure to mention other occupant on arrest - appellant alleged he did mention, denied by police - whether jury can take omission into account - Petty & Maiden (1991) 173 CLR 95 distinguished.
Appeal dismissed.
277

DOBACZEWSKI, Janusz - NSW SC, Barr J, 20.4.2000
Citation: R v Dobaczewski [2000] NSWSC 344
Remarks on Sentence:
AOABH.
Originally charged with manslaughter & AOABH, however, the accused pleaded guilty to AOABH which the Crown accepted in full discharge of the indictment.
Accused became involved in a fight with the victim at a birthday party, both were affected by alcohol. The victim died in hospital over 2 months later. The accused was also injured in the fight.
Long addiction to alcohol.
5y GBB.
278

LEMON, Christopher Michael - CCA, 19.6.2000
Grove & Newman JJ
Citation: R v Lemon [2000] NSWCCA 232
Sentence appeal.
15 offences, including BE&S; receiving; dispose of stolen goods; steal from a dwelling; + 9 offences taken into account.
MT 4*y, AT 2*y.
Special circumstances were found by the sentencing judge because of the appellant's age, having been born in 1977.
No details provided about offences, other than that they were persistent & continuing offences of dishonesty.
Fresh evidence of effects of syndrome reducing ability to resist impulse - syndrome of long standing and recognised in childhood - long record of offending - no assessment different from first instance imposition.
Appeal dismissed.
279

GLASBY, Gary Zane - CCA, 22.6.2000 - 115 A Crim R 465
Stein JA, Hulme & Greg James JJ
Citation: R v Glasby [2000] NSWCCA 83
Conviction and sentence appeal.
Murder.
Life imprisonment.
Crown case that appellant committed the murder at instigation of deceased's wife in consideration for the payment of a large sum of money & that both appellant & his wife had been involved in the murder, the appellant as principal in the 1st degree, having actually done the killing; & his wife as a principal in the 2nd degree, having been present at the time & place of the killing. Appellant's wife was arrested for the murder on the same day as the appellant & she gave sworn evidence at her own sentencing & was called by the Crown in the appellant's trial. Grounds of appeal relate to circumstances in which the wife came to give evidence generally & particularly her evidence of what the appellant had said to her & the admissibility of particular matters the appellant told her.
Compellability of spouse - statutory interpretation - common law presumptions - s.18 Evidence Act 1995 - s.407 Crimes Act 1900 - whether jury misdirected - representations of what accused told witness not evidence of truth of those representations - Lee v The Queen (1998) 195 CLR 594 - s.6 Criminal Appeal Act 1912 - whether accused denied fair chance of acquittal - 'accepting' the accused's evidence - failure to discharge jury - maximum sentence - worst category - parity.
Appeal dismissed.
280

PUCKERIDGE, Roy Robert - CCA, 5.6.2000
Heydon JA, James & Bell JJ
Citation: R v Puckeridge [2000] NSWCCA 193
Conviction and sentence appeal.
Murder.
MT 15y, AT 5y.
Appellant first appealed against conviction in 1998, the CCA allowed the appeal & the conviction was quashed. The High Court granted the Crown special leave to appeal from that decision, the Crown appeal was allowed & the matter remitted to the CCA.
Appellant lived in the same block of flats as the victim. Victim's body was discovered buried in a shallow grave in a garden near the unit occupied by the appellant. Appellant made admissions to fellow inmates that he had entered the victim's unit through a window. When she woke up, he assaulted her, dragged her from her bed, bashed her head against a wall a number of times until her head bled & then he strangled her.
Whether error in directions - upon cause of death - failing to adequately direct - onus & standard of proof.
Appeal dismissed.
281

WATT, Raymond Gordon - CCA, 22.3.2000
Grove, Hidden & Greg James JJ
Citation: R v Watt [2000] NSWCCA 37
Conviction and sentence appeal.
Knowingly take part in supply of commercial quantity methylamphetamine (total weight approx 400 grams).
MT 2*y, AT 1*y.
On 4 occasions a man, who was acting on behalf of the appellant, supplied amphetamine to an undercover police officer. The applicant provided the drug & received the proceeds of the sale. In conversation, the man supplying the amphetamine mentioned the applicant to the undercover officer.
Whether error in admitting conversation evidence - identification evidence - possession - whether verdict unreasonable.
Appeal dismissed.
282

SUA, Jack - CCA, 23.2.2000
Hidden J, Carruthers AJ.
Citation: R v Sua [2000] NSWCCA 94
Sentence appeal.
Armed robbery.
MT 3y, AT 2*y.
Applicant entered a private hotel where he forced his way into manager's private premises, threatened the manager with a pistol & demanded money. He tied the manager to the bed in the room & took approx $140 in cash. He held the pistol against the manager's head & threatened to blow his head off if he didn't tell him where the money was. The manager told him that the money was not in the room. The appellant ransacked the room then left.
Samoan - left parents when he was 10 to come to Australia with uncle & aunt - uncle subjected him to abusive behaviour - left home & lived on streets & was then fostered out to a woman who had one son. A violent home invasion occurred at the foster home & his foster mother's natural son received severe injuries, which had an enormous effect upon appellant. Aged 16 at time of offence & subject to probation at the time - priors - not previously imprisoned - whether sentence excessive - R v Henry (1999) 46 NSWLR 346 distinguished.
Appeal allowed: resentenced to MT 2*y, AT 2*y.
283

HONG, Lu - CCA, 20.4.2000
LAM, Vi
LAM, Vi
Priestley JA, Foster AJA, Sperling J
Citation: R v Hong & Ors [2000] NSWCCA 213
Crown appeal; and appeal against sentence by Lam. A third man, who had appealed against sentence, abandoned that application.
Conspire to supply large commercial quantity heroin; possess commercial quantity heroin; import commercial quantity heroin; money laundering.
Lam: MT 13*y, AT 4*y.
Hong: MT 13*y, AT 4*y.
This was a major commercial enterprise.
At Lam's home, police found 5.88 kgs heroin, $700,000, jewellery to the value of approx $2,500 & other valuable items. A locked room was found to be fully adapted for the reception & processing of heroin for sale. Documentation found supporting money laundering charge.
At Hong's house, police found a number of packages of heroin weighing 11.2 kgs with a total pure weight of nearly 8 kgs, a number of sauna bath units which had been built so that they had the capacity to contain concealed heroin (one of which did in fact contain heroin), $23,000 in cash & documents supporting money laundering charge. He made a number of admissions in relation to his involvement with the operation.
Seriousness of offence - weight - whether manifestly inadequate.
Parity.
Appeals dismissed.
284

FISHER, Steven Andrew - CCA, 31.5.2000
Sully & Adams J
Citation: R v Fisher [2000] NSWCCA 218
Sentence appeal.
Malicious wounding; use offensive weapon with intent to prevent lawful apprehension & the lawful apprehension of another who was with him; B&E dwelling house; stealing; + Form 1 matter taken into account.
Aggregate MT 4y, AT 16m.
Applicant & female accomplice broke into a residence & removed property. After about 15 minutes they were disturbed by the occupant of the house & her son returning home. Applicant & female ran off, discarding some of the stolen articles as they went. Occupants pursued them. A neighbour chased as well & caught up with the female & asked her to surrender. Applicant shoulder-charged the neighbour then stabbed him with a stolen knife, the applicant was punched in the face & he then stabbed the neighbour a 2nd time. The fight continued & he stabbed the neighbour again, in the area of the spleen. This injury was serious & the neighbour underwent surgery & spent 10 days in hospital.
Aged 28 - drug addiction since age 12 - offences committed whilst on parole - sexually abused at a young age - priors - previously imprisoned.
Whether sentence excessive.
Appeal dismissed.
285

BUCKSATH, Glenn Paul - CCA, 17.4.2000 - 114 A Crim R 1
Stein JA, Dunford & Simpson JJ
Citation: R v Bucksath [2000] NSWCCA 135
s.5F appeal by DPP, challenging orders made staying proceedings on an indictment against the respondent. The stay was granted on the basis of an abuse of process by the Crown & was expressed to be conditional upon the payment by the Crown of the costs of the accused thrown away on an indemnity basis.
Appeal allowed in part: order varied to provide that stay of proceedings on indictment be until certain costs be paid to respondent by Crown; such costs to be agreed, or failing agreement, to be in such amount as assessed by a judge of the DC.
286

KATOA, Sosefina - CCA, 2.6.2000
Sully & Adams JJ
Citation: R v Katoa [2000] NSWCCA 223
Sentence appeal.
Drive in manner dangerous.
MT 8m, AT 10m, licence disqualified for 3y.
Applicant drove 4-wheel drive MV west along a road & approached an intersection controlled by traffic lights, intending to make a right-hand turn. Victim riding motorcycle travelling east along same road. As applicant turned, the side of her vehicle collided with the front of the motorcycle, victim was thrown from his motorcycle & suffered injuries which were fatal. The traffic lights had a green round light & a green arrow, but only the green round light was showing at the time the applicant moved into her right-hand turn.
Aged 37 - no alcohol or excess speed - more than momentary inattention - substantial & compelling subjective case - priors not known - previously imprisoned - family obligations.
Bottom end of scale of culpability - appellant in an unusual situation justifying matter not being used as a precedent without caution.
Applicant had already served 1 month of her sentence.
Appeal allowed: length of sentence & disqualification of licence confirmed, however, remaining 7m of the MT to be served by way of PD.
287

CAMPBELL, Scott John - CCA, 3.5.2000
Dunford J, Foster AJA, Smart AJ
Citation: R v Campbell [2000] NSWCCA 157
Crown appeal.
Armed robbery with wounding.
MT 4*y, AT 2y.
At 12.30am, co-offender knocked on door of victim's house & told him her car had broken down. She asked for some water. Victim gave her some & she went to the car & appeared to put it into the radiator. She got into the front passenger seat & the car drove away. At 1.15am, victim was watching TV, heard his dog barking, opened the front door & saw the co-offender who said her car had broken down again, she asked if she could use the phone. He gave her permission. As he turned back towards the front door, he saw respondent holding a sawn-off shotgun & pointing it at his head. Respondent ordered victim to lie face down on floor, sat on his back, placed barrel of gun to back of his head & demanded money. Victim said he had only $1. Respondent taped victim's hands behind his back, taped his legs together & placed tape around his mouth. He told co-offender to steal the video recorder. Victim's brother heard the voices & opened his bedroom door. Respondent pointed gun at the brother, told him to lie down or he would shoot him. The brother said he would go back into his room, which he did & closed the door. Respondent fired a shot at closed door, penetrating it & striking brother in upper chest & chin. Brother sustained 3 puncture wounds to right pectoral region & 1 to right side of chin, as well as some grazes.
Long criminal history - prone to violence - drug use - previously imprisoned.
Home invasion - Henry distinguished - worst category - double jeopardy - relevance of statistics.
Appeal allowed: resentenced to MT 5*y, AT 2y.
288

ELEMES, David Paul - CCA, 2.6.2000
Sully & Adams JJ
Citation: R v Elemes [2000] NSWCCA 235
Sentence appeal.
1 x BE&S.
MT 2*y, AT 2*y.
Offence involved a 'ram raid'of a store, the applicant & 2 other accomplices each stealing a motorcycle. All 3 motorcycles were recovered, 2 of them in reasonable condition.
Applicant appealed on grounds that sentencing judge acted upon wrong principle regarding absence of contrition; sentencing judge gave excessive weight to absence of contrition; sentence manifestly excessive.
Appeal dismissed.
289

JS - CCA, 25.2.2000
Hidden J, Carruthers AJ
Citation: R v JS [2000] NSWCCA 38
Sentence appeal.
2 x aggravated indecent assault; + a similar offence on a Form 1.
MT 18m, AT 18m.
Victim of offences was applicant's 13 year old stepdaughter. The 2 offences in the indictment occurred on the same day. On each occasion applicant & victim engaged in 'a friendly wrestle', when applicant seized victim's breasts & touched her vaginal area on the outside of her clothing. The Form 1 matter occurred the following month when the applicant approached the victim & placed his hand on her bare breast beneath her dressing gown. All three incidents isolated. No evidence they were part of a wider pattern of abuse. 2 days after the Form 1 offence, applicant was served with an interim AVO & he left the home.
Now aged 53 - no criminal record - creditable background - excellent worker - good husband & father - well-behaved whilst in prison - undertaken educational activities in prison.
Whether sentence manifestly excessive.
Appeal allowed; resentenced to MT 12m, AT 12m.
290

SWEETMAN, Donald Conrad - CCA, 31.5.2000
Sully & Adams JJ
Citation: R v Sweetman [2000] NSWCCA 228
Sentence appeal.
Robbery.
MT 12m, AT 18m.
Applicant entered a 711 store & his actions whilst there were recorded by a video camera. Statements were obtained from the owner/manger of the store & from the cashier. The applicant came into the store, ran behind the counter towards the register, which was open at the time, pushed the cashier out of the way & took money out of the register. All the time he had his right hand beneath his shirt, giving the impression that he was holding a weapon.
Sentencing judge accepted the incident was 'probably a spur of the moment situation" & that applicant was affected by alcohol at the time
Guilty plea - remorse - undertaking alcohol counselling.
Application that sentencing judge fell into error by reason of his perception the only thing that could justify a non-custodial sentence was a finding of 'exceptional circumstances'- whether sentence excessive.
Appeal dismissed.
291

ROBINSON, Jason Heath - CCA, 21.6.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Robinson [2000] NSWCCA 182
Crown appeal.
BE&S; escape lawful custody; + Form 1 matter (assault).
Aggregate MT 9m, AT 9m.
Respondent smashed a panel of the front door of a house & removed goods in excess of $20,000 whilst his girlfriend kept watch. Respondent placed the goods in his car. The female occupant of the house returned unexpectedly while the respondent was making trips from the house to the car & caught the respondent's girlfriend by the wrists. The girlfriend called for assistance & the respondent threatened the female occupant with a hammer, repeatedly threatening to kill her. Respondent & his girlfriend made their escape in the car, along with the stolen goods.
Aged 24 - early guilty plea - heroin habit - remorse - offence committed to get money for heroin - multiple priors - previously imprisoned.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with NPP of 18m.
292

LAWSON, Brett Alan - CCA, 14.6.2000
Giles JA, Dunford & Greg James JJ
Citation: R v Lawson [2000] NSWCCA 221
Crown appeal.
Larceny as a servant.
450h CSO.
Respondent, employed in a butcher shop, obtained the combination for a safe from 2 employees in another store which was operated by the same employer. He took $24,000 from the safe & divided it with the other 2 employees, retaining $12,000 for himself & giving each of the other two $6,000. The other 2 employees confessed their part in the offence.
Aged 31 - leader in offence - sense of grievance against employer - remorse - contrition - early guilty plea - supporting wife & child - walks to place of employment as cannot afford fare - degree of planning of offence - priors for assault - not previously imprisoned - restitution - unique circumstances.
Whether sentence manifestly inadequate.
Appeal dismissed.
293

STEER, Brian James - CCA, 19.6.2000
Grove & Newman JJ
Citation: R v Steer [2000] NSWCCA 233
Sentence appeal.
3 x armed robbery.
Aggregate MT 4y 9m, AT 2y.
No facts of offence provided.
Aged 29 - guilty plea - on GBB at time of first offence - offences provoked by greed - priors - not previously imprisoned.
Appeal dismissed.
294

TORO-MARTINEZ, Alejandro Arturo - CCA, 7.6.2000 - 114 A Crim R 533
Spigelman CJ, Newman & Adams JJ
Citation: R v Toro-Martinez [2000] NSWCCA 216
Conviction appeal; and Crown appeal against inadequacy of sentence.
Knowingly concerned in the importation of a trafficable quantity of cocaine (guilty plea).
3*y with NPP of 2y.
23 envelopes, despatched in Colombia & Chile & addressed to 5 addresses in Australia, were intercepted by the NCA following information from a police informer. Each envelope contained documents & a number of coloured plastic folders. There were 58 folders in all, weighing 9.539 kgs, within which was impregnated 3.574 kgs pure cocaine. The mode of impregnation required a chemical process to extract the cocaine. Appellant's involvement in the enterprise limited to 3 particular days in which a trafficable quantity of 655.2 grams was involved. This was the quantity in the controlled delivery which the authorities permitted to occur.
Conviction appeal: Appellant low in hierarchy - conviction appeal after guilty plea in extreme circumstances - typographical error in date on certificate granted under s.15M Crimes Act - whether authorities involved in the case played any material role in the conduct of the appellant - admission of evidence.
Conviction appeal dismissed.
Crown appeal: Notwithstanding appellant's low level of involvement in the importation, sentence was manifestly inadequate & out of line with pattern of sentencing for this offence: R v Wong (1999) 108 A Crim R 531 referred to.
Crown appeal allowed: resentenced to 6y with NPP of 3y.
295

HOLLIER, Rodney David - CCA, 15.6.2000
Spigelman CJ, Newman & Greg James JJ
Citation: R v Hollier [2000] NSWCCA 225
Conviction appeal.
1 x malicious wounding.
The Crown case was that the appellant & his co-accused went to the victim's home to discuss money owed by the victim to the appellant. A verbal altercation occurred between appellant & victim. Appellant moved away from or behind the co-accused & the co-accused produced a shortened firearm & shot the victim in the upper right thigh. Appellant then left the scene.
Appellant convicted of accessory to malicious wounding by shooting, acquitted of complicity in possession of firearm.
Asserted miscarriage from failure to discharge jury - inconsistent verdicts - acquittal of complicity in possession of firearm practically inconsistent with guilt as accessory to malicious wounding by shooting - principles applicable to ordering new trial discussed.
Appeal allowed: new trial ordered.
296

GLEN, David Jack - NSW SC, Wood CJ at CL, 1.10.99
Citation: R v Glen [1999] NSWSC 1018
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Has now served 14 years of the life sentence imposed.
Applicant was 19 at the time of the killing. He sexually assaulted & murdered his young cousin aged 10. Wood CJ at CL described it as a 'hideous killing', a 'sustained, deliberate and sadistic violation of an innocent young girl for which no rational explanation exists'. Total lack of contrition; callous attitude towards victim's parents; lack of insight into & acceptance of his wrongdoing. Refusal to discuss his sexual attitudes & state of mind when carrying out the sexual violation of the victim with psychologists & psychiatrists.
At this point in time, Wood CJ at CL of the view that the applicant a grave danger to the community, particularly young children.
Application dismissed.
297

COVILL, Kevin John - CCA, 21.6.2000 - 114 A Crim R 111
Giles JA, Grove & Greg James JJ
Citation: R v Covill [2000] NSWCCA 231
Conviction and sentence appeal.
Trial 1: wound with intent to do bodily harm - MT 9y, AT 4y.
Trial 2: wound with intent to do bodily harm - FT 6y; possess shortened firearm - FT 6y; armed robbery - FT 4y; all sentences concurrent with that imposed in Trial 1.
1. Appellant & a woman were in a McDonald's restaurant when the victim approached the woman & an argument ensued. When the woman told the appellant about the argument, he went over to the victim & stabbed him.
2. Appellant went to victim's residence & pointed a shotgun at him & told the victim that he had to sort things out with the appellant's girlfriend. He forced the victim to go to meet with the girlfriend. When the victim arrived, the appellant's girlfriend attempted to attack him. Both slipped & as the victim was regaining his balance, the appellant stabbed him.
Aged 21 - multiple priors - previously imprisoned.
Trial 1: Failure to discharge jury - appellant's election not to give evidence - error in directions - verdict unreasonable.
Conviction appeal allowed: new trial ordered.
Trial 2: Error in directions as to unreliability of witnesses - failure to direct on availability of self-defence - miscarriage of justice due to cross examination of appellant as to motive for Crown witness to lie - verdict unreasonable.
Conviction appeal dismissed.
Sentence appeal upheld, remitted to DC for resentencing.
298

BRUCE, Malcolm Harry - CCA, 25.2.2000
Hidden J, Carruthers AJ
Citation: R v Bruce [2000] NSWCCA 39
Sentence appeal.
Supply commercial quantity methadone; supply commercial quantity cocaine; supply commercial quantity ecstasy.
MT 3y 9m, AT 1y 3m.
Associate of Leslie Kalache. No further facts.
Aged 59 - early guilty plea - stopped drug abuse - substantial progress towards rehabilitation - good prospects of rehabilitation - multiple priors - not previously imprisoned.
Special circumstances.
Appeal dismissed.
299

MARSHALL, Robert John - CCA, 15.5.2000 - 113 A Crim R 190
Spigelman CJ, Heydon JA, James J
Citation: R v Marshall [2000] NSWCCA 210
Conviction appeal.
Armed robbery (with a knife).
The victim, the proprietor of a liquor shop, was robbed of about $1,400 in cash.
The appellant was arrested on a separate offence. The victim identified the appellant whilst the appellant was in custody. The appellant was handcuffed at the time of identification.
Whether evidence of identification admissible - identification highly prejudicial - identification evidence of limited probative value.
Appeal allowed: verdict of acquittal entered.
300

BOSTON, Anthony Craig - CCA, 19.5.2000
Heydon JA, James & Bell JJ
Citation: R v Boson [2000] NSWCCA 227
Conviction and sentence appeal.
Possess unlicensed firearm; fail to take precautions to ensure safekeeping of firearm; possess ammunition without licence - fail to pay for meal or accommodation.
Aggregate FT 9m.
No facts provided.
Aged 29 - priors - previously imprisoned.
Sentencing judge had no jurisdiction to record convictions in respect of summary offences. No examination undertaken as to whether summary offences were related offences within the meaning of Part 10 Criminal Procedure Act 1986.
Appeal allowed: convictions and sentences quashed.
301

COLIN, Eric Giles - CCA, 9.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Colin [2000] NSWCCA 236
Crown appeal.
Supply cocaine
2y GBB + a fine of $4,000.
Respondent was arrested during a police operation which was targeting the person for whom he worked. Respondent, through no fault of his own, was not dealt with in the DC for some 5 years. He co-operated with police from the time of his arrest & pleaded guilty at the earliest opportunity.
In continuous employment - since arrest had stopped using cocaine - in a stable relationship - had changed his circle of friends.
Low level offender - effect of delay.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 12m PD.
302

LANGBEIN, Michael Wayne - CCA, 29.5.2000
Sully & Adams JJ
Citation: R v Langbein [2000] NSWCCA 237
Sentence appeal.
Agree to supply of methylamphetamine - MT 3y, AT 2y;
supply methylamphetamine (13.8 grams) - MT 2y, AT 1y.
Appellant & his son met with undercover police operative & another person at a hotel. After some conversation the appellant supplied the operative with 13.8 grams methylamphetamine. Arrangements were made for the future supply of a pound of amphetamine for $12,000 which was to occur the following week. When police attended to purchase the drugs, the appellant did not appear. In a later telephone conversation, appellant arranged for the purchaser (undercover operative) to go to his house for the drugs. The police went to the appellant's premises & arrested him. No drugs were found on the premises.
Aged 53 - guilty plea - entered transactions for financial gain - accepted full responsibility for the offences - claimed to have been influenced to enter them by an acquaintance who owed him money.
Entrapment - failure by sentencing judge to refer to submission by appellant that he did not have any real intention of supplying the pound of amphetamine - insignificant criminal history - substantial steps towards rehabilitation - family commitments - special circumstances.
Appeal allowed for offence of agreeing to supply: resentenced to MT 2y, AT 2y.
303

DAVIS, Stephen John - CCA, 10.7.2000
Giles JA, Adams J
Citation: R v Davis [2000] NSWCCA 244
Sentence appeal.
4 x supply prohibited drug (heroin); + 8 additional charges taken into account:- 5 x possess prohibited drug (cannabis, opium, Rohypnol & Physeptone), 1 x self-administer heroin, 2 x possess unlawfully obtained cash.
Aggregate MT 3y, AT 3y.
Applicant admitted selling heroin to support his own habit which he said was costing him between $200 & $300 a day.
Small individual amounts of drugs supplied, eg 3.0, 1.6, 0.2, 0.02 & 0.25 grams. The total weight of heroin encompassing all offences was 5.36 grams.
Aged 41 - extensive criminal history - commission of offences whilst on recognizance & on bail.
Weight given to sentencing factors - objective criminality - subjective factors - error in sentencing process - contrition - rehabilitation - full admissions.
Appeal allowed: resentenced to MT 2y, AT 2y.
304

JOHNSTONE, Dean Andrew - CCA, 12.4.2000
Dowd & Hulme JJ
Citation: R v Johnstone [2000] NSWCCA 129
Sentence appeal.
3 x armed robbery.
1st count: MT 3*y, AT 2y;
2nd count: MT 4y, AT 2*y;
3rd count: MT 4*y, AT 3y.
The offences involved the applicant being armed with a blood-filled syringe & robbing his victims of cash. When applicant was arrested for the 3rd offence, he informed arresting officers of the first 2 offences & made full confessions
Principles in R v Pearce applied in sentencing.
Failure to take into account applicant's voluntary admissions in relation to first 2 offences -
failure to apply principles in R v Ellis (1986) 6 NSWLR 603.
Appeal allowed on first 2 counts: 1st count - MT 3y, AT 1*y; 2nd count - MT 3*y, AT 2y.
305

KELLY, Francis Reginald - CCA, 14.4.2000
Dowd & Hulme JJ
Citation: R v Kelly [2000] NSWCCA 168
Sentence appeal.
27 x sexual intercourse with child under 16; 9 x indecent assault.
MT 5y, AT 3*y.
Offences occurred over a period of approximately 5 years & were committed against 3 sisters who were children of the applicant's friends. During the period of the offences, the eldest victim was aged between 8 & 13 - 28 of the offences charged related to offences against her; 6 offences involved the second girl; & 2 offences involved the youngest girl.
At the end of this period, the offences began to play on the applicant's conscience & he confessed to his wife & the parents of the girls.
Aged 58 at time of conviction - married with children of his own at the time of the offences.
Delay between offences & charging of applicant - insufficient weight given to guilty plea.
Appeal dismissed.
306

MALONE, Tyrone - CCA, 14.4.2000
Dowd & Hulme JJ
Citation: R v Malone [2000] NSWCCA 156
Conviction appeal.
1 x armed robbery in company; 1 x robbery in company; 1 x armed robbery using offensive weapons; an offence of stealing from a dwelling taken into account on a Form 1.
Aggregate MT 2y, AT 2*y.
Early guilty plea taken as an indication of contrition.
Each offence involved pizza delivery persons who were contacted & asked to deliver a pizza. When they arrived at the delivery address, the applicant attacked them. In all 3 offences, a knife was used.
Aged 20 at time of offences - vulnerable victims - degree of planning - use of personal violence considerable.
Facts of offences as related by sentencing judge on 2 counts take in features not reflected in charges - application of Henry.
Appeal dismissed.
307

KELVIN, Wilfred H.C. - CCA, 18.5.2000
Mason P, Heydon JA, Smart AJ
Citation: R v Kelvin [2000] NSWCCA 190
Sentence appeal.
6 x defraud Commonwealth.
2*y with NPP of 18m.
Applicant was a certified practising accountant & a registered tax agent. He removed tax stamps from documentation provided by his clients & then used them in his own tax returns & in the tax returns of his former de facto wife, resulting in a refund on each occasion. Offences occurred over a period of some 4 years. The offences came to the notice of the Australian Tax Office when an employee reported the applicant.
Guilty plea. Strong Crown case. Shortly before sentencing proceedings, applicant paid reparation of $97,000 which was sought by the Tax Office.
Aged 54 at time of sentencing - divorced - lived alone - little contrition - maintained his staff committed the offences.
No specific error of principle asserted by applicant. He claimed that insufficient weight had been given to various relevant factors. Whether sentence excessive.
Appeal allowed: resentenced to 2y with NPP of 12m.
308

VALENTINE, Warwick James - CCA, 19.5.2000
Beazley JA, Hulme & Barr JJ
Citation: R v Valentine [2000] NSWCCA 169
Conviction appeal.
Maliciously damage property by means of fire.
2y GBB; appellant also required to pay compensation in the sum of $49,358.
Evidence relied upon by the Crown was circumstantial.
Appellant had had a relationship with a woman for a few years & he was angry when she broke it off. On 2 occasions he threatened to get her. The woman moved from Gymea to a block of units in Caringbah & did not inform the appellant of her new address. He asked a friend working at NRMA to obtain her address for him. The car the appellant had been using was seen in the vicinity of the block of units at about the time of the fire, which had been lit in a garage of the units.
Error in not directing a verdict of not guilty at end of Crown case - error in failing to clearly direct jury on duty to acquit if a rational inference reasonably open that another may have lit the fire - whether verdict unreasonable.
Appeal dismissed.
309

ROMERO-CEPEDA, Jorge - CCA, 9.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Romero-Cepeda [2000] NSWCCA 229
Sentence appeal.
Knowingly concerned in importation of commercial quantity prohibited drugs (3.5739 kgs pure cocaine).
11y with NPP of 6*y.
23 envelopes sent to various addresses in Australia were intercepted by the NCA following information from a police informer. Each envelope contained coloured plastic folders. There were 58 folders in all, within which was impregnated 3.5739 kgs pure cocaine. The mode of impregnation required a chemical process to extract the cocaine. The applicant was the chemist involved in this process.
Applicant claimed there was a marked disparity of sentence when compared with sentences imposed upon other persons involved in the criminal enterprise, referring to Lowe (1984) 154 CLR 606 & Postiglioni (1997) 189 CLR 295.
Appeal dismissed.
310

ENGLISH, Jason Wayne - CCA, 16.6.2000
Giles JA, Adams J
Citation: R v English [2000] NSWCCA 245 revised - 11/07/2000
Sentence appeal.
Robbery in company.
MT 18m, AT 6m.
Guilty plea.
Applicant was sentenced on the basis that he only stood by & it was his male co-offender who had wielded the knife used in the robbery of a female working in a florist & gift shop. However, the co-offender was later sentenced on the basis that he, the co-offender, was the one who only stood by, the sentencing judge not being able to find beyond a reasonable doubt that it was the co-offender who wielded the knife.
Applicant represented himself on appeal - submitted he 'did not deserve the same time as the man who held the knife ...'- need to address drug problem.
Crown raised further matter that applicant may not have received the benefit of his pre-sentence custody.
Appeal allowed insofar as to take pre-sentence custody into account: sentence adjusted to 2y less 7d, with NPP of 18m less 7d.
311

WRIGHT Noel Andrew - NSW SC, Dunford J, 22.6.2000
Citation: R v Wright [2000] NSWSC 568
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant offered to sell marijuana to the victim & the victim was to pay him $12,000. After making arrangements to meet in a secluded area for the transaction to take place, the applicant told the victim the marijuana was in his car & when the victim was near the boot of the car, the applicant shot him in the back. The victim fell to the ground & the applicant then approached him & from a distance of approximately half a metre he shot him in the head. He then went to the vehicle the victim had been using & removed the money, as well as the victim's 2 wallets. He picked up the victim's rifle from the floor of the vehicle, walked back to where he was lying & shot him in the chest.
Remorse - acceptance of responsibility for actions - feelings of guilty - positive attempts whilst in prison to acquire literacy, numeracy & trade skills - attended drug & alcohol, as well as psychological counselling.
Application allowed: sentenced to 22y with NPP of 15y.
312

SZABO, Laszlo - CCA, 11.7.2000
Heydon JA, James & Bell JJ
Citation: R v Szabo [2000] NSWCCA 226
Conviction appeal.
Murder (of wife).
Appellant & deceased had been married for about 8 years, he was 70 at the time of the death & she was 52. Both had been married before. Appellant had 2 sons from his former marriage, deceased had 2 daughters. Evidence there had been friction in the marriage for some years, involving arguments about money, as well as verbal & physical abuse. Appellant admitted killing his wife. There was evidence she died as a result of extensive head injuries caused by repeated blows with a brick. Appellant had suffered minor head injuries. Appellant called evidence from 2 psychiatrists, his former wife, his sons & a friend as to his mental state & relationship with the deceased, but did not give evidence himself.
Contention that trial judge failed to adequately & properly direct the jury in relation to defence of provocation under s.23 Crimes Act 1900. Further, that there were irregularities in the conduct of the trial, resulting in the jury being mistaken or misled & that the consequent finding that the appellant was guilty of murder was a miscarriage of justice.
Appeal dismissed.
313

HARVEY, Arthur Frank - CCA, 13.7.2000 - 113 A Crim R 434
Fitzgerald JA, Sperling & Whealy JJ
Citation: R v Harvey [2000] NSWCCA 253
Sentence appeal.
Attempt obtain possession of trafficable quantity prohibited import (amphetamine).
5y with NPP of 2y 30w.
A parcel was intercepted at Melbourne airport & was found to contain amphetamine tablets in plastic bags (1,508 tablets, weight 403 grams, 51.3 grams pure - street value $42,000). Federal Police officers substituted iron & calcium tablets, placed fluorescent powder on the substituted packets, as well as placing a listening device inside. A police officer, masquerading as an Australia Post employee, delivered the package to the applicant & on the same day police raided his premises. The parcel had been opened & there were yellow spots on the accused's hands from the powder. He was then arrested.
Trial judge held that although not a 'bare courier'applicant's criminality was broadly similar to that of a courier.
Whether high-range/mid-range drug a relevant distinction - applicability of Wong & Leung [1999] NSWCCA 420 to mid-range drug importation offences - whether sentence manifestly excessive..
Appeal dismissed.
314

BULL, KING & MAROTTA v THE QUEEN - HC, 11.5.2000 - 201 CLR 443; 73 ALJR 265
Appellants convicted of 4 sexual offences. Complainant's evidence was that following a telephone call to one of the appellants, she went to his home. When she arrived there, all 3 appellants & another man were there. She said she was later handcuffed & sexually assaulted. Appellants alleged she consented to the sexual activity & was never handcuffed. They sought to cross-examine the complainant on the appellant's version of the telephone conversation that caused the complainant to go to the house, arguing that this conversation tended to prove the complainant came to the house for the express purpose of having sexual intercourse & giving effect to her sexual fantasies. Trial judge rejected the evidence pursuant to s.36BA Evidence Act 1906 (WA) & subsequent appeal to the WA CCA was dismissed.
Disposition or experience - res gestae - Evidence Act 1906 (WA), ss.36B, 36BA.
Appeal allowed: convictions quashed, new trial ordered.
315

LALOUM, Laurent Bruno - CCA, 7.7.2000
Fitzgerald JA, Sperling & Whealy JJ
Citation: R v Laloum [2000] NSWCCA 248
Crown appeal.
Import commercial quantity cannabis (624 kgs).
9y with NPP of 4*y; a forfeiture order was made pursuant to s.19 Proceeds of Crime Act 1987 in respect of money & other property.
A 20 foot shipping container containing used furniture was sent from South Africa to Australia by sea. The cannabis was concealed in the used furniture. Sophisticated operation in which the respondent was directly involved.
Aged 40 at time of sentencing - born in Algeria of French parents.
Sentencing judge's failure to reflect objective seriousness of respondent's offence - error in approach by sentencing judge - whether sentence manifestly inadequate.
Appeal dismissed.
316

GHALE, Nima Tsering (aka Ram Sharan Mahat) - CCA, 7.7.2000
Fitzgerald JA, Sperling & Whealy JJ
Citation: R v Ghale [2000] NSWCCA 249
Crown appeal.
Knowingly concerned in importation of commercial quantity heroin.
7y with NPP of 4y 3m.
The gross weight was approximately 3.4 kgs, yielding a net weight of approximately 2.4 kgs with a street value of $4m to $5m.
Respondent arrived in Australia on a Nepalese diplomatic passport in the name of a former member of the Nepalese government. The passport had been falsified. The respondent travelled on that passport from Nepal to Bangkok where he obtained possession of a bag containing heroin, then he came on to Australia. Once in Sydney, he booked into a hotel & 2 days later was contacted by a person who was also involved in the enterprise & later that day he delivered part of the heroin to a 3rd person. Shortly after respondent's arrest, the balance of the heroin, the false passport & other material were seized. Initially respondent maintained he was the person referred to in the passport & he was imprisoned & committed for trial in that name. The indictment on which he was convicted was presented in his correct name.
Courier - low in hierarchy of organisation.
Whether sentence manifestly inadequate.
Appeal dismissed.
317

MAJDALAWI, Hoss - CCA, 13.6.2000 - 113 A Crim R 241
Spigelman CJ, Newman & Adams JJ
Citation: R v Majdalawi [2000] NSWCCA 240
Conviction appeal.
Murder (of wife).
Appellant shot his wife a number of times outside the Family Court in Parramatta, the last shot was at close range to her head.
Defence at trial was of diminished responsibility. Supporting evidence from 2 psychiatrists, one of whom was engaged by the Crown although he was ultimately called in the defence case.
Only ground of appeal that verdict unreasonable having regard to the medical evidence which established defence of diminished responsibility.
Appeal dismissed.
318

VEEN, Robert Charles - NSW SC, Sully J, 7.7.2000
Redetermination of life sentence under s.13A Sentencing Act 1989.
Manslaughter (stabbing).
Significant criminal history. Antecedents involved the non-fatal stabbing of his landlady, another involved the fatal stabbing of a man.
At present aged 45 - taken from his mother at 1 year of age & placed in the Aboriginal Welfare system until he was fostered by the Veen family when he was 2 years of age, his natural mother not consenting to any formal adoption. He was 1 of a total of 5 children in that family & was raised within the family for some 15 years, with some problems and absences from age 11 to 17. He suffered sexual abuse (from age 11) as well as other abuse in various boys's homes.
In 1997 applicant's classification within the prison system was relaxed from a B to a C1 classification.
Efforts at rehabilitation - very real natural gift for graphic art.
Application allowed: sentenced to MT 20y, AT balance of natural life.
319

McMILLAN, Michael Ivan David - CCA, 16.6.2000
Giles JA, Adams J
Citation: R v McMillan [2000] NSWCCA 241
Sentence appeal.
MT 3y, AT 3y.
Knowingly take part in manufacture of large commercial quantity prohibited drug (1-Phenyl 2-Nitropropylene - 1,830.5 grams).
Applicant an unwilling & reluctant recruit to the enterprise had been threatened with his life if he didn't participate. He pleaded guilty, thereby foregoing any defence of duress. His role was to obtain chemicals required to produce amphetamine. He was used as the 'public face'of the operation & had to sign leases, prepare premises, pay rent, purchase chemicals & apparatus, as well as set up companies under fake names. He tried to sabotage or slow down production of amphetamine by failing to order proper chemicals, dropping apparatus, etc. This was ultimately ineffectual & a large quantity of 1-Phenyl 2-Nitropropylene (precursor to manufacture of amphetamine) was produced. He became more & more concerned with the seriousness of the crime & increasingly reluctant to participate in it. He decided to have nothing more to do with it & broke equipment & tried to destroy a quantity of drugs. He left the premises & phoned police to inform them there had been a break-in, hoping they would find the laboratory & remaining drugs. However, what he did caused a fire. The fire brigade extinguished it & found the laboratory, etc. Police were called in. Amount of drug found would have yielded 10-15 grams amphetamine, street value of approx $10m. Police found a document prepared by the applicant setting out in a very detailed way the process by which the laboratory had been set up & functioned. He did this to assist police & left it there deliberately for that purpose.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 18m.
320

GEORGIOU, Constantine - NSW SC, Dowd J, 10.3.2000
HARRISON, Bruce Malcolm
Citation: R v Georgiou & Harrison
Remarks on Sentence:
Each convicted of 3 x murder; 1 x attempted murder.
The offences related to the shooting of 4 members of the Bandido Outlaw Motor Cycle Club by a member and an ex-member of the Rebel Club in the basement of the Black Market Caf*, Chippendale. The shootings were carried out at close range with the intention to kill. There was insufficient evidence to establish that they were either contract or execution killings.
Georgiou: Young child - good character evidence from friends & family.
Harrison: Young daughter - held positions of responsibility in gaol.
Each sentenced to aggregate MT 28y, AT 5y.
Georgiou received a concurrent sentence for contempt as a result of refusing to answer questions in cross examination & failure to adhere to the directions of the court.
321

SHAFIEI, Ali - CCA, 14.7.2000 - 115 A Crim R 45
Fitzgerald JA, Sperling & Whealy JJ
Citation: R v Shafiei [2000] NSWCCA 254
Conviction and sentence appeal.
Possess trafficable quantity prohibited import (opium).
6*y with NPP of 3*y.
At DHL Worldwide Express, Customs officials opened a parcel which had come from Bulgaria & within which were 2 wooden icons. The recipient's name appeared on the shipment airway bill, the contents described as 'copies of wooden icons'with a declared value of $10.00. The icons were examined & Federal Police were called when a sample of organic substance was tested showing the presence of an opiate substance. Federal Police found packages inside the icons containing a black sticky substance which upon analysis was found to be opium weighing just over 2 kilograms. A controlled delivery took place with a Federal Police Agent masquerading as a DHL officer delivering the parcel to the appellant's home. The appellant's wife signed the delivery record. Later that day, Federal Police executed a search warrant & found the parcel in the ceiling of the appellant's premises. Appellant's case at trial was that he was unaware of the contents of the items delivered to his home.
Misdirection regarding element of 'not less than a trafficable quantity'- whether sentence manifestly excessive.
Appeal allowed: new trial ordered.
322

WANG, Joyes Hong - NSW SC, Adams J, 23.5.2000
Citation: R v Wang [2000] NSWSC 447
Remarks on Sentence
.
2 x manslaughter.
Accused strangled her husband & poisoned her 1 year old daughter. She attempted to kill herself & was unconscious when found by police. Both she & the baby were dressed in red when found. Accused claimed to have accidentally killed her husband trying to keep him from preventing her from killing her daughter & herself. Accused was suffering a severe depressive illness at the time of the offences. Accused's daughter suffered from cerebral palsy & the accused was worried that no-one would look after her once the accused had killed herself. Her husband had once told her that should she die, he would send the child to China to be put into a centre for orphans. Accused had seen a documentary on TV about orphans in China & she said she couldn't bear her baby being sent there & being subjected to torture & suffering.
Substantial impairment of mental capacity - depression - attempted suicide - relevance of general & personal deterrence - totality.
Total aggregate MT 4y, AT 2y.
323

PHAN, Vinh Ngoc - NSW SC, Sully J, 26.5.2000
Citation: R v Phan [2000} NSWSC 426
Remarks on Sentence.
Murder.
The deceased was found in the driver's seat of a MV. He had been shot 3 times. The weapon used was never found. The bullet causing the 1st wound was recovered, the bullet causing the 2nd wound was not found & only fragments of the bullet causing the 3rd wound were found. The accused was alleged to have fired at least one shot. There was no evidence of prior acquaintance with the deceased or of motive.
Although a serious crime, sentencing judge did not consider it called for a life sentence to be imposed.
Sentenced to 13y 35w with NPP of 10y 9w.
324

HOSWELL, Clint - CCA, 21.6.2000
Grove & Newman JJ
Citation: R v Hoswell [2000] NSWCCA 250
Sentence appeal.
3 x BE&S; possess implement capable of being used to enter conveyance; take & drive conveyance; + Form 1 matters taken into account.
MT 2*y, AT 10m.
No details of offences provided.
Aged 24 - lengthy criminal history - drug problem - inability to cope with stresses in life.
Rehabilitation - applicant submitted his AT of 10m was too short & requested his sentence be adjusted. No special matter of principle.
Appeal dismissed.
325

FIU, Ema - NSW SC, Ireland J, 1.6.2000
Remarks on Sentence.
Manslaughter.
The accused was put on trial for murder after the Crown rejected a guilty plea to manslaughter. The accused stabbed her lover when he told her that he did not love her & would not marry her. The killing was provoked by the fact that the deceased had used the accused for sexual gratification. She attempted to kill herself.
West Samoan - genuine remorse - depression and other mental problems - high order of impairment to mental responsibility.
Issue at trial was partial defence of diminished responsibility & provocation.
Sentenced to 7y with NPP of 3*y.
326

ILBAY, Osman - CCA, 21.6.2000
Grove & Newman JJ
Citation: R v Ilbay [2000] NSWCCA 251
Sentence appeal.
Supply heroin; + 5 further supply heroin on a Form 1.
MT 2*y, AT 1y.
Applicant pleaded guilty after a voir dire hearing some months prior to being sentenced.
There was delay due to the fact that shortly after being charged, the applicant absconded from Australia, returning voluntarily many years later. His co-offender had been dealt with some 11 years previously. Co-offender higher in hierarchy of drug enterprise than applicant. Co-offender had a poor criminal record, whereas applicant had no prior convictions. Co-offender dealt with prior to the Sentencing Act 1989.
Parity - justifiable sense of grievance - discrimination in overall criminality - different multiple offences - no special matter of principle..
Appeal dismissed.
327

HUANG, Chin Ming - CCA, 9.6.2000 - 113 A Crim R 386
Spigelman CJ, Newman & Adams JJ
Citation: R v Huang [2000] NSWCCA 238
Sentence appeal.
Attempt obtain possession of trafficable quantity prohibited import (heroin).
8y with NPP of 5y.
Applicant a citizen of Taiwan, resident in Hong Kong, made a number of short visits to Australia. During one such visit, a Singaporean national travelling on a false passport arrived in Brisbane & was detained by Customs officers. A little over 1 kg of heroin admixture (809.5 grams pure) was found divided between pouches inserted in each of his shoes. Acting with Australian Federal Police he phoned a contact in Thailand & was told to travel to Sydney. Federal Police officers accompanied him together with a controlled delivery sample & booked into a hotel. He phoned his contact in Thailand to let him know his whereabouts. A little while later, his contact phoned & told him a person would be coming to collect the package. A little over an hour later, he received a phone call from the applicant. When the applicant arrived, he told the man he didn't have any money & would return the following day. Police followed the applicant & he was seen to make a number of telephone calls & drive to various places in the city. Over 2 hours later, applicant again contacted the man & told him he was returning to pick up the package. When he got to the man's room, the applicant handed him $3,000 in Australian currency & $5,000 in Singaporean currency & then took possession of the bag & left. Police followed him for some time & eventually observed him throwing a bag out of his car window as he negotiated a turn. However, as he did so, the bag caught against the indicator lever & tore, spilling powder over the front seats & over the applicant. The car mounted the curb, collided with a pole & white powder was spread across the driveway.
Courier - gambling problem - financial difficulties - depression - markedly passive - limited English - no friends or family able to visit - whether sentence
xcessive.
Appeal dismissed.
328

ROBINSON, Harry - NSW SC, Barr J, 16.6.2000
Citation: R v Robinson [2000] NSWSC 541
Remarks on Sentence:
Deceased was serving a sentence following his conviction for sexual offences on schoolchildren within his charge & that fact came to be suspected by the inmates of the gaol. Inmates obtained papers from the deceased's cell which confirmed their suspicion & a discussion took place about giving the deceased a hiding & getting rid of him from that part of the gaol. The accused said he would do it. He & another inmate went to the deceased's cell & punched & kicked him, with the accused concentrating on the deceased's head, delivering a large number of kicks. The cause of death was blunt force head injury. There were a number of fractures, ie to the right side of the jaw bone & to the nose as well as extensive bruising of the skin over the right cheek & jaw. There was a tear beneath the upper lip, teeth were broken & there was bleeding on the inside of the skull & over the surface of the brain. At the time of the attack, the accused had an injured knee & afterwards said he was sorry he hadn't been able to stomp harder on the deceased's head because of his knee injury.
Aggressive behaviour in gaol - use of alcohol & illegal & prescription drugs in gaol - attempted suicide - self-mutilation - psychiatric care - suffered violence & sexual assaults as a child - severe personality disorder with anti-social & borderline traits - hatred of homosexual men.
Sentenced to 22y with NPP of 15y.
329

CHALMERS, Maxwell John - CCA, 29.5.2000
Sully & Adams JJ
Citation: R v Chalmers [2000] NSWCCA 206
Sentence appeal.
Supply heroin.
MT 3y 8m, AT 1y 3m.
Applicant claimed wife's drug addiction played big part in him committing offence, proceeded to recount what trial judge described as a 'most incredible story'Proceedings at trial disjointed & confusing, with trial judge not receiving coherent & focused assistance from either counsel. Doubt & confusion as to existence of person named in evidence. Applicant's counsel pointed out judge incorrect in his understanding concerning existence of that person. No re-evaluation or re-assessment by judge of his earlier remarks, which was not helped by fact there was no cross examination of applicant or his wife.
Whether sentence proceedings miscarried by reason of applicant not having had an opportunity to present his case fully & to have it properly tested.
Power of CCA to deal with matter - suggestion applicant should appeal to Court of Appeal for prerogative relief.
Matter stood over generally with liberty to restore to list on 7 days' notice in writing.
330

ROBERTSON, Hayden Robert - CCA, 14.7.2000
Meagher JA, Grove & Bergin JJ
Citation: R v Robertson [2000] NSWCCA 266
Crown appeal.
Knowingly concerned in importation of prohibited import (Methyldioxin Methylamphetamine - known as 'ecstasy').
3y PD, to be suspended after 1y.
Respondent used marijuana from time to time; first started using it when at boarding school. Respondent was living in a flat with fiancee & in order to obtain his supply of marijuana, he came into contact with Capper. Whilst under the influence of marijuana, Capper put a proposition to him in which respondent would act as a 'post box'for material arriving from overseas. Respondent later admitted he knew drugs were involved, although evidence showed he had no idea of what drugs were involved nor the quantities. Some mail was collected by respondent & his fiancee & as they were on their way to delivery it to Capper, they were stopped by Federal Police. Respondent was in a desperate situation at the time, both he & his fiancee had become unemployed & the fiancee had a medical condition which required periodic treatment for psychotic episodes; debts were mounting up.
Aged 22 - no priors - adopted at 1m of age - recently had first contact with birth mother - exceptional circumstances - minor role
Whether sentence inadequate - sentence of PD within discretionary bounds in exceptional circumstances of the case.
Appeal dismissed.
331

WEBSDALE, Geoffrey Ian - NSW SC, Studdert J, 6.7.2000
Citation: R v Websdale [2000] NSWSC 636
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Life.
Applicant went on a shooting spree, killing 2 people & wounding 2 others, one of whom was rendered a quadriplegic. The applicant worked as an apprentice of a team of shearers which included 3 of the victims (2 females, 1 male), the other victim (male) not being a member. Having armed himself with a semi-automatic rifle, applicant kicked open the door of the women's quarters & observed the 2 women lying on the beds, each accompanied by a male. Applicant commenced firing his weapon.
Aged 20 at time of offence - need to address anger - need to pursue violence prevention course - contrition - deterrence - protection of the community - need for further drug & alcohol counselling.
Application allowed: resentenced to 25 with NPP of 18y 9m.
332

WHITE, David Timothy - NSW SC, Studdert J, 22.6.2000
Citation: R v White [2000] NSWSC 555
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder; sexual intercourse without consent.
Life.
A vicious attack upon a 53 year old woman in her home. A post mortem showed numerous stab wounds, one wound passing through her right eye into the orbital plate above it & then into the brain; 16 stab wounds along the front of her neck including penetration of the major carotid artery; extensive bruising to the head & a fractured skull which was caused by a piece of wood with which the applicant beat the deceased. Once she was dead, the applicant had sexual intercourse with the deceased. Deceased's body was eventually found lying in her bedroom, semi-naked, her clothing pulled over her chest & neck.
Applicant aged 29 at time of s.13A hearing - numerous convictions whilst in prison, some for offences of violence - low IQ (with a 30 point difference between verbal & non-verbal scores) - numerous behavioural problems whilst in custody - undertaken various courses whilst in prison - still denies guilt.
Application allowed: resentenced to 22y with NPP of 16*y.
333

CHEN, Xin - CCA, 14.7.2000
Meagher JA, Grove & Bergin JJ
Citation: R v Chen [1000] NSWCCA 267
Sentence appeal.
Conspire to take part in bringing unlawful immigrants into Australia.
15m with NPP of 12m, with a 3y GBB upon release.
At the time of the offence, the maximum sentence available was 2y with and/or a fine of $13,200. The maximum sentence has been increased in recent times.
A ship set sail from Hong Kong with 14 crew members on board & 69 people secreted in living quarters between the steel hull of the ship & internal bulwarks. It arrived on the eastern seaboard of Australia. Applicant was an active participant with a vital role in the landing of the illegal immigrants, although he was not an organiser of the venture. He had received funds for the purchase of a boat to ferry people from the ship to the shore, but due to an error he damaged the vessel & it was not able to be used to ferry the people.
Ratio between MT & AT - whether sentence excessive.
Appeal dismissed.
334

GUZMAN, Maria Cecillia - CCA, 20.4.2000
HENAO, Orlando Leon
Priestley JA, Sperling J, Foster AJA
Citation: R (Cth) v Guzman & Henao [2000] NSWCCA 261 revised - 19/07/2000
Sentence appeal.
Knowingly concerned in importation of commercial quantity prohibited import (cocaine - 2,635 grams); knowingly concerned in importation of trafficable quantity prohibited import (cocaine - 1,249 grams). Henao also had offence of being in possession of money which could be reasonably suspected of being proceeds of crime taken into account.
Packages containing computers in which cocaine was concealed intercepted by Australian Customs personnel. Recorded conversations revealed appellants involved as principals.
Henao: 17*y with NPP of 13*y.
Whether sentences excessive - couriers - reference to Wong & Leung guideline - aged 55 would spend almost rest of life in prison - error in fixing NPP (approx 75% of head sentence).
Appeal allowed: resentenced to 17*y with NPP of 12y.
Guzman: 12*y with NPP of 9*y.
Allowance for guilty plea made at wrong stage - error in fixing NPP (approx 75% of head sentence).
Appeal allowed: resentenced to 12*y with NPP of 7*y.
335

BABLANIAN, Sam - CCA, 14.7.2000
Adams & Bell JJ
Citation: R v Bablanian [2000] NSWCCA
Sentence appeal.
2 x robbery in company; 1 x BE&S; 3 x car stealing.
MT 3*y, AT 3*y.
All offences occurred within a few days, a few weeks before applicant's 21st birthday.
During one of the robbery in company offences, unknown to the applicant, his 2 accomplices were armed with samurai swords which were used to terrify the occupants of premises they invaded in order to steal various items & cash. The 2nd count involved the robbery of a post office. The commission of both those offences involved using stolen MVs. The 3rd count involved B&E a house in order to steal, however, they were disturbed by the return of the owner whereupon they stole his vehicle & escaped.
Living on the streets at time of offences because of being ejected from his home due to him stealing from his family in order to feed his drug habit.
Inadequate weight given to assistance to authorities - significance of below average intelligence - borderline mentally retarded range for ability - rehabilitation - family support - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5y with NPP of 2y.
336

BRIGHT, Marion Ann - CCA, 25.7.2000 - 114 A Crim R 466
Meagher JA, Grove & Kirby JJ
Citation: R v Bright [2000] NSWCCA 258
Conviction appeal.
B&E with intent to commit malicious damage; armed with intent to commit assault (tomahawk).
Alleged that appellant was one of a number of people who had encircled a house, yelling abuse & making threats against its occupants. Objects, including pot plants, were thrown through the window & they broke down the front door & invaded the house. The female occupant & her small children fled in terror & hid in the rear of the house. A tomahawk was used to chop through a bedroom door before the group retreated.
Information conveyed to jury by court attendant - whether contamination of jury - reasonable apprehension jury might not have brought an impartial & unprejudiced mind to resolution of issues.
Appeal allowed: new trial ordered.
337

AUSSEM, Reiner - CCA, 9.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Aussem [2000] NSWCCA 220
Crown appeal & sentence appeal.
Import commercial quantity cocaine (4.666 kgs with pure weight of 2.96 kgs).
8y with NPP of 2*y.
Respondent apprehended at Sydney airport carrying the cocaine on his body.
German extraction - living in South America for a number of years - full co-operation with Customs authorities. Respondent placed at personal risk, having had conversations with one of the conspirators which were recorded by way of a recording device on his body, leading to the apprehension of the contact man in Australia, who is now serving a sentence relating to the importation.
Whether error in sentence judge's remarks on sentence relating to imposition of head sentence.
Past & future assistance to authorities - calculation of discount for future assistance.
Appeal allowed: resentenced to 6y with NPP of 3y.
338

DHANHOA, Kamaljeet Raju - CCA, 20.7.2000
Priestley JA, Foster AJA, Sperling J
Citation: R v Dhanhoa [2000] NSWCCA 257
Crown appeal.
Dangerous drive occasioning death.
MT 12m, AT 2y; disqualified from driving for 2y.
Respondent, aged 21, & his passenger, aged 16, had been at a New Year's Eve party & had consumed a large quantity of alcohol. The accident happened about 5 am on New Year's Day. Whilst travelling into a left-hand bend, the car crossed to the wrong side of the road, crossed back to the correct side of the road, then left the road & hit a tree on the driver's side. The car then caught fire. Some people tried to put out the fire & after some time the respondent was removed from the driver's seat. The deceased was not noticed in the passenger seat as the car was filled with smoke. After the bush fire brigade put out the fire, the deceased's incinerated remains were found.
Roadway dry & in good repair - weather fine - no-one witnessed accident - skid marks of 78 metres leading to point of collision.
Whether sentence inadequate.
Appeal dismissed.
339

LA PRAIK, Scott Bruce - CCA, 6.7.2000
Sheller JA, James & Adams JJ
Citation: R v La Praik [2000] NSWCCA 273
Conviction appeal.
Malicious wounding with intent to do GBH.
Violent altercation in a hotel. A fight broke out between the appellant & the victim, during which the appellant cut the victim's face with a broken glass. Appellant's case was that he acted in self-defence. An altercation also occurred between friends of both the appellant & the victim.
Error in refusing to discharge jury - whether trial miscarried when inadmissible & prejudicial material relating to appellant's friend was admitted into evidence.
Appeal dismissed.
340

ARCHER, Mathew - CCA, 11.7.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Archer [2000] NSWCCA 176
Crown appeal.
Robbery in company.
MT 1y, At 2y.
Respondent & another man approached victim sitting in a park & demanded his wallet. Respondent held a knife at victim's throat. Sentencing judge accepted respondent kept his thumb between the blade of the knife & victim's throat & was satisfied respondent did not intend to use the knife to inflict ABH, however, he recognised that use of the knife was intended to frighten victim. Respondent & co-offender took credit cards, forcing victim to give them PIN numbers, with co-offender kneeing him in the groin & face & punching him. They then told victim it had all been a joke. Victim asked for his wallet back & they left in on the ground, saying everything was still in it, then left. Victim noticed 2 cash cards were missing & contacted police. They drove around until they found offenders in a car park.
Vulnerability of victim - whether sentence inadequate.
Appeal dismissed.
341

DOUGLAS, Barry - CCA, 28.7.2000
Mason P, Sully & Sperling JJ
Conviction appeal.
17 counts, including weapons offences, armed robbery & maliciously inflict ABH.
Aggregate MT 12y, AT 4y.
Appellant pleaded not guilty. Directed verdict of not guilty on one count, appellant found guilty on remaining counts. On day of arrest, appellant participated in 2 lengthy ERISPs & made full admissions in relation to firearm offences & several robberies. In a later ERISP, he made admissions to several other robberies.
Admissions during ERISP - police held accused incommunicado during search of home - denial of access to lawyer - onus of establishing illegality - evidentiary overlap between counts - directions to jury that each count be considered separately - whether unfair prejudice arising.
Appeal dismissed.
342

ELFAR, Karim John - CCA, 21.7.2000 - 115 A Crim R 64
Mason P, Sully & Sperling JJ
Citation: R v Elfar [2000] NSWCCA 255
Conviction and sentence appeal.
Knowingly take part in manufacture of commercial quantity amphetamine.
MT 2y 4m, AT 2y 6m.
Appellant & co-offender involved in a joint venture to manufacture amphetamine. Indictment presented against them charged an intended manufacture of not less than the commercial quantity. Ample evidence at trial linking appellant with factory premises that were fitted out as a laboratory, that he had ordered equipment for use in the manufacture, that co-offender had purchased chemicals for the manufacture.
Point taken on appeal was that trial judge fell into error by not directing jury as to alternative verdict open to them pursuant to s.24(3), appellant's contention being that evidence at trial was so imprecise as to relevant quantities that it remained open for the jury to be satisfied beyond reasonable doubt that appellant had knowingly taken part in manufacture but not be satisfied beyond reasonable doubt that amount in question had been not less than the prescribed commercial quantity of 250 grams.
Whether sentence excessive.
Appeal dismissed.
343

BURRELL, Wayne Ronald - CCA, 21.7.2000 - 114 A Crim R 207
Mason P, Sperling J, Smart AJ
Citation: R v Burrell [2000] NSWCCA 262
Crown appeal.
Supply commercial quantity methylamphetamine; supply cannabis leaf.
3y GBB with a $3,000 fine on each count in the indictment.
Telephone intercepts & physical surveillance provided evidence that respondent was one of many people involved in a drug distribution network organised by Leslie Kalache. Police intercepted telephone calls relating to the purchase of prohibited drugs. Respondent was observed driving a vehicle which, when searched by police, contained separate plastic bags of 440.3 gms & 400.1 gms amphetamine; 1,018 gms & 1,002 gms compressed cannabis.
Aged 50 - had been a T12 paraplegic for over 20 years - weighed 21 stone - needed help with dressing, showers, etc - needed regular medical supervision for hypertension, bladder problems, obesity, bowel dysfunction, urinary tract infections - required 24 hour care - had to self-catheterise - significant risk full-time custody would result in complications & infection.
Whether sentence inadequate.
Appeal dismissed.
344

THOMAS, Vernon Mark - CCA, 12.7.2000
James & Bell JJ
Citation: R v Thomas [2000] NSWCCA 265
Application for extension of time for leave to appeal against sentence.
Sexual intercourse without consent in circumstances of aggravation; indecent assault; common assault.
Aggregate MT 5y 3m, AT 1y 9m.
All offences committed by applicant against the same victim on 24 May 1993 in a cell the applicant & victim were sharing at Goulburn Gaol. Sentences were imposed in August 1994. At the time of sentence, applicant was already serving a sentence for armed robbery. At time of offences, applicant was 38 & victim 20 years of age. Sentencing judge remarked:
'how the penal system in a civilised country can require a twenty year old minor thief to be locked in a cell overnight with a major offender twice his age, with Hepatitis B and prior convictions for offences of violence and sexual assault raises grave questions indeed'.
Sentencing judge noted applicant had a criminal history running into 5 pages of computer print-out - showed no remorse - psychiatric report that he had a personality ravaged by his early deprived childhood.
Application for extension of time to appeal against conviction only was lodged on 24 May 1999 with sole ground it had not become apparent until February 1999 that applicant was medically unable to sustain an erection. On 12 May 2000 a notice of abandonment of appeal against conviction was lodged, however, it was stated that applicant wished to proceed with appeal against sentence.
Principle of totality - special circumstances.
Application refused.
345

THOMPSON, Graham Allan - CCA, 5.7.2000
Mason P, James & Whealy JJ
Citation: R v Thompson [2000] NSWCCA 243
Conviction appeal.
Supply trafficable quantity prohibited drug (methylenedioxymethylamphetamine).
350h CSO.
Found in the appellant's residence, which he shared with another man, was the appellant's glasses case, inside which were 18 tablets in a plastic bag & $950 in cash. On analysis the tablets were found to contain more than the trafficable quantity of the prohibited drug.
Crown case at trial was that appellant was guilty of offence of supply by virtue of having been in possession of a quantity of the prohibited drug being not less than the trafficable quantity. At trial, appellant disputed that he had been in possession of any amount of the drug.
Verdict of guilty unreasonable.
Appeal dismissed.
346

SAAVEDRA, Lily - CCA 9.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Saavedra [2000] NSWCCA 234
Sentence appeal - leave to appeal out of time.
Conspire to import large commercial quantity prohibited import (cocaine - 50 kgs).
7y with NPP of 4*y.
Applicant's participation in conspiracy not that of mere courier or a person low down in the hierarchy. Applicant's participation vital to the conspiracy, being the person making contact with persons in Bolivia for the supply of the cocaine. Ultimately, the venture resulted in failure, the conspirators unable to obtain the drug from the South American suppliers.
Sentencing principles not affected by failure of conspiracy.
Parity of sentence - whether justifiable sense of grievance.
Appeal dismissed.
347

COSSEDDO, Francesco - NSW SC, Studdert J, 25.5.2000
Citation: R v Cosseddo [2000] NSWSC 446 revised - 25/05/2000
Following a special hearing conducted in accordance with provisions of Mental Health (Criminal Procedure) Act 1990, jury found on limited evidence available that accused committed the crime of murder. The victim was his wife.
Nomination of 'limiting term'- principles applicable - Mental Health (Criminal Procedure) Act, ss.23, 24.
'Limiting term'14y.
348

DARGIN, William Roy - NSW SC, Ireland AJ, 6.7.2000
Citation: R v Dargin [2000] NSWSC 710
Remarks on Sentence.
Murder; + aggravated sexual assault taken into account on a Form 1 (of the murder victim).
Victim, a married woman aged 72, died as a result of multiple head & neck injuries, the autopsy report disclosing multiple, gross comminuted fractures to both lower & upper jaw, neck injuries included bilateral fractures of the hyoid bone & damage to the thyroid cartilage, as well as injuries to her genital area.
Intent of grievous bodily harm - guilty plea - intoxication.
Accused aged 24 - Aboriginal - interrupted education - behavioural problems at school; - alcohol problem - below average intelligence - spent much of his youth in & out of boys' homes, including Minda & Mt Penang - criminal history included numerous entries of offences of dishonesty with episodes of violence, also robbery in company, extending over 8 years.
Sentenced to 19y with NPP of 14y.
349

RYAN, Michael James - NSW SC, Adams J, 14.7.2000
Citation: R v Ryan [2000] NSWSC 724
Remarks on Sentence.
Manslaughter.
Originally charged with murder. Pleaded not guilty to murder but guilty to manslaughter.
Truck driver intentionally drove his truck across the median strip onto the wrong side of the road & then aimed the truck at oncoming cars. Most cars were able to avoid the truck, however, two cars were hit head-on, the drivers of both cars killed.
The truck driver claimed that he wanted to die & was affected by amphetamine at the time.
Sentenced to aggregate 7y 10m with NPP of 5y 10m.
350

MURRELL, Lloyd Anthony - NSW SC, Studdert J, 5.7.2000
Citation: R v Murrell [2000] NSWSC 618
Remarks on Sentence.
Murder.
The victim was shot & killed inside his home.
Joint criminal enterprise - common purpose - intention to inflict GBH.
Aged 29 - lengthy criminal record, including offences of violence - excellent behaviour whilst in prison - good rehabilitation prospects - undertaken various studies - highly motivated to improve education abilities - assisted in orientation of new inmates - volunteered his services during an industrial dispute of prison officers - undertaken various studies in Peer Mentor Programme.
Sentenced to 17y with NPP of 12y 9m.
351

NGUYEN, Hoang Minh - NSW SC, Dunford J, 7.7.2000
Citation: R v Nguyen [2000] NSWSC 563
Application to withdraw plea of guilty to murder.
The plea of guilty was allegedly entered as a consequence of depression & confusion.
Plea of self-defence allegedly open to applicant - plea of guilty not evidence of consciousness of guilt.
Application dismissed.
352

THOMSON, David John - CCA 17.8.2000 - 49 NSWLR 383; 115 A Crim R 104
HOULTON
, Edward Joseph Curtis
Citation: R v Thomson & Houlton [2000] NSWCCA 309
Guideline judgment on guilty pleas.
Sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate no weight given to plea. Sentencing judge should quantify discount as far as is appropriate in the circumstances. Utilitarian value of plea (value of plea in saving state time & money) is 10-25%, judge to consider primarily the timing of the plea, but also the complexity of the issues & evidence involved. Such factors as remorse & the benefit to witnesses of a guilty plea are not included in the guideline. There may be additional discount for these factors depending upon the circumstances. Admissions to police must be considered the earliest possible timing for a plea of guilty. In some cases it will not be appropriate to give a discount for a plea (eg where a life sentence is appropriate). In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed ( eg: full time to Periodic Detention).

Does not apply to Commonwealth cases.

353

SPIES - HC, 3.8.2000 - 201 CLR 603; 74 ALJR 1263
Citation: Spies v The Queen [2000] HCA 43 (3 August 2000)
Appellant convicted of s.176A Crimes Act 1900. On appeal to CCA (NSW) conviction quashed & appellant convicted of s.229(4) Companies Code, an alternative charge on the indictment. This was done under s.7(2) Criminal Appeal Act 1912 which allows CCA to substitute verdict on alternative charge where jury must have been satisfied of facts which proved the appellant guilty of the alternative offence.
HC allowed appeal & ordered new trial on alternative charge. Discussion as to appropriate use of substitution power under s.7(2). s.7(2) most likely exercisable where 'other offence' is one which is wholly within the ultimate facts of the offence of which the accused has been convicted & the Court set aside.
Where the ground for setting aside the conviction is lack of evidence, wrongful admission of evidence, misdirection or failure to direct on an issue in the trial, s.7(2) only applies where jury must have been satisfied of some fact/facts underlying the conviction which are unaffected by the error & which constitutes another offence.
No scope for s.7(2) where wrongful rejection of evidence, unreasonable verdicts or miscarriage of justice.
Caution needed when deciding whether jury satisfied of facts constituting another offence. Concluded various cases from NSW, SA & England where substituted verdicts entered by appeal courts wrongly decided.
Jury must be satisfied of facts proved by admissible evidence & in accordance with proper direction.
Appeal Court must be satisfied "to the point of certitude's that jury satisfied of relevant facts.
354

CHANNELL, Alan Douglas - CCA, 4.8.2000
Beazley JA, Grove & Kirby JJ
Citation: R v Channell [2000] NSWCCA 289
Conviction appeal.
Buggery.
Local newspaper published an article on the 2nd day of the trial referring to charges of indecently assaulting 11 different children and the possibility of up to 5 separate trials. The trial judge discharged the jury due to the potential prejudice of the article. The matter was adjourned to the following day when a new jury was struck.
Potential prejudice - whether miscarriage of discretion.
Appeal dismissed.
355

HELMHOUT, Pieter Egbert - NSW SC, Bell J, 22.6.2000
HELMHOUT, Mark William
Remarks on sentence.
Murder.
The offenders & the victim were under the influence of alcohol & marijuana following the funeral of the offenders' brother. The deceased continued to refer to the dead brother, which irritated one of the offenders. He told him to shut up but the deceased continued to talk about the dead brother. This angered the offender & he assaulted the deceased. The deceased, however, continued to talk about the brother some time later. The other offender joined in the assault on the deceased & they eventually strangled him. Various acts of degradation were performed on the body after death & the body was dumped in nearby bush.
Intent to kill.
Both sentenced to 18y with NPP of 13y 6m.
356

KELLY, Amos Charles - NSW SC, Graham Barr J, 13.7.2000
Citation: R v Kelly [2000] NSWSC 701
Remarks on Sentence:
Manslaughter.
Originally charged with murder, but pleaded guilty to manslaughter in full satisfaction of the indictment.
The offender stabbed the victim during an altercation in the kitchen. The victim had started the fight & had pushed the offender to the ground, causing him to sustain a wound to his head. The offender feared a further assault might have caused his death because of a brain injury he suffered in an accident some years before. He took hold of a fishing knife & stabbed the victim 7 times in the chest & abdomen.
Intent to do really serious injury - culpability - immediate assistance to victim - confession to police - genuine remorse.
Sentenced to: 7y with NPP of 3*y.
357

ATTARD, Frank - NSW SC, Hulme J, 9.6.2000
SHARAH, Michael Bernard
Citation: R v Attard & Sharah [2000] NSWSC 511
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder; robbery with wounding.
The 2 applicants robbed 3 males waiting in a shop. During a struggle, one male was shot dead by Attard.
Attard: mixed behaviour in gaol - convicted of 10 offences - good educational progress & substantial rehabilitation.
Application allowed: sentenced to 21y with NPP of 15y.
Sharah: Poor prison record - continuing problem with drugs.
Application refused - need to achieve rehabilitation.
358

SETTE, Maria Giulia - NSW SC, Barr J, 6.7.2000
Citation: R v Sette [2000] NSWSC 648
Remarks on Sentence
Manslaughter.
Offender removed her 1 year old son from his adoptive parents during an access visit, put him in her car & drove away. She stabbed him to death & then concealed his body in a dam.
She had been forced into giving the child up for adoption by her family.
Impulsive killing - significant depressive illness for long period of time - dissociated state of mind at time of killing.
Support of family - remorse - rehabilitation.
2y suspended for 2y.
359

SERRATORE, John - NSW SC, Kirby J, 20.7.2000
Citation: R v Serratore [2000] NSWSC 696
Remarks on sentence.
Murder.
Retrial.
Accused was convicted of killing or arranging the killing of his girlfriend after she had indicated an intention to break off their relationship. Her decomposed body was found several days after her disappearance. Evidence of a violent relationship.
Good prospects of rehabilitation - discount for onerous bail conditions.
Sentenced to 20y with NPP of 14y.
360

FORD, Glen Ian - NSW SC, Barr J, 21.7.2000
Citation: R v Ford [2000] NSWSC 713
Remarks on Sentence
.
Murder.
Accused stabbed victim in a fight, becoming angered when victim made racist jokes. He had armed himself with a knife before provoking the fight. Evidence that he intended to kill the victim, having pursued him persistently over some hours, as well as making threats about stabbing him in the chest.
Criminal history showing priors for offences of violence - effects of excessive consumption of alcohol & use of illegal drugs a major factor in offending - previously gaoled for short periods - offended less frequently in recent years than in his youth - personality showing a desire to dominate & control others.
Sentence to 16y with NPP of 12y.
361

LO, Wai Hung Anthony - NSW SC, Barr J, 21.7.2000 - 115 A Crim R 53
Citation: R v Lo [2000] NSWSC 714
Remarks on sentence.
Murder; conspiracy to murder; + 11 drug-related offences taken into account.
A group of men, who were tow truck operators & involved with drugs, recruited the accused to kill the deceased because he was to give evidence against an associate of theirs. This was a contract killing to pay for drugs - killing carefully planned by accused.
Accused later assisted in an attempted murder by luring the victim to his residence.
Aged 29 - guilty plea - heavily in debt over drug transactions- various drug & weapon offences.
Whether in worst category of case - whether offender entitled to lesser sentence for assistance to authorities.
Conspire to murder: 18y commencing on 7.4.1999, expiring 6.4.2017 (declined to fix NPP).
Murder: 32y commencing on 7.4.2003; with NPP of 23y.
362

KAY, Graham James - NSW SC, 26.7.2000
Citation: R v Kay [2000] NSWSC 716
Remarks on sentence.
4 x sexual intercourse without consent in circumstances of aggravation; + 4 further offences taken into account, 2 of which were identical with the principal charges, the other 2 of threatening to inflict ABH with intent to have sexual intercourse.
The sexual assaults were committed on 8 victims covering a period of 12 months. All of them occurred late at night. In each case, the victim had been threatened with a knife & subjected to digital or penile penetration. No significant physical injuries were inflicted.
Offences premeditated & planned - observed by police stalking other women - significant risk of re-offending.
Sentenced to: 20y with NPP of 15y.
363

CLAYTON, Regie - CCA, 4.8.2000
Newman J, Sperling J.
Citation: R v Clayton [2000] NSWCCA 311
Sentence appeal.
Steal from the person; + 2 further offences taken into account (stealing a wallet; AOABH).
1*y with NPP of 1y.
At time of offence, applicant was aged 18 & on probation under supervision of Juvenile Justice Office following 3 stealing matters dealt with in the Children's Court.
Query as to relevance of alternative of summary proceedings in LC - otherwise no question of principle.
Subjective considerations - appropriate weight to offence charged - age of applicant - change in behaviour - sentence manifestly excessive.
Appeal allowed: resentenced to FT just short of 8m. Applicant released at 12 noon on day of appeal.
364

SANDO, Scott Ronald - CCA, 11.8.2000
Beazley JA, Wood CJ, Greg James J.
Citation: R v Sando [2000] NSWCCA 301
Sentence appeal.
Attempt obtain possession of trafficable quantity prohibited import (cocaine).
6y with NPP of 3y.
A courier arrived in Australia carrying a canister of baby powder containing cocaine (624 grams, pure weight 156 grams). She assisted police, was provided with a substitute canister of baby powder & arranged to meet the applicant in a motel room. The applicant, noting the canister was made in Australia, left the room & was subsequently arrested. At first he refused to discuss the matter with police. When he appeared in court he relied upon his admission to police of a long-term addiction to heroin & also being a heavy steroid user.
Guilty plea - prior convictions.
Asserted error in assessing comparative culpability with courier co-accused.
Appeal dismissed.
365

KINNY, Mark Ivan - CCA, 5.7.2000
Mason P, James & Whealy JJ.
Citation: R v Kinny [2000] NSWCCA 278
Conviction appeal.
Drive in manner dangerous occasioning death; drive in manner dangerous occasioning GBH.
Two vehicles collided at an intersection, the deceased was the passenger of the car & the appellant & his de facto were in a truck. The de facto was the victim in the 2nd count. Evidence from the de facto was that both she & the appellant had consumed quantities of wine & injected a cap of cocaine each. After the accident, they walked to their home nearby & once there the de facto said she would say she was driving, thinking 'they'd go easier on me'When police arrived, she told them she was the driver. She went to hospital shortly afterwards & initially told the nurse she was the driver, but once she learned of the other driver's death, she told the nurse & police that the appellant was the driver. She denied in court that shortly before the accident, she had switched from the passenger's to the driver's seat. She had bruising to the left side of her neck & bruising & tenderness to the left collarbone, consistent with her evidence of her claims that the seat belt caused the injuries. The appellant was not wearing a seat belt.
Issue as to driver.
Appeal dismissed.
366

HUXLEY, John Frederick - CCA, 17.8.2000
Mason P, Sperling J, Smart AJ
Citation: R v Huxley [2000] NSWCCA 314
Conviction appeal.
6 x indecently assault female under 16y of age.
Offences alleged to have occurred between January 1965 & December 1969. The complainant was the appellant's niece. He was acquitted of Count 6 which also alleged indecent assault. The victim was born in September 1957.
Appellant contended that verdicts were inconsistent & that they were unreasonable & not sufficient supported by evidence.
30 year delay - uncorroborated complaint - conduct inconsistent with documents - flashbacks.
Appeal allowed: convictions & sentences quashed, verdicts of acquittal entered.
367

MURPHY, Leslie Joseph - CCA, 23.8.2000
Spigelman CJ, Grove & Kirby JJ.
Citation: R v Murphy [2000] NSWCCA 297
Conviction & sentence appeal.
2 x sexual intercourse without consent.
MT 4y, AT 2y.
Evidence of complainant conflicting with evidence of witnesses.
Complainant a young 'street kid'aged 14 at the time of the alleged offences. She alleged that the offences occurred in a 1-roomed unit in Bondi.
Complainant had been declared 'an uncontrollable child'by the Children's Court & an order had been made committing her to the care of The Paddington Refuge.
Trial without jury - need for judge to canvas evidence & argument, giving reasons - error of law: s.17(2) & s.17(3) Criminal Procedure Act 1986.
Appeal allowed: new trial ordered.
368

LEROY, John - CCA, 17.8.2000
GRAHAM, Colin Kenneth
Stein JA, Dunford & Simpson JJ
Citation: R v Leroy & Graham [2000] NSWCCA 302
Conviction and sentence appeal.
Affray; maliciously inflict GBH; AOABH.
Appellants were members of the Cambridge Park Rugby League team & were in Forster for a weekend football competition. After the games, a number of players from various teams attended the club at Forster. At the end of the evening, there was some rowdy behaviour by a group from the Cambridge Park team & an employee of the club approached them & asked them to leave. He was punched, fell to the ground & was then kicked several times, as a result of which he lost an eye & suffered other injuries. A fracas developed & other staff members, including the club manager, were assaulted.
Admissibility of identification evidence - no identification parade held - highly probative value outweighed prejudicial effect.
Whether verdict unreasonable or cannot be supported - whether special circumstances - whether sentences manifestly excessive - whether appropriate to impose cumulative sentences - relationship between MT & AT.
Conviction appeal dismissed.
Sentence appeal dismissed.
369

THOMSON, David John - CCA 17.8.2000
Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ
Citation: R v Thomson [2000] NSWCCA 294
Crown appeal.
1 x knowingly take part in manufacture of prohibited drug (amphetamine).
2y PD.
The respondent, wishing to manufacture amphetamine, contacted a person living in Brisbane who, he believed, knew how to manufacture amphetamine. Unknown to the respondent, this person was a registered police informant & advised police & officers of the NCA of this contact. A number of meetings took place between the respondent & the informant, as well as on one occasion with another man. These were monitored by police & officers of the NCA. The respondent registered a fictitious business, then negotiated the lease of some semi-rural land which was used for the manufacture of amphetamine. He told the informant of this & the informant passed that information on to the authorities. Ultimately, police obtained a search warrant & went to these premises where the respondent was observed supervising the manufacturing operations.
Guilty plea.
Whether sentence manifestly inadequate.
Appeal dismissed.
370

HOULTON, Edward Joseph - CCA, 17.8.2000
Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ
Citation: R v Houlton [2000] NSWCCA 183
Crown appeal.
5 x fraudulent misappropriation; + 80 similar offences on a Form 2.
3y PD on the 1st count, taking into account matters on Form 2; 5y GBB on the remaining 4 counts. Respondent ordered to pay reparation of $120,000 to reimburse, in part, the Fidelity Fund of the Law Society of NSW for monies paid out of the fund to the respondent's defrauded clients.
Guilty plea. At the time of the commission of the offences, respondent was a practising solicitor. Each offence involved misappropriation of monies held in trust for clients. The total amount involved was approx $347,000. As a result of selling some real estate, this amount had been reduced to approx $250,000 by time of trial.
Whether sentence manifestly inadequate.
Leave to appeal refused.
371

SUTCLIFFE, Sean Robert - NSW SC, Adams J, 18.8.2000
McGOLDRICK, Sean
McGOLDRICK, Liam
Citation: R v Sutcliffe, McGoldrick & McGoldrick [2000] NSWSC 825
Remarks on Sentence.
Manslaughter.
Rocks were thrown from a bridge onto the M5 freeway at Menangle. Two rocks crashed through the windscreen of the deceased's vehicle, with at least one of them striking him in the chest, causing massive injuries & severing his aorta, causing almost immediate death. His vehicle went out of control, crossed over 2 northbound lanes & travelled up an embankment, eventually coming to rest near a large tree.
Intellectual deficit - rehabilitation - discount for plea of guilty.
Sentenced to: Sutcliffe - 5y 3m, with NPP of 3y; McGoldrick (Sean) - 4y 5m, with NPP of 2y 3m; McGoldrick (Liam) - 2y 6m PD.
372

CHEATHAM, Stephen Darcy - CCA, 4.8.2000
Spigelman CJ, James & Sperling JJ.
Citation: R v Cheatham [2000] NSWCCA 282
Conviction appeal.
2 x murder; 1 x attempted murder.
At trial, the only issue was the defence of insanity. Appellant believed he was dying of AIDS, that he had infected his wife & children. He stabbed his wife 6 times while she was sleeping; then stabbed his 3y old daughter 20 times before wrapping her body in a towel & placing her on the bed next to his dead wife. He then stabbed the 3m old baby daughter twice, but failed to kill her. He made a 000 call & reported a 'murder/suicide', after which he stabbed himself a number of times & hit himself on the head with a hammer in an attempt to commit suicide. He was located some time later hiding in a garden shed, whereupon he admitted to the murders & attempted murder.
Defences - insanity - second limb of the M'Naghten test - diminished responsibility - requirement of trial judge to direct jury - conduct of trial judge - verdicts not supported by evidence.
Appeal allowed: new trial ordered.
373

BARNETT, Arthur James - CCA, 1.8.2000
Foster AJA, Dunford J, Smart AJ
Citation: R v Barnett [2000] NSWCCA 283
Conviction appeal.
2 x carnal knowledge of a minor.
MT 4y, AT 2y.
Had stood trial for 6 counts (3 x carnal knowledge; 2 x indecent assault; 1 x rape).
The case against the appellant consisted of evidence from the complainant & a statement from her mother (since deceased) which was read to the jury, along with evidence of the police officer in charge of the case. Appellant's case consisted of his evidence & that of his ex-wife who was also the sister of the complainant.
Delay in complaint.
Verdicts unreasonable and not supported by evidence - inconsistent verdicts.
Appeal allowed: conviction & sentences quashed, verdicts of acquittal entered.
374

LEACH, Patrick James - CCA, 10.7.2000
Studdert & Bell JJ
Citation: R v Leach [2000] NSWCCA 247
Sentence appeal.
B&E dwelling and maliciously inflict GBH on occupant.
MT 4y 5m 13d, AT 3y (special circumstances found).
Victim conducted an engineering business in a lonely locality & was living in a large manufacturing shed while building a house nearby. Applicant was one of 5 offenders involved in the offence charged. Applicant & another offender assaulted the victim. Victim's hands were then tied behind his back & a hessian bag placed over his head. He was beaten about the head & body & demands were made as to the location of cannabis. Victim told them where to find it, he was then dragged to the house that was still under construction, tied to a timber wall with his hands above his head & one of the offenders then dislocated the victim's middle finger. They left the victim tied up in his injured condition & took a quantity of cannabis with them, as well as a rifle belonging to the victim.
Whether sentence excessive - whether sentencing judge fell into error in approaching sentencing upon basis that applicant was principal perpetrator.
Appeal allowed: resentenced to 6y 8m 13d, with NPP of 3y 11m 13d.
375

D'AMICO, Traceylee - CCA, 2.8.2000
Newman & Sperling JJ
Citation: R v D'Amico [2000] NSWCCA 290
Sentence appeal.
Knowingly take part in supply of commercial quantity of heroin.
6y with MT of 4y.
Applicant employed 2 runners to deliver drugs for her. Applicant & her runners were heroin users. Over a 60 day period applicant bought a total of 350 grams of heroin, used 60 to 90 grams herself & paid her runners with 60 grams. The balance was sold to retail customers for cash. Main function of the business was to support applicant's habit. Guideline judgment of Henry applied.
Guilty plea - sentence towards upper end of range of sentences.
Whether appropriate weight given to subjective considerations - hardship on applicant's 4y old child - special circumstances - insufficient weight given to need for rehabilitation.
Appeal dismissed.
376

ZANZE, Anthony - CCA, 31.7.2000
Newman & Sperling JJ
Citation: R v Zanze [2000] NSWCCA 308
Sentence appeal.
4 x receiving; + 5 x good in custody taken into account.
2y 8m, MT 2y.
The goods in the receiving charged included a watch, a mobile phone, power tools, cameras & a radio cassette player. All had been stolen from property broken into.
Aged 33 at time of sentencing - long criminal records for similar offences - previously imprisoned - subject offences committed whilst on parole
Sentencing discretion - charges could have been dealt with in the LC - whether sentence manifestly excessive - failure to find special circumstances.
Appeal dismissed.
377

HERON, Michael - CCA, 17.8.2000
Priestley JA, Foster AJA, Simpson J
Citation: R v Heron [2000] NSWCCA 312
Conviction and sentence appeal.
Murder.
MT 14y, AT 4y.
Crown case was that appellant had stabbed the deceased during a fight in a hotel pool room. Evidence from witnesses was that appellant was seen with a knife in his hand.
Appellant's case was that it was likely that a shard of glass had accidentally caused the fatal wound.
Exercise of discretion - prejudicial comment - judge's own opinions made known to jury - directions - whether verdict 'unsafe and unsatisfactory'.
Conviction appeal dismissed.
Sentence appeal dismissed.
378

BOYD, Gregory Stuart Boyd - CCA, 10.8.2000
Powell JA, Hulme & Dowd JJ
Citation: R v Boyd [2000] NSWCCA 110
Conviction appeal (permission to withdraw guilty plea).
Supply trafficable quantity heroin.
Appellant searched & arrested by 2 police officers outside a methadone clinic. At the time of the subject offence, appellant was on a methadone course.
Appellant's wife had recently died, and he claimed that the reason for pleading guilty was that he believed he would not face a custodial sentence by so doing & therefore would be in a position to look after his 3 young children.
Age 38 - long-term drug user - addicted to heroin one & off for about 20y - numerous convictions for possess drugs & supply heroin - small-time user/dealer - supply activities to finance own addiction.
Fresh evidence.
Appeal dismissed.
379

GUST, Colin Alfred - CCA, 4.8.2000
Dunford & Hidden JJ, Smart AJ
Citation: R v Gust [2000] NSWCCA 287
Application to re-open appeal.
Applicant was convicted of sexual intercourse without consent. He subsequently appealed on a number of grounds & also applied for leave to appeal against sentence. The CCA (as presently constituted) dismissed the appeal against both conviction & sentence. Applicant sought to re-open hearing of the appeal on the ground that he was denied procedural fairness at the hearing of that appeal.
Denial of procedural fairness - natural justice - directions on recklessness - Rule 6 Criminal Appeal Rules - responsibility of counsel - responsibility of Court - Pantorno v The Queen.
Application dismissed.
380

CREED, Bruce James - CCA, 7.8.2000
Sheller JA, Hulme & Dowd JJ
Citation: R v Creed [2000] NSWCCA 280
Conviction appeals.
Sexual intercourse without consent with person under 16.
MT 18m, AT 18m.
Appellant stood trial on 2 counts of sexual intercourse, was found guilty on Count 1 & not guilty on Count 2.
Appellant was further indicted (some 5* months after being indicted for the above charges) for indecent assault & carnal knowledge. Jury returned verdict of guilty on carnal knowledge charge, unable to reach a verdict in relation to indecent assault.
MT 3y, AT 2y.
Complainants in both cases are sisters & knew the appellant as a family friend of their father, with the appellant often visiting the family. He would often babysit the 2 complainants & their 2 siblings.
Adequacy of directions after counsel's address - refusal to discharge jury - exclusion of evidence of prior consistent statement.
Appeal dismissed.
381

MOORE, Leanne Maree - CCA, 15.6.2000
Spigelman CJ, Newman & Greg James JJ
Citation: R v Moore [2000] NSWCCA 272
Crown appeal.
1 x supply trafficable quantity methylamphetamine (53.97 grams); + 2 x possess unauthorised firearm taken into account on a Form 1.
36h Community Service Attendance Centre Order.
Entered a guilty plea on the day the trial was due to commence.
Poor health - profound & disabling cardiac condition - care of children - little evidence of contrition.
Excessive weight given to guilty plea - insufficient attention to deterrence.
Appeal dismissed.
382

REID, Robert Bruce - CCA, 19.6.2000
Grove & Newman JJ
Citation: R v Reid [2000] NSWCCA 270
Sentence appeal.
7 x receiving.
MT 4*y, AT 1*y.
Applicant indicted on 8 counts, found him guilty on 7. All offences involved motor vehicles which the applicant received & re-sold after disguising their identity. Made use of identification plates from wrecked or damaged cars that he had purchased.
Considerable criminal enterprise.
Sentencing judge refused to find special circumstances - health problems - delay.
Appeal dismissed.
383

SIMPSON, Anthony - CCA, 12.7.2000
Meagher JA, Grove & Bergin JJ
Citation: R v Simpson [2000] NSWCCA 284
Conviction and sentence appeal.
Manslaughter.
MT 6y, AT 3y.
Appellant was charged with murder, but pleaded guilty to manslaughter by criminal negligence. He was a qualified electrician & had erected an electric wire system to protect an area of land on which he was growing marijuana. The deceased died as a result of coming into contact with that system.
Submitted on appeal conviction should be quashed as facts did not disclose offence of manslaughter by criminal negligence - whether sentence excessive.
Appeal dismissed.
384

YERKOVIC, Mate - CCA, 12.7.2000
Meagher JA, Grove & Gergin JJ
Citation: R v Yerkovic [2000] NSWCCA 281
Crown appeal.
2 x knowingly take part in supply of prohibited drug (methylamphetamine); 2 matters taken into account on a Form 1 - possess cannabis leaf, possess prohibited object (canister of Liquid Fire pepper spray).
40h Community Service Attendance Centre Order.
Respondent had been engaged in finding couriers for drug traffickers - had never acted as a courier himself. Significant assistance to police after his arrest regarding a matter not related to his own charges.
Aged 56 at time of sentencing - grave physical disability as a result of injury and was self-medicating with prohibited drugs - minor participation - priors - not previously imprisoned.
Appeal dismissed.
385

CEISSMAN, Adam - CCA, 14.7.2000
Adams & Bell JJ
Citation: R v Ceissman [2000] NSWCCA 274
Sentence appeal.
4 x armed robbery; 3 x steal MV.
Offences committed in 1995, applicant came up for sentence in 1999 due to the fact that after the offences were committed, he was arrested in Queensland for robbery & stealing a MV & sentenced in Queensland to a total of 7 years with a NPP of 2y.
The offences in the present appeal were committed on banks & a club & involved the use of firearms & stolen MVs.
Interstate offences - co-offenders - parity - whether excessive.
Appeal dismissed.
386

EMERSON, Darren Alan - CCA, 21.6.2000
Grove & Newman JJ
Citation: R v Emerson [2000] NSWCCA 271
Sentence appeal.
Aggravated BE & commit felony; + 7 matters on a Form 1 taken into account.
MT 7y, AT 3y.
The applicant & his brother entered a nursing home & used a knife to rob a 78 year old resident who suffered from a crippling disability.
Aged 29 at time of offence -early guilty plea - extensive criminal record - previously imprisonment - general deterrence - specific deterrence - parity - whether sentence manifestly excessive - Postiglione applied.
Appeal dismissed.
387

ALIPERTI, Joseph - CCA, 9.8.2000
James & Dowd JJ
Citation: R v Aliperti [2000] NSWCCA 315
Sentence appeal.
1 x dishonestly obtain valuable thing by deception; + 6 similar offences & 1 fraudulent omit to account taken into account.
MT 3y 9m, AT 1y 3m.
Applicant was a solicitor, the victim a client of his. Victim told applicant he was dissatisfied with rate of interest he was receiving for his money invested with a bank; applicant told him he had another client who needed to borrow money from time to time. Applicant arranged loan agreement between victim & a third person, the loan agreement bore a signature purporting to be the signature of the third person, however, it had been forged by the applicant & the third person had no knowledge of the transaction. The money was deposited in the applicant's office account & then disbursed in payment of a number of the applicant's creditors.
Despite the failure of the Crown to prove circumstances of aggravation beyond reasonable doubt, the offence was treated as aggravated - delay before sentencing.
Appeal allowed: resentenced to 4y with NPP of 3y.
388

GLYNN, John Peter - CCA, 2.8.2000
Newman & Sperling JJ
Citation: R v Glynn [2000] NSWCCA 291
Sentence appeal.
Malicious wounding; malicious damage.
Aggregate MT 15m, AT 9m.
Applicant went to home of victim, forced his way in, damaging the door & the door jamb. He entered the victim's bedroom, hit the victim repeatedly & then kicked him in the groin. The victim ran naked from his flat, bleeding profusely from the head.
Applicant a big-built man - aged 34 - not prone to violence - prior conviction - not previously imprisoned.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to aggregate FT of 2m 2w.
389

FIORENZA, Guy Bruno - CCA, 12.7.2000
James & Bell JJ
Citation: R v Fiorenza [2000] NSWCCA 264
Sentence appeal.
4 x supply prohibited drug (amphetamine); + 3 x possess amphetamine taken into account..
Aggregate MT 12m, AT 18m.
Applicant had been involved with the supply of 2 separate kinds of drugs, namely amphetamine & ecstasy
Age 22 at time of sentencing - guilty plea at 1st opportunity - no prior criminal history - support of parents - genuine prospects of rehabilitation - voluntary urine testing - no trace of drugs - assistance to police.
Appeal dismissed.
390

BOOTH, Rodric David - CCA, 29.5.2000
Sully & Adams JJ
Citation: R v Booth [2000] NSWCCA 239
Sentence appeal.
15 x sexual offences with a young boy.
MT 5y, AT 3y.
The offences occurred over 7 years, starting when the complainant was aged 9 & whilst under the authority of the appellant.
Appellant believed that he was sexually abused as a child but his memory of this abuse was incomplete.
Aged 54 - guilty plea - whether sentence manifestly excessive - need to serve sentence on protection.
Appeal dismissed.
391

WATSON, Robert G - CCA, 1.8.2000
Fitzgerald JA, Smart AJ, Ireland AJ
Citation: R v Watson [2000] NSWCCA 279
Conviction appeal.
Dangerous drive occasioning death.
Appellant was convicted for the above offence following 3 trials.
Appellant's car veered off to the right & struck a road worker wearing a reflective vest & holding a traffic control sign, the body was carried along on the vehicle until it fell off when the vehicle veered to the left. The vehicle hit a gutter & guard rail, moved to the centre of the road, continued for a distance, stopped briefly, moved forward & turned into another street. Evidence that its progress along other streets also erratic.
Some months prior to the offence, the appellant had been admitted to hospital suffering from meningococcal meningitis. Some 2 months later he was advised by his doctor that he could return to work which he did, as well as taking on a 2nd job delivering pizzas at night. He was not informed that he might experience epilepsy or that he should not drive. Risk of epilepsy in first 5 years following the meningitis infection between 2.4 & 10%.
Misdirection concerning undisputed evidence including expert evidence - no purpose served by further trial.
Appeal allowed: conviction quashed, verdict of acquittal entered.
392

STRACHAN, Jeannie - CCA, 26.7.2000
Mason P, James & Whealy JJ
Citation: R v Strachan [2000] NSWCCA 260
Conviction appeal.
Murder.
The appellant sold heroin to the deceased & a friend, however, she would not sell the quantity of heroin the deceased wanted. He had insufficient money to purchase the amount of heroin he required. He had an argument with the appellant & then he attacked her. The appellant stabbed the deceased during the altercation. The appellant relied on self-defence at her trial, but the jury rejected this.
Whether jury verdict unreasonable - whether rejection of self-defence unreasonable.
Appeal allowed: conviction quashed, verdict of acquittal entered.
393

MAHONEY, Michael - CCA, 14.7.2000 - 114 A Crim R 130
Stein JA, Dunford & Sperling JJ
Citation: R v Mahoney [2000] NSWCCA 256
Conviction and sentence appeal.
2 x receiving; 1 x larceny.
MT 18m, AT 18m.
The charges arose out of what was alleged by the Crown to be the 're-birthing'of motor vehicles & they related to 3 separate vehicles.
Summing up - objections not taken at trial - matters of detail or clarification - Rule 4 - recent possession.
Appeal dismissed.
394

RIDGEWAY, Daniel Brent Kenneth - CCA, 24.8.2000
Beazley JA, Grove & Kirby JJ
Citation: R v Ridgeway [2000] NSWCCA 286
Crown appeal.
2 x armed robbery; + 10 charges taken into account on a Form 1.
MT 2y, AT 1y.
The 2 armed rob charges involved a video store & a service station. On both occasions, the respondent was in company & in each case, they were captured on film by surveillance cameras. The respondent had not attempted to disguise his appearance on either occasion & when the surveillance films were viewed by police, he was immediately recognised by them.
Sentencing - if departure from guidelines, reasons should be given - whether double jeopardy justifies not altering NPP.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced to 4y with NPP of 2y.
395

MARTIN, Shayne Walter - CCA, 25.8.2000
Fitzgerald JA, Smart AJ, Ireland AJ
Citation: R v Martin [2000] NSWCCA 332
Conviction appeal.
3 x sexual intercourse without consent.
FT of 3m on 1st count; FT of 5m on 2nd count; MT 6m, AT 2y 3m, cumulative upon the sentence for the 2nd count. Upon release on parole, appellant to submit to & undergo psychiatric, psychological counselling or treatment as required by parole officer & reside with his mother & not enter any
backpacker's lodge or other place where male & female persons sleep in the same dormitory.
The 3 offences allegedly occurred in the same confrontation in a dormitory of a backpacker lodge at Byron Bay.
Mistaken identity by victim - 'withheld'evidence - counsel's incompetence - tendency rule or coincidence rule - significant probative value.
Appeal dismissed.
396

PARK, Sung Eun - NSW SC, Sperling J, 3.8.2000
Remarks on Sentence.
3 x murder.
Murder of wife & two children.
Accused was Korean, his wife Chinese. After 3 years of marriage, the accused left his wife & 2 young children & moved in with a young Korean woman. Almost a year later, the accused's wife discovered he was living with the young woman & became & confronted the young woman & a physical fight developed between them & the police were called. The accused was very angry over this as the young Korean woman's visa had run out & therefore she was technically an illegal immigrant. Some 5 days later, the accused received a letter from the Government Child Support Agency advising him that his wife had applied for a child support assessment, angering the accused even more. Some days later, neighbours of the wife noticed there was no sound coming from her unit & many months later, the remains of the 3 bodies were found in bushland some distance from Sydney. Plastic bags had been knotted over each of their heads. A forensic pathologist opined that death was due to suffocation.
Aggregate total of 26y with NPP of 19*y.
397

ATTARD, Troy Reginald Anthony - CCA, 11.8.2000
Smart AJ
Citation: R v Attard [2000] NSWCCA 299
Sentence appeal from Drug Court, pursuant to s.5AF Criminal Appeal Act 1912.
Possess heroin; drive whilst licence cancelled; take & drive MV without consent of owner; possess implements for stealing MV; goods in custody.
Aggregate MT 12m, AT 3m.
This was an appeal by way of re-hearing of evidence given in the Drug Court & any additional evidence given to the CCA pursuant to leave granted by it.
Two series of offences. Appellant received a suspended sentence for 1st series & was admitted into a Drug Court programme. Some 4* months later he committed a 2nd series of offences. When he appeared in court, his previous sentence was revoked & he was resentenced to the above sentence.
Age 23y - drug addiction - suffered assaults whilst in prison - on protection - no prior full-time custodial sentence - accumulation of sentences.
Special circumstances - need for extended supervision upon release in an effort to combat drug addiction - departure from usual ratio between MT & AT without explanation.
Appeal allowed on Count 15: resentenced to 10m with NPP of 5m on that count (concurrent).
398

GERSTELING, Jay - CCA, 11.8.2000
James & Dowd JJ
Citation: R v Gersteling [2000] NSWCCA 316
Sentence appeal.
Receiving; stealing; steal MV; attempt B&E service station with intent to commit felony of stealing. Applicant pleaded guilty to each of the above counts in an indictment. He had also been committed for sentence on 10 charges to which he had pleaded guilty in the LC, including stealing MV; B&E; BE&S, B&E with intent to commit felony; drive vehicle without consent of owner; steal & drive vehicle without consent of owner.
Aggregate MT 2y, AT 3y.
Offences occurred when the applicant was either under the effect of drugs, or suffering from a phase of manic depression. The majority of the stolen goods has not been recovered.
Aged 18 at time of offences - good family background - previous convictions in Children's Court for BE&S; subject to 2 recognizances & on probation at time of committing offences.
Major depressive disorder, recurrent with seasonal pattern - cannabis dependency.
Factual errors in sentencing - sentence manifestly excessive.
Appeal allowed: resentenced to 4y with NPP of 1*y.
399

GOVER, Walter - CCA, 17.8.2000 - 118 A Crim R 8
Stein JA, Dunford & Simpson JJ.
Citation: R v Gover [2000] NSWCCA 303
Conviction appeal.
Fraudulent use of a stolen credit card.
Appellant used the card to by an oil drip tray & a Jeep Cherokee motor vehicle. Because of not having a passport for identification purposes in the name appearing on the credit card, appellant bought a shelf company in order to buy the Jeep through the company. Owner of credit card complained to American Express about debits appearing on his statement & police investigated. Appellant claimed the owner of the credit card had given the Jeep to him to drive. A search of appellant's premises revealed 2 mobile telephones, the numbers of which corresponded with those used or referred to in conversations involved in acquiring the Jeep, the certificate of registration & third party insurance certificate. In the basement police found an oil drip tray & a receipt showing the tray had been purchased using the stolen credit card.
Paper committal - non-appearance by accused at committal - notice for attendance of witnesses - whether statements admissible at trial - statements of deceased witness.
Inadvertent & potentially prejudicial event - no application for discharge of jury - whether direction overcame prejudice.
Appeal dismissed.
400

JOYCE, Norman William - CCA, 24.7.2000
Giles JA, Dunford & Greg James JJ
Citation: R v Joyce [2000] NSWCCA 259
Conviction appeal.
2 x murder.
MT 15y, AT 5y.
On a petition under s.474B Crimes Act, pursuant to s.474C(1)(b) of the Act, the A-G referred the case to the CCA to be dealt with as an appeal under the Criminal Appeal Act 1912.
Appellant shot his de facto's ex-husband as well as the ex-husband's de facto, thereafter placing the bodies into a utility. He drove the utility to a tip, poured petrol over it & lit it. He then walked home.
Rejection of admissions - failure to direct on ROI - failure to direct on evidence of witnesses - directions - corroboration of police officer - irrelevant evidence. - reversal of onus of proof.
Court declined to receive further written submissions delivered without leave after judgment was reserved.
Appeal dismissed.
401

MERRITT, Noel Joseph - CCA, 13.9.2000
Beazley JA, O'Keefe J, Smart AJ
Citation: R v Merritt [2000] NSWCCA 365
Crown appeal.
Attempted armed robbery; steal MV.
Aggregate MT 9y, AT 5y.
An armoured delivery service were making a delivery of money to a credit union with offices within the Children's' Hospital at Camperdown when the appellant & 2 others attacked the one guard & the sawn-off rifle the co-offender was carrying discharged & the guard was shot in the lower abdomen. The 2nd guard fired a number of shots at the appellant & his co-offender. Appellant & co-offender made their getaway in a stolen car driven by the other co-offender.
Aged 46 - Aboriginal - no remorse - continuing bad attitude & disobedience of the law - believes the law does not apply to him - significant record for serious crimes - previously imprisoned.
Constraint of 2nd trial judge by sentence imposed after 1st trial - R v Henry considered - misapplication of principles in R v Gilmore (1979) 1 ACR 416 and R v Bedford (1986) 5 NSWLR 711.
Appeal allowed: aggregate MT 13*y AT 4*y.
402

FOWLER, Jason Anthony - CCA, 7.9.2000
Studdert, Simpson & Dowd JJ
Citation: R v Fowler [2000] NSWCCA 352
Conviction and sentence appeal.
Armed assault with intent to rob; escape lawful custody.
Aggregate MT 6y 4m, AT 3y.
Armed with a knife & wearing a balaclava, appellant broke into a residence attached to a newsagency & demanded money from the victim. Victim tried to close the bedroom door, appellant forced it open & in so doing cut the victim's hand. Appellant then kicked the door which caved in on the victim. Victim hit appellant on the head with an aluminium ladder which was nearby. Other injuries victim sustained were cuts to the face & bruised feet. In the trial for the armed assault offence, upon hearing the jury's verdict, appellant leapt from the dock & ran from the court. He travelled to Melbourne & was eventually arrested in Adelaide. He did not appeal against the conviction for the escape offence.
Aged 23 - drug & alcohol problem - frequent depression - appellant knew victim - on parole at time of offence - priors for resist police & robbery - previously imprisoned.
Whether verdict unreasonable - bias of trial judge - media publicity adverse to appellant - disclosure by juror of acquaintance with police witness - inadequate directions on identification - evidence suggesting police collusion not allowed.
Appeal dismissed.
403

CHAN, Colin Shu Wing - CCA, 9.8.2000
James & Dowd JJ
Citation: R v Chan [2000] NSWCCA 345
Sentence appeal.
27 x obtain money by deception.
Aggregate MT 3y, AT 2y.
Appellant employed by ANZ Bank. During a 7 month period, he approved 27 personal loans from the bank to fictitious clients. He used the money for gambling. Total amount of loans was $731,000, however, $153,000 of this money was not obtained by the appellant as the bank became aware of the situation before he was able to access this money.
Aged 32 - gambling addiction - attempts at rehabilitation before sentence - remorse - no priors.
Appeal dismissed.
404

BAVADRA, Lorima - CCA, 31.8.2000 - 115 A Crim R 152
Beazley JA, Wood CJ at CL, Greg James J
Citation: R v Bavadra [2000] NSWCCA 292
Crown appeal.
5 x armed robbery; 2 x robbery in company.
Aggregate MT 6y, AT 4y.
The above offences involved armed robberies upon banks, a Seven Eleven store, 2 bottle-shops, a video store, a newsagency. Weapons used: knife, gun & meat cleaver. During the robbery on the Seven Eleven store, the victim's face was covered & he was stabbed in the hand & leg.
Aged 21 - peer pressure - history of drug & alcohol abuse - priors: property offence, driving offence, violence. Not previously imprisoned.
Aggravating circumstances - accelerating criminality - principle of totality - double jeopardy.
Appeal allowed: resentenced to 12y with NPP of 8y.
405

JARRETT, Elvis Aaron Sean - CCA, 9.8.2000
James & Dowd JJ
Citation: R v Jarrett [2000] NSWCCA 334
Sentence appeal.
Accessory after the fact to armed robbery.
MT 3y, AT 1y.
Appellant drove co-offenders to premises & waited in the vehicle while they committed a robbery upon a credit union. When they left the vehicle one of them fired a shot. After committing the armed robbery, they returned to the car. A police chase took place & the appellant's vehicle collided with a tree. One co-offender & the appellant escaped, the other co-offender (a minor) was arrested. The appellant was arrested some weeks later.
Aged 20 - offence worst type within category - youth & Aboriginality taken into account - prior offences include property & driving offences - previously imprisoned - whether sentence excessive.
Appeal allowed: resentenced to MT 2y, AT 1y.
406

STOLPE, Owen - CCA, 6.9.2000
Fitzgerald JA, Newman & Hulme JJ
Citation: R v Stolpe [2000] NSWCCA 359
Conviction and sentence appeal.
9 x obtain money by deception.
9m concurrent on each count.
All offences involved obtaining money from a neighbour using false statements. No other facts relating to offences provided in judgment.
Aged 54 - priors including fraud/dishonesty, property & driving offences - previously imprisoned.
There were 20 grounds of appeal, however, the judgment did not specify them.
Appeal dismissed.
407

AT - CCA, 1.9.2000
Studdert, Simpson & Dowd JJ
Citation: R v AT [2000] NSWCCA 342
Conviction and sentence appeal.
3 x sexual intercourse with child under 16 by person in authority; attempt sexual intercourse with child; 2 x aggravated indecent assault.
Aggregate MT 4y, AT 2*y.
Appellant had been charged with 8 sexual offences, however, at trial he was acquitted on 2 counts. All offences were committed upon appellant's stepdaughter.
Aged 41 at time of 1st offence - no priors - not previously imprisoned.
Complainant's evidence against that of appellant - whether verdicts of guilty unreasonable - delay in complaining - necessity to alert jury in summing up to practical difficulties for appellant due to delay.
Appeal allowed: judgment of acquittal entered.
408

MORGAN, Justin James - CCA, 7.8.2000
James & Dowd JJ
Citation: R v Morgan [2000] NSWCCA 296
Sentence appeal.
1 x BE&S; 5 x armed robbery; 4 x kidnap; 1 x attempt kidnap; 1 x steal MV.
Aggregate MT 5y, AT 5y.
Appellant & co-offender committed the above crimes. At various times they were armed with a stick, knife, pistol. All kidnap offences were committed after the armed robberies when the appellant & his co-offender abducted their victims & then released them in lonely areas.
Aged 23 - co-operation with police - contrition - substance abuse & dependency - bipolar disorder - adjustment disorder - depressed & anxious moods - new medical evidence - priors included property, driving & violent offences - whether special circumstances.
Appeal dismissed.
409

LEYS, Stephen Thomas - CCA, 6.9.2000
Fitzgerald JS, Wood CJ at CL, Newman J
Citation: R v Leys [2000] NSWCCA 358
Crown appeal.
Maliciously inflict ABH with intent to have sexual intercourse.
5y GBB.
Victim was a bar attendant & finished work at about 2.30 am. After a drink with some friends, she left the hotel alone & walked down the street. She received a severe blow to the back of her head & fell to the ground with blood on her face. The respondent was on top of her & he ripped open her shirt & bra & told her he wanted to have sex with her. She kicked him off & he hit her a number of times. Respondent left the scene, then returned & was apprehended.
Aged 19 - undiagnosed schizophrenic at time of offence - reduced capacity for rational thinking - impaired concentration - mood swings - suicidal tendencies - heavy drinker - intoxicated at time of offence - shame & remorse - psychiatric assistance - responding to medication - mother schizophrenic - father alcoholic. Priors for driving offences - not previously imprisoned.
Appeal dismissed.
410

McASKILL, William - 9.8.2000
Dowd & James JJ
Citation: R v McAskill [2000] NSWCCA 350
Sentence appeal.
Aggravated dangerous drive occasioning GBH.
MT 3y, AT 1y.
After a night of heavy drinking, the applicant caught a taxi home. On Sunday morning he was woken up by a work mate & asked to fill in on a shift at work. While driving to work at 4.00 am, the applicant drifted onto the wrong side of the road & collided with another vehicle. That car was badly damaged & the driver & passenger sustained severe injuries which required a long period of recovery.
Aged 36 - blood alcohol reading of .155 gms - history of alcohol abuse - special circumstances - prior driving offences - not previously imprisoned.
Leave to appeal refused.
411

PERES, Gil Tavares - CCA, 7.8.2000
Dowd & James JJ
Citation: R v Peres [2000] NSWCCA 353
Sentence appeal.
AOABH.
MT 2y, AT 8m.
The appellant & victim had been to a 21st birthday party & at approx 2.00 am they were drinking together in a hotel. They left the hotel & a short distance away the appellant suddenly punched the victim a number of times, leaving him unconscious. He also kicked the victim in the neck, damaging his cervical vertebra. The appellant, realising what he had done, then left. The victim was taken to hospital. The attack was due to a perceived homosexual advance.
Aged 23 - appellant provided most of the evidence on which he was convicted - good character - hard working - experienced boxer - dysfunctional family background - part of sentence spent on protection - impressive rehabilitation - priors for larceny, possess prohibited drug - not previously imprisoned.
Appeal allowed: resentenced to MT 15m, AT 5m.
412

SMITH, Kenneth Alfred - CCA, 29.8.2000
Mason P, Levine & Greg James JJ
Citation: R v Smith [2000] NSWCCA 343
Crown appeal.
Aggravated sexual intercourse without consent.
MT 2y 8m, AT 10m.
The victim, aged 11, went to a family home for Christmas. Her cousin, the appellant, was also there. When the victim was asleep, the appellant went into her room, removed his track pants & the victim's pyjamas, then he lay on top of her & had penile vaginal intercourse against her will. As a result of this, the victim became pregnant & gave birth to a child.
Aged 26 - drug & alcohol problems - on bond at time of offence - schizo-effective disorder - prior include property & violent offences - previously imprisoned.
Appeal allowed: resentenced to MT 2y 4m, AT 2y 4m.
413

DAYEIAN, John - CCA, 29.8.2000
Mason P, Levine & Greg James JJ
Citation: R v Dayeian [2000] NSWCCA 348
Sentence appeal.
Sexual intercourse without consent; 2 x aggravated sexual intercourse without consent.
Aggregate MT 2y, AT 2y.
The appellant & victim were husband & wife. The offences took place over a period of 5 months. No other facts given in the judgment.
Aged 55 - depression - alcohol dependence - no priors.
Appeal dismissed.
414

CHRISTIE, Andrew - CCA, 4.9.2000
Fitzgerald JA, Newman & Greg James JJ
Citation: R v Christie [2000] NSWCCA 354
Sentence appeal.
5 x defraud Commonwealth; 5 x claim a Commonwealth benefit.
Aggregate MT 3y, AT 2y.
Appellant & co-offender were shareholders & directors of a company which owned a nursing home. They made false claims against the Commonwealth over a number of years for nursing & personal care staff costs. The claims were worth approx $250,000. The appellant continued making false claims after the co-offender resigned.
Aged 51 - prior good character - ill health - wife in ill health, dependent on offender - suffered financial hardship as a result of offences - lack of contrition - no priors.
Appeal dismissed.
415

PLUMMER, Brett Francis - CCA, 12.9.2000
Fitzgerald JA, Smart AJ, Ireland AJ
Citation: R v Plummer [2000] NSWCCA 363
Conviction and sentence appeal.
Supply commercial quantity heroin; BE&S; escape lawful custody.
Aggregate MT 2*y, AT 3*y.
Limited facts given in judgment. Appellant offered to supply heroin, but did not actually supply it. No details as to how the appellant escaped custody. He was at large for 293 days & during that time he committed the BE&S.
Aged 30 - substantial portion of life spent in gaol - on parole when supply offence committed - in protective custody - long-term use of heroin - prior property & driving offences - previously imprisoned.
On appeal, appellant submitted that he wished to withdraw his plea of guilty to the supply charge, claiming his legal adviser misled him as to the effect of pleading guilty.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to aggregate MT 2y, AT 2y.
416

LYONS, Brett John - CCA, 12.7.2000
James & Bell JJ
Citation: R v Lyons [2000] NSWCCA 337
Sentence appeal.
BE&S.
MT 2y, AT 8m.
Appellant broke into a home by forcing open a rear door & stole a lap-top computer, a VCR, compact discs & jewellery. The total value of goods stolen was estimated at $5,500. His girlfriend tried to sell the lap-top computer to a Cash Converters outlet, however, staff became suspicious & called the police. The appellant was arrested nearby. All the stolen property was recovered.
Aged 37 - drug addiction - on parole at time of offence - extensive criminal record - priors include demand money with menaces, property offences, armed robbery, BE&S, firearm, drug & driving offences - previously imprisoned.
Appeal dismissed.
417

LOCKYER, Warren - CCA, 14.7.2000
Adams & Bell JJ
Citation: R v Lockyer [2000] NSWCCA 336
Sentence appeal.
AOABH; + Form 1 offences of possess cannabis, possess heroin, goods in custody.
MT 2y, AT 8m.
Appellant & co-accused went to victim's residence to collect a debt from the victim's girlfriend. They entered the home & attacked the victim, the appellant using a piece of wood to strike him about the side of the head in the region of the temple. The victim fell to the floor & was kicked to the head & body. He managed to crawl to the kitchen but was kicked again. He crawled onto the back lawn & tried to get over the fence. He was dragged back & again kicked to the head & body. He eventually managed to get away.
Aged 28 - guilty plea - lengthy criminal record - culpability greater than co-offender - priors for drug, property, driving, violent offences - previously imprisoned. Whether sentence excessive.
Appeal allowed: resentenced to MT 15m, AT 5m.
418

CARVER, Phillip Kingston - CCA, 10.7.2000
Studdert & Bell JJ
Citation: R v Carver [2000] NSWCCA 321
Sentence appeal.
Obtain money by deception; defraud whilst being an officer; attempt obtain money by deception; + Form 1 matters.
Aggregate MT 4y, AT 2y.
Appellant & 2 others agreed to purchase an hotel. Appellant conducted all negotiations with the vendor. He dishonestly obtained a financial advantage for another person in the form of a bank cheque in the amount of $261,865.50.
Appellant defrauded a company of which he was an officer by transferring $55,000 through an agent into his business account.
By elaborate means, appellant attempted to obtain proceeds of sale of a deceased estate to which he had no entitlement.
Appellant obtained information about the shareholding of a company in a mining exploration company, he wrote to the mining company & falsely pretended to be from the shareholding company.
Aged 44 - prior fraud offences, as well as escape, resist arrest. Previously imprisoned.
Failure to take account of 129 days pre-sentence custody.
Appeal allowed: resentenced to aggregate MT 3y 8m, AT 2y.
419

STEVENS, Neil Colin - CCA, 10.7.2000
Studdert & Bell JJ
Citation: R v Stevens [2000] NSWCCA 324
Sentence appeal.
2 x use false instrument; 2 x attempt to dishonestly obtain valuable thing by deception; 3 x dishonestly obtain valuable thing by deception.
Aggregate MT 3y, AT 18m.
Appellant & 2 co-offenders collaborated in a scheme involving the creation & use of false identities in order to obtain credit cards & loan facilities from various financial institutions.
Aged 33 - guilty plea - drug addiction - loss of access to child - grave illness of father - genuine effort at rehabilitation - breach of recognizance - priors include driving offence, offensive conduct, obtain property by valueless cheque - previously imprisoned. Whether sentence excessive.
Appeal dismissed.
420

VIRGIN, Kim Robert - CCA, 21.8.2000
James & Bell JJ
Citation: R v Virgin [2000] NSWCCA 307
Sentence appeal.
Supply commercial quantity prohibited drug (methylamphetamine); + a further 4 matters taken into account on a Form 1.
MT 3y 9m, AT 1y 3m.
Appellant went to home of supplier to buy amphetamines. Supplier's boyfriend let him in & then fell asleep. Appellant stole supplier's cache of drugs. He consumed some, then went to a McDonald's restaurant. He was in an obviously intoxicated state & offered to sell cannabis to one of the staff, whereupon the manager called the police. Police found him to be in possession of 376.8 grams methylamphetamine; 14.1 grams cannabis. He had coins & jewellery in his bag, as well as a visa card & identification cards in another person's name.
Aged 43 - early plea of guilty - drug addiction - remorseful - some ability to persevere with rehabilitation - educational & life-style courses & counselling - priors - previously imprisoned. Whether assessment of objective seriousness of offence too high.
Appeal allowed: resentenced to MT 2y 3m, AT 9m.
421

O'DONNELL, Jason Gordon - CCA, 17.8.2000
Stein JA, Smart AJ, Ireland AJ
Citation: R v O'Donnell [2000] NSWCCA 338
Conviction and sentence appeal.
3 x aggravated sexual intercourse without consent with person under 16; 2 x commit act of indecency.
Aggregate MT 4y, AT 3y.
The offences took place in a flat the victim & her friend, Ms Kelly, were visiting at the time. The flat belonged to Ms Kelly's male friend. The appellant was living at the flat with Ms Kelly's friend. The appellant committed the sexual assaults upon the victim & also masturbated & urinated over her. In all instances he threatened the victim with a knife.
Aged 23 - on parole at time of offence - prior sexual offences, drug offence - previously imprisoned.
Whether sentence 'unsafe & unsatisfactory - unreasonable conviction - miscarriage of justice.
Appeal dismissed.
422

HOCKING, Anthony Phillip - CCA, 25.8.2000
Beazley JA, Smart AJ, Ireland AJ
Citation: R v Hocking [2000] NSWCCA 339
Crown appeal.
Robbery in company.
MT 2y, AT 12m.
Victim was walking to a motel where the respondent & others were drinking. One of them followed the victim along the road, another ran ahead & stopped him by asking for a cigarette. The victim was found later by a passer-by on the side of the road & was taken to hospital where he was treated for various injuries, including extensive facial fractures & compression of the airways. He stayed in hospital for 10 days following surgery. He had no memory of what had actually happened after being asked for a cigarette, but had been robbed of his wallet containing $10 or $20 & some personal items & cards.
Aged 24 - Aboriginal - long history of drug abuse - offence committed whilst on recognizance - extensive criminal history, including violent offences - poor prognosis for rehabilitation - aggressive anti-social personality disorder - alcohol dependence.
Appeal allowed: resentenced to 4y with NPP of 2y 9m.
423

SCOTT, Ryan Burnell - CCA, 25.8.2000
James & Sperling JJ
Citation: R v Scott [2000] NSWCCA 313
Sentence appeal.
Supply commercial quantity methylamphetamine; manufacture commercial quantity methylamphetamine; + Form 1 matters of supply cocaine, supply cannabis, possess unlicensed firearm.
MT 4y, AT 2y.
Appellant involved in a large illicit drug business of which Leslie Kalache was the principal. The extent of his involvement was significant. He was a dealer. The quantity & value of raw material the appellant handled was substantial & he continued his illicit activities despite Kalache being arrested. No other facts provided in judgment.
Aged 25 - youth - susceptible - recruited by charismatic figure - genuine contrition - no priors.
Appeal dismissed.
424

DYERS, Kenneth Emmanuel - CCA, 25.8.2000
Stein JA, Smart AJ, Ireland AJ
Citation: R v Dyers [2000] NSWCCA 335
Conviction and sentence appeal.
Indecent assault of person under 16 (aged 13) under appellant's authority.
12m with NPP of 4m.
Sentence commenced on 4.7.2000. On 10.7.2000 appellant granted bail pending appeal.
Appellant & victim belonged to a 'communication group'called Kenja. During a Kenja session, appellant told victim, then aged 13, that she needed to clear certain energies, one of them being sex. They sat opposite each other, with the victim's legs on the appellant's chair on either side of his legs. He told her to remove her shirt to clear the energies, then he placed his hand on her stomach & touched her breasts for approximately 5 minutes. He fondled her breasts & kissed her on the head & cheeks before pulling her towards him & telling her to remove her skirt & underwear. When she refused, appellant became abusive, pushed victim's chair back, swore at her & stormed out of the room. The session lasted for about 3 hours.
Aged 66 - isolated incident - now elderly - in need of surgery - good community service, including war service - testimonials as to good character - delay - matter could have been dealt with as summary offence - no priors.
Complainant almost 24 at time of giving her evidence against the appellant
Whether trial judge erred in directions to jury - delay in complaint - whether refusal to allow counsel in address to use visual aids (placards) caused miscarriage of justice.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 12m. Pursuant to s.12 Crimes (Sentencing Procedure) Act, that sentence be suspended subject to entering into GBB for duration of remainder of term of sentence.
Note: This was successfully appealed in the High Court on 9.10.2002 and a new trial was ordered: see210 CLR 285;76 ALJR 1552.
425

CONTRERAS-ORTIZ, Carlos Antonio - CCA, 11.8.2000
Beazley JA, Wood CJ at CL, Greg James J
Citation: R v Contreras-Ortiz [2000] NSWCCA 328
Sentence appeal.
Import trafficable quantity cocaine.
15y with NPP of 11y.
The cocaine (930 grams) was contained in a projector sent from Buenos Aires via Fedex Express to premises used by the applicant's co-accused for receiving mail. The package was collected & taken by the applicant, the co-accused & another male to the applicant's home where it was found by police.
Aged 40 - relatively senior level in importation - false passport - priors unknown.
Leave to appeal refused.
426

AB - CCA, 17.8.2000
Newman & Sperling JJ
Citation: R v AB [2000] NSWCCA 306
Sentence appeal.
BE&S being armed with offensive weapon; entice to detain with intent to hold for advantage.
MT 4*y, AT 1*y.
Appellant entered victim's house by forcing a rear window. At approximately 2.00 am, the victim (aged 69) woke to find him standing over her with a butcher's knife held to her throat. He demanded money & she got up & handed him her purse. Appellant removed a large amount of property from the house, forcing the victim to follow him from room to room. She was then forced to help put these items in her car, drive to a service station & purchase cigarettes. Then she was forced to phone an elderly friend for money. By this time, it was 5.30 am. The victim & the appellant collected $60 from the friend. All the stolen property was then placed in the appellant's car which was near the victim's home & the victim was released.
Aged 22 - remorseful - drug addict - assistance to authorities in matter after sentence - history of mental illness - believed house to be unoccupied - priors, including drug, property, fraud, dishonesty offences - not previously imprisoned.
Appeal allowed: resentenced to MT 3y, AT 2y.
427

ANDREW, Benjamin Bruce - CCA, 17.8.2000
Spigelman CJ, James & Sperling JJ
Citation: R v Andrew [2000] NSWCCA 310
(See R v Kane [2000] NSWCCA 402; see also R v Andrew & Kane [1999] NSWSC 647)
Conviction appeal.
Manslaughter.
MT 4y, AT 2y.
Appellant & a companion went to victim's flat with the intention of killing the victim. They took a baseball bat, adhesive tape & a plastic bag with them. Appellant hit the victim over the head with the baseball bat & bound the victim with the tape. The plastic bag was put over the victim's' head by either the appellant or his accomplice & taped around the victim's neck, which resulted in the victim suffocating.
Directions on causation & on act(s) causing death - error in directions on unlawful & dangerous act relating to manslaughter - error in directions on self-defence as it related to manslaughter - defence case not put adequately or fairly by trial judge.
Appeal allowed: new trial ordered.
428

KANE, Peter Clive Basil - CCA, 11.10.2000
Wood CJ at CL, Adams J, Foster AJA
Citation: R v Kane [2000] NSWCCA 402
(See R v Andrew [2000] NSWCCA 310; see also R v Andrew & Kane [1999] NSWSC 647)
Conviction appeal.
Murder.
Crown case alleged that appellant & co-accused went to the home unit of the deceased with the intention of killing him & that the deceased was struck with a baseball bat they had taken with them. It was further alleged that they then bound his hands, knees & feet with adhesive tape. His ears, eyes & mouth were also heavily bound with tape. A plastic bag was placed over his head, secured by tape wound around his neck.
At trial, the Crown in its opening address, said that a witness would give evidence of a conversation with the appellant & the appellant confessing to the killing. However, the witness did not recall any such conversation & denied having signed a statement concerning it.
Refusal to discharge jury - failure of witness to recall conversation - change of counsel - directions - causation - failure of appellant to give evidence - provocation.
Appeal allowed: new trial ordered.
429

STONES, Lee - CCA, 29.8.2000
Foster AJA, Dunford & Greg James JJ
Citation: R v Stones [2000] NSWCCA 341
Conviction and sentence appeal.
Armed robbery; being carried in a conveyance knowing that the conveyance was taken without consent.
MT 4*y, AT 2*y.
Appellant & co-offender entered a jewellery store. The appellant produced a knife & pointed it at the owner then grabbed him & said 'Where is the cash?'Appellant was unable to open the cash register & again threatened the owner with the knife. The owner opened the register & took out $425. After the owner was further threatened, he opened the safe & the appellant took items of jewellery from it. A stolen vehicle was located by police shortly after the robbery, containing a knife & 2 newspapers, on one of which was the thumb print of the appellant.
Aged 26 - offences committed whilst on recognizance - substantial amount taken - drug addict - some degree of planning - priors including property, fraud, drug, driving offences, as well as breach of recognizance - previously imprisoned.
Appeal dismissed.
430

FRAWLEY, Maurice Peter - CCA, 30.8.2000
Heydon JA, Smart AJ, Ireland AJ
Citation: R v Frawley [2000] NSWCCA 340
Conviction and sentence appeal.
Murder.
Life.
The victim was the appellant's wife. The appellant had been drinking & had consumed 38 cans of beer & 6-8 glasses of wine in 48 hours, after which he ingested 3 types of medication for back pain, including Mogadon. The deceased was stabbed 35 times, a stab wound in the carotid artery causing death. There were signs of a violent & lengthy struggle in the home, both upstairs & downstairs.
Relationship evidence - voluntariness of ROI - appellant's instructions to counsel during trial allegedly disregarded - application of Rule 4 - DNA evidence - fresh evidence - evidence of admissions - opinion evidence.
Appeal dismissed.
431

NGUYEN, An Van - CCA, 22.8.2000
Beazley JA, Greg James & Kirby JJ
Citation: R v An Van Nguyen [2000] NSWCCA 288
(See R v Nguyen [2000] NSWCCA 285)
Sentence appeal.
Supply heroin.
MT 6y, AT 2y.
Appellant & his brother-in-law supplied heroin from premises they shared. When police searched the premises, they found 6.7 grams of heroin concealed in a number of locations, along with paraphernalia associated with the supply of drugs.
Aged 30 - unemployed - circumstances difficult following arrival in Australia - married with 3 children - good husband - rehabilitation - completed various courses - prior offence of goods in custody - not previously imprisoned.
Appeal allowed: resentenced to 3y 8m, with NPP of 2y 9m.
432

NGUYEN, Phuong Van - CCA, 22.8.2000
Beazley JA, Greg James & Kirby JJ
Citation: R v Nguyen [2000] NSWCCA 285
(See R v An Van Nguyen [2000] NSWCCA 288)
Conviction and sentence appeal.
Supply prohibited drug (heroin).
MT 6y, AT 2y.
Police searched appellant's home where items were found consistent with supplying heroin. Police found a bottle containing 5 pieces of white rock-like substance which was later identified as heroin. They also found silver foils & balloons containing heroin, concealed in a drain. Aggregate weight of heroin was 6.7 grams.
Aged 29 - priors include fraudulently use licence, stealing - not previously imprisoned.
Failure to direct jury adequately on identification.
Appeal allowed: new trial ordered.
433

SHAW, Lee Anthony - CCA, 23.8.2000
Heydon JA, Smart AJ, Ireland AJ
Citation: R v Shaw [2000] NSWCCA 326
Sentence appeal.
Armed robbery - MT 3y, AT 3y;
B&E with intent - MT 3y, AT 3y.
Appellant, accompanied by a female & armed with a syringe filled with red liquid which he told the victim was blood, threatened to stab the victim. He also told the victim that he had been following him all day. He took the victim's money. A little over 2 months later, appellant broke into & entered Loyola College, Mt Druitt with intent to steal. There was also a Form 1 matter that involved attempting to rob a hairdressing salon of cash by threatening with a screwdriver.
Aged 21 - offences committed whilst on parole - committed whilst on bail in relation to various other offences - priors include property, driving offences - previously imprisoned.
Appeal allowed insofar as sentenced for B&E reduced to concurrent FT 2y.
434

SKENE, John Fancis - CCA, 25.8.2000
Meagher JA, Sperling & Adams JJ
Citation: R v Skene [2000] NSWCCA 322
Conviction and sentence appeal.
3 x aggravated indecent assault; 3 x homosexual intercourse with male between 10 & 18.
Aggregate MT 4y, AT 16m.
Appellant was a friend of the victim's family. Victim alleged that the appellant fondled the victim's penis; that he followed the victim into his bedroom, pushed him onto the bed & performed fellatio on him; that the victim was then made to perform fellatio on the appellant; that the appellant grabbed the victim on the buttocks; that the appellant & the victim went to an oval to drink beer & anal intercourse was performed by the appellant upon the victim. There were no facts provided in the judgment regarding the one charge of homosexual intercourse with male.
Aged 24 - prior driving offences & obtain money by deception offences - not previously imprisoned.
Error in directions as to evidence - summing up prejudicial to appellant - error in failing to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
435

UPTON, David Cameron - CCA, 15.8.2000 - 116 A Crim R 298
Spigelman CJ, Grove & Kirby JJ
Citation: R v Upton [2000] NSWCCA 305
Conviction and sentence appeal.
Sexual intercourse without consent; unlawfully causing stupefying drug to be taken by complainant with intent to enable him to commit sexual intercourse.
Jury returned verdict of guilty on 1st count & not guilty on 2nd.
MT 2*y, AT 2*y.
Complainant was a primary school teacher aged 26 of Austrian nationality. Arrangements had been made for her to stay at the appellant's home whilst in Sydney. They went on a trip to Thredbo where they shared a double bed as the appellant told the victim no other accommodation was available. Before going to bed one evening they each consumed a number of drinks. In the morning, the victim awoke wearing only her pyjama top & she had very little memory of the evening before. She asked the appellant if they had had sex & he said they had. Traces of the sedative Temazepam was found in her blood.
Aged 38 - priors include drive in manner dangerous, resist arrest, false pretences, steal, assault, driving offences - not previously imprisoned.
Direction to jury concerning effect of stupefying drug - acquittal on count of administering drug - inconsistency of verdicts - direction regarding credibility of complainant - challenge to adequacy of charge to jury.
Appeal dismissed.
436

HUGHES, Glenn Ronald - CCA, 8.9.2000
Fitzgerald JA, Newman & Greg James JJ
Citation: R v Hughes [2000] NSWCCA 366
Sentence appeal.
Robbery in company; steal MV; malicious damage by fire.
Aggregate MT 4y, AT 2y.
Appellant & 2 co-offenders drove to a car park with the intention of committing a robbery. Appellant & one other approached a man, asking him for a light. One co-offender took a steering lock & beat the man about the head 10-16 times. They took the man's keys, went to his car & took his wallet. All 3 left the car park. The 3 men agreed to return to the car park, steal the victim's car & burn it to destroy evidence. One co-offender was left at the victim's home to steal while the others drove to the car park. They drove the victim's car to a train station then set fire to it. The victim suffered permanent brain damage.
Aged 24 - guilty plea - full & frank admissions - remorse - co-operation with police - married with small children - alcohol & drug dependent - on recognizance at time of offence - priors include assault, BE&S, receiving, stealing.
Parity.
Appeal allowed: resentenced to 4*y with NPP of 3y.
437

BAARTMAN, Jon Leslie - CCA, 13.9.2000
Spigelman CJ, Kirby J, Smart AJ
Citation: R v Baartman [2000] NSWCCA 298
Conviction appeal.
Murder.
MT 15y, AT 5y.
Appellant was one of several offenders. The victim answered a knock on the door of his home. His wife heard a male voice asking to speak to someone named Tony. After the victim replied that no-one by that name lived there, the victim was shot.
Error in directing jury as to circumstantial evidence - error in directions as to intent - failure to warn on unreliability of evidence.
Appeal dismissed.
438

ZHANG, Ju Sheng - CCA, 31.8.2000
Foster AJA, Dunford & Greg James JJ
Citation: R v Zhang [2000] NSWCCA 344
Conviction appeal.
Murder; attempt murder; use weapon to avoid apprehension; malicious wounding.
Aggregate MT 19y, AT 5y.
Appellant went to estate agency to pay his rent & asked to speak to the agent responsible for his premises about his difficulties in obtaining new locks, as the appellant's premises had been broken into. A brief conversation then an argument followed. The appellant produced a knife & the victim ran into an office. The appellant entered the office & stabbed the victim. The victim was taken outside & treated by an ambulance crew, the appellant remaining in the office. When one of the employees returned, the appellant was still holding the knife & chased him across the road. A motorist collided with the appellant to stop him. When police arrived, the appellant taunted them. In an attempt to arrest the appellant, a struggle ensued & some of the officers were injured.
Mental health - fitness to be tried - issue raised in good faith - failure of judge to conduct fitness inquiry.
Appeal allowed: new trial ordered.
439

MAGRIN, Gregory Allan - CCA, 31.8.2000
WATSON, Graeme Joseph
Mason P, Levine & Greg James JJ
Citation: R v Magrin & Watson [2000] NSWCCA 346
Sentence appeals.
Magrin: conspire to maliciously inflict GBH - MT 12m, AT 4m.
Watson: maliciously inflict BGH with intent to do GBH - 12m PD.
Two co-accused were caught cheating in a fishing club competition & stripped of points. They took a dislike to the club president (the victim) & sought to find someone to assault him. Arrangements were made to carry out the assault for $2,000 with the suggestion 'it would be a bonus' if the victim was hospitalised. The victim was pointed out by Magrin to the assailant & Watson. When the victim left the club, he was followed by the assailant, Magrin & Watson. The assailant, armed with a baseball bat, approached the victim & assaulted him. After the assault, Watson drove the assailant from the scene & also assisted in disposing of the baseball bat & clothing. Watson was not present during the assault.
Magrin: aged 41 - assistance to authorities - priors include fraud/dishonesty, violence, property, driving, sexual offences - previously imprisoned.
Watson: aged 37 - priors include violence, property offences - not previously imprisoned.
Appeals dismissed.
440

DERBIN, Peter - CCA, 12.9.2000
Mason P, Levine & Greg James JJ
Citation: R v Derbin [2000] NSWCCA 361
Conviction appeal.
Attempt suffocate with intent to murder; maliciously inflict GBH.
Little dispute as to primary facts giving rise to charges. The only contested issue was the defence of mental illness. Appellant lived with his mother (aged 55) & her father. One evening, appellant was playing loud music in his bedroom & his mother asked him to stop as his grandfather had gone to bed. He attacked his mother, gouged her eyes, removing one eye completely, the other being displaced from the eye socket & so damaged that it required surgical removal. He then placed a pillow over her head in an attempt to suffocate her & she passed out. Thinking she was dead, appellant left the home & was arrested almost a month later in Newcastle.
Aged 22 at time of offences - mental illness defence - underlying schizophrenic condition affected by alcohol & drugs - extent to which appellant's mental illness affected his capacity to reason - did not know that what he did was wrong.
Appeal allowed: conviction & sentence quashed; appellant detained under s.39 Mental Health (Criminal Procedure) Act 1990.
441

GREENAWAY, Donald Victor - CCA, 12.9.2000 - 118 A Crim R 299
Priestley JA, Greg James & Kirby JJ
Citation: R v Greenaway [2000] NSWCCA 368
Conviction and sentence appeal.
Count 1 - buggery (FT 15m); count 2 - indecent assault (FT 18m)t; count 3 - buggery (MT 3y, AT 2y); count 4 - indecent assault (FT 2y); count 5 - indecent assault (FT 12m); count 6 - commit gross indecency (FT 6m) All offences committed upon male person.
Aggregate MT 5y, AT 2y.
Victim between 5 & 6 at time of 1st offence. Offences took place over a number of years. Appellant in position of trust with victim being in his care on all occasions. Appellant seeking to educate victim towards his own sexual disposition.
Appellant attempted to engage victim in a sexual conduct with total disregard to the physical pain it caused the victim. No other facts provided.
Aged 46 at 1st offence - remorse - priors include sex offences, fraud/dishonesty, property offences - previously imprisoned.
Count 4 offence abolished & replaced by new offence. Not possible to fix date of offence with any great accuracy, therefore not possible to determine whether offence committed under repealed provision or new provision.
Conviction appeal on count 4 allowed: verdict of acquittal entered.
Sentence on count 3 restructured to be cumulative upon count 5 sentence.
442

McCREA, Wayne Ronald - CCA, 11.8.2000 - 114 A Crim R 226
Smart AJ
Citation: R v McCrea [2000] NSWCCA 300
Sentence appeal from Drug Court, pursuant to s.5AF Criminal Appeal Act 1912.
Take & drive conveyance - MT 9m, AT 3m 1w; possess implement to drive vehicle without consent - FT 6m; possess implement capable of being used to drive vehicle - FT 4m.
This was an appeal by way of re-hearing of evidence given in the Drug Court & any additional evidence given to the CCA pursuant to leave granted by it. No other facts provided.
Aged 32 at 1st offence - marked difference in appellant's position during 14* months between sentence & appeal - gained employment & built better relationship with mother & daughter - continues to attend narcotics anonymous meetings - priors include property, fraud, driving, violent, drug, firearm offences - previously imprisoned.
Admission of further evidence on special grounds - fresh evidence - power to impose suspended sentence.
Appeal allowed: sentences suspended conditional upon entering into 11m 2w GBH.
443

GIACALONE, Tomas John - CCA, 17.3.2000
Ireland, Simpson & Barr JJ
Citation: R v Giacalone [2000] NSWCCA 116
Sentence appeal.
Robbery; steal from the person; assault with intent to rob; accessory after fact to robbery; allow to be carried in stolen conveyance.
Aggregate MT 3*y, AT 3*y.
Appellant snatched a woman's handbag & dragged her along the street as she resisted his attack. She suffered severe bruising to face & body as well as injury to left eye & had to receive medical treatment on 6 occasions following the attack. No other facts provided.
Aged 29 - good work history - alcohol & drug use from young age - father committed suicide & appellant discovered the body approx a year before offence - - addicted to heroin after father's death - genuine remorse - priors include illegal use of MV; drive manner dangerous; stealing; obtain benefit by deception; BE&S; take conveyance without consent; unlicensed driver - previously imprisoned (PD only).
Whether sentence excessive.
Appeal dismissed.
444

THOMPSON, Katrina - CCA, 11.8.2000
James & Dowd JJ
Citation: R v Thompson [2000] NSWCCA 362
Sentence appeal.
Supply heroin; + Form 1 offences.
MT 7m 25d, AT 2y 4m 5d (allowance made for pre-sentence custody of approx 5w).
On 3 separate occasions appellant supplied heroin. He was identified as one of the runners in a group consisting of 2 principals, 3 middle managers and 7 runners.
Aged 20 - attends residential drug rehabilitation programme - about 6m spent in institution (quasi-custodial) - heavily addicted at time of offences - priors include shoplifting, enter enclosed lands - not previously imprisoned.
Parity - special circumstances.
Appeal allowed: resentenced to MT 5m, AT 9m.
445

VULIC, Sinve - CCA, 7.8.2000
James & Dowd JJ
Citation: R v Vulic [2000] NSWCCA 295
Sentence appeal.
Attempt discharge loaded firearm with intent to do GBH; possess loaded firearm in public place; AOABH.
Aggregate MT 10y, AT 2y.
Victim was a solicitor who had acted for appellant's brother in a family law dispute. Appellant blamed solicitor for failing to establish that he, the appellant, held an interest in property the subject of the dispute. Appellant armed himself with loaded semi-automatic rifle & petrol bombs, went to vicinity of victim's office & waited for him. As victim approached, appellant pointed rifle at victim. Victim ran & grabbed hold of the rifle & received lacerations to his nose & wrist during a struggle. Workers from a construction site assisted victim to disarm & subdue appellant.
Aged 53 - born in Croatia - married with 2 children - offence premeditated & planned - irregular work after suffering back injury - made bankrupt as a result of orders made against him in unsuccessful workers compensation case - psychiatric problems - no insight into extent of problems - unlikely to take medication - risk of acting aggressively again - priors include breach of AVO; false pretences - not previously imprisoned.
Appeal allowed: resentenced to aggregate 10y with NPP of 7*y.
446

INGENHOFF, Frank - CCA, 14.9.2000
Priestley JA, Greg James & Kirby JJ
Citation: R v Ingenhoff [2000] NSWCCA 14.9.2000
Conviction appeal.
Malicious wounding; possess shortened firearm.
MT 2y 10m, AT 12m.
Appellant was tried jointly with co-accused (see Hollier [2000] NSWCCA 225). Both accused were acquitted on the charge of possess firearm. The co-accused appealed successfully to the CCA & a new trial was ordered.
Inconsistent verdicts - 'unsafe and unsatisfactory'.
Appeal allowed: new trial ordered.
447

JIMINEZ, Glen - CCA, 6.10.2000 - 119 A Crim R 299
Fitzgerald JA, Smart AJ, Ireland AJ
Citation: R v Jiminez [2000] NSWCCA 390
Conviction appeal.
Also Crown appeal.
Supply prohibited drug (heroin - 48.6 grams).
Sentence not stated.
Appellant was arrested during a controlled operation. The quantity of heroin was allegedly found on the appellant's person. Crown case was one of deemed supply. Trial judge was critical of conduct of police & excuses they gave. She expressed the view that there was 'much force in the argument that the police had 'fitted up'the appellant ...'Although a video recording was made at the scene, the video recorder was not used during the critical part of the search. The excuses the police made for not using the camera were unconvincing. There was also contradictory evidence from police as to witnessing the appellant being searched.
Verdict unsupported - correct procedures on search - inconsistent police evidence.
Crown appeal dismissed.
Conviction appeal allowed: verdict of acquittal entered.
448

METCALF, Scott Derek - CCA, 7.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Metcalf [2000] NSWCCA 277
Crown appeal.
2 x robbery while armed with offensive weapon; 3 x robbery in company.
3y PD.
The offences arose from a series of events involving respondent & 2 others carrying out robberies at a number of service stations in the southern areas of Sydney. On each occasion, a knife & baseball bat were used to intimidate the victim. All offenders were young at the time & all pleaded guilty. At the time of sentence, all were 20 years of age.
Respondent schizophrenic - bail conditions required him to seek psychiatric treatment - complied with these requirements - provided 36 drug-free urine specimens.
Crown submitted that sentencing judge failed to properly take into account what had fallen from the CCA in Henry.
Co-operation with authorities - mental illness - special circumstances.
Appeal dismissed.
449

SMITH, Craig Anthony - CCA, 10.5.2000 - 116 A Crim R 1
Foster AJA, Dunford J, Smart AJ
Citation: R v Smith [2000] NSWCCA 388
Conviction appeal.
Robbery while being armed with offensive weapon.
MT 2y, AT 3y.
Principal issue at trial was identification. Appellant denied involvement in the offence & he put forward an alibi which was rejected by the jury. The offence occurred on a Saturday night when the victim was walking along Marion Street, Leichhardt. She saw a man in front of her, thought he was putting out some garbage & she went to step around him. Appellant grabbed the victim's shoulder bag & held a large carving knife above his head & screamed 'Give me your bag'He then ripped the bag off her shoulder & ran up the street. Victim ran after him & saw him getting into a car. On the Monday morning, the victim saw the appellant at Marketown shopping centre & went past him a few times in order to be absolutely sure about identification before contacting police.
Appellant submitted that summing up was deficient - no direction as to how jury should deal with inconsistent accounts given by appellant - absence of fresh evidence at trial resulted in miscarriage of justice - error in directions as to identification evidence.
Appeal dismissed.
450

BYRNES, Barry Francis - CCA, 15.8.2000
Mason P, James & Sperling JJ
Citation: R v Byrnes [2000] NSWCCA 304
Conviction appeal.
7 x sexual abuse of stepdaughter, including sexual intercourse without consent, aggravated sexual intercourse without consent, aggravated indecent assault
The 1st offence occurred when complainant was in kindergarten & the last occurred when she was aged 13. According to the complainant, the sexual abuse took place on a regular basis, however, the appellant was charged with only 7. Complainant said that the appellant had threatened to shoot her and her sister if she told anyone.
Warning as to reliability of complainant's evidence - findings of fact on which judge relied - not incumbent upon trial judge to detail each & every error of witness - no error in determining appellant's ERISP answers were 'not really denials'- Longman warning - judicial direction under s.405B
Appeal dismissed.
451

HOWARD, Peter Andrew - NSW SC, Studdert J, 31.8.2000
Citation: R v Howard [2000] NSWSC 876
Remarks on sentence.
Manslaughter.
Guilty plea. Deceased was 8 months old when he died. His mother was living in a de facto relationship with the accused at the time. The deceased had been left in the accused's care while the mother was out at the shops. Some time later, the accused called for an ambulance & upon arrival ambulance officers found the child had stopped breathing & had no pulse. They tried to resuscitate him, then took him to Bathurst Base Hospital where resuscitation efforts were continued. The deceased was then transferred to the Intensive Care Until of Westmead Children's Hospital & remained in a critical condition until he died the following day. A post mortem examination revealed that the deceased died as a result of injuries he sustained by being severely shaken.
Sentenced to 7*y with NPP of 5*y.
452

DH - CCA, 15.9.2000
Stein JA, Smart AJ, Ireland AJ
Citation: R v DH [2000] NSWCCA 360
Conviction appeal.
4 x homosexual intercourse with male above 10 & under 18.
The complainant, who was 15 at the time of the above offences, is the son of the appellant. Complainant said the first time his father sexually molested him was when he was aged about 5 & that subsequently there had been sexual contact on too many occasions for him to be able to count them. Complainant told of an incident where appellant had given him a white tablet which induced drowsiness & that appellant had then had anal intercourse with him & then the complainant was forced to do the same to the appellant. This, the complainant said, was accompanied by a threat with a knife. Complaint was made after the last sexual assault the day the complainant came home from hospital with his broken leg in plaster. The assault culminated in the appellant throwing the complainant through the lounge room window.
Failure of judge to sum up on facts - use of evidence of sexual assaults not charged - duplicity - delay in complaint - relationship evidence - complaint direction - corroboration warning - unreasonable & unsupported verdict.
Appeal dismissed.
453

POLANSKI, Rafal - NSW SC, Barr J, 28.8.2000
Citation: R v Polanski [2000] NSWSC 854
Remarks on sentence.
Nomination of Limiting Term.
Murder.
Accused bashed to death an adult male who made homosexual advances. Accused was under the influence of alcohol at the time & accepted an offer by the deceased who was willing to provide accommodation for the night. Once in deceased's home, deceased sought to have sex with the accused. Accused claimed to be revolted & afraid. He attacked & killed the deceased with a fire extinguisher.
Underlying psychotic illness - gross reaction when combined with alcohol.
Rehabilitation - combination of circumstances unlikely to arise again.
Limiting term of 13y in an approved mental hospital.
454

BOWTEL, Sidney Justin - NSW SC, Hidden J, 21.8.2000
Citation: R v Bowtell [2000] NSWSC 803
Redetermination of life sentence under s.13A Sentencing Act 1989.
Manslaughter.
Applicant pleaded guilty to charge of manslaughter which the Crown accepted in full satisfaction of an indictment for murder on the basis of diminished responsibility.
Applicant was aged 17 at the time he killed an 81 year old woman by striking her around the head. He sexually assaulted her after the killing. He confessed to his girlfriend that he had killed the woman.
On bail for armed robbery at time of offence - diagnosed with Attention Deficit Disorder - assisted by medication in prison - alcohol & marijuana abuse - importance of abstinence from alcohol - remorse - dysfunctional family - not likely to repeat sexual nature of offence.
Application allowed: sentenced to 21y with NPP of 15y.
455

GUIDER, Timothy Paul - CCA, 13.9.2000
Citation: R v Guider [2000] NSWCCA 355
Conviction and sentence appeal.
Conspire to commit robbery whilst armed with offensive weapon; armed with intent to commit armed robbery (toy pistol).
Aggregate MT 7*y, AT 2*y.
Offences involved a plan to rob banks. Opening procedures of target bank were observed. The above offences were foiled by a police informant who had alerted the police
Reliability of evidence - mental disorders - conduct of legal practitioners - incompetence of counsel - duties of trial judge.
Appeal dismissed.
456

SIROCIC, Chris Julian - CCA, 14.4.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Sirocic [2000] NSWCCA 325
Stated case for determination by CCA on 2 questions of law arising from an appeal to the DC.
Respondent was convicted on 23.7.1998 of drive in manner dangerous to public & was disqualified from diving for 2y. On 9.6.1999 he pleaded guilty in the LC to drive whilst disqualified. The magistrate found the offence proved but dismissed the charge pursuant to s.556A Crimes Act. Crown appealed to the DC pursuant to s.133F Justices Act. The appeal was upheld & the respondent was convicted & put on a 12m GBB & was disqualified from driving for 12m. At the request of the Crown, the judge then stated a case to the CCA pursuant to s.5B Criminal Appeal Act.
Whether DC should have imposed the statutory minimum disqualification - whether the period of disqualification should have commenced at the expiry of the existing disqualification period.
Answered in the affirmative.
457

SIROCIC, Chris Julian - CCA, 25.8.2000
Priestley JA, Foster AJA, Smart AJ
Citation: R v Sirocic [2000] NSWCCA 327
Following R v Sirocic [2000] NSWCCA 325, both the Crown & the respondent filed written submissions with both contending that the Court should order that the order in the DC disqualifying the respondent from driving for 12 months be set aside. Counsel for the respondent went further & submitted the conviction should also be set aside. Both counsel then agreed that the matter should be directed to the DC for determination.
The CCA remitted the matter to the DC:
(i) The DC's order disqualifying respondent from driving for 12 months set aside;
(ii) Respondent's conviction set aside as part of sentence under operation of s.556A Crimes Act 1900 (NSW);
(iii) DC directed to determine matter in accordance with answers to questions in stated case;
(iv) s.5B Criminal Appeal Act 1912 (NSW) allows appeals against acquittals & thus removes traditional common law protection against double jeopardy;
(v) Reversal of acquittals likely to be rare & principle against double jeopardy will continue to be protected by appeal court's wide discretion.
458

SABA, James John Jamil - CCA, 17.3.2000
Simpson J, Smart AJ
Citation: R v Saba [2000] NSWCCA 89
Sentence appeal.
10 x BE&S; 1 x B&E with intent to commit felony; 2 x receiving; 1 x possess house-breaking implements.
Aggregate MT 3*y, AT 1*y.
Applicant on parole at time of above offences. Salient feature during sentencing proceedings was that applicant was entitled to considerable leniency because the authorities would not have been able to prosecute many of the offences without his assistance. Sentencing judge revoked applicant's parole & determined the balance of parole would be subsumed in the above sentences. However, the sentencing judge was not made aware that the parole order had been transferred to Queensland & was registered there on 3.9.1998. By virtue of s.10(1) Parole Orders (Transfer) Act 1983 (NSW), parole order ceased to be in force in NSW from date of its registration in Queensland, therefore the sentencing judge had no power to revoke the parole order. Legal Aid Commission had refused legal aid to the applicant. Because of the extent & complexity of the problems & merits of the case, CCA expressed the view that the LAC should be asked to reconsider its decision to refuse legal aid.
Application for leave to appeal adjourned to a later date.
459

SINANOVIC, Hakija - CCA, 10.10.2000
Fitzgerald JA, Newman & Greg James JJ
Citation: R v Sinanovic [2000] NSWCCA 386
Conviction and sentence appeal.
2 x dishonestly obtain money by deception.
Aggregate MT 14m, AT 16m.
Tried by judge alone.
At time of appeal, applicant had served the above sentence but was in prison for other offences. Applicant was not represented by legal counsel in the CCA. At first his wife was granted leave to represent him but when this proved too time-consuming, leave was withdrawn & the applicant represented himself.
The above charges arose out of the applicant claiming to be able to obtain a good rate of exchange for the complainant by exchanging Australian dollars for drachma. In all, he obtained $63,200 from the complainant.
There was a list containing a number of grounds of appeal which, in summary, contended that a miscarriage of justice occurred because applicant felt he was unfairly tried & wrongly convicted.
Appeal dismissed.
460

McL - HC, 31.8.2000 - 203 CLR 452
Citation: McL v The Queen [2000] HCA 46
Appeal against sentence.
Numerous sexual offences.
Power of Court of Appeal (Vic) to resentence on remaining convictions after quashing some convictions - power of Court of Appeal to increase sentences on those remaining convictions - procedural fairness - whether grounds for interference.
No error in exercise of power - no denial of procedural fairness.
Appeal dismissed.
461

DINSDALE - HC, 12.10.2000 - 202 CLR 321; 74 ALJR 1538
Citation: Dinsdale v The Queen [2000] NCA 54 (12 October 2000)
Sentence appeal.
Appellant convicted of 2 sexual offences against 9 year old female, received 18m suspended sentence. CCA (WA) allowed Crown appeal & imposed new sentence of 30m imprisonment, no suspension.
Circumstances in which CCA should allow appeal against sentence & substitute its own sentence - necessity to find & identify error before allowing appeal - whether failure to do so in reasons of CCA - circumstances in which judicial discretion to suspend sentence should be exercised - whether power to suspend sentence is confined by reference wholly, mainly or specially to effect on rehabilitation.
Appeal allowed: orders of CCA (WA) be set aside; in place of those orders, order that appeal to that Court be dismissed.
462

CHENG, CHENG & CHAN v THE QUEEN - HC, 5.10.2000 - 74 ALJR 1482
Citation: Cheng v The Queen; Cheng v The Queen; Chan v The Queen [2000] HCA 53 (5 October 2000)
Appeal from CCA (SA).
Knowingly concerned with importation of commercial quantity heroin under s.233B(1)(d) Customs Act (Cth). Applicants entered guilty pleas. On sentence, applicants did not dispute that commercial quantity was imported, but 2 applicants claimed they were unaware that the importation involved that quantity.
Differential punishment for trafficable & commercial quantities - requirements of s.80 Constitution - whether infringement.
Appeal dismissed. Variety of reasons given for dismissing the appeal without providing a great deal of guidance on the issue.
463

JOHNSON v JOHNSON - HC, 7.9.2000
Citation: Johnson v Johnson [2000] HCA 48 (7 September 2000)
Appeal from the Full Court of the Family Court of Australia.
Whether trial judge was disqualified from continuing to hear the case on the ground of apprehended bias. The Full Court of the Family Court decided the question in the negative.
During proceedings, trial judge indicated he would be relying primarily upon independent documents & witnesses to determine truth of matter in hand. Issue was whether trial judge's comment suggested he had formed a view that the appellant's credit was of no worth before appellant had commenced to give evidence.
Whether statement gave rise to reasonable apprehension of bias.
Appeal dismissed.
464

KIRBY, Kevin James - CCA, 13.9.2000
Beazley JA, Wood CJ at CL, O'Keefe J
Citation: R v Kirby [2000] NSWCCA 330
Conviction and sentence appeal.
2 x armed robbery (s.97(1) Crimes Act).
MT 6y 10m, AT 3y 2m.
Crown case was that appellant & another committed robberies at Waverton & Epping railway stations. Both offences occurred at night & both were perpetrated upon station employees.
Identification evidence - sufficiency of directions concerning photographic evidence - Jones v Dunkel direction - cross-examination on alibi evidence.
Appeal dismissed.
465

KANJ, Mohamad - CCA, 9.10.2000 - 118 A Crim R 329
Hulme & Barr JJ
Citation: R v Kanj [2000] NSWCCA 408
Sentence appeal; extension of time.
1 x detain with intent to hold for advantage - 5y with NPP of 3y;
1 x malicious wounding - FT 3y.
Applicant & his wife in an arranged marriage which was marked by violence. Applicant unlawfully detained his wife & assaulted her male friend. He claimed that he acted from jealousy.
Sentencing - whether wife's forgiveness a factor - no priors - lack of English.
Extension of time granted; appeal dismissed.
466

OFFER, Paul Michael - NSW SC, Greg James J, 25.8.2000
Citation: R v Offer [2000] NSWSC 839
Remarks on sentence
.
Murder; GBH with intent to murder.
Accused originally charged with above offences, as well as 3 counts of solicit to murder. He pleaded not guilty to all counts & was placed on trial. At trial, Crown prosecutor opened to the jury in detail all the evidence it proposed to lead against accused. Proceedings were adjourned to following Monday. On that day, accused said he would plead guilty to the murder & GBH with intent to murder charges. He was re-arraigned on those counts & the jury discharged on the other 3 counts, the sentencing judge being asked to take those charges into account on a Form 1.
Both principal charges involved victims who were witnesses for the prosecution in court cases the accused was facing (in one case, the wife of a witness). The murder victim was shot in the head with a gun, the GBH with intent to murder victim was shot in the head with a bolt from a crossbow. The accused said he had intended killing the woman's husband.
Change of plea before jury - life sentence criteria for power to pass - level of culpability - construction of relevant statutory provisions.
Sentenced to: Murder - 34y with NPP of 25y; GBH with intent to murder - 10y concurrent with the above sentence.
467

OGD No.2 - CCA, 13.10.2000 - 50 NSWLR 433
Mason P, Simpson & Dowd JJ
Citation: R v OGD No.2 [2000] NSWCCA 404
Conviction and sentence appeal.
9 x homosexual intercourse with male under 18; 1 x attempt commit homosexual intercourse; 1 x sexual intercourse without consent.
MT 6y 1m, AT 3y.
Appellant pleaded not guilty to each charge. Jury returned verdict of not guilty on one charge of homosexual intercourse with male under 18 & guilty on all other charges. Crown alleged all offences were committed over a period of almost 5 years on appellant's nephew who was aged between 12 & 17 at relevant times. Appellant is 15 years older than complainant.
Evidence of admission - evidence disclosing similar offence with another victim - appellant raised character - cross-examination - evidence of similar offences allegedly committed on 2 other victims - application of decision in Hoch v R (1988) 165 CLR 292 post Evidence Act 1995 - tendency evidence - directions on character evidence - inconsistent verdicts.
Appeal dismissed.
468

HOWE, Bernice Kaye aka McGOVERN, Bernice Kaye- CCA, 6.10.2000
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Howe aka McGovern [2000] NSWCCA 405
Wood CJ at CL, Dunford J, Carruthers AJ
Crown appeal.
3 x defraud Commonwealth.
12m PD & reparation order in the sum of $115,118.40.
Offences spanned a little more than 12 years during which respondent obtained a Widow's Pension & a sole Parent Pension & Family Allowance/Family Payment from Dept of Social Security/Commonwealth Services Delivery Agency. At all relevant times, respondent was in employment. Respondent was not a widow but a divorcee.
Aged 50 at time of sentence - guilty plea - contrition - general deterrence - sole carer of daughter still at school.
Whether imposition of PD manifestly inadequate - whether very special, exceptional or extraordinary circumstances existed.
Appeal allowed: resentenced to 2y PD, reparation order confirmed.
469

WHITEHEAD, Daryl Robert - CCA, 18.10.2000
Wood CJ at CL, O'Keefe J, Carruthers AJ
Citation: R v Whitehead [2000] NSWCCA 400
Conviction appeal.
1st Indictment: 1 x act of indecency; 6 x homosexual intercourse with male between 10 & 18.
2nd Indictment: 1 x assault & commit act of indecency (person under 16).
Aggregate MT 4*y, AT 2y.
Offences in 1st indictment alleged to have occurred over period just short of 4 years whilst appellant & complainant worked together on farms in Hunter Valley district. On 1st day of trial, at completion of complainant's evidence-in-chief, judge directed verdicts of not guilty on counts 3 & 6, the following day he directed verdicts of not guilty on counts 2 & 7, then permitted the Crown to amend the indictment to vary dates between which offence in count 5 was alleged to have been committed. Only evidence of significance in Crown case was that of complainant. There was an ERISP in which appellant denied all allegations.
On 1st Indictment: whether verdicts 'unsafe & unsatisfactory'.
On 2nd indictment: whether conviction should be set aside following plea of guilty by reason of imprudent & inappropriate advice tendered to appellant by his legal representatives.
Appeal allowed on 1st indictment: convictions quashed, verdicts of acquittal entered.
Appeal allowed on 2nd indictment: conviction quashed, leave granted to withdraw plea of guilty, new trial ordered.
470

CARADONNA, Angelo Antonio - CCA, 6.10.2000 - 118 A Crim R 312
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Caradonna [2000] NSWCCA 398
Crown appeal.
3 x defraud Commonwealth.
2y PD & reparation order.
Offences related to fraudulently obtaining money from the ATO. He presented forged group certificates & a statutory declaration over a period of 3 years & also made claims for various MV & other work related expenses which were not true. The ATO issued him with refund cheques for 2 years totalling $46,373.04. After filing the last tax return, respondent was due to receive a refund of $17,114.09 but the matter was investigated & the cheque was intercepted & cancelled by the ATO. Initially pleaded not guilty. After 5 days & virtually at end of Crown case, he changed his pleas to guilty. Trial judge regarded pleas of guilty more as a recognition of reality rather than any indication of contrition. Weight given to guilty pleas because of providing certainty in the outcome of the matters & avoiding the possibility of a hung jury or perverse acquittal.
At time of appeal, apart from 1st weekend, respondent had not attended for any PD, claiming to have a medical condition which prevented him from doing so. He had made no payments pursuant to the reparation order.
Need for general deterrence - PD & home detention inadequate.
Appeal allowed: resentenced to 6m full-time custodial sentence on each count (concurrent).
471

SIROCIC, Christopher Julian - CCA, 26.10.2000
Sheller JA, Dowd J, Smart AJ
Citation: R v Sirocic [2000] NSWCCA 447
Sentence appeal.
Cultivate prohibited plants (cannabis): + 1 x possess cannabis leaf on a Form 1.
MT 2y, AT 2y.
Sentencing judge found special circumstances, justifying variation of MT & AT (need for rehabilitation). Applicant pleaded guilty. He claimed to have gone jogging in an area of bush. He said he tripped over & when he got up he saw marijuana plants growing in the bush. He left & later returned. He snapped branches off because the plants were too thick to pull out of the ground & carried them back to his house. He claimed his intention was to strip the plants & smoke them. Applicant's arrest emanated from police presenting a search warrant & searching his place of residence where they found cannabis leaves, stalks, stems & flower heads in various places & cannabis plant matter wrapped in sheets under a bed & also next to a wardrobe.
Born in Croatia - 40 at time of appeal - left school early to supplement family income - priors under various aliases - previously imprisoned - breaches of various orders - drug dependence - lack of contrition - caring for terminally ill friend.
Error in making no finding of fact with regard to number of cannabis plants cultivated - sentence manifestly excessive.
Appeal allowed: resentenced to 18m with NPP of 12m.
472

GWB - CCA, 13.10.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v GWB [2000] NSWCCA 410
Conviction appeal.
Carnal knowledge of girl under 10.
Appellant was indicted on 4 counts of carnal knowledge of girl under 10 & one count of carnal knowledge of girl over 10. Jury found him guilty on only one count & not guilty on the others. Complainant gave evidence that appellant, who was her step-father, started interfering with her sexually when she was about 3* years old. She said that she was 4 when appellant first had sexual intercourse with her & that this continued until she was 11. Complainant was 12 when she told her mother.
Inconsistent verdicts - 'unsafe & unsatisfactory'- miscarriage of justice - directions as to reasonable doubt.
Appeal allowed: verdict of acquittal entered.
473

HODGE, Barrie Alan - NSW SC, Dunford J, 6.9.2000
Citation: R v Hodge [2000] NSWSC 897
Remarks on sentence
.
Murder.
Accused aged 18 attended a party where he drank beer & inhaled one line of what he believed to be speed or amphetamines. Afterwards, he got a lift as far as where his then girlfriend was living, then intended hitching a ride to his home. The deceased stopped his vehicle & offered the accused a lift, then invited him to go to his house for some drinks. Early the following morning, deceased was discovered by his brother in the hallway of his home. He died approx 9 am as a result of multiple head injuries, predominantly to the rear right-hand side of the skull. These injuries were consistent with having been struck by a stonemason's mallet found approx 4-5 inches from where he was lying. Accused returned to his girlfriend's house, shaking & crying, with blood on his clothes & he told her he thought he had killed someone. He also told a friend he thought he had killed someone. He claimed the deceased had fondled him in a sexual way while he was sleeping. None of the accused's friends went to the police. Police were unable to match fingerprints found on beer cans at the scene of the crime. In 1998, some 10 years later, following the Police Royal Commission, the case was re-opened, by which time the accused had committed a number of minor offences. His fingerprints were on record & they matched those found on beer cans at the scene of the murder.
Sentenced to 15y, with NPP of 7y.
474

LAWS, Richard John Sinclair - NSW SC, Wood CJ at CL, 29.8.2000 - 50 NSWLR 97; 116 A Crim R 63
Citation: R v Laws (No.1) [2000] NSWSC 880
Judgment re the word 'solicit'.
Question of law or fact - natural and ordinary meaning - special or confined meaning - s.68A Jury Act 1977 - jury process - protection of sanctity of jury process.
475

PONT, Keith Edgar - CCA, 23.10.2000 - 121 A Crim R 302
Beazley JA, Wood CJ at CL, Greg James J
Citation: R v Pont [2000] NSWCCA 419
Crown appeal.
Larceny as a servant.
3y PD.
Respondent the most senior person on duty at a hotel during a robbery in which $20,000 was taken from the safe. The respondent opportunistically used this robbery to his own advantage by removing $30,000 from the safe for himself. He also received $5,000 from the robber.
Jurisdiction of appeal court - respondent's prior record - pattern of sentences for fraud offences - breach of trust - discretion to dismiss Crown appeals - whether sentence excessively lenient - potential guidelines.
Appeal dismissed.
476

FOLLI, Michael Anthony - CCA, 30.10.2000
Giles JA, Wood CJ at CL, James J
Citation: R v Folli [2000] NSWCCA 460
Application for separate trials.
14 sexual offences of indecent assault & sexual intercourse without consent involving 2 male complainants.
Complainants brothers. Alleged offences spanned 1 Jan 1979 to 31 Dec 1983 - complainants born 1967 & 1969.
Admissibility of evidence of one complainant as to offences involving the other - possibility of collusion - need for careful directions to jury.
Application dismissed.
477

QUINN, Peter Andrew - CCA, 27.10.2000
Fitzgerald JA, Newman & Greg James JJ
Citation: R v Quinn [2000] NSWCCA 446
Conviction and sentence appeal.
Sexual intercourse without consent in circumstances of aggravation.
MT 9y, AT 2y.
Appellant represented at trial but unrepresented on appeal.
Appellant followed complainant, who was aged 15 at the time, into a toilet on the platform at Lithgow Station. He threatened her then digitally penetrated her vagina. She managed to make her escape from him & identified him to passengers & railway personnel as he left the scene.
Appellant claimed on appeal that complainant had written to him & phoned him in gaol saying she lied at his trial. Complainant denied writing or phoning appellant. Expert evidence that complainant had not written the letter.
Identification - sufficiency of evidence - absence of identification parade - sufficient reason - fresh evidence - lack of cogency - adequacy of legal representation - complaint of bias - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 9y with NPP of 7y.
478

ROTHQUE, Stephen Roy - CCA, 13.10.2000
Hulme & Barr JJ
Citation: R v Rothque [2000] NSWCCA 427
Sentence appeal.
3 x BE&S; 1 x possess housebreaking implements; 2 x B&E with intent to commit felony; + 23 further offences taken into account (including theft, receiving, firearms, malicious damage, drugs).
MT 6y, AT 2y.
Guilty plea.
Sentencing judge, after an expressed intention of setting the AT to exceed the MT by more than one-third, failed to do so.
Drug addict of long standing - long record for property offences, drug offences, offences of dishonesty - already served more than 12y in prison.
Attempts at rehabilitation - education in prison - attending drug counselling - special circumstances - ratio.
Appeal allowed: resentenced to aggregate 8y with NPP of 5y.
479

BASHFORD, Sesoni - CCA, 13.10.2000
Newman, Hulme & Barr JJ.
Citation: R v Bashford [2000] NSWCCA 426
Application for leave to appeal against an order made under Div 4 Pt 3 of the Children (Criminal Proceedings) Act 1987.
Applicant & co-offender pleaded guilty in the LC to aggravated robbery & were both committed to the DC for sentence. At sentence, a single count of larceny was taken into account. An order was made under s.33(1)(g) Children (Criminal Proceedings) Act 1987 committing applicant to the control of the Minister administering the Children (Detention Centres) Act 1987 for a fixed period of 15m, commencing on day of order. Co-offender, an adult, was sentenced to MT 1y 3m, AT 1y 9m penal servitude.
Applicant broke into a car & stole a builder's nail gun. He & co-offender held up a man in the street & demanded his wallet & money. Applicant pointed the nail gun at him & pulled the trigger, there was a clicking sound but the gun did not discharge. Applicant began hitting the man with the nail gun, then took out a screwdriver & threatened him with it. He took the victim's watch & briefcase, although the victim was able to retrieve the briefcase. Applicant, despite being the younger, was the leader of the enterprise.
Applicant spent 4m 1w in custody awaiting sentence - good rehabilitation prospects - parity.
Appeal allowed: order varied by fixing a NPP of 9m.
480

LEE, Norman - CCA, 18.10.2000 - 50 NSWLR 289
Mason P, Heydon JA, Wood CJ at CL
Citation: R v Lee [2000] NSWCCA 444
s.5F appeal against an order made in the DC having the effect of relieving the recipient of a subpoena issued by the defendant in criminal proceedings from complying with it. The subpoena was addressed to 'The Proper Officer/Secretary'of 'Mission Australia'ordering production of certain documents & was issued in proceedings in which accused was charged with 5 counts of indecent assault upon a person under 16 by a person in authority. Offences alleged to have occurred at various times in 1989-1990 when complainant was a primary school pupil. Charges followed a statement made by complainant to police in July 1999. Mission Australia produced 73 pages of documents & during proceedings the primary judge was handed a letter by the Crown in which the complainant claimed the documents in question contained 'protected confidences'She stated she had not consented to their production. Primary judge refused an application for access & decided the complainant should be heard in respect of her claim.
On appeal, defendant claimed that: primary judge erred in concluding that the documents caught by the subpoena recorded protected confidences; the judge erred in concluding that the documents did not have substantial probative value.
Appeal allowed: order set aside; Mission Australia be ordered to produce the documents; leave be granted to parties to inspect the documents when produced; direct defendant to communicate with Mission Australia so that they can be informed of their obligations to comply with them in sufficient time for proper preparation of the trial.
481

LEVER, Samuel Noel - NSW SC, Greg James J, 6.10.2000
Citation: R v Lever [2000] NSWSC 953
Remarks on sentence
.
Murder.
Accused beat his wife to death using a baton & a strap, inflicting more than 200 blows. After the attack, he summoned an ambulance & when police arrested him, he sought to explain, somewhat irrationally & incoherently, what he had done. A close associate of the accused observed that the accused's conduct had for some months progressively changed from normal to increasingly paranoid. Focus of paranoia was his wife & her involvement with some harassment of his home & his family. Evidence that accused had subjected his wife to serious violence on a number of occasions & on at least one occasion this resulted in her hospitalisation. There was also evidence that he believed, without any rational foundation (sometimes his beliefs had bizarre overtones) that she had been sexually unfaithful or was being sexually unfaithful to him.
Psychiatrist for defence supported a defence of diminished responsibility, however, the psychiatrist for the Crown said he could not support diminished responsibility. Defence of diminished responsibility was rejected by the jury. The Crown psychiatrist reversed his opinion after the verdict. Sentencing was deferred for almost a year.
At sentence, Greg James J drew attention to provisions of s.474D & s.474E Crimes Act 1900.
Sentence: 13y with NPP of 9y. Pre-sentence custody taken into account. Recommendation that accused receive psychiatric or psychological assistance & treatment whilst in custody.
482

NGO, Phuong Canh - NSW SC, Dunford J, 4.10.2000
DAO, Tu Quang
DINH, David Duy Thai
Citation: R v Ngo; Dao; Dinh [2000] NSWSC 964
Crown application for joint trial.
'Newman'killing.
There was a prior order that Ngo & Dao be tried together, but that there be a separate trial for Dinh. The trial of Ngo and Dao ran from Feb to May 2000, however, the jury was discharged after failing to reach a verdict. Their new trial is set down to commence on 29.1.2001. The separate trial of Dinh has also been set down for that same day. An earlier trial took place in July 1999 involving another accused, Tuan Van Tran. That trial was aborted & Tran subsequently indicated he wished to plead guilty. He then provided additional information & agreed to give evidence for the Crown. It was as a result of that additional information that Dinh was charged.
Joint enterprise.
Leave granted to present a joint indictment against Ngo, Dao and Dinh.
483

VELEVSKI, Ljobe - CCA, 12.10.2000 - 117 A Crim R 30
Spigelman CJ, Hulme & Barr JJ
Citation: R v Velevski [2000] NSWCCA 445
Application for bail pending appeal to HC.
(See R v Velevski [1999] NSWCCA 96)
Amount of time already spent in custody awaiting conviction appeal to CCA & appeal to HC. Test to be applied by CCA.
Application refused.
484

MITCHELL, Steven Joseph - CCA, 5.6.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v Mitchell [2000] NSWCCA 211
Conviction appeal.
Detain victim with intent to hold for advantage; sexual intercourse without consent; assault.
Complainant was working as a prostitute at the time of the above charges.
At trial, there was no issue that the victim had in fact been sexually attacked & assaulted in a non-sexual manner. Principal issue at trial was whether the appellant was the assailant. Victim, when giving evidence, made a statement which could have been interpreted by the jury as a 'dock identification'.
Identification - failure to discharge jury - judicial discretion - procedural unfairness.
Appeal allowed: new trial ordered.
485

ELPHICK, Eric John - NSW SC, Greg James J, 20.10.2000
Citation: R v Elphick [2000] NSWSC 977
Remarks on sentence
.
Murder.
Accused & deceased involved in a domestic relationship for over 2 years. It was a relationship of co-dependency. Evidence that accused clearly loved deceased. Deceased was a drug addict. Accused tried to get her off drugs but she refused. She stole money & goods from him & either sold or pawned them. She resorted to prostitution to obtain money. There was evidence that there was some physical violence in the relationship. Accused provided her with a ticket & money to visit his family at Christmas but she did not go. On his return to Sydney, accused sought her out in Kings Cross & became agitated on hearing that she was still using drugs & working as a prostitute. He returned to his home, drank a small quantity of alcohol, took a boning knife & went looking for her. He killed her by stabbing her to death. This was in the presence of other people whilst the deceased was apologising to him & pleading with him.
Reasoning disordered & confused at the time - frustration - anger - 'life of hell or misery'.
Early guilty plea - lack of contrition - egocentric.
Sentenced to 15y with NPP of 12y.
486

COOMBES, Christopher - CCA, 31.7.2000
Newman & Sperling JJ
Citation: R v Coombes [2000] NSWCCA 349
Sentence appeal.
Armed robbery.
MT 3*y, AT 2*y.
The offence arose from an attack upon a man sitting in a park. A knife was used to frighten the victim (see R v Archer [2000] NSWCCA 176).
Applicant entered a guilty plea at a very early opportunity. Co-offender also pleaded guilty but not at an early stage. Co-offender was sentenced to MT 1y, AT 2y. The Crown appealed against this sentence, however, the appeal was dismissed.
Whether sentence excessive: R v Henry - justifiable sense of grievance in terms of parity - insufficient discount for assistance to authorities (only 25%).
Appeal allowed: resentenced to 3*y with NPP of 2y.
487

BUSUTTIL, Jason Edward - CCA, 2.8.2000
Newman & Sperling JJ
Citation: R v Busuttil [2000] NSWCCA 383
Sentence appeal.
Supply prohibited drug (31.3 grams methylamphetamine, 337.6 grams cannabis leaf); + 8 matters on a Form 1 (drugs, goods in custody, possess prohibited article, drive conveyance without consent).
MT 17m, AT 18m (special circumstances found).
No further details given in judgment.
Applicant appeared for himself on appeal.
Commission of offence induced by desire to support own drug habit - good progress with rehabilitation. R v Henry referred to.
Appeal dismissed.
488

DAVIDSON, Peter John - CCA, 21.6.2000
Grove & Newman JJ
Citation: R v Davidson [2000] NSWCCA 393
Sentence appeal.
Supply prohibited drug (6.6 grams methylamphetamine); + Form 1 matters (possess cannabis, not keeping a firearm safe, possess firearm whilst unlicensed).
MT 9m, AT 18m.
Police operation using undercover operatives to apprehend drug dealers. One such undercover officer came in contact with the applicant. The actual supply occurred & the undercover operative paid the applicant some $4000.
In the pre-sentence report, there was reference to the applicant & his present partner being closely associated with members of the Comanchero Bike Club. Applicant tendered an affidavit in the CCA in which he hotly denied this.
Guilty plea - priors but unrelated - no previous custody - problem with his back.
Whether PD or CSO available - procedural unfairness.
Appeal allowed: GBB substituted.
489

TIPLER, Daniel Henry - CCA, 2.8.2000
Newman & Sperling JJ
Citation: R v Tipler [2000] NSWCCA 382
Sentence appeal.
Supply prohibited drug (heroin); + 7 drug matters on a Form 1.
MT 2y 9m, AT 2y 3m (special circumstances found).
Applicant apprehended as a consequence of an undercover police operation resulting in the applicant being tape recorded as to his participation in drug trafficking in the Tamworth area. Guilty plea. Strong Crown case.
On appeal, applicant claimed to have a justifiable sense of grievance in that the sentencing judge had sentenced a co-offender to MT 2y, AT 18m. Sentencing judge found applicant to be higher in hierarchy of trafficking organisation than co-offender.
Parity.
Appeal dismissed.
490

HYATT, Isaac James - NSW SC, Barr J, 4.8.2000
Citation: R v Hyatt [2000] NSWSC 774
Remarks on sentence
.
Manslaughter by unlawful and dangerous act.
Accused had been an employee at a building materials business for about 3 weeks, deceased was his supervisor. Deceased criticised accused for not remembering codes that were used to identify items being sold. He evidently made a point of criticising him in front of other employees, causing great embarrassment to the accused. Accused was afraid he would complain to the owner. Some time later, the supervisor was going out to call on some customers & made his way from the shop into the store. According to the accused, who was following him with the intention of talking to him about the earlier incident, the deceased picked up a billet of wood, turned & hit the accused with it between the left shoulder & head. Accused caught hold of the wood & managed to get it away from the deceased. Deceased continued to advance towards accused. Accused said he was afraid the deceased was going to hurt him & he quickly swung the piece of wood, not particularly aiming for the deceased's head, but the wood connected with his head & knocked him to the floor.
Onus on Crown to prove accused did not act in self-defence - whether accused struck deceased with specific intent - whether his act was objectively dangerous.
No intention to do really serious bodily injury - wood swung out of frustration - prior good character - gentle disposition - offence entirely out of character - deep remorse - chances of re-offending negligible.
Sentenced to 5y with NPP of 2y.
491

SANDNESS, Tony - NSW SC, Dunford J, 18.8.2000
Citation: R v Sandness [2000] NSWSC 821
Remarks on sentence
.
Manslaughter.
Accused was originally charged with murder, but pleaded guilty to manslaughter.
Accused & accomplice, the grand-daughter of the deceased, broke into the home of the deceased who was a frail sick 80 year old man in bed. Their intention was to get money from him for drugs. The accused, who had armed himself with a half-brick before going into the house, severely bashed the old man with it while the grand-daughter looked for money.
Drug addiction - remorse - priors including offences of violence - facing 1st lengthy period in gaol.
Sentenced to 11y with NPP of 8*y.
492

LULHAM, Dean Richard - NSW SC, Greg James J, 17.7.2000
Citation: R v Lulham [2000] NSWSC 687
Judgment on application to change plea of guilty.
Murder.
At arraignment, accused pleaded not guilty. Accused had been charged with another. A further person was also charged. Subsequent to the committal, the co-offender furnished a 2nd record of interview in which he inculpated the accused. At trial, accused pleaded guilty.
Application to withdraw plea of guilty dismissed.
493

A (a Child) - NSW SC, Bryson J, 6.7.2000 - 115 A Crim R 1
Citation: A (a Child) [2000] NSWSC 627
Appeal under Pt 5 Justices Act 1902.
Plaintiff arrested by police at Wellington & brought before Dubbo Children's Court charged with armed robbery. Alleged he robbed an officer of the Commonwealth Bank of some $1,698 while armed with a bladed instrument. Plaintiff was 17 at time of offence, at trial he was 18. During an interview, plaintiff was asked 'Do you wish to participate in a line-up'& answered 'No'Magistrate admitted picture identification evidence after having regard to this Q & A.
Identification - whether 'admission'includes refusal to participate in line-up - meaning of 'admission'in s.424A Crimes Act & significance of definitions of 'admission'and 'representation'in Evidence Act 1995.
Appeal dismissed.
494

BATEMAN, Leonard Lawrence - NSW SC, Barr J, 30.8.2000
Citation: R v Bateman [2000] NSWSC 867
Remarks on sentence
.
Manslaughter.
Accused was charged with murdering his wife, pleaded not guilty of murder but guilty of manslaughter. Accused & deceased were happily married for 51 years, however, both experienced illness as they grew older. When deceased was 76, she underwent cardiac surgery. Accused, aged 79 at the time, was suffering from a number of ailments, including an inflammatory bowel disease & arthritis. All household work fell upon him & he began to worry he would not be able to care for the deceased properly or handle all the responsibilities. Their house was badly damaged in a hailstorm in 1999 & a tiler was engaged to fix the roof. Accused lost weight & he sought medical help for his abdominal complaint. A community health worker visited him & found he was depressed. His GP prescribed anti-depressant medication. Accused became convinced the tiler was not doing his job properly, in fact he became obsessed about the hail damage, convinced that he himself had ruined the house by choosing an incompetent tiler. Members of the family knew he was not well but did not realise how seriously ill he was. During the early hours of the day of the killing, the accused took a hammer & beat the deceased about the head as she slept. He telephoned police, then dressed & waited for them to arrive. After arrest, he was admitted to D Ward at Long Bay Prison Hospital, under psychiatric care. Bail was granted a month later conditional upon him entering a hospital for treatment. He did not respond to anti-depressant & anti-psychotic medication & continued to exhibit depressive & psychotic symptoms, including hallucinations & a belief that insects were attracted to him because his body was giving off the smell of rotting flesh. A course of electro-convulsive therapy was recommended. It took 18 treatments, compared to a normal course of 6 to 8, before a satisfactory result was achieved.
Abnormality of mind - impairment of capacity to make proper judgment - continuing psychiatric care - deep remorse - no need for deterrence.
Sentenced to 5y GBB.
495

ROBINSON, Christopher Andrew - NSW SC, Adams J, 19.10.2000
Citation: R v Robinson [2000] NSWSC 972
Remarks on sentence
.
Murder.
Accused pleaded guilty. Deceased's body was found by police in his unit. He had been killed by massive blunt injuries to the head with large fractures to the skull & extensive fracturing of the facial bones. His body had been extensively mutilated with a knife, the chest cavity having been cut open & the body partially disembowelled. There were multiple stab wounds & cuts to the trunk, including approx 10 stab wounds in the left lung & well over this number in the small bowel mesentery & the attached small bowel, which had been partially torn from its mesentery in a number of locations. The left testis had been amputated & was found in the kitchen sink. Deceased's hands were tightly tied with electric power cord which had also been wrapped around his neck. Pathologist of opinion mutilation was done after death.
Evidence of extreme cruelty to animals - liking for 'extreme morbid stimulation'- 'bizarre fantasies & unusual tastes, including pleasure in killing'- 'extremely dangerous and disturbed person'.
Significance of plea of guilty - significance of youth - gravity of the crime - protection of the public - whether NPP can be set where life sentence imposed.
Sentenced to 45y with NPP of 35y.
496

MIKA, Penetito - NSW SC, Michael Grove J, 11.8.2000 - 116 A Crim R 31
SAGATO
, Siniue
Citation: R v Mika & Sagato [2000] NSWSC 852
Remarks on sentence
.
Manslaughter.
Deceased was aged 3y 7m at time of death. A bizarre set of circumstances led to the child's death. All persons involved were Samoan. The accused, Mika, is a cousin of the mother of the deceased and the accused, Sagato, is Mika's wife. Evidence showed that it was the mother who caused her son to drown by an unlawful & dangerous act when she forced water down his throat. The mother was indicted for manslaughter but was found not guilty on the ground of mental illness. There was evidence that she had been behaving in a strange way & that she was convinced that someone or something was exercising power over her. The mother had become obsessed with the belief that her children were possessed by a demon & pouring water down their throats formed part of an exorcism that she performed. Earlier in the evening, prior to the act causing the death of her son, she had performed an exorcism on two of her daughters. The children then all went into a room to sleep, whereupon the mother told them they had to move to another room. The deceased then began to yell abuse at his mother in the Samoan language & this persuaded the mother that it was he who was possessed by a devil. Mika held the child's mouth open & Sagato & the deceased's older sister held him down while the mother stood on his chest & poured water down his throat.
Primitive religious beliefs - exorcism - supporting roles of offenders - no priors - children of their own.
Sentenced to: Mika - 2y suspended for 2y conditional upon entering a 2y GBB.; Sagato - 2y suspended for 2y conditional upon entering a 2y GBB.
497

SHORT, Jay William - CCA, 3.11.2000
Beazley JA, Grove & Kirby JJ
Citation: R v Short [2000] NSWCCA 462 revised - 7/11/2000
Conviction appeal and Crown appeal.
Murder - MT 16y, AT 4y; robbery with corporal violence - 5y concurrent; AOABH - 2y concurrent
Offences arose out of a series of events within a short interval of time. There were no witnesses to any of the offences, however, Short confessed to the murder upon his arrest the day after the murder but retracted his confession one year later when he claimed he was present when 2 friends abducted the deceased but not when she was killed. He said he buried her body after finding her dead & denied any involvement in the other 2 offences.
Directions - whether verdicts unreasonable.
Conviction appeal dismissed.
The Crown contended insufficient weight was given to Short's mental condition & there was error in imposing concurrent sentences because the offences did not form part of a single course of criminal conduct - that the trial judge did not have proper regard to the fact that the attack on the first 2 women provided an important contextual background to the murder of the 3rd woman.
Crown appeal allowed: sentence imposed on count of murder quashed, resentenced to 24y with NPP of 18y.
498

BAMBLETT (Snr), Russell - CCA, 7.11.2000
Sheller JA, James & Dowd JJ
Citation: R v Bamblett (Snr) [2000] NSWCCA 464
Conviction appeal.
3 x sexual intercourse with child under 10.
Aggregate MT 3y, AT 2y (special circumstances found).
Appellant was a friend of the family & was asked to babysit the complainant & her siblings. No medical evidence was tendered at trial as the complainant had previously been abused by another person. Complainant gave evidence which was inconsistent with evidence previously given. In his summing up, trial judge suggested to jury that the complainant's allegations went beyond the capacities of a child her age as to detail & nature of sexual activities described.
Whether miscarriage of justice - whether verdict unreasonable - whether misdirection - Criminal Appeal Rules, r 4.
Appeal allowed: conviction quashed, verdict of acquittal entered.
499

TUNCBILEK, Tarkan - CCA, 24.10.2000
Sheller JA, Dowd J, Smart AJ
Citation: R v Tuncbilek [2000] NSWCCA 465
Crown appeal.
Armed robbery; + 2 unrelated charged of robbery whilst armed with dangerous weapon & one charge of take & drive conveyance without consent taken into account.
6y with NPP of 3y.
Respondent & 2 co-offenders travelled in a stolen vehicle to a newsagency & stopped a short distance from it. One co-offender remained in the driver's seat with the engine running, the other co-offender, followed by the respondent, entered the newsagency. Respondent produced a silver replica pistol, asked where the safe was, told owner to open the till & pointed the pistol against her chest. Approx $120 was removed from the till. The owner's son came into the shop & was made to lie on the floor. Respondent tapped him on the shoulder with the pistol & demanded his bum bag. Respondent & co-offender then returned to the stolen vehicle. Police observed the vehicle a short time later & pursued it. The stolen car crashed & the occupants ran away. Respondent & one co-offender were apprehended some distance from the scene of the accident. The driver was arrested nearby.
Offences more serious than in Henry - committed whilst on parole - no plea of guilty - poor record - many similar serious offences - prior similar sentence for similar offences.
Illness & intellectual disabilities - exceptional circumstances.
Appeal dismissed.
500

SUBRAMANIAM, Kala Devi - CCA, 23.10.2000
Wood CJ at CL, Studdert & Whealy JJ
Citation: R v Subramaniam [2000] NSWCCA 441
s.5F appeal against refusal to stay proceedings.
Applicant was charged with 2 offences under s.319 Crimes Act. After a 10 day trial, the jury was unable to agree. The applicant made an application for a stay of proceedings.
Allegations against accused were of perverting the course of justice by falsely claiming to be the driver of a vehicle photographed proceeding through a red light.
Submission that refusal to stay proceedings was unjust & so unreasonable as to manifest error; that medical evidence showed applicant's health seriously affected by anxiety associated with pending charges.
Leave to appeal refused.
501

KOUROUMALOS, Spiros - CCA, 3.11.2000
Wood CJ at CL, Studdert & Whealy JJ
Citation: R v Kouroumalos [2000] NSWCCA 453
Conviction and sentence appeal.
Knowingly take part in manufacture commercial quantity prohibited drug (0.25 kg methylamphetamine) - MT 2y, AT 2y; deemed supply methylamphetamine (1 oz) - concurrent MT 2*y, AT 1y.
The charges arose out of Operation Gymea, an extensive police operation directed at Les Kalache & his associates. A statement of facts & a number of recorded conversations obtained through telephone intercepts were tendered at trial.
Appellant sought to set aside his pleas of guilty & in the alternative he sought leave to appeal against sentence on the ground that he was denied the opportunity of placing before the court his interpretation of what had occurred.
Incorrect or improper advice from legal representative - miscarriage of justice.
Appeal dismissed.
502

HOSKINS, Richard - CCA, 18.10.2000
Simpson & Hidden JJ
Citation: R v Hoskins [2000] NSWCCA 415
Sentence appeal.
BE&S a dwelling & committing therein a felony (AOABH); a further offence of being carried in a conveyance without consent was taken into account on a Form 2.
MT 3y, AT 3y.
Applicant & complainant had been in a relationship & had a 3y old son. The relationship came to an end & the complainant retained custody of the child. Early in the evening of the offence, applicant went to complainant's unit & knocked on the front door. She did not answer. Applicant climbed onto a balcony & banged on a glass sliding door. Complainant phoned a neighbour then ran to a bedroom & locked herself in. Applicant then went to the front door & kicked it in, forced the bedroom door open & questioned complainant about the whereabouts of the child. She told him he was at her father's house. Applicant then punched her on her mouth & pushed her head against the wall. Her bottom lip was cut & bleeding & she later complained of a headache. The neighbour arrived & told the applicant to leave. Applicant pushed him in the chest, made threats, kicked a table & broke the glass in a number of picture frames, then smashed a glass panel in a lower front door as he left the building. Later he gave himself up to police.
Sentencing judge made a number of errors in reasons for sentence - sentence manifestly excessive.
Appeal allowed: resentenced to 5y with NPP of 2y 3m.
503

ADLER, George - CCA, 23.8.2000 - 52 NSWLR 451; 116 A Crim R 38
s.5F appeal against refusal of permanent stay.
Applicant charged with 12 x dishonestly obtain valuable thing (cheque) by representations that he knew to be false.
The appeal follows from the trial judge's decision to admit evidence of the victim that the man who telephoned her & deceived her by a series of false representations was the applicant. A case of aural identification.
Admissibility of voice identification evidence.
Voice identification evidence should be treated as all other evidence & with reference to ss.116 & 165 - no threshold test of familiarity for voice identification evidence.
Leave to appeal refused.
504

TAYLOR, Adam James - CCA, 23.10.2000
Wood CJ at CL, Studdert & Whealy JJ
Citation: R v Taylor [2000] NSWCCA 442
Crown appeal.
Robbery.
2y suspended for 2y.
The above offence occurred while respondent was on bail & under the influence of heroin. He attacked a woman on a railway station & snatched her bag.
During sentencing proceedings, sentencing judge was about to impose a custodial sentence upon the respondent when there was an emotional outburst from the respondent who began crying & saying he did not want to go to gaol. At this point the sentencing judge changed his mind & imposed a suspended sentence on condition that the respondent enter into a bond. At the conclusion of his remarks on sentence, the sentencing judge expressed some concern as to the sentence he had imposed & was clearly troubled by his change of mind.
Aged 18 at time of offence - guilty plea - previous conviction for larceny.
Whether manifestly inadequate.
Appeal dismissed.
505

NGUYEN, Thi Nga - CCA, 10.12.99
Beazley JA, Newman & Greg James JJ
Citation: R v Nguyen [1999] NSWCCA 441
Sentence appeal.
Knowingly concerned in importation of commercial quantity heroin (6.534 kgs gross, 4.775 kgs pure).
8y with NPP of 3y 9m (2m 10d pre-trial custody taken into account).
Sentencing judge treated by sentencing judge as a courier.
Applicant appeared in CCA in person.
Applicant had supplied an address, closely connected to an address at which she had previously lived, to where the consignment of drugs would be delivered & from where she collected that consignment.
Applicant claimed on appeal that she had difficulty with the interpreter during the trial & that the interpreter was not translating all that happened during the trial & would tell the applicant when to answer 'yes'or 'no'Applicant had written a letter to the court at time of sentencing & that letter was not translated or presented.
Inadequate interpreting facilities - procedural fairness - failure to take account of relevant evidence - difficult circumstances - 6 children to care for.
Appeal dismissed.
506

BELL, Mark Anthony - CCA, 11.10.2000
Hulme & Barr JJ
Citation: R v Bell [2000] NSWCCA 413
Sentence appeal.
1 x take & use conveyance; 2 x BE&S; + further offences taken into account.
Aggregate MT 6y, AT 2y.
No details of offences given.
Aged 42 - guilty plea - heroin addict - 27 years in custody - on parole at time of offences - previously imprisoned - principally drug & drug-related property offences - institutionalised - protection of community - general deterrence - rehabilitation.
Sentencing ratio.
Appeal dismissed.
507

LEONARD, Kenneth Ronald - CCA, 23.10.2000
Adams & Bell JJ
Citation: R v Leonard [2000] NSWCCA 318
Sentence appeal.
1 x robbery.
MT 3y, AT 12m.
An elderly woman was walking towards her home when she was approached by the applicant who struggled with her, took her purse, a newspaper & groceries. The victim was a frail 86 year old, who was too infirm to attend court.
Aged 36 at date of sentence - Aboriginal - poor literacy skills - left school at age 16 - only been in employment for total of 2y - significant problems with alcohol - associated psychiatric difficulties - lengthy criminal history - long-term depressive illness - psychiatric evidence of suicidal tendencies.
Tendered on appeal was a psychiatric report stating the applicant had been sexually assaulted in prison when he was aged 18 & that this had led to chronic post traumatic stress disorder which played a substantial part in fuelling the applicant's depression & alcohol consumption. The depression was characterised as a major co-morbid depression.
Insufficient weight given to principles applicable to sentencing of Aboriginal offenders - whether sentence manifestly excessive - failure to find special circumstances.
Appeal allowed: 4y with NPP of 2y.
508

VITASOVIC, Anthony - CCA, 23.10.2000
Adams & Bell JJ
Citation: R v Vitasovic [2000] NSWCCA 323
Sentence appeal.
Dangerous drive occasioning GBH. Speed an aggravating factor.
MT 22*m, AT 7*m.
Applicant was driving a car which had been loaned to him by a firm of smash repairers as a courtesy car. He stopped at a service station where he made a telephone call & had some sort of dispute with the person to whom he was speaking. After the call, he got back into the car & quickly pulled out of the service station. He travelled along the road for approximately 800 metres when he came over a crest in the road & collided with a vehicle at an intersection. The driver of the other vehicle was a woman with her 3 children. The one child sustained significant injuries, suffering severe diffuse brain injury, facial lacerations, a fractured femur, fractured pelvis as well as abdominal injuries. After surgery, there followed a period of prolonged intensive care & rehabilitation. Two years after the accident, the victim's prognosis was that 'she will remain with a severe degree of cognitive including behavioural impairment'.
Aged 27 at time of sentence - no priors - impressive employment history.
Submitted on appeal that sentencing judge erred in characterising offence as a 'sustained course of dangerous driving'- error in concluding it was a case which called for an element of specific deterrence.
Resentenced to 2y with NPP of 12m.
509

PEDRANA, Raymond Grant ( DPP V) - NSW SC, Greg James J, 20.10.2000 - 117 A Crim R 459
Citation: The Application of Raymond Grant Pedrana [2000] NSWSC 970
Application for enquiry after conviction.
Applicant had been convicted of armed robbery & was sentenced to MT 5y, AT 1y 8m. Following an unsuccessful appeal to the CCA, applicant sought a reference of his conviction to the CCA or an enquiry into it under the provisions of Part 13A of the Crimes Act 1900.
Possibility of evidence affecting credit of crucial witnesses - principles on consideration of directing enquiry - corrupt activities of police - oral confessions - where supported only on the evidence of officers whose credit might be impugned.
s.474D Crimes Act 1900.
Application allowed: Greg James J directed that an enquiry be conducted by a prescribed person into the conviction of the applicant.
510

ARD - CCA, 30.10.2000
Spigelman CJ, Newman & Adams JJ
Citation: R v ARD [2000] NSWCCA 443
Conviction appeal.
18 x sexual intercourse without consent upon persons under age of 16; 1 x attempt pervert course of justice.
MT 7*y, AT 2*y.
Originally, appellant was charged with 20 counts of sexual offences but was found not guilty on counts 11 & 14 (indecent assault; non-consensual sexual intercourse).
The appellant committed the offences upon his brother's two daughters & the niece of the appellant's former wife. Appellant offered money to his former wife in order for her to give false evidence in court.
Whether verdicts 'unsafe or unsatisfactory'- credibility of complainants - conduct of legal practitioner - incompetence of counsel - relevant principles - role of appellate court - requirement of acts constituting offence of a sexual nature on a number of occasions - duplicity.
Appeal dismissed.
511

QUARTA, Justin - CCA, 4.10.2000
Simpson & Hidden JJ
Citation: R v Quarta [2000] NSWCCA 406
Sentence appeal.
1 x accessory after the fact of robbery in company; 1 x aggravated dangerous drive causing GBH. Circumstance of aggravation was that applicant was driving the vehicle to escape pursuit by police. Offences of possessing & supplying drugs; goods in custody; unlicensed driving taken into account.
Aggregate MT 3y, AT 2y.
The accessory charge arose out of a robbery upon a post office in which the 2 co-offenders carried out the robbery whilst the applicant remained in the stolen car (he being the driver). The dangerous drive offence occurred after the robbery when the stolen vehicle was being chased by police (with the applicant still driving). During the chase, the car which the applicant was driving collided head-on with a small sedan driven by an elderly woman, who suffered a punctured lung & injuries to the right shoulder & chest area.
Failure of sentences to conform with guideline sentences in respect of offences against s.52A ( R v Jurisic) & s.97 ( R v Henry) - parity - failure to give adequate weight to certain subjective factors - mental age of applicant - psychological difficulties - pleas of guilty.
Appeal dismissed.
512

TOKI (No.3), Martin Marino - NSW SC, Howie J, 25.10.2000 - 116 A Crim R 536
Citation: R v Toki (No.3) [2000] NSWSC 999
Judgment on admissibility of evidence.
Application that Crown be permitted to call evidence in its case which touches upon the nature of the association between the accused & the deceased over a period of more than 2 years leading up to the incidents giving rise to the charge of murder against the accused. The evidence was objected to in its entirety by counsel for the accused.
Admissibility & relevance - relationship evidence - hearsay evidence.
Evidence admitted.
513

BATEMAN, Russell Douglas - NSW SC, James J, 18.9.2000
Citation: R v Bateman [2000] NSWSC 915
Remarks on sentence
.
Import large commercial quantity prohibited imports (cocaine).
Little dispute about any of the facts of the offence.
In October 1993, accused was sentenced in the DC for being knowingly concerned in the cultivation of cannabis & received a 5*y sentence with a MT of 3*y. Whilst in custody, he met 2 other prisoners. In June 1994, accused escaped from lawful custody when he was permitted to leave the correctional centre to attend a sporting function & remained at liberty until his arrest on 1 February 2000 for the offence of import cocaine. From 1996 onwards, accused was in contact with the other 2 prisoners. In the middle of 1999 the accused entered into a criminal enterprise with the others to import drugs into Australia from either South or Central America. He claimed to have wanted to pull out of the venture but was told by one of the others that he could not pull out, that 'they'have got 'hit men'and that 'they'would get the accused's family. The gross weight of cocaine imported was 5,020,471 kgs, the net weight of pure cocaine was 383,434 kgs. Estimated wholesale value was $62,500,000.
Guilty plea - contrition - deterrence - prospects of rehabilitation - probable effect that sentence will have on accused's partner & child - undertaking to provide future assistance.
Sentenced to 13y with NPP of 8*y.
514

SHIPLEY, Anthony - CCA, 6.10.2000
Simpson & Hidden JJ
Citation: R v Shipley [2000] NSWCCA 411
Sentence appeal.
Car stealing.
MT 16m, AT 8m.
The applicant & another used a screwdriver to gain access to a MV parked in a hotel car park whilst its owner was driving the hotel's courtesy vehicle. They drove it for a short time & then went to a nearby caravan park. The co-offender drove it into the gutter, causing some damage to the vehicle. They then abandoned the vehicle. Two days later, it was discovered by police & found to have been stripped.
Almost 41 at time of offence - guilty plea - lengthy criminal history - 1st offence (BE&S) when he was aged 12 - many BE&S offences - also stealing, receiving, MV offences, assault, malicious injury, carnal knowledge, cruelty to animals, contravention of DVO - entrenched alcohol abuse problem - limited education - literacy problems - emotionally immature - little appreciation of impact of his criminal behaviour.
Structure of sentence - whether manifestly excessive - whether could have been dealt with in LC as summary offence -special circumstances.
Appeal allowed: resentenced to FT of 12m.
515

BERRY, Michael Leslie - CCA, 7.11.2000
Sheller JA, James & Dowd JJ
Citation: R v Berry [2000] NSWCCA 451
Crown appeal.
Maliciously inflict GBH.
2*y with NPP of 6m to be served by way of PD.
Victim was a woman with whom respondent had been in an on & off de facto relationship for some years. It was a volatile & unstable relationship. They had 2 children.
On the night of the offence, both had been to a New Year's party but had gone separately, the victim with a man with whom she had recently formed a relationship. There was evidence of some friction at the party between the victim & respondent. Both left the party separately. A little later, the car in which the victim was travelling came to a stop & the victim got out of the car & walked out onto the roadway. Respondent then started driving his vehicle towards the victim, but on the correct side of the road. As he came closer to the victim, he increased speed & deliberately drove his car onto the incorrect side of the road & hit the victim. She suffered various injuries & underwent surgery.
The Crown accepted a plea of guilty under s.35(b) Crimes Act.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 18m imprisonment with NPP of 9m.
516

PIKE, Reginald John - CCA, 5.9.2000
Studdert, Dowd & Bell JJ
Citation: R v Pike [2000] NSWCCA 347
s.5F appeal against refusal to order permanent stay of proceedings.
2 x attempt carnal knowledge; 1 x assault with intent to carnally know.
All offences were committed against applicant's daughter.
First 2 offences alleged to have occurred between 6.4.1978 & 17.10.79. 3rd offence alleged to have occurred on 18.10.1979 when the complainant's mother appeared & the applicant ran naked from the complainant's room. Complainant gave a full statement to police in September 1997. It seems police were aware of the offences back in 1979 & were called out to the property in November 1979 to remove the applicant who had threatened to kill both the complainant & her mother. Complainant claimed it was only in 1997 that she felt she could cope with being involved in a court case. She had experienced a rather trying time coping with what had happened, as well as the break-up of her parents' marriage. After the offences & the marriage break-up, she had undergone counselling.
Delay - prejudice - contamination of complainant's evidence - abuse of process.
Appeal dismissed.
517

REES, Jason Lee - NSW SC, Bell J, 1.9.2000
Citation: R v Rees [2000] NSWSC 862
Remarks on sentence
.
Manslaughter.
This was a retrial. Accused was indicted upon a charge of murder, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
Deceased was savagely assaulted in his unit & died of head injuries as a consequence of the assault. Crown case was that accused & a co-accused
had been party to a joint criminal enterprise to rob the deceased of a quantity of drugs while they were armed with a wooden table leg.
Common purpose murder - Crown not able to establish which of the men inflicted fatal injuries - intent.
Sentenced to 4y 3m with NPP of 3y 3m.
518

NAISMITH, Kevin Paul - NSW SC, Dunford J, 3.11.2000
Citation: R v Naismith [2000] NSWSC 1024
Remarks on sentence
.
2 x murder.
Accused, both deceased & another man (whose name was suppressed & was simply known as the 'accessory') were involved in the cannabis trade in the Newcastle area. Accused told the accessory he was going to rip off one of the victims to get even with him for having previously been ripped off by the victim 'and a bit extra'Arrangements were made to meet the victim in the accused's garage. The accessory was outside the garage when the 1st deceased was killed, having been beaten with a baseball bat. About 15 minutes later, the 2nd victim arrived & the accused let him into his house. Shortly thereafter the accessory heard 2 gun shots & the accused told him that he had shot the victim. There was evidence from neighbours which tended to support the accessory's version of events. Accused got the accessory to drive the cars of the 2 deceased to a shopping centre where they were left & later the bodies of both deceased were wrapped in tarpaulins & taken in a trailer to sand hills at Stockton Bight where they were buried & over the following 2 nights they were burnt.
Accessory co-operated fully with authorities & following trail received a sentence of 4y 4m, with a NPP of 2y 8m.
Accused sentenced to concurrent 33y on each count with a NPP of 25y.
519

LULHAM, Dean Richard - NSW SC, Greg James J, 18.7.2000
Citation: R v Lulham [2000] NSWSC 703
Remarks on sentence
.
Murder.
Guilty plea following pleas of guilty by co-offenders. Accused challenged respective roles in the killing.
Deceased was shot in the head whilst sleeping on a mattress with his girlfriend where they were camping on a river bank.
Previous incidents between accused & deceased - accused & co-offenders intoxicated at time of offence.
Average intelligence with psychological assessment ranging from above average down to severely impaired - learning & speed of cognitive processing at lower level - memory poor - brain dysfunction with notable deficits leading to thought processes of a disorganised kind - confused & incompetent in discriminating correct from incorrect information.
Sentenced to 18y with NPP of 13*y.
520

KHAN, Rahiman - CCA, 23.10.2000
Grove & Adams JJ, Smart AJ
Citation: R v Khan [2000] NSWCCA 428
Conviction and sentence appeal.
4 x common assault; 4 x sexual intercourse without consent; 1 x indecent assault; 1 x abduction with an alternative of kidnapping.
Pleaded guilty to one count of common assault & not guilty to all other counts.
MT 8y 3m, AT 2y 9m.
The appellant forced the complainant to have sex with him on a number of occasions. The offences took place within close proximity of appellant's ex-wife. The complainant was subjected to physical violence & was physically restrained.
Directions - consent - conflicting version of events from appellant & complainant - intent - complainant's credibility - whether miscarriage of justice.
Whether sentence manifestly excessive.
Appeal dismissed.
521

OLBRICH, Reinhold Erhard - CCA, 6.10.2000 - 117 A Crim R 326
Mason P, Heydon JA, Smart AJ
Citation: R v Olbrich [2000] NSWCCA 389
Sentence appeal.
Import trafficable quantity prohibited import (heroin).
8*y with NPP of 6y.
A previous sentence appeal to the CCA was allowed & the matter remitted to the DC for re-sentencing. The Crown appealed to the HC against the decision of the CCA, the appeal was upheld & the matter remitted to the CCA to be dealt with according to the reasons of the HC (see Olbrich 199 CLR 270).
Appellant arrived at Sydney Airport where he was found to be in possession of heroin which was secreted in his luggage in some bottles & a plastic design board. The amount of heroin was 1,667.6 grams gross containing 1,184 grams pure heroin. Appellant bore burden of proving that he only couriered the drug.
Guilty plea - assistance to authorities- ratio.
Unnecessary to distinguish between those high or low within organisation - facts insufficient to determine whether appellant acting on his own or as part of an organisation.
Sentence appeal allowed in part: sentence at first instance confirmed, NPP reduced to 5y.
522

YE, Zhong He - CCA, 15.9.2000 - 116 A Crim R 347
Newman, O'Keefe, Whealy JJ
Citation: R v Ye [2000] NSWCCA 401
Conviction appeal.
Possess commercial quantity prohibited imports (heroin - 21 kgs with a purity of 75%).
12y with NPP of 8y.
Trial judge issued a Certificate under s.5(1)(b) Criminal Appeal Act to the effect that this was a fit case for appeal. At the conclusion of the Crown case, counsel for the defence made an application for a verdict by direction. Trial judge declined to do this, finding that there was sufficient evidence to justify the case going to the jury.
Police had been keeping 2 Asian men under surveillance since they arrived in Australia. The appellant was charged with the above offence when he was arrested by police during this operation. At the time he was the driver of a car in which the 2 Asian men were travelling.
Circumstantial case. No proven communication between appellant & 2 men who planted suitcase of drugs. Evidence insufficient to satisfy jury that appellant had knowledge that there was a commercial quantity of heroin in his possession.
Conviction unreasonable having regard to the evidence in the case - learned trial judge erred in failing to direct a verdict of acquittal at conclusion of Crown case - no evidence to establish accused's knowledge that the drugs in his possession constituted a commercial quantity.
Appeal allowed: verdict of acquittal entered.
523

BOURKE, Peter Kevin - CCA, 6.10.2000
Simpson & Hidden JJ
Citation: R v Bourke [2000] NSWCCA 414
Sentence appeal.
1 x B&E & commit felony in circumstances of special aggravation (malicious wounding); 1 x malicious wounding;
1 x B&E & commit felony in circumstances of aggravation (AOABH); 1 x false imprisonment.
Aggregate MT 9y, AT 3y.
Applicant burst into his brother's house, kicked his brother's wife & threatened her with a knife. He attacked his brother with a knife & held him hostage. He then broke & entered another house & seriously injured the occupants (a woman & her father). The applicant had previously been in a relationship with the woman.
Guilty plea - heavily intoxicated at the time - prospects for rehabilitation.
Sentence excessive.
Appeal allowed: resentenced to aggregate 10y with NPP of 6y.
524

McLENNAN, Linda Michelle - CCA, 4.10.2000
Simpson & Hidden JJ
Citation: R v McLennan [2000] NSWCCA 407
Sentence appeal.
1 x BE&S.
MT 1y, AT 18m.
Applicant contacted an acquaintance & ascertained that the acquaintance would be away overseas for a number of weeks. What she did not know was that the acquaintance had moved but had retained her old telephone number & the premises were now occupied by someone else. While the acquaintance was overseas, the applicant contacted a locksmith, told him her purse & keys had been stolen & that she was the resident of the premises. Because of previous visits there, she was able to answer questions about the unit which the locksmith asked her before he gave her access. Once inside the premises, the applicant stole property valued in excess of $21,000. None of the property was recovered.
Aged 38 at time of offence - on parole - no remorse - unemployed. Priors include fraud, dishonesty & property offences - previously imprisoned.
Alternative sentencing options - double punishment - irrelevant considerations - rehabilitation - general deterrence - guideline sentence in Ponfield - impact of sentence on applicant.
Appeal dismissed.
525

ALI, Rafida - CCA, 4.8.2000
Newman & Sperling JJ
Citation: R v Ali [2000] NSWCCA 385
Sentence appeal.
1st indictment: 1 x pass valueless cheque (sentence deferred pursuant to s 558; GBB 2 yrs, recognisance $1000).
2nd indictment: 4 x pass valueless cheque (300 h CSO); + Form 1 matters taken into account (6 x pass valueless cheque).
The 1st indictment contained 7 counts of passing valueless cheques, but appellant was convicted upon only one count. The value of the cheque involved in that count was $3,877.80.
The appellant owned a travel agency. Cheques were drawn from the travel agency's business account to purchase airline tickets from a wholesale ticketer. There were no funds available to meet the cheques. The person responsible for drawing the cheques had decamped.
Guilty plea - aged 35 - ill-health - diabetic - depression - priors include obtain benefit by deception - not previously imprisoned.
Appeal allowed on sentence relating to 2nd indictment: resentenced to 3y GBB to run concurrent with the GBB relating to 1st indictment.
526

VO, Thi Do - CCA, 6.10.2000 - 118 A Crim R 320
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Vo [2000] NSWCCA 440
Sentence appeal.
Knowingly concerned in importation of commercial quantity prohibited drug (heroin).
22y with NPP of 14y.
The applicant's role in the drug importation was exposed as a result of a police undercover operation. The heroin had been intercepted by Customs officers. They examined a container of 800 boxes of cans of pineapple that arrived on a vessel from Hong Kong. There were 7 boxes that weighed considerably less than the others. The contents of these boxes were purported to be cans of pineapple, however, they contained heroin. There were 78 kgs of heroin in all, consisting of approximately 54 kgs pure heroin.
Whether sentence manifestly excessive.
Appeal dismissed.
527

TRAN, Si Ngoc - CCA, 4.10.2000
Simpson & Hidden JJ
Citation: R v Tran [2000] NSWCCA 409 revised - 17/10/2000
Sentence appeal.
Supply trafficable quantity heroin.
MT 5y AT 2y.
Following an ongoing investigation & surveillance, the applicant was apprehended & found to be in possess of $80,000 in cash. A search of his home resulted in a further $109,600 in cash being found. Also found were items associated with the distribution of drugs, as well as 147.78 grams of pure heroin.
Guilty plea - aged 37 at time of offence - refugee status - suffered head injury at work - unemployed for 5 years - addicted to heroin - on parole at time of offence - contrition - prior drug offence - previously imprisoned.
Whether sentence excessive.
Appeal dismissed.
528

DAWSON, John Steven - CCA, 18.2.2000
Ireland AJ, Hulme J, Smart AJ
Citation: R v Dawson [2000] NSWCCA 433
Crown appeal.
1st indictment: enter dwelling with intent; + Form 1 matters (10 x obtain benefit by deception, larceny) - 2y PD,
2nd indictment: 6 x obtain benefit by deception - 12m PD.
Respondent entered the home of male victim, pushed him to the floor, went into his bedroom, took a wallet then attempted to leave. Victim & another man tried to stop respondent from leaving. Respondent struck both men with a metal pipe then ran away. One victim suffered fractures to the skull & lacerations to the hand & head, the other victim received a laceration to the head & a fractured arm.
Respondent made use of a number of Mastercards obtained from the victim, total amount obtained was $13,110.
Guilty plea - aged 26 at time of offence - serious drug problem - fragile emotional condition due to sexual abuse as a teenager - remorseful - change in behaviour between 1st indictment & sentencing - priors include drug, property & dishonesty offences - previously imprisoned.
Appeal dismissed.
529

CAMPBELL, Craig - CCA, 18.2.2000 - 115 A Crim R 300
Sully J, Carruthers AJ, Foster AJA
Citation: R v Campbell [2000] NSWCCA 429
Sentence appeal.
B&E with intent; BE&S; being carried in a stolen conveyance; receiving; possess housebreaking implements.
Aggregate MT 3y, AT 2y.
The offences involved breaking into & stealing from business premises as well as domestic premises. Various items taken, including cash, paintings, cameras.
Aged 23 at time of offence - Aboriginal - alcoholic - drug user - offences committed whilst on parole - 4 counts committed whilst on bail - priors include driving, property, violent offence - previously imprisoned.
Appeal dismissed.
530

VANDERSEE, Lynette May - NSW SC, James J, 18.9.2000
Citation: R v Vandersee [2000] NSWSC 916
Remarks on sentence
.
Manslaughter.
At the conclusion of a trial, the jury found the accused not guilty of murder but guilty of the manslaughter of her husband.
Accused killed her husband by striking him a number of times on the head, while he was sleeping, with the blunt end of an axe or tomahawk.
Provocation - domineering, controlling & cruel behaviour of deceased - accused suffering from depression at time of offence.
Sentenced to 8y with NPP of 5y.
531

CHAI, Chong Mun - CCA, 25.8.2000
Mason P, Sperling & Bergin JJ
Citation: R v Chai [2000] NSWCCA 320
Conviction appeal
1: Murder;
2. Maliciously inflict GBH (in the alternative);
3. Murder;
4. Maliciously inflict GBH (in the alternative).
The statutory alternative charge of manslaughter by an unlawful & dangerous act went to the jury in relation to each charge of murder.
Appellant found not guilty of murder under counts 1 & 3 but guilty of manslaughter on each count, accordingly, no verdict was taken on counts 2 & 4.
Co-accused was found not guilty of both murder & manslaughter but guilty of maliciously inflict GBH on each of the deceased.
Crown case was that both deceased were beaten up by a group of several men at a karaoke bar in Kings Cross which was owned & managed by the appellant & that they died as a result of their beatings.
Specificity - joint enterprise - directions - Rule 4 - miscarriage of justice.
Appeal allowed: new trial ordered.
532

ALEXANDER, John - CCA, 27.10.2000 - 118 A Crim R 350
Whealy J
Citation: R v Alexander [2000] NSWCCA 458
Sentence appeal under s.5AF Criminal Appeal Act 1912 from a sentence imposed by the Drug Court of NSW.
The Drug Court imposed a number of sentences which were suspended upon appellant entering into a drug rehabilitation programme. There were 14 offences, involving drive whilst cancelled; possess car breaking implements; larceny; goods in custody. Appellant entered Miracle Haven Rehabilitation Centre & was there for a little under a month. A warrant was issued for failing to comply with the Drug Court programme. Some months later, he was arrested in relation to a charge of BE&S in Paddington & received a suspended sentence of 15m which was cumulative upon the original suspended sentences, allowing appellant to continue in the Drug Court programme. The next day, he left Miracle Haven. A week later he entered the Westmount Rehabilitation Centre but absconded from that centre within a few days. He was arrested 3 months later & remained in custody for 2 weeks when he again entered Westmount. He left that centre 12 days later. Appellant was arrested 2 months later for breach of the Drug Court programme & sentenced to FT 13d. Following termination of the Drug Court programme, earlier sentences were set aside & appellant was resentenced to FT 8m. For the BE&S offence committed in Paddington, he received a cumulative sentence of MT 7m, AT 5m. It was only the BE&S offence committed in Paddington that the appellant was still serving.
Additional evidence - psychiatric condition - paranoid schizophrenic illness - substance & alcohol abuse - special circumstances - whether sentence excessive.
Appeal allowed: sentence passed in relation to the BE&S committed in Paddington set aside, resentenced to 8m with NPP of 3y.
533

GEE, Stephen Robert - CCA, 1.11.2000
Giles JA, James & Whealy JJ
Citation: R v Gee [2000] NSWCCA 457
Sentence appeal, extension of time.
4 x armed robbery.
Cumulative MT 5y, AT 1y 8m on each count.
Appellant unrepresented on appeal.
(For details, see R v Gee [2000] NSWCCA 198.)
Submitted on appeal: error in balancing sentence in absence of subjective material - error in evaluating medical evidence & the effect long-term imprisonment could have & endure after release - error in balancing demands of the community for punishment & retribution & the same interests of the community for rehabilitation - error in fostering consistency in sentencing as per comparative sentences of that time.
Appeal dismissed.
534

TKWJ - CCA, 13.9.2000
Sheller JA, James & Adams JJ
Citation: R v TKWJ [2000] NSWCCA 246
Conviction appeal.
2 x aggravated indecent assault; 1 x aggravated act of indecency.
The victim of all the offences was a young boy who was just under 12 or just over 12 at the time the offences were alleged to have been committed. The appellant was having a relationship with the complainant's mother at the time.
Complainant & his sister made allegations accusing the appellant of sexual misconduct. Appellant sought a joint trial in order to dispute the allegations & to assert that the complainant & his sister had jointly fabricated them. The Crown refused to present such an indictment. Defence counsel informed the Crown the appellant intended raising good character, whereupon the Crown asserted that if character was raised, the Crown would lead evidence in reply as to allegations made by the complainant's sister. On appeal, counsel for the appellant submitted that the appellant was unfairly denied the benefit of his good character in the jury's consideration of his credibility & guilt.
Whether convictions constitute a miscarriage of justice in that the trial was unfair.
Appeal dismissed.
535

HADDAD, Tony - CCA, 6.9.2000 - 116 A Crim R 312
TREGLIA
, Giovanni
Spigelman CJ, Newman & Greg James JJ
Citation: R v Haddad & Treglia [2000] NSWCCA 351
s.5F appeal by the Crown against interlocutory judgment or order.
Respondents were charged with perjury. Crown intended relying upon evidence obtained by the use of a listening device pursuant to the Listening Devices Act 1984. The listening device was placed in a cell occupied by the respondents to record their conversations, the police hoping to obtain evidence about a murder. Conversations recorded contained no material relevant to the murder investigation. Respondents stood trial for the robbery but were acquitted when they produced evidence in support of alibi. Police subsequently became aware that there was material in the taped conversations relevant to the robbery which indicated that the respondents had committed the offence. Respondents were then charged with perjury in relation to their alibi evidence. At the outset of the trial on the perjury charge, application was made for the judge to reject evidence obtained by the listening device. The trial judge held that there had been a failure to comply with s.19 Listening Devices Act 1984 & rejected the evidence under s.138 Evidence Act 1995.
CCA held there was no breach of any section of the Listening Devices Act & that because the evidence rejected was the only evidence upon which the Crown could rely to prove the offence, the appeal should be allowed.
536

CHALMERS, Maxwell John - CCA, 30.10.2000
Giles JA, Wood CJ at CL, James J
Citation: R v Chalmers [2000] NSWCCA 463
Sentence appeal.
1 x supply prohibited drug (heroin).
MT 3y 8m, AT 1y 3m (pre-sentence custody taken into account).
This matter was stood over on 29 May 2000 (see R v Chalmers [2000] NSWCCA 206).
Crown alleged that on 3 separate occasions the applicant had supplied heroin to the same individual who was an undercover police operative. The applicant had been unaware that the person to whom he was supplying the heroin was a police officer.
Further details contained in R v Chalmers [2000] NSWCCA 206.
Exercise of sentencing discretion not vitiated by sentencing judge being mistaken about any of the facts which were material to the sentencing of the applicant.
Appeal dismissed.
537

BROWN, Charles William - CCA, 13.10.2000
Hulme & Barr JJ
Citation: R v Brown [2000] NSWCCA 423
Sentence appeal.
Armed robbery in company.
MT 8y, AT 2y.
Applicant & co-offender entered a truck repair workshop, both men disguised with balaclavas. The co-offender was armed with a baseball bat & the applicant a shortened rifle & a pocket knife. People in the workshop, including some children, were rounded up & made to go into the lunch room. The owner was ordered to open drawers & get cash. Applicant then became agitated & a safe was opened & $300 removed. The applicant struck the owner with his hand & the co-offender struck the owner with the baseball bat. During the robbery, the gun, which was loaded, was pointed at the owner & others.
Psychologist's report indicated applicant intellectually limited, functioning at around the bottom 1% of the population - exhibits schizoid & anti-social behaviour - lacks ability & social understanding needed to cope with difficult moral dilemma - likely to pay little heed to consequences of his actions.
On parole at time of offence - deterrence - whether sentence excessive.
Appeal allowed: resentenced to 8y with NPP of 5y.
538

STANTON, Peter Graham - CCA, 31.7.2000
Newman & Sperling JJ
Citation: R v Stanton [2000] NSWCCA 417
Sentence appeal.
Cultivate trafficable quantity prohibited plant (cannabis).
3y with NPP of 18m (special circumstances found).
The co-offender received 3y with a NPP of 2y.
No further details given regarding offence.
Applicant's contention on appeal was that the sentencing judge erred in that he found the objective culpability of both parties as being equal & therefore imposed the same head sentence. No criticism was made of the proportion between the head sentence & the NPP. Applicant felt he should have been sentenced to a lesser head sentence because his subjective circumstances were manifestly more favourable than those for his co-offender.
Whether justifiable sense of grievance.
Appeal dismissed.
539

BURKE, Stuart - CCA, 3.11.2000
Sheller JA, James & Dowd JJ
Citation: R v Burke [2000] NSWCCA 450 revised - 6/11/2000
Crown appeal.
1 x robbery.
3*y with NPP of 18m.
Respondent, a black stocking over his head & wearing dark sunglasses & a baseball cap, entered a small branch of the ANZ Bank & demanded that a teller put money into one of the 2 bags he was carrying, which the teller did. Respondent then took money from another teller & put it into the other bag, then left the bank. Total taken was about $3,000. Although he was suspected of having committed the robbery, he was not arrested & charged until a little over 2 years later. Listening devices were installed in the house where he was living. A police officer had a conversation with him in which the officer referred to the robbery & suggested it might have been an armed robbery. Respondent was heard making admissions that he committed the robbery but denied it was an armed robbery.
In 1982, respondent was sentenced to life imprisonment for murder committed during an armed robbery. In 1993, an application for a redetermination of his life sentence was allowed & he was sentenced to MT 12y, AT 4y. It was whilst he was on parole for the redetermined sentence that respondent committed the offence on the ANZ Bank. After committing this offence, but before being charged, he committed a similar offence but was charged, not with robbery, but with demanding money with menaces. He pleaded guilty & received MT 12m, AT 18m. After the MT of that sentence expired, respondent remained in custody, bail refused, awaiting trial for the ANZ robbery. Sentencing judge set the sentence he imposed for this offence to commence from the time the MT for the previous sentence expired.
Ratio - Crown submitted NPP was too short.
Appeal dismissed.
540

CHONKA, Michael - CCA, 7.11.2000
Fitzgerald JA, Smart AJ, Ireland AJ
Citation: R v Chonka [2000] NSWCCA 466
Conviction and sentence appeal.
Offences against the person involving obscene phone calls wherein the appellant did incite young children to an act of indecency.
Aggregate MT 2*y, AT 2*y.
Whether trial judge failed to properly direct jury regarding elements of offences charged - whether convictions unreasonable & unsupported by the evidence.
Appeal allowed: verdicts of acquittal entered on 3 counts, new trial directed on 5 counts.
541

DO, Van Dieu - CCA, 3.11.2000
Beazley JA, Wood CJ at CL, O'Keefe J
Citation: R v Do [2000] NSWCCA 459
Crown appeal.
2 x manslaughter.
Concurrent MT 3y, AT 1y on each charge.
Manslaughter charges arose out of a motor vehicle accident when the respondent's fully-laden truck, with a gross weight of 21 tonnes, ran out of control & collided slightly with one motor vehicle, then collided into another motor vehicle & finally crashed into the front section of a house. The driver of the 2nd motor vehicle was killed as well as a young 13 year old occupant of the house.
Trial judge sentenced respondent on the basis that he had been criminally negligent at some point with an initial abandonment of responsibility. He took into account good character & personal matters which he described as 'substantial'.
Crown submitted that sentences were manifestly inadequate.
Appeal dismissed.
542

DOOREY, Peter James Christian - CCA, 27.10.2000
Wood CJ at CL, Whealy J
Citation: R v Doorey [2000] NSWCCA 456
Sentence appeal.
1 x attempted armed robbery.
MT 2y, AT 2y.
Applicant was at a backyard party at premises which were approximately 50 metres from an Ampol service station. He began drinking on his arrival at the party & continued drinking for the rest of the afternoon into the evening. At about 8.30 pm, he put on a borrowed jumper & a black beanie with some holes in it & walked to the service station. He had a black handled pocket knife which was party concealed up the right hand sleeve of his jumper with the narrow blade protruding. At the service station, he demanded that the attendant open the drawer of the cash register. She refused & reached for the telephone to dial 000. Applicant took hold of the telephone cord & cut it with the pocket knife. The attendant ran from the service station. Applicant tried to open the cash register, but when this failed he left the service station & returned to the party.
Aged 25 - long criminal history - guilty plea entered late because legal advisers had raised possibility of relying upon intoxication as a defence - long-standing problem with alcohol & drugs - undergone some periods of rehabilitation since arrest.
Whether sentence manifestly excessive.
Appeal dismissed.
543

MAHE, Kevin Andrew - CCA, 13.10.2000
Hulme & Barr JJ
Citation: R v Mahe [2000] NSWCCA 425
Sentence appeal.
Robbery with corporal violence & wounding; robbery; assault.
Aggregate MT 5y, AT 2y.
In the 1st offence, appellant robbed a man of his wallet & a quantity of money. He also used corporal violence on him & wounded him.
2nd offence involved appellant robbing a man of $80 in cash.
In 3rd offence, appellant assaulted & beat or otherwise ill-treated his victim.
Aged 23 at time of 1st offence - priors include property, driving, drug offences, as well as consume liquor in public reserve. Previously imprisoned.
Special circumstances - R v Henry considered.
Appeal dismissed.
544

LENNOX, Michael John - CCA, 27.10.2000
Wood CJ at CL, Whealy J
Citation: R v Lennox [2000] NSWCCA 449 revised - 07/11/2000
Sentence appeal.
1 x attempted robbery; + an offence of possessing housebreaking implements taken into account.
MT 4y, AT 1y.
The victim withdrew $650 from an ATM, placed the money in her purse & walked along the street with her armed crossed & the purse tucked under her left arm. She felt someone pull the purse from behind & heard a voice say 'Give me your money'She screamed for help, the applicant placed his arm around the front of the woman & tried to grab her purse. A struggle took place & the victim fell to the ground, still holding onto her purse. A bystander came to her aid & the applicant ran away but was chased & detained by one of the witnesses.
Aged 39 - drug addiction - little prospect of rehabilitation - priors - subjected to supervision by Parole Services on a number of occasions & on each occasion his illicit drug use & patterns of behaviour resulted in revocation of parole.
Error in categorising attack upon victim in a more severe way than warranted by the evidence - error in giving no weight to guilty plea - error in reducing MT to less than statutory relationship - special circumstances - sentence manifestly excessive.
Appeal dismissed.
545

TURNER, Michael A - CCA, 27.10.2000
Wood CJ at CL, Whealy J
Citation: R v Turner [2000] NSWCCA 455
Sentence appeal.
1 x aggravated dangerous drive occasioning GBH.
3y with NPP of 2y 3m.
Applicant & another man went to an Ex-Services Club for a few drinks. Later, they went to a hotel & had a few more drinks. After midnight they returned to the other man's utility & the applicant drove the vehicle. Near an intersection he lost control of the vehicle & it skidded across the roadway, over the kerb, continued over a grassed verge then collided with a timber railing fence, demolishing some 27 metres of it in the process. When police arrived at the scene, it was obvious both the applicant & the other man were heavily intoxicated. There were a number of empty beer bottles on the floor of the vehicle. A blood sample taken from the applicant in hospital returned a reading of 0.194. Applicant suffered a wound to his head, the other man a laceration to his chin, as well as a closed fracture of the left proximal humerus. Some weeks later he underwent surgery. The road was wet at the time of the offence due to misty rain.
Unlicensed driver - prior convictions for high range PCA which led to his disqualification - driving unregistered & uninsured motor vehicles - guilty plea - contrition - in employment - support of family - following accident sought treatment for problem with alcohol & aggression.
Whether sentence excessive.
Appeal dismissed.
546

DREW, Clarence - CCA, 4.8.2000
Newman & Sperling JJ
Citation: R v Drew [2000] NSWCCA 384
Sentence appeal.
Malicious wounding with intent to do GBH.
MT 7y, AT 3*y.
A dispute arose between administrator of Bogan Lands Council & residents of a settlement within the Council's authority. An unfair practice had developed where Bogan Lands Council distributed funds to relatives & friends, to the disadvantage of others. Appellant was one of the disadvantaged. He & 4 others threatened violence to the victim earlier in the day & later met the victim at the football ground, the appellant armed with a machete, the others armed with an iron bar, a piece of timber, a knife & beer bottle. They attacked the victim, striking him several times until he fell to the ground. Victim was then struck with the machete. Appellant & the others began to walk away, then appellant went back & struck the victim a blow across the face with the machete. The victim sustained a fracture of nasal bones, as well as several large lacerations to the head, exposing his skull.
Aboriginal - aged 35 at time of offence - early guilty plea - premeditated attack - background of extreme deprivation - prior convictions for crimes of violence including AOABH, malicious wounding common assault, assault police, assault female.
Fernando and Hickey considered.
Appeal dismissed.
547

LAWS, Richard John Sinclair - NSW SC, Wood CJ at CL, 5.9.2000 - 116 A Crim R 70
Citation: R v Laws (No.2) [2000] NSWSC 885
Remarks on sentence
.
Solicit information from former juror for purpose of obtaining information on deliberations of the jury.
Seriousness of offence considered - importance of need to maintain secrecy in deliberations - claim of ignorance of the law not a defence - character evidence - subjective circumstances considered.
Sentenced to: 15m suspended sentence upon entering into 15m GBB.
548

STRINGER, Rodney John - CCA, 10.8.2000 - 116 A Crim R 198
Grove & Adams JJ, Smart AJ.
Citation: R v Stringer [2000] NSWCCA 293
s.5F appeal by Crown against order granting permanent stay of proceedings.
6 x indecent assault male person; 2 x buggery.
4 of the indecent assault counts & one buggery count were charged to have occurred between 19 December 1979 & 30 June 1980, the other offences between 1 November 1980 & 18 December 1980.
The respondent alleged that the acts took place in 1981 when the complainant was over 18 years of age. Buggery was decriminalised in 1984 between consenting adults.
Relevant documents no longer available for verification of dates - time not essential in this case - direction to the effect that no offence committed if alleged acts occurred in 1981 wrong in law.
Appeal allowed.
549

KENNY, Nils John Edward - CCA, 12.9.2000
Foster AJA, Dunford J, Smart AJ
Citation: R v Kenny [2000] NSWCCA 364
s.5F appeal against refusal to grant permanent stay of proceedings.
Applicant was facing 4 serious sexual offences allegedly committed by him against one complainant when aged 9 & 10; and a further 4 serious sexual offences allegedly committed by him against another complainant when he was a child (1st complainant's brother & 2 years older than him). Some of the offences were alleged to have occurred in the home of the complainants' parents & some in the grandmother's home. The appellant lived with his grandmother & mother, their home in close proximity to that of the complainants. It was the unavailability of the grandmother, who is elderly, to give evidence on behalf of the appellant that gave rise to the application for a stay.
Whether absence of witness fundamental defect going to root of trial - prejudice to accused considered - no detailed statement obtained from witness.
Unavailability of witness not rendering proceedings seriously defective - jury to be directed on consequences of absence of evidence to defence.
Appeal dismissed.
550

MAHE, Kevin Andrew - CCA, 12.7.2000
James & Bell JJ
Citation: R v Mahe [2000] NSWCCA 263
Application for adjournment at the hearing of an application for leave to appeal against sentence.
Applicant unrepresented, legal aid having been refused. Applicant made an application for the adjournment on the ground that he was not ready to proceed. The Crown's submissions on the application were sent by facsimile to the Correctional Centre where the applicant was being held only the night before the hearing.
Application for adjournment granted.
551

LAM, Duncan Sak Cheung - CCA, 6.7.2000
NGAI, Ting Man
SO, Tin Fong (aka Man Kwan LAM)
Sheller JS, Sully & James JJ
Citation: R v Lam, Ngai & So [2000] NSWCCA 252
Application by Crown that trial of respondents be stayed until CCA has heard & determined the Crown's appeal under s.5F Criminal Appeal Act 1912.
Respondents being tried on charges of conspiracy to supply commercial quantity prohibited drug.
No prospects of success for Notice of Appeal as filed - leave refused to amend Notice of Appeal.
Application refused.
552

IRUSTA, Sergio Daniel - CCA, 6.10.2000 - 117 A Crim R 6
Simpson, Dowd & Bell JJ
Citation: R v Irusta [2000] NSWCCA 391
Sentence appeal (State charge) - obtain money by false or misleading statement - FT 9m;
Crown appeal (Cth charge) - attempt obtain commercial quantity cocaine - 6y with NPP of 4y cumulative on FT.
State charge: Appellant registered a business name & opened a business bank account. He purported to make a series of deposits, fraudulently used credit card vouchers & then attempted to withdraw money against those deposits. He was unsuccessful, although he hoped to obtain $30,000 to $35,000.
Cth charge: Co-offender (see R v Aussem [2000] NSWCCA 220) flew into Sydney, packages strapped to his body containing 4 kgs cocaine (2.9291 kgs pure). Co-offender was arrested & assisted police in a controlled delivery. Respondent phoned co-offender & arranged to meet him. The meeting took place in a hotel where their conversation was recorded. They agreed to meet in the hotel the following morning, however, the following day the respondent was in the hotel but made no attempt to contact the co-offender.
Aged 35 at first offence - drug problem - history of depression - on bail for State offence when Cth offence committed - priors include violent & driving offences - no prior imprisonment.
Sentence appeal on State charge dismissed.
Crown appeal on Cth charge allowed: resentenced to 8y with a NPP of 5y, giving a new aggregate of 8y 9m with a NPP of 5y 9m.
553

CARBONE, Joe Michael - CCA, 3.11.2000
Wood CJ at CL, O'Keefe J, Carruthers AJ
Citation: R v Carbone [2000] NSWCCA 387
Conviction appeal.
2 x indecent assault; 1 x aggravated sexual intercourse.
An indictment was presented containing a number of sexual offences. Appellant convicted upon uncorroborated evidence of complainant in relation to some but not all counts in the indictment. No logical explanation for conflicting verdicts nor any identifiable surrounding circumstance. Crown case lacked probative force & was tainted by a number of matters of disquiet relating to prosecution evidence, including lack of direct corroboration by those witnesses who might be expected to have seen the sexual misconduct alleged.
Inconsistent verdicts - credibility of complainant - verdicts unreasonable or incapable of being supported having regard to the evidence - lack of probative force.
Appeal allowed: verdicts of acquittal entered.
554

AN - CCA, 9.11.2000 - 117 A Crim R 176
Priestley JA, Greg James & Kirby JJ
Citation: R v AN [2000] NSWCCA 372
Conviction appeals.
A number of sexual offences involving appellant's stepdaughter & her daughter (his step granddaughter).
There were 2 trials, one for the offences allegedly committed against the stepdaughter, and one for the offences allegedly committed against the step granddaughter. Appellant was convicted at both trials. The stepdaughter was born in 1941 & the offences were alleged to have occurred between 1950 and 1956. They involved indecent assault & carnal knowledge.
The trial involving the step granddaughter was for offences of indecent assault & carnal knowledge allegedly committed between 1970 & 1971 when she was 4 years old.
On appeal: admission of evidence of conduct by accused on occasions other than those charged - alleged misdirection in respect of tendency evidence - relationship evidence - limits on such evidence - requirement for notice of tendency evidence.
Appeals allowed in both trial: convictions quashed in each case & new trial ordered.
555

KHAN, Mark Anthony - CCA, 27.10.2000
Wood CJ at CL, Whealy J
Citation: R v Khan [2000] NSWCCA 454
Sentence appeal.
1 x aggravated dangerous drive occasioning GBH.
4*y with NPP of 3y 4m 15d.
Applicant was the driver of a car, driving at a substantial speed. As he negotiated a sweeping left-hand bend, the car crossed to the wrong side of the road, side-swiped the railing for some 39 metres, then continued for a further 69 metres, teetered on the edge of a steep embankment before leaving the road & going down the hill into a stock reserve & crashing through 2 large trees. It eventually came to rest in an open area. The applicant was able to get out of the car & make his way back to the roadway where he signalled for assistance, however, his passenger was trapped in the car & had to be released by emergency services. She suffered a severe injury to her lower left leg which later required a below knee amputation. She also suffered fractures of the femur, scapula, clavicle & cheekbone as well as cracked ribs & a contused lung. Applicant also suffered serious injuries. A blood sample taken from him in hospital indicated a reading of 0.182. A forensic pathologist estimated the blood level concentration at the time of the accident would have been between .200 & .210.
Guilty plea - positive work record - contrition - drinking problem - injuries sustained - relative youth & good character of limited value - general deterrence.
Whether sentence excessive.
Appeal dismissed.
556

O'HARE, Timothy William - NSW SC, O'Keefe J, 22.5.2000
Citation: O'Hare v DPP [2000] NSWSC 430
Seeking of orders in the nature of mandamus & by way of declaration to set aside refusal by magistrate for a direction under s.48E Justices Act 1902. Plaintiff charged with sexual intercourse without consent. The Crown brief was served on the plaintiff & he applied to the LC for a direction requiring complainant, who had made a written statement, to attend at the proceedings to give oral evidence. The magistrate declined to make such an order.
Evidence - oral evidence by complainant - interests of justice - principles - statutory construction - discretion - special reasons.
Not reasonably open to magistrate to refuse - errors of law of a kind appropriate to attract remedy of an order in the nature of mandamus.
Decision of magistrate quashed, matter referred to magistrate to exercise his function & make a decision under s.48(2)(a) in accordance with law & an appropriate declaration be made to complement that decision.
557

CONNORS, Clifford Ronald - CCA, 20.11.2000
Giles JA, Wood CJ at CL, James J
Citation: R v Connors [2000] NSWCCA 470
Conviction appeal.
Aggravated indecent assault; 4 x homosexual intercourse with male between 10 & 18.
At trial, applicant was found not guilty of a further charge of aggravated indecent assault. Complainant aged 13 or 14 at time of offences. Complainant's age was the circumstance of aggravation.
Applicant was a minister of a church which the complainant, his mother & his brother attended. It was alleged by the Crown that all offences were committed in the applicant's house. The mother told the applicant that she wanted a break from looking after her 2 sons, so periodically the applicant would have the boys stay over at his house in order to give the mother some free time for her to go out with her female partner.
Warnings - corroboration - directions - motive - error in allowing Crown to amend dates for offence in respect of Count 5 - verdicts unreasonable and/or incapable of being support by the evidence.
Appeal dismissed.
558

WONG, Darchi - CCA, 3.11.2000
Beazley JA, Wood CJ at CL, O'Keefe J
Citation: R v Wong [2000] NSWCCA 461
Conviction appeal.
Sexual intercourse without consent.
Appellant was charged with 2 counts of sexual intercourse without consent. During cross examination the complainant changed her evidence & the trial judge took one charge away from the jury. Counsel for the appellant contended that the 2 alleged incidents were intertwined. Complainant had a significant intellectual disability, with communication skills being equivalent to that of a child a little over 4 years of age & socialisation skills of just over 5 & a little under 6 years.
The complainant was a resident in a home operated by the Department of Community Services for intellectually disabled people.
Whether verdict on 2nd count "unsafe or unsatisfactory'where 1st count withdrawn from jury.
Appeal dismissed.
559

MORGAN, Joseph James - NSW DC, Howie QC J, 26.2.1999
Ruling on admissibility of evidence.
Accused was the driver of a getaway car in a jewellery store robbery in the heart of Sydney. During the robbery, shots were fired by police officers at the getaway car. After accused was arrested, he was ordered to give a blood sample & undergo a medical examination. The doctor performing that examination said the accused told her he had been shot in the back. If accepted, this statement would not by itself be sufficient to prove the accused was the driver of the getaway car but would be a fact which strongly supported the Crown case against him.
Accused submitted that in the exercise of his discretion, the trial judge should reject the evidence of the statements made during the course of the medical examination upon the basis that the accused ought to have been cautioned that any statements made by him to the doctor could be used in evidence against him.
Ruling that evidence is admissible - no basis upon which it ought to be rejected.
560

THOMSON, Dennis John - CCA, 22.11.2000
Barr J, Carruthers AJ
Citation: R v Thomson [2000] NSWCCA 476
Sentence appeal.
3 x aggravated indecent assault on person under 16.
Aggregate MT 2*y, AT 1*y.
Applicant was indicted for 7 sexual offences against a boy of 11 or 12, 4 of the counts being for sexual intercourse, the other for aggravated indecent assault. After empanelling of the jury, he offered to plead guilty to the 3 counts of aggravated indecent assault & the Crown accepted this plea in full discharge of the indictment.
The applicant had been living with the complainant's mother for some time before they got married in June 1995. Applicant indecently assaulted complainant on a number of occasions throughout 1995.
Breach of trust - impact of offences had a serious effect upon the complainant who suffered sleeplessness, nightmares, suicidal thoughts, irritability, aggression, doubts about his sexuality & self-blame as a result of the sexual assaults. At the time of sentence, complainant was exhibiting symptoms of post-traumatic stress disorder.
Submitted on appeal that sentences excessive in view of the guilty plea - poor physical & psychological health - offences out of character - applicant had no memory of incidents but pleaded guilty because he wanted to avoid need for complainant to give evidence.
Appeal dismissed.
561

MOORE, Bernard Lewis - NSW SC, Greg James J, 4.5.2000 - 112 A Crim R 331
Citation: The Application of Bernard Lewis Moore [2000] NSWSC 364
Application under s.474D Crimes Act 1900 for an enquiry into conviction on a charge of being knowingly concerned in the importation of heroin. Application made as a consequence of evidence that came to light during the Royal Commission into the NSW Police Service affecting the credibility of one of the witnesses at the applicant's trial, as well as the credibility of another witness. Submitted that what was revealed by the Royal Commission is such as to cast doubt on the conviction.
Doubt or question as to guilt - conviction many years old - asserted fresh evidence - principles for referral - 'sense of unease'or 'disquiet'in allowing conviction to stand - alternatively whether arguable ground of appeal raised.
Application refused.
562

PINCHAM, Paul John - CCA, 20.11.2000
Barr J, Carruthers AJ
Citation: R v Pincham [2000] NSWCCA 478
Sentence appeal.
Manufacture prohibited drug (methylamphetamine); possess firearm without authority (.32 calibre revolver); firing firearm in manner likely to endanger safety of a certain person; + 9 further matters taken into account.
Aggregate MT 4y 3m, AT 1y 9m (discontinuous periods of pre-sentence custody taken into account).
A man & woman went to applicant's property, the man apparently under the influence of alcohol. Applicant became agitated, loaded a .22 calibre rifle & fired it in the direction of the vehicle in which the woman was seated. He then turned the gun on the man & shot him in the right thigh. The man was admitted to Tamworth Base Hospital & had to have massive blood transfusions. He developed a serious syndrome & renal failure following vascular surgery. Further complications included pneumonia & jaundice. His liver function returned to normal after about 3 months. He also suffered short term memory loss, poor concentration & anxiety.
Police returned to the property on more than one occasion & found chemicals & equipment used in the manufacture of amphetamines.
On appeal submitted sentences should have been backdated to date when applicant entered into pre-sentence custody.
Appeal dismissed.
563

BREWER, Frederick Keith - CCA, 20.11.2000
Sully, Whealy & Howie JJ
Citation: R v Brewer [2000] NSWCCA 488
s.5F appeal against refusal to change venue of trial.
Applicant & 3 others were arrested & charged with murder following the killing of a man by stabbing in Kamarah, a small town located near Griffith. One of the 4 pleaded guilty to murder, a separate trial was ordered for the applicant & the other 2 men pleaded not guilty. Following their trial, those 2 men were found guilty as charged. The killing & the subsequent trials attracted a great deal of local media interest & comment in the Griffith area. Applicant applied to trial judge to change the venue of his trial from Griffith to Sydney, which the trial judge refused. His trial is set to commence on 27.11.2000.
Exercise of discretion in trial judge refusing to grant change of venue - onus upon applicant to demonstrate need for change of venue.
Leave to appeal refused.
564

MAJSTROVIC, Peter - CCA, 9.10.2000
Hulme & Barr JJ
Citation: R v Majstrovic [2000] NSWCCA 420
Sentence appeal.
Armed robbery.
MT 4*y, AT 18m.
Applicant threatened a saleswoman at a bottle shop with a pistol & robbed her. The registration number of the car he was driving was taken & he was arrested shortly after the robbery, whereupon he admitted his guilt.
Insufficient weight given to plea of guilty - error in sentencing judge's understanding of appellant's record - inadequate recognition of the fact that the pistol used was a toy - sentence excessive: R v Henry & Ors (1999) 46 NSWLR 346.
Appeal allowed: resentenced to 6y with NPP of 3y.
565

SKORNIA, Philip - CCA, 11.10.2000
Hulme & Barr JJ
Citation: R v Skornia [2000] NSWCCA 422
Sentence appeal.
BE&S.
MT 2y, AT 2y.
Little reference to the actual crime, except that goods to the value of some $27,000 were stolen. $7,000 worth of goods were recovered, including a valuable camera which the applicant returned.
Lengthy record, including offences of similar type - on bail for a number of charges at the time of the above offence - continuing attitude of disobedience of the law - retribution - deterrence - protection of society - condign punishment.
Whether sentence manifestly excessive - not open to sentencing judge to find offence accompanied by significant degree of planning - inappropriate weight given to applicant's criminal history - error in failing to have regard to type of custody in which applicant will be held.
Appeal dismissed.
566

RICH, Samuel Shane aka Shane Warren RICH - CCA, 25.10.2000
RICH, Shane Warren aka Samuel Shane RICH
Conviction appeal & Crown appeal.
Citation: R v Rich; R v Rich [2000] NSWCCA 448
Aggravated sexual intercourse without consent.
MT 2y, AT 2y.
The offence was perpetrated by the appellant upon the son of his cousin (complainant's mother). Complainant was approx 14 at the time & had only one leg. Complainant said he remembered talking with the appellant outside his mother's home late one night & his next recollection was waking up naked in his bedroom with the appellant on top of him & he could feel the appellant's penis in his anus. He experienced pain in his anus, the back of his head & his shoulders. Complainant collected his prosthesis & pants, had a shower, went to his mother's room but she was asleep. He then went to the house where his sister was spending the night with a girlfriend & complained about what the appellant had done to him. He was crying & there was a large lump on the back of his head. The sister & her friend took the complainant to his home & the mother was told about the assault. She rang the police & the appellant was arrested. A medical examination of the complainant took place early the following morning. Medical evidence largely consistent with evidence given by complainant.
Appellant submitted on appeal that 'conviction should be set aside on the grounds that it is unreasonable and cannot be supported by the evidence'.
Conviction appeal dismissed.
Objective gravity of crime - whether sentence manifestly inadequate.
Crown appeal dismissed.
567

KANE, Peter Clive Basil - NSW SC, Barr J, 17.11.2000
Citation: R v Kane [2000] NSWSC 1061
Remarks on sentence
.
Murder.
This trial followed a successful appeal against conviction (see R v Kane [2000] NSWCCA 402).
Accused (a school pupil aged 16) & a friend went to the home unit of the deceased & attacked him with a wooden bat causing a head wound & minor bruising of the brain as well as other superficial injuries. They then used industrial tape to bind his hands behind his back & they also bound his ankles & knees together. They gagged & blindfolded the deceased with the same tape. A plastic shopping bag was put over his head & taped tightly around his neck. But for the last act, the deceased would have survived. Accused & co-accused were tried separately. The co-accused, having been charged with murder but convicted of manslaughter at his first trial, successfully appealed against that conviction. At his 2nd trial, he was charged with manslaughter & was acquitted.
Issue at trial was who had caused the deceased's death.
Sentenced to 10*y with NPP of 7*y.
568

VASIL, Stephen - CCA, 11.10.2000
Hulme & Barr JJ
Citation: R v Vasil [2000] NSWCCA 421
Sentence appeal.
21 x use false instrument; + 37 similar matters taken into account on a Form 1.
Aggregate MT 3y, AT 3y.
The offences charged involved a systematic scheme of defrauding banks over a period from late 1996 to May 1998 when applicant was arrested. The loss to the banks arising out of these transactions was $4 million, with the gain to the applicant being $1,453,254. A large part of this was used for gambling or paid to his former wife in Greece. Approximately $750,000 was seized from bank accounts he controlled at about the time of his arrest, but it is not clear whether this formed part of the $1.4 million.
Submitted on appel that sentence was excessive - failure to give sufficient weight to guilty plea - failure to find that a substantial discount should be given - failure to take into account pre-sentence custody - assistance to authorities.
Appeal dismissed.
569

BAYEH, Bill - CCA, 21.11.2000
Giles JA, James & Whealy JJ
Citation: R v Bayeh [2000] NSWCCA 473
Sentence appeal.
Knowingly take part in supply of trafficable quantity cocaine; pervert the course of justice; conspire to supply large commercial quantity cocaine; conspire to supply commercial quantity heroin.
Aggregate MT 15y, AT 3y.
Applicant the prime mover in an ongoing drug enterprise. The offences charged covered a period between 1990 & 1994, as well as offences in 1996.
Quantities of drugs - finding 'well in excess'of minimum amounts for charges - whether finding as to specific quantities necessary - sentencing on non-specific finding permissible in the circumstances - whether sufficient regard to certain subjective factors - whether sentences excessive in light of Judicial Commission statistics.
Appeal dismissed.
570

ATM - CCA, 24.11.2000
Sully, Whealy & Howie JJ
Citation: R v ATM [2000] NSWCCA 475
Conviction appeal.
2 x sexual assault upon child (digital penetration; sexual intercourse).
MT 2y, AT 2y on each count.
Complainant is the appellant's step-daughter. Offences charged were said to have occurred over a period of some years. There were conflicting statements given to the police & the court by the complainant as to dates of offences. Tendered in court were some notes from an officer of the Department of Community Services. The notes were purported to record what was supposedly told to the officer by the complainant. However, the complainant denied ever having told the officer any of the details contained therein or that she referred to either her or her step-father's genitalia in the terms recorded in the notes. The mother was present during the conversation between the officer & the complainant & she too denied the version contained in the officer's notes. A doctor's clinical notes were tendered in court which contained details of a medical examination of the complainant. In the notes, the doctor had recorded that the complainant's hymen was found to be intact, that there was no evidence of digital or penile penetration & that the vagina appeared normal.
Convictions unreasonable & unable to be supported - directions & warnings on relationship evidence.
Appeal allowed: verdicts of acquittal entered on each count.
571

CRAMPTON - HC, 23.11.2000 - 206 CLR 161; 75 ALJR 133
Citation: Crampton v The Queen [2000] HCA 60 (23 November 2000)
Appellant charged with s.81A Crimes Act (since repealed):
"Whosoever, being a male person ... commits ... any act of indecency with another male person shall be liable to imprisonment for two years."
Primary school teacher alleged to have taken male student into storeroom, masturbated to ejaculation in front of student, ordered him to clear up semen with handkerchief & commented about act before returning to room.
Offence allegedly occurred in 1978, complaint made in 1997 - whether Longman warning required - requirements of Longman warning - whether defendant entitled to be acquitted on the basis that the evidence did not support a verdict of guilty on the correct interpretation of Crimes Act 1900 (NSW) s.81A.
Constitutional law (Cth) - whether the HC can entertain grounds of appeal sought to be raised for the 1st time in the HC.
Appeal allowed, conviction quashed, verdict of acquittal entered.
572

JOHNSON, Henry James - CCA, 21.11.2000
Heydon JA, Studdert & Greg James JJ
Citation: R v Johnson [2000] NSWCCA 474
Conviction appeal.
3 x indecent assault (upon person under age of 16).
MT 15m, AT 12m on each count.
At trial, applicant was acquitted of a charge of having sexual intercourse with a person under the age of 16. Complainant was the applicant's niece. Applicant did not give evidence at trial, relying on his wife giving evidence in which she disputed the complainant's evidence.
Summing up - conflicting evidence - fair trial - whether defence case put adequately to jury in summing up.
Appeal dismissed.
573

CARTER, Suzanne Margaret Jean - CCA, 20.11.2000
Barr J, Carruthers AJ
Citation: R v Carter [2000] NSWCCA 490
Sentence appeal.
Supply prohibited drug on an ongoing basis (heroin); + offences of possession & supply drugs taken into account.
MT 2y, AT 1y.
Applicant was in the business of supplying heroin at street level. On 5 occasions, she supplied small quantities to an undercover police officer.
Guilty plea - on GBB at time of offences - long-standing heroin addiction - junior position in hierarchy of drug marketing.
Appeal dismissed.
574

NASTALY, Kathleen - CCA, 24.11.2000
Barr J, Carruthers AJ
Citation: R v Nastaly [2000] NSWCCA 486
Sentence appeal.
1 x robbery in company.
3y 11m, comprising MT 1y 2m, AT 2y 9m (pre-sentence custody taken into account).
Applicant & male co-offender, both drug addicts, attacked a young man in a park. The co-offender, armed with a screwdriver, took hold of the victim by the neck & tried repeatedly to stab him with the screwdriver. As the victim struggled to try to keep him off, applicant took his wallet. $500 was taken from the wallet then applicant & co-offender ran away. Victim suffered minor lacerations, probably as a result of being punched by the co-offender.
Co-offender pleaded guilty & received 3*y, comprising MT 1y 5m, AT 2y 1m (pre-sentence custody taken into account). His record was worse than that of the applicant, he was the leader in the offence & was on parole at the time. In the applicant's trial, the Crown informed the sentencing judge that the Crown had lodged an appeal against the co-offender's sentence. This was not so. The Crown had not lodged an appeal & has never appealed against the co-offender's sentence.
Guilty plea - parity - rehabilitation - ongoing treatment for drug addiction - completed a number of courses - strong family support - special circumstances.
Appeal allowed: resentenced to 3y 5m, with NPP of 11m.
575

BARBER, Anthony Kenneth - CCA, 24.11.2000
Barr J, Carruthers AJ
Citation: R v Barber [2000] NSWCCA 485
Sentence appeal.
3 x supply prohibited drug (cannabis leaf, ecstasy, amphetamines).
Aggregate MT 2*y, AT 10m.
Applicant pleaded guilty to supply cannabis leaf & not guilty to supply ecstasy & amphetamines, however, he was found guilty upon those charges.
Applicant's co-offender sentenced at the same time, receiving an aggregate MT 12m, AT 4m.
Parts played in commission of offences indistinguishable. However, co-offender pleaded guilty of all 3 offences, whereas applicant pleaded guilty only of supply cannabis, the least serious of the offences charged. Applicant had a substantial record for offences of violence, dishonesty, conspiracy to steal, driving offences, whereas co-offender had a relatively good record & had never been sentenced to any imprisonment.
Parity - justifiable sense of grievance.
Appeal dismissed.
576

GRAY, Frederick Thomas - CCA, 22.11.2000
Barr J, Carruthers AJ
Citation: R v Gray [2000] NSWCCA 479
Sentence appeal.
3 x supply prohibited drug (5.08 grams heroin, 341 grams cannabis, 20.5 grams amphetamine); 1 x possess 1.4 grams amphetamine.
Aggregate MT 2y, AT 2y.
Totality of offences taken into account, however, the court lacked jurisdiction to sentence the applicant for the offence of possess amphetamine which, by virtue of s.9 Drug Misuse and Trafficking Act 1985, should have been dealt with by a magistrate.
In the CCA, counsel for the Crown & applicant agreed that the sentence for possession must be quashed. This gave rise to the question of whether the CCA should interfere with the supply charges. At time of sentencing, applicant was aged 71 & was serving 2 concurrent FTs of 6m for 2 previous supply offences. When imposing sentences for the instant offences, the sentencing judge accumulated those sentences upon the FTs. Applicant had been supplementing his pension by supplying small quantities of various drugs. He retired at 65 & spent approx $40,000 on gambling, resulting in his total dependence upon his pension & finding it difficult to cope.
Early guilty pleas - diabetic - poor eyesight - hearing impaired - full admissions - advanced age - positive rehabilitation.
Appeal allowed: resentenced to aggregate 3y with NPP of 1*y.
577

PAPADOPOULOS, Manthos - CCA, 22.11.2000
Barr J, Carruthers AJ
Citation: R v Papadopoulos [2000] NSWCCA 477
Sentence appeal.
1 x bribery; + 1 further offence of the same kind taken into account.
2y with NPP of 9m.
Applicant was the operator of a nightclub at Kings Cross, with permission to operate the business on condition that spruikers were not permitted beyond the street alignment of the premises & that the premises closed at 3.00 am. Other nightclubs in the district were not so restricted & applicant saw himself as disadvantaged. On a number of occasions, those conditions were breached & police took court action. Applicant lodged an appeal in the Land and Environment Court to have the restrictions removed, but was not prepared to wait for the results of that application. He made arrangements for a private meeting with a police officer. At that meeting, he asked for a meeting under the auspices of the police with all nightclub operators in the vicinity for representations to be made to the South Sydney Council to have the restrictions on his licence removed & for there to be fewer prosecutions for breaches of the conditions of his licence. He handed the police officer $1,000 in notes. Several days later, he gave a further $500 to the same police officer.
Submitted on appeal that sentence manifestly excessive - guilty plea - aged 27 at time of offences - strong family ties - real prospects of rehabilitation - error in objective seriousness of offences - undue weight given to specific & general deterrence.
Appeal dismissed.
578

PAPANDREA, Andrew - CCA, 24.11.2000
Sully, Whealy & Howie JJ
Citation: R v Papandrea [2000] NSWCCA 499
Sentence appeal.
Manslaughter.
MT 6y, AT 3y (finding of special circumstances).
Pleaded not guilty to murder but guilty to manslaughter in full satisfaction of the indictment.
This was a killing by shooting where the applicant was no more than a metre from the deceased at the time. The act of firing the shotgun was deliberate. No evidence of intent to kill. Sentencing judge defined the offence as manslaughter by unlawful & dangerous act. He also found that it was not the applicant who had loaded the gun. No specific details of offence given in judgment.
Assessment of evidence - objective & subjective facts - whether sentence excessive.
Appeal dismissed.
579

SMITH, Robert Colin Alan - CCA, 20.11.2000
Giles JA, Wood CJ at CL, James J
Citation: R v Smith [2000] NSWCCA 468
Conviction appeal.
Aggravated sexual intercourse without consent.
MT 2*y, AT 2*y.
The appellant was an acquaintance of the complainant. She accused him of assaulting her after she had left a club. Circumstances of aggravation were that the appellant maliciously inflicted ABH upon the complainant, resulting in her sustaining a number of injuries, including genital injuries which a doctor described as being consistent with 'some significant degree of force'having been used. There were a number of witnesses who gave evidence of events before & after the alleged assault.
Directions - witnesses - competing versions - jury better placed to evaluate reliability of witnesses - identification evidence - warning for use of identification evidence - question of motive - motive to lie - whether verdict unreasonable of being supported having regard to the evidence.
Appeal dismissed.
580

EADE, Wayne James - CCA, 15.11.2000 - 118 A Crim R 449
Priestley JA, Greg James & Kirby JJ
Citation: R v Eade [2000] NSWCCA 369
s.5F appeal against interlocutory judgment.
Appellant was a police officer who became the target of an investigation conducted by the Royal Commission into the NSW Police Service. Warrants were obtained to install listening devices in premises occupied by a woman. The appellant visited those premises & spoke to the woman. His conversations were captured on audio & video tape. He was later charged with having incited the woman to supply ecstasy & having knowingly given false testimony in an inquiry being made by the Royal Commission. In the DC, counsel for the appellant sought a ruling upon the admissibility of conversations recorded under the warrants. The trial judge determined the warrants were invalid, however, he decided that the evidence should not be excluded. Counsel for the appellant then sought a permanent stay of the false testimony charge, which the trial judge refused.
Jurisdiction where issue is one of admissibility of evidence - invalidity of listening device warrant - admissibility of conversations recorded under invalid warrant.
Appeal against refusal of stay dismissed; appeal in respect of the decision to admit evidence of the 4 conversations be upheld; the matter be returned to the DC to be determined according to law.
581

ARDRON, Michelle Maree - CCA, 11.10.2000
Hulme & Barr JJ
Citation: R v Ardron [2000] NSWCCA 412
Sentence appeal.
Dangerous drive occasioning GBH whilst under the influence of intoxicating liquor; + 2 further offences taken into account (being an unlicensed driver; self-administration of prohibited drug - marijuana).
MT 1y 4m, AT 1y 4m.
Guilty plea. Although applicant had had a provisional driving licence, she was unlicensed at the time of the offence. She had virtually no driving experience. She was driving at between 80 & 90 kms per hour when trying to negotiate a bend, the recommended speed for which was 55 kms per hour. She lost control & the vehicle ran off the road & collided with a tree. A male hitch-hiker sitting in the rear seat sustained serious injuries. Applicant's blood alcohol reading was .105 grams per 100 millilitres.
Whether sentence excessive - whether wrong in principle - whether error in describing applicant's blood alcohol content as an aggravating feature when the fact that she was driving under the influence of alcohol was itself an element of the offence.
Appeal dismissed.
582

JEDLICKA, Raymond - CCA, 27.11.2000
Fitzgerald JA, Whealy & Howie JJ
Citation: R v Jedlicka [2000] NSWCCA 492
Conviction appeal.
Robbery.
MT 15m, AT 27m.
Appellant was originally charged with robbery with wounding.
Very short judgment. No details of offence given.
Only ground of appeal was that trial judge erred in his directions to the jury as to the failure of the appellant to give evidence. The Crown conceded that a misdirection was given & that the conviction ought to be quashed.
Appeal allowed: new trial ordered.
583

WEININGER, Danny - CCA, 1.12.2000 - 119 A Crim R 151
Simpson, Dowd & Bell JJ
Citation: R v Weininger [2000] NSWCCA 501
Sentence appeal.
Knowingly concerned in importation of commercial quantity cocaine; conspiracy to money launder; conspiracy to supply commercial quantity cocaine.
Aggregate 18y with NPP of 12y.
During sentencing proceedings, senior counsel for the Crown proposed 12 to 16y as the sentencing range.
The above charges arose out of an operation involving Australian Federal Police & the DEA of the USA. Evidence showed that the applicant, while not at the highest rung of a drug importing syndicate, was integrally & consistently involved at an organisational level.
Guilty pleas - good character - no prior convictions.
Whether sentence exceeded range promulgated - whether error disclosed in sentencing above such a range - whether obligatory for sentencing judge to advise parties that consideration was being given to sentence in excess of such range - whether error disclosed in failure to give reasons for sentence being in excess of such range - standard to which finding of prior criminal activity must be proved - conformity with R v Wong & Leung - whether sentence manifestly excessive.
Appeal dismissed.
584

DIEP, David Quoc - CCA, 22.11.2000
Simpson & Hidden JJ
Citation: R v Diep [2000] NSWCCA 472
Sentence appeal.
2 x supply heroin; + offences of possess prohibited weapon & possess ammunition taken into account on a Form 1.
Aggregate MT 3y, AT 2y.
Applicant & co-offender were both under police surveillance. Applicant met the undercover officer, having arranged to sell him 56 grams of heroin. The officer showed him $8,400 in cash as part-payment. Applicant directed the officer to drive to another location where they met the co-offender who supplied a package of heroin to the officer The balance of the purchase price ($2,000) was paid on a later occasion. A further transaction took place a little over a month later when 28 grams of heroin was supplied for $5,200. Police executed a search warrant at applicant's family home & found a baton with a side handle, some 12 gauge shotgun ammunition & some .22 calibre bullets. Applicant not present at the time & was arrested the following day.
The co-offender was sentenced to 2*y with NPP of 18m PD.
Aged 21 at time of offences - on bail for affray at time of offences - Vietnamese refugee, having come to Australia with his family when he was almost 3 years old - continuing support of family - father able to provide employment upon release from prison.
Whether sentences manifestly excessive - special circumstances.
Appeal allowed: sentenced to aggregate 3y with NPP of 18m.
585

PAGE, George (aka Pandelis KARIPIS) - CCA, 22.11.2000
Barr J, Carruthers AJ
Citation: R v Page (aka Karipis) [2000] NSWCCA 484
Sentence appeal.
1 x maliciously inflict GBH; 1 x supply prohibited drug (heroin).
Aggregate MT 2*y, AT 2*y.
At time of sentence, applicant was serving MT 2y 2m, AT 1y 10m for supply prohibited drug committed after the subject offences. Prior to that sentence, he was convicted of knowingly take part in supply of prohibited drug & supply prohibited drug, these offences again having taken place after the subject offences. For those offences, appellant was sentenced to FT 9m. The sentences for the subject offences were cumulative upon the previous sentences.
Whether sentencing judge erred in accumulating sentences.
Appeal dismissed.
586

GRAHAM, Kane - NSW SC, Whealy J, 10.11.2000
Citation: R v Graham [2000] NSWSC 1033
Remarks on sentence
.
Manslaughter.
Accused was tried for murder, found not guilty of murder but guilty of manslaughter.
Accused accepted an invitation by an unknown male via an Internet chat room to meet in school grounds for the purpose of homosexual activities. It was to be the first homosexual experience for the accused. After meeting at the school, the deceased & accused talked for a while then agreed to go for a drive. They drove to the parking area of Gladesville Reserve, got out of the car, walked into the park & sat down next to each other. After some initial sexual advances by the deceased, the accused panicked & tried to run away. He maintained the deceased grabbed him & pulled him down. They ended up wrestling with each other, the accused eventually pinning the deceased face down on the ground & in a headlock. Once the deceased ceased moving, the accused took his wallet, mobile phone & car. He said he took the car in order to get home but did not know why he took the wallet or mobile phone.
The deceased died from strangulation. There was evidence that he suffered various scratches & bruises, however, the forensic pathologist found it difficult to express an opinion as to the degree of force required to cause such injuries, particularly as the deceased had been found face down, causing lividity after death. There were fractures to the right side of the hyoid bone & the projection of the thyroid cartilage. The forensic pathologist gave evidence that not a great deal of force was needed to fracture them, in fact the degree of force necessary would be 'quite mild'.
Aged 20 - no prior convictions.
Sentenced to: 5y with NPP of 3y.
587

DMA - NSW SC, Dunford J, 14.11.2000
Citation: R v DMA [2000] NSWSC 1051 revised - 21/11/2000
Judgment on fitness to be tried
.
Murder; wound with intent to murder.
After accused was charged with wound with intent to murder her mother, she was taken into custody & kept in Yasmar Detention Centre. During a TAFE cooking class held at the centre, she took a large kitchen knife & stabbed the teacher in the back. He died during surgery.
Psychiatric reports of accused suffering disruptive behaviour disorder, conduct disorder, intermittent explosive disorder, dissociative disorder & mild mental retardation. One psychiatrist reported the accused was the hardest case she had ever had to deal with in her 40 years of psychiatric practice.
Accused was aged 17 at the time of the offences & had led a tragic life. She was placed into foster care at the age of 2 & was returned to her mother periodically. One of her mother's partners sexually abused her & she was made a State Ward at age 4. She then spent a number of years at Renwick, Mittagong before being placed with foster parents under the auspices of Dr Bernardos at the age of 12. She has 2 half-sisters, each fathered by different men. Accused suffers from episodes of rage & self-harm. She has a deep dislike of her mother.
Accused unfit to be tried.
588

RUSHTON, Kevin Thomas - CCA, 24.11.2000
Sully, Bell & Howie JJ
Citation: R v Rushton [2000] NSWCCA 513
Conviction appeal.
Robbery in company.
MT 5y, AT 3y.
Issue before the jury was whether the appellant was one of 3 persons involved in a robbery of a newsagency. No dispute at trial that such a robbery occurred, that 3 people were involved & that a van owned by the appellant's de facto was used in the robbery. Crown case was that the jury would be satisfied beyond reasonable doubt that at the time of the robbery, the appellant was the driver of the vehicle. In an early statement to police, appellant said he had the van in his possession all day & that he was not involved in the robbery. At trial, he told the jury he had not been truthful with the police in telling them that. He said he had in fact gone to Liverpool & had seen one of the men involved in the robbery. That man had asked him if he could borrow his vehicle for about an hour to collect some money that was owed to him. At first, the appellant declined but changed his mind when the man offered him $50. He said the vehicle was returned to him some hours later. The man told the appellant he should not tell the police that he had borrowed the vehicle & that he would look after the appellant. He reminded the appellant of what happened to police informants.
Circumstantial case - directions - conflicting statements - lies - consciousness of guilt - summing up flawed.
Appeal allowed: retrial ordered.
589

FF - CCA, 24.11.2000
Barr J, Carruthers AJ
Citation: R v FF [2000] NSWCCA 493
Sentence appeal.
Cause poison to be taken with intent to murder; alternative count of maliciously causing to be taken certain poison so as to endanger life.
4*y with NPP of 12m.
Applicant pleaded not guilty to the 1st count but guilty to the 2nd, the Crown accepting the plea in full satisfaction of the indictment. Her friend & sister were present when she placed ant killer on a cheese sandwich which she toasted & gave to her mother who ate it. She made another sandwich with ant killer on it & gave it to her sister to take to her mother. The sister threw it away. Applicant later told police she expected her mother to die. When she didn't she got some fly killer & her friend put it into a jug of Coca Cola but it went milky. A glass was given to the mother but she didn't drink it.
The s.39 offence of using poison so as to endanger life is not a 'serious children's indictable offence'as defined by s.3 Children (Criminal Proceedings) Act 1987. As the applicant pleaded guilty to the offence in the DC, the sentencing judge had a discretion to deal with the applicant according to law or according to the provisions of the Children (Criminal Proceedings) Act. The alternative would have been for him to have dealt with the matter in accordance with the regime set out in Div.4 Part 3 of that Act which carries with it the alternatives which would have been available had the applicant been dealt with summarily by the specialist jurisdiction of the Children's Court.
Whether error in determining that the matter should be dealt with according to law.
Appeal dismissed.
590

KHOUZAME, Adonis - CCA, 6.12.2000
Priestley JA, Greg James & Kirby JJ
Citation: R v Khouzame [2000] NSWCCA 505
Sentence appeal.
Manslaughter - MT 3y, AT 2y; AOABH - FT 3m.
Applicant killed deceased by striking him on the head with a wooden garden stake. The assault charge arose when the applicant & some of his relatives attacked another man whose injuries included a bloody & swollen face, bruising on his arm & back. The events occurred after some young Turkish boys had chatted to some girls in the vicinity of the applicant's home. Another young boy apparently took objection to his sister conversing with them & began ranting. The applicant heard him & went to the balcony of the upper storey of his house. Applicant demanded that the boys leave the area. He then went down to the street, stripped off some clothing & armed himself with the garden stake. There was no evidence that there had been any misconduct or provocation from the boys nor that there was any unwelcome attention being paid to the girls.
Special circumstances - youth - first custodial sentence - general deterrence.
Whether sentence was manifestly excessive.
Appeal dismissed.
591

HANNES, Simon Gautier - CCA, 1.12.2000
Spigelman CJ, Studdert & Dowd JJ
Citation: R v Hannes [2000] NSWCCA 503
Conviction appeal &
Crown appeal.
Insider trading.
1 charge under s.1002G(2) and s.1311 of the Corporations Law - 2y 2m with a fine of $100,000;
2 charges under s.31(1) of the Financial Transaction Reports Act 1988 (Cth) - 4m & a fine of $5,000 on each charge.
Appellant was an Executive Director of Macquarie Corporate Finance, a division of Macquarie Bank Ltd which for some time had advised TNT. Key issues were whether or not the appellant had access to & made use of information obtained at Macquarie Corporate Finance with respect to the prospect of a takeover of TNT & whether he had purchased the TNT options in the name of 'M. Booth', returning a profit of over $2 million.
Adequacy & fairness of summing up - non-consensual verdict - handwriting opinion evidence - hearsay evidence - 'intended'representation - direction given when accused does not give evidence - ' Weissensteiner direction'.
Conviction appeal allowed: new trial ordered.
Crown appeal dismissed.
592

FRAWLEY, Maurice Peter - - NSW SC, Studdert J, 5.12.2000
Citation: R v Frawley [2000] NSWSC 1128
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant & deceased had been living in a de facto relationship for approx 2 years before the murder. At the time of the killing, applicant was living at the deceased's home, where the murder took place. The applicant inflicted multiple stab wounds upon the deceased & there were signs of a lengthy & violent struggle. The sentencing judge described the killing as 'a brutal murder'(See also R v Frawley [2000] NSWCCA 340).
Aged 62 at present - aged 49 at time of crime - has 5 children from a failed marriage - refusal to acknowledge guilt - lack of contrition - ill-health.
Psychiatric assessment that applicant unlikely to commit similar offence if released - psychiatrist supported application - Crown did not oppose it - well-behaved in prison - C1 classification.
Application allowed: sentenced to 20y with NPP of 14y.
593

SCHUBERT, Janis - NSW SC, Greg James J, 5.12.2000
Citation: R v Schubert [2000] NSWSC 1127
Judgment
Murder.
Judge alone trial.
Late in the evening, the deceased banged on the front door of premises that the accused & her fiance occupied. The accused opened the door, whereupon the deceased pushed past her, walked to where her fiance was seated & punched him a number of time around the head & neck. The accused tried to intervene, whereupon the deceased either pushed or punched her & she fell to the ground. Deceased again punched the fiance & said that his brother wanted to speak to one of the other young men who was at the premises at the time. The accused phoned 000 & asked for the police to come to the premises. The deceased & the other young man then left the premises. The accused went into a bedroom, took a large carving knife from a locked toolbox, went outside onto the driveway, then stabbed the deceased.
Intent - self-defence - Home Invasion (Occupants Protection) Act 1998 - onus & standard of proof - perception of accused.
Aged 19 at time of killing - mild intellectual disability - no priors - good character.
Not guilty of murder & not guilty of manslaughter.
594

PHOMARANUPHONG, Cherdchai - NSW SC, 1.12.2000
Citation: R v Phomaranuphong [2000] NSWSC 1136
Judgment on fitness to be tried
.
Murder.
Judge alone trial.
The accused & the deceased were in a relationship which the deceased wanted to end. The accused, unable to face such a prospect, stabbed the deceased. The accused was arrested on the day of the killing & taken into custody. Whilst in custody, it became apparent that he was exhibiting symptoms of mental illness & he was admitted to the Long Bay prison hospital. He expressed a wish to die, he suffered sleep disturbance & was socially withdrawn. He began to complain of hearing voices, was treated with anti-psychotic medication & was discharged. Some time later, he was re-admitted to the hospital because of exhibiting suicidal tendencies. He began to speak in a bizarre manner & exhibited psychotic symptoms, claiming to undertake interstellar travel at night & having auditory, visual & persecutory hallucinations, delusions of experiencing special powers & what he called a 'black power spell'His speech was disorganised, at times almost incoherent with a marked degree of thought disorder.
Both the psychiatrist for the accused & the psychiatrist for the Crown were of the opinion that the accused probably suffered from depressive psychosis & that he was unfit to be tried.
Accused unfit to be tried by reason of mental illness.
595

CALDERONI, Fabrizio - CCA, 22.11.2000
Sully, Bell & Whealy JJ
Citation: R v Calderoni [2000] NSWCCA 511
Crown appeal.
Robbery in company.
2y suspended sentence.
Respondent was tried & acquitted on a charge of murder. During that trial he gave sworn evidence, some of which amounted to an admission of his participation in a robbery. Following his acquittal on the murder charge, he was indicted upon a charge of robbery in company & subsequently pleaded guilty to that charge. The evidence available to inculpate the respondent in the robbery in company embraced in part the admissions of the respondent & in part the contents of intercepted telephone conversations.
Sentencing - scope & operation of s.23 Crimes (Sentencing Procedure) Act 1999 - how affected, when assistance given because of admissions made either wittingly or unwittingly.
Whether sentence manifestly inadequate.
Appeal dismissed.
596

VALKOVICH, Michael - CCA, 1.12.2000
Fitzgerald JA, Whealy & Howie JJ
Citation: R v Valkovich [2000] NSWCCA 506
Crown appeal.
Receiving.
500h CSO + a fine of $5,000.
Respondent was found guilty of receiving $34,400 which belonged to 2 hotels. He was the director of a security company which performed work for the 2 hotels. One Monday, a security company employee collected 2 bags containing the weekend takings from the hotels, then he drove to St George Bank at Dee Why to deposit the money. When he parked his vehicle, he was held up at knife-point by an unknown assailant, his hands were tied with plastic cable ties to the steering wheel of his vehicle & the cash bags were taken.
A search warrant was executed at the security company's business premises & later at the respondent's home. Bundles of money were found in various parts of the home, as well as plastic ties which were identical to those used to tie the employee up during the robbery.
At time of appeal, respondent had already completed the entire period of CSO & paid most of his fine by monthly instalments, leaving only $1,820 still to pay.
No basis for concluding that respondent participated in the robbery or was otherwise involved prior to receiving part of the proceeds.
Whether sentence manifestly inadequate.
Appeal dismissed.
597

McGARRITY, William Charles - NSW SC, Barr J, 23.11.2000
Citation: R v McGarrity [2000] NSWSC 1080
Judgment
.
Murder; sexual intercourse without consent; maliciously inflict GBH.
Judge alone trial. Accused admitted committing acts constituting offences, however, he pleaded not guilty on the basis that at the time of the offences he was mentally ill.
Accused believed he was Jesus Christ. He was living with a woman at the time. He said her young daughter was an alien from Uranus & was possessed by the spirit of her dead father & she had come to kill the woman. One evening, he insisted the woman & her daughter join him in a series of bizarre rituals. He went to the dog pound to 'get dad'& returned with a large black dog. He told the woman it was his father, God. He took a sword & handed another to the woman. He struck her with his sword, cutting various parts of her body, hitting her repeatedly & striking her in the mouth with the handle, smashing some of her teeth. He began hitting the child on the neck & body with the sword, then he told the woman to run hot water into the bathtub. He made the child get into the bath & prevented her from getting out of the hot water. He pulled her limp body out of the bath, put it into the refrigerator & later told the woman that the child would be restored to life when God (the dog) licked her. He then made the woman take a bath, after which he put her into a wooden chest, placed rope around her neck, pulled it tight, hacked off her hair, banged her head into a garage roller door & placed items of frozen food on her naked body. He heated a spoon with a cigarette lighter & placed it on various parts of her body, as well as inserting it into her vagina. Neighbours called the police. They had to subdue the accused with capsicum spray before taking him into custody.
Long history of mental illness - whether legally responsible for crime.
Not guilty by virtue of mental illness.
598

HILL, Robert John - NSW SC, O'Keefe J, 27.3.2000
Citation: R v Hill [2000] NSWSC 259
Remarks on sentence
.
2 x murder; 2 x maliciously discharge firearm with intent to do GBH.
All offences occurred on an industrial estate on a Sunday when the accused, who was illegally living in one of the industrial units, went on a rampage. He systematically set about seeking out & shooting some people who were working in units which were in close proximity to the unit in which the accused was living. Two of those people died.
Sentenced to: aggregate MT 30y, AT life.
599

BOND, Raymond Arnold - CCA, 8.12.2000
Stein JA, Smart AJ, Ireland AJ
Citation: R v Bond [2000] NSWCCA 518
Conviction appeal.
8 x carnal knowledge of person above 10 & under 16.
The appellant stood trial on 9 counts of carnally knowing his daughter, however, a not guilty verdict was returned on Count 1. Complainant was born in October 1962 & is the eldest of 4 children. Complainant had 2 pregnancies during the time she alleged the appellant had sexually abused her. The 1st time her mother & father took her to Sydney to have the pregnancy terminated. Her mother & sister accompanied her to Sydney for the termination of her 2nd pregnancy. The complainant said she told her friend that her father was responsible for the pregnancies. The mother did not give evidence due to extreme ill-health.
Fresh evidence - failure by Crown to provide appellant's legal representatives with copies of medical reports prepared in relation to complainant's claim for victim compensation - miscarriage of justice.
Appeal allowed: new trial ordered.
600

KIM, Dae Hyun - CCA, 24.11.2000
Barr J, Carruthers AJ
Citation: R v Kim [2000] NSWCCA 489
Sentence appeal.
2 x robbery in company; 1 x robbery in company with deprivation of liberty.
Aggregate MT 11m 2w, AT 2y (2w pre-sentence custody taken into account); + a recommendation for deportation upon release.
Applicant, a Korean national, was resident in Australia on a student visa & living with members of his family who are in Australia on business visas. They intend applying for permanent residency. The applicant, who was studying music, had got himself into some financial difficulty, had pawned some musical instruments of his & he needed to raise some money. He contacted a young person who he believed knew how to raise money by unlawful means. The applicant, this other person & 2 others surrounded three 16 year old boys at Central Railway Station. They were made to accompany the applicant & his co-offenders to the basement of a restaurant in George Street & money was demanded from them. All in all they only had $20 between them. Two of the boys were told to go & get some money & the other would have to stay with the offenders until they came back with the money. The 2 boys reported the matter & the applicant & 2 of the offenders were arrested, however, the other offender got away.
Aged 19 at time of offence - no priors.
Whether sentence excessive.
Appeal dismissed, however, the recommendation for deportation was quashed.
601

EL-HAMID, Salahedine - CCA, 28.11.2000
Dunford J
Citation: R v El-Hamid [2000] NSWCCA 497
Appeal under s.5AF Criminal Appeal Act 1912 against penalties & orders imposed in the Drug Court.
2 x drive MV whilst unlicensed; 1 x use uninsured MV; 1 x use unregistered vehicle.
Fine of 1 penalty unit ($110) with an order that appellant be disqualified from holding or obtaining a driver's licence for 3 years.
A number of shoplifting, goods in custody & stealing offences were dealt with at the same time & the appellant was sentenced, however, his sentence was suspended upon him entering into a Drug Court programme. Once the court was satisfied with his progress in that programme, final sentence was imposed by way of a bond for the dishonesty offences.
On appeal, the appellant only appealed against the period of disqualification.
Consideration by the Court as to the jurisdiction of the Court to hear the appeal.
Appeal allowed: fines confirmed, orders for disqualification quashed, new orders imposed. Appellant disqualified from holding a driver's licence for 18m.
602

JCE - CCA, 27.11.2000 - 120 A Crim R 18
Fitzgerald JA, Whealy & Howie JJ
Citation: R v JCE [2000] NSWCCA 498
Crown appeal.
2 x aggravated sexual intercourse with person under 16.
Respondent is the father of the complainant. Offences alleged were admitted to by the respondent & he subsequently pleaded guilty. Respondent was dealt with under the Pre-trial Diversion of Offenders Act 1985 requiring him to undertake to attend a diversion programme for 2 years, as well as to adhere to some restrictions upon his movements.
Almost 2 years later, the Director of the diversion programme notified the DC that the respondent had been suspended from participation in the programme due to his unsatisfactory progress & breaches of his undertaking. He was subsequently sentenced to 2y with a MT of 15m suspended for 2 years upon him entering into a GBB for the period of his sentence.
Aged 42 - remorse - prospects of rehabilitation.
Whether sentence manifestly inadequate - general deterrence.
Appeal dismissed.
603

BINNIE, Allan - CCA, 22.11.2000
BarrJ, Carruthers AJ
Citation: R v Binnie [2000] NSWCCA 483
Sentence appeal.
1 x robbery.
MT 6y 9m, AT 2y 3m
At time of sentence, applicant was serving 9m FT for obtain money by deception.
The instant offence occurred when the applicant, his face covered with a balaclava, entered the post office at Long Jetty. The licensee-owner & a customer were in the post office at the time. He pointed a plastic bag covering one of his hands towards the owner & demanded money from her, then placed another plastic bag on the counter, into which approx $1,000 in cash was placed. Applicant then left the post office & drove off in a vehicle. There were different number plates on the front & rear of the vehicle, however, the numbers were taken down by various people in the area as the applicant drove off. One plate was capable of being traced by investigating police. Later in the day, the applicant was arrested at a recreation club where he had already spent $400 of the stolen money on poker machines.
Aged 38 at time of sentence - long criminal history - recidivist.
Whether excessive weight given to applicant's prior criminal record - failure to find special circumstances - insufficient discount for early guilty plea - sentence manifestly excessive.
Appeal allowed: resentenced to 7y with NPP of 4y.
604

KHOO, James Ching Boon - CCA, 29.11.2000
Fitzgerald JA, Simpson & Howie JJ
Citation: R v Khoo [2000] NSWCCA 500
Conviction appeal.
Receive benefit to influence exercise of duty.
CSO 420h.
Appellant was a Commonwealth officer working in the computer bounty section of the Australian Customs Service. A large computer company informed the appellant it was unhappy with its computer bounty consultant & inquired whether he could recommend a different consultant. The appellant introduced his brother to members of the computer company, intimating that if they dealt with his brother, their claims would be expedited.
Bounty (Computers) Act 1984 (Cth).
Aged 44 at time of offence - no priors.
Whether insufficient evidence to establish Crown case - whether trial in accordance with Constitution s.80, or Jury Act (NSW) 1977 - alleged improper behaviour of a juror.
Appeal dismissed.
605

KENNEDY, Robert Neil - CCA, 23.11.2000 - 118 A Crim R 34
Heydon JA, Studdert & Greg James JJ
Citation: R v Kennedy [2000] NSWCCA 487
Conviction appeal.
2 x sexual intercourse without consent.
2y 8m with NPP of 1y 6m.
Appellant was the complainant's stepfather. Both charges alleged penile-vaginal intercourse. The complainant was aged 12 at the time. The complainant gave birth to 3 children, the 1st being born when the complainant was 18. The appellant acknowledged that he was the father of all 3 children. He also acknowledged that he & the complainant had had sexual intercourse many times over a 5 year period but it had always been consensual.
Application was made to amend the 1st indictment to enlarge the time-frame within which offences were alleged to have occurred & no objection was taken by defence counsel. At trial, the complainant's mother, who was a Crown witness, gave evidence which conflicted with that given by the complainant. The Crown addressed the jury in closing as to the motivation of the complainant's mother to protect the appellant.
Miscarriage as a consequence of conduct of Crown prosecutor - summing up - inadequacy of instruction to jury as to lies & consciousness of guilt - delay in complaint - delay prior to trial - necessity for judge to warn jury as to effects of delay.
Appeal allowed: verdicts & judgments of acquittal entered.
606

AB [NO.2] - CCA, 6.12.2000 - 117 A Crim R 473
Spigelman CJ, O'Keefe & Barr JJ
Citation: R v AB [No2] [2000] NSWCCA 467
This matter was remitted to the CCA by an order of the HC made on 9.9.1999 ( AB v The Queen (1999) 198 CLR 111).
Appellant was sentenced to 18y with a MT of 13*y in respect of 67 sexual offences committed against 15 children. At the time of the offences, the appellant was a teaching Brother in a religious order of the Catholic Church, teaching in various schools which the children attended. He fled to the US following complaints made by 2 pupils & 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.
Commission of offences volunteered - extradition rights waived - pleas of guilty - appropriate discount for utilitarian value.
Sentenced to: aggregate 15y with NPP of 12y.
607

KREMMER, Paul James - CCA, 13.12.2000 - 50 NSWLR 538; 118 A Crim R 176
Studdert, Simpson & Dowd JJ
Citation: R v Kremmer [2000] NSWCCA 529
s.5F(3) appeal concerning the construction of s.84 Victims Compensation Act 1996 (now called Victims Support and Rehabilitation Act 1996).
Appellant was charged with one count of sexual intercourse with a child aged between 10 & 16. He issued a subpoena requiring the Registrar of the Victims Compensation Tribunal to produce all records held by the Victims Compensation Tribunal in respect of certain persons who were children at the time of the offences. The Tribunal opposed production of those documents on the basis that s.84(2) of the Act provided a blanket prohibition against production & the trial judge accepted the argument advanced by the Tribunal. The Tribunal conceded that the appellant had a legitimate forensic purpose for requiring production. The trial judge stated that he found the section 'sloppy', but that he should interpret it to give effect to the intention of the AG's 2nd Reading Speech when introducing the Bill, however, he did not specify what he perceived that intention to be other than that the Tribunal was not required to produce the documents.
Appeal dismissed: matter remitted to DC for further consideration by a judge of that court consistent with the appropriate construction of s.84(2).
608

YUCEL, Savas - CCA, 13.12.2000
Meagher JA, Hidden J, Carruthers AJ
Citation: R v Yucel [2000] NSWCCA 532
Crown appeal.
1 x armed robbery.
4y with NPP of 3m 2d (only 6.25% of overall term).
Respondent & another male (respondent would not identify him) robbed a Tandy Electronic Store at knife point. They stole cash, various makes of mobile phones, as well as cards. Total value of cash & goods $2,926.50.
Aged 21 - guilty plea - delay of 6 months in hearing of appeal - respondent in permanent employment, living in stable family environment.
Failure to reflect high degree of criminality in the NPP - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y with NPP of 1*y to be served by way of PD.
609

KENNEDY, Michael Graham - CCA, 13.12.2000
Simpson & Howie JJ
Citation: R v Kennedy [2000] NSWCCA 527
Sentence appeal.
5 x sexual intercourse with child between ages of 10 & 16.
Aggregate MT 2y 8m, AT 1y 8m.
Applicant was originally charged with 6 counts of aggravated sexual intercourse without consent. The jury returned a verdict of not guilty of the 1st count & found him guilty of the alternative counts in respect of the 5 remaining counts on the basis that the applicant believed the complainant was consenting.
Complainant was aged 13 years & was under the legal custody of a friend of the prisoner. Applicant thought the child was 15 years of age. Offences all occurred on the same day The 1st offence occurred in the back seat of the guardian's motor vehicle when the applicant pulled the complainant's head down onto his penis & held it there while she fellated him. The other 4 offences occurred later that day in a motel room where the guardian & the complainant were staying. The guardian had set up a video machine to tape the sexual activity. Three of the offences involved separate acts of penile vaginal intercourse, with one of those acts involving the penetration of the complainant's vagina by both the applicant's penis & the guardian's penis simultaneously. The last offence involved the applicant holding the head of the complainant while she fellated him.
Relevance of prior good character - whether sentence excessive.
Appeal dismissed.
610

ROMANIC, Milorad - CCA, 28.11.2000
Wood CJ at CL, Barry J, Carruthers AJ
Citation: R v Romanic [2000] NSWCCA 524
Crown appeal.
Dangerous drive occasioning GBH.
22m with NPP of 18m to be served by way of PD.
Respondent was driving his vehicle when it crossed to the wrong side of the road & collided with an oncoming car, resulting in the front seat passenger of that car suffering a dislocated & fractured pelvis, broken teeth, chest pain from the impact of the seat-belt & bruising to the stomach. She was hospitalised for 2 weeks & underwent surgery for open reduction & internal fixation of the fractured pelvis. The driver of that car suffered a fractured ankle & chest pain from the seat-belt. A blood sample taken from the respondent gave a reading of 0.241 grams alcohol per 100 mls of blood. Sentencing judge found that at the time of the accident, the level of intoxication was such that the respondent had abandoned his responsibility for his conduct.
Failure to give consideration to general deterrence - excessive weight given to subjective circumstances - approach taken to discount for plea of guilty & finding of special circumstances.
Appeal allowed: resentenced to 12m with NPP of 9m.
611

MAYBERRY, Stephen Edward - CCA, 14.12.2000
Beazley JA, Greg James & Kirby JJ
Citation: R v Mayberry [2000] NSWCCA 531
Conviction appeal.
Appellant convicted on 11 counts of sexual assault; indecent assault; attempted homosexual intercourse; homosexual intercourse.
Aggregate MT 6y, AT 2y.
Offences allegedly committed against appellant's stepsons, some were alleged to have been committed against a child under 10 years, others against a child under 16 years & all allegedly committed 12-14 years earlier.
Appellant denied allegations, claiming them to be fabricated. He suggested a number of reasons why the complainants may have made the allegations against him, one being that they may have been motivated to assist their mother in relation to property proceedings or because of the appellant's authoritarian attitude towards them. In cross-examination, it was suggested to one of the complainants that by making the complaint he was motivated by a desire to obtain up to $50,000 by way of victim's compensation.
Delay - lack of corroborative evidence - complainants' credibility in issue.
Allegations - use of evidence - directions in relation to need for caution in scrutinising complainants' evidence inadequate - whether verdicts 'unsafe & unsatisfactory'.
Appeal allowed: new trial ordered on all counts.
612

LI, Bibiana Chi - NSW SC, Greg James J, 24.11.2000
Citation: R v Li [2000] NSWSC 1088
Remarks on sentence
.
Manslaughter.
The accused pleaded guilty to the manslaughter of her child. She killed him so that he would not be left behind when she committed suicide. There was evidence that at all times the accused was a devoted & caring mother, with psychiatric reports from forensic psychiatrists & treating psychiatrists revealing that she was suffering from endogenous depression, an illness which severely impaired her ability to reason. The severity of the depression was such as to verge upon insanity. No details in the remarks on sentence as to how the accused killed the child.
Tragic case - family break-up as a result of the offence - vulnerability - severe depression - prospect of self-harm in the future.
Sentenced to 5y GBB.
613

VAN TONGEREN, Cornelia Elizabeth - CCA, 11.12.2000
Heydon JA, Smart AJ, Ireland J
Citation: R v Van Tongeren [2000] NSWCCA 522
Conviction appeal.
1 x dishonestly obtain money by deception ($10,000); 2 x dishonestly obtain financial advantage by deception ($26,000).
Concurrent 50h CSO on each count.
Appellant was acquitted on 6 other counts of dishonestly obtaining an advantage or money by deception.
In each instance, appellant presented documents to banks purportedly authorising her to withdraw funds from the accounts of her mother-in-law.
Inconsistent verdicts - whether miscarriage.
Appeal dismissed.
614

WHITE, Ronald Keith - CCA, 30.11.2000
Wood CJ, Dunford J, Carruthers AJ
Citation: R v White [2000] NSWCCA 510
Conviction appeal.
1 x aggravated sexual intercourse.
Crown case was that the appellant took advantage of the complainant, aged 16 years at the time, when she was sleeping off the effects of a considerable quantity of alcohol which she consumed at a party at the appellant's home & that during the course of the sexual assault he occasioned ABH to her. The sole issue at trial was whether it was the appellant who committed the offence.
Absence of warning concerning identification evidence - delay in complaint - conviction unreasonable.
Appeal allowed: new trial ordered.
615

GROOM, Carla Phyllis - CCA, 15.12.2000
Barr & Greg James JJ, Smart AJ
Citation: R v Groom [2000] NSQCCA 538
As a consequence of the CCA directing a verdict of acquittal be entered in respect of a charge of knowingly take part in the supply of cannabis, the applicant applied for a certificate for her costs of the trial pursuant to s.2 of the Costs in Criminal Cases Act 1967 (NSW).
Application allowed: certificate granted.
616

KRC - CCA, 28.11.2000
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v KRC [2000] NSWCCA 541
Conviction and sentence appeal.
2 x indecent assault; 4 x sexual intercourse.
Aggregate MT 5y, AT 3y.
All offences related to sexual misconduct upon appellant's daughter who was aged under 10 on some of the occasions when she was sexually assaulted & aged between 10 & 16 years when other offences were committed upon her. All offences were committed whilst the complainant was under the appellant's authority. The complainant was aged 15 when she made a statement to police.
Guilty plea - application to set aside pleas of guilty - whether sentences excessive.
Appeal dismissed.
617

ZHANG, Ye - NSW SC, Simpson J, 1.12.2000
Citation: R v Ye Zhang [2000] NSWSC 1099
Judgment on application to have admissions excluded.
Accused was charged with 2 counts of murder. Following a special hearing conducted in accordance with provisions of Mental Health (Criminal Procedure) Act 1990, the jury was unable to agree on verdicts. A 2nd special hearing was fixed. Shortly before the date of the 2nd hearing & through no fault of the accused, his legal representation changed & his new advisers took a view of the admission of the Crown evidence radically different from that taken by their predecessors They requested a voir dire be conducted regarding the question of admission of evidence of admissions made by the accused which constituted virtually the entirety of the Crown evidence against him. The principal contention made was that his decision to make the admissions lacked the necessary quality of voluntariness that would permit their acceptance into evidence.
Evidence of admissions excluded.
618

McKELLAR, Brett Anthony - 11.12.2000
Fitzgerald JA, Whealy & Howie JJ
Citation: R v McKellar [2000] NSWCCA 523
Conviction appeal.
Armed robbery.
6y with NPP of 3y.
Three people were present in a hotel in Bourke when a male person entered & asked the wife of the licensee whether it was too late to purchase a carton of beer, to which she replied it was not & the male person indicated he would return with his mates. He then left. The woman said she was about 1 metre away from the man when she spoke to him. About 30 minutes later, 3 men burst into the hotel, the 1st yelling abuse & brandishing a stick. He ran towards the licensee & a customer who were sitting watching TV & attacked both of them. The 2nd man , according to the woman, was the same person who had entered the hotel earlier & spoken to her about purchasing beer. He jumped over the bar where she was standing, grabbed her & held a knife to her throat & told her that if she moved he would kill her. The Crown alleged that this man was the appellant. The 2nd man grabbed the cash register, wrenching it from its wall socket, then threw it to a 3rd man & it fell to the floor spilling coins. The 2nd man jumped over the bar, ran to the door & held it open while the 3rd man, carrying the cash register, ran outside with it. The other 2 then followed.
Identification evidence - photographic evidence - 'in custody of a police officer'- proceedings after trial - verdict unreasonable & cannot be supported by evidence.
Appeal allowed: verdict of acquittal entered.
619

SANDERSON, Aaron Patrick - CCA, 8.12.2000
Sheller JA, James & Dowd JJ
Citation: R v Sanderson [2000] NSWCCA 512
Crown appeal.
Maliciously inflict ABH with intent to have sexual intercourse.
4y with NPP of 2y.
The above offence was perpetrated upon a 46 year old single woman while she was sleeping in her own home. It was both deliberate & carefully planned. Respondent had injected himself with amphetamines, then armed himself with a ratchet & screwdriver. He removed his clothes & entered the woman's bedroom, jumped on top of her, placed a hand over her mouth & repeatedly struck her over the head with the ratchet. The victim was able to fight him off & disarm him. As a result of the attack, the woman suffered severe bruising to the left side of her face & was left with a permanent facial scar. Her life has been permanently changed by the physical & psychological injury the respondent caused her.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6y with NPP of 3y.
620

BILTON, Paul William - NSW SC, Bell J, 17.11.2000
Citation: R v Bilton [2000] NSWSC 1113
Remarks on sentence
.
AOABH; manslaughter.
Guilty plea entered on 1st count, not guilty plea on manslaughter count. Judge alone trial.
The above offences were perpetrated upon a young child who was a little over 2 years old at the time. The child was the son of the accused's girlfriend. The accused punched the child in the chest because he 'would not stop whingeing'He said he had not meant to hit the child as hard as he did & had only done so out of frustration. Some time later, he noticed the child was struggling to breathe & he said that he picked the child up & shook him & 'his head was going around and around'During the post mortem, 2 semicircular marks were noted on the left side of the child's head. The accused claimed these were the result of the accused throwing a tube of ointment at the child 2 days before the child's death. He said he twice threw the tube at the child.
Manslaughter - 7y with NPP of 4*y; AOABH - FT 6m (concurrent).
621

TURK, Andrew Mark - NSW SC, Bell J, 13.10.2000
Citation: R v Turk [2000] NSWSC 1071
Remarks on sentence
.
Murder.
Following some prior incidents where the deceased assaulted the accused, there was evidence that the accused actively sought out the deceased. On the night of the killing, the accused went to a female friend's home. While he was there, the deceased called at the home, asking for cigarettes & he saw the accused run & hide in a spare room. The deceased chased after him & punched him. The female said it was a hard blow. The deceased then went into the kitchen, then returned & threatened the accused with a knife. Shortly after this, both men left the home. A little later, the accused spoke with a group of young men outside some premises & told them of the earlier incident. He produced a knife housed in a plastic sheath & waved it around, saying 'I'll go and stab him. See how he likes it'A woman gave evidence that he entered her house where the deceased was seated on a couch, saying 'Do you think it's funny now?'She saw the accused crouching down making punching gestures towards the deceased. The woman went & hid in a bedroom. Shortly thereafter, she heard the accused leave the premises & she walked to the back of her premises & saw the deceased lying in a pool of blood outside the back door. Medical evidence showed he sustained 3 wounds to the chest.
Sentenced to 18y with NPP of 14y.
622

KING, Elliott Noel - CCA, 6.12.2000
Fitzgerald JA, Whealy & Howie JJ
Citation: R v King [2000] NSWCCA 507
Conviction appeal.
1 x armed robbery; 5 x aggravated sexual intercourse without consent.
Aggregate MT 7y, AT 5y.
This was essentially a circumstantial case.
The victim was a pregnant woman. She & her 3 year old son were asleep in the double bed in the main bedroom when she was attacked, her husband being away for the night. At no time did she recognise her attacker. At trial, appellant's counsel drew the absence of DNA evidence to the jury's attention in his address, however, he did not ask the judge to add the weight of his authority to that point. Approximately a year after the appellant's conviction, trial counsel believes his omission to ask the judge for such a direction must have been an oversight on his part because he is unable to think of any tactical reason for not so doing.
Whether the trial was fair - whether there has been a miscarriage.
Appeal dismissed.
623

ITAMUA, Donny - CCA, 4.12.2000
Sheller JA, Dowd J, Smart AJ
Citation: R v Itamua [2000] NSWCCA 502
Sentence appeal.
42 x armed robbery; 1 x assault with intent to rob whilst armed with dangerous weapon; + a Form 1 matter taken into account (possess loaded firearm).
Applicant was sentenced on the 14th charge, taking Form 1 offence into account, to MT 12y, AT 6y. On each of the remaining charges, he was sentenced to a concurrent FT of 3y.
Guilty pleas. Offences occurred over a 4 month period.
Imposition of correct sentence for each offence - application of Pearce v The Queen - need for legislative reform to enable Court to review all sentences when error in respect of principal sentence & other sentences manifestly inadequate - need for Crown to lodge appeals as to inadequate sentences - change of practice required pending legislative amendment.
Whether too much weight placed on general deterrence - whether insufficient weight placed on guilty pleas - whether insufficient weight given to subjective features.
Appeal allowed on 14th count: resentenced to 14y to be cumulative upon the 3y FT on other counts, NPP of 8y.
624

GERGIS, Karim - CCA, 6.12.2000
Sully, Bell & Whealy JJ
Citation: R v Gergis [2000] NSWCCA 508
s.5F appeal against 3 DC decisions. All 3 matters were as a result of the trial judge setting aside subpoenas issued on behalf of the applicant, except for the ordering of the limited production of material contained in the subpoenas.
Whether police collaborated with witnesses - whether any legitimate forensic purpose shown in relation to any material referred to in disputed paragraphs of subpoenas.
Leave to appeal dismissed.
625

BEDNARZ, Janice - CCA, 13.12.2000
Simpson & Howie JJ
Citation: R v Bednarz [2000] NSWCCA 533
Sentence appeal.
Solicit to murder.
6y with NPP of 3y.
Applicant sought to have her 2nd husband murdered. She hired a man to do the killing & she paid him $300. However, he spent the money but did not kill the applicant's husband. The applicant phoned the man & threatened to harm him if he did not immediately carry out the killing. The man contacted police. Police arranged for an undercover operative to contact the applicant & the applicant paid him $500 to assault & rob her husband. She supplied him with a photograph of her husband, as well as some other details. Later, at another meeting, the applicant asked the operative to kill her husband, suggesting ways of doing it.
The applicant has a son who was badly injured in a MV accident, as a result of which he suffers visual impairment, cognitive impairment with severe short-term memory loss & epilepsy. He also has severe behaviour abnormalities & is totally reliant upon his mother for his care.
Aged 58 at time of sentence - effect of imprisonment on 3rd parties - mental state of offender - general deterrence.
Appeal allowed: resentenced to 5y with NPP of 2y.
626

SCOTT, Brendan - CCA, 8.12.2000
Dowd & Howie JJ
Citation: R v Scott [2000] NSWCCA 535
Sentence appeal.
Malicious wounding.
4y 4m with NPP of 2*y.
Applicant was arraigned on a count alleging wound with intent to murder & an alternative count of malicious wounding. He pleaded guilty to the alternative count.
Applicant, an Irish national, attacked the victim, also an Irish national, after an afternoon of drinking & arguing. The victim had been staying with the applicant. Both had consumed a large amount of liquor. There were other occupants present when the attack upon the victim occurred. She went to the bedroom to phone her mother. A short time later, the applicant went into the kitchen, then into the bedroom. Other occupants heard the victim screaming & one of the males went into the bedroom to find the applicant attacking the victim. He tried to pull him away, but was unable to do so. He went back to the living room to get the help of another male & the 2 men returned to the bedroom. They finally managed to prise the applicant away from the victim. The applicant left the premises. The victim was bleeding about the neck, face & head. Police were called & the victim taken to hospital. She suffered multiple lacerations to her head, neck, upper chest, wrist & chin. She returned to Ireland. A report from a plastic surgeon indicated she was still bearing visible scars to her chin & chest, a number of them had become hypertrophic, were raised, pink in colour & unsightly. The surgeon believed they would probably improve in time with the use of steroid injections. Applicant's only explanation for the attack upon the victim was that he was intoxicated. He said he had no recollection of the attack.
Appeal dismissed.
627

DOUIHI, Pierre (aka Tabor) - CCA, 6.12.2000
Hidden & Howie JJ
Citation: R v Douihi [2000] NSWCCA 521
Sentence appeal.
1st indictment: 2 x steal cheque; 2 x use false instrument; + 6 Form 1 matters taken into account (3 x steal cheque; 3 x use false instrument) - concurrent 6m on each count.
2nd indictment: 1 x obtain benefit by deception; + a Form 1 matter (obtain benefit by deception) - 3*y with NPP of 18m,
Aggregate 3*y with NPP of 18m.
Offences on 2nd indictment committed before those on 1st indictment & involved a con-type operation whereby applicant put himself forward as a man of means with considerable financial dealings whereby he was able to finance a property project in which the victim was seeking to invest. Victim commenced negotiations to mortgage his own property to applicant. During this period, applicant ran up accommodation bills at a motel totalling $19,274.40 which amount would supposedly be settled once the financial dealings between the applicant & the victim were finalised. A similar arrangement was made involving $13,000 which the applicant borrowed from the victim. The matters the subject of the 1st indictment involved the applicant stealing cheque books from a filing cabinet in the office of an acquaintance. At the applicant's request, 5 of the stolen cheques were banked into accounts by persons known him & the proceeds were then paid by the account holders to the applicant. This resulted in the applicant obtaining $19,000.
Whether sentences too severe - failure to take into account total period of pre-sentence custody.
Appeal allowed: sentence for obtain financial benefit by deception quashed, resentenced to 3y 4m with NPP of 18m.
628

NGUYEN, Hoang Minh - NSW SC, Whealy J, 15.12.2000
Citation: R v Nguyen [2000] NSWSC 1177
Remarks on sentence
.
Murder; attempt escape from custody. (See also R v Nguyen [2000] NSWSC 563.)
The deceased was an inmate at the Silverwater Metropolitan Reception & Remand Correctional Centre where the accused was a prisoner. The killing took place when the accused & 2 of his cell mates were escorted with other prisoners to a section of the Industrial Centre where inmates were involved with manufacturing clothing & sheets for hospitals. Each inmate was assigned a tool bag. A number of the bags contained scissors. After an escorting officer had distributed the tool bags, he returned to his office. He then noticed about 10 prisoners had formed in a group. He approached the group & saw one of the accused's co-offenders holding a pair of bloody scissors in his right hand standing over another prisoner who was doubled over. He also noticed the other co-offender was holding a pair of scissors. The 1st co-offender began to strike the victim with the scissors to the upper part of his body while the other co-offender began to strike him to the lower part of the body. While the officer was trying to intervene, the accused came forward & struck the deceased at least twice in the stomach area with a pair of scissors. Other officers came in about this time to help subdue the co-offenders & the accused. All in all, 60 wounds were inflicted on the deceased with a number of these penetrating vital organs in the chest cavity.
The accused was in prison for other violent offences, as well as awaiting trial in relation to another murder charge & charges of malicious wounding & manslaughter for which he was subsequently convicted & sentenced.
For the instant murder charge, special circumstances were found & the accused sentenced to 18y with NPP of 9*y, for the attempt escape charge to 18m with a NPP of 6m cumulative upon the sentence for the murder charge.
629

LIN, David Min - CCA, 11.8.2000
Beazley JA, Wood CJ at CL, Greg James J
Citation: R v Lin [2000] NSWCCA 542
Sentence appeal.
1 x conspire to commit an offence under s.86(1A) Crimes Act 1914 (Cth) - people smuggling.
Sentenced to 12m, to be released on 2y GBB after 8m.
Applicant was one of a number of people arrested following an unsuccessful attempt to smuggle 69 Chinese illegal immigrants into Australia. They travelled to Australia on a vessel, arrangements for which had been put in place by a criminal syndicate in Hong Kong. It was planned to bring these people ashore in speed boats once in Australian waters off Sydney. A boat named 'Gruesome'was purchased for that purpose & a number of Sydney residents of Chinese origin were recruited to be involved in the conspiracy. Applicant was responsible for some logistic arrangements, including organising of driving of vehicles, identifying appropriate rental property, making arrangements for rental of a house, purchasing maps, launching the boat 'Gruesome'When that boat developed engine trouble, the applicant made arrangements to have it repaired. Sentencing judge considered the applicant's role in the enterprise to be very active, finding it to be important to the overall success of the venture.
Early guilty plea - assistance to authorities - contrition - personal deterrence.
Whether error in application of s.16G Crimes Act (Cth) - whether disparity in sentence with that of co-offender - whether appropriate case for PD.
Appeal dismissed.
630

MOON, Leonard Raymond - CCA, 14.12.2000 - 117 A Crim R 473
Fitzgerald JA, Whealy & Howie JJ
Citation: R v Moon [2000] NSWCCA 534
Sentence appeal.
4 x indecent assault upon person under 16.
MT 2y, AT 8m on each count, all sentences to be served concurrently.
Offences took place over 4 year period. Complainant & applicant were neighbours. 1st offence occurred when applicant invited complainant to play with a train set in his house - complainant enticed to masturbate him. 2nd offence took place on a boating trip when applicant again enticed complainant, together with another child, to masturbate him. The 3rd charge related to applicant forcing complainant to masturbate him in his car. The 4th charge occurred on a camping trip when applicant removed his pants, placed his penis between child's buttocks & moved in a backward & forward motion until he ejaculated. Applicant aged between 26 & 31 at time of offences.
Guilty plea - no prior convictions - most recent prior committed 18 years earlier - rehabilitated at time of sentence - no finding of special circumstances - whether sentences manifestly severe - whether sentencing discretion miscarried.
Appeal allowed: resentenced to 18m with NPP of 13m 10 d.
631

OZCELIK, Cumali - CCA, 27.11.2000 - 120 A Crim R 12
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Ozcelik [2000] NSWCCA 495
Conviction appeal.
1 x supply prohibited drug (heroin).
12m with NPP of 11m.
Police, suspecting the appellant was dealing in drugs, went to his premises. They met the appellant in the street & told him why they were there, requesting they be permitted to search his premises & his person, to which the appellant agreed. $2,855 was found in the appellant's wallet. Police were waiting for the arrival of an independent officer with a video camera to record the search. They entered the appellant's unit in order to secure them & one of the police officers accidentally tripped on an object concealed under the carpet. The carpet was lifted, disclosing a round metal tin containing 61 coloured balloon packages & 1 foil. Total weight of heroin therein was 12.32 grams. Electronic scales were located in a bedroom.
Submitted that trial counsel did not raise good character - whether miscarriage of justice.
Appeal dismissed.
632

PAM - CCA, 24.11.2000
Barr J, Carruthers AJ
Citation: R v PAM [2000] NSWCCA 494
Sentence appeal.
3 x aggravated act of indecency; 2 x aggravated indecent assault; 2 x use child for pornographic purposes.
Applicant sentenced to a total of 7 years. Sentencing judge declined to set a NPP.
Applicant preyed upon his friends' young children. Offences were carried out over a period of 4 years. The above offences came to light when the applicant asked a friend of his to feed his pet birds & generally keep an eye on his home while he was away visiting his mother. That friend came across a large number of pornographic videos in a cabinet in the applicant's bedroom, most of them involving teenagers. He also came across videos which the applicant had made of his friends' young children, showing them naked & always with the lens of the camera focused on their genitals. He was shocked to discover that in one such video was footage of his young 5 year old daughter. He reported the matter to police who executed a search warrant & seized the relevant material.
Paedophile - prior convictions for similar offences - need for proper supervision upon release from prison - error in declining to set NPP.
Appeal allowed: sentenced to 7y with NPP of 6y.
633

ARAYA, Enrique Jynaseo - CCA, 30.11.2000 - 119 A Crim R 100
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Araya [2000] NSWCCA 504
Sentence appeal.
1 x supply trafficable quantity prohibited drug (methylamphetamine).
MT 3y, AT 1y.
Police stopped the applicant who was driving a hired Toyota van. They searched the vehicle & found a cooler bag with a lock on the zipper top. The applicant was searched & police located keys which opened the lock. Inside the bag they found 1,050 grams of methylamphetamine, as well as a set of scales. At all times, the applicant denied knowledge of the drugs, claiming the van had been delivered to him the day before & that it had been organised by his son, the applicant was merely driving it to Sydney for a vacation. He said he saw the bag in the rear of the van while loading it before leaving Canberra. He also saw the keys on the floor & placed them in his pocket.
Applicant convicted under s.25(1) of the Drug Misuse and Trafficking Act 1985 - erroneously sentenced under s.25(2) of that Act - need for Court to re-sentence.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
634

FRIEDEMANN, Horst Hans - CCA, 6.12.2000
Simpson J, Carruthers AJ
Citation: R v Friedemann [2000] NSWCCA 516
Sentence appeal.
1 x escape lawful custody.
FT 12m, cumulative upon sentence applicant already serving.
Applicant was in prison serving a 4y MT, 3y AT for drug offences. He had been moved to the John Maroney Correctional Centre & shortly before the escape was working in the vicinity of the Centre, out of sight of officers of the Corrective Services. He suffered from a number of medical conditions & felt a strong sense of grievance that he was not receiving adequate treatment or attention for his medical problems. He thought the best he could do to obtain appropriate medical treatment was to leave the Centre. On the day of the escape, after having completed a morning's work, he sat down on a log & ate his lunch, then he walked out of the Centre's grounds. He went to Victoria & received a great deal of medical attention, being in hospital about 6 times in all. While in Victoria, he committed further drug offences & was arrested, he was sentenced in Melbourne to 20 months' imprisonment. A year later, he was extradited to NSW.
Aged 63 - medical problems - strong subjective circumstances - error by sentencing judge in overlooking need to comply with provisions of s.6(3) Sentencing Act 1989.
Appeal allowed: resentenced to 6m FT.
635

THORNBURY, Jamie Edward (Fuller) - CCA, 6.12.2000
Simpson J, Carruthers AJ
Citation: R v (Fuller) Thornbury [2000] NSWCCA 526
Sentence appeal.
1 x armed robbery.
MT 3y 8m, AT 1y 6m.
The above offence related to the robbery of a service station. The applicant was armed with a knife at the time. Applicant's parents were later charged with being accessories. The sentencing judge found that the facts pointed overwhelmingly towards the applicant's parents being strongly instrumental in fostering the applicant's attitude to crime.
Applicant was in custody at the time of the trial for the above offence, having been sentenced to MT 9m, AT 1y 3m for offences of BE&S & robbery. The sentencing judge in the instant case set the sentence he imposed to be cumulative upon the sentence the applicant was already serving.
Just under 21 at time of sentencing for instant offence - Aboriginal descent - criminal record going back 5 years.
Special circumstances - accumulation of MT upon pre-existing term - whether overlooked by sentencing judge.
Appeal allowed: resentenced to 5y with NPP of 2y 9m.
636

TAHA, Mustafa - CCA, 4.12.2000 - 120 A Crim R 161
YUKSEL, Sedat
Meagher JA, Hidden J, Carruthers AJ
Citation: R v Taha & Yuksel [2000] NSWCCA 520
Crown appeal.
Yuksel pleaded guilty to: 1 x armed robbery; + Form 1 matters (drive conveyance without consent, negligent drive, possess unauthorised firearm, possess unregistered firearm).
Taha pleaded guilty to 1 x armed robbery; + one Form 1 offence (being carried in conveyance without consent of owner).
Each received 5y with NPP of 2y 3m.
Respondents gained entry through a side door of a mixed business in Auburn by cutting the flyscreen door & opening a lock. They waited there until about 7 am when the victim opened the door from the residential section of her house which led into the front of the shop. She immediately saw the 2 men standing there. Yuksel was armed with a long barrelled rifle & was wearing a black balaclava over his head; Taha was armed with a small knife. One of them pushed the victim in the chest & forced her back into her house, saying they didn't want to hurt her, all they wanted was her money & cigarettes. The victim screamed & her husband opened the bedroom door, Yuksel raised the gun, pointed it at him, then kicked him in the groin. They then pushed the female victim into the bedroom where her elderly mother was standing near the window crying. One of the men pushed the mother over. Before eventually leaving the premises, respondents cut the telephone line. Also present in the house were four young children & the female victim's sister.
Whether error in not holding that weapon was loaded at the time of the robbery - retrospective operation of the doctrine of continuance applied.
Appeal allowed: Yuksel resentenced to 7y with NPP of 5y 3m; Taha resentenced to 6y, with NPP of 4y.
637

HARRIS, Mathew James - CCA, 20.12.2000 - 50 NSWLR 409; 121 A Crim R 342
Giles JA, Wood CJ at CL, James J
Citation: R v Harris [2000] NSWCCA 469
Crown appeal.
3 x murder; 1 x armed robbery in company.
40y with NPP of 25y.
Respondent strangled 3 people. All 3 killings were unprovoked. The only explanation given by the respondent for killing them was that he felt like doing it. The armed rob in company charge arose when the respondent & another robbed & threatened a woman in her home.
Schizotypal personality disorder and/or avoidant personality disorder with prominent depressive schizoid traits.
Aboriginal - deprived background - drugs & alcohol abuse - indifference to human life.
Operation of common law principle of 'worst case'and s.61 Criminal Procedure Act - truth in sentencing principle - consideration of subjective circumstances when sentencing.
Appeal allowed: sentences for murders in counts 2 & 3 quashed, respondent resentenced to life imprisonment.
638

ROTARIU, Peter - CCA, 6.12.2000
Simpson J, Carruthers AJ
Citation: R v Rotariu [2000] NSWCCA 546
Sentence appeal.
Supply prohibited drug (heroin); + offence of goods in custody taken into account.
MT 4y, AT 1y 4m.
Police executed a search warrant at applicant's premises & located 50.1 grams of heroin & $3,275 in cash. The money was the subject of the goods in custody charge. Street value of heroin was estimated at $25,050. Applicant told police that in April he sent $6,500 to his wife & children in Romania & admitted having supplied heroin on previous occasions in order to raise money for that purpose. Applicant made full admissions, however, he denied ever having used heroin. After a while he declined to participate any further in the interview. At all times he has accepted his guilt & pleaded guilty at the earliest opportunity.
Aged 56 at time of instant offences - Romanian by birth, lived in Australia since 1975 as an Australian citizen - wife & 2 children aged 7 & 2 remain in Romania.
Crown conceded that the sentence imposed was at the top of the range.
Whether sentence manifestly excessive - separation from family.
Appeal dismissed.
639

WEST, John - CCA, 6.12.2000
Simpson J, Carruthers AJ
Citation: R v West [2000] NSWCCA 545
Sentence appeal.
Assault with intent to rob whilst armed with offensive instrument.
6y with NPP of 3*y.
Applicant entered a pharmacy in Auburn on 3 occasions, the 1st two occasions he purchased or looked at roll of adhesive tape then left the pharmacy. He re-entered & selected a roll of tape & approached the counter behind which the female pharmacist was standing. The applicant handed over some coins to pay for the tape & the pharmacist opened the cash register, whereupon the applicant produced a blood-filled syringe & jumped over the counter, causing the pharmacist to fall backwards onto the floor.
Objective circumstances - subjective circumstances - progress towards rehabilitation - whether due regard given.
Appeal allowed:6y with NPP of 3y.
640

SINANOVIC, Hakija - CCA, 11.12.2000
Wood CJ at CL, Hulme & Greg James JJ
Citation: R v Sinanovic [2000] NSWCCA 394
Conviction and sentence appeal.
Receiving - MT 2y, AT 12m; 5 x dispose of stolen property - MT 2y, AT 12m.
Sentences were cumulative upon previous sentences.
Appellant received a quantity of stolen Westpac Bank Travellers' cheques. He subsequently disposed of a number of stolen Westpac Bank Travellers' cheques totalling $840,000.
Aged 34 at time of offences - prior offences of dishonesty - previously imprisoned.
Inadequate time to prepare case - failure to call Crown witness - denial of legal aid & denial of stay resulted in denial of natural justice - unfairness - prejudice.
Appeal dismissed.
641

FALZON, Saviour Joseph Junior - CCA, 14.12.2000
Beazley JA, Smart AJ, Ireland AJ
Citation: R v Falzon [2000] NSWCCA 530
Conviction and sentence appeal.
Manslaughter - MT 9y, AT 3y; drive in manner dangerous (subsumed in count 1); attempt escape pursuit by police officer - concurrent 4y FT.
Applicant pleaded not guilty to count 1 but guilty to counts 2 & 3.
Applicant's MV was involved in an impact when trying to escape pursuit by a police officer, resulting in the death of one person & GBH of another.
Misdirection as to elements of manslaughter relevant to instant case - gross inadequacy & incompetence of representation during trial - effect of incompetent advice when accused prepared to plead guilty - basis on which Court should proceed.
Conviction appeal dismissed.
Sentence appeal allowed on manslaughter charge: resentenced to 10y with NPP of 7*y.
642

EL-YOUSSEF, Elie - CCA, 15.12.2000
Barr J, Carruthers AJ
Citation: R v El-Youssef [2000] NSWCCA 481
Sentence appeal.
5 x robbery in company; + 4 x robbery in company on a Form 1.
Aggregate MT 7y, AT 3y.
Series of offences described by sentencing judge as 'an enormous criminal enterprise'All offences on the indictment involved robbery in company of banks in the western suburbs of Sydney. On all occasions, applicant & co-offenders were disguised & members of staff of the banks were threatened. Three Form 1 matters involved robbery in company of post offices & the other involved the robbery of a bank.
Aged almost 32 at time of sentence - on parole at time of subject offences - severe injury to left knee rendered applicant unfit to continue employment -continuing pain caused by injury led to addiction to narcotic substances - offences committed to support addiction which was costing $200 per day. - prior imprisonment.
No question of principle.
Appeal dismissed.
643

SINANOVIC, Hakija - CCA, 11.12.2000
Wood CJ at CL, Hulme & Greg James JJ
Citation: R v Sinanovic [2000] NSWCCA 395
Conviction appeal.
Receiving.
MT 13m, AT 14m.
An opal & diamond ring, worth in excess of $10,000, was stolen during a burglary of an antique store. Appellant pawned an opal & diamond ring approx 7 months later.
Error in not allowing adjournment to obtain legal representation - error in allowing Crown to allege recent possession - error in directions - confusing - prejudicial - verdict 'unsafe & unsatisfactory'.
Appeal dismissed.
644

SINANOVIC, Hakija - CCA, 11.12.2000
Wood CJ at CL, Hulme & Greg James JJ
Citation: R v Sinanovic [2000] NSWCCA 396
Conviction appeal.
Fraudulent misappropriation.
MT 2y 5m 12d, AT 10m 1d (pre-sentence custody taken into account).
Appellant received & subsequently misappropriated for his own use $27,800 which was to be invested on behalf of another person in the acquisition of an interest in a restaurant.
Error in refusal of application for adjournment or stay - miscarriage by reason of introduction of material suggesting bad character & comments concerning accused & conduct of trial - error in admitting evidence in chief & rejecting cross examination of Crown witness - summing up unbalanced - error in not allowing adjournment to allow alibi evidence to be obtained.
Appeal allowed: retrial ordered.
The setting aside of the above conviction necessitated adjustment of the sentences imposed upon appellant for matters the subject of other appeals, resulting in the dates being varied for those sentences.
645

SINANOVIC, Hakija - CCA, 11.12.2000
Wood CJ at CL, Hulme & Greg James JJ
Citation: R v Sinanovic [2000] NSWCCA 397
Conviction appeal.
Dishonestly obtain by deception.
MT 16m, AT 12m.
The above offence involved the appellant obtaining a diamond ring by deception in that he undertook to deposit $27,000 into the bank account of a jewellery store.
Appellant represented himself on appeal.
Grounds of appeal stated as follows: trial by ambush - trial without instructions - no preparation - denied assistance - interference with jury members & Crown - improper orders regarding defence's witness evidence - prejudice & discrimination.
Appeal dismissed.
646

SYMSS, Shane Antoni - NSW SC, Simpson J, 28.11.2000
MASSON, Leonard James
Citation: R v Symms & Masson [2000] NSWSC 1089
Judgment on application for separate trials.
Both accused committed for trial for murder, the joint trial fixed to commence on 23.4.2001. Applicant Symss applied for a separate trial. The application was supported by Masson & opposed by the Crown.
Crown case that the deceased was a 75 year old widow living alone in Wagga Wagga. Her body was found on the floor of her lounge room by a neighbour & a post mortem examination revealed that death had been caused by smothering. There were also stab wounds to her neck.
Application refused.
647

VALERA, Mark Mala aka Mark Jack Van Krevel - NSW SC, Studdert J, 21.12.2000
Citation: R v Valera [2000] NSWSC 1220
Remarks on sentence
2 x murder.
Accused pleaded not guilty to murder but guilty to manslaughter, which the Crown did not accept.
Accused murdered 2 men. He decapitated the first victim, mutilated & disembowelled the body. The 2nd victim had 3 tie pins inserted in his left cheek, left eye & right eyelid. His body was mutilated. The 1st murder was a random act, with the accused feeling like killing somebody. The 2nd murder was motivated by anger at the victim's alleged child molestation.
Operation of common law principles of 'worst category'of case - effect of s.61 Crimes (Sentencing Procedure) Act - consideration of subjective circumstances - absence of jurisdiction to set NPP for sentence of life imprisonment for murder.
Sentenced to 2 life sentences.
648

KO, Yun Young - NSW SC, Kirby J, 12.12.2000
Citation: R v Yun Young Ko [2000] NSWSC 1130
Remarks on sentence
Accused was indicted for the murder of her husband. She pleaded not guilty of murder but guilty of manslaughter, which the Crown accepted upon the basis that the accused was suffering from substantial impairment due to an abnormality of mind.
Autopsy upon victim disclosed 17 stab wounds, penetrating the chest neck & head.
Accused, born in Korea, was deeply religious. Her marriage to the deceased was extremely unhappy with significant brutality & degrading conduct towards her on the part of the deceased. Amongst other things, she was burned by cigarettes placed near her breasts, the marks of which still remain. She lived an isolated life & was treated like a slave by her husband. She had 2 abortions, both at the insistence of her husband.
Major depressive illness of melancholic depth & style - significant symptoms of chronic depression, requiring long-term antidepressant treatment & psychotherapy - in need of ongoing psychiatric care - special circumstances.
Sentenced to 4y with NPP of 18m.
649

BUTLER, Lisa - CCA, 4.12.2000
Simpson & Howie JJ.
Citation: R v Butler [2000] NSWCCA 525
Sentence appeal.
Attempt escape from lawful custody.
MT 12m, AT 6m (special circumstances found).
Applicant was serving a term of imprisonment at Mulawa Correctional Centre for offences of larceny & goods in custody. Her parole had been revoked & she was serving the AT. It was while she was serving that AT that she & a co-offender attempted the escape.
Her explanation at trial for the escape was that she was concerned for the safety of her young daughter who was in the custody of the applicant's father. She said that because it was New Year's Eve she was afraid her father might take the child to the city where she would be in danger. The sentencing judge was not satisfied that her explanation amounted to any compelling reason that would have a bearing on the seriousness of the offence.
Aged 20 at time of offence - lengthy criminal history, mostly stealing or shoplifting - sexually assaulted as a child - drug addiction.
Error in not making order for release at expiration of MT - parity - whether sentence manifestly excessive.
Appeal allowed: resentenced to 18m with NPP of 9m.
650

MAI, Kim Van - CCA, 19.12.2000 - 119 A Crim R 327
Meagher JA, Hidden & Howie JJ
Citation: R v Kim Van Mai [2000] NSWCCA 517
Conviction appeal.
Knowingly concerned in importation of heroin.
This appeal followed a 2nd trial.
Appellant did not give evidence at trial. At issue was the mental element necessary to establish the crime which involved proof of the appellant's knowledge, not only of the presence of a proscribed drug, but also of its importation. Knowledge of the former might be inferred from the circumstances, but not necessarily of the latter.
Whether error in trial judge's directions about significance of appellant not giving evidence.
Appeal allowed: new trial ordered.
651

MUNRO, Christopher Brett - NSW SC, Badgery-Prker AJ, 19.12.2000
Citation: R v Munro [2000] NSWSC 1225
Remarks on sentence
Manslaughter.
Accused was acquitted of murder & convicted of manslaughter.
The charge related to the death of the deceased as a result of injuries inflicted upon him by the accused. The deceased, together with his brother, went to the home of the accused, the deceased armed with a cricket bat. The deceased began to swing the cricket bat at the accused at or above shoulder height, however, the accused was able to evade the blows. A struggle took place & the accused was able to take possession of the cricket bat. He struck the deceased with the bat 2 or 3 times & hit him another 4 times or more as he was running down the path. The deceased fell to the ground & the accused continued hitting him.
Home invasion - self-defence - provocation.
Sentenced to 3y with NPP a couple of days short of 1y.
652

MAIDEN, Stephen Arthur - CCA, 13.12.2000
Sully , Whealy & Howie JJ
Citation: R v Maiden [2000] NSWCCA 519
Appeal against severity of sentence in relation to redetermination of a life sentence under s.13A Sentencing Act 1989.
Murder.
MT 18*y, AT 6y.
Accused & co-offender were escaped convicts at the time of the murder. They picked up a young hitchhiker (aged 17), lured him into the bush & killed him by breaking his neck. They then buried his body in a shallow grave. This was a premeditated murder for no reason.
Aged 21 at time of murder - lengthy criminal history.
Reasonable rehabilitation - contrition.
Appeal dismissed.
653

UZABEAGA, Juan Francisco - CCA, 24.11.2000 - 119 A Crim R 452
Simpson, Dowd & Bell JJ
Citation: R v Uzabeaga [2000] NSWCCA 381
Sentence appeal.
1 x knowingly concerned in importation of commercial quantity cocaine - 15y with NPP of 11*y;
1 x knowingly concerned in importation of trafficable quantity cocaine - FT 6y (concurrent).
Applicant pleaded guilty to the above offences. An agreed statement of facts was tendered which referred to his involvement being at a lesser level than that of co-offenders. Sentencing judge found otherwise.
Parity - sentencing judge's findings inconsistent with agreed statement of facts.
Appeal allowed with respect to count 1: resentenced on count 1 to 12*y with NPP of 7*y.
654

HAMMOUD, Nedhal - CCA, 15.12.2000 - 118 A Crim R 66
Mason P, Simpson & Dowd JJ
Citation: R v Hammoud [2000] NSWCCA 540
Crown appeal.
(1) Conspire to supply large commercial quantity heroin - MT 2*y, AT 2*y;
(2) Conspire to supply commercial quantity cocaine - FT 2y (concurrent);
(3) Possess unlicensed firearm - 12m (concurrent);
(4) Accessory after the fact to murder - MT 6m (cumulative), AT 6m (2 x conceal serious offence on a Form 1 taken into account);
(5) Accessory after the fact to wounding with intent to cause GBH - MT 6m, AT 6m (concurrent with (4) above).
50% discount for assistance to authorities given on the accessory sentences.
The drug conspiracy charges involved criminality of a high order.
Accumulation of sentences - concurrent sentences - transparency & totality - whether sentence excessively inadequate.
Appeal allowed: resentenced to overall 8*y with NPP of 6y.
655

HMB - CCA, 4.7.2000
Meagher JA, Sperling & Adams JJ
Citation: R v HMB [2000] NSWCCA 554
Conviction appeal.
Robbery with violence.
3*y with NPP of 18m.
Crown case involved a robbery & assault upon a console operator at a Mobil Service Station. The operator was hit with an axe by one of the co-offenders.
The only issue at trial was the question of identification.
Where identification made from a photograph - time lapse between offence & identification - admissibility - jury direction.
Appeal dismissed.
656

SRL - CCA, 25.2.2000 - 116 A Crim R 150
Hidden J, Carruthers AJ
Citation: R v SLR [2000] NSWCCA 436
Sentence appeal.
1 x AOABH; 2 x steal from a person; 1 x steal from a dwelling.
10m to be served in a juvenile detention centre with a recommendation that the centre 'do what they can to make it easier for her with the approach of her giving birth to the child and thereafter'.
Pregnancy - inability keep child with mother in juvenile detention centre - transfer to adult prison to prevent separation - s.24(b), (c) Children (Detention Centres) Act 1987 (NSW).
Appeal allowed insofar as applicant to serve her sentence in a juvenile detention centre 'until she gives birth to her proposed child and she thereafter be transferred to an adult prison'.