Short Notes 2001

 



 

1

DINH, David Duy Thai - CCA, 14.12.2000
Fitzgerald JA, Simpson & Howie JJ
Citation: R v Dinh [2000] NSWCCA 536
Application for leave to appeal under s.5F(3) of the Criminal Appeal Act 1912 against an order for a joint trial. Crown alleged applicant took part in the murder of a State politician (John Newman) as part of a joint criminal enterprise with a number of others. On 15/12/1999 an order was made that applicant be tried separately from his 2 co-accused, having regard to the possible prejudice to the applicant, in that the case against him was more limited than against his co-accused & relied upon the evidence of one person. The trial of the 2 co-accused began in February 2000 & concluded in May 2000 with the jury unable to reach a unanimous verdict. Following that trial, the Crown made an application for joint trials of the 3 accused. That application was granted.
Leave granted, appeal dismissed.
2

ROWE, Robert James - CCA, 19.1.2001 - 50 NSWLR 510; 118 A Crim R 421
Fitzgerald JA, Ireland J, Smart AJ
Citation: R v Rowe [2001] NSWCCA 1
Stated case for determination on question of law arising from the trial judge's decision to admit evidence of a police officer of a conversation which the officer said he had with the appellant. The appellant gave evidence denying that the conversation had taken place. Appellant was charged with knowingly harbouring an escaped prisoner. Upon arrest, & after talking on the phone to his solicitor, appellant told the police officer that he would not speak to him until his solicitor arrived. Despite this, the police officer took the appellant to the interview room & proceeded to interrogate him. No other police officer was present.
Question: 'Did I err in law in not exercising my discretion to exclude the evidence of the conversation between the appellant and Detective Michael Fitzgerald held at
Maroubra Police Station?
'Answer: 'The evidence of the conversation between the appellant and Detective Michael Fitzgerald held at Maroubra Police Station is inadmissible by reason of
s.424A of the Crimes Act 1900'.
3

DAWSON, Khan John - CCA, 18.12.2000
Hulme & Barr JJ
Citation: R v Dawson [2000] NSWCCA 399
Sentence appeal.
22x sexual assault offences (sexual intercourse, sexual intercourse without consent, aggravated indecent assault, unlawfully administer stupefying drug with intent to commit indecent assault).
Aggregate MT 10*y, AT 3y.
There were 5 complainants, some of whom were aged between 14, 15. The applicant was in authority at the time of 9 of the offences. The charges spanned 7 years of sustained sexual exploitation. The applicant was a singing teacher & was also a friend of the parents of 2 of the complainants.
Whether sentences manifestly excessive - totality - abuse of trust - insufficient weight given to pleas of guilty - absence of relevant criminal record.
Appeal dismissed.
4

PYE, Damon Harley - CCA, 21.12.2000
Beazley JA, Smart AJ, Ireland AJ
Citation: R v Pye [2000] NSWCCA 544
Conviction and sentence appeal.
Armed robbery.
MT 3y, AT 2y.
Crown alleged that during the early hours on the morning of the offence, appellant & one other person, armed with a gun, a baseball bat & knife, entered the home of the victim. It was alleged that one of the accused had entered the victim's bedroom & threatened & robbed her of her wallet, 3 credit cards & $300 in cash.
Join criminal enterprise - directions to jury - character evidence.
Appeal dismissed.
5

OLIG, Shane Eugen - NSW SC, Adams J, 21.12.2000
Citation: R v Olig [2000] NSWSC 1242
Remarks on sentence.
Manslaughter.
The deceased died as a result of a fire in her home which was lit by the accused. Shortly after the fire, the accused made a number of statements to police & doctors admitting he had lit the fire. He gave several accounts of the surrounding circumstances. At trial, accused repudiated those admissions & claimed the fire had been lit by the deceased.
No special circumstances demonstrated.
Sentenced to 12y with NPP of 8y.
6

LAGOPODIS, Dimitris - NSW SC, Sully J, 11.12.2000
Citation: R v Lagopodis [2000] NSWSC 1201
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant was one of 4 adults who deliberately engaged in a protracted assault, both physical & mental, upon a 17 year old boy who was a drug addict & who was totally incapable of defending himself.
Rehabilitation - remorse - not a continuing danger to society.
Application allowed: resentenced to 18y with NPP of 14y.
7

NGUYEN, James (aka Sang Duc NGUYEN) - CCA, 8.12.2000
Dowd & Howie JJ
Citation: R v Nguyen [2001] NSWCCA 2
Sentence appeal.
Supply commercial quantity heroin.
MT 4*y, AT 18m.
Applicant & his wife were travelling from Melbourne to Sydney in a hired car when they were stopped by police who carried out a breathalyser test on the applicant. Both the applicant & his wife appeared nervous. Police asked to view a few items in the vehicle, including a lady's handbag which contained a large amount of money & a set of electronic scales. Upon searching the car, they located a number of packages of heroin.
Gross weight of drug totalled 727 grams, averaging 77.25% pure heroin, with a street value of $218,000. The amount of money in the handbag was $13,006. Applicant claimed the money was the remainder of some money he had won at the Melbourne Casino prior to travelling to Sydney.
Parity - whether sentence excessive - no justifiable sense of grievance - no special circumstances.
Appeal dismissed.
8

BELLAMY, Bradley Dean - NSW SC, Wood CJ at CL, 11.12.2000
Citation: R v Bellamy [2000] NSWSC, 1217
Remarks on sentence.
Manslaughter; armed robbery; aggravated BE&S.
Crown case in relation to offence of manslaughter largely based upon accused's own admissions. Accused was invited to deceased's home. He believed he would get some drugs there. The 2 men went to deceased's bedroom where the deceased offered the accused a number of Normison tablets which he then ingested. He fell asleep on the deceased's bed. When he awoke a short time later, he claims the deceased was standing with his pants down & was masturbating while a pornographic movie played in the background. Accused said he told deceased he was leaving, whereupon deceased moved towards him. Accused punched deceased & at some point began kicking him in the throat. After some time, deceased remained on the floor. Upon finding deceased had no pulse, he pulled deceased's pants up & placed the body face down on the bed. Accused then went into the bedroom of deceased's 88 year old mother, placed a T-shirt over her head, a bra around her neck & held a 27 cm blade knife to her throat & threatened her. He stole 2 gold weddings rings from her hand, $80 to $90 in cash as well as another ring with an amethyst stone. He then cut the phone lines & left the premises. The proceeds of the robbery were used to purchase heroin.
Sentenced to: aggregate total of 10y with NPP of 7*y.
9

TOOTH, William Richard - CCA, 22.12.2000
Barr J, Carruthers AJ
Citation: R v Tooth [2000] NSWCCA 482
Sentence appeal.
8 x obtain financial advantage by deception; 2 x make false statement; + similar matters on a Form 1.
Aggregate MT 5y 3m, AT 9m.
Applicant & another were partners in a company called Crop Air Leasing Pty Ltd, which went into liquidation in 1992. The subject offences were committed over a period from 1989 to 1992. Applicant & co-offender submitted fictitious invoices to finance companies showing inflated prices in order to obtain funds for the purchase & financing of 8 separate aircraft. Overpayments paid to the applicant & his partner amounted to $1,600,000. Applicant & co-offender also provided bank with false documents representing the Applicant as someone else & signed a loan document. The true value of the items being financed was far less than that represented to the bank. As a consequence, the applicant & co-offender received $50,000 between them on the 1st occasion & $38,000 on the 2nd occasion. The bank suffered a loss of $763,000.
Guilty plea - whether sentences manifestly excessive - relationship between discount for assistance to authorities & special circumstances considered - parity.
Appeal allowed: resentenced to aggregate MT 4y 6m, AT 9m.
10

GRAFF, Julius - CCA, 30.1.2001
Giles JA, Hulme & How ie JJ
Citation: R v Graff [2001] NSWCCA 3
Sentence appeal.
Robbery in company; murder; + 2 further offences taken into account (AOABH, maliciously inflict GBH).
Murder & offences taken into account - MT 18y, AT 5y;
Robbery in company - FT 8y.
The robbery in company & the murder arose out of two separate offences involving the applicant & others attacking, robbing and beating taxi drivers. The second victim in these attacks died as a result of the injuries he sustained. One of the offences taken into account involved an assault & beating of a person at Bankstown Railway Station and the other involved a severe beating & assault upon another person who suffered permanent & severely handicapping brain damage as a result (on bail at the time this offence occurred). Sentencing judge found applicant was the leader in all attacks.
Parity - whether special circumstances.
Appeal dismissed.
11

HENMAN, Gregory Charles - CCA, 1.2.2001
Giles JA, Hulme & Bell JJ
Citation: R v Henman [2001] NSWCCA 4
Conviction appeal.
2 x sexual intercourse without consent with person under 10; 1 x indecent assault with person under 10.
No mention of sentence imposed.
All charges related to same complainant, either the appellant's niece or step-niece. Two offences involved digital penetration which complainant asserted occurred when she was 4 & 5. The 3rd offence involved appellant allegedly groping at her breasts & around her vaginal area outside her clothes during the course of a family game. Complainant's mother came across a journal entry complainant made when she was 15. She discussed this with complainant & subsequently confronted appellant. Police were contacted. There was no independent corroboration of complainant's evidence. Appellant was charged with another sexual offence, however, the jury found him not guilty on this charge. At trial, the journal was allowed into evidence without attention being given to the requirement in the Evidence Act that its admission required leave.
Failure to give directions in accordance with Longman (such a direction was sought at trial, but the judge refused to give it) - delay - whether verdicts unreasonable.
Appeal allowed: conviction quashed.
12

STANOEVSKI v THE QUEEN - HC, 8.2.2001 - 202 CLR 115; 75 ALJR 454
Citation: Stanoevski v The Queen [2001] HCA 4 (8 February 2001)
Admissibility of character evidence in criminal trials.
Appellant was a solicitor convicted of conspiracy to defraud. In response to his evidence of good character, the Crown was permitted to cross examine on a report provided to the Law Society as to an allegation the appellant had forged the signature of a client on a Family Court document in a prior, unrelated matter. The cross examination took up a considerable amount of time.
Held: Judge erred in granting leave to cross examine without considering s.192(2) Evidence Act - s.192 details what must be taken into account when considering a grant of leave pursuant to Evidence Act, including s.112. Failure to do so resulted in miscarriage of justice. Gaudron, Kirby & Callinan JJ suggested cross examination unfairly prejudicial & probably should not have been allowed.
Appeal allowed, conviction quashed, new trial ordered.
13

LIN, Feng - CCA, 9.2.2001 - 119 A Crim R 194
Mason P, Hidden J, Carruthers AJ
Citation: R v Feng Lin [2001] NSWCCA 7
Sentence appeal
Taking part in the coming to Australia of non-citizens - s.233(1)(a) Migration Act 1958 as amended ('people smuggling').
4y with NPP of 2y 4m.
Applicant worked for Chinese shipping company, which provided a service of container vessels between Chinese & Australian ports. Applicant was a deck officer on one of these vessels & it was he who, at the request of a man in China, secreted 3 men in a cargo hold of the ship. His expected reward was $US3,000 per person. He was aware of the illegality of his actions. During the journey to Australia, the Chief Officer came upon the men during a routine check of the hold & the matter was reported to the ship's Master. Once the ship berthed at Port Botany, the 3 stowaways & the applicant were arrested by Federal Agents.
Applicant came from a disadvantaged background, however, he demonstrated a high intelligence & determination to succeed, resulting in an excellent High School record. Undertook further studies then obtained a cadetship with a shipping company. Shipping company's records show he discharged his duties in an efficient & responsible manner during the course of some 5 years with the company.
Guilty plea at earliest opportunity - contrition - complete co-operation with authorities - tendered in court was a Statement of Assistance under the hand of a Federal Agent which outlined this co-operation - exceptional subjective circumstances.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 1y 8m.
14

CIKOS, Sandor - NSW SC, Dunford J, 9.2.2001
Citation: R v Cikos [2001] NSWSC 35
Remarks on sentence.
3 x murder.
Accused was convicted of the murder of his wife & 2 young sons. Accused contacted police on his return from work & informed them he had found the 3 deceased dead in their beds. The wife had 2 wounds at the rear left side of her head, consistent with the use of a blunt instrument & all 3 had plastic bags over their faces. Some of the wife's jewellery was missing but there was no sign of forced entry. The jewellery was later found in the accused's lunchbox & one of the bracelets had blood stains on it which were later identified as being that of the deceased. Fibres & hairs were discovered on the wife's hands. The fibres matched the shorts worn by the prisoner on that day. Fingernail clippings from the wife were identified as containing the accused's DNA. During an interview, police observed what appeared to be fresh scratches on the accused's body & the deceased's blood was found on his shorts. Pathologist's report stated that wife's death resulted from a combined effect of suffocation & a blunt force head injury whilst the death of the 2 boys was attributed to suffocation.
No priors - been in regular employment all his life - a good provider - entitled to appropriate discount for guilty plea.
Sentenced to 21y, with a NPP of 15*y.
15

BACON, Kane David - CCA, 13.12.2000 - 120 A Crim R 28
Simpson J, Carruthers AJ, Smart AJ
Citation: R v Bacon [2000] NSWCCA 549
Sentence appeal.
1 x AOABH - 6m FT - applicant had pleaded guilty to this charge in the LC.
1 x supply prohibited drug on ongoing basis (amphetamine) - MT 2y, AT 1y (special circumstances found, pre-sentence custody taken into account) - cumulative upon FT.
The supply offence was committed on 3 days over a period of 1 month. On each occasion, the amphetamine also contained methylamphetamine & on one occasion also contained pseudoephadrine. Amounts supplied were 13.53; 27.6 & 27.4 grams, respectively, giving a total of 68.53 grams. The drug content of the substances supplied was very low, with percentages ranging from 0.5% to 6.17%. The recipient on each occasion of the supply by the applicant was an undercover police officer who recorded their conversations pursuant to a warrant issued under the Listening Devices Act 1984.
Voluntary cessation of trading in drugs before applicant became aware he had been dealing with a police officer - strong evidence of remorse & contrition - positive sign of rehabilitation - whether sentence excessive.
Appeal allowed: resentenced to 3y with NPP of 18m.
16

BROWN, Harold - CCA, 8.12.2000
Simpson & Dowd JJ
Citation: R v Brown [2000] NSWCCA 548 revised - 7/02/2001
Sentence appeal.
Aggravated BE&S in company; + a further count of B&E a dwelling with intent to commit a serious indictable offence taken into account.
4y with NPP of 2y.
Applicant aged 17y at time of offence - was arrested & charged when he was still under 21y. Sentencing judge elected to sentence him as an adult.
Applicant & 2 others violently assaulted an elderly woman, both outside & inside her home. They also assaulted her adult daughter. A handbag & cordless phone were taken. At one point the applicant produced a small dark semi-automatic pistol (could have been a replica or toy) & threatened the elderly woman.
Aboriginal - deprived background - suffered parental neglect due to alcoholism - exposure to inter-familial violence & family breakdown - lengthy criminal history - drug & alcohol problem - cognitive deficits - psychiatric assessment that applicant operating at functional age of 5y 8m; at a level of 9y 4m in daily living skills; at a level of 5y 11m in socialisation skills - significant risk of suicide - urgent need for psychological & psychiatric intervention.
Very strong subjective circumstances - whether sentence manifestly excessive - Fernando referred to - error in sentencing - difference in s.18 & s.19 ( Children (Criminal Proceedings) Act) - time spent in adult prison.
Appeal allowed: resentenced to 4y with NPP of 15m with an order that the sentence be served in a detention centre.
17

LEMENE, Remy - CCA, 9.2.2001 118 A Crim R 131
Simpson & Dowd JJ
Citation: R v Lemene [2001] NSWCA 5
Sentence appeal.
Counts 1-4 & 6-10 - robbery & armed robbery; Count 5 - BE&S in circumstances of aggravation; + 32 serious offences taken into account.
Aggregate MT 16y, AT 12y.
Aged 30 at time of appeal - extensive criminal record - offences committed whilst on bail - unstable & insecure childhood - sexually assaulted as a child - suffered bashings from both his non-biological father and his mother, occasionally resulting in applicant being admitted to hospital - these bashing incidents led to him having nightmares & headaches - left home at age 14 & lived on streets - limited education - disruptive behaviour - significant number of years spent in institutions - anti-social personality disorder - substance abuse.
Error in applying Pearce v the Queen conceded - the need to fix an appropriate sentence for each offence - accumulation - concurrence - totality - error in taking matters into account - application of Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: resentenced to aggregate total of 12y with NPP of 8y.
18

IBRAHIM, Romeo - CCA, 8.2.2001
Sheller JA, Grove & Kirby JJ
Citation: R v Ibrahim [2001] NSWCCA 14
Sentence appeal.
Supply trafficable quantity cocaine - MT 2*y, AT 2*y;
supply trafficable quantities cannabis - MT 9m, AT 9m (concurrent).
Following receipt of some information, police intercepted applicant's car. Upon searching it, they located the cocaine which, when analysed, yielded approx 160 grams pure cocaine. They also located $24,000 in cash & some cannabis which was boxed & gift wrapped. In the car with the applicant was a woman with whom the applicant was having a relationship. Issue at trial was whether the applicant himself was in possession of the drugs.
Medical condition (serious coronary problem) - relevance to quantum of sentence - inference by sentencing judge of significant involvement by appellant in drug trade - whether sentence manifestly excessive.
Appeal dismissed.
19

BAILEY, Paul Wayne - CCA, 14.2.2001
Wood CJ at CL, Dunford J, Carruthers AJ
Citation: R v Bailey [2001] NSWCCA 10
Conviction and sentence appeal.
Dangerous drive causing death.
MT 3y, AT 1y.
There were 2 issues at trial:
(1) whether the appellant was the driver of the motorcycle at the relevant time, with the appellant claiming he was the pillion passenger & the driver was his friend;
(2) whether the Crown had established that the manner of driving at the time of the impact causing the death of the victim was dangerous to other persons.
There was eyewitness evidence that speed was involved. There was also eyewitness evidence that the pillion passenger was wearing long dark trousers & a black long-sleeved jacket & that he had long hair, whereas the appellant had short hair & was wearing light coloured shorts & a black T-shirt.
Directions - evidence - inconsistency - elements of offence - need for trial judge to specify matters relied upon as constituting dangerous drive - whether verdict 'unsafe & unsatisfactory'- whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 3y with NPP of 2y.
20

REES, Jason Lee - CCA, 16.2.2001
Sheller JA, Grove & Kirby JJ
Citation: R v Rees [2001] NSWCCA 23
Conviction appeal & Crown appeal.
Manslaughter.
4y 3m, with NPP of 3y 3m.
Appellant & co-offender were charged with murder. At the start of the trial, after the court assembled, the Crown prosecutor informed the judge that an indictment would be presented against co-offender containing 2 counts (murder & robbery in company). The Crown anticipated the co-offender would plead not guilty to murder but guilty to robbery. In that circumstance, the plea would be accepted in full discharge of the indictment. The Crown informed the court that it proposed to call the co-offender in the appellant's trial. After the co-offender had been sentenced, the appellant was charged with murder. At the conclusion of the appellant's trial, the jury were discharged without reaching agreement & the appellant was remanded for a new trial which ultimately resulted in a conviction for manslaughter. The killing occurred during the course of a robbery of a home. The victim was a small-time drug dealer.
Directions to jury if unsatisfied which was actual assailant - test of liability for manslaughter by participant in extended joint criminal enterprise - leave to cross examine unfavourable Crown witness - directions concerning lies - warning concerning evidence of co-offender - whether verdict 'unsafe & unsatisfactory'.
Crown alleged sentence manifestly inadequate.
Crown appeal dismissed.
Conviction appeal allowed: new trial ordered.
21

PAVLOV, Peter Andres - CCA, 12.2.2001
James & Whealy JJ
Citation: R v Pavlov [2001] NSWCCA 13
Sentence appeal.
1 x supply prohibited drug (heroin).
6y with NPP of 4y.
Applicant supplied an undercover police officer with heroin on 5 occasions over a 1 month period (total of 7.05 grams). On all 5 occasions the undercover police officer approached the applicant at his home, whereupon the applicant supplied the officer with heroin.
Age 50 - long-term heroin addict - prior convictions - former alcoholic - mental disorder - sole-carer of son.
Subjective factors - parity - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3*y with NPP of 2*y.
22

DAWSON, Glen Michael - CCA, 5.2.2001
Giles JA, James & Hulme JJ
Citation: R v Dawson [2001] NSWCCA 11
Conviction and sentence appeal.
2 x aggravated sexual assault.
MT 4y, AT 2y.
Appellant also stood trial for 1 x malicious damage to property, however, the jury returned a verdict of not guilty.
Appellant & complainant, although separated at time of offences, had lived in a de facto relationship & then marriage for approx 15 years. They had a son who suffered from severe cerebral palsy. At the time of the subject offences, he was aged about 5* years. On the night of the offences, appellant looked after the son at the complainant's flat while the complainant went out. Upon her return to the flat, the appellant proposed sexual intercourse, which the complainant refused. The appellant then held a Stanley knife to her neck & forced her to engage first in oral intercourse & then vaginal intercourse. Defence case was that the intercourse was consensual.
Appellant unrepresented on appeal - numerous assertions of errors or miscarriages in the trial - none of substance - no question of principle - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal: decision reserved. [See 180 below for decision on sentence appeal.]
23

KARACIC, Zelko Mile - CCA, 2.2.2001 - 121 A Crim R 7
Spigelman CJ, Grove & Whealy JJ
Citation: R v Karacic [2001] NSWCCA 12
Sentence appeal.
1 x attempt obtain possession of trafficable quantity heroin.
10y with NPP of 7y.
Net pure weight 453.8 grams - estimated wholesale value $75,000, street value $900,000.
Offence involved delivery of a package from Hong Kong addressed to a computer company in Surry Hills. When courier arrived there, he was approached by 2 men, one of whom was the applicant who quoted an airway bill number which matched the airway bill number of the package. The courier asked for identification, whereupon the 2 men became agitated & fled. They were chased by courier & other witnesses & were seen to drive off in a white car which was registered to a car hire company & had been rented by the applicant the day before the delivery. The computer company had never imported any item from Hong Kong. Neither management nor employees knew any persons of the description provided by the courier & had not given permission for the premises to be used as a postal address for the parcel.
Guilty plea at committal - at sentencing, applicant changed his plea to not guilty - when matter came up for trial, he adhered to original plea of guilty. Information provided to sentencing judge contained a real & material error, to the effect that applicant had earlier served a FT of 3 months for an unrelated offence. This was not true as applicant had appealed that sentence & did not serve that FT of imprisonment at all. He should have been sentenced on the basis that this would have been the first time he would face imprisonment.
Guilty plea - drug addiction - successful attempts to overcome drug addiction - evidence of prior good character.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with NPP of 5y.
24

TAOUSANIS, James - NSW SC, Hidden J, 14.2.2001
Citation: R v Taousanis [2001] NSWSC 57
Reasons for verdict.
Murder.
On 17.4.1991, the deceased (an architect) disappeared. Despite extensive inquiries over the years, he has not been located. Reliable evidence shows that on the morning of 17.4.1991, he was at Kings Cross attending to some business affairs. Crown case that late in the afternoon he met his cousin, the accused & another man. Crown alleged he was driven to a house where he was severely beaten by his cousin & the accused & that he died either then or at some time later. The Crown also alleged that his body was disposed of in the ocean near Sydney.
Judge alone trial.
Evidence of principal Crown witnesses unreliable.
Verdict of not guilty: judgment of acquittal entered.
25

VONG, Cam Lam - CCA, 7.2.2001
Giles JA, James & Hulme JJ
Citation: R v Vong [2001] NSWCCA 20
Conviction appeal.
3 x supply heroin.
No mention of sentence.
Crown relied upon telephone conversations which it maintained established appellant's knowing involvement in the supply. A video of the execution of a search warrant on the appellant's premises was tendered & admitted & went with the jury for it's deliberations. After the verdicts were returned, it came to light that the video tape contained a recording of the execution of a search warrant of the premises of a person from whom the heroin was allegedly obtained. On the video, this person made admissions as to the possession of heroin. The discovery of the heroin was also seen.
Irregularity - prejudicial material accidentally went to jury - unfairness - Crown conceded.
Appeal allowed: new trial ordered.
26

DO, Manh Viet - CCA, 2.2.2001
Giles JA, James & Hulme JJ
Citation: R v Do [2001] NSWCCA 19
Conviction appeal.
Manslaughter.
No mention of sentence.
The appellant, the deceased & one other man were in the deceased's room. All 3 men had consumed beer, smoked heroin & taken Rohypnol. Evidence was that the appellant held a shotgun & discharged it into the deceased's chest, causing his death. The appellant claimed that he had been 'mucking around'with the shotgun. He said he would put the safety catch on, aim it at the deceased & then shoot. Then he would take the safety catch off & pretend he was going to shoot, then put the safety catch back on again. He claimed to have done this a number of times. He claimed that the last time he pulled the trigger, he had forgotten to put the safety catch back on.
Submitted on appeal that the verdict was 'unsafe or unsatisfactory'for reasons lying outside the formula requiring that it not be unreasonable or incapable of being supported having regard to the evidence - reference made to M v The Queen (1994) 181 CLR 487 - whether miscarriage.
Appeal dismissed.
27

MLYNARCZYK, Richard - CCA, 7.2.2001
Giles JA, James & Hulme JJ
Citation: R v Mlynarczyk [2001] NSWCCA 45
Conviction appeal.
2 x sexual intercourse without consent.
3y with NPP of 1y.
Complainant was 21* years of age at the time of the above offences.
Complainant's mother & appellant had been involved in an intimate relationship for some time before the above offences. As a consequence, the complainant looked upon the appellant as a father figure.
Incompetence of counsel - verdicts 'being against the weight of the evidence'.
The trial judge had issued a certificate under s.5(1)(b) Criminal Appeal Act certifying that the case was a fit one for appeal on both grounds.
Appeal dismissed.
28

PURTELL, Garry Michael - CCA, 30.1.2001 - 120 A Crim R 317
Giles JA, Hulme & Bell JJ
Citation: R v Purtell [2001] NSWCCA 21
Crown appeal
Pervert course of justice.
Guilty plea. Exercising the power in s.10(1)(b) Crimes (Sentencing Procedure) Act 1999, the judge did not proceed to conviction & made an order discharging respondent on condition he enter into a 2y GBB with the condition that he make no contact with Glenys Purtell (his former wife), either directly or indirectly.
Respondent was involved in a relationship with a woman (Pauline Keirghran) & subsequently became involved in a relationship with another woman (Jennifer Scott). Respondent was charged with assault on Pauline Keirghran & malicious damage to her property. He pleaded guilty. At sentence, respondent presented a letter purportedly written by his former wife which described him as a loving husband & father & a kind & gentle man. That letter was compiled by respondent & Jennifer Scott & was in the handwriting of Jennifer Scott. Respondent's former wife became aware of the letter & revealed the deception. She said she did not hold the sentiments expressed in the letter. Respondent & Jennifer Scott were charged with perverting the course of justice.
Trial judge described respondent's act as in the top class of stupidity but towards the bottom of the range in relation to seriousness of perverting the course of justice.
Aged 44 at trial - was Deputy Mayor of Albury Council at the time - impressive community service record.
Appeal allowed: conviction recorded - 2y GBB with formal orders, as well as an order not to make any contact with Glenys Purtell, either directly or indirectly.
29

NGO, Michael - CCA, 12.2.2001
James & Whealy JJ
Citation: R v Ngo [2001] NSWCCA 15
Sentence appeal.
1 x armed robbery with wounding - 3y with NPP of 18m;
1 x common assault - 9m FT.
The victims were driving in their car at approx 1.00 am when the car was flagged down by the applicant who asked them for help. The driver & his female passenger got out of the car. Applicant pushed a metal bar into the victim's stomach. Victim was then struck from behind on the head & his wallet was taken by the applicant's co-offender. The female victim ran away & was chased by the applicant who pushed her to the ground. She managed to escape & ran to nearby units. Both were taken to hospital for treatment.
Aged 18*y at time of offences - difficult life - father killed when applicant aged 12 - mother diagnosed with cancer when he was 14 - died 6 months later - applicant brought up by his 2 brothers.
Failure to give sufficient weight to assistance to authorities - failure to give sufficient weight to plea of guilty in early stages within guidelines of R v Thomson & Houlten (2000) 49 NSWLR 381 - parity - whether sentences manifestly excessive.
Appeal dismissed.
30

TAOUSANIS, James - NSW SC, Hidden J, 7.2.2001
Citation: R v Taousanis [2001] NSWSC 74
Judgment on admissibility of evidence.
Identification evidence prior to trial - admissibility - over 3 months' lapse before identification - whether witness' recollection 'fresh'- Evidence Act 1995 s.66.
Evidence rejected.
31

TAOUSANIS, James - NSW SC, Hidden J, 7.2.2001
Citation: R v Taousanis [2001] NSWSC 75
Judgment on admissibility of evidence.
Evidence of recognition - evidence of witnesses' recognition of an object in photographs (a boat) - well familiar with that boat.
Evidence admitted.
32

VEECH, Damien Justin - NSW SC, Wood CJ at CL, 8.2.2001
Citation: R v Veech [2001] NSWSC 68 revised - 21/02/2001
Remarks on sentence.
Manslaughter.
Indicted for murder. Acquitted of murder but found guilty of manslaughter.
Deceased had been fixing up cars at premises the accused was renting. After an inspection by the estate agent, accused was told the vehicles & parts would have to be removed. Early on the morning of the killing, after a brief confrontation between accused & deceased, accused went inside & deceased walked to the rear of his utility. Accused claimed to have thought deceased was going to get a firearm. Accused loaded a .22 Browning rifle with a number of Winchester hollow pointed rounds, went outside & fired a shot which hit deceased in the left side passing through his left arm & left side of the chest, penetrating each lung. Accused then fired a 2nd shot which struck deceased in the back, severing his spinal cord. Deceased fell to the ground, having completely lost control over his lower limbs. Accused then fired 2 more shots from close range into deceased's body as he lay on his back, each shot occasioning major damage to the vessels of deceased's heart, bringing about almost immediate death. Medical evidence that without the 2 final shots & with medical attention, deceased may have survived the first 2 shots. No firearm was found on the deceased, nor was any firearm found in or around the utility. After the first 2 shots were fired, witnesses heard the deceased say 'You win, I give up'.
Sentenced to: 6y 6m less 136 days with NPP of 59m less 136d (pre-sentence custody taken into account).
33

HAMMOND, Clinton James - CCA, 1.2.2001 - 121 A Crim R 1
Giles JA, Hulme & Bell JJ
Citation: R v Hammond [2001] NSWCCA 34
Crown appeal.
1 x steal from the person - 12m FT;
1 x malicious wounding; + a further 10 charges on a Form 1 - MT 2y, AT 18m.
The Form 1 matters involved BE&S, larceny, steal MV, possess stolen property, possess prohibited weapons.
All the above offences, including those charged in the indictment, were committed over a 5 month period. Respondent gave evidence that his uncle was involved in the commission of a number of offences & that he would be willing to give evidence to this effect on behalf of the Crown in any proceedings against his uncle. Because of this undertaking, the sentencing judge imposed a reduced sentence. In due course, the uncle was arrested & charged, however, the respondent withdrew his promise to give evidence against his uncle. As a result, the proceedings against his uncle were terminated.
Failure to honour undertaking to give evidence.
Appeal allowed: resentenced to 5y with NPP of 2y 10m.
34

LESTRANGE, David - CCA, 14.2.2001
James & Whealy JJ
Citation: R v Lestrange [2001] NSWCCA 25
Sentence appeal.
Robbery in company - MT 4*y, AT 1*y.
Applicant & others went to a Liquorland store where they accosted the victim & witnesses with a tyre lever. They made them lie on the floor, then stole from the store safe & cash register. They then ransacked the cigarette cabinet. They drove away in a stolen MV.
The applicant also faced sentence for 3 matters to which he had earlier pleaded guilty (aggravated robbery; robbery in company; robbery); + a number of offences on a Form 1 (robberies & associated matters) - MT 7y, AT 2y + a FT of 9m.
Aged 25* at time of sentence - numerous convictions - 'appalling'record - suffering from effects of a stroke as a result of a drug overdose - need for special medical care in gaol.
Failure to take into account applicant's mental & physical disabilities - failure to give sufficient weight - parity - failure to find special circumstances.
Appeal dismissed.
35

WEST, Ian John - CCA, 14.2.2001
James & Whealy JJ
Citation: R v West [2001] NSWCCA 26
Sentence appeal.
1 x robbery - MT 4*y, AT 3y; 1 x maliciously inflict GBH - FT 4y.
Offences involved applicant & co-offender attacking a man in the street & stealing 4 cans of beer he had just purchased, as well as his keys. During the attack upon the victim, they punched him to the head a number of times. The victim fell to the ground & while he was lying there, the applicant & his co-offender kicked him a number of times to the head & body. The victim suffered a fractured skull. During an operation, victim nearly suffered brain death, however, doctors were able to stabilise him & he was subsequently discharged from hospital.
Aboriginal - well-affected by liquor at time of offences - dysfunctional family background - expelled from school - became involved with gangs & then involved in crime - committed to juvenile institution at early age - has 5 children from a previous partner - has 1 child from another partner.
Positive steps towards rehabilitation - parity - whether sentences excessive.
Appeal dismissed.
36

SYMIZIRIS, Odyssais - CCA, 16.2.2001
James & Whealy JJ
Citation: R v Symiziris [2001] NSWCCA 38
Sentence appeal.
1 x robbery; + a Form 1 matter (receiving stolen goods).
2y FT.
Applicant went into a video store, threw a bag on the counter & demanded that the victim fill the bag with money. The victim put $600 from the till into the bag. The applicant then left the store.
Aged 34 at time of offence - Greek descent - stable background - described as an 'unsophisticated'& 'naive' man - criminal record for minor offences - involved in a serious car accident - suffers from ongoing disabilities.
Error in imposing a FT rather than a MT & AT - delay between offence & sentence - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to 24m, with NPP of 16m 4d.
37

LAKALAKA, Soane - CCA, 21.2.2001
Grove & Hulme JJ.
Citation: R v Lakalaka [2001] NSWCCA 31
Sentence appeal.
1st indictment: 4 x dishonestly obtain money.
Applicant falsely represented himself as Federal Police officer working for Immigration Department & said he would assist victim in obtaining permanent residency status for her mother & brother. He was paid $51,170.
2nd indictment: 4 x dishonestly obtain money.
These offences involved obtaining $6,500 from another victim under similar pretences.
3rd indictment: 2 x false representation.
One offence involved applicant falsely representing himself as a Commonwealth officer working for the Department of Immigration and Ethnic Affairs undertaking to obtain permanent resident status for a family, the second offence involved him falsely representing himself as a Federal Police officer.
13 further offences on a Form 1 (taking further money from first two victims ($29,500 & $3,950 respectively); passing valueless cheques totalling $550).
Aggregate total of 4y with NPP of 2*y.
Priors (passing valueless cheques, dishonestly obtain financial advantage, AOABH, possess loaded firearm) - on recognizance at time of subject offences - no previous imprisonment - single parent (2 young children) - prospects for rehabilitation - whether sentence excessive.
Appeal dismissed.
38

GIOVANNONE, Philip - CCA, 22.2.2001 - 119 A Crim R 519
Sheller JA, Grove & Kirby JJ
Citation: R v Giovannone [2001] NSWCCA 22
s.5F appeal against 2 interlocutory judgments.
When court will interfere with discretion of prosecutor as to continuation & conduct of proceedings - when court will grant stay of proceedings.
Appeal dismissed.
39

HENNESSY, Peter James - CCA, 27.2.2001
Spigelman CJ, O'Keefe & Barr JJ
Citation: R v Hennessy [2001] NSWCCA 36
Conviction and sentence appeal.
2 x armed robbery; 2 x larceny of MV.
MT 12y, AT 4y.
1st charge involved an armed hold-up of a branch of the Commonwealth Bank in which the appellant threatened employees & customers with a hand gun. Appellant was identified by a number of witnesses in the bank. After taking a large amount of money, he escaped in a stolen MV driven by another person. 2nd armed robbery was committed upon a branch of the Illawarra Building Society during which the appellant discharged a pistol & seriously wounded a member of the staff. He escaped in a stolen car driven by another person.
Error in not granting separate trials - error in admission of security photograph - directions on similar fact evidence (tendency) - failure to direct as to possession of offensive weapon, circumstantial evidence, elements of larceny of MVs - whether verdicts 'unsafe & unsatisfactory'- whether special circumstances - whether sentences excessive.
Appeal dismissed.
40

HEARNE, Murray Walter - CCA, 28.2.2001 - 124 A Crim R 451
Powell JA, Hulme & Dowd JJ
Citation: R v Hearne [2001] NSWCCA 37
Sentence appeal.
1 x murder; 1 x malicious wounding with intent to do GBH.
MT 20y, AT 7y.
Victims were police officers. Applicant & his half-brother offered what was believed to be an Ecstasy tablet to 3 off-duty police officers. Police officers pushed applicant & his half-brother into the doorway of a building. Applicant was told to sit down & he went down on his haunches. He was asked for identification. He then stood up & said 'I'm going. I'm out of here.'Two of the police officers tried to prevent this & a struggle ensued, during the course of which the applicant stabbed the one police officer in the abdomen & chest & the other police officer in the heart. He then ran off. Three days after the offences, the applicant admitted his involvement to his father & his father persuaded him to give himself up, which he did by phoning a newspaper & confessing to one of its reporters. This conversation was still in progress when police entered the flat where the applicant was & arrested him.
Aged 18* at time of offences - prior minor offences - illicit drug use.
Failure to give adequate weight to applicant's surrender, guilty plea, contrition & remorse, prior good character, intent to inflict GBH rather than to kill - error in findings & significance attached to the fact that victims were police officers, applicant carrying & using a knife, lack of premeditation, applicant's youth, rejection of evidence of 3 witnesses - whether sentence manifestly excessive.
Appeal allowed: resentenced to 18y with NPP of 13y.
41

KING, Toby William - CCA, 8.2.2001
Sheller JA, Grove & Kirby JJ
Citation: R v King [2001] NSWCCA 18
Crown appeal.
Aggravated dangerous drive occasioning GBH.
2y PD.
The circumstance of aggravation was the presence of alcohol in the respondent's blood.
Respondent was driving at 50 kph in a 60 kph zone. While crossing a narrow bridge, he dropped a lighted cigarette onto the floor & bent down to pick it up. In doing this, his eyes were below the level of the dashboard. The passenger side wheels of the car hit the kerb, the car veered to the right & collided head-on with an oncoming car. The passenger in the oncoming car suffered severe injuries which will have a lasting effect. The driver of the oncoming car was also injured, but not as seriously. The accident occurred at about 10.20 am & a blood alcohol reading was conducted at 11.25 am, which showed a reading of .273. At 3.45pm that afternoon, a reading showed .196. Both readings are well in the high range of the prescribed concentration of alcohol.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with NPP of 12m.
42

BURGESS, Robert John - CCA, 28.2.2001
Priestley JA, Barr & Kirby JJ
Citation: R v Burgess [2001] NSWCCA 42
Conviction and sentence appeal.
1 x stealing; 1 x assault.
After being found guilty for the above offences, the trial judge proceeded to sentence the appellant for those offences, as well as for 5 other offences to which the appellant had previously pleaded guilty before the LC (4 x BE&S; 1.x larceny).
Aggregate total MT 4y, AT 18m.
The female owner of a shop placed a sign on the footpath, re-entered the shop, then went to the back room to prepare food. While there, she heard a noise, entered the shop & saw a man crouched at the cash register. He was holding a syringe containing a red substance & he told her to get out of the way or she would get AIDS. He then ran away. Cash totalling approx $85 was missing from the till. A woman was seated in her car near the shop at the time. She noticed a man sitting at the bus stop & said she had seen him a number of times before, walking in the street. She said she would usually see him in the street about once or twice a week, although at the time of the offences she had not seen him for about 3 or 4 weeks. She thought he looked suspicious, holding something under one of his arms. The woman watched him enter the shop a few seconds after the shop owner entered it after putting out the sign. She said she saw him running away from the shop a short time later.
Aged 31 at time of sentence - wife died 7 months prior to appellant's trial - father of 5 children who were being cared for by a grandparent - serious criminal record - 34 convictions - illegal drug abuse - no prior custody - every opportunity to rehabilitate -- 2 of the subject offences committed in breach of a CSO.
Evidence of Crown witnesses - asserted inconsistencies - assertion that trial counsel had withheld important evidence.
Appeal dismissed.
43

SHAW, Christopher James - CCA, 20.2.2001 - 121 A Crim R 25
Mason P, Whealy & Howie JJ
Citation: R v Shaw [2001] NSWCCA 44
Sentence appeal.
3 x BE&S; + matters taken into account on a Form 1 (drive in manner dangerous, unlicensed driver, self-administer prohibited drug).
MT 4y, AT 1y 4m.
BE&S offences were committed upon homes in Woy Woy. Various items were taken, as well as cash. The proceeds of the goods stolen were used to buy heroin to support the applicant's drug habit. The value of the property stolen totalled $3,448.
Aged 23 at time of sentencing - offences committed whilst on parole - lengthy criminal history - attempts at rehabilitation.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with NPP of 2*y.
44

SABA, James John Jamil - CCA, 22.2.2001 - 120 A Crim R 355
Simpson J, Smart AJ
Citation: R v Saba [2001] NSWCCA 9
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.
Matter originally heard on 17.3.2000 (see R v Saba [2000] NSWCCA 89) & adjourned to later date. It came before the Court on 11.12.200 - judgment published on 22.2.2001.
Applicant on parole at time of 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 balance of parole would be subsumed in the above sentences. However, the parole order had been transferred to Queensland & 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 registration in Queensland, therefore sentencing judge had no power to revoke parole order.
Application of totality principle where accused dealt with in different States - reduction of NSW sentence to give effect to Queensland practice.
Appeal allowed: resentenced to 2y 3m FT. Reason for using a fixed term was because of imprisonment to follow in Queensland.
45

STADHAMS, Roderick - CCA, 12.2.2001
James & Whealy JJ
Citation: R v Stadhams [2001] NSWCCA 16
Sentence appeal.
Aggravated armed robbery.
MT 3y, AT 2y.
The 3 co-offenders told applicant they were going to carry out an armed robbery. They asked if he wanted to go with them, & he said 'yeah'One co-offender drove the car, applicant sat in the passenger seat, the other 2 in the back (both named Ian Austin). The Austins entered a credit union, one armed with a shortened rifle, the other with a file. A shot was fired into the floor & threats made to shoot customers & staff if they did not get down on the floor. The amount of money taken was $19,220. They then made their getaway in the car. Police gave chase for some 40 kms when the getaway car stopped & the co-offenders escaped into bushland. Applicant was arrested. He immediately made full & frank admissions & later, while being formally interviewed by police, he again made extensive admissions & named all the co-offenders. At no time was applicant part of the robbery, nor was he to share in the proceeds. He was simply going along for the ride. The driver of the car pleaded guilty to being an accessory after the fact to an armed robbery which was accepted by the Crown, to the astonishment of the sentencing judge.
After applicant was arrested & until released on bail, he spent some time in a maximum security adult gaol at Grafton. While there, he met up with his father for the 1st time in many years as a fellow prisoner. When applicant was a young child his father was sentenced to a long term of imprisonment for murder. Applicant's mother was an alcoholic.
Aboriginal - aged 17 - full & frank admissions at earliest opportunity - deprived background - on probation at time of offence (control orders imposed by Children's Court for B&E).
Insufficient weight given to: guilty plea - contrition - minor role - age - Aboriginality - deprived background. Strength of Crown case over-estimated - value of assistance underestimated.
Appeal allowed: resentenced to 4y, NPP 2y 3m (pre-sentence custody taken into account).
46

PHUNG, Johnny - NSW CCA, Wood CJ at CL, 26.2.2001
HUYNH, Thang Minh
Citation: R v Phung and Huynh [2001] NSWSC 115
Judgment on admissibility of records of interview conducted with accused Johnny Phung.
Counsel for accused objected to 2 records of interview that were conducted electronically.
3 x armed robbery; 1 x murder.
Accused was a juvenile (aged 17). After his arrest, preliminary forensic tests were conducted without any support person being present. According to custody management report, this followed a decision not to provide a support person at that time 'in case evidence was lost'Accused was then allowed to sleep in a small dock not far from the desk of the custody manager from 3.10 am to 5.50 am, until the completion of the custody manager's shift. At 5.05 am, a detention warrant was sought by fax & granted at 5.50 am. This extended the interview period by 8 hours from 5.30 am. This application occurred in the absence of any support person & without reference to the accused. Accused's aunt & cousin were contacted & taken to the police station. They had no opportunity of speaking to the accused. No evidence whether custody manager spoke to either of them or provided information required by current legislation. Accused was taken upstairs about 7.00 am &, with his consent, a blood sample was taken. This was in the presence of his cousin. Accused was then cautioned & his agreement obtained to being interviewed electronically, which was carried out in the presence of his aunt & cousin. However, immediately after the interview began the aunt became ill & withdrew. The cousin was then allowed to speak to the accused very briefly in the presence of police, initially in his own language but later, at the request of the interviewing detective, in English. During the interview which followed, accused made significant admissions as to his involvement in the murder & 1 robbery. At 10.55 am, accused was charged with murder & 1 count of armed robbery. Interviewing detective said accused & his cousin were each asked if they wanted a lawyer present. He said the reply was negative, although this was not recorded in the ERISP, nor in any statement prepared by the detective. Accused denied that any such conversation took place. Another ERISP was conducted at 4.10 pm, after which accused was charged with a further 2 counts of robbery.
Issues relating to admissibility of 2 records of interview: Whether compliance with requirements of law as to provision of support person - whether accused properly advised as to entitlements, i.e. offered opportunity of obtaining legal assistance - whether accused adversely affected by drugs or effects of withdrawal at time of 1st interview - whether accused, in 1st interview, was adversely affected by tiredness to the point where reliability of any admission made was in question.
Decision: records of interview rejected.
47

CHUA, Boon Hock - CCA, 2.3.2001
Heydon JA, Bell J, Smart AJ
Citation: R v Chua [2001] NSWCCA 50
Crown appeal.
Knowingly concerned in importation of commercial quantity prohibited import (heroin).
6y with NPP of 3y 3m.
Quantity of heroin imported was 1.9264 kgs (69.8 to 74.3% purity).
Respondent arrived at Sydney Airport aboard a flight from Bangkok. Customs officers stopped him, then questioned him & examined his bags. During the course of a conversation about respondent's Buddhism, respondent showed them a small tattoo on his lower left arm. The officers asked if he had more tattoos, whereupon he said he had 2 on his chest & he proceeded to lift his shirt to reveal them. They noticed there was an abrasion on his skin & some tape around his back. They then conducted a search in the terminal area & a blue carry bag was located in one of the toilet areas. That bag contained packages of heroin. Police interviewed the respondent. He made full & frank admissions, telling them the packages had been attached to his body in Bangkok & that he had received instructions that during the flight to Australia he was to hand them to another person he would meet on the plane. This, he says, he did. He told police that the final destination for the heroin was to be New Zealand but he was not involved in that part of the operation. He also told them his air fare & $1,500 had been provided by the persons behind the operation.
Confession & full co-operation with law enforcement authorities - guilty plea - remorse & contrition - whether respondent's admissions vital in establishing prosecution's case against him.
Whether special circumstances existed to take case outside R v Wong sentencing range - whether ratio of NPP to head sentence should have been greater than 54%. Whether sentence manifestly inadequate.
Appeal dismissed.
48

CONWAY, Isabella Jean - CCA, 2.3.2001 - 121 A Crim R 177
Heydon JA, Bell J, Smart AJ.
Citation: R v Conway [2001] NSWCCA 51
Sentence appeal.
5 x defraud Commonwealth. Guilty plea.
Aggregate 2*y with NPP of 15m; + an order that applicant pay $51,337.85 by way of reparation.
Social Security fraud which was committed over 9* years, involving just over $100,000. Applicant made use of 3 different names & identities & 3 different bank accounts to attempt to hide her fraudulent conduct.
Aged 62 at time of appeal - widow - life of hardship - dysfunctional family background - raped by 3 men when she was a child - no counselling received - placed in a girls' home until age 15 - sexually harassed by mother's partner on her return home - married at 16 in order to escape this - 3 sons from that marriage - marriage lasted 10 years.
Submitted that applicant's circumstances were so exceptional that no custodial sentence should have been imposed; alternatively, that if a custodial sentence should have been imposed, then that which was imposed was excessive.
Whether sentences manifestly excessive.
Appeal allowed: resentenced to aggregate 2*y with NPP of 9m 13d (applicant released on day of CCA hearing).
49

CAIN, David Peter (No.1) - NSW SC, Sperling J, 1.3.2001 - 121 A Crim R 365
Citation: R v Cain (No.1) [2001] NSWSC 116
(VIDEO LINK TO METROPOLITAN REMAND CENTRE)
Judgment No.1 - On application for bail.
2 x conspiracy to import commercial quantity prohibited imports (74.5 kgs ecstasy & 9 kgs cocaine); + some less serious offences (not stated).
Accused had been in custody for over a year awaiting trial for the above charges. Evidence from the Crown that the charges might not come to trial for a further year.
Australian citizen - Australian passport in possession of Federal Police - legitimate claim to liberty - no suggestion applicant might cause harm to anyone if released on bail.
Bail granted subject to a number of conditions, one of the conditions being that the applicant reside at a certain property, another condition being that the applicant's interest in that property in the sum of $150,000 be secured & made available for the purpose of the bail application.
50

CAIN, David Peter (No.2) - NSW SC, Sperling J, 1.3.2001
Citation: R v Cain (No.2) [2001] NSWSC 117
(VIDEO LINK TO METROPOLITAN REMAND CENTRE)
Judgment No.2 - On application for bail.
Orders made in Judgment No.1 suspended when the Crown informed his Honour that an order had already been made pursuant to the Proceeds of Crime Act 1987 & therefore the applicant's interest in the property was not available to be pledged as security for performance of conditions of bail.
Necessary to reconsider application without regard to applicant's interest in the property.
Even without the applicant's interest in the property, a sum well in excess of $1 million was suitably secured.
Bail conditions varied.
51

PUSKAS, John - CCA, 2.3.2001
Priestley JA, Barr & Kirby JJ
Citation: R v Puskas [2001] NSWCCA 43
Crown appeal.
Respondent pleaded guilty to 9 offences: aggravated act of indecency with young woman (aged 15); supply prohibited drug; indecent assault upon young woman (aged 16); aggravated indecent assault upon young woman (aged 15y 5m); indecent assault upon young woman (aged 15).
Various sentences: 18m, 12m & 6m - all suspended upon entering into GBB.
Crown appealed only against 4 sentences, all being for aggravated indecent assault.
Respondent was a music teacher at Burwood Girls High School. Some victims had been pupils, others members of bands which he organised. The offences occurred over a period of almost 2 years. There were 4 victims in all.
Sentencing judge accepted facts establishing quite exceptional degree of hardship to respondent's severely afflicted child (deaf) if sentenced to custodial imprisonment. All relevant considerations appropriately taken into account - no relevant error of principle shown - no attack available against factual findings.
Whether sentence manifestly lenient.
Appeal dismissed.
52

TUMANAKO, Ray - NSW SC, Sperling J, 2.3.2001
Citation: R v Tumanako [2001] NSWSC 126
Redetermination of life sentence under s.13ASentencing Act1989.
Applicant & deceased had been in a de facto relationship but had separated. The deceased had a child from a previous relationship. Deceased had formed another relationship around the time of the break-up with the applicant. The day before the murder, the applicant waited for the deceased at Revesby Railway Station & talked with her. He was eager to resume his relationship with the deceased, however, she gave him no encouragement. The following day, being St Valentine's Day, the applicant drove to the kindergarten that the deceased's daughter attended & waited in his van in order to see the deceased. He had brought flowers with him to give to her (later found in the van). The deceased arrived at the kindergarten in a vehicle driven by her new partner. This seemed to inflame the applicant who left his vehicle with a knife, approached the deceased, punched her then stabbed her twice in the chest, causing the injuries from which she died. Some 40 minutes after the stabbing, the applicant rang 000 & stated that he had killed the deceased & wanted to hand himself in.
A defence of diminished responsibility was rejected.
Diligent application to self-improvement in prison - considerable assistance to prison authorities in mentoring younger prisoners & in settling factional friction within prison system.
Application allowed: re-sentenced to 20y with NPP of 14y.
53

KRM v THE QUEEN - HC, 8.3.2001 - 206 CLR 221; 75 ALJR 550
Citation: KRM v The Queen [2001] HCA 11 (8 March 2001)
Multiple counts of sexual offences, one of which was maintaining a relationship with a child under 16 pursuant to s.47A Crimes Act 1958 (Vic).
Whether propensity warning required when presentment involves multiple counts of sexual offences & relationship count pursuant to s.47A - whether propensity warning required in respect of individual acts that form basis of charge under s.47A - use of 'separate consideration'warning - operation of proviso - whether legislature can modify the need for particulars of criminal charges - whether evidence of uncharged sexual acts admissible to prove the nature of the relationship between the accused & the complainant.
Whether error in trial judge not giving propensity warning.
Appeal dismissed.
54

BREWER, Frederick Keith - NSW SC, Bell J, 1.3.2001
Citation: R v Brewer [2001] NSWSC 99
Remarks on sentence.
Murder.
Accused originally pleaded not guilty but changed his plea to guilty on the 4th day of his trial.
Accused & 3 co-accused lured deceased to the vicinity of a wheat silo next to a railway siding in order to steal cannabis from him & beat him up to teach him a lesson. They were variously armed with a machete, a knife & a pick handle. Accused had earlier purchased cannabis from the deceased & he believed at least half of it had been worthless. Deceased drove to the meeting place, accompanied by a friend. The friend, who was a witness at the trial, gave evidence that when they arrived there, a man got into the back seat of the car & asked to inspect the cannabis. After examining it, he alighted from the vehicle saying he would get money. A short time later the witness heard a whistle & then the deceased was attacked. Witness gave evidence that all 4 men were involved. Deceased was stabbed a number of times. Witness said that the deceased was in a considerably weakened state, but managed to start the car, however, one of the co-accused reached in, grabbed the steering wheel & turned it. The car veered into an embankment. The witness said deceased looked at him, then nodded his head backwards & said 'houses'& 'you go'As the witness was leaving the car, he saw deceased open the driver's door. Accused made admissions that he had stabbed the deceased approx 4 or 5 times, but only after deceased had alighted from the car.
Accused sentenced on the basis that he was a prime mover in the plan to rob the deceased & beat him up, & that during the course of the assault, he had formed the intention of killing him.
Sentenced to 20*y with NPP of 15y 4m.
55

ZREIKA, Mohamed - CCA, 5.3.2001
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Zreika [2001] NSWCCA 57
Conviction and sentence appeal.
1 x supply trafficable quantity prohibited drug (heroin).
(Sentence not stated)
Crown case that appellant was a lessee of a Department of Housing home unit at Yagoona & that the drugs were found on the premises during a police raid. Appellant gave evidence that the drugs were not his & he had no idea who had placed them there. He suggested that police could have corruptly planted the drugs on the premises, relying upon evidence obtained during cross-examination of police witnesses that the search was carried out in his absence & in the absence of any independent person & that the video record of the search did not commence until 25 minutes after the search began. Appellant also raised the possibility that the drugs could have been the property of others who, he claimed, had access to the premises. He said his brother & his nephew had keys to the unit. Evidence in cross examination of police witnesses revealed that documents in the names of other persons were found in the unit. Appellant said most of those persons were unknown to him & there was no evidence to the contrary. He said he had not been living at the unit for some time. He had only returned to the unit to pick up his mail when he was arrested by police.
Jones v Dunkel direction - whether accused could be expected to call witnesses - need for caution in deciding whether to give direction at all - if given, need for direction as to possible explanation for witnesses not being called.
Failure to direct jury that the onus was on the Crown to negate possession in others; error in directions to jury about failure of appellant to call his brother & nephew.
Appeal allowed: new trial ordered.
56

MOUSSA, Elvis - CCA, 19.2.2001
Grove & Hulme JJ
Citation: R v Moussa [2001] NSWCCA 28
Sentence appeal.
Supply prohibited drug (heroin - 27 grams, 71% purity); + similar offence taken into account.
MT 12m, AT 12m.
Applicant travelled from Murwillumbah to Cabramatta & purchased heroin. On his return journey, he was stopped by police, searched & arrested. He said the heroin was for himself & his wife, both of whom were addicts. His explanation for purchasing the heroin in Sydney was that it was cheaper in Sydney.
Crown case was that applicant was a heroin dealer, however, the judge found in favour of the applicant.
Age 30 at time of trial - until recently had a good employment history - prior offences.
Started using heroin at age 26, cost of habit seems to have been funded by the use of the proceeds from the sale of a house he & his wife owned.
First time in custody - hardship to family - children seeing a psychologist - applicant free of his addiction.
Application for leave to appeal refused.
57

MA - CCA, 21.2.2001
Grove & Hulme JJ
Citation: R v MA [2001] NSWCCA 30
Sentence appeal.
1. Sexual intercourse with female between 10 & 16 (fellatio - stepdaughter);
2. Indecent assault upon female under 16 (cunnilingus - stepdaughter);
3. Indecent assault upon female under 16 (penile contact with vagina - stepdaughter);
4 & 5. Indecent assault upon female under 16 (touching vagina - stepdaughter);
6. Indecent assault upon female under 16 (touching vagina - stepdaughter);
7. Indecent assault upon female under 10 (touching vagina - daughter);
8 & 9. Indecent assault upon female under 10 (touching vagina - daughter).
5y with NPP of 3*y.
Applicant's stepdaughter is blind & has been since birth.
Lengthy criminal history - excessive alcohol consumption - priors include PD, home detention, 14d imprisonment & 3m imprisonment - guilty plea.
Judge's reference to pre-sentence custody being 'approximately six months'understated true situation - sentences imposed did not reflect finding of special circumstances - terms of victim impact statement calculated to lead to matters being taken into account that should not have been - whether sentences manifestly excessive.
Appeal dismissed.
58

FAWNS, Darren Ashley - CCA, 19.2.2001
Grove & Hulme JJ
Citation: R v Fawns [2001] NSWCCA 27
Sentence appeal.
Steal MV.
MT 8m, AT 8m.
At the time of arrest, applicant was driving the stolen vehicle.
Special circumstances found arising from the fact that applicant had a severe heroin habit & would need significant supervision upon release. No dispute by the Crown that the matter could have been dealt with in the LC. Guilty plea. Priors.
Whether sentence excessive.
Application for leave to appeal refused.
59

AIKEN, Matthew - CCA, 14.2.2001
James & Whealy JJ
Citation: R v Aiken [2001] NSWCCA 40
Sentence appeal.
Count 1: robbery in company - 4y with NPP of 2y;
Count 2: being carried in a conveyance without consent of owner - 6m FT (concurrent);
Count 3: assault with intent to rob whilst armed - 2y FT (concurrent).
The 1st and 2nd charges arose when applicant & 2 co-offenders robbed a service station. One co-offender was carrying a wheel brace, another a carving knife. They took cash & cigarettes. The vehicle they escaped in had previously been stolen. Proceeds of the robbery were used to buy heroin.
The 3rd offence involved the applicant & 3 young men robbing a service station. One co-offender was armed with a kitchen knife, another with a club lock. When they demanded money, the service station attendant started screaming & the offenders ran away. A police vehicle was passing by at the time & all the offenders were quickly apprehended.
Whether error in sentencing judge describing applicant as an 'armed robber'when he was unarmed during both robberies - error in giving insufficient consideration to applicant's age, contrition, rehabilitation prospects - submitted pre-sentence report contained serious error of fact - parity.
Appeal allowed: resentenced - Count 1 - 3y 8m, with NPP of 1y 8m;
Count 2 - 6m FT (concurrent);
Count 3 - 1y 8m FT (concurrent).
60

ARMSTRONG, Anthony John - CCA, 16.2.2001
James & Whealy JJ
Citation: R v Armstrong [2001] NSWCCA 33
Sentence appeal.
1 x conspire to commit larceny.
3y with NPP of 2y.
Crown alleged applicant entered into conspiracy with 3 others. At conclusion of trial, which lasted 9 to 10 weeks, the jury was unable to agree on the verdict in respect of any of the accused. Jury was discharged. During that trial, one co-accused had absconded & was still at large when applicant was sentenced after subsequently pleading guilty to the charge of conspire to commit larceny which arose from a conspiracy to steal a large quantity of cigarettes from some premises, the plan being that conspirators would gain entry to the premises by pretending to be police officers executing a search warrant. To facilitate this, applicant had obtained a blank fake search warrant form & had filled in some details. Conspirators were unaware that conversations between them had been lawfully monitored & recorded by means of listening devices & telephone intercepts. When they went to the target premises, they were arrested.
On recognizance at time of offence - priors for larceny.
Guilty plea - not the principal in the conspiracy - error in finding applicant a co-principal - parity - special circumstances - need for assistance in rehabilitation.
Appeal allowed: resentenced to 2*y with NPP of 1*y.
61

BOZZOLA, Peter Anthony - CCA, 6.3.2001 - 122 A Crim R 453
Giles JA, James & Hulme JJ
Citation: R v Bozzola [2001] NSWCCA 8
Conviction appeal.
Dangerous drive occasioning death - 2y with NPP of 1y;
dangerous drive causing GBH - 6m FT.
Offences committed in May 1995, trial only took place in February 2000.
No dispute at trial that the truck which appellant was driving had run into the back of a stationary truck which had stopped behind a car at some road works. The male in this car was killed instantly, the female seriously injured. Eyewitness evidence that appellant was driving at 90-100 kph when his truck hit the stationary truck. Other drivers travelling on the same road gave evidence that there were 4 or 5 RTA signs warning of the road works being carried out, with one sign placed about 2 or 3 kms before the road works & another sign about 500 metres from the road works. A Police officer gave evidence that appellant's truck had been travelling at a speed of 100 kph, calculated by measuring skid marks on the roadway at the scene of the collision. He also gave evidence that he had driven in the same direction as appellant had & had seen 5 RTA signs at various points warning of the road works. Appellant did not give evidence.
Blood sample taken from appellant revealed Delta 9 THC (metabolic product of Tetrahydrocannabinol, which is the major drug in cannabis), methylamphetamine, amphetamine & ephedrine.
Whether error in directions given to the jury concerning appellant's failure to give evidence.
Appeal dismissed.
62

BURKE, Bernard Thomas - CCA, 20.2.2001
Mason P, Whealy & Howie JJ
Citation: R v Burke [2001] NSWCCA 47
Sentence appeal.
AOABH - 12m FT.
Victim, 39 weeks pregnant, was approached by applicant while walking along a street. As he passed her, he grabbed the strap of her handbag which was hanging from her left shoulder. Victim held onto bag. Applicant pulled the strap with such force that victim fell to the ground. He continued pulling, dragging victim along ground for a short distance. The strap eventually came away. Victim managed to hold onto the bag & screamed, attracting a passer-by who ran towards the applicant who took flight. Some people pursued him & caught him. Applicant seems to have suffered some injuries by those who apprehended him. Victim suffered abrasions to right shoulder, right elbow & wrist.
At trial, applicant said he paid $25 to a female in a hotel for some cannabis. She was to obtain the drug for him & return with it to the hotel. He said he waited for 3 hours but she failed to return. While in a telephone box, he saw the victim & wrongly believed she was the female to whom he had given the money. He said he had no intention of stealing victim's bag or harming her, all he wanted to do was either get the drugs he purchased or get his money back. Sentencing judge accepted applicant's explanation of his intent.
Aged 36 - guilty plea - prior record - drug addiction.
Could have been dealt with in LC - whether sentence excessive.
Appeal dismissed.
63

MANKOTIA, Blinder Kumar - CCA, 28.2.2001 - 120 A Crim R 492
Heydon JA, Barr J, Smart AJ
Citation: R v Mankotia [2001] NSWCCA 52
Conviction and sentence appeal.
Murder.
MT 12y, AT 4y.
Appellant born in a village in India. Came from a very rigid culture where the custom of arranged marriages took place. Arrived in Australia in 1996 & met deceased in late 1996 or early 1997. They started going out together. Appellant fell deeply in love with deceased. In March 1997 deceased phoned appellant & told him their relationship was over. Two days later, appellant went to deceased's flat, but she was adamant about her refusal to continue the relationship, whereupon appellant attacked her with a knife in a fit of rage. Had never had a girlfriend before coming to Australia & meeting deceased. Defence of provocation.
Whether error in directing jury that in considering the objective test of provocation under s.23(2)(b) Crimes Act (NSW) the personal characteristics of the accused to be attributed to the ordinary person do not include the accused's ethnic or cultural background - whether NSWCCA bound by HC decisions on provocation: Stingel (1990) 171 CLR 312, Masciantonio (1995) 183 CLR 58, Green (1997) 191 CLR 334 - Crimes Act 1900 (NSW) s.23(1), s.23(2).
Appeal dismissed.
64

GRIFFITHS, David - CCA, 14.2.2001
James & Whealy JJ
Citation: R v Griffiths [2001] NSWCCA 32
Sentence appeal.
2 x armed robbery; + take & use MV taken into account.
Aggregate sentence: MT 4y 10m, AT 1y 8m.
Robberies committed upon the same pharmacy in Penrith, some 8 days apart. Prior to the 1st robbery, applicant stole a MV which he used to drive to the pharmacy. He entered the pharmacy, produced a knife & told assistant he wanted all the Normison tablets. Assistant directed him towards a shelf & he emptied the lot into a plastic bag. He then asked for Rohypnol. Assistant told him the pharmacy did not keep that drug & applicant became agitated. When told there was another similar drug, he emptied the entire shelf into the bag. He demanded cash (taking approx $1,000). The 2nd time applicant robbed the pharmacy, he again produced a knife. On this occasion, he wore a balaclava. He demanded Rohypnol & was again told it was not stocked. He demanded Normison & cleared the entire shelf into a bag. He tried unsuccessfully to open the cash drawer, then left the pharmacy. The female assistant who was a victim of the 1st robbery successfully identified a photograph of the applicant as being the person who had committed the 1st robbery. When applicant was initially interviewed by police, he denied committing any armed robbery, however, he made a number of admissions which tended to incriminate him & was charged with the 1st robbery. Soon after, he told police he wished to be re-interviewed. He then admitted committing both robberies, although his recollection of them was poor. Both offences committed in order to feed drug habit.
Long criminal history, not of similar type though - offences committed whilst on parole.
Whether sentence manifestly excessive.
Appeal dismissed.
65

BLACK, Scott Leonard - CCA, 16.2.2001
James & Whealy JJ
Citation: R v Black [2001] NSWCCA 41
Sentence appeal.
Robbery using corporal violence.
3y 1m, with NPP of 1y 8m.
On the night of the offence, at around 9.20 pm, the applicant joined a queue of people waiting to go through the checkout area of a supermarket in Potts Point. Applicant punched the female operator on the left side of her face with his fist, knocking her to the floor. He reached into the open cash register drawer & took approx $230 in bank notes. He escaped & was pursued by a number of people who saw him entering some grounds. Police arrived, accompanied by a police dog, & located him. The supermarket had video surveillance which captured the commission of the crime. Applicant wore no disguise, from which the sentencing judge deduced that there was no great premeditation involved.
Guilty plea - aged 20 at time of offence - long history of drug & alcohol abuse - 'disturbed young man'- 'predominant histrionic & anti-social clinical personality pattern predicting extremely dramatic impulsive exploitive approach to others'- strongly affected by cocaine & heroin on night of offence, had spent all his money on drugs & wanted more - decision to do the robbery described by expert as a 'brain snap'.
Sentencing judge exercised erroneous approach in sentencing applicant.
Appeal allowed: resentenced to 2*y with NPP of 16m.
66

ATKIN, Stephen Bruce - CCA, 20.2.2001
Mason P, Whealy & Howie JJ
Citation: R v Atkin [2001] NSWCCA 54
Crown appeal.
4 x supply prohibited drug (methylamphetamine); + 3 matters on a Form 1 taken into account.
Aggregate 2*y, with NPP of 12m. Guilty plea.
In November 1998, respondent was stopped by police & searched. In his backpack, they found a pair of blue jeans. Inside a pocket of those jeans, was a film canister containing 2 resealable plastic bags. One contained 10.3 grams methylamphetamine with a purity of 2%, the other 2.5 grams methylamphetamine with a purity of 15%. A number of empty resealable plastic bags, a set of electronic scales, a teaspoon, a straw & a plastic jar containing glucodine were found in the backpack. The methylamphetamine had an estimated street value of $2,500. In February 2000, while on bail for above, respondent supplied methylamphetamine on 3 occasions to an undercover police officer who was taking part in an authorised undercover operation. Total amount of money received by applicant for those 3 supplies was $300.
Aged 42 at trial - prime carer of 2 children aged 10 & 15 - mother of children killed in car accident shortly after prisoner arrested - history of alcohol & drug abuse - priors for possessing & using prohibited drugs.
Sentencing judge backdated above sentence to commence on date respondent went into custody, however, those sentences were concurrent with sentences already imposed for 2 unrelated driving offences, requiring respondent to serve only another 42 days after the expiration of the 2nd sentence for driving whilst disqualified.
Crown submission that sentencing judge erred by taking into account period respondent had been in custody, which was attributable to sentences imposed for other offences.
Appeal dismissed.
67

HEMRAJ, Sunhil Dhiraj - NSW SC, Kirby J, 14.3.2001
Citation: R v Hemraj [2001] NSWSC 159
Fitness hearing
Accused became unfit during the course of his trial.
Accused was indicted for murder, however, he pleaded not guilty to murder & entered a plea of guilty of manslaughter on the basis of diminished responsibility. The matter proceeded upon that basis.
Crown case was that the accused repeatedly struck the deceased with a hammer in a flat they shared. While accepting he had caused the death of the deceased, the accused had no recollection of having done so. The defence case was that at the relevant time he was suffering from an abnormality of mind. During the trial, a Crown witness gave evidence that whilst the accused's behaviour had been somewhat bizarre, he was of the view that at the relevant time he was not suffering from an abnormality of mind. The Crown case then closed. During the weekend, it became obvious to the accused's counsel that there had been a deterioration in the accused's mental state. The accused believed that if the Crown witness was right in his opinion, then he, the accused, was the victim of some conspiracy & he now believed himself to be not guilty. Expert evidence was then obtained from Dr Westmore & Dr Milton.
Applying the test of unfitness, accused found unfit to stand trial.
Referred to Mental Health Review Tribunal.
68

DIXON, Garry John - CCA, 16.3.2001
Mason P, Giles JA, Whealy J
Citation: R v Dixon [2001] NSWCCA 39
Conviction appeal.
2 x sexual intercourse; 2 x incite to commit act of indecency (all counts with child under 10).
Aggregate 4y with NPP of 18m.
Not a strong Crown case, relying significantly upon evidence of complainant, with no corroboration, medical or otherwise. There was a delay of some years before complaint was made. Complainant claimed to have told appellant's niece about alleged offences. However, when appellant's niece gave evidence, a different story emerged than that from complainant. At trial, defence suggested complainant's family had put their heads together to persuade her to fabricate the story to pay back the appellant for running off with another woman. At trial the mother of the complainant said complainant had told her something once but she did not believe her as appellant did not come across 'as that sort of person'When, much later, complainant told her great uncle, he took her to the police. Inconsistencies between the complainant's version of what she said she told her uncle & his version of that conversation.
Error in failing to give adequate directions on use of complaint evidence - directions that were given contained factual suggestions not supported by evidence - error in instructing jury that if they reached a verdict of guilty or not guilty on the 1st charge, they would find the same verdict on all other charges - prejudice - caution - delay.
Appeal allowed: new trial ordered.
69

PAKISTAN, Nissan - CCA, 28.2.2001
Heydon JA, Barr J, Smart AJ
Citation: R v Pakistan [2001] NSWCA 49
Conviction and sentence appeal.
Sexual intercourse without consent & at the time did maliciously inflict ABH; sexual intercourse without consent.
Aggregate MT 1y 9m, AT 3y 3m with a recommendation applicant be deported (a native & resident of New Guinea).
Applicant pleaded guilty on the 3rd day of trial. The jury were invited to return a verdict but were unable to reach a unanimous decision. Accordingly, the judge discharged the jury & convicted the applicant of both offences. It was the effect of communications that took place between applicant & his legal advisers on the 3rd day of trial that caused him to change his plea. By that time the complainant had already given evidence.
Complainant & applicant were known to each other. Applicant phoned complainant early one morning, asking if he could stay at her premises, to which she agreed. When he arrived, complainant let him in, then she got into bed. He got into bed with her. This was not the first time they had shared a bed. She had allowed him to share her bed in the past. However, this time, he put his arm around her & she told him to behave. Complainant said that applicant then started pushing & punching her. She told him to stop & started banging on the wall & calling for help. Eventually, the complainant ran out of strength & decided the best way to cope with the situation was to pretend she was dead. After that, applicant twice had penile-vaginal sexual intercourse with her. A neighbour heard the complainant's screams & phoned the police. Police arrived during or immediately after applicant's second act of sexual intercourse. They noticed his face was scratched & that the complainant was dishevelled & had blood on her face. She made immediate complaint of rape & police arrested the applicant.
Whether plea entered under improper pressure from legal advisers.
Leave to appeal refused.
70

HURA, Darren Tahu - CCA, 16.3.2001 - 121 A Crim R 472
Spigelman CJ, Simpson J, Carruthers AJ
Citation: R v Hura [2001] NSWCCA 61
Conviction appeal.
2 x AOABH; 1 x act of indecency; 2 x sexual intercourse without consent.
Appellant pleaded guilty to the 1st AOABH charge (which constituted an assault upon his de facto) & not guilty to all other counts. The other AOABH was perpetrated upon his son. The act of indecency involved him urinating on his de facto. The sexual intercourse without consent charges involved the appellant requiring his de facto to perform fellatio & also penile vaginal penetration, in both cases in circumstances of aggravation by threatening her with ABH. During the course of the Crown evidence, appellant indicated he wished to change his plea to guilty on all 5 counts. He was re-arraigned & pleaded guilty to all counts. The jury was discharged & the judge proceeded with a hearing on sentence, which was adjourned to a later date. At that later hearing, appellant indicated he wished to withdraw his plea of guilty in relation to the last 4 counts on the original indictment. The sentencing judge determined that by virtue of s.91(2) Criminal Procedure Act, he had no jurisdiction to allow a withdrawal of the guilty pleas.
Jurisdiction - whether acceptance of guilty plea constituted miscarriage of justice.
Appeal dismissed.
71

BOZKUS, Fatih Rustu - CCA, 5.3.2001
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Bozkus [2001] NSWCCA 68 revised - 19/03/2001
Conviction appeal.
5 x sexual intercourse without consent.
Verdict by direction on one count - convicted on other 4 counts.
Basis of Crown case was the evidence of the complainant. Crown case that complainant was a sex worker who agreed to have sexual intercourse with appellant for payment. This then occurred. However, the complainant claimed that afterwards the appellant used force to engage her in a number of other acts of sexual intercourse, without her consent. Appellant admitted he did have sexual intercourse with the complainant, but that the acts were consensual & that he had not sexually assaulted her. Complainant gave evidence with respect to the 4 counts, but failed to give evidence with respect to the 5th count, which led to the verdict by direction. Appellant did not give evidence.
Appellant's failure to give evidence - directions to jury incorrect - Weissensteiner (1993) 178 CLR 217; RPS (2000) 199 CLR 620.
Appeal allowed: new trial ordered.
72

BRYANT, John Paul - CCA, 9.3.2001
Sperling J, Spigelman CJ, Carruthers AJ
Citation: R v Bryant [2001] NSWCCA 81
Sentence appeal.
1 x AOABH.
2y with NPP of 1y.
Appellant attacked the victim over money allegedly owed by the victim to the appellant's friends. He elbowed the victim to the left eye, grabbed him in a headlock & dragged him, pushed him onto a bed then punched him to the mouth. Appellant left the room briefly & the victim managed to escape through the bedroom window. He ran to a nearby coffee shop & the police were called. Appellant was arrested later that day. Victim suffered superficial lacerations to lower lip, left upper eyebrow & the bridge of his nose. The appellant pleaded guilty to the charge of AOABH. The sentencing judge deferred passing sentence upon the condition that the appellant enter a 5y GBB. About a month after sentence, appellant stole 12 vinyl records from an acquaintance & sold them to a second-hand dealer for $12. He was convicted for that offence & also for obtaining money by deception & was fined. He further breached the recognizance by failing to attend the Probation Service on 2 occasions & attending late on 2 further occasions. Appellant received a notice requiring him to present himself at Coffs Harbour District Court for sentence. He failed to do so. A bench warrant was issued, he presented himself & was taken into custody, bail refused. Appellant was subsequently sentenced for the offence of AOABH. As at the time of the CCA hearing, appellant had already been in custody for over 6 months.
Aged 36 at time of offence - prior offences, including property, drug, assault & driving offences - prior convictions - long-term alcohol & drug addiction.
Whether sentence manifestly excessive - special circumstances.
Appeal allowed: resentenced to 6m FT (appellant released immediately).
73

KAVANAGH, Aiden - CCA, 19.3.2001
Studdert & Barr JJ
Citation: R v Kavanagh [2001] NSWCCA 78
Sentence appeal.
Attempt discharge loaded firearm with intent to do GBH; possess unlicensed firearm.
Aggregate 8y with NPP of 5y.
Applicant & complainant were married in London & had one child. It was a stormy marriage - applicant had a drinking problem. Complainant left applicant & settled in Australia. Applicant came to Australia for a short time, then returned to London. He came back again the following year. The day before the offences, applicant met with complainant & told her he was going back to the UK the following day & requested a meeting with complainant & the child for the following day. Early the next day, he contacted complainant & they met at lunch time & discussed their relationship. Complainant agreed to pick up applicant later in the day to take him to see their child one more time, then she would take him to the airport. Late that afternoon, she picked up complainant & drove to the day care centre where the child was. While still in the car, applicant pulled out a gun & said 'I'm sorry to have to do this to you but I can't live without you'Complainant grabbed the barrel of the gun & during a struggle the bullets fell out. She then ran into the day care centre where she took shelter with her son until police arrived.
Applicant's version of events was that they had made a suicide pact.
Aged 42 at time of offences - chronic bi-polar disorder - no priors - episodes of violence in relationship.
Insufficient weight given to applicant's psychiatric condition - insufficient weight given to fact that no injury was suffered by complainant - insufficient weight given to plea of guilty - sentence manifestly excessive.
Appeal dismissed.
74

DAVIS, Troy Clayton - CCA, 8.3.2001
Meagher JA, Hulme J, Smart AJ
Citation: R v Davis [2001] NSWCCA 70
Sentence appeal.
Murder - MT 12y, AT 4y.
Sentencing judge sentenced both the applicant and his step-brother, a co-accused, but on different occasions & on somewhat different material which led to different findings being made in the 2 cases regarding factual matters. The deceased was killed when he was shot in the head with a rifle while asleep.
Guilty plea - cowardly killing while affected by alcohol & under step-brother's influence - belief in provocative acts of deceased - suffering from some degree of depression.
Insufficient weight given to guilty plea, assistance to authorities - parity - special circumstances - whether sentence excessive.
Appeal dismissed.
75

McLEAN, Lawrence - CCA, 21.3.2001 - 121 A Crim R 484
Beazley JA, Wood CJ at CL, Greg James J
Citation: R v McLean [2001] NSWCCA 58
Sentence appeal.
Count 1: conspiracy to import commercial quantity cannabis - 16y with NPP of 11y;
Count 2: conspiracy to engage in money laundering - 5y with NPP of 3y;
Count 3: arranging a marriage to assist in acquisition of a visa - 3m FT;
Count 4: conspiracy to engage in money laundering - 5y with NPP of 3y. All sentences concurrent.
Applicant was the leader of a cannabis importation & money laundering syndicate with members in Australia, the Philippines, Thailand, Germany & the UK. The syndicate was divided into cells where members, subservient to the applicant & reliant upon him for their income, performed various roles needed for the importation of cannabis, its landing & distribution, as well as the laundering of the proceeds of sale. One large importation of cannabis effected by the applicant ran into millions of dollars worth of drugs. Millions of dollars in cash were uncovered.
Applicant submitted that although he made it clear to his legal representatives at trial that he wished to challenge some of the facts alleged in the statement of facts, he was inappropriately advised & consequently sentenced upon a basis involving a greater degree of objective criminality.
Inappropriately advised on ability to challenge facts - error in individual deterrence component taken into account - failure to look sufficiently at applicant's age - sentence manifestly excessive.
Appeal allowed in part: sentence for Count 1 quashed & proceedings remitted to the DC for redetermination.
76

SLATER, Darren Alan - CCA, 7.3.2001 - 121 A Crim R 369
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Slater [2001] NSWCCA 65
Sentence appeal.
Murder.
MT 18y, AT 6y.
Applicant had originally been sentenced to life imprisonment. In November 1999, his sentence was redetermined pursuant to s.13A Sentencing Act & he received the above sentence.
Applicant & co-offender, both aged 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 co-offender. Applicant punched her & asked co-offender to hand him a baseball bat. Applicant used the baseball bat to strike the victim across the back of the head, he then removed her jeans & boots with co-offender's assistance. Both offenders 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.
A worst category of case but not requiring a sentence for natural life - sentencing judge misinformed as to period served in protective custody - appellant re-sentenced on basis that he will serve virtually the whole sentence in protective custody.
Appeal allowed: resentenced to 21y with NPP of 16y.
77

WOODWARD, Christopher Paul - CCA, 23.3.2001
Studdert & Barr JJ
Citation: R v Woodward [2001] NSWCCA 90
Sentence appeal.
Aggravated dangerous drive occasioning death.
MT 5y, AT 3y.
Applicant & his passenger had been drinking heavily on the night of the accident. Late that night, applicant was driving the passenger home when his motor vehicle left the road & collided with a power pole. The passenger died from injuries sustained in the collision. Applicant had a blood alcohol level of 0.216. At trial applicant claimed there was some mechanical failure in the steering. This seemed to be supported by eyewitnesses who saw the accident occur. However, the sentencing judge sentenced the applicant on the basis that mechanical defect in the vehicle played no part in contributing to the cause of the accident.
Error in objective circumstances - error in sentencing on basis that mechanical defect played no part - insufficient weight given to subjective circumstances - insufficient weight given to remorse.
Appeal dismissed.
78

RUGARI, Mario Anthony - CCA, 9.3.2001 - 122 A Crim R 1
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Rugari [2001] NSWCCA 64
Conviction and sentence appeal.
1 x malicious wounding.
4y with NPP of 3y.
Appellant had an ongoing intimate relationship with complainant who was staying at his home. On the evening of the offence, appellant & complainant went to a nightclub with 2 friends. During the evening, complainant danced with an old boyfriend which made appellant jealous. He left the nightclub without saying anything to the others. Some hours later complainant & the 2 friends returned to appellant's home. Appellant had put complainant's clothing in garbage bags & left them outside his home. Complainant said she went into the kitchen to get some beer in the refrigerator which belonged to her. Appellant swore at her & told her to get out. According to complainant, she threw the beer back into the fridge & turned around to walk out of the house. She said appellant then lunged at her & stabbed her in the stomach with a kitchen knife. The female friend came to the door & she gave evidence that complainant called out that the appellant had stabbed her. She pulled the complainant away. Appellant is alleged to have said 'I haven't finished with her yet'The friends then drove complainant to hospital where she underwent an operation.
Crown prosecutor exceeded reasonable restraints in addressing the jury.
Conduct of Crown prosecutor - whether closing address by prosecutor contained inappropriate & prejudicial comments - whether possibility that trial miscarried as a consequence.
Appeal allowed: new trial ordered.
79

HUANG, Min - CCA, 21.3.2001
LIN, Wen Shyang
Studdert & Barr JJ
Citation: R v Huang & Lin [2001] NSWCCA 76
Sentence appeal.
Huang: Guilty plea to 1 x supply prohibited drug (heroin) on 3 separate occasions - 8y with NPP of 6y.
Lin: Guilty plea to 1 x supply prohibited drug (heroin) on 3 separate occasions - 8y with NPP of 5*y;
1 x supply heroin - 2y FT.
Police undercover operative met Huang on 3 separate occasions & obtained heroin from him after making arrangements with him so to do. Huang obtained the heroin from Lin on behalf of the operative. In all, 458.3 grams of heroin were supplied with a purity of between 70 & 73%. The total amount of money the police operative paid for the heroin was $96,000.
Huang: Insufficient discount for plea of guilty - error in finding guilty plea not evidence of contrition - submitted that the bulk of offenders who plead not guilty to supply commercial quantity heroin are sentenced to 8y or less.
Lin: Error in concluding guilty plea not evidence of contrition - remorse - willingness to assist authorities.
Appeal dismissed.
80

VO, Phuc Tan - CCA, 14.3.2001
Ipp AJA, Wood CJ at CL, Simpson J
Citation: R v Vo [2001] NSWCCA 67
Conviction appeal.
1 x aggravated B&E & commit a robbery; 1 x robbery in company.
Aggregate 8y with NPP of 4y.
Intruders broke into female victim's home at night when she & her son were asleep. Intruders woke them up & demanded money. The son was hit on the back with a steering wheel lock, at which time the mother ran to the neighbours to get help. Intruders had their faces covered & spoke in Vietnamese, hence the victim & her son were unable to identify them. Crucial to the Crown case was the finding of the appellant's fingerprints & palmprint on the doors of the house. These were recent prints. Appellant argued they had been left there by him on a lawful visit to the house more than 9 months before the robbery.
On appeal, appellant submitted that evidence given by the owner of the house & her son as to the regular cleaning of the doors was lacking in credibility & that the jury ought to have entertained reasonable doubt as to guilt of appellant.
Verdicts unreasonable.
Appeal dismissed.
81

HASSAN, Brahim - CCA, 23.3.2001
DARWICH, Ali
Studdert & Barr JJ
Citation: R v Hassan & Darwich [2001] NSWCCA 88
Sentence appeal.
Multiple offences: dispose of stolen MVs; receive stolen MVs; accessory before the fact to the disposal of a stolen vehicle.
Aggregate 5*y with NPP of 3y 3m.
Findings of special circumstances were made in each case.
The offences were detected in the course of a police investigation. The criminality in Hassan's case related to different MVs from the criminality in Darwich's case. The pattern of behaviour in each applicant was similar. Although not working in unison, they were engaged in what the sentencing judge referred to as 'stolen vehicle rebirthing'.
Whether sentences excessive.
Appeal dismissed.
82

WIGGINS, Scott Lyle - CCA, 15.3.2001
Mason P, Giles JA, Whealy J
Citation: R v Wiggins [2001] NSWCCA 60
Conviction appeal.
Sexual intercourse without consent.
Crown case was that sexual intercourse occurred when complainant was asleep, that she had not consented & the appellant had known that she was not consenting. Appellant maintained complainant was not asleep at the time & that she behaved in a manner which showed that she consented & led him to believe she was in fact consenting to the intercourse.
Essential conflict over whether complainant asleep at the time of the offence.
Whether verdict unreasonable.
Appeal dismissed.
83

WILLARD, Michelle - CCA, 2.2.2001 - 120 A Crim R 450
Simpson & Dowd JJ
Citation: R v Willard [2001] NSWCCA 6
Sentence appeal.
2 x attempt obtain money by deception; + attempt obtain financial advantage by deception taken into account.
MT 4y, AT 8m.
Special circumstances found - psychiatric & psychological evidence as to applicant's mental & emotional state.
All offences committed in one month. Applicant was the beneficiary in 2 insurance policies taken out on the life of her husband. Applicant made false claims on insurance companies, saying her husband had been killed when he was very much alive. Insurance companies became suspicious & made investigations when applicant failed to produce a Death Certificate. The offence taken into account involved applicant signing a contract for the sale of a second-hand Jeep Cherokee for just under $25,000. On being assured she was expecting money from an insurance company, the car salesman released the jeep into applicant's custody. After failure to pay, the jeep was repossessed.
Aged 31 at time of offences - record for dishonesty offences - 10 counts of false pretences in Children's Court - subsequently convicted on numerous counts of false pretences - stealing - making false statement with intent to obtain financial benefit - numerous counts of passing cheques not met on presentation - not previously imprisoned.
Assistance to authorities - hardship on applicant's young children - failure to give adequate weight to psychological & psychiatric evidence - full-time incarceration a punishment of last resort - whether sentence excessive.
Appeal dismissed - formal orders dismissing appeal deferred.
84

MFA - CCA, 21.3.2001
Heydon JA, Burr J, Smart AJ
Citation: R v MFA [2001] NSWCCA 71
Conviction and sentence appeal on counts 7 & 8.
Assault & commit act of indecency upon male (aged 15); homosexual intercourse with male (aged 15).
Count 7: 2*y FT.
Count 8: sentence not noted.
Appellant indicted on 9 counts of sexual offences: acquitted on 7 counts, found guilty on counts 7 & 8.
Crown case was that the offences occurred in a caravan on the property of a mutual acquaintance. Appellant denied any sexual impropriety with the complainant. Conflicting evidence given by complainant & another. Complainant did not approach police, they approached him.
Whether verdicts unreasonable having regard to the evidence & to the verdicts of not guilty on other counts. - whether sentences excessive.
Conviction appeal dismissed.
Sentence appeal on Count 8 dismissed.
Sentenced appeal on Count 7 allowed: resentenced to 15m FT.
85

HARRISON, Leonie Maree - CCA, 9.3.2001 - 121 A Crim R 380
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Harrison [2001] NSWCCA 79
Crown appeal.
2 x BE&S; 3 x receiving.
2y PD with NPP of 18m.
Respondent was the driver and lookout for her co-offender who entered & robbed the premises constituting the BE&S charges. After the 2nd of these offences, police stopped their car & discovered stolen electrical items in the boot & on the back seat. During the course of a search executed at the respondent's home, police discovered property that had been stolen on other occasions.
Aged 36 at time of appeal - repeat offender - long history of previous convictions - full-time custodial sentence appropriate in circumstances.
Error at first instance due to imposition of a global sentence for different offences - sentence manifestly lenient.
Appeal allowed - resentenced to: BE&S 3y with NPP of 18m; receiving 18m FT (concurrent).
86

BAKER, Ley Thomas - CCA, 23.3.2001
Studdert, Dowd & Barr JJ
Citation: R v Baker [2001] NSWCCA 96
Sentence appeal.
Aggravated sexual intercourse without consent.
MT 12y, AT 4y.
Not guilty plea to above count, as well as to a count of armed robbery. Before evidence was presented, trial judge was asked to determine the question of admissibility of certain tendency evidence, referable to past offences committed by applicant. Sentencing judge ruled such evidence was admissible. Applicant then changed his plea to one of guilty to the aggravated sexual intercourse without consent. Crown did not pursue the robbery count which was no billed.
Complainant was a prostitute. Applicant threatened complainant with a knife, then tied her hands behind her back & gagged her with a piece of cloth. She told him he didn't have to do that & he threatened to kill her if she moved or said anything. He then removed her pants & had anal intercourse with her. When he'd finished, he started looking through her bag. Complainant tried to get her hands free, applicant then cut the tape binding her hands, again threatened her with the knife, then told her to get her clothes & get out of the van. Although she was naked from the waist down, she immediately got out of the van. As she was doing so, a police car entered the laneway. They searched applicant's van & found a knife & other items related to the offence.
Aged 48 at time of offence - appalling record for aggravated sexual offences - first such offence committed in 1972 - a number of custodial sentences - 20 years spent in prison in all - described as a model prisoner.
Expert opinion of psychiatric disorder, personality disorder, but treatable.
Whether sentence manifestly excessive.
Appeal dismissed.
87

LENNAN, Peter - CCA, 12.2.2001
James & Whealy JJ
Citation: R v Lennan [2001] NSWCCA 17
Sentence appeal.
2 x supply prohibited drug (cannabis leaf) - Aggregate 3y with NPP of 12m.
The 1st offence came to light when telephone conversations from the applicant's home were intercepted by police. On the basis of conversations intercepted, police calculated that applicant had during a period of little less than a month supplied 5,783 grams cannabis leaf. Individual supplies of cannabis leaf varied between 1 oz & 1 pound. This was not disputed by defence counsel. Police executed a search warrant at applicant's home & found 671.5 grams cannabis leaf in a bag in a shed, which exceeded the trafficable amount for cannabis. This finding gave rise to the 2nd charge. Applicant made full admissions in an ERISP - identified people on the tapes of intercepted telephone conversations.
Aged 28 at time of offences - supplied cannabis for monetary gain - applicant's own use of cannabis had led him to supply to others - no previous criminal record - guilty plea at earliest opportunity - contrition - unlikely to re-offend.
Matter could have been dealt with in the LC - co-offenders dealt with in LC - parity - whether sentence manifestly excessive.
Appeal dismissed.
88

IBRAHIM, Taarruz - CCA, 27.3.2001
Priestley JA, Kirby & Howie JJ
Citation: R v T Ibrahim [2001] NSWCCA 72
Conviction appeal.
Count 1: steal MV; Count 2: rob; Count 3: rob with corporal violence; Count 4: rob.
The trial judge directed a verdict of not guilty in respect of Counts 3 & 4. The trial then proceeded on the remaining counts.
Joint enterprise involving several counts - effect of acquittal on some counts - appropriate direction - admissibility of evidence relating to counts in respect of which applicant was acquitted.
Whether miscarriage of justice because trial counsel failed to seek discharge of jury after verdicts by direction were given for Counts 3 & 4 - verdicts unreasonable & cannot be supported by evidence.
Appeal allowed: convictions set aside, new trial ordered in respect of Counts 1 & 2.
89

PICCIN, Kay - CCA, 9.2.2001
Giles JA, James & Hulme JJ
Citation: R v Piccin [2001] NSWCCA 35
Conviction appeal - Malicious wounding; stalking. 2y GBB.
Appellant was indicted upon 5 charges, found not guilty of 3, but guilty of the above offences.
The offences occurred following the break-up of a relationship between the appellant & the complainant.
Inconsistent verdicts - credibility of complainant was so diminished that it became an unreliable basis upon which to base the conviction - the verdict of guilty on Count 1(b) was inconsistent with the verdict of not guilty on Count 2 - the summing up did not correctly define stalking with the result that the jury applied the wrong test - verdict of guilty on Count 3(b) unreasonable - the existence of intent to cause fear of personal injury cannot be supported on the evidence as the only reasonable inference - the trial miscarried by reason of the failure of the trial judge to discharge the jury after a juror declared himself to have a bias - inadequate directions on character.
Appeal allowed in part. Conviction on Count 3(b) (stalking) quashed
90

PEDRANA, Raymond Grant - CCA, 23.3.2001 - 123 A Crim R 1
Ipp AJA, Wood CJ at CL, Simpson J
Citation: R v Pedrana [2001] NSWCCA 66
Conviction appeal - referral to CCA pursuant to s.474H(2)(a).
1 x armed robbery.
MT 5y, AT 1y 8m.
The appellant was convicted of the armed rob offence & received the above sentence. He subsequently appealed against his conviction , however, his appeal was dismissed: R v Pedrana, unreported, NSW CCA, 11.6.1992.
In April 2000 appellant applied under s.474D of the Crimes Act for an inquiry into his conviction. That inquiry was undertaken, after which the matter was referred to the CCA pursuant to s.474H(2) for consideration of the question as to whether the conviction should be quashed.
Fresh evidence.
Appeal allowed: conviction quashed, verdict of acquittal entered.
91

NAJJARIN, Domenique - CCA, 1.3.2001
Ipp AJA, Simpson J, Carruthers AJ
Citation: R v Najjarin [2001] NSWCCA 46
Conviction appeal.
3 x AOABH. On 1st count 2y GBB; on remaining 2 counts 12m PD (concurrent).
Same complainant in respect of all 3 offences, the 1st offence committed 2 months prior to the others.
Complainant lived with appellant & became pregnant with his child. He told her to move out because his female cousin was coming to live with him. She later discovered the woman was not his cousin but was the mother of appellant's child Domenique Junior. Appellant used to take this child over to the complainant's house where she looked after him. This, according to the complainant, occurred every day. Complainant gave birth to a baby boy. Complainant said appellant used to visit her regularly. On one such occasion, she was in the kitchen & appellant & Domenique Junior were upstairs when she heard Domenique crying. Appellant came downstairs with the child, went to the kitchen then started punching the complainant, saying it was her fault the child was crying. She fell down & he kicked her 2 or 3 times. She was severely bruised. Later she moved in with appellant who still had the other woman living with him. One night, complainant walked into the other woman's bedroom & found her having sexual intercourse with appellant. She immediately returned to her own room. Appellant came into her room & started hitting her with his fist. He then left the room, the other woman came in & spoke to complainant, she left, then appellant came back in, this time with a baseball bat. He struck her twice on the right side of her ribs then left the room.
Conflicting evidence at trial. A doctor gave evidence that complainant had in the past told him she was living in a violent relationship. There was also evidence of this from her mother & from a friend. The other woman living with the appellant at first supported the complainant's evidence, but retracted at trial.
Unreasonable or insupportable verdict.
Appeal dismissed.
92

ARMSTRONG, Angela - CCA, 19.3.2001
Studdert & Barr JJ
Citation: R v Armstrong [2001] NSWCCA 77
Sentence appeal.
Supply prohibited drug (cocaine) - MT 1*y, AT 1*y.
While working in Kings Cross as a disc jockey, applicant was offered work as a street seller of cocaine but declined the offer. She subsequently lost her job & found that she had no way of paying her rent & other living expenses. She decided to support herself by distributing cocaine. She became a 'runner', working for an organisation engaged in the distribution of drugs. Her function as a runner was to take one or more capsules, each containing 0.2 grams of cocaine & sell it for in excess of $50. She would then return $50 per capsule to the supplier & keep the difference for herself. All communication between runner & supplier or organiser was made by phone. Applicant was selling 5 capsules per day on 5 days per week at first, but that amount tapered off. After a couple of weeks in the job, she had second thoughts about what she was doing but was unable to extricate herself, partly because of fear of what her suppliers might do to her & partly because she had become addicted to heroin. They were supplying her with the drug.
23 at time of offence - full & frank admissions - guilty plea at earliest opportunity - since arrest, with the help of her mother, had cured herself of her heroin addiction - naive - need for professional support & direction.
Whether sentence manifestly excessive.
Appeal dismissed.
93

ROBERTSON, Troy Robert - CCA, 28.3.2001
Studdert & Barr JJ
Citation: R v Robertson [2001] NSWCCA 95
Sentence appeal.
3 x robbery in company; 1 x armed robbery; + similar offences on Form 1 - Aggregate MT 6y, AT 2*y.
Four of the above offences perpetrated upon people in the street & one in a car park. Victims ranged in age from a 13 year old schoolboy to some who were pensioners.
Offences committed over a period of 2 days.
Almost 20 at time of offences, 21 at sentence - long criminal record - offences to fund a drug habit - a number of offences dealt with in Children's Court - prior imprisonment - disturbed childhood - abusive & violent father - left home at age 16, lived with grandmother for a short period, then lived on the street.
Insufficient weight given to guilty plea - accumulation of sentences produced a sentence too long having regard to applicant's age, prospects of rehabilitation & other subjective matters.
Appeal dismissed.
94

BARTON, Kevin Anthony - CCA, 5.3.2001 - 121 A Crim R 185
Spigelman CJ, Sperling J, Carruthers AJ
Citation: R v Barton [2001] NSWCCA 63
Crown appeal.
Use weapon to prevent lawful apprehension; BE&S; + 27 counts on a Form 1 taken into account (goods in custody, receiving, assault, AOABH, larceny, stalking/intimidation, BE&S, take & drive conveyance unlawfully, possess/use prohibited weapon, possess/use unauthorised firearm, possess unauthorised ammunition, threaten injury with intent to prevent lawful apprehension) - Aggregate 4y with NPP of 2y.
Police were trying to locate respondent in connection with a number of offences & received information that he was at certain premises. They attended those premises, saw him leave in a utility vehicle & followed him. At one point, respondent stopped his vehicle, made a phone call, then drove on, police following him. Respondent turned into a driveway, turned his vehicle around & started driving back along the road. Police activated the light on top of their car, hoping respondent would stop. Instead, he drove directly towards the police vehicle which braked heavily. Respondent continued coming straight for it & hit it at about 80 kph, causing the front of the police vehicle to be totally destroyed. One police officer suffered a whiplash injury.
BE&S offence involved respondent & 2 others breaking into a bowling club, ransacking it & stealing liquor, money from a cigarette dispenser, a safe containing $3,860 as well as keys to the club & poker machines.
Aged 34 at time of appeal - marked intellectual limitations - appalling criminal record starting at age 15.
Whether sentencing judge gave inadequate weight to seriousness of substantive offences on indictment & 27 offences on Form 1 - strong deterrent element when sentencing for using a weapon with intent to prevent lawful apprehension - appropriate influence on sentence of matters listed on Form 1.
Appeal allowed: resentenced to 6y with NPP of 3y.
95

PHILLIS, Brett Robert - CA, 28.3.2001
Heydon JA, Bell J, Smart AJ
Citation: R v Phillis [2001] NSWCCA 91
Sentence appeal.
15 x obtain money by deception; + 56 offences of obtain money by deception taken into account - aggregate MT 18m, AT 12m (sentences to date from 18.7.2000.)
1 x possess counterfeit money - 6m (sentence to date from 1.1.2000.)
Applicant commenced a business which did not do well. His production & distribution costs exceeded sales income. He tried unsuccessfully to get a bank overdraft, then resorted to drawing cheques in order to meet his financial obligations, well knowing there were no funds available to meet those cheques. The total value of cheques drawn was $240,329.36.
Applicant found a bag of money at a bus stop. He phoned the Epping Police Station, whereupon he was told to take the bag of money into the police station. However, he went to a Post Office to buy money orders. Despite strong suspicions that the money might not be genuine, applicant claimed he did not become aware that it was counterfeit money until he handed over $1,800 at the Post Office.
Mental element concerning counterfeit money - whether sentence excessive.
Appeal allowed on sentence for possess counterfeit money charge: resentenced to 1m for that offence. Starting dates for other sentences adjusted.
96

JOHNSTON, Shane Michael - CCA, 23.3.2001
Studdert & Barr JJ
Citation: R v Johnston [2001] NSWCCA 93
Sentence appeal.
1st trial: 3 x BE&S; + 5 matters taken into account - 4y with NPP of 3y.
2nd trial 1 x BE&S - 3y with NPP of 2y 3m.
The offence in the 2nd trial had been committed at about the same time as those taken into account in the 1st trial & could have been dealt with at that trial, however, the offence was overlooked at that stage & by the time the 2nd trial came up, it was too late to deal with it in that manner.
Submitted on appeal that total term imposed in 1st trial was manifestly excessive. CCA expressed surprise the length of the sentence imposed in the 2nd trial was not attacked. Submitted on appeal that both sentencing judges fell into error in declining to fix NPPs less than * of the terms of the relevant sentences.
Aged 25 at sentence - prior criminal history since 16 - previous imprisonment & home detention - told judge in 1st trial he began offending because he was bored, continued to do so to feed a drug habit. Serving his sentence on protection at his own request because of threats made within the gaol system.
Guilty plea - need for supervision - rehabilitation - special circumstances - whether sentence excessive.
Appeal dismissed.
97

CAMPBELL, Allan Alexander - CCA, 23.3.2001
Studdert & Barr JJ
Citation: R v Campbell [2001] NSWCCA 89
Sentence appeal.
4 x sexual intercourse - aggregate MT 4*y, AT 3y;
5 x indecent assault - 2y FT (concurrent);
2 x acts of indecency - 12m FT (concurrent)
Offences committed upon applicant's 4 year old granddaughter. All acts of intercourse involved him licking the child's vulva. Acts of indecent assault & of indecency related to applicant fondling her genitals through her underpants & also directly, as well as getting the child to fondle his penis. The applicant's marriage had developed problems & he moved to his daughter's home. He began to babysit his granddaughter on a regular basis. One day, the child complained to her mother that her genitals were sore. The mother noticed the exterior parts were blistered. She took the child to the doctor & after some tests were run, the child was diagnosed as having herpes. The only other person in the household with herpes was the applicant. The mother spoke to the child who told her everything the applicant did to her. The mother then reported the matter to an officer of DOCS. She told the applicant that it was his choice to go to the police & give himself up or wait to be arrested by them. Applicant went to the police station & made full confessions in an ERISP. So detailed was his account that 14 charges were laid, however, only 11 went to trial. He asked the police to lock him up, which they did. He has remained in custody since the day of his arrest.
Sentences excessive in view of a single short episode of criminality not involving penetration - guilty plea at earliest opportunity - whole of custodial part of sentence to be spent in protective custody.
Appeal allowed on 4 counts of sexual intercourse: resentenced to aggregate 5y with NPP of 3y.
98

ARMANIOS, David - CCA, 23.2.2001
Grove & Simpson JJ
Citation: R v Armanios [2001] NSWCCA 110
Sentence appeal.
Armed robbery offences on 2 indictments; 2 further offences on a Form 1 - Aggregate 8y with NPP of 6y.
Limited details in judgment. Victim in each case was a retail trader. All offences committed to support a drug habit. The 1st of a total of 6 offences occurred in 1998, the other offences occurring much later when applicant was on bail. Applicant had appeared before the DC & pleaded guilty to the 1st offence. This was a charge of robbery in company & the presiding judge determined it was appropriate for referral to the Drug Court. Applicant seemed encouraged by this & showed some promise shortly after the referral to the Drug Court, however, he was refused participation & there was the subsequent outbreak of further offences. Although not an excuse, it 'is a matter that can be taken into account as one of the overall circumstances touching the applicant'.
Aged approx 24 at time of appeal - guilty plea - intellectual handicap.
Absence of reference to guilty pleas - absence of reference to fact that applicant would spend his time in custody in protection - intellectual disability rendering applicant unsuitable vehicle for any element of general deterrence - failure of sentencing court to advert to matters of mitigation.
Appeal allowed: resentenced to aggregate 6y with NPP of 4y.
99

ZREIKA, Haysam - CCA, 19.2.2001
Grove & Hulme JJ
Citation: R v Zreika [2001] NSWCCA 106
Sentence appeal.
1 x supply prohibited drug (cocaine).
MT 18m, AT 6m.
Applicant was stopped by police in his MV & given an infringement notice for defective tyres. During the course of investigation, they searched the applicant & whilst removing his underpants a white sock containing white powder fell out. No other details given regarding the offence.
Aged 21 at time of sentence - guilty plea - prior offence: robbery just 5 days short of 18th birthday.
Sentencing judge made reference to previous conviction, stating applicant had committed it just after he turned 18. This was erroneous. Sentencing judge also made remarks with reference to PD applicant received for that offence saying that at the time of the commission of the subject offence, he was not living up to expectations in respect to his PD sentence. This was erroneous. He had attended at least on the last 5 occasions he had been required to attend.
Whether error in law - whether sentence excessive.
Appeal dismissed.
100

WHITE, John - CCA, 21.2.2001
Grove & Hulme JJ
Citation: R v White [2001] NSWCCA 108
Sentence appeal.
Robbery in company; steal from the person in circumstances of aggravation; AOABH.
MT 3y 3m, AT 1y 9m.
1st offence: Crown alleged White & co-offender were together in the city on the night of offences. Applicant was holding a didgeridoo. A little after midnight, a young man, who was a musician, was standing on Elizabeth St near the corner of Park & Elizabeth waiting for his brother to pick him up. Applicant & co-offender approached him & applicant asked him for a cigarette, then started feeling the victim's pockets & removed $7.00. Threats were made to the victim but no violence ensued.
2nd offence: Applicant & co-offender then accosted 2 more young men near corner of William & Elizabeth Sts. Applicant took a mobile phone from 1st victim & threw it to co-offender. 1st victim remonstrated with co-offender then tackled him & a fight ensued. 2nd victim joined the fight to protect his friend & applicant struck him on the head with the didgeridoo. He fell to the ground. In the meantime, the 1st victim was kicked & punched by the co-offender. He also stomped on the 1st victim's head & chest. Applicant urged him on, saying 'kill him, kill him'There was eyewitness evidence that both men kicked the 1st victim while he was on the ground. The 1st victim was a small man with a very slight physique. The trial judge described him as 'in the order of half the size of the co-offender'.
Whether sentence excessive.
Appeal dismissed.
101

TIER, Terrence John - CCA, 29.3.2001 - 121 A Crim R 509
Sheller JA, Grove & Kirby JJ
Citation: R v Tier [2001] NSWCCA 53
Conviction appeal.
Applicant charged with knowingly take part in manufacture commercial quantity amphetamines. He pleaded not guilty & was subsequently convicted. On appeal, the conviction was quashed & a new trial ordered. A similar order was made for his co-accused. The new trial of both the appellant & the co-accused began in May 1999, however, after 7 weeks, the jury was discharged. A week later, a new jury was empanelled. When the Crown case was almost complete, the appellant failed to appear, enquiries were made & it was ascertained that he had been admitted to the psychiatric unit of the Royal Prince Alfred Hospital.
Trial judge failed to observe requirement of the Mental Health (Criminal Procedure) Act 1990 concerning an accused person's unfitness to be tried.
Unfitness for trial due to mental illness - long running trial - whether issue raised in good faith - obligation to halt trial & resolve issue of unfitness.
Appeal allowed: new trial ordered.
102

DE SOUZA, Terence Clifford - CCA, 23.3.2001
Studdert & Barr JJ
Citation: R v De Souza [2001] NSWCCA 94
Sentence appeal.
4 x use false instrument; 15 x fraudulent misappropriation; 1 x dishonestly obtain financial advantage; + offences taken into account: 15 x use false instrument, 19 x make false instrument, 32 x fraudulent misappropriation.
Aggregate MT 4y, AT 3y.
Applicant was an insurance agent with AMP. Over 5 years, he repeatedly advised policy holders to surrender policies & invest funds in a pooled investment with AMP & Macquarie Bank. He told them that the income from the fund would be tax free & would not affect pension rights. Altogether there were 23 victims in his scheme, a large number of them pensioners. Not all could fully understand, read or write English & all relied upon the advice of the applicant. The investment account the applicant told the policy holders about did not exist. There was no such association between AMP & Macquarie Bank. By fraudulent means, the proceeds of the surrendered policies were credited to a bank account in the name of the applicant & his wife. Applicant used these funds for his own purposes. His wife knew nothing about them. The total amount of money misdirected was about $1,500,000.
Inadequate consideration to: effect of sentence on applicant's family - financial restitution made by applicant & his family - confession - assistance - guilty plea - prospects for rehabilitation - desire to spend balance of sentence on home detention - whether sentence manifestly excessive.
Appeal dismissed.
103

KNIGHT, John Adrian (aka BLACK, David) - CCA, 30.3.2001 - 120 A Crim R 381
Heydon JA, Studdert & Greg James JJ
Citation: R v Knight (aka Black) [2001] NSWCCA 114
Conviction appeal.
13 x make false statement; 5 x forge document deliverable to a public authority; 1 x attempt open bank account in false name; 1 x operate bank account in false name - 4y with NPP of 18m.
There was a great deal of evidence from which a jury could infer appellant knew documents were false. His fingerprints were found on a number of them & there was other circumstantial evidence connecting him to some of them. Crown case relied very heavily on evidence of a handwriting expert who compared samples of appellant's handwriting with documents connected with various charges. Without that evidence, Crown case would have been much weaker & there may not have been a case at all in respect of some counts. The sample of handwriting used by the expert came from three P59B forms & a letter written by appellant to the SC in relation to his bail.
Admissibility of handwriting samples - particulars of identification - statutory authority to require particulars in accused's handwriting when in custody - provision of handwriting sample not an admission - NSW Police Instructions not improper.
Sole ground of appeal: 'Learned trial judge's discretion under s.138 Evidence Act miscarried when he was considering application to exclude P59B forms from evidence & he was in error in not excluding them'.
The ground asserted that examples of the appellant's handwriting on standard police forms (P59B forms) should not have been allowed as evidence on which expert opinion expressed at the trial could be based.
Appeal dismissed.
104

CARPENTER, Steven - CCA, 21.3.2001
Studdert & Bar JJ
Citation: R v Carpenter [2001] NSWCCA 87
Sentence appeal.
Malicious wounding - 4y 10m with NPP of 2y 10m (special circumstances found).
Victim was walking with female friend when applicant approached in opposite direction. He was well affected by liquor & waving his hands around, saying 'I'm the man you're the boy'Victim & friend walked past applicant to the front gate of their premises. Applicant yelled out 'I'm not finished with you yet'Victim stood in front of his female friend to protect her & the applicant knifed him in the stomach. Victim was taken to hospital, having sustained internal injuries. He had to have his spleen removed. Other injuries involved 2 lacerations of the bowel & a wounding of the pancreas. Female friend saw the applicant the following day & recognised him, police were called & the applicant arrested.
Aged 52 - lengthy criminal history - alcohol problem - attempts to address alcohol problem since arrest.
Applicant appeared in the CCA in person, seeking a reduction of the MT.
Leave to appeal refused.
105

HEMSWORTH, Benjamin - CCA, 21.3.2001
Studdert & Barr JJ
Citation: R v Hemsworth [2001] NSWCCA 86
Sentence appeal.
1 x dangerous drive occasioning death
5y with NPP of 3y (finding special circumstances)
Applicant originally also faced charges for 1 x manslaughter; 2 x dangerous drive occasioning GBH, however, he was acquitted of those charges.
Applicant was driving in a speed zone that fluctuated between 60-70 kph. Witnesses gave evidence they estimated he was travelling at speeds of up to 100 kph. He changed lanes to overtake vehicles, cut in front of other vehicles when the kerbside lane ran out, resulting in a number of drivers having to take evasive action. He was travelling close behind a utility van. They proceeded up a hill & over a blind crest. Just over the crest was a parked car & the utility van braked very heavily, skidded & crashed into the parked car. Applicant tried to swerve to avoid the utility van but lost control, mounted the median strip & crossed into oncoming traffic, colliding with another vehicle. The passenger of that vehicle was killed instantly. Applicant was seriously injured & admitted to hospital where a blood sample was taken. Analysis of the blood sample showed a reading of Delta 9 THC 0.019 mg per litre & Delta 9 THC acid 0.020 mg per litre.
Failure to take account of mitigating factors - error in finding applicant abandoned responsibility for conduct - insufficient weight given for rehabilitation - applicant taking evasive action to avoid injury to others.
Appeal dismissed.
106

MORGAN, Joseph - CCA, 19.2.2001
Grove & Hulme JJ
Citation: R v Morgan [2001] NSWCCA 104
Sentence appeal.
Robbery in company; larceny of MV; + offence of drive whilst disqualified taken into account.
Aggregate MT 4y 1m, AT 3y (period spent in pre-trial custody taken into account).
This was a planned crime. A number of men, one equipped with a sledge hammer, forced entry into a jewellery store. They had equipment that gave them access into more secured areas of the store. Total value of jewellery taken was more than half a million dollars. Robbers escaped in the stolen vehicle in which they had arrived at the jewellery store. Nearby police fired some shots & the applicant was wounded. At time of trial, only the applicant had been arrested & charged, although there were obviously other offenders involved. A considerable amount of loot was not recovered. High degree of seriousness.
Aged 26 at time of appeal - Aboriginal - appalling record - prospect of spending most of his life in gaol if he does not reform.
Applicant appeared for himself in the CCA - encountering difficulty in being in maximum security - experienced tension, hatred & violence in prison which he perceives as related to his Aboriginality.
Appeal dismissed.
107

SPEEDING, Bradley Adam - CCA, 21.3.2001 - 121 A Crim R 426
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Speeding [2001] NSWCCA 105
Crown appeal.
5 x armed robbery; 1 x robbery simpliciter.
Concurrent & varying sentences giving an aggregate of 5y 3m with a NPP of 2y 9m.
The 6 offences occurred in a space of 6 months. The offences were described by his Honour in the reasons for a finding of special circumstance as the product of an 'uncharacteristic period of antisocial and criminal behaviour over a short period of time'Victims gave evidence that respondent told them he did not wish to harm them, he merely wanted their money.
Failure to give sufficient weight to multiplicity of offences & the fact that 2 were committed whilst on bail - failure to give sufficient weight to serious impact on victims - lack of reasonable proportionality between objective gravity of offences & subjective matters - error identified in not accumulating any of the sentences.
Appeal allowed: resentenced to aggregate and partially accumulated sentences (to be reduced by 65 days) of 7y 3m with NPP of 4y 9m.
108

VERGARA, Brandon Lee - CCA, 23.3.2001
Wood CJ at CL, McClellan J, Smart AJ
Citation: R v Vergara [2001] NSWCCA 24
Conviction appeal.
Import trafficable quantity cocaine.
8y with NPP of 5y.
Appellant arrested on arrival in Sydney with a friend on a flight from Buenos Aires. He had a black suitcase which was found to contain cocaine. When interviewed, he denied any knowledge that the suitcase contained cocaine. He said he had recently gone to Miami where he met his friend who arranged for payment for airfares & accommodation to South America & then to Australia for a vacation. He had no knowledge of who paid for the tickets or how they were arranged. Some strange story about helping a friend pay back a debt by taking the vacation in Australia. Claimed that while in Panama, a man came to the hotel room & exchanged appellant's & friend's suitcases with cases that were eventually brought into Australia. Appellant said he thought something might have been altered in the suitcases, but when he checked them he found nothing. Claimed he had no knowledge of arrangements to meet anyone in Sydney, no knowledge the bags were to be given to someone in Sydney & no knowledge of there being drugs in the suitcase. Significant issue at trial was knowledge.
Directions to jury regarding knowledge - intent - whether actual knowledge of possession of drugs was required or whether it was sufficient if the Crown proved that the appellant was aware there was a significant or real chance that he was in possession of the drugs.
Appeal dismissed.
109

BRIDGES, Alan Graham - CCA, 21.3.2001
Dowd & Barr JJ
Citation: R v Bridges [2001] NSWCCA 92
Sentence appeal.
Robbery in circumstances of special aggravation.
MT 3y 10m, AT 3y (pre-sentence custody taken into account).
Applicant & 4 others went to a remote property to steal cannabis. Victim lived & ran an engineering business on the property. Applicant & co-offenders arrived at about 9 pm. Victim was lying on a couch watching TV when 3 offenders forced their way into the building. One co-offender punched victim in the head & applicant struck him on the leg with a metal torch. They tied victim's hands behind his back, put a hessian bag over his head, then beat him about the head & body. They half carried, half dragged him to a house that was under construction on the property & tied him to a timber wall with his hands above his head. One of the men dislocated victim's middle finger. They then left, taking a drum of cannabis & a rifle. Victim managed to free himself but was exhausted & unable to do anything until the following morning. He then discovered his telephone had been disabled & his 4-wheel drive stolen. He drove an unregistered vehicle to Grafton Base Hospital, where he was found to have a compound fracture of the skull, a displaced cheek bone, broken ribs, a broken right leg & dislocated finger. After some enquiries, police spoke to offenders. One offender undertook to give evidence on behalf of the Crown against the others.
Applicant & the co-offender who took part in the beating of the victim received the same sentence, however, the co-offender appealed & his sentence was reduced.
Parity.
Appeal dismissed.
110

CIMONE, Phillip David - CCA, 29.3.2001 - 121 A Crim R 433
Beazley JA, Studdert & Sperling JJ
Citation: R v Cimone [2001] NSWCCA 98
Crown appeal.
Robbery in company; larceny; receive stolen property.
Aggregate 3y with NPP of 2y PD.
Respondent & 3 co-offenders accosted victim in a car park adjacent to a railway station & made him drive to a remote reserve. At the reserve, a knife was placed at the back of victim's neck & he was robbed of his wallet containing $100, as well as personal papers, his watch & mobile phone. Victim was held hostage by 2 co-offenders while respondent & the other co-offender drove victim's car to an ATM & withdrew $500 from his bank account. They used threats of personal harm in order to obtain his PIN number. Upon returning to the reserve, respondent & co-offenders fled in victim's car, leaving victim in the reserve. Victim unharmed but he had been threatened with harm if he reported the matter to police.
Young offender - guilty plea - assistance to police - rehabilitation - effects of principles of parity.
Fitted profile in R v Henry guideline judgment.
Whether sentence excessively lenient.
Appeal dismissed.
111

CHANTHABOURY, Sisouphanh - CCA, 23.3.2001 - 120 A Crim R 505
Wood CJ at CL, McClellan J, Smart AJ
Citation: R v Chanthaboury [2001] NSWCCA 74
Sentence appeal.
Import trafficable quantity cocaine - 7*y with NPP of 4*y.
Applicant went to trial & pleaded not guilty. The jury was unable to reach a verdict & was discharged. On the 1st day of the new trial, he pleaded guilty. Applicant was Brandon Lee Vergara's co-offender (see R v Vergara [2001] NSWCCA 24). His suitcase contained cocaine concealed in the framework. He said he bought his suitcase 2 months previously & denied any knowledge of cocaine. He took part in a controlled delivery & made & received various phone calls to & from a person in Columbia. A man named Elvis Power arrived at the motel to collect the cocaine & was arrested by Australian Federal Police. In an ERISP, applicant admitted he knew he was importing cocaine, although he did not know the quantity or how it came to be in the suitcase. At trial, he maintained that he imported the cocaine under duress.
Failure to make sufficient allowance for assistance to authorities - need for Court to be guided by principles in Wong & Leung - relatively young man - 1st time offender - guilty plea
Appeal allowed: resentenced to 6y with NPP of 4y.
112

HAINES, Jade Andrew - CCA, 30.3.2001
Studdert & Barr JJ
Citation: R v Haines [2001] NSWCCA 111
Sentence appeal.
Counts 1&2: robbery in company - 5*y with NPP of 2*y, Count 3: steal from the person - FT 2y (concurrent), Count 4: cultivate prohibited plant - FT 12m (concurrent).
Robberies in company & steal from the person committed late at night near Moree Leagues Club. Applicant & others approached a man as he left the club & asked for a cigarette. The man walked away. Applicant karate-kicked him in the back. He fell to the ground & was attacked by the others & his wallet taken. Victim regained his feet, tried to escape, was tackled from behind & repeatedly kicked & punched by applicant & others. Shortly after attack, another patron left the club & was also attacked. He was karate-kicked in the back by applicant, tried to escape but was again karate-kicked by applicant, then beaten & kicked by the group. This attack was observed by 2 friends - a male & a female. The male was holding female's handbag for safe keeping. Applicant approached him, demanded the handbag, threatened the man, grabbed the bag & removed a wallet containing cash, a driver's licence & other personal items. Applicant was known to & recognised by this male & was soon apprehended by police. He told police he had no recollection of above events because he had been drinking & taking drugs. He said he grew his own cannabis & had 2 plants under cultivation but declined to say where they were because he wanted them to be there when he was released from custody.
Aged 22 at time of sentence - bad criminal record - on recognizance at the time of above offences - disadvantaged background - dysfunctional family - drug & alcohol problem - mental health problems.
Parity - whether sentences excessive.
Appeal allowed in part: Counts 1&2 - 4y with NPP of 1y 9m; Count 3 - FT 1y 9m (concurrent)
113

GUINAN, Sean Gerrard - CCA, 6.3.2001 - 121 A Crim R 196
Meagher JA, Hulme J, Smart AJ
Citation: R v Guinan [2001] NSWCCA 55
Conviction and sentence appeal.
Conducting cash transactions to avoid reporting; import trafficable quantity ecstasy.
Aggregate total of 9y with NPP of 6y.
Appellant sent $54,000 to his brother in the UK made up of a number of payments, each under $10,000. Four payments were each of $8,500 & were made on the same day.
Customs officers intercepted a parcel posted from London containing 2,500 tablets of MDMA addressed to a Phillip Johnson in Crows Nest with appellant's mail box number on the parcel. A yellow slip was placed in the mail box stating there was a bulky parcel available for collection. Appellant collected the yellow slip, went to the counter, renewed his lease of the box & received the parcel. He was later found with it under the seat of his car. He also had approx 40 sealable plastic bags with him at the time of his arrest. A week later another parcel arrived at the mail boxes containing 2,500 tablets of MDMA. Wholesale lots of 1,000 had been purchased in the UK for between $AUD27,000 & $AUD61,000. Wholesale value in Australia was between $AUD75,000 & $AUD125,000, the maximum retail value if sold individually was $500,000.
Whether trial miscarried as a result of Crown Prosecutor's assertion the jury might find it strange appellant did not call evidence from his brother - error in trial judge instructing jury that defence contended the only reasonable explanation consistent with innocence was that someone sent the drugs to accused's post box by mistake - error in trial judge inappropriately cross examining appellant such as to question his veracity.
Appeal dismissed.
114

PHAM, Duc Thuan - CCA, 26.3.2001
Greg James J, Smart AJ
Citation: R v Pham [2001] NSWCCA 101
Sentence appeal.
Supply prohibited drug (heroin) - FT 2y;
supply commercial quantity prohibited drug (heroin) - MT 4y, AT 2y. Sentences concurrent.
Applicant was approached by undercover police officers & supplied slightly over 7 grams heroin for $1,900. He agreed to supply them with a pound of heroin. Later agreed to supply 10 ounces heroin for $68,000. He involved his wife in the delivery of the 10 ounces & she was arrested with that amount in her possession.
Guilty plea - drug addiction - willingness to enter rehabilitation programme - bad record for drug offences.
Submitted that sentence excessive - deprived of contact with daughter & son - been subjected to attack in prison - now to serve sentence in protection because of attack - discount - insufficient regard to guilty plea.
Leave to appeal refused.
115

ANDERSON, David Frederick - CCA, 30.3.2001
Wood CJ at CL, Greg James J
Citation: R v Anderson [2001] NSWCCA 115
Sentence appeal.
1 x BE&S; 1 x larceny; 1 x detain for advantage; + 2 offences on a Form 1 (possess prohibited drug; enter enclosed lands without lawful excuse) - Aggregate 7y with NPP of 5y 2m.
Applicant one of a gang of 3 people who laid in wait for a bread vendor outside a bakery. They entered the premises & tied the man up with electrical cord, put him into the freezer & put a pillow-slip over his head. They stole a large quantity of cigarettes & then escaped. It seems a gun was present during the offence.
Applicant & another man threw a brick through the window of a hairdressing business & stole a cash register. They drove off with the cash register on the back of their vehicle. When they came across police investigating another matter, they tried to hide the cash register by placing it under the car.
Applicant arrested, bail refused. He remained in custody for approx 6* weeks until the CCA granted bail.
Aged 26 - appalling prior record for multiple convictions for dishonesty offences - little in record to suggest violence - basically unemployed - gambling problem - expressed remorse for what had been done to the baker but no remorse for taking cash register.
Failure to have regard to period in custody bail refused.
Appeal allowed: sentences & NPP backdated.
116

KLEIN, Lucy Pearl - CCA, 19.3.2001 - 121 A Crim R 90
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Klein [2001] NSWCCA 120
Crown appeal.
Import trafficable quantity cocaine.
3y 9m, with NPP of 2*y.
Respondent arrived in Australia from South Africa & was identified by Customs officers for a full baggage search. An ion scan of some of her belongings tested positive for the presence of cocaine. She was informed of this & she admitted carrying narcotics concealed on her body & in her shoes. There was a package of cocaine taped around her waist & packages of cocaine in her shoes with a gross weight of 960.3 grams & a pure cocaine weight of 513.7 grams. Street value was between $296,000 & $370,000. Respondent made full & frank admissions & named acquaintances involved in the drug enterprise & offered to take part in a controlled delivery, however, for operational reasons, the police did not go ahead with a controlled delivery.
Guilty plea - assistance - contrition - took part in the offence in order to raise money to help meet her debts.
Whether sentence manifestly inadequate.
Appeal dismissed.
117

KALPAXIS, Angelo - CCA, 2.4.2001 - 122 A Crim R 320
Stein JA, Wood CJ at CL, Studdert J
Citation: R v Kalpaxis [2001] NSWCCA 119
Crown appeal.
Offer to supply large commercial quantity cocaine.
2y suspended upon condition respondent enter GBB for that period.
Respondent had spent 5m 10d in custody prior to sentence referrable to above offence.
Respondent had offered to supply cocaine to a man who contacted police & was later introduced to NCA investigators & became a registered informant. In order for the deal to take place, the respondent told the informant he needed $10,000 to get back to Greece to organise the supply. He also showed the informant a photograph of the boat which he said would be used to transport the cocaine to Australia. A number of meetings occurred over the following months. However, the boat never arrived & no cocaine was ever imported. There was no evidence that the supply would ever take place. The respondent did not have the ability to supply the cocaine. Sentencing judge described the case as 'extraordinary'It was merely a ruse in order for the respondent to obtain money so that he could spend time with his father & family in Greece whilst his father was dying of cancer.
Aged 52 - made restitution to the NCA in the sum of $10,070.
Concern expressed by the CCA about appropriateness of charging offences of this nature under supply provisions; that they should be dealt with by a separate section of the legislation; and that if it continues in the present manner there may be a skewing in the JIRS statistics which may have the capacity to mislead courts in the future.
Appeal dismissed.
118

COUPE, Christine - CCA, 28.3.2001
Greg James J, Smart AJ
Citation: R v Coupe [2001] NSWCCA 112
Sentence appeal.
Aggravated BE&S; + 3 further BE&S offences taken into account on a Form 1 - 4*y with NPP of 3y.
The aggravation was that the offence was accompanied by the infliction of corporal violence.
Applicant broke into victim's home & while rifling through the household possessions, victim & her daughter approached her. A scuffle broke out, during which victim suffered some minor bruising, lacerations & a minor wound. Applicant had taken from various places in the house $50 in cash, a watch, a pair of sunglasses, a $US1 note & a torch. She was restrained by the family at the scene until police arrived & took her away. Pleaded guilty, although, as the sentencing judge remarked, she was caught 'red handed'.
Long criminal history - multiple convictions - special circumstances. Proportion of NPP to total sentence.
Appeal allowed: resentenced to 4*y with NPP of 2*y.
119

KILBORN, Jonathon David - CCA, 30.3.2001
Wood CJ at CL, Greg James J
Citation: R v Kilborn [2001] NSWCCA 116
Sentence appeal.
Dangerous drive occasioning GBH on the basis of intoxication - 3y with NPP of 2y.
Applicant was travelling at 70 kph in a 60 kph zone when he hit a stationary taxi & the taxi driver who was standing next to the vehicle. The taxi driver suffered traumatic brain damage, as well as a fracture to his shoulder & soft tissue injuries to a knee. A statement given by a witness indicated that applicant's vehicle was travelling at 100 kph. This statement was not in evidence before the sentencing judge & both counsel for the applicant & the Crown prosecutor drew this fact to the judge's attention. The competing versions were noted by the sentencing judge in his reasons for sentence, although without any specific finding as to applicant's speed. He had earlier stated 'I don't think it makes much difference any way. I certainly wouldn't accept from him either on his oath or to the police, that he was going at 70 kilometres an hour.'Whether the sentencing judge still held that view when pronouncing sentence should have been made known.
Material taken into account not in evidence - sentence manifestly excessive - subjective factors.
Appeal allowed: resentenced to 2*y with NPP of 15m.
120

WILKES, Stephen John - CCA, 21.3.2001 - 122 A Crim R 310
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Wilkes [2001] NSWCCA 97
Conviction appeal.
Murder.
On day 2 of trial, appellant's brother was cross-examined by Crown & gave evidence he saw appellant strike deceased with a wooden paling. Trail counsel then advised appellant they would lose the case & suggested he plead guilty in order to get a lighter sentence. Appellant changed his plea to guilty, which was formally entered. When appellant appeared for sentence, he sought leave to withdraw his plea of guilty, having been advised by trial counsel he considered his earlier advice to have been incorrect.
Trial judge erred in refusing leave to withdraw plea of guilty - plea was entered in circumstances amounting to a miscarriage of justice under s.6 Criminal Appeal Act.
Appeal allowed: new trial ordered.
121

GREENHALGH, Gary Grant - NSW SC, Adams J, 30.3.2001
Citation: R v Greenhalgh [2001] NSWSC 272
Remarks on Sentence.
Manslaughter.
Charged with murder, pleaded guilty to manslaughter in full discharge of indictment.
Accused, some friends & deceased were involved in a drinking bout over a period of some 2 days. An argument broke out during the night of the killing between accused & deceased. Accused walked over to deceased who was sitting on a bed & punched him hard, knocking him back onto the bed. Then accused punched him some more. Deceased left the room, walked outside & the accused followed him, trying to get the deceased to fight him. Accused punched deceased again, whereupon the deceased fell to the ground. Accused tried to kick him but did not manage to do so, then walked away from the deceased, who was then still alive, & returned to his unit. Some 6 hours later, the deceased, who was still lying on the ground outside, died from a subdural haemorrhage.
History of alcoholism - claimed he did not remember the fight - priors for assaults & thefts - average to low intelligence - not premeditated.
Sentenced to 8y with NPP of 4*y.
122

TRIPODINA, Joseph Anthony - CCA, 9.4.2001
Dowd J, Smart AJ
Citation: R v Tripodina [2001] NSWCCA 136
Sentence appeal.
Obtain financial advantage by deception (multiple counts) - Aggregate 6*y with NPP of 4*y.
Extensive defalcations by senior employee over a long period of time involving a large amount of money. Applicant was the financial controller of the company.
Almost 39 at appeal - no priors - guilty pleas entered at earliest opportunity - remorse & contrition - pathological gambler - depressive illness predating gambling problem - receiving treatment for gambling problem - made restitution of $230,000 to the company in full & final settlement of claims against applicant.
Undue emphasis on adverse features - error in accumulating sentences - strong subjective circumstances not reflected in sentence.
Appeal dismissed.
123

RADJU, Wartha - CCA, 19.3.2001 - 53 NSWLR 471; 121 A Crim R 403
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Radju [2001] NSWCCA 103
Conviction appeal.
3 x obtain valuable thing by deception.
During the trial, a juror requested permission to withdraw from jury duty & trial judge discharged the juror. No formal order sought by trial counsel. At the end of the summing up, judge indicated that if the jury was unable to reach a decision that day, they should notify the Sheriff's Officer & then leave without returning to the court. They could then resume their deliberations the next morning.
The sole ground of appeal was a fundamental failure of procedure going to root of trial process in (1) failure to make an order pursuant to s.22 Jury Act when discharging juror; (2) failure to make an order in express terms pursuant to s.54 Jury Act when allowing the jury to separate.
Appeal dismissed.
124

CEISSMAN, Scott Edward - CCA, 16.3.2001 - 119 A Crim R 535
Ipp AJA, Wood CJ at CL, Simpson J
Citation: R v Ceissman [2001] NSWCCA 73
Crown appeal.
Knowingly concerned in importation of trafficable quantity cocaine - 3y with NPP of 18m.
A package addressed to respondent containing a teddy bear intercepted at Australia Post Mail Handling Unit at Mascot. Cocaine powder concealed inside teddy bear amounting to pure net weight of 344.4 grams, with street value $137,000-$172,000. Respondent made full & frank admissions. Said he received a number of parcels in the past & that for every parcel he was paid $50. Acknowledged remitting monies to USA which had been provided by people who ultimately collected packages. Sentencing judge found that respondent's role in subject offence confined to receiving & holding the package until collected from him.
Departure from Wong & Leung - overstatement of case - risk of misapplying decision in Fernando - double allowance for subjective circumstances - sentence manifestly lenient.
Appeal allowed: resentenced to 4*y, with NPP of 2y 9m.
125

SZELENCZY, Janos - CCA, 16.3.2001
Ipp AJA, Wood CJ at CL, Simpson J
Citation: R v Szelenczy [2001] NSWCCA 75
Sentence appeal.
Import trafficable quantity cocaine - 9y with NPP of 5y.
Total weight imported 953.3 grams with 65% purity, giving total weight of 614.4 grams pure cocaine.
Applicant flew to Europe, some weeks later arrived in Sydney & was searched by Customs officials who found a DHL shipping label for a parcel sent from Frankfurt to applicant's address in Rose Bay. Applicant exchanged telephone calls with number of people including 2 co-accused about non-arrival of parcel. Some days after applicant arrived in Sydney, DHL employees found parcel consigned to applicant at Rose Bay address from Joseph Kovac of 3 Essington St, Frankfurt. It had mistakenly been diverted to Austria, hence the delay. Customs officials x-rayed parcel & found it contained large hard-covered bible with hollowed-out core, inside of which was a wax-covered block of cocaine wrapped in tape & covered in gel. Co-accused were with applicant when parcel was delivered to his unit. They left & were arrested. Police entered applicant's unit & found him with $1,000 in cash in each hand & parcel unopened on a coffee table. It was later found the Frankfurt address & telephone number did not exist & that the name Kovac was an alias.
Low in hierarchy - 'mere courier'- personal circumstances - antecedents - sentence manifestly excessive.
Leave to appeal refused.
126

ELLIOTT, Shane William - CCA, 4.4.2001
O'Keefe J, Smart AJ
Citation: R v Elliott [2001] NSWCCA 131
Sentence appeal.
9 x BE&S; 2 x steal from dwelling; + 1 x larceny taken into account - MT 5y, AT 3y;
Take & drive conveyance without consent - FT 18m.
In a little under 8 months, appellant broke into & entered 9 private homes & stole a considerable amount of property. The total value of items & cash taken amounted to $31,815, of which $28,135 was not recovered.
At the time of the offences, applicant was on conditional liberty subject to a suspended sentence for the same type of offence. One of the conditions imposed was that he enter Odyssey House for treatment of his drug addiction. He went to Odyssey House but only stayed for a short period, not able to tolerate the structure & objecting to having to report minor & major transgressions of others. Applicant appeared for further sentencing & received MT 11m, AT 3m
Aged 22 & 23 at time of offences - record including dishonesty offences, drug offences, being carried in conveyance without consent of owner, goods in custody, multiple offences of BE&S - prior convictions.
Overall sentence fixed without fixing appropriate sentence for each offence - need to apply principles in Pearce v the Queen - totality.
Appeal allowed: various sentences imposed for each count, giving aggregate total of 6*y with a NPP of 4y.
127

GIURGIS, Mikel - CCA, 11.4.2001
Wood CJ at CL, Smart AJ
Citation R v Giurgis [2001] NSWCCA 129
Sentence appeal.
Supply heroin - 16m with NPP of 12m.
Applicant was arrested shortly after he was seen speaking to a man who had walked up to his vehicle. They had a short conversation then the man walked away. When police spoke to the applicant, he was found to have $580 in cash & 33 balloons containing a total of 5.5 grams of heroin in his possession. He claimed he had resorted to selling drugs to help finance his heroin habit.
Aged 24 - minor record, but not for drug offences - no prior custody - obtained permanent employment - elderly parents in ill-health - guilty plea from outset - demonstrated contrition.
Positive steps made by applicant towards extricating himself from drug scene after his arrest - need for applicant to be encouraged on his path of rehabilitation - need for extended period of post-release supervision - whether error in finding that no special circumstances existed.
Appeal allowed: NPP reduced to 8m.
128

DUNN, Graham John - CCA, 2.4.2001
O'Keefe J, Smart AJ
Citation: R v Dunn [2001] NSWCCA 134
Sentence appeal.
5 x BE&S; + offence of stealing taken into account - MT 2y, AT 8m.
All offences committed whilst applicant was on recognizance & all involved breaking into private dwellings & stealing property from them. The total value of goods stolen was $41,210. Applicant told police that he & 2 accomplices were spending about $800 a day on drugs. He declined to name his accomplices.
After having to accept Dept of Housing assistance, applicant's family moved to Macquarie Fields. Applicant had done well at school until that move when he started at his new public high school in Year 8. He was repeatedly bashed at this new school & soon formed associations with a negative peer group. His performance at school started to deteriorate & by the end of Year 9 he had been expelled. He failed to complete any further schooling, however, he completed part of a TAFE course in carpentry.
Aged almost 27* at time of appeal - multiple priors, including similar offences - sentencing judge remarked that applicant's criminal record was 'of no assistance to him'- long history of cannabis & heroin use - need for ongoing counselling.
Error in sentencing judge not referring to issue of special circumstances.
Appeal allowed: resentenced to 2y 8m, with NPP of 20m.
129

ATKINSON, Steven Miimetua - CCA, 28.3.2001
Greg James J, Smart AJ
Citation: R v Atkinson [2001] NSWCCA 135
Sentence appeal.
Robbery in company - MT 2y 9m, AT 3y.
Co-accused was armed with a black imitation pistol & applicant with a silver-bladed serrated-edged knife. Original charge included 'whilst being armed with a knife', but these words were struck out & applicant was charged with above offence, which involved a co-offender & applicant robbing the victim just after he had withdrawn $100 from an ATM. They demanded he withdraw more money, but before he could do so, they ran off to a nearby car & were driven away by another co-offender. The registration number of the car was taken. The following day, police stopped the car & during a search of it found 2 black beanies & a silver-bladed serrated-edge knife. They then went to the premises where the offenders were living & found some clothing as described by the victim, as well as a black imitation pistol. Aged 20 at time of offences - priors - disturbed childhood - lived in Cook Islands with family until age 4 - family returned to Australia - applicant received regular beatings from his father - at age 11 started getting into drugs, stealing, drinking - soon hooked on heroin - ran away from home - lived on the streets - involved in stealing cars - returned home at age 12 - asked to leave school - expelled from another for violence halfway through Year 9. As a baby applicant was savaged by a dog, leading to blurred vision in his left eye - physically assaulted on a number of occasions & beaten to the point of unconsciousness - intellectually disabled - living skills of child aged 8y 9m - socialisation skills of child of 5y 2m - results of tests consistent with organic brain damage.
Special circumstances - intellectual & living disabilities - prospects of rehabilitation - allowance for plea of guilty.
Appeal allowed: resentenced to 5y 3m with NPP of 2y.
130

KOOK, John Giang Dieu - CCA, 6.4.2001
Meagher JA, Hidden & Howie JJ
Citation: R v Kook [2001] NSWCCA 122
Sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
12y with NPP of 8y.
Amount of heroin involved was almost 2.5 kgs, which was concealed inside hollowed-out computer instruction books.
Whether sentence excessive - principle of parity - insufficient weight given to plea of guilty - whether greater discount ought to have been allowed for assistance given to police.
Appeal dismissed.
131

GEIGER, Hank Stephen - CCA, 11.4.2001
Wood CJ at CL, Smart AJ
Citation: R v Geiger [2001] NSWCCA 140
Sentence appeal.
Possess stolen vehicle - FT 12m;
Take & drive conveyance; BE&S - 3y with NPP of 15m;
2 x fail to appear taken into account.
Applicant was a passenger in a vehicle he knew to be stolen. He admitted he knew the vehicle was stolen when he got into it but claimed he was only in it for a short time, insisting he was not in it when it was subsequently pursued by police. Co-offender was applicant's cousin. He was sentenced in the LC & received MT 6m, AT 6m, as well as being sentenced to FT 6m for driving without a licence & dangerous drive. He was aged 19 & had priors.
Some months earlier, applicant broke into a dwelling house & stole a laptop computer, video cassette recorder, a large amount of jewellery, clothing & a set of car keys. Estimated value of goods taken was approx $13,486. The role of a different co-offender on that occasion was that of 'look out'The applicant drove the car & eventually left it in the grounds of a church. It had been extensively damaged, the repairs costing about $1,610. The failure to appear resulted from a deep-seated depression as a result of the death of his friend & co-offender in the BE&S offence
Aged 19 at time of offences - multiple priors - long history of drug abuse - considerable weight given to pre-sentence report - suffered abuse as a child - early pleas of guilty - assistance to police.
Whether possess stolen vehicle could have been dealt with in LC - parity - different factors applicable to each offender.
Appeal dismissed.
132

HAGOPIAN, Vatche - CCA, 26.3.2001
Greg James J, Smart AJ
Citation: R v Hagopian [2001] NSWCCA 149
Sentence appeal.
Supply cannabis leaf; + goods in custody & supply amphetamines (deemed) taken into account.
2y 8m, with NPP of 2y.
A woman was seen waiting in a car-park in Erskineville. Applicant entered the car parking in a Corolla sedan. The woman got into the front passenger seat. Police stopped the vehicle as it attempted to leave the car-park. They found 3 clear re-sealable plastic bags containing cannabis leaf in a back pack on the floor of the passenger's side of the car. The woman was carrying $9,900. Two clear re-sealable plastic bags containing white powder (amphetamines) were located in the applicant's right-hand trouser pocket. Also found on him was $700 & a wallet containing $488. Applicant claimed he acted as a courier in relation to the cannabis leaf in order to obtain money to buy amphetamines which he used in conjunction with body building, which had become a compulsion.
Guilty plea - close & supportive family - completed School Certificate - gainful employment.
Failure to express extent of credit given for guilty plea - rejection of material relevant to prospects of rehabilitation - failure to address special circumstances - error in drawing inference applicant guilty of offences other than those for which he was being sentenced - whether sentence manifestly excessive.
Leave to appeal refused.
133

BURRELL, Bruce Allan - NSW SC, Sully J, 5.3.2001
Citation: R v Burrell [2001] NSWSC 120
Rulings upon objections to evidence.
Murder - accused of kidnapping & murdering Kerry Whelan - body never found - Crown case circumstantial - police search - seizure of documents from accused's property illegal - search warrant did not conform to Act - documents seized not covered by description in warrant - documents not 'found'but included in wholesale seizure of documents from property - admissibility of various pieces of evidence.
Probative value of evidence, seriousness of offence & fact that impropriety intentional but not grave - courts must have regard to all matters under s.138(3) Evidence Act 1995 although do not need to mechanically go through each one.
s.135 & s.137 discretions - judge to undertake fact-finding exercise - must establish actual possibility not just opportunity or theoretical possibility of concoction - if Crown fails to exclude reasonable possibility of concoction wording of s.101 requires exclusion of evidence - judge made no error in allowing evidence.
134

DOOLIN, Seamus Padraig - CCA, 11.4.2001
Wood CJ at CL, Smart AJ
Citation: R v Doolin [2001] NSWCCA 139
Sentence appeal.
Conspire to cheat & defraud Australian Guarantee Corporation Ltd of money.
21m with NPP of 9m.
Conspiracy to defraud in commercial transactions by falsifying commonly used identification & supporting documents in order to obtain finance for motor vehicles. Six such applications in all, with the AGC paying out about $155,000. Sentencing judge found applicant was the instigator of the fraud & that the offences evidenced serious criminality. Two co-offenders, who pleaded guilty, were ready to give evidence against the applicant, however, applicant pleaded guilty just before his trial was about to start. Sentencing judge did not accept applicant's explanation that the commission of the offences was due to applicant's poor financial position, stating it to be more likely that 'he was and remains a confidence trickster'.
Prior offences of dishonesty, obtaining benefit by deception, passing valueless cheques, false pretences - good family man & father - employed as property consultant - prospects of rehabilitation poor - no remorse - potential for committing further similar offences high.
Insufficient weight given to guilty plea - error in judge's findings about applicant's financial position - parity.
Appeal dismissed.
135

H - CCA, 30.3.2001
Wood CJ at CL, Greg James J
Citation: R v H [2001] NSWCCA 117
Sentence appeal.
3 x sexual intercourse with child between 10 & 16 in circumstances of aggravation (under authority); 1 x act of indecency (with same victim); + 6 other offences included on a Form 1.
Aggregate 7*y with NPP of 5y.
Victim was applicant's step-daughter. Applicant started sexually interfering with her when she was 11 years of age. Some 2 years later, applicant confessed to his wife, whereupon the police were contacted because the wife feared that the applicant might harm himself. Applicant spoke to the police over the phone & asked them to come and arrest him. When interviewed by police, he made full admissions.
Submitted on appeal that applicant sentenced on facts not particularised - uncharged offences inappropriately taken into account - failure to give proper weight to pleas & confessions - failure to quantify discount.
Appeal dismissed.
136

NGUYEN, Thanh Van - CCA, 6.4.2001
O'Keefe J, Smart AJ
Citation: R v Thanh Van Nguyen [2001] NSWCCA 132
Sentence appeal.
Supply prohibited drug (8.26 g heroin, street value $600); + driving offences, goods in custody, attempt steal from the person, possessing State Rail concession card in the name of another, possess housebreaking implements taken into account - 3y with NPP of 18m.
Police stopped applicant after seeing him driving with his headlights dimmed & not giving indication when changing lanes. His licence had also been suspended. They searched him & found a cigarette packet containing 2 wrapped pieces of foil & 2 folded pieces of foil, which he said he got in Cabramatta. Inside the foil was a small quantity of white powder. Under the driver's seat, they found a plastic bag containing white rock powder, which applicant said belonged to his friend. In a pocket of a jacket on the rear seat they found aluminium foil, razor blades & a pair of scissors. In his ROI, applicant said he had never worn the jacket & knew nothing about the items found in it.
Police stopped applicant in Marrickville & told him to empty his pockets. They contained a number of car keys. He told police he did not at that stage have a car. Applicant was seen stealing from women's bags at Flemington Markets & was arrested by police. These offences were committed whilst applicant was on bail for the drug & driving offences.
Vietnamese - used heroin for a time - managed to get himself off of drugs - sound average intelligence - struggled to learn English resulting in a problem finding work - negative self-image - ashamed of behaviour.
Elements of 'attempt'to steal from the person - whether sentence excessive.
Leave to appeal refused.
137

NOLAN, Christopher Michael - CCA, 2.4.2001
O'Keefe J, Smart AJ
Citation: R v Nolan [2001] NSWCCA 144
Sentence appeal.
2 x robbery in company.
Aggregate 5y with NPP of 3y.
A young woman & her male friend were walking home at night after baby-sitting when they were approached by the applicant & his accomplice. At first the offenders asked for cigarettes which the young couple gave to them. The accomplice then asked for money for a taxi. This request was refused & the accomplice patted down the young male's body, then warned him he would hit him if he did not give him money. After the young male still did not give him money, the accomplice tried to punch him but missed. The applicant then struck the young male on the back of the head & knocked him to the ground whereupon both offenders kicked him in the ribs, arms & legs. The young female began screaming & the offenders knocked her to the ground & kicked her. The young male tried to help her & was again hit on the back of the head & knocked to the ground. The young woman got to her feet & was knocked to the ground again. Eventually the applicant & his accomplice fled the scene, having taken the young woman's bag.
Aged 18 at time of sentencing - troubled childhood - suffered physical violence from his father - left home aged 14 - had never had a job.
Effect of youth on sentence - rehabilitation prospects.
Leave to appeal refused.
138

DENG, Han-Ming - CCA, 20.4.2001
Handley JA, Ipp AJA, Greg James J
Citation: R v Deng [2001] NSWCCA 153
Conviction appeal.
1 x supply commercial quantity heroin; 1 x deemed supply commercial quantity heroin.
Evidence was allowed in at trial of conversations between appellant & police officers at the scene of the appellant's arrest & the search of a MV in which the heroin was found. There was some contention that police failed to caution the appellant in a language in which he was reasonably fluent. Evidence was given by a former police officer who had known the appellant for some 6 months & who was able to give some insight concerning the appellant's command of English. There was also evidence from the arresting police officer as to the appellant's command of English at the time of the conversations.
Admissibility of evidence - oral admissions - caution - to be given in language in which arrested person able to communicate with reasonable fluency - test is whether concepts sufficiently communicated so as to be understood - whether evidence relevant - whether conversations prejudicial & should have been excluded.
Appeal dismissed.
139

FISHER, Steven - CCA, 4.4.2001
O'Keefe J, Smart AJ
Citation: R v Fisher [2001] NSWCCA 143
Sentence appeal.
6 x make false instrument; 6 x use false instrument; + 48 x make false instruments & 48 use false instruments taken into account - MT 3y, AT 2y.
Applicant defrauded his employer of $248,000 by removing the names of payees from signed cheques & replacing them with a different name. The name he used was Australian Plastics and Rubber Institute, of which he was the treasurer. His position as treasurer enabled him to intercept the cheques & divert them.
Proceeds of offences used principally to repay gambling debts.
Gambling addiction - prospects of rehabilitation - had made minor recompense ($17,000).
Sentencing judge down-played rehabilitation needs.
Whether sentence excessive.
Appeal allowed: resentenced to aggregate MT 2*y, AT 2*y.
140

STUART, Paul John - CCA, 4.4.2001
O'Keefe J, Smart AJ
Citation: R v Stuart [2001] NSWCCA 145
Sentence appeal.
Robbery in company & inflicting GBH at time of robbery - MT 3*y, AT 2*y.
The manager of a Chinese restaurant was robbed & at the time of the offence, the victim was assaulted & his right cheek fractured when he was struck with the butt of a shotgun that was used for the purposes of the robbery. The shotgun was discharged during the robbery, but this appears to have been accidental when the applicant's father (a co-accused & also the ringleader) stumbled.
Applicant sought leave to appeal on ground that he received the same sentence as his father who had carried a weapon & been violent to victim, whereas applicant claimed he played a minor role, in that he was the driver of the getaway vehicle. Subjective features in relation to sentence imposed on applicant's father.
Parity.
Leave to appeal refused.
141

PATES, Stephen - CCA, 6.4.2001
O'Keefe J, Smart AJ
Citation: R v Pates [2001] NSWCCA 142
Sentence appeal.
Dangerous drive causing GBH in circumstances of aggravation - 4*y with NPP of 3y.
Applicant did not have a current driver's licence & had stolen a car 4 or 5 days prior to arrest. On day of the collision forming the above offence, police were following him in a police vehicle. Applicant tried to escape by accelerating through a 'give way'sign, then went through a red light at high speed at a busy suburban intersection & collided with another vehicle. The force of the collision trapped the driver of the other vehicle who suffered serious injuries.
Submitted on appeal that LAC did not present case as instructed (no details given in CCA & no evidence filed to support it) - failure to appear - unaware of defect in vehicle because it was stolen - hardship.
Leave to appeal refused.
142

WARD, Keith John - CCA, 6.4.2001
O'Keefe J, Smart AJ
Citation: R v Ward [2001] NSWCCA 141
Sentence appeal.
Robbery - 3*y with NPP of 2y.
In fixing NPP, sentencing judge found special circumstances in that applicant was a heroin addict & a longer period of supervision on parole than that provided by the statutory ratio was appropriate. Applicant robbed a 74 year old female pensioner who was walking along a public street. He ran up from behind & attempted to snatch her bag, however, she managed to hang on to it. Applicant threatened to kick her in the head if she did not let it go. Eventually the woman fell to the ground & applicant grabbed her wallet.
Error in judge referring to woman having been 'pushed'to the ground - error in finding victim targeted & that there was some degree of planning involved - failure to consider unpaid community work applicant had engaged in - inappropriate use made of R v Henry - error in failing to give sufficient weight to rehabilitation.
Leave to appeal refused.
143

ROCCO, Andrea - CCA, 6.3.2001
Meagher JA, Hulme J, Smart AJ
Citation: R v Rocco [2001] NSWCCA 124
Conviction and sentence appeal.
Import commercial quantity MDMA (ecstasy).
13y with NPP of 9y.
Gross weight of 17.224 kgs with a net weight of 4.027 kgs (approx 70,135 tablets).
The ecstasy tablets were imported into Australia concealed in water pumps.
Directions to jury - failure to call evidence on behalf of defence - circumstantial case - principles of parity.
Appeal dismissed.
144

TJF - CCA, 12.4.2001 - 120 A Crim R 209
Beazley JA, Studdert & Sperling JJ
Citation: R v TJF [2001] NSWCCA 127
Conviction appeal.
1 x sexual intercourse without consent in circumstances of aggravation - MT 18m, AT 18m.
Appellant has already served the MT & more than two-thirds of the AT.
Appellant was also charged with aggravated indecent assault, however, the jury found him not guilty of this charge. The alleged victim of the aggravated indecent assault was a sister of the alleged victim of the more serious offence for which the appellant was convicted.
Whether counsel's conduct incompetent - failure to apply for separate trials - conduct in respect of complaint evidence - failure to object to admissions - failure to apply for directions under s.136 Evidence Act - whether miscarriage of justice - whether failure to direct that complaint evidence may be unreliable - whether good reasons for judge to decline to give warning - consideration of warning required.
Appeal allowed: judgment & verdict of acquittal entered.
145

ADWINATA, Junaedy - CCA, 20.4.2001
Wood CJ at CL, Sully J
Citation: R v Adwinata [2001] NSWCCA 154
Sentence appeal.
Supply prohibited drug (heroin); + goods in custody taken into account on a Form 1 - 3y with NPP of 27m.
Police approached & searched applicant. He had 7 foils of heroin in his pocket, a cigarette packet containing 4 foils of heroin & a metal candy tin containing 14 foils of heroin in his backpack. Also in the tin was a small plastic bag with 2 foils of heroin, as well as a plastic bag containing 9 foils of heroin. Inside his wallet they found a piece of folded paper containing heroin. $944.75 & 2 pearl necklaces were also found in the backpack, this forming the offence on the Form 1. During an ERISP, applicant made full admissions.
Whether sentencing judge transposed reasoning & result of Wong & Leung to the context of the applicant's case without allowing for the fact that Wong & Leung was a case concerned with the Commonwealth sentencing regime rather than the NSW regime & with a different category of offence - misapprehensions entertained by sentencing judge concerning importance of relevant statistics.
Appeal dismissed.
146

GJH - CCA, 24.4.2001 - 122 A Crim R 361
Stein JA, Wood CJ at CL, Studdert J
Citation: R v GJH [2001] NSWCCA 128
Conviction appeal.
2 x indecent assault; 1 x rape.
Appellant was indicted on 4 counts of indecent assault of a female under 16 & one count of rape. He was acquitted in relation to 2 counts of indecent assault.
Failure to give Longman direction - failure to give direction on the way in which the jury ought to proceed if they were not satisfied beyond reasonable doubt that complainant was telling the truth in relation to one or more counts on the indictment - failure to give direction in relation to intoxication - failure to direct jury in relation to lies - deficient directions in relation to alibi evidence.
Appeal allowed: new trial ordered.
147

PETRINOVIC, Frank - CCA, 2.4.2001
Stein JA, Wood CJ at CL, Studdert J
Citation: R v Petrinovic [2001] NSWCCA 118
Sentence appeal.
Murder - 27y with NPP of 20y.
Applicant & co-accused were involved in the robbery of a Liquorland Bottle Shop. During the robbery, the applicant discharged 2 shots from his revolver, one of the bullets hitting the deceased in the right side of the neck which partially severed the left pulmonary artery of the left lung & travelled through the left posterior rib cage. According to the forensic pathologist who carried out the post-mortem examination, this resulted in the deceased's death. The subject offence was committed whilst applicant was on parole.
Aged 39 - appalling record - long period spent in custody - some priors committed whilst on parole - a number committed after escaping from prison - guilty plea - heroin addiction.
Whether sentence excessive.
Appeal dismissed.
148

HOLT, Lawrence - NSW SC, Sully J, 5.4.2001
Citation: R v Holt [2001] NSWSC 260
Application for directed verdict of acquittal upon the basis of no prima facie case.
Murder.
Deceased was killed while lying in or asleep in his sleeping bag near the northern end of the Domain Carpark. He died as a result of what were described in the medical reports as 'catastrophic'head wounds, which indicated they had been struck with significant force by a blunt instrument. Near the body was a bloodied length of iron bar. The area in which the killing took place is a sandy area which is regularly utilised by homeless men. Both the accused & the deceased were homeless. Suspicion fell on the accused because of blood spattering on his jacket & a boot.
A number of shoe & boot prints were found on the sand, some of which were linked to the accused, but not all. Evidence that accused was present at the time of the killing, but no evidence to link him to the murder weapon.
Submission upheld: judgment of acquitted entered.
149

FARR, Karen Gail (DPP v) - NSW SC, Smart AJ, 5.1.2001 118 A Crim R 399
Citation: DPP v Farr [2001] NSWSC 3
Orders sought pursuant to s.109(a) of the Justices Act 1902 quashing the order of a magistrate dismissing informations.
Goods in custody
Admissibility of admissions made & not recorded electronically where indictable offence being heard together with summary offences - s424A of Crimes Act - illegal & improper search - rejection of evidence due to impropriety - s138 of the Evidence Act 1995
'Order that the order of the magistrate dismissing the informations laid against Karen Gail Farr for the offences of goods in custody, cultivate prohibited plant, supply prohibited drug and possess prohibited drug be removed into this Court and quashed and that the matters be remitted to the magistrate to be further heard in accordance with the reasons of this Court and according to law'.
150

SMITH, Adam Benjamin - CCA, 20.4.2001
Handley JA, IPP AJA, Greg James J
Citation: R v Smith [2001] NSWCCA 152
Crown appeal.
Robbery with wounding - 3y with NPP of 18m.
Respondent & co-offender, armed with a knife, robbed & severely wounded a prostitute in a remote area. She was pulled from the car & abandoned, bleeding profusely. Following widespread publicity, anonymous tip was received by police who discovered the MV used in the crime & went to respondent's home. When approached by police, respondent immediately volunteered guilt. Co-offender charged & pleaded not guilty.
Guilty plea - remorse - impulsive crime - first time in custody - young family - excellent rehabilitation prospects.
Sentence manifestly inadequate - inadequacy having regard to short NPP & error in failing to specify special circumstances established.
Appeal dismissed.
151

MATHESON, Danny Raymond George - NSW SC, Howie J, 21.3.2001
Citation: R v Matheson [2001] NSWSC 216
Judgment on admissibility of evidence.
Police went to accused's parents' home to ascertain the whereabouts of the accused in order to investigate an allegation of a crime that they had heard of on the police radio. When they got there, the father, who was obviously upset, was talking to the accused on the phone. One of the police officers spoke on the phone to the accused & the accused told him he was going to kill himself. The police officer then handed the phone over to the other police officer who spoke to the accused & asked him what had happened, whereupon the accused confessed to murder.
Evidence of alleged admission inadmissible & rejected.
152

LONG, Vireak - CCA, 30.4.2001
Wood CJ at CL, Sully J
Citation: R v Long [2001] NSWCCA 159
Sentence appeal.
Supply commercial quantity prohibited drug (heroin); + 2 related charges taken into account (goods in custody: $266.45; & self-administer heroin) - 6y with NPP of 4*y.
Applicant stopped & searched by police at Sydney Airport as he was walking to departure gate to board a flight to Adelaide. In his overnight bag, they found a plastic box with disposable syringes, sterile swabs, spoons, etc. There were no toiletries, underwear, etc. He told police he had no identification & was a heroin user with a criminal record, including an offence of supplying prohibited drug. On the inside of his denim jacket, police found 2 rectangular blocks of heroin. One weighed 352.6 grams, the other 358.8 grams. In an ERISP, applicant claimed they had been mailed to him at his home as well as $1,000 & an unsigned handwritten note saying 'You have to take this to Adelaide'He said he suspected who sent the package but refused to supply any details & said he was unable to supply details of where he was to stay in Adelaide or who he was supposed to meet or how he was to be contacted.
Aged 20 at time of sentence - on recognizance for supply heroin at the time of subject offence - early guilty plea - sad personal background - heroin addict - major depressive disorder.
Failure to give adequate weight to strong subjective considerations - failure to find special circumstances.
Appeal dismissed.
153

RICHARDS, Warren Austin - CCA, 1.5.2001 - 123 A Crim R 14
Powell JA, Grove & Simpson JJ
Citation: R v Richards [2001] NSWCCA 160
Conviction and sentence appeal.
Conspiracy to import commercial quantity drugs (cocaine) - MT 12y, AT 8y.
Appellant & 2 others agreed to import 4 kgs cocaine from USA. One co-accused pleaded guilty (see: R v Bijkerk [2000] NSWCCA 122 for details). Police were aware of the plans to import the drugs. The drugs were intercepted upon arrival & were substituted. Bijkerk was arrested at the place of delivery.
Alleged entrapment - counselling by police agent to commit offence - cross examination on treatment of co-offender - special arrangements for jury security - plea of guilty by co-offender in presence of jury - discount for possible entrapment received by co-offender - disparity between sentences requiring adjustment.
Conviction appeal dismissed; Sentence appeal allowed: resentenced to 9y with NPP of 6y.
154

CN - CCA, 26.3.2001
Greg James J, Smart AJ
Citation: R v CN [2001] NSWCCA 100
Sentence appeal.
2 x supply commercial quantity prohibited drug (heroin - 629 grams & 400 grams); 1 x goods in custody on a Form 1 ($48,000).
3*y, with NPP of 18m.
Sentencing judge directed the sentences be served wholly in a detention centre. The applicant was aged 16 at the time of sentence. A male adult employed applicant as a courier. Applicant admitted to a 'feeling of power', a 'thrill of being invincible'He said it wasn't really the money that he was after - that 'was a bonus'.
Guilty plea - assistance to police - juvenile offender - direction sentence be served in a detention centre - direction means form of sentence less severe - appropriate considerations on sentencing juveniles for serious crimes.
Whether sentence manifestly excessive - significance attached to general deterrence - significant prospects for rehabilitation.
Appeal dismissed.
155

DOLMAN, William John - CCA, 26.3.2001
Greg James J Smart AJ
Citation: R v Dolman [2001] NSWCCA 99
Sentence appeal.
Knowingly take part in manufacture of prohibited drug (methylamphetamine).
3*y with NPP of 18m.
Applicant, an industrial chemist, was recruited as a consultant by a man in Queensland. He admitted in his ROI to having received $50 an hour for acting as a consultant in the production of phenylacetic acid & other precursor agents for the end drug of methylamphetamine. He also admitted teaching 2 persons, who had been sent by Kalache, on the procedure to convert phenylacetic acid to a precursor of methylamphetamine. The teaching occurred on 2 separate occasions. Applicant said he was aware that at least one of these persons had previously been imprisoned for drug matters. He also said that he knew the intent of the 2 persons was to manufacture methylamphetamines.
Aged 62 - guilty plea - no relevant priors - contrition - prior good character - long & successful work history in legitimate businesses - organic mental & personality problems - increased vulnerability to exploitation but increased capacity for harm because of skills as a chemist.
Whether sentence manifestly excessive - principle of proportionality - parity - justifiable sense of grievance.
Leave to appeal refused as appeals of co-accused not dealt with to provide for possible disparity application.
156

SERRATORE, John - CCA, 30.1.2001
Beazley JA, Grove & Whealy JJ
Citation: R v Serratore [2001] NSWCCA 123
Conviction appeal.
Murder.
MT 13y, AT 7y.
Crown case that appellant either murdered the deceased himself, aided & abetted another person who caused the death or procured another person to kill her. The matter of Serratore has so far comprised 2 trials, 2 appeals to the CCA & one appeal to the HC.
Admissibility of conversations between friend of appellant & appellant regarding appellant's intention to murder victim - proximity of conversations up to 6 months prior to murder able to show mind & attitude of appellant.
Form of indictment - single count of murder could have occurred in one of 3 ways - whether unfair - admission of conversations - evidence of intent - evidence of tendency - whether verdict unreasonable.
Appeal dismissed.
157

RYAN v THE QUEEN - HC, 3.5.2001 - 206 CLR 267; 75 ALJR 815
Citation: Ryan v The Queen [2001] HCA 21 (3 May 2001)
A priest was sentenced to 16y with a NPP of 11y, cumulative upon an existing sentence of 6y with a NPP of 2y for multiple sexual offences committed on young boys over twenty years.
Appellant disclosed a large number of offences to police.
Retribution - deterrence - protection of society - rehabilitation.
Whether disclosure entitled appellant to a significantly discounted sentence - whether the likelihood of disclosed offences being otherwise discovered should have been assessed.
Appeal allowed: orders of the CCA set aside, matter remitted to the CCA for sentencing in accordance with reasons for judgment of the HC.
158

AZZOPARDI v THE QUEEN - HC, 3.5.2001 - 205 CLR 50; 75 ALJR 931
DAVIS v THE QUEEN
Citation: Azzopardi v The Queen; Davis v The Queen [2001] HCA 25 (3 May 2001)
Solicit to murder - sexual offences - in different trials accused did not give evidence - judge in both cases directed jury accused did not have to prove anything but subsequently made comments to effect that failure of accused to give evidence could mean jury could more easily accept Crown case.
Evidence - accused not giving evidence - right to silence - nature of permissible comment by trial judge - comment that accused did not deny or contradict evidence already given about matters within his personal knowledge not permissible - suggestion that accused did not give evidence because the accused was, or believed that he was, guilty of the offence concerned - contravention of Evidence Act 1995 (NSW) s.20(2).
Appeal allowed: conviction set aside, new trial ordered.
159

RODDOM, Peter Joseph - CCA, 23.4.2001
Meagher JA, Sully & Howie JJ
Citation: R v Roddom [2001] NSWCCA 168 revised - 9/5/2001
Conviction appeal.
3 x sexual intercourse with child under 10; 1 x aggravated indecent assault of child under 16.
Aggregate 5y with NPP of 3y.
Offences alleged to have been committed upon same complainant ( de facto wife's daughter) over a 12 month period. Complainant aged 6 years when the 1st two alleged offences took place & 7 years when 2nd two offences alleged to have occurred. Complainant told no-one about incidents until 5 years later when she told a school friend. She then told her brother & also told her mother in the presence of her older sister. Complainant said her mother told her not to say anything to anyone. The brother gave evidence that one night he was lying in bed when he heard noises coming from the bathroom. He heard the complainant say 'stop'& 'leave me alone'He got out of bed to go to the toilet & as he passed the bathroom door he saw the complainant jump out of the bath, grab either her clothes or a towel & go to her bedroom. He said he asked what was going on & the appellant told him to 'get out'or 'go away'He couldn't remember if the complainant had said anything. He said some hours later the appellant entered his bedroom & told him not to tell anyone or the appellant would bash him. He also said about 2 years later, the complainant told him the appellant used to touch her & she did not like it but didn't know what to do about it.
Complaint evidence - failure to adequately warn - error in trial counsel failing to raise good character.
Appeal allowed: retrial ordered.
160

SDM - CCA, 4.5.2001 - 51 NSWLR 530; 127 A Crim R 318
Giles JA, Wood CJ at CL, Simpson J
Citation: R v SDM [2001] NSWCCA 158
Sentence appeal.
Armed robbery - 4*y, with NPP of 2y 3m.
Applicant aged 13 days short of 17 years at the time of sentence. Applicant & 4 others drove to a general store, 2 remained in the car & applicant & 2 others entered the store, one armed with a single barrelled shotgun & another with a golf club. All wore balaclavas. They used both the gun & the golf club to threaten the proprietors of the store (a middle-aged couple). The offenders escaped with about $270 in cash, 3 gold rings valued at $210, as well as $544 worth of cigarettes.
Applicant gave evidence that he had consumed 6 to 8 beers & used heroin before committing the offence. He claimed that he had never used heroin before that occasion. He also said he had very little recollection of the event & expressed regret & shame & an intention to rehabilitate himself & never use heroin again.
Whether sentence manifestly excessive - heavy reliance placed upon age & personal circumstances.
Appeal dismissed.
161

W - CCA, 3.5.2001
Mason P, Sully & Dowd JJ
Citation: R v W [2001] NSWCCA 172
Sentence appeal.
1 x buggery; 4 x homosexual intercourse with male under 18; 1 x attempt homosexual intercourse with male under 18; 1 x sexual intercourse without consent; + 11 offences taken into account.
Aggregate 10*y with NPP of 8y.
Each count dealt with a separate, young victim, one being aged about 17, all the others aged from about 13 to 15. The scheduled offences consisted of 2 x buggery; 3 x homosexual intercourse with male under 18; 3 x act of gross indecency with male under 18; 3 x indecent assault. These 11 matters pertained to 5 named victims, each of whom was a victim named in one of the 7 counts in the indictment. One of the boys was aged about 10 at the time of one of the buggery offences, another aged between 11 & 12 when indecently assaulted. A 3rd boy was aged about 16 at the time of the homosexual intercourse offences. The ages of the other victims were between 13 & 15. The CCA described the offences as 'without exception offences of gross depravity. They entailed the systematic seduction & debauchery of young teenage boys who were all, for various reasons, vulnerable to such abuse'.
Guilty plea - assistance to authorities - fresh evidence
Appeal dismissed.
162

MACADAM-KELLIE, William - CCA, 9.5.2001
Wood CJ at CL, Greg James J
Citation: R v Macadam-Kellie [2001] NSWCCA 170
Sentence appeal.
Wound with intent to murder.
16y with NPP of 12y.
Victim was applicant's estranged wife. The couple had been married for 21 years when the victim took their 2 younger children & left their home. The 2 older children remained with the applicant. Family Law proceedings had commenced, including proceedings in respect of custody & access. Shortly before leaving the home, victim had obtained an AVO against applicant. On the day of the offence, applicant & victim were due to appear at the Family Court. Victim arrived, accompanied by 4 year old son. Applicant was waiting nearby, equipped with a bread knife. As victim approached the area where applicant was waiting, he approached her & produced the knife. Victim dropped what she was carrying & ran screaming into the centre of the road. Applicant ran after her, caught her & stabbed her in the right arm & in her back. When she fell to the ground, he stabbed her a further 3 times in the stomach, then he dropped the knife, took the child & fled. The events occurred in the presence of witnesses. One witness described applicant as having 'reamed the knife around violently, before pulling it from her stomach'Following the attack, applicant approached a prison officer in the court complex area & informed him he had stabbed his wife & thought he had killed her.
Culpability a little short of completed offence - effect of depression - sentence based on mistaken assumption depression not operative - fresh evidence.
Appeal allowed: resentenced to 15y with NPP of 11y.
163

MLW - CCA, 9.4.2001
Dowd J, Smart AJ
Citation: R v MLW [2001] NSWCCA 133
Sentence appeal.
Sexual intercourse without consent.
3y with NPP of 1y 8m.
The sentencing judge ordered that the sentence be served in a detention centre & that the applicant be released on parole at the expiration of the NPP. He also ordered that the applicant receive supervision, counselling & treatment for drugs & alcohol & that he submit to the sexual offender programme.
The applicant enticed the 16 year old female victim to the beach & forced her to have sexual intercourse with him. He perpetrated a violent attack upon the victim & ignored the victim's pleas. The applicant was under the influence of alcohol at the time of the offence & had not experienced intoxication to that degree before.
Guilty plea - aged 15 at time of offence, 16 at time of appeal - need for rehabilitation rather than lengthy sentence - supportive family.
Appeal dismissed.
164

B - CCA, 8.5.2001
WALTERS, Clinton John
Stein JA, Wood CJ at CL, Studdert J
Citation: R v B & Walters [2001] NSWCCA 121
Crown appeal.
Blackman: 1 x accessory before fact to BE&S; 1 x accessory after fact to BE&S; 1 x armed robbery with dangerous weapon. Guilty plea. Sentenced to: 4y GBB for counts 1 & 2; 2y imprisonment suspended for armed robbery.
Walters: 1 x BE&S; 1 x armed robbery with dangerous weapon. Guilty plea. Sentenced to: GBB for BE&S; suspended sentence of 2y for the armed robbery offence.
The BE&S involved stealing a floor safe from a gun club. The safe contained a number of handguns, a quantity of ammunition & some personal items. The respondents then armed themselves with weapons obtained from the safe & also with a softball & cricket bat & invaded a home.
Sentences manifestly lenient - sentencing judge erred in 'eliding'the 2 steps involved in ordering that the sentence for the armed robbery be suspended - objective criminality involved was such that the sentence for the armed robbery should not have been suspended.
Appeal dismissed.
165

CENTOFANTI, Peter Karl - CCA, 26.3.2001
SCHAEFFER, Douglas Allen
Greg James J, Smart AJ
Citation: R v Centofanti & Schaeffer [2001] NSWCCA 107
Sentence appeal.
Centofanti: Armed robbery in company - MT 3y 9m, AT 2y 3m.
Schaeffer: B&E with intent armed with offensive weapon - FT 2*y;
armed robbery in company - MT 4y, AT 3y.
Schaeffer entered the premises of a local club by breaking a window. No staff were there at the time. He couldn't find any money & left empty-handed. Later, Schaeffer approached his nephew, Centofanti, & asked him to participate in the robbery of the club. Both dressed in overalls, gloves & balaclavas & carried shotguns. They entered the club by breaking a rear window. They held their shotguns trained on the staff. Schaeffer managed to find a cash register box. When they saw a security guard outside the club, the applicants fled with $280.
Centofanti: Aged 21 - remorse & contrition - disturbed childhood - began using alcohol & heroin at an early age - used amphetamines - unable to remain in family home - hero-worshipped uncle (Schaeffer) - strong family support - no priors of significance.
Schaeffer: Aged 34 - remorse & contrition - unemployed - destructive & destabilising childhood & adolescence - marriage breakdown led to use of alcohol & drugs - long criminal record - attending courses whilst in custody - priors for serious offences.
Parity - totality - special circumstances.
Centofanti: appeal allowed - resentenced to 6y with NPP of 3y.
Schaeffer: appeal dismissed.
166

RAJAPASKI, Tony - CCA, 19.4.2001
Priestley JA, Kirby & Howie JJ
Citation: R v Rajapski [2001] NSWCCA 126
Crown appeal.
Two sets of offences: 3 drug offences & 4 firearm offences.
Count 1: attempt receive 10 kgs cannabis resin; + 28 matters taken into account (drug offences, weapons offences & possess money reasonably suspected of being unlawfully obtained) - 2y 8m with NPP of 16m.
Count 3: supply methylamphetamine (441.7 grams) - 2y 8m with NPP of 16m.
Count 2 supply trafficable quantity cannabis leaf - FT 6m.
Counts 4-7: possess a Bentley repeating 12 gauge shotgun, a .25 calibre semi-automatic Colt pistol, a 6 shot revolver & a 12 gauge Winchester repeater shotgun - FT 6m on each count.
Systemic distribution, on a commercial basis, of cannabis & methylamphetamine.
Sentences manifestly inadequate - matters to be taken into account on resentencing.
Appeal allowed: resentenced in respect of counts 5 & 6 to 3y with NPP of 6m;
in respect of counts 4 & 7 to 2y with NPP of 6m.
167

FRASCELLA, Anthony - CCA, 6.4.2001
O'Keefe J, Smart AJ
Citation: R v Frascella [2001] NSWCCA 137
Sentence appeal.
Dangerous drive occasioning death; + 1 x take conveyance without consent of owner; 1 x being unlicensed driver;1 x negligent driving taken into account - Aggregate 4y with NPP of 2y.
Applicant, unlicensed, drove a stolen MV at high speed in intermittent rain on slippery, wet roads in heavy traffic. In order to overtake another vehicle, he raced along the breakdown lane as the road narrowed from 2 lanes to a single lane. He then braked suddenly, lost control of the vehicle which spun around & skidded backwards across the median strip into the path of oncoming traffic. The back of the stolen vehicle then collided with an oncoming vehicle carrying a family of 5. A passenger in the applicant's vehicle was killed; a man & a woman in the other vehicle were severely injured.
Aged 17* at time of offence - primary level of education - below average intelligence - supportive family - prior driving offences - not previously imprisoned.
Correct sentence for each offence to be imposed - application of Pearce (1998) 194 CLR 610.
Appeal allowed: resentenced to aggregate 3y 6m, with NPP of 18m.
168

BAKER, Alan John - CCA, 20.4.2001
Handley JA, Ipp AJA, Greg James J
Citation: R v Baker [2001] NSWCCA 151
Conviction appeal.
Unlawful violence (affray) - FT 6m.
As well as the above offence, appellant was also charged with malicious damage to a MV, however, he was found not guilty on that charge.
An argument broke out between appellant & the victim at a hotel. The victim, her boyfriend & 2 others then left the hotel & went to the victim's home. While they were in the kitchen, the appellant's girlfriend came to the house & began to fight with the victim. A short time later, the appellant arrived at the house with 2 men, pulled out a tomahawk & threatened to kill one of the victim's friends.
Directions to jury - accused's failure to give evidence - silence of accused not to be treated as evidence of guilt - many unknown reasons why accused may choose not to testify - accomplice direction - where accomplice testifies in favour of defendant - trial judge's directions inappropriate.
Appeal allowed: new trial ordered.
169

SINANOVIC, Hakija - CCA, 2.5.2001
Greg James J
Citation: R v Sinanovic [2001] NSWCCA 164
Application for bail pending special leave to appeal to HC from a decision of CCA on a conviction appeal.
Necessity for special or exceptional circumstances such as would show special leave application otherwise futile - asserted to be strong - grounds, at best, barely arguable.
Bail refused.
170

JARMAN, Scott - CCA, 11.5.2001
Carruthers AJ, Badgerty-Parker AJ
Citation: R v Jarman [2001] NSWCCA 178
Sentence appeal.
Robbery; + offence of BE&S taken into account - 6y with NPP of 3*y.
Applicant broke into a chemist shop & stole 2 bags of prescription medicines. He was arrested within a quarter of an hour, charged & granted police bail. He was on bail when he entered a bank some weeks later, waited in queue, then when his turn came to go to the counter, he demanded money, saying he had a gun in his bag. He was given $1,670. His photograph was taken by a security camera. When interviewed by police & when shown the bank photograph, applicant admitted his guilt & co-operated fully with police.
Extensive criminal history starting in early teens - prior imprisonment - because of a recent episode in prison, placed on strict protection.
Whether sentence manifestly excessive - consideration of Henry - judicial discretion in sentencing - relevance of psychiatric condition to sentencing process.
Appeal allowed: resentenced to 6y with NPP of 2y 9m.
171

LC - CCA, 9.5.2001
Hodgson JA, Greg James Adams JJ
Citation: R v LC [2001] NSWCCA 175
Sentence appeal.
2 x armed robbery; + 2 counts taken into account on a Form 1 (armed rob, stealing) - 4y with 2y NPP.
The 2 armed robbery charges both involved the applicant being armed with an imitation self-loading pistol. During the first robbery, he robbed his victim of a number of Vodafone starter kits, 6 mobile phones, a black sports bag, a handbag & the sum of $500. During the 2nd robbery, the applicant stole a Honda motor vehicle, 2 ANZ Visa cards, 2 Commonwealth Bank Mastercards, an Ericsson mobile phone, a small purse & $1,200 in cash. Offences were committed in company with a co-offender. Both applicant & co-offender were juveniles. During the robberies, the victims were threatened.
Applicant a child at the time of offences & sentence - asserted disparity with more intelligent co-offender - applicant of low intelligence - general & specific deterrence.
Whether sentence excessive.
Appeal dismissed.
172

KANE, Peter Clive Basil - CCA, 3.5.2001
Handley JA, Ipp AJA, Greg James JJ
Citation: R v Kane [2001] NSWCCA 150
Conviction appeal & Crown appeal.
Murder - 10*y with NPP of 7*y.
This appeal followed a retrial (see R v Kane [2000] NSWSC 1061; see also R v Kane [2000] NSWCCA 402, R v Andrew [2000] NSWCCA 310 & R v Andrew & Kane [1999] NSWSC 647).
Crown case alleged appellant & co-accused went to deceased's home unit with the intention of killing him & that deceased was struck with a baseball bat they took with them. It was further alleged they then bound his hands, knees & feet with adhesive tape. His ears, eyes & mouth were also heavily bound with tape & a plastic bag placed over his head, secured by tape wound around his neck. Principal Crown evidence against appellant came from admissions he made in a police interview & to his former wife & former mother-in-law. The police interview concerned was the 2nd interview which police had had with appellant. There had been an earlier interview that morning.
Conviction appeal: Admission into evidence of 1st ROI - directions on common purpose - directions on provocation.
Conviction appeal dismissed.
Crown appeal: The most important grounds relied on by the Crown concerned 2 factual findings made by sentencing judge in the 1st trial (Sully J) which differed from factual findings on the same issues made by sentencing judge in the 2nd trial (Barr J). Sully J found that in the first encounter between respondent & deceased, deceased had committed some gross sexual impropriety towards respondent & respondent was deeply aggrieved by this. Barr J did not find that respondent himself experienced sexual impropriety at the hands of deceased. Sully J also found that respondent had intended to inflict GBH upon deceased. Barr J found that respondent had intended to kill deceased. Whether sentence manifestly lenient.
Crown appeal dismissed.
173

PITT, Edward - CCA, 14.5.2001
Wood CJ at CL, Sully J
Citation: R v Pitt [2001] NSWCCA 156
Sentence appeal.
Malicious damage by fire; malicious damage.
Aggregate 6y with NPP of 3*y.
Applicant smashed equipment at de facto's home, then set fire to a curtain. Flames spread, causing considerable damage to the premises. Cost of repairs estimated to be in the order of $19,000. Full admissions to police.
Affected by alcohol & amphetamines - angry, suspecting de facto of sexual infidelity - remorse - de facto supportive of applicant in spite of offences - no evidence of any violence directed towards de facto.
Whether insufficient weight given to applicant's background - whether insufficient weight given to plea of guilty - whether sentence outside range - whether sentence manifestly excessive.
Appeal dismissed.
174

WARMAN, Mark Wayne - CCA, 18.4.2001
Wood CJ at CL, Sully J
Citation: R v Warman [2001] NSWCCA 147
Sentence appeal.
Robbery; + 12 offences taken into account on a Form 1 - 7y with NPP of 4y.
Applicant followed owner/operator of a service station as he drove home at end of the day with briefcase containing day's takings & a change bag. Total amount he carried was between $2,000 & $3,600. When he alighted from his vehicle at his home, applicant grabbed him by the shirt, ordered him to 'open up', took the briefcase & ran away with it. He was arrested early the following morning at his home, where a large quantity of cash was found. Offences on Form 1 included shop lifting, forgery, BE&S, uttering & possession of forged prescriptions, possess housebreaking implements, goods in possession, larceny, drive MV whilst under influence of drugs, drive MV whilst unlicensed.
Aged 33 at time of sentence - extensive criminal history, both as an adult & juvenile - multiple convictions - had already spent in excess of 13 years in custody - long-standing drug habit - very limited education & work experience - personality disorder with anti-social & passive-aggressive characteristics.
Whether sentence manifestly excessive - did not fall into worst category for offence - insufficient weight given to timely plea of guilty or to remorse & rehabilitation.
Appeal dismissed.
175

VIANA, John Edward - CCA, 6.4.2001
Meagher JA, Wood CJ at CL, Studdert J
Citation: R v Viana [2001] NSWCCA 171
Sentence appeal.
Conspiracy to import commercial quantity cocaine; possess commercial quantity cocaine; possess prohibited weapons; possess cannabis - 14y with NPP of 10y.
No details of offences given in judgment.
One co-offender received a sentence of 10y with a NPP of 5y, the other co-offender 8y with a NPP of 3*y, however, their criminality was found to be not as great as that of the applicant.
Whether NPP represents too high a proportion of the head sentence - parity.
Appeal dismissed.
176

ROBINSON, Ross Aaron - CCA, 8.3.2001
Meagher JA, Hulme J, Smart AJ
Citation: R v Robinson [2001] NSWCCA 180
Sentence appeal.
Murder; armed robbery - 20y with NPP of 15y.
The victim of the murder was the manager of The Gamesmen computer store in Penshurst. The applicant & 2 accomplices had planned to rob this store for some time. They arrived late on a late shopping night a few days before Christmas, the applicant armed with a silver revolver which he had obtained during an armed robbery approx a week before. Applicant & accomplices arrived on motor bikes which had been disguised, with the number plates removed, & all three had their faces disguised.
Guilty plea - whether sentence excessive, having regard to the fact that there was no intent to kill the victim - whether NPP excessive because of special circumstances.
Appeal dismissed.
177

KHALED, Khaled - CCA, 20.4.2001
Wood CJ at CL, Sully J
Citation: R v Khaled [2001] NSWCCA 169
Sentence appeal.
Supply heroin on 3 separate occasions within 30 day period - 4y with NPP of 2y.
The applicant sold heroin to an undercover operative on 3 separate occasions. Analyst's certificate showed that the quantities of heroin involved were less than that assessed by the sentencing judge. The amounts involved were 0.10 grams, 0.05 grams & 0.04 grams, totalling 0.19 grams. The sentencing judge erroneously found that the first 2 deals each involved .2 grams of heroin.
Priors - on parole for drug offence at the time - long history of drug dependence & parallel history of related criminal offences - marked anti-social personality - undertaking counselling whilst in custody.
Whether error in relation to assessment of quantity of drugs involved - whether sentence excessive.
Appeal dismissed.
178

BARKER, Leonard Samuel - NSW SC, Studdert J, 24.4.2001
Citation: R v Barker [2001] NSWSC 295
Redetermination of life sentence under s.13ASentencing Act1989.
Murder.
Premeditated & cold blooded killing. Applicant lured his friend to an isolated bushland area & shot him 3 times. He said he was concerned about sexual advances victim had made to applicant's wife & daughters. Applicant surrendered himself to police after conversion to Jehovah's Witnesses.
Also serving a concurrent sentence for manslaughter & arson.
Substantial rehabilitation.
Application allowed: resentenced to 21y with NPP of 16*y.
179

BUTCHER, Brett John - CCA, 17.5.2001
Greg James J, Smart AJ
Citation: R v Butcher [2001] NSWCCA 188
Sentence appeal.
Count 1: continual supply of prohibited drug (methylamphetamine) - 5y with NPP of 2y;
Count 2: supply prohibited drug (methylamphetamine) - FT 3y;
Count 3: supply prohibited drug (methylamphetamine) - FT 3y
Count 4: supply commercial quantity prohibited drug (methylamphetamine) 7y with NPP of 4y.
There were also some Form 1 matters taken into account.
A police operative made contact with the applicant in order to purchase amphetamine, starting with a small amount which escalated in quantity in exchange for the payment of increasing sums of money. Conversations between the operative & the applicant were electronically recorded by a listening device.
Weight of guilty plea - whether procured by police - necessity to evaluate role - whether circumstance of aggravation or mitigation - special circumstances.
Appeal dismissed on Counts 2 & 3.
Appeal allowed on Counts 1 & 4: resentenced to 5y with NPP of 3y.
180

DAWSON (No.2), Glen Michael - CCA, 17.5.2001
Giles JA, James & Hulme JJ
Citation: R v Dawson (No.2) [2001] NSWCCA 186
Sentence appeal
2 x aggravated sexual assault.
MT 4y, AT 2y.
Appellant originally appealed against conviction & sentence, however, the conviction appeal was dismissed on 5.2.2001 & the decision on the sentence appeal reserved (see R v Dawson[2001] NSWCCA 11).
Whether sentence excessive.
Appeal dismissed.
181

PEJOVSKI, Cane - CCA, 11.5.2001
Hodgson JA, Greg James & Adams JJ
Citation: R v Pejovski [2001] NSWCCA 182
Sentence appeal.
1 x attempt obtain possession of trafficable quantity prohibited imports (ecstasy)
6y with NPP of 4y.
A parcel containing 214.4 grams of ecstasy was detected by Customs officers. After some delay because of an incorrect address on the parcel, Australian Federal Police attempted to make a controlled delivery. The applicant was not at home at the time & a card was left. The applicant then phoned & made arrangements for the delivery. Upon delivery, he signed for the package. He then took it, wrapped it in a t-shirt, placed it in a plastic shopping bag & put it in a filing cabinet in his shed which he then locked. The applicant then gave the key to the 2 co-accused who went to the shed & collected the package.
Prior good character - same sentence as passed on co-offenders - asserted entitlement to disparity because of difference in previous character - previous good character particularly relevant to prospects of rehabilitation - particular impact on NPP.
Appeal allowed in relation to specification of NPP: NPP now specified as 3*y.
182

BD - CCA, 15.5.2001 - 122 A Crim R 28
Stein JA, Greg James & Bell JJ
Citation: R v BD [2001] NSWCCA 184
Question submitted by DPP pursuant to s.5A(2) Criminal Appeal Act 1912:-
'Did his Honour Judge Graham err in law in concluding that the obtaining and transporting of ingredients (namely, Sudafed, phosphorous powder and orthophosphoric acid) and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture within the meaning of s6 of the Drug Misuse and Trafficking Act 1985 ('the Act')?'
Answered in the negative.
183

MUNRO, Christopher Brett - CCA, 18.5.2001 - 51 NSWLR 540
Stein JA, Greg James & Bell JJ
Citation: R v Munro [2001] NSWCCA 187
Conviction appeal.
Manslaughter.
Deceased, together with his brother, went to the home of accused, deceased armed with a cricket bat. Deceased began to swing the cricket bat at accused at or above shoulder height, however, accused able to evade blows. A struggle took place & accused was able to take possession of the 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.
Self-defence - whether occasion for self-defence had ceased - provocation - Home Invasion (Occupants Protection) Act 1998 - whether Act declared & clarified common law - whether Act extended rights of an occupier at common law.
Appeal dismissed.
184

BUGEJA, Saviour - CCA, 11.5.2001
Hodgson JA, Greg James & Adams JJ
Citation: R v Bugeja [2001] NSWCCA 196
Sentence appeal.
1 x possess trafficable quantity prohibited imports (heroin) - 9y with NPP of 6*y;
1 x supply prohibited drug (methylamphetamine) - FT 3y (concurrent).
Police intercepted telephone conversation involving applicant which suggested the presence of drugs at his home. Australian Federal Police executed a search warrant on his home & in a safe found a clip-seal bag containing heroin in powder form, methylamphetamine mixed with pseudoephedrine (total weight 21.6 gms), cash totalling A$15,000 & US$20, a large amount of jewellery. In a dresser drawer they found a clip-seal bag with silver foil containing 0.5 grams of heroin; inside a cylinder on a shelf in the garage they found 24 small clip-seal bags containing heroin in powder & in rock form; in a kitchen cupboard they found a set of scales, a plastic food container, a funnel, a coffee & spice grinder, a small clip-seal bag containing 2 pieces of heroin & numerous clip-seal bags. Also in the same cupboard was a package containing 5 ultra-fine syringes. Total weight of heroin found was 288.1 grams with an average purity of 44%.
Repeat offender - early guilty pleas - utilitarian discount - application to Commonwealth offence - whether 10% discount appropriate - whether appropriate to increase NPP for repeat offence, when this already taken into account in setting head sentence.
Appeal allowed on possess trafficable quantity offence: resentenced to 8y with NPP of 5y 3m.
185

CHAPPLE, Robert George - CCA, 11.5.2001
Hodgson JA, Greg James & Adams JJ
Citation: R v Chapple [2001] NSWCCA 183
Sentence appeal.
1 x attempt obtain possession of trafficable quantity prohibited import (cocaine) - 5y with NPP of 3*y;
1 x knowingly concerned in the importation of trafficable quantity cocaine - FT 12m (concurrent).
The offences embraced common elements & referred to the one common transaction of importing. The imports were for the applicant's own use & to fund his drug addiction. In all, a total of 109.4 grams (79 grams pure cocaine) was imported with a street value of $21,880.
Early guilty plea - absence of allowance for utilitarian value of early plea - prospects of rehabilitation.
The Crown accepted there were errors in the sentencing process, but asserted they were not material.
Appeal allowed in relation to Count 1: resentenced to 4y with NPP of 2*y.
186

WALFORD, Kellie Anne - CCA, 23.4.2001
Meagher JA, Sully & Howie JJ
Citation: R v Walford [2001] NSWCCA 200
Sentence appeal.
Escape from lawful custody.
FT 4m.
Applicant was serving a MT of 22m for robbery in company at the time of the escape. She was serving her sentence at Emu Plains Correctional Centre. On the day of the escape, some renovations were being done & a gate had mistakenly been left open. She took this as an invitation & walked out, going towards the railway station. She was noticed by a member of the public & was then taken into custody. She went quietly back to prison & pleaded guilty to the charge of escape. When asked why she left the prison, she said it was because of her asthma & ongoing stress from other inmates. In all, applicant was out of the centre for something like 7 minutes.
Aboriginal descent - lived with father until age 15, then went to live with mother who was an alcoholic - applicant was raped once - began abusing drugs & drifted into a life of crime, mostly drug related.
Escape a mere technicality - whether sentence excessive.
Appeal dismissed.
187

REFAI, Nawaf - CCA, 11.4.2001
Hulme J, Smart AJ
Citation: R v Refai [2001] NSWCCA 190
Sentence appeal.
Knowingly take part in supply of prohibited drug (cocaine) - 18m with NPP of 9m.
Early guilty plea accepted in full discharge of the indictment which also contained a count of supply cocaine. After sentencing, an application to have the sentence served by way of home detention was considered but refused.
Applicant worked for a Mr Daher who was conducting a business of selling cocaine from the Budget Hotel at Kings Cross. Applicant acted as a messenger between Daher & those directly involved in selling the drug & his associates. He also provided personal security for Daher & the hotel & on one occasion helped prepare cocaine capsules for sale. On a few occasions he was directly involved in selling cocaine. He was paid with money & cocaine.
Aged 20 at time of offence - difficult childhood - abusive father - has led a productive & constructive life since arrest, including operating a subcontracting business in the flooring industry with his brother - no longer has any association with those he had at the time of offence - favourable references tendered - adjudged suitable for community service & PD - occasional use of ecstasy & marijuana since time of arrest - gambling problem - prior offences.
Delay in sentencing - there were 32 occasions when the matter was listed for sentencing, a limited number of adjournments occurring at the instigation of the applicant's legal advisers, the vast majority not.
Error in application of principle of parity - failure to give sufficient weight to issues of delay, youth & demonstrated rehabilitation - failure to give sufficient consideration to home detention.
Appeal dismissed.
188

RUSSON, Paul William - CCA, 7.5.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Russon [2001] NSWCCA 166
Sentence appeal.
1 x armed robbery - 6y with NPP of 4y; 1 x assault police - FT 2y.
Applicant hailed a taxi cab to go home. As the taxi came to a halt, he produced a knife & held it against the taxi driver's throat & demanded money. The taxi driver resisted & the applicant made threats. The taxi driver managed to activate an alarm & the applicant left the taxi empty-handed. A short time later, the applicant approached 2 people at the front of a nearby residence & then he saw police officers approaching. He brandished a piece of wood under his shirt, pretending it was a gun. He repeatedly abused the police, pointed the covered piece of wood at them & threatened to shoot them. The police ultimately managed to overpower him & take him into custody.
Aged 35 at time of offences - single person with young dependent son - prior criminal record - long history of personality disturbance - abuse of prescription drugs & alcohol.
Whether sentencing judge erred in holding that appellant's psychiatric or psychological conditions played no role in the commission of the offence.
Appeal allowed: resentenced to an overall sentence of 6y with NPP of 3y.
189

DONNELLY, John Bernard - CCA, 4.5.2001
TROTH, John Charles
Powel JA, Heydon JA, Simpson J
Citation: R v Donnelly & Troth [2001] NSWCCA 125
Conviction and sentence appeal.
Conspire to cheat and defraud - each received 3y with NPP of 2y 3m.
Compelling Crown case. Troth, who was employed as a senior factory operator in a company, together with Donnelly, who was employed by a distributor company, entered into an agreement to write orders to the distributor for refurbished drums. Troth then signed delivery dockets without the company he worked for actually receiving the drums. Donnelly prepared invoices on receipt of orders & each invoice was passed by Troth for payment. The amount paid by the company to the distributor on such invoices came to $116,990, of which $49,433 was credited into Troth's bank account.
Donnelly was aged 44 & Troth 45 at time of offence - neither had any priors.
Verdict unreasonable & unsupported - significant possibility that an innocent man was convicted - verdict was a compromise - substantial possibility the jury were mistaken - penalty too severe.
Conviction appeal dismissed; leave to appeal against sentence refused.
190

KOOMSON, Otis - CCA, 9.5.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Koomson [2001] NSWCCA 176
Sentence appeal.
Malicious wounding with intent to inflict GBH - MT 4y, AT 3y.
The offence involved the applicant perpetrating a vicious & repeated attack upon his wife with a claw-hammer. The victim suffered multiple wounds.
Applicant, born in Ghana to family of high standing, claimed he was successor to father's position as King. He informed a Probation & Parole officer that he heard voices on at least 4 occasions instructing him to kill himself. He believes he has offended his ancestors. No history of drug or alcohol abuse.
Aged 42 at time of offence - married in Australia - history of violence towards wife - regular employment - only prior was a GBB with regard to common assault upon wife - major depressive illness - no evidence of psychosis relating to serious criminal conduct - cultural factors - evidence of self-harm.
Whether sentencing judge gave sufficient weight to applicant's depressive condition.
Appeal dismissed.
191

DANIELS, Garry - CCA, 11.5.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Daniels [2001] NSWCCA 181
Sentence appeal (on 2nd count only)
1 x robbery; + offences on a Form 1 taken into account (possess cannabis leaf, drive with mid-range PCA, drive whilst disqualified) - 4y with NPP of 3y.
1 x use offensive instrument to prevent lawful apprehension - 6y with NPP of 4y, cumulative upon above.
Applicant pleaded not guilty on both counts & the trial proceeded. On 2nd day of the trial, applicant sought to be re-arraigned & pleaded guilty to the 2nd count. The jury found him guilty on the 1st count.
Long criminal history for serious offences - prior custody - history for escape & attempted escape.
Sentencing judge overlooked requirements of s.439 Crimes Act 1900 (now s.22 Crimes (Sentencing Procedure) Act 1999) - discount for guilty plea on 2nd day of trial.
Appeal allowed on 2nd count: resentenced to 5y with NPP of 3y, cumulative.
192

BAVIN, Marc - CCA, 26.4.2001
Spigelman CJ, Wood CJ at CL, Greg James J
Citation: R v Bavin [2001] NSWCCA 167
Conviction appeal and Crown appeal.
Armed robbery - 3y with NPP of 2y; kidnapping - FT 12m.
Crown case was that appellant & co-accused arranged for co-accused to hold up complainant with a gun & steal his Mercedes Benz as well as some personal items. Appellant maintained that he, co-accused & complainant had together arranged for co-accused to obtain complainant's car & dispose of it so that complainant could benefit from an insurance claim. Complainant denied he was party to any such scheme.
Conviction appeal: Whether verdicts unreasonable - appeal dismissed.
Crown appeal: Whether sentences manifestly lenient - appeal dismissed.
193

CAMPBELL, Malcolm Ernest - CCA, 9.4.2001
Dowd J, Smart AJ
Citation: R v Campbell [2001] NSWCCA 162
Sentence appeal.
8 x embezzlement; 8 x publish a document with intent to obtain financial advantage.
Sentence not stated.
Over a period of 4 years, applicant embarked upon the systematic embezzlement of funds from the company where he was employed as a Credit Manager. In all, a total of $2,430,000 was stolen. The victim company has received $131,245 in either cash held by the applicant or the realisation of assets held by the applicant. A vast amount of the money stolen has never been satisfactorily accounted for. Some was used to buy land in Indonesia.
Whether error in judge's adverse remarks on failure to adequately account - insufficient credit given for attempts to make restitution - poor health - failure to find special circumstances.
Appeal dismissed.
194

NEVILLE, Robert - CCA, 10.4.2001
Giles JA, Studdert & O'Keefe JJ
Citation: R v Neville [2001] NSWCCA 146
Sentence appeal.
Solicit person to inflict GBH on another.
7y 2m, with a NPP of 4y.
Proposed victim, aged 23, worked for the appellant, aged 47 in a cabinet making business. Appellant made a number of homosexual advances towards him, all of which were rejected. Proposed victim felt uncomfortable with the situation & left. Appellant began to stalk him & defame him by telling his then employer he was a liar & a thief. Proposed victim took out an AVO against appellant. On several occasions, appellant made vexatious complaints about him to police. Proposed victim instituted civil action for defamation against appellant which was settled, the appellant being ordered to pay damages. Before the 1st instalment was due to be paid, someone contacted the police with information about a plan initiated by appellant for the proposed victim to be murdered. An undercover police officer contacted the appellant who believed him to be a hit-man. The police officer, wearing an authorised listening device, met with the appellant who negotiated with him to kill the proposed victim.
Principles applicable to interfering with sentencing discretion - effect of mental abnormality on sentence - late plea of guilty - monetary motivation - personal deterrence.
Whether sentence manifestly excessive - whether too great an emphasis placed upon issue of personal deterrence.
Appeal dismissed.
195

DJS - CCA, 14.5.2001
Powell JA, Wood CJ at CL, Sully J
Citation: R v DJS [2001] NSWCCA 189
Conviction appeal.
Indecent assault.
12m GBB.
Primary objective of appeal was to have the formal conviction expunged.
Offence occurred 20 years prior to trial when applicant was aged 14. The offence involved him taking his younger sister, then aged 8, into a wardrobe, removing her underwear & touching her on the vagina. His mother became aware of what was going on, told him to stop & that was the end of the matter. No report was made. Sentencing judge made a statement that the offence, at its highest, was 'some form of child experimenting in some sexual activity. There is no suggestion before me that there was any ongoing sexual perversion ever displayed by the prisoner.'However, he made a further comment that 'these sort of offences must carry with them the recognition that those who interfere with children in any circumstances must result in a conviction ..'..
CCA held that the sweeping proposition made by the sentencing judge ought not be left to stand uncorrected.
Appeal allowed: conviction quashed; pursuant to s.10(1) Crimes (Sentencing Procedure) Act, charge preferred in the DC dismissed.
196

BECHERU, Gheorghe - CCA, 6.4.2001
Meagher JA, Wood CJ at CL, Studdert J
Citation: R v Becheru [2001] NSWCCA 102
Conviction appeal.
Import trafficable quantity heroin - 8y with NPP of 5y.
Appellant entered guilty plea. During proceedings, indicated there was a possibility that he no longer wished to adhere to that plea. Counsel then obtained written instructions in which appellant confirmed his understanding of the relevant considerations & his decision to enter a guilty plea.
Previous conviction for similar offence, involving cocaine - had been in gainful employment.
Whether plea made in circumstances which involved true admission of guilty - whether plea not free & voluntary - whether appellant pressured into plea - whether miscarriage of justice.
Appeal dismissed.
197

GRIFFITHS, Kevin Phillip - CCA, 11.4.2001
Wood CJ at CL, Smart AJ
Citation: R v Griffiths [2001] NSWCCA 130
Sentence appeal.
Armed robbery in company.
6y with NPP of 4y.
Applicant & female accomplice entered female victim's premises, applicant carrying a replica pistol & the female a knife. The victim was taken to the kitchen by the female, with the knife held against or close to her throat. Her handbag was then taken & she was forced into the bedroom where the applicant removed jewellery from her hands & neck. Both offenders then left the house & police were summonsed. When they arrived they found a light bulb from the front porch had been removed. Fingerprints of the accomplice were found at the premises. Strong Crown case.
Delay in sentence - applicant on bail for 2 years before being sentenced - addicted to heroin at time of offence - no psychological or pre-sentence reports were prepared - offence out of character - complainant tainted her evidence - applicant at crossroads - had rehabilitated since sentence.
Appeal dismissed.
198

DONNELLY, Shaun Vincent - CCA, 9.5.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Donnelly [2001] NSWCCA 203
Sentence appeal
1st trial: Supply (deemed) trafficable quantity prohibited drug (methylamphetamine)
35m with NPP of 26m (had already served 1 month in custody for the offence)
2nd trial: Escape from lawful custody; + 3 matters on a Form 1 (steal MV, 2 x larceny) committed during the course of the escape. Guilty plea.
21m with NPP of 10m (cumulative).
Appeal related only to the 1st trial. Applicant did not assert any error on the part of the sentencing judge in 2nd trial. Application lodged merely because, in the event that the appeal against the sentence imposed in the 1st trial should succeed, it would be necessary to adjust the commencement date of the sentence imposed in the 2nd trial. In the 1st trial, there was no issue about the applicant's possession of a trafficable quantity of methylamphetamine. The only issue was whether the methylamphetamine was for supply or for the applicant's own personal use. Applicant admitted possession of the drug but denied it was for supply.
Elements of offence - whether discount should have been allowed on a utilitarian basis.
Appeal dismissed.
199

S - CCA, 27.4.2001
Meagher JA, Sully & Dowd JJ
Citation: R v S [2001] NSWCCA 204
Conviction appeal
3 x indecent assault on male person aged 14 or 15 at the time.
Appellant was charged with 6 offences of indecent assault but convicted only of the first 3. There was a 20 year delay between the date of the alleged offences & the date when complaint was made to the police. Crown case depended upon uncorroborated evidence. The appellant denied all charges.
Inconsistent verdicts - 'unsafe & unsatisfactory'.
Appeal allowed: set aside convictions & sentences on orders from charges 1, 2 & 3. No new trial.
200

HAWKER, Shane - CCA, 18.4.2001
Wood CJ at CL, Sully J
Citation: R v Hawker [2001] NSWCCA 148
Sentence appeal.
9 x obtain money by deception; + a further 35 matters taken into account.
Total 6y with NPP of 3*y.
Guilty plea. Co-accused pleaded guilty to 10 obtain money by deception charges & asked that a further 38 matters be taken into account. Each received the same sentence.
Applicant worked in the Commonwealth Bank. He had a staff housing loan with the bank. The account was structured so as to allow payments over & above the normal mortgage instalments. They were then available for withdrawal upon application to the Staff Housing Loan section where the co-accused worked. A flaw in the system, which the co-accused discovered, enabled the applicant to draw out $1.2m during a period of a little over 3 years. The co-accused would enter false information into the bank's records to the effect that a special repayment had been made against the applicant's housing loan, when no such payment had been made. Their activities came to light during an internal investigation.
Whether total sentencing order fell outside proper range for offences involved - use of sentencing statistics - general deterrence.
Appeal dismissed.
201

MAZZILLI, Maximillian - CCA, 9.5.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Mazzilli [2001] NSWCCA 177
Sentence appeal.
1st indictment: 1 x fire firearm in manner likely to endanger safety of any other person - FT 1*y.
2nd indictment: 1 x supply prohibited drug (ecstasy); + an offence of possess cannabis leaf on a Form 1 taken into account - FT 1y (cumulative upon above sentence).
3rd indictment: 2 x firing firearm in public place - 4*y with NPP of 2y on each count (concurrent with sentence on 2nd indictment).
Applicant aged 17 at time of offences on first 2 indictments. He demonstrated violent & disruptive behaviour from an early age, resulting in school changes & attendance at various schools for behaviourally disturbed children. He was the victim in a later hit & run motor vehicle accident which resulted in a degree of brain damage.
Priors include driving offences, malicious damage to property, assault an officer in execution of duty, resist officer in execution of duty, goods in custody, AOABH, larceny - criminal record commenced at age 16 - history of drug abuse.
Whether sentencing judge took into account appellant's youth as a matter relevant to the interplay between general deterrence & rehabilitation - whether sentencing judge applied principle of totality.
Appeal dismissed.
202

MHH - CCA, 18.4.2001
Wood CJ at CL, Sully J
Citation: R v MHH [2001] NSWCCA 161
Sentence appeal.
Aggravated armed robbery.
3y with NPP of 2y (the whole of the sentence to be served in a detention centre).
Applicant & companions decided to entrap & rob passers-by by pretending that their motor vehicle had broken down. They set themselves up with the bonnet of the car raised. Shortly after midnight, two men who had been at a party, came past & the applicant sought their assistance. Both of the men went up to the applicant & his companions, whereupon the applicant asked one of the men if he could use his mobile phone to make a call. Upon giving it to the applicant, the applicant walked away with it. When the man asked for it to be returned, the applicant produced a semi-automatic pistol & pointed it at his head, as well as pointing it at the other man. The applicant & his companions then left the scene. Shortly before setting themselves up, the offenders had been in the nearby 7 Eleven store & were photographed by the store's security cameras.
Aged 17y 9m at time of offence, aged 18y 3m at time of sentence - prior offences.
Failure of sentencing judge to refer to s.6 Children (Criminal Proceedings) Act - misapprehension of applicability of principles established in Henry.
Appeal dismissed.
203

BERA, Frank - CCA, 24.5.2001 - 119 A Crim R 552
Stein JA, Foster AJA, McClellan J
Citation: R v Bera [2001] NSWCCA 205
Conviction appeal.
Knowingly take part in supply of commercial quantity methylamphetamine - FT 3y;
supply large commercial quantity methylamphetamine - 7y with NPP of 4y.
As part of a police investigation into drug operations, electronic surveillance of the home of a David Parker was carried out. This included a listening device & telephone intercepts. A number of tapes recorded between 27/5/97 & 19/9/97 were admitted into evidence revealing a relationship between the appellant & Parker concerning the supply of drugs. A listening device tape recorded on the telephone of Les Kalache revealed a relationship for the supply of drugs between Parker, Kalache & the appellant. On 19/9/97, appellant drove to Parker's house. Some 35 minutes later, he drove Parker's car out of the home with Parker in the passenger seat. Acting on police instructions, a highway patrol vehicle pulled the car over & gave the appellant a random breath test. Investigating police arrived & the car was searched. Police found a bag containing a powder substance (methylamphetamine) with a combined weight of approx 1.885 kgs.
Whether verdict unreasonable - findings - failure to comply with requirements of s.17 Criminal Procedure Act 1986.
Appeal dismissed.
204

MILLER, Stanley John - CCA, 24.5.2001 - 127 A Crim R 344
Giles JA, Greg James J, Badgery-Parker AJ
Citation: R v Miller [2001] NSWCCA 209
s.5F appeal.
Carnal knowledge by step-father of step-daughter.
Appellant was also charged with sexual intercourse, to which he pleaded not guilty. He entered a guilty plea to the carnal knowledge charge which the Crown accepted in full discharge of the indictment. Because appellant was in a de facto relationship with the child's mother at the time of the offence, the question of relationship troubled the trial judge. After an adjournment, the Crown applied to withdraw its acceptance of the plea of guilty. The appellant opposed the application. Trial judge gave a judgment granting leave to withdraw the Crown's acceptance of the plea & subsequently certified that his judgment was a proper one for determination on appeal, saying there was
'... an issue of law as to whether the term 'stepfather' means only a person who is married to the mother of the complainant child in question or, whether the term 'stepfather' includes also a person who lives in a relationship of de facto marriage with the mother of that child'.
The appellant appealed against the trial judge's judgment pursuant to s.5F(3) Appeal Act.
Whether step-relationship because of de facto relationship between appellant & mother of child - or because of appellant's position of authority & control over child.
Held: appellant's plea of guilty not available.
Appeal dismissed.
205

O'NEILL, Leslie William - CCA, 21.5.2001 - 122 A Crim R 510
Mason P, Sully & Dowd JJ
Citation: R v O'Neill [2001] NSWCCA 193
Crown appeal under s.5F(2) Criminal Appeal Act against verdict of acquittal by direction.
Use offensive instrument with intent to prevent lawful apprehension.
Two police officers forcibly entered respondent's home for breach of bail & breach of AVO & placed him under arrest. Issue on appeal was whether forcible entry into respondent's home was preceded by common law formalities required in order for attempt arrest to be 'lawful'within meaning of s.33B Crimes Act. On the day in question, police officers knocked on the door & repeatedly asked the respondent to open the door so they could speak to him. Although there was no reply, they heard footsteps & other noises coming from inside the house. The request was repeated through an open window & again at the door. The officers then left, later returning & asking for the door to be opened. Respondent began yelling at them. This scenario continued until one of the officers kicked down the door & entered the house. Respondent attacked them with an extinguisher, striking one of the officers on the head with the canister once it was empty. The trial judge held that due to the officers' failure to make a 'proper announcement'of intent to arrest before the forcible entry, respondent was entitled to a verdict of acquittal by direction.
Appeal dismissed.
206

BEGBIE, Dylan - CCA, 3.5.2001 - 124 A Crim R 300
Mason P, Sully & Dowd JJ
Citation: R v Begbie [2001] NSWCCA 206
Crown appeal.
Dangerous driving occasioning death (under the influence of intoxicating liquor).
18m with NPP of 6m home detention.
Respondent was driving north in the early hours of the morning when his vehicle collided head-on with a vehicle being driven in a southerly direction. Respondent had fallen asleep at the wheel shortly before the collision and his vehicle had crossed over a raised grass median strip in the middle of the road after failing to negotiate a slight left-hand bend. The 18 year old driver of the other vehicle suffered extensive injuries and died in hospital the same day.
Respondent a little over 17*y at the time of the offence - guilty plea - letters from deceased's mother & sister stating they felt deeply for the respondent & the burden he would have to carry - no expression of malice or anger from them.
Whether sentence manifestly lenient - relevance of forgiveness by victim's family.
Appeal allowed: resentenced to 2y imprisonment with NPP of 8m.
207

WALSH, David - CCA, 22.2.2001
Mason P, Whealy & Howie JJ
Citation: R v Walsh [2001] NSWCCA 109
Conviction appeal.
Aggravated sexual assault - 5y with NPP of 2*y;
AOABH - FT 6m.
Appellant & female victim had an intimate relationship. Although their relationship had cooled off somewhat, they agreed to meet for a drink. A considerable amount of alcohol was consumed & they then caught a train to appellant's house so that he could drive victim home. Victim fell asleep on appellant's couch & woke up when she felt him trying to pull down her skirt. She protested & they struggled, however, appellant managed to pull down victim's underwear & penetrated her vagina with his penis. He then told her to get in the car. While in the car, they argued & victim hit appellant with her bag. Appellant retaliated by hitting her on her arms & head.
Directions regarding complaint - corroboration - conflicting evidence - whether verdicts unreasonable.
Appeal dismissed.
208

HOLDEN, Christopher James - CCA, 28.5.2001
Carruthers AJ, Badger-Parker AJ
Citation: R v Holden [2001] NSWCCA 214
Sentence appeal.
1 x armed robbery (attempt); 1 x armed robbery.
Total of 8y with NPP of 6y.
Applicant, armed with a .38 calibre Colt revolver loaded with one bullet, attempted to rob a service station attendant working alone. The victim, believing the revolver to be fake, resisted by throwing a box of chocolates at him, pressing the alarm bell & telling him to get out. Applicant walked out of the shop. He succeeded in robbing another service station attendant working alone at other premises. This victim thought the revolver was genuine (which it was) & was very shaken & emotional as a result of the robbery, during the course of which applicant pointed the gun at him & waved it around in front of him. On each occasion there were several witnesses. Some of them noted the registration plate of a motor vehicle in which applicant had come to the premises. That vehicle was driven by applicant's wife. There was also another man in the vehicle on both occasions.
Sentencing - separate assessment of criminality required ( Itamua (2000) NSWCCA 502, Pearce (1998) 194 CLR 610) - accumulation of sentences as a 'special circumstance'- totality.
Appeal allowed: resentenced to FT of 3y on 1st count, 5y with NPP of 3y on 2nd count (cumulative)
209

T - CCA, 28.5.2001 - 122 A Crim R 206
Spigelman CJ, Wood CJ at CL, Greg James J
R v T [2001] NSWCCA 210
Conviction appeal.
Murder.
Victim had been living with his mother following the breakdown of his marriage. On the night of his death, appellant & 3 young companions were stealing mangoes from trees in the backyard of the mother's home. Victim observed this & pursued them. He seized one of them & a struggle ensued. Appellant & the other 2 young men joined in. Victim was stabbed 7 times in the torso & upper left arm. He made his way back to his mother's home & was taken to hospital where he died the following morning.
Admissibility of ERISP - appellant under 18 at time of offence - absence at interview of accompanying person - significant possibility evidence would not have been admitted - significant possibility of acquittal.
Whether miscarriage of justice resulted from absence of fresh evidence at trial - statements made by appellant to police inadmissible by reason of operation of s.13 Children (Criminal Proceedings) Act 1987.
Appeal allowed: new trial ordered.
210

GOUNDER, Vikash - CCA, 14.5.2001 - 127 A Crim R 331
Powell JA, Wood CJ at CL, Sully J
Citation: R v Goundar [2001] NSWCCA 198
Crown appeal.
Aid and abet armed robbery.
18m with NPP of 7m.
Two men, each wearing a balaclava & bulky jacket, held up a console operator at a service station. One of the men had jumped the counter & held a machete to the face of the console operator. They fled with approx $300, as well as some confectionery & cigarettes. Police observed respondent & a co-offender standing beside a MV parked in a nearby street. A machete was found in a garbage bin adjacent to the vehicle. Inside the MV they found cigarettes & confectionery from the service station, as well as a jacket of the same kind as that worn by the 2 men. Respondent admitted to police that he had been party to the plan to rob the service station & that he knew a machete was to be used. He said his role was to drive the others to and from the scene of the robbery.
Aged a little over 18 at time of offence - no priors.
Leniency - whether sufficient weight given to objective circumstances - whether reasonable proportionality between weight given to objective gravity of crime and subjective circumstances - error of law.
Appeal allowed: resentenced to 2*y with NPP of 12m.
211

QUESADA, Edith - CCA, 30.5.2001 - 122 A Crim R 218
Wood CJ at CL, McClellan J, Smart AJ
Citation: R v Quesada [2001] NSWCCA 216
Conviction and sentence appeal.
Knowingly concerned with importation of trafficable quantity cocaine.
10y with NPP of 7y.
A woman entered Australia at Sydney Kingsford Smith Airport on a flight from Buenos Aires. A Customs officer examined her luggage, which consisted of a small case & a backpack which was wrapped in green plastic. The backpack was x-rayed as it seemed unusually thick & heavy around the back support area & straps. Federal Police then took over. In the shoulder straps they found 2 packets of compressed powder, as well as 2 packets in the waist straps & 2 in the back lining of the backpack. Upon examination of one of the packets, it was found to contain cocaine. Two packets were returned to the lining & 4 substituted packets were inserted in the shoulder & waist straps. The woman was set up in a hotel room & a controlled delivery was arranged. Federal Police occupied the adjoining room. After a number of telephone calls, the appellant eventually came to the room. Unknown to either the woman or the appellant, they were videoed by Federal police. This video was admitted into evidence, but without a soundtrack. The video showed the woman taking items of clothing out of the backpack. When it was empty, she went out through a doorway. Appellant picked up the backpack then put it down. The woman re-entered & picked up the backpack, then she & the appellant walked out. They were both arrested after leaving the hotel room. The woman was charged with being involved in the importation, but was acquitted.
Admissibility of psychologist's evidence - whether dependent on specialised knowledge - direction as to lies - state of mind - whether NPP excessive.
Conviction appeal dismissed.
Sentence appeal allowed on NPP: resentenced to NPP of 6y.
212

BAKER, Allan - NSW SC, Greg James J, 25.5.2001
Citation: R v Baker [2001] NSWSC 412
Redetermination of life sentence under s.13ASentencing Act1989.
Murder - life; conspiracy to murder - life; malicious wounding - 15y hard labour; malicious shooting - 15y hard labour. These offences were committed with co-offender, Crump.
From age 12 has spent greater part of life in custody or under supervision - aged 26 when sentenced to life imprisonment - now aged 53 - has been in custody for the above offences for nearly 27y.
Original offence of murder not worst class of case - statutory maximum for attempt murder now 25y - circumstances of all offences - views of trial judge - non-release recommendation - effects of amendments to s.13A - special reasons justifying determination - co-offender's sentences re-determined under provision before relevant amendments - facts different - no parity required - marked rehabilitation - no special reasons considering culpability.
Applicant not eligible for re-determination.
213

TAN, King Yoon - CCA, 28.5.2001
Dowd & Greg James JJ, Smart AJ
Citation: R v Tan [2001] NSWCCA 219
Sentence appeal.
Import commercial quantity ecstasy.
7y with NPP of 4*y.
Applicant was stopped at Sydney Kingsford Smith Airport having flown from Kuala Lumpur. His luggage was searched and a body search was conducted. A number of packages containing the drug were secured about his body & inside his thighs with tape. He also had $2,000 in Australian currency. Gross weight of drug 1.846 grams, pure weight 736 grams.
Aged 41 at time of sentence - early guilty plea - utilitarian component - sentencing judge found him to be a mere courier - contrition - prior good character - needed money because of mother's medical condition.
Failure to give considerable weight to early plea of guilty, previous good character, hardship, particularly regarding his mother's deteriorating health - whether sentence manifestly excessive.
Appeal dismissed.
214

HUYNH, Thang Minh - NSW CCA, Wood CJ at CL, 3.5.2001
PHUNG, Johnny
Citation: R v Phung and Huynh [2001] NSWSC 357
Remarks on Sentence.
Murder; accessory after the fact to murder; 2 x armed robbery; + Form 1 offences.
Accused, in company, entered a leisure centre armed with a pistol with intent to rob. Robberies were committed against 2 victims. The property stolen was not of great value. Some hours later, they returned to the leisure centre in order to commit further robberies. While attempting to rob a 3rd victim, the accused's firearm was discharged, killing the victim's brother-in-law who had been trying to assist the victim.
Young offenders - guilty plea - drug addiction - difficult background - prior convictions - rehabilitation - totality - parity - ratio of NPP to head sentence.
Sentenced to 13y with NPP of 8y.
215

ARBOLINO, Michael Bruno - CCA, 8.5.2001
Wood CJ at CL, Newman AJ, Matthews AJ
Citation: R v Arbolino [2001] NSWCCA 207
Conviction appeal.
Appellant was charged with 7 x acts of indecency & assault involving a 14 year old boy.
Trial judge directed jury to find appellant not guilty on count 5. Jury found appellant guilty on 1st count & not guilty on counts 2,3,4 & 6, unable to reach a verdict on count 7. Appeal against conviction on 1st count.
Onus of proof - directions - danger of convicting on evidence of complainant - failure of appellant to testify.
Appeal allowed: new trial ordered.
216

CHEKERI, Rahimullah - CCA, 1.6.2001 - 122 A Crim R 422
Spigelman CJ, Greg James & Howie JJ
Citation: R v Chekeri [2001] NSWCCA 221
s.5F appeal by Crown against order permanently staying proceedings.
Respondent initially arraigned on an indictment containing 1 x supply heroin; 2 x supply large commercial quantity heroin. He was acquitted of the 1st count & the jury were unable to agree on a verdict in respect of the other counts. He later faced a retrial on an indictment containing 2 x supply large commercial quantity heroin. At the end of the Crown case, trial judge directed the jury return a verdict of not guilty on the 2nd count & then discharged them without giving a verdict on the 1st count. Almost 5 months later, respondent stood trial again, this time on an indictment for a single count of supply large commercial quantity heroin. The trial judge at this trial ordered that proceedings on this indictment be permanently stayed.
No breach of principles of double jeopardy - not abuse of process - remedy to be found in adjournment before trial or discharge of jury during trial - stay of proceedings not justified in present case.
Appeal allowed: order staying proceedings quashed.
217

HALL, Brian Morgan - CCA, 25.5.2001
Meagher JA, Sully & Howie JJ
Citation: R v Hall [2001] NSWCCA 202
Conviction and sentence appeal.
Murder - MT 14*y, AT 5y; maliciously wound w/i to do GBH - FT 10 (concurrent); 2 x maliciously inflict GBH w/i to do GBH - FT 10y (concurrent); 2 x drunken driving occasioning GBH - FT 10y (concurrent).
Appellant consumed large quantity of alcohol at a tavern, got into his car & drove across footpath. Some patrons standing outside the tavern made derisory remarks & appellant responded with insults. Victim 1 invited him to repeat what he said outside the car, appellant got out of car & a violent exchange occurred. Other patrons separated them. Appellant returned to his car & victim 1 punched him through the window. Appellant drove away, did a U-turn, returned & struck victim 1 & victim 2 with his car. Victim 3 & victim 4
went to their aid. Appellant again returned in his car & struck victim 3, victim 4 & victim 1. Victim 3 suffered serious injuries & died a week later. Aged 22 at time of offence - no priors.
Failure to leave manslaughter by reason of provocation for jury's consideration - directions on recklessness - verdicts not supported having regard to evidence for the murder & maliciously inflict GBH charges.
Appeal dismissed.
218

EBNER, Robert John - NSW SC, Adams J, 25.5.2001
Citation: R v Ebner [2001] NSWSC 421
Remarks on Sentence.
Murder.
Deceased a heroin addict. Accused & his girlfriend were also heroin addicts & were living in deceased's house. Shortly before she was killed, the deceased bought some heroin. When she refused to give any to the accused, he killed her. Her body was found in a laneway.
Guilty plea - aged 29 - left school at early age - sent to a detention centre for stealing at age 14 - various jobs after release - began using amphetamines - received stab wounds in a fight - complications, extensive surgery carried out - on morphine drip in hospital - subsequently used pethidine & morphine upon release until supplier (who worked for a doctor) lost job - began using heroin, Rivotril & Rohypnol.
Verbal & non-verbal skills at top of average range - personality disorder - significant negativistic masochistic characteristics - anti-social traits - depressed at current circumstances with feelings of hopelessness - pessimism - low self-esteem - guilt - fear of the future - sense of futility.
Sentenced to 18y with NPP of 13*y.
219

SINANOVIC, Hakija - CCA, 16.5.2001
Powell JA, Wood CJ at CL, Sully J
Citation: R v Sinanovic [2001] NSWCCA 217
Application for extension of time. Application for leave to appeal against interlocutory order dismissing Notice of Motion to have proceedings stayed. Informal application for leave to appeal against refusal to adjourn hearing on indictment.
Interlocutory order - whether order that applicant's wife not be granted leave to assist & get access to representation - no order made.
No error of law - informal application not entertained.
Application refused.
220

FIRNS, Kenneth John - CCA, 21.5.2001 - 124 A Crim R 157; 51 NSWLR 548
Mason P, Hidden J, Carruthers AJ
Citation: R v Firns [2001] NSWCCA 191
Conviction appeal.
Insider trading.
Appellant's father a director of a listed company holding exploration licences in PNG, primarily through subsidiaries. A subsidiary applied for an exploration licence in an area of PNG thought to have gold. A regulation was passed which was adverse to subsidiary's interests, essentially removing their right to explore the area for gold. The subsidiary challenged validity of regulation & an appeal to the SC of PNG declared the regulation invalid. When judgment was delivered, one of the directors immediately telephoned the appellant's father, who subsequently telephoned the appellant. Appellant then contacted a stockbroker & purchased shares in the company in the name of his wife & also a friend, using a pseudonym.
Legislative history of Division 2A of the Corporations Law - when is material 'readily observable'- whether a judgment read in open court constitutes 'readily observable'information - whether information must be available in Australia before it is 'readily observable'.
Appeal allowed conviction & sentence quashed, verdict of acquittal entered.
221

HEMMELSTEIN, Joel Mark - CCA, 6.6.2001
Meagher JA, Hulme J, Smart AJ
Citation: R v Hemmelstein [2001] NSWCCA 220
Conviction appeal.
Knowingly import commercial quantity cocaine.
9y with NPP of 6y.
Applicant arrived at Mascot Airport from the USA. Amongst his luggage was a golf bag with golf clubs, the golf bag being contained in a hard-sided carry case. In the false bottom of that carry case, 3 packages of cocaine were found containing 2,152 grams of cocaine with an estimated street value of over a million dollars. Applicant claimed he was in Australia to play golf, nothing more. Evidence of a conversation applicant had with his brother about his intention to play golf in Australia was rejected, as was a note from applicant's solicitor to the effect that another man had hinted that he put the cocaine in the carry case.
Wrongful exclusion of evidence - relevance and admissibility of evidence.
Appeal dismissed.
222

MELOH, Andrew - CCA, 21.5.2001
Spigelman CJ, Hulme & Howie JJ
Citation: R v Meloh [2001] NSWCCA 211
Sentence appeal.
Knowingly concerned in importation of trafficable quantity ecstasy.
6y with NPP of 4*y.
Applicant took delivery of a package of ecstasy that had been sent from Holland in a controlled delivery. When he realised he was under surveillance by the police, he left the package in a doorway & ran off. He was arrested after a short chase.
Submitted that NPP excessive.
Appeal allowed on NPP: resentenced to NPP of 3y 7m.
223

GIRI, Nitin - CCA, 12.6.2001 - 121 A Crim R 568
Heydon JA, Barr J, Smart AJ
Citation: R v Giri [2001] NSWCCA 197
Conviction appeal.
Murder.
Appellant & a co-accused were convicted of murder following the death of the deceased resulting from a physical attack upon him outside a nightclub. Neither appellant nor co-accused gave evidence at trial. Trial judge's instructions to the jury included the direction that the jury could not impute guilt directly from the accused's failure to give evidence at trial, however, he also made comments to the jury that they could consider the silence of the accused when weighing evidence from Crown witnesses.
Right to silence - directions & comments - whether directions on self-defence adequate - whether directions on manslaughter adequate - whether directions on reliability of witnesses adequate
Appeal dismissed.
224

HAWKINS, David John - NSW SC, O'Keefe J, 24.5.2001
Citation: R v Hawkins [2001] NSWSC 420
Remarks on sentence.
Manslaughter.
Accused indicted for murder, entered a plea of not guilty to that charge, but guilty to manslaughter on the grounds of diminished responsibility. The Crown accepted the plea in full satisfaction of the indictment.
Killed his wife following the ingestion of 250 milligrams of Zoloft in a period of 4 to 5 hours.
Aged 76 at time of sentence.
Manslaughter - diminished responsibility - effects of prescribed drug - extraordinary circumstances - act out of character - immediate confession - plea of guilty - criteria for sentencing.
Sentenced to 3y with NPP of 2y.
225

SAW - CCA, 4.6. 2001
Dowd & Greg James JJ, Newman AJ
Citation: R v SAW [2001] NSWCCA 222
Conviction and sentence appeal.
1 x sexual intercourse with child (aged 15) under authority.
3y with NPP of 2y 3m.
Appellant had been charged with 7 counts. He was acquitted on all but one count.
Complainant's evidence on various counts on which acquittals occurred were contradicted by independent evidence. The finding of guilt on the one count was where only the complainant & appellant gave evidence. Appellant denied complainant's account.
Effect of evidence relevant to complainant's evidence on other counts - conviction unreasonable.
Appeal allowed: verdict of acquittal entered.
226

TADMAN, Jaydon - CCA, 29.5.2001
Spigelman CJ, Hulme & Howie JJ
Citation: R v Tadman [2001] NSWCCA 225
Sentence appeal.
Aggravated dangerous drive occasioning death.
7y with NPP of 4y; & disqualified from driving for 5 years.
Applicant was driving erratically, veering from lane to lane, ultimately resulting in him colliding into the side of a car which caused that car to spin out of control onto the other side of the road where it collided with an oncoming taxi. The driver of the car was killed in the collision & the taxi driver suffered head injuries.
Where strong subjective features redounding to appellant's credit - whether incorrect application of sentencing principles - R v Jurisic.
Appeal allowed: resentenced to 5y 3m, with NPP of 2y 8m.
227

CLARKE, John William - CCA, 1.6.2001
Dowd J, Smart AJ, Einfield AJ
Citation: R v Clarke [2001] NSWCCA 223
Sentence appeal.
Supply large commercial quantity methylamphetamine - 7y with NPP of 3*y (taking goods in custody into account);
possess trafficable quantity heroin - 3y (no NPP fixed).
51 days pre-sentence custody taken into account, however, there were 59 days spent in pre-sentence custody.
1.8 kgs of methylamphetamine were found in a backpack in applicant's vehicle with a value estimated between $48,000 & just under $180,000. Applicant was on parole at the time. Also in the vehicle were 60 pairs of expensive sunglasses priced at $195 per pair.
Police surveillance uncovered the Cth offence. Applicant was in his car when police signalled him to stop. He threw something wrapped in a white cloth from the window. The cloth landed on the side of the road & near it was a clear plastic bag containing fragmented blocks of off-white powder. $4,700 was found in applicant's tracksuit top & $305 in his wallet. The powder weighed 138.2 grams with a pure content of 62.8 grams, potential value estimated to be between $30,000 & $50,000. On bail at the time.
Application of principle of totality.
Appeal against Cth offence allowed: resentenced to 3y (declined to set NPP).
Appeal against State offence allowed: resentenced to 5*y with NPP of 2*y.
228

MURRELL, Lloyd Anthony - CCA, 4.6.2001 - 123 A Crim R 54
Wood CJ at CL, Kirby J, Matthews AJ
Citation: R v Murrell [2001] NSWCCA 179
Conviction appeal.
Murder.
Crown case was that appellant & another man had participated in a joint criminal enterprise to fire a shotgun at the home of the deceased & that the other man was responsible for firing a shot through the closed front door of the deceased's home which struck him while he was standing in the hallway. Another shot had been fired through the window of the lounge before the fatal shot, without striking anyone.
A tape recording of a conversation by the appellant was of critical importance to the Crown case, however, the recording was of poor quality & the contents & transcript of the conversation were disputed at trial.
Joint criminal enterprise - whether admission of tape & transcript into evidence constituted miscarriage of justice - whether new trial should be ordered - whether verdict of acquittal should be entered for charge of murder - whether new trial should be confined to charge of manslaughter.
Appeal allowed: new trial ordered.
229

PHAN, Vinh Ngoc - CCA, 4.6.2001 - 53 NSWLR 480; 123 A Crim R 30
Wood CJ at CL, McClellan J, Smart AJ
Citation: R v Phan [2001] NSWCCA 29
Conviction appeal.
Murder.
14y with NPP of 10y 9w.
Crown case that deceased was shot 3 times while sitting in the front seat of his car & that the appellant was one of the persons who shot the deceased, or that he was present as a principal in the 2nd degree, aiding & abetting the shooter or shooters.
Directions to jury - discretion to exclude evidence - whether summing up unbalanced - whether necessary to give instructions on alternative verdict of manslaughter - criminal responsibility - distinction between common purpose & joint criminal enterprise - whether principal in 2nd degree - whether mere presence enough to be guilty of murder - whether miscarriage of justice.
Appeal allowed: new trial ordered.
230

RADIC, Dragan - CCA, 29.5.2001 - 122 A Crim R 70
Hidden J, Carruthers AJ, Badgery-Parker AJ
Citation: R v Radic [2001] NSWCCA 174
Sentence appeal.
BE&S.
3y 4m, with NPP of 2y 6m.
The applicant entered a guilty plea to the above count in the LC. The matter was then committed to the DC for sentencing. At sentence, applicant adhered to his plea of guilty, however, he disputed that he stole jewellery to the value of $38,000, claiming that he only broke into a shed & stole a drill. No consideration appeared to have been given by the sentencing judge to the legal complication arising as a result of the applicant adhering to his plea of guilty to the BE&S but denying he stole the jewellery.
Consideration of appropriate procedure to be followed by the sentencing judge in such circumstances - necessity to comply carefully & precisely with terms of s.51A.
Appeal allowed: resentenced to 3y, with NPP of 1y 9m.
231

GALLAGHER, Gerard Joseph - NSW SC, Barr J, 4.5.2001
Citation: R v Gallagher [2001] NSWSC 462
Reasons for judgment on objection to the tender of evidence of DNA test results.
Objection was taken to the tender by the Crown of evidence of results of tests done on DNA extracted from material found at the place where the deceased died within a short time after he died.
Whether evidence of DNA test results was based on witness' specialised knowledge based on training, study & experience - Held: Yes.
Whether evidence of DNA test results had substantial probative value - Held: Yes.
Whether admission of evidence of DNA test results gave rise to danger of unfair prejudice to accused - Held: No.
Evidence held admissible.
232

SINANOVIC - HC, 8.6.2001
Citation: Sinanovic v The Queen (No.1) [2001] HCA 35
Application for bail pending application for special leave to appeal against conviction. Bail refused in State Supreme Court. Principles governing admission to bail prior to determination of special leave application. Whether exceptional case demonstrated.
Application dismissed.
233

MATHESON, Danny Raymond George - NSW SC, Howie J, 11.5.2001
Citation: R v Matheson [2001] NSWSC 332
Remarks on sentence.
Murder.
Accused maintained he did not intend killing the deceased, his former de facto partner, but that the rifle he was holding at the time accidentally discharged during a struggle. The Crown submitted that the accused deliberately shot the deceased in the head at a time when she was helpless on the ground.
Sentenced to 20y with NPP of 15y.
234

PENNISI, Rosario - NSW SC, Bell J, 6.6.2001
Citation: R v Pennisi [2001] NSWSC 461
Remarks on sentence.
Manslaughter.
Accused entered a plea of not guilty to murder. The jury returned a verdict of guilty of manslaughter. Deceased died as a result of gun shot wounds. He was shot 10 times at close range as he stood in the car-park of a shopping centre. There were no witnesses to the killing. Shortly after the shooting, the accused surrendered himself to police & participated in a lengthy ERISP, during the course of which he made a number of frank admissions. Later in the day, he participated in a re-enactment of the crime at the scene of the shooting. This was also video recorded. Accused maintained he did not mean to kill the deceased, he only intended to scare him.
Sentenced to 9y with NPP of 6y.
235

CAPPADONA, Tom - CCA, 24.5.2001 - 122 A Crim R 52
CAPPADONA, Dorothy
Stein JA, Foster AJA, McClellan J
Citation: R v Cappadona & Anor [2001] NSWCCA 194
Crown appeal.
Fraud.
Tom Cappadona: 2y PD; Dorothy Cappadona: 12m suspended sentence.
Deliberate & systematic fraud on the ATO over a period in excess of 5 years failing to make tax payments totalling $3,550,774.
Early guilty plea - high level of co-operation.
Principles when sentencing for revenue fraud - general deterrence - whether sentences manifestly inadequate - whether sentences unreasonable or plainly unjust.
Tom Cappadona: appeal allowed - resentenced to 18m full-time imprisonment.
Dorothy Cappadona: appeal dismissed.
236

WOODLAND, Dale Mark - NSW SC, Wood CJ at CL, 25.5.2001
Citation: R v Woodland [2001] NSWSC 416
Remarks on Sentence.
Manslaughter.
Accused pleaded guilty to the manslaughter of his 2y old son which was accepted in full satisfaction of an indictment charging him with murder.
When deceased was 5 weeks old, he was removed from his parents by DOCS when it became apparent he had suffered non-accidental head injuries consistent with shaken baby syndrome. DOCS returned him to his parents 18 months later. The subject offence occurred some 6 months later.
Aged 21 at time of offence - use of cannabis stopped prior to offence - alcohol not a problem - prior good character - outbursts of anger - need for anger management - minimised his own responsibility for child's death - placed blame on others, as well as on DOCS - no psychiatric or personality disorder.
Sentenced to: 7y 9m with NPP of 4y 9m.
237

LITTLER, John Aloysius - CCA, 4.6.2001 - 120 A Crim R 512
Hodgson JA, Greg James & Adams JJ
Citation: R v Littler [2001] NSWCCA 173
Application for stay of proceedings.
Applicant was charged with a number of sexual assault offences in respect of a number of complainants. Two indictments were ultimately preferred against the applicant & he subsequently applied to the DC for a permanent stay on all counts. The application was heard & the DC judge stayed a number of counts, but declined to stay those relating to 2 complainants. Applicant sought leave in the CCA against that judgment declining to grant a stay on all counts.
Alleged offences occurred 38 to 46 years before trial. Applicant now aged 74 years & in ill health.
Psychiatric & psychological evidence that health & memory were such that a trial would be unfair.
Long & short-term memory problems - whether relevant if normal - directions not capable of ensuring fair trial.
Permanent stay granted.
238

GONZALEZ-BETES, Beatriz - 8.6.2001
Dowd, Barr & Greg James JJ
Citation: R v Gonzalez-Betes [2001] NSWCCA 226
Conviction & sentence appeal.
Knowingly concerned with importation of commercial quantity cocaine - Life, with NPP of 22y.
The amount of cocaine involved was 224.84 kgs, with 172.2 kgs pure cocaine.
The cocaine was concealed in a 'Boston Trawler'(a type of dinghy) on board a yacht.
Evidence of importation technique similar to previous yacht journeys with dinghy of specific design - appellant said to have asserted knowledge of previous journeys but not to have been involved in them.
Admissibility of evidence - utility of evidence - conduct of Crown prosecutor - form of summing-up.
Error in not ordering separate trials - error in admitting material of previous importations by co-accused - error in not giving directions.
Appeal dismissed.
239

JACOBS, Rodney Warren - CCA, 28.5.2001 - 122 A Crim R 409
Carruthers AJ, Badgery-Parker AJ
Citation: R v Jacobs [2001] NSWCCA 212
Sentence appeal.
2 x threaten injury with intent to prevent lawful apprehension; larceny MV; 2 x steal from the person; attempt steal.
Aggregate MT 3*y, AT 2*y.
Two security guards observed applicant stealing from a store. Applicant struggled with them & threatened them with a broken bottle. He also struggled with a woman who came to assist the guards. Some 6 months later, from the passenger seat of a moving stolen car, applicant grabbed the handbag of a female walking through a car park. Applicant attempted to take money from an open cash register in a newsagent. Applicant took a handbag from the boot of a car & then escaped. He later approached a female from behind, grabbed her bag, struggled with her, then took the bag & escaped.
Aged 25 at time of 1st offence - on parole at time of all offences - on bail at time of 4 offences - close & supportive family - previous drug problems - alcohol abuse - gambling problem - depression - low self-esteem - guilty pleas - remorse - prospect for rehabilitation - previously imprisoned.
Fresh evidence - need for surgery - Departmental responsibility to provide medical care - limited role of CCA.
Appeal dismissed.
240

CLARK, Steven John - NSW SC, Barr J, 14.6.2001
Citation: R v Clark [2001] NSWSC 488
Remarks on Sentence.
Murder.
Accused drove the deceased to a pine forest where he shot her 3 times before dragging her body into the forest & leaving it there.
Aged 36 - prior conviction for assault - permanent brain damage as a result of a motor vehicle accident - prone to making spontaneous foolish & occasional offensive remarks - break-up of marriage.
Sentenced to: 16y with NPP of 12y.
241

FUGE, Renee Julie - CCA, 4.6.2001 - 123 A Crim R 310
Heydon JA, Wood CJ at CL, Sully J
Citation: R v Fuge [2001] NSWCCA 208
Conviction appeal.
Accessory before the fact to assault with intent to rob whilst armed with offensive weapon.
3y with NPP of 12m.
Appellant & 5 others were at appellant's home consuming alcohol & cannabis, when they discussed robbing a Hungry Jacks restaurant, where one of the co-offenders had previously worked but had been dismissed. Appellant supplied co-offenders with 2 knives, black stockings & a bandanna. Two co-offenders were dropped off at the restaurant. Appellant arranged for them to be collected afterwards. The co-offenders held 3 staff members of Hungry Jacks at knife-point & asked one of them to open the safe, however, she was unable to open it & co-offenders left the premises.
Jury should have been directed as to possible defence of claim of right - error in failure to give appropriate directions with regard to motive to lie.
Appeal dismissed.
242

IRANI, Whalid - NSW SC, Barr J, 15.6.2001.
SAKISI, Asipeli Ben
Citation: R v Irani & Sakisi [2001] NSWSC 475
Remarks on Sentence.
Irani: Murder.
Sakisi: Accessory before the fact of malicious wounding with intent to do GBH.
A woman, wanting her supervisor (the deceased) to be put out of action for a few days in order for her to carry out acts of fraud upon the company, asked the accused Sakisi if he knew of someone who could do this. Sakisi approached Irani who agreed to carry out the attack. Irani hit the deceased over the head with a hammer, whereupon a struggle ensued & Irani stabbed the deceased 6 times, the fatal wound perforating the deceased's left lung & aorta. Irani told police he & Sakisi were each to receive $3,000 from the woman.
Early guilty pleas - both addicted to drugs.
Sentenced to: Irani - 20y with NPP of 15y
Sakisi - 10y with NPP of 7y
243

ADAMSON, Gerald Jon - NSW SC, Howie J, 1.6.2001
Citation: R v Adamson [2001] NSWSC 499
Remarks on Sentence.
2 x aggravated sexual assault; manslaughter.
Deceased was asleep during the acts of aggravated sexual assault perpetrated by the accused. Some time later, accused noticed deceased was not breathing. Accused raised the alarm & he himself tried unsuccessfully to resuscitate her. Deceased had died as a result of asphyxiation.
Accused aged 19 at time of offences - denial of involvement in offences at first - later acceptance of his role in the offences when presented with evidence of his DNA on deceased's clothing - fairly late guilty plea of minimal utilitarian value, however, it did save the family of the deceased the trauma of a trial.
Sentenced to aggregate total of 14y with NPP of 10*y.
244

ALI, Abbas Mohammed - CCA, 15.5.2001 - 122 A Crim R 498
Giles JA, Greg James J, Badgery-Parker AJ
Citation R v Ali [2001] NSWCCA 218
Conviction appeal.
Armed robbery; discharge firearm in dangerous manner.
Appellant's co-offender was also charged with armed robbery, however, he was found not guilty. Critical issue at trial was the identification of the perpetrators of the armed robbery, which took place in a shopping complex adjacent to a hotel. The perpetrators waited in the arcade until 2 employees from the hotel walked from the hotel into the arcade, one of them carrying a black bag. They were going to the bank to collect money. The perpetrators, believing they were carrying money to the bank, confronted the men near the bank entrance, one of them producing a firearm. The unarmed perpetrator punched one of the men & the armed perpetrator pointed the gun at the other man & discharged it. It missed. The perpetrators then fled.
Identification evidence - risk of miscarriage of justice.
Appeal allowed: new trial ordered.
245

FOSTER, Michael Wayne - CCA, 28.5.2001
Giles JA, Greg James J, Badgery-Parker AJ
Citation: R v Foster [2001] NSWCCA 215
Crown appeal.
Dangerous drive occasioning death.
22m suspended sentence.
Respondent, who had been drinking, was driving his friends home at night. The speedometer of his MV was not working. Evidence that he was driving too fast & that the deceased had asked him to slow down as they approached a bridge. He took his foot off the accelerator but did not apply brakes. The MV veered to the right of the bridge, struck the railing, went out of control, then flipped 2* times. The front windscreen popped out & both the deceased & the respondent were flung from the vehicle. The deceased was pronounced dead shortly after arriving in hospital. Respondent suffered serious injuries consisting of a shattered compound fracture of the skull, a fracture of the 5th vertebra, a badly lacerated right ear, body lacerations & abrasions.
Jurisic guidelines - 'momentary reckless error of judgment'- conduct not amounting to abandonment of responsibility - gradations of culpability.
Whether sentence manifestly lenient.
Appeal dismissed.
246

PS - CCA, 4.6.2001 - 123 A Crim R 165
Dowd & Greg James JJ, Newman AJ
Citation: R v P S [2001] NSWCCA 224
Conviction appeal.
Sexual intercourse with child under 10 (aged 8); alternative charge of aggravated indecent assault.
Pleaded not guilty to both charges, however, the jury found him guilty.
Appellant, who was the step-father of the complainant, had been accused of sexual misconduct by the complainant.
Appellant's counsel at trial forced the Crown to call the complainant's sister to give evidence. After some innocuous questioning of the complainant's sister by the Crown, counsel for the appellant cross-examined her. Counsel for the appellant failed to put to either her or her mother the question of a concoction or conspiracy against the accused, leaving the accused in a vulnerable position. The Crown was so alarmed at the course of events that she even raised them in court in the absence of the jury after the completion of the Crown case.
Whether miscarriage of justice - conduct of legal practitioners - flagrant incompetence of counsel - relevant principles.
Appeal allowed: new trial ordered.
247

HYLAND, Dean William - NSW SC, Ireland AJ, 7.6.2001
PARRY, Robert Owen
YATES, Barry James
POWICK, Bradley Thomas
WALL, Darren Russell
Citation: R v Hyland, Parry, Yates, Powick and Wall [2001] NSWSC 470
Remarks on Sentence.
Home invasion type offence. Execution style killing. Offenders demanded money to the tune of $20,000 which was said to be owed by the deceased's late uncle. The occupants knew nothing of the money. The occupants were threatened & beaten. The deceased was first beaten with a baseball bat then shot at close range behind ear. Remaining occupants again threatened before offenders fled.
Whether worst case category - whether warranting imprisonment for life.
Hyland: Murder; home invasion in circumstances of special aggravation - aggregate 23y with NPP 17y 3m.
Parry: Murder; home invasion in circumstances of special aggravation - aggregate 26y with NPP 19*y.
Yates: Murder; home invasion in circumstances of special aggravation - aggregate 20y with NPP 15y.
Powick: Home invasion in circumstances of special aggravation; accessory after the fact to murder - aggregate 10y with NPP 6*y.
Wall: Accessory after the fact to murder; incite to provide false alibi with intent to pervert course of justice - aggregate 12m with NPP of 6m.
248

McINTYRE, David John - NSW SC, Bell J, 11.4.2001
Citation: R v McIntyre [2001] NSWSC 500
Remarks on Sentence.
Murder.
The deceased, aged 14, was at the time of the offence under the accused's care. Motivation for the killing unknown. Deceased complained to his mother about sexual advances having been made by the accused some time prior to day of offence.
Strong Crown case - no premeditation, however, evidence of an intent to kill - some mutilation of the deceased's body after death.
Aged 44 at time of offence - average intelligence - no history of psychiatric illness - no signs of formal thought disorder or depression - showed symptoms consistent with Schizotypal personality disorder - prior good character.
Sentenced to: 22y with NPP of 17y.
249

BROWNLEE, Anthony John - HC, 21.6.2001 207 CLR 278;75 ALJR 1180
Citation: Brownlee v The Queen [2001] HCS 36
Juries - Right to trial by jury - Reduction during trial of number of jurors - Offence of conspiracy to defraud Commonwealth - During lengthy trial jury reduced from 12 to 10.
Constitutional law - Trial by jury - State law permitting reduction during trial of number of jurors - State law permitting separation of jurors after jurors retire to consider verdict - Whether trial "by jury" within meaning of s 80 of Constitution.
Waiver of requirements by accused - Whether waiver possible - Whether waiver in fact - Whether leave required to reconsider past authority on Constitutional question.
Appeal dismissed.
250

WOOD, Mark James - CCA, 20.6.2001
Smart AJ, Newman AJ, Badgery-Parker AJ
Citation: R v Wood [2001] NSWCCA 228
Conviction and sentence appeal.
Larceny.
3y with NPP of 12m.
The offence involved the theft of money from a service station. Crown case was that an employee became aware that there was a large amount of money in a part of the station safe which could be accessed by staff members. The night before the theft took place, that employee spoke to the appellant & another man & proposed they steal the money from the service station. On the day of the robbery, the surveillance video was shut off & the robbery duly carried out.
Evidence possibly unreliable - accomplice - informal admission - identification - adequacy of warnings & directions - points not taken at trial - whether miscarriage of justice - parity.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 2y with NPP of 8m.
251

SKAF, Jehad - CCA, 23.5.2001
Grove, Simpson & McClellan JJ
Citation: R v Skaf [2001] NSWCCA 199
Sentence appeal.
Utter false birth certificate knowing it to be false - MT 1y 3m, AT 1y 3m PD;
2 x use false instrument - MT 1y 3m, AT 1y 3m PD (concurrent with above sentence).
A compensation order was also made.
Appellant produced a false birth certificate & applied for a learner driver's licence in a false name. Appellant registered a stolen BMW sedan in a false name, using the false birth certificate. Appellant applied for a replacement registration of the BMW.
Guilty plea - aged 30 at time of offences.
Compensation order - applicable statutory provisions - loss to victim - absence of findings or reasons - sufficiency of evidence of causation.
Appeal allowed in part: orders for payment of compensation quashed.
252

LELEI, Kitiona - CCA, 25.6.2001
Carruthers AJ, Badgery-Parker AJ
Citation: R v Lelei [2001] NSWCCA 229
Sentence appeal.
5 x receiving.
16m with NPP of 12m on each count (concurrent).
Substantial fraud perpetrated against AMP Workers Compensation Limited (see R v Prasad, Krishnan, Prakash & Milford [2000] NSWCCA 539). Applicant received 5 cheques with a total value of $48,910. He used some of the money to pay for an overseas trip, the balance was wasted on gambling.
Whether sentence manifestly excessive - parity.
Appeal allowed: resentenced to 16m with NPP of 9m 1w on each count (concurrent).
253

GLOSSOP, David John Douglas - CCA, 4.5.2001
Meagher JA, Sully & Dowd JJ
Citation: R v Glossop [2001] NSWCCA 165
Conviction appeal.
Serious sexual offences perpetrated by appellant upon his son & daughter when they were young children.
There was a long delay in making complaint. Appellant sought a permanent stay of the proceedings or that the evidence of the complainant be excluded before trial. The stay was refused by the trial judge, who also ruled that not all the complainant's evidence could properly be excluded at trial. Appellant then applied for a certificate under s.5F Criminal Appeal Act, which was granted. The certificate stated that a copy of the judgment was a proper one for determination on appeal in view of each complainant's delay in complaining about accused's alleged conduct & the possibility that each complainant's memory was a false memory, rather than a true memory.
Evidentiary ruling of trial judge undisturbed.
Appeal dismissed.
254

FLAVEL, Robert Scott - CCA, 8.6.2001
Dowd, Barr & Greg James JJ
Citation: R v Flavel [2001] NSWCCA 227
Conviction and sentence appeal.
Import commercial quantity cocaine.
Life with NPP of 25y.
The appellant was tried jointly with Beatriz Gonzalez-Betes (see R v Gonzalez-Betes [2001] NSWCCA 226). This offence involved the importation of cocaine which was concealed in a dinghy on board a yacht
Admission of evidence - tendency evidence - probative value - unfair prejudice - evidence of knowledge - insufficient directions - out of court admissions - summing up - whether verdict unreasonable - parity.
Appeal dismissed.
255

ADAMI, Englebert - CCA, 22.6.2001
Simpson J, Smart AJ
Citation: R v Adami [2001] NSWCCA 247
Sentence appeal.
Accessory after the fact to BE&S; offence of being a passenger in a conveyance taken without consent of owner taken into account.
2y 8m, with NPP of 2y.
A break-in of a large industrial factory occurred & substantial quantities of goods & equipment were removed & placed in a white utility & a car. At one stage the applicant was in the utility with another man. The utility was driven to the other man's home where the stolen property was unloaded & placed in the man's garage. Later that day some of the property was removed & disposed of. The man was arrested with a quantity of tools in the boot of his vehicle which were identified as being part of the stolen property. A couple of days later, police executed a search warrant on the man's home & further stolen property was found. Police went to applicant's home where they found further items stolen from the factory. Applicant was originally charged with BE&S, goods in custody & steal MV, however, those charges could not be proved so the applicant was charged with being an accessory after the fact to BE&S.
Guilty plea - prior offences - previously imprisoned - significant drug problem - not willing to go into drug rehabilitation.
Parity - partially concurrent sentences on disparate offences deprived applicant of justifiable sense of grievance.
Appeal dismissed.
256

LBK - CCA, 18.6.2001
Simpson J, Smart A
Citation: R v LBK [2001] NSWCCA 248
Sentence appeal.
BE&S in circumstances of special aggravation.
MT 3y, AT 3y.
The infliction of GBH upon the victim constituted the circumstances of special aggravation. Applicant broke into victim's home & placed a number of items in a bag. The victim returned to find his front door barricaded, he pushed the door open, switched on some lights & called out. A struggle ensued between applicant & victim, applicant punched the victim in the mouth, then struck him several times about the body with a recorder. Applicant picked up a 4 inch bladed knife & threatened the victim, forcing him to retreat. While victim was retreating, applicant stabbed him several times in the chest, arms & leg. There was a further struggle over the bag & the applicant slashed the victim's hands. The struggle moved outside the house, the victim called out for help & the applicant released the bag & ran off. The victim was taken to hospital by ambulance, suffering from a number of injuries, some serious.
Aged 16 at time of offence - guilty plea - full admissions - prior offences - on probation & parole at time of above offence -distorted set of values - sentencing judge described applicant's answers given in his ROI as 'chilling'- dysfunctional family background - deprived childhood - made a State ward at age 6 - behaviour problems - Attention Deficit Disorder.
Whether sentence manifestly excessive - importance of rehabilitation - reliance placed on Judicial Commission statistics - submitted that whole of sentence should be spent in Juvenile Detention Centre.
Appeal in terms of sentence dismissed, however, an order made that the whole of the time should be spent in Juvenile Detention Centre.
257

HERCEG, Damir - CCA, 25.6.2001
Barr & Howie JJ
Citation: R v Herceg [2001] NSWCCA 242
Sentence appeal.
2 x detain person for advantage; 2 x AOABH.
4y with NPP of 2y.
Applicant & others believed that a 15 year old girl & a young man had stolen money from a club that was used for young people to congregate & socialise. Applicant was the President of the club, another co-offender the Vice-President & a 3rd offender the Sergeant-at-Arms. A 4th offender was dealt with in the Children's Court. The female victim heard she had been accused of stealing money & went to the club to clear her name. She was assaulted a number of times & tied to a chair. In the meantime, the young man was found & taken to the club. He was also assaulted a number of times.
Aged 43 - guilty plea - criminal record - prior imprisonment - no sign of remorse in spite of guilty plea.
Determination of maximum penalty under s.90A Crimes Act - meaning of 'substantial injury'- question of parity with co-offenders.
Appeal dismissed.
258

ELKURDI, Moamar - CCA, 27.6.2001
Barr & Howie JJ
Citation: R v Elkurdi [2001] NSWCCA 240
Sentence appeal.
Armed robbery.
5y with NPP of 3y.
Applicant entered a shop & asked for change. When the proprietor opened the till, applicant produced a knife & asked for money. A struggle ensued & the applicant jumped over the counter, waving the knife in the proprietor's face. The proprietor sustained superficial injuries & the applicant got away with approx $100. The husband of the proprietor had heard the noise of the struggle & saw the applicant drive away. He made note of the car's registration number.
Aged 25 at sentence - guilty plea - extensive criminal history - on bail for assault & shoplifting at the time of the above offence - long history of drug abuse - medical opinion applicant suffered from chronic chemical dependence needing vigorous treatment for drug addiction.
Applicant claimed that he received poor legal representation in the sentencing court; that there were errors in psychiatrist's report; & that errors were made by sentencing judge.
Appeal dismissed.
259

PYRDA, Marak - CCA, 20.6.2001
Howie J, Smart AJ
Citation: R v Pyrda [2001] NSWCCA 230
Sentence appeal.
3 x BE&S; + 8 matters on a Form 1, 3 of which were for B&E with intent to commit a felony.
3y with NPP of 16m.
The 3 BE&S offences were all committed on the one occasion as part of one course of criminal activity & involved the applicant gaining entry into a group of professional rooms & taking a small amount of cash that he found there. The total amount of money taken was $410.
Guilty plea - aged 21 - record for dishonesty offences - prior imprisonment
Failure to backdate sentences to date upon which prisoner entered into custody.
Appeal allowed: sentences backdated.
260

KEYS, Nathan Arthur - CCA, 28.6.2001
Smart, Badgery-Parker & Newman AJJ
Citation: R v Keys [2001] NSWCCA 232
Crown appeal.
2 x knowingly concerned in importation of more than trafficable quantity cocaine.
8y with NPP of 3*y.
Although there were 2 counts, sentencing judge did not expressly advert to that & purported to impose a single sentence of imprisonment, whereas he should have sentenced the respondent on each of the 2 counts. The matter came before the CCA on 2.5.2001 & the following day the DC judge corrected his error. He imposed the same sentence for each of the counts, directing they be served concurrently.
Whether sentence manifestly inadequate - need to identify precisely what offender did - whether guideline judgment applicable - general deterrence outweighed subjective matters - discussion of discretion to refuse appeal - avoidance of double punishment - ratio between NPP & total sentence.
Appeal allowed: resentenced to 4*y on the 2nd count, 7y on the 1st count (cumulative), giving a total of 11*y with a NPP of 5y.
261

WATEGO, Benjamin Shane - CCA, 25.6.2001
Barr & Howie JJ
Citation: R v Watego [2001] NSWCCA 236
Sentence appeal.
3 x BE&S; + 6 matters taken into account.
3y 9m with NPP of 2y 9m on each count (concurrent).
Applicant was driven by his co-offender (see R v Harrison [2001] NSWCCA 79) to various premises. While the co-offender waited in the car, the applicant committed the BE&S offences. After the 3rd offence, police intercepted the car, acting on information they received from a witness. They found a large amount of electrical goods in the car.
Aged 27 at time of sentence - early guilty plea - long criminal history - heroin addiction - previously imprisoned.
Failure to find special circumstances - sentencing disparity - justifiable sense of grievance - failure to give sufficient credit for extensive co-operation with police - sentences manifestly excessive.
Appeal allowed: resentenced to aggregate 3y 9m, with NPP of 2y.
262

PG - CCA, 20.6.2001 - 122 A Crim R 529
Howie J, Smart AJ
Citation: R v PG [2001] NSWCCA 231
Sentence appeal.
6 x armed robbery; + matters taken into account on a Form 1 (10 x armed robbery; 1 x unlicensed driver).
Aggregate 7*y with NPP of 5y
The 6 armed robberies, to which applicant pleaded guilty, occurred between 30.4.1999 & 29.5.1999. The offences on the Form 1 were committed between 17.4.1999 & 7.6.1999 & formed part of a continuing course of conduct. All the armed robberies were committed in company, the applicant being armed with a replica pistol & the co-offender on most occasions being armed with a tomahawk.
Sentencing discount for assistance to authorities with sufficient special circumstances to reduce NPP - protection of offender's family.
Appeal allowed: NPP reduced to 4y.
263

GRANT, Robert John - NSW SC, Hulme J, 22.6.2001
Citation: R v Grant [2001] NSWSC 552
Remarks on Sentence.
Murder; shoot with intent to murder
The deceased & 2 other men were standing near a MV in a car park of a hotel when the deceased was struck in the chest by a .22 calibre bullet & died. Shortly after the deceased was shot, another bullet was fired at one of the other men. The accused lived in a caravan park adjacent to the car park & was identified by the surviving men, both of whom knew him, as the perpetrator. They gave evidence that he walked up to the vicinity of the MV, raised the rifle to about hip level & just fired. He turned away, but then returned & chased one of the other men & fired again. Police found the rifle from which the fatal shot was fired in the accused's caravan some hours later & the accused was charged. No evidence to suggest rational motive for the shooting.
Sentenced to aggregate total of 20y with NPP of 15y.
264

AYOUB, Peter Joseph - CCA, 27.6.2001
Barr & Howie JJ
Citation: R v Ayoub [2001] NSWCCA 241
Sentence appeal.
1 x knowingly take part in manufacture or production of methylamphetamine; 1 x supply methylamphetamine; 1 x supply cocaine; + unlawful possession of ammunition taken into account.
4y with NPP of 3y on each count (concurrent).
Police went to premises occupied by applicant & found a laboratory in a shed. A number of items were found which showed that drugs had been manufactured there, e.g. iodine, acetone, 1,300 Sudafed tablets, other chemicals & powders & quantities of the drugs (189 grams of methylamphetamine & 14 grams cocaine). Police also found a quantity of hollow-point revolver rounds & a magazine containing twenty-nine .308 rounds & 4 empty .308 magazines.
Inadequacy of trial counsel - applicant claimed he instructed them to arrange for psychological, medical & pre-sentence reports to be obtained & also to make submissions about his extensive drug addiction - this was never done. Whether sentence manifestly excessive.
Appeal dismissed.
265

DOUGLASS, Robin Lyle - CCA, 23.5.2001
Spigelman CJ, Hulme & Howie JJ
Citation: R v Douglass [2001] NSWCCA 250
Sentence appeal.
Dangerous drive occasioning GBH - 2y with NPP of 6m, +disqualified from holding driver's licence for 2y.
Applicant was the driver of the MV & had a blood alcohol concentration of not less than .190. The MV he was driving was known to have a propensity for instability & the applicant's blood alcohol content severely compromised his ability to drive. Applicant's wife was severely injured in the accident, leaving her a C-4 quadriplegic, meaning that she is able to speak, breathe unassisted, swallow & turn her head to the side, but nothing more. Sentencing judge misread Jurisic & felt constrained in his sentencing exercise. However, the CCA pointed out that Jurisic was meant as a guideline & that it also contained expressed terms which included the words 'exceptional'& 'almost invariably'The Court remarked that the extent to which applicant has immersed himself in his wife's care provides justification for counsel's observation that 'The applicant has effectively served some three and a half years' home detention during the time that his wife has been out of hospital since the accident'.
Applicant the sole carer for his wife - wife does not want him to be incarcerated - deterrence.
Appeal allowed: resentenced to 21m suspended for 21m; + disqualified from holding driver's licence for 2y.
266

HUNG, Joseph Tung Kam - CCA, 29.6.2001
Simpson J, Badgery-Parker & Newman AJJ
Citation: R v Hung [2001] NSWCCA 233
Sentence appeal.
4 x make false statement - 15m on each count (concurrent).
Each of the counts alleged that the applicant had made a materially false statement capable of causing a cash dealer to make a false report of an international fund transfer instruction. The essence of the offences was that the applicant, in requesting an overseas telegraphic transfer of Advance Bank for $100,000 (in each case), falsely identified the sender of the funds as a film-making company. All offences were committed in the same month.
Whether error in sentencing procedure - parity - sentence manifestly excessive - special circumstances.
Appeal dismissed.
267

NOONAN, Michelle Lee - CCA, 25.6.2001
Barr & Howie JJ
Citation: R v Noonan [2001] NSWCCA 237
Sentence appeal.
1 x armed robbery; 2 x attempt dispose of property.
Aggregate total of 2*y with NPP of 1y 3m.
A woman was walking home from a railway station when a car driven by applicant's co-offender pulled up in front of the woman, the applicant got out & took hold of a handbag the woman was carrying. A struggle took place & the applicant's co-offender, who was still in the car, called out to the woman to give up the struggle. The woman noticed the applicant was holding a pair of scissors so she let go of her handbag. The applicant also took a blue bag the woman was carrying. The woman was able to give police a description of the car & the 2 offenders were arrested later the same day. The scissors were found in the car. One bag was ultimately found but the other was never found. No details given about the attempt dispose of property offences except that they were minor offences.
Aged almost 34 at sentence - guilty plea - drug abuse - robbery carried out to raise money for drugs.
Accepts full responsibility for actions - on rehabilitation programmes - depressed, 'self-medicating'with amphetamines & alcohol at time of offence - going through hard period of life - had sought medical help - previous good work record - has 5 year old son living with grandparents - child emotionally disturbed by absence of applicant & child's father, who is also in custody.
Appeal dismissed.
268

FITZGERALD, Wayne John - CCA, 25.6.2001
Barr & Howie JJ
Citation: R v Fitzgerald [2001] NSWCCA 238
Sentence appeal.
1 x armed robbery; + a further 28 charges of BE&S & 1 x escape from lawful custody taken into account.
Aggregate total of 8y with NPP of 4*y.
Armed rob offence involved applicant entering a house, struggling with the 69 year old female occupant & threatening her with a sawn-off shotgun. He pushed her to the floor, striking her head, then demanded money from her & took bracelets from her wrist. She handed cash over to the applicant. He then put her into a bedroom cupboard, closed the doors & tied them shut. After searching the house, he left. When the victim was able to free herself, police were called. They found a fingerprint from which they were able to identify the applicant as the perpetrator. The victim identified him as one of 11 men appearing in a video tape.
Aged 38 at time of sentence - long criminal record - previously imprisoned for manslaughter - served custodial sentences for other offences - State ward until age 7 or 8 - cruel treatment from adult male under whose care applicant was placed - this man frequently tied applicant up, left him unassisted for days, whipped him with a stock whip, never fed him enough - applicant left school at age 8 - attempted suicide by age 12 & lived on streets - crime became a way of life - became addicted to drugs - severe & chronic psychological injury - severe post-traumatic stress disorder.
Onerous conditions of custody - assistance to authorities - on strict protection - whether sentence excessive.
Appeal allowed: resentenced to 6y with NPP of 3*y.
269

GIRI (No.2), Nitin - CCA, 25.6.2001
Heydon JA, Barr J, Smart AJ
Citation: R v Giri (No.2) [2001] NSWCCA 234
On 12.6.2001 the CCA delivered judgment in this matter (see R v Giri [2001] NSWCCA 197), dismissing the appeal against conviction for murder. On 15.6.2001 counsel for the appellant filed a document raising 2 issues & requesting the Court refrain from perfecting the order made on 12.6.2001, stating that counsel was not aware that judgment would be delivered on 12.6.2001 & had intended filing additional written submissions in reply to supplementary submissions filed by the Crown. It also submitted that appellant did not receive notice that the Court was giving consideration to the application of the proviso under s.6 Criminal Appeal Act 1912 (NSW) & that he should have received such notice.
Natural justice & procedural fairness - whether natural justice denied - whether case should be reopened & further submissions considered.
Appellant's solicitors did receive notice & a representative of the appellant was present at the delivery.
Decision: Order made on 12.6.2001 not to be changed.
270

SIMPSON, George Adrian - CCA, 25.6.2001
Barr & Howie JJ
Citation: R v Simpson [2001] NSWCCA 239
Sentence appeal.
BE&S; enter dwelling with intent to steal; assault with intent to avoid lawful apprehension; + Form 1 matter (steal from dwelling).
Aggregate 4y with NPP of 2y.
Applicant entered residential premises through a closed but unlocked front door. He took $50 from a wallet & $500 of retail vouchers. When he encountered the occupant of the house, he fled. He then walked to Burwood & entered a house through the front door that had been left tied open with a piece of rope. On his way to the front bedroom, he was confronted by the owner. The owner's son came to assist & a struggle took place. Applicant broke free & ran out of the house, the owner's son following behind. Applicant made verbal threats to the owner's son then made his escape. Shortly thereafter, he was arrested. Later that day he was granted bail. While on bail, he committed the offence contained on the Form 1 which involved jewellery to the value of $12,000 & almost $18,000 in cash. Police arrested applicant while he was still on the premises & all the property was recovered.
Aged 49 -Aboriginal - lengthy criminal record - long-standing alcohol & drug abuse - large proportion of his life spent in custody - on GBB at time of above offences - schizophrenia - unfortunate background.
Whether sentence manifestly excessive - insufficient weight given to Aboriginality & mental illness - application of De Simoni principle - duty of prosecutor in relation to facts & material placed before sentencing court.
Appeal allowed: resentenced to aggregate 3y with NPP of 2y.
271

ANDREASSEN, Robert - CCA, 27.6.2001
Barr & Howie JJ
Citation: R v Andreassen [2001] NSWCCA 246
Sentence appeal.
2 x BE&S.
3y 9m with NPP of 21m.
Applicant was seen walking through a caravan park late one evening, carrying a TV set. He was also seen trying to detach a lock from a bicycle. The person who witnessed this yelled out & the applicant then walked away. Police were called but were unable to find applicant. They found a TV set & a caravan stove near one of the cabins. They noticed that the side window of one of the cabins was open & the flyscreen had been removed. A short time later, applicant was seen leaving the caravan park & was stopped by police.
Long criminal history - itinerant lifestyle - significant alcohol & drug abuse - sentencing judge described applicant's record as 'dreadful'- applicant appeared in person on appeal & described his own record as 'appalling'.
Insufficient regard to guilty plea - whether sentence excessive.
Appeal dismissed.
272

GAMGEE, Jay Michael - CCA, 5.7.2001 - 124 A Crim R 469; 51 NSWLR 707
Mason P, Sully & Dowd JJ
Citation: R v Gamgee [2001] NSWCCA 251
Crown appeal.
Kidnapping.
2y imprisonment suspended after 6m for 18m.
s.12 Crimes (Sentencing Procedure) Act 1999 - whether sentence contrary to law - whether execution of a sentence may be partially suspended - whether only power to impose term of effective imprisonment followed by non-custodial period is setting of NPP in accordance with s.44.
Appeal dismissed.
273

O'MEARA, Kenneth Ian - CCA, 8.5.2001
Mathews AJ, Wood CJ at CL, Newman J
Citation: R v O'Meara [2001] NSWCCA 195
Two s.5F applications for leave to appeal against interlocutory orders made by 2 magistrates. Each magistrate ordered that certain committal proceedings against the applicant be adjourned for periods in excess of 8 days.
Delay in serving documents.
Leave to appeal refused.
274

CARTER, Kristen - CCA, 27.6.2001
Barr & Howie JJ
Citation: R v Carter [2001] NSWCCA 245
Sentence appeal.
2 x BE&S - Aggregate total of 5y with NPP of 3y.
The 1st offence occurred at residential premises in Glebe, the 2nd at residential premises in Paddington. The owner of the premises in the 2nd offence returned home. Applicant & co-offender fled, with owner in pursuit. Co-offender punched owner. Applicant & co-offender were detained with the aid of bystanders. Applicant had a backpack which he claimed was his own but which had been stolen from the house. In the backpack was a camera & a walkman stereo. Co-offender had a gold bracelet he removed from the house. During 1st offence, a video player, an answering machine, numerous CDs & a gold chain had been stolen.
Early guilty plea - aged 27 at time of sentence - stable upbringing until parents separated when he was 15 - lived with father in Queensland for a while then with his mother - living on streets from age 21, residing in halfway houses or being held in custody - drug addiction - limited employment.
Discount for guilty plea - totality - application of Pearce v The Queen - misunderstanding of R v Thompson & Houlton.
Appeal allowed: resentenced to aggregate total of 4y with NPP of 2y 3m.
275

PARKINSON, John - CCA, 27.6.2001 - 125 A Crim R 1
Barr & Howie JJ
Citation R v Parkinson [2001] NSWCCA 244
Sentence appeal.
4 x supply methylamphetamine; 1 x knowingly take part in manufacture amphetamine; 1 x sell unregistered firearm; + a further 7 matters on a Form 1 (supply amphetamine; supply semi-automatic pistol; goods in custody; possess cannabis; possess semi-automatic pistol) - Aggregate total of 6y 2m with NPP of 5y 7m.
Police suspected applicant & another, who were both members of the Life & Death Motor Cycle Club, were engaged in the supply of amphetamine. A controlled investigation by undercover operatives posing as purchasers of the drug culminated in the arrest & charging of the applicant with the above offences.
Discount of 5% inadequate for early guilty plea - accumulation of sentences - totality - head sentence & NPP manifestly excessive - R v Thompson and Houlton - overwhelming strength of a Crown case is not a relevant consideration in determining the extent of a discount for guilty plea on a purely utilitarian basis
Appeal allowed: resentenced to aggregate total of 6y 2m with NPP of 4y 8m.
276

TUBOU, Jonacani - CCA, 28.6.2001
Conviction appeal.
Sexual intercourse without consent in circumstances of aggravation.
Maliciously inflicting ABH constituted the circumstances of aggravation.
Appellant & complainant met at a rugby club & made limited contact after that. A month later, complainant went to the club after a rugby match & joined a group of people, including the appellant. At closing time, complainant travelled with appellant to a hotel. Complainant drank heavily throughout the afternoon & evening, consuming approx 25 alcoholic drinks. About 5.30 am the following morning, complainant was driven by appellant to his home. Complainant fell asleep in the car. Complainant gave evidence that after arriving at appellant's home, she woke up in his room & appellant made sexual advances towards her, physically attacked her & had sexual intercourse with her. Appellant's evidence was that complainant had walked to his room & had consensual sexual intercourse with him, after which he refused to drive her home. He also said that she then insulted him & his family so he punched & kicked her.
Whether miscarriage of justice - whether combination of matters created unreasonable conviction - sufficiency of corroboration - significance of inconsistencies between testimony of complainant & other evidence - effect of delay - where no objection taken to directions at trial - evidence of prior sexual activity.
Appeal dismissed.
277

FOX, Alvina Joyce - NSWSC, Michael Grove J, 6.7.2001
Citation: R v Fox [2001] NSWSC 573
Remarks on Sentence.
Manslaughter.
The killing took place in a park in Moree. Accused & her de facto had been drinking heavily on the day of the killing. They drank a large amount of methylated spirits & some wine. De facto went to sleep & accused attempted to wake him by kicking him about the head. Sentencing judge was satisfied there was no intent to kill or cause GBH to the victim & that the accused was in an alcohol haze at the time.
Aged 33 - Aboriginal/Torres Strait Islander - tragic life - alcohol problem.
Sentenced to 5y with NPP of 2y.
278

HARB, Peter - CCA, 20.6.2001
Howie J, Smart & Mathews AJ
Citation: R v Harb [2001] NSWCCA 249
Sentence appeal.
2 x robbery in company.
4y with NPP of 2y on each count (concurrent).
Early one evening, applicant, a 2nd offender & a 3rd unidentified offender entered the home of 3 young people. They were unknown to the young people. The unidentified offender grabbed the victim, pushed him into the loungeroom where he was hit twice on the back of the head by the 2nd offender. The unidentified offender also struck him across the knee with a baton. The young people were searched & the victim's wallet was taken. A short time later, the applicant walked into the loungeroom carrying the victim's safe & a steel money box. When asked, the young people said they did not know the combination for the safe. The applicant threatened to stab them & punched the victim in the jaw. The 2nd offender cut the phone wires & kept watch while the applicant & the unidentified offender continued to search the home. The offenders threatened the young people again, then left. The applicant was later identified from photographs. The money box was found in the home of the applicant's mother.
Mental condition - claimed no memory of the crime - effect on sentences - correct approach - whether excessive.
Appeal dismissed.
279

WAHABZADAH, Abdul - CCA, 29.6.2001
Wood CJ at CL, Howie J
Citation: R v Wahabzadah [2001] NSWCCA 253
Sentence appeal.
Armed robbery.
4y with NPP of 3y.
As the victim was preparing to close the store where she worked after late night trading, she heard a knock on the back door which opened onto a laneway. She opened the door to find applicant & his co-offender standing there. Applicant was standing in front of the co-offender & held a gun at the victim's face. The victim gave evidence that during the robbery, the applicant was aggressive & that the co-offender was very considerate. The victim had been in the middle of a telephone call when she answered the door & the line had been left open. The person to whom she had been speaking overheard what was happening & called the police. The applicant & the co-offender were arrested before they were able to leave the premises.
Co-offender had no prior record, whilst the applicant had a record which included demand money with menaces, carrying a cutting weapon & dishonesty offences.
Failure of trial judge to refer to protective custody when determining special circumstances - disparity resulting from difference in finding of special circumstances - whether justifiable sense of grievance arises.
Appeal allowed, sentence varied: new NPP of 2y 3m.
280

NICHOLLS, Mark Richard (DPP v) - NSW SC, Adams J, 22.6.2001 - 123 A Crim R 66
Citation: Director of Public Prosecutions v Nicholls [2001] NSWSC 523
Application by the Crown for leave to appeal under s.104(4) Justices Act 1902 against an interlocutory order made by a magistrate rejecting identification evidence.
The defendant was arrested for assault & agreed to participate in an identification parade, however, there were insufficient people to hold the parade. A later attempt was made for which the defendant voluntarily returned to the police station. He was placed in the dock area, after which he was taken to an interview room. He was told he was not under arrest & was free to leave at any time. Attempts to organise this 2nd identification parade also failed. The defendant was then interviewed. A police officer took a photograph of the defendant for use in photographic identification. The defendant was agreeable to this. The victim identified the defendant from the photograph. The magistrate excluded this identification evidence under s.138 Evidence Act 1995. The assault had occurred in September 1997 & the photographic identification of the defendant did not occur until February 2000.
Whether magistrate correct to hold defendant unlawfully detained - whether defendant lawfully detained when photograph taken - whether evidence of prior identification by victim inadmissible as hearsay - whether there was an interlocutory order within s.102(4) Justices Act 1912.
Although magistrate erred in law in excluding identification evidence there was no interlocutory order in issue to which s.104(4) Justices Act applied.
Summons dismissed.
281

HAINES, Angela Rose - CCA, 4.7.2001
Studdert J, McClellan J
Citation: R v Haines [2001] NSWCCA 256
Sentence appeal.
Aggravated armed robbery - 4y with NPP of 3y.
Applicant & her friend called a taxi in the early hours of the morning, the objective being to rob the taxi driver. This was achieved after the driver was directed to take them to a number of destinations. At the last of these destinations, the applicant & her friend attacked the taxi driver with knives. The taxi driver received a laceration across the throat, approx 7 centimetres in length. The applicant admitted causing that injury. The taxi driver also sustained a puncture wound to his back which was caused by the co-offender.
Appeal dismissed.
282

AJH - CCA, 1.3.2001
Ipp AJA, Simpson J, Carruthers AJ
Citation: R v AJH [2001] NSWCCA 62
Conviction and sentence appeal.
11 sexual offences perpetrated upon 2 complainants. Counts 2,4,7&8 alleged appellant had sexual intercourse with 1st complainant; counts 1,3&5 alleged he indecently assaulted 1st complainant; count 6 alleged he assaulted 1st complainant. Counts 9&10 alleged he indecently assaulted 2nd complainant; count 11 alleged he supplied cannabis - Aggregate 8y with NPP of 6y.
Appellant pleaded not guilty to first 10 counts & guilty to 11th count. Verdicts of guilty returned on each of first 10 counts. Appellant was divorced & living in a 1 bedroom flat. On the night of the offences, he gave a birthday party for his daughter who was turning 14. Three of her friends were invited, all 14 years old. They all slept overnight at appellant's premises. Appellant had supplied drugs & alcohol to 2 girls to render them less capable of resisting sexual assault. Some discrepancies in evidence given by the girls at trial.
Whether reasonable doubt about accused's guilt - special circumstances - failure to comply with provisions of s.53(1) Crimes (Sentencing Procedure) Act 1999 when dealing with count 4.
Conviction appeal dismissed.
Sentence appeal allowed in part: sentence on count 4 varied, giving an aggregate sentence of 6y with NPP of 4y.
283

STEBBINGS, Brett John - CCA, 2.7.2001
Adams J, Smart AJ
Citation: R v Stebbings [2001] NSWCCA 262
Sentence appeal.
AOABH - 4y with NPP of 2y.
Applicant's de facto was a heavy drinker. After drinking at hotels or clubs, she would pick up the children on the way home. Applicant strongly objected to her driving with the children in the car whilst she was under the influence of liquor. On the day of the offence, applicant's de facto had been drinking. Applicant & his de facto had a row over the car keys & her driving or attempting to drive with the children in the car. Applicant hit his de facto with considerable force, causing a black left eye & swollen left cheek. He denied punching her, claiming it was a back-hander. Evidence of applicant's de facto was vague & somewhat unsatisfactory.
Aged 31 - long criminal record - on parole at time of above offence, having recently been released from custody - prior similar offences.
Sentence manifestly excessive - need for proportionality.
Appeal allowed: resentenced to 2*y with NPP of 15m.
284

LALESI, Davina (aka LEAITUAALESI) - CCA, 28.3.2001
Greg James J, Smart AJ
Sentence appeal.
Escape from lawful custody - MT 12m, AT 6m.
Applicant & her co-offender attempted to escape from Mulawa Correctional Centre. They placed 2 milk crates beside a 2 metre wire chain fence in the recreation area & climbed over the fence. At the rear of E/F wing, they placed 2 other milk crates beside a 2 metre brick wall & climbed over it, then walked over to a disused meal room & climbed a 4 metre wire chain fence. They placed towels & a T-shirt on top of the barbed wire, then crossed to the other side, climbed the stairs to a disused guard tower & broke the front glass door, which gave access to the other side of the static sensors within the area. A prison officer saw them & told them to stay where they were. They did so & were quickly apprehended.
Aged 22 at time of offence - guilty plea - serving a sentence for murder at the time (16y with NPP of 10y).
Parity - structure of sentence with sentence already being served - whether sentence manifestly excessive.
Appeal allowed: resentenced to 18m with NPP of 7m.
285

O'MEARA, Kenneth Ian - CCA, 6.7.2001
Powell JA, Wood CJ at CL, Sully J
Citation: R v O'Meara [2001] NSWCCA 201
Crown appeal against order granting conditional staying of proceedings.
Drug & firearm offences.
Offences arose out of search of respondent's property. Police in a helicopter saw large number of cannabis plants growing on respondent's property with him standing on the verandah of the house. Police went to the house, found respondent hiding in the roof. A search warrant was obtained & in addition to plants seen from the helicopter they found a large number of cannabis plants growing in a shed fitted with hydroponic equipment, cannabis leaf inside a greyhound kennel, a loaded pistol & ammunition in respondent's car in the garage, a loaded shotgun & ammunition under his bed. Respondent was arrested & charged.
Respondent claimed not to be the then owner of the property, his wife having been contracted to purchase it; that he was a licensed real estate agent & accountant & was conducting a final inspection on behalf of his wife; that the pistol & shotgun were not his; that he was not aware of the existence of them or their location. Respondent made applications seeking a stay to restrain DPP from proceeding with indictment & that the matter be moved to the HC for interpretation of Constitutional matters, claiming they were a denial of civil rights under international Covenant on Civil and Political Rights; charges did not constitute criminal offence; breach of Commonwealth of Australia Constitution; DC lacked jurisdiction; lack of legal aid.
Error in exercise of discretion in granting conditional stay.
Appeal allowed: order for stay discharged.
286

BEALE, David Richard - CCA, 2.7.2001
Adams J, Smart AJ
Citation: R v Beale [2001] NSWCCA 261
Sentence appeal.
Steal from the person - FT 2y; BE&S - MT 2y, AT 12m.
The sentences were overlapped by 12m. There was a further overlap of a sentence imposed in the LC.
No details given about offences.
Good prospects of rehabilitation - serious drug problem - need for extended treatment & supervision upon release. Period allowed for rehabilitation insufficient
Appeal against sentence for steal from the person dismissed.
Appeal against sentence for BE&S allowed: resentenced to 3y with NPP of 15m.
287

CHEATHAM, Stephen Darcy - NSW SC, Michael Grove J, 6.7.2001
Citation: R v Cheatham [2001] NSWSC 580
Remarks on Sentence.
2 x murder; 1 x wound with intent to murder.
The victims of the murder charges were accused's wife & one daughter. The wound with intent to murder was in relation to another daughter. This was a second trial. At the first trial, accused raised a defence of mental illness which was rejected by the jury & the accused was duly sentenced. At the first trial it was common ground that there was no basis for leaving the possibility of an alternative verdict of guilty of manslaughter on the murder charges. An appeal to the CCA held that this deprived the accused of an opportunity for a jury to consider whether or not he should be not so considered & the matter was sent for retrial. Accused believed he was suffering from AIDS when he committed the offences, killed both his wife & 3 year old daughter with multiple stab wounds, attempted to kill the baby & then attempted suicide.
Sentenced to: aggregate total of 24y with NPP of 16y.
288

ASTLES, Christopher - CCA, 29.6.2001
Simpson J, Smart AJ
Citation: R v Astles [2001] NSWCCA 235
Sentence appeal.
1 x detain person for advantage; 2 x sexual intercourse without consent; 1 x aggravated B&E and commit felony; + offences taken into account (3 x counts of sexual intercourse without consent, 1 x BE&S, 1 x steal MV, 1 x drive in manner dangerous in public).
Aggregate total of 13y 4m, with NPP of 10y.
Aged 28 at time of offences - substantial criminal record - convictions for assault, 2 of which included inflicting ABH - previously imprisoned.
Whether sentence manifestly excessive - whether sentencing judge overstated applicant's criminal history - discount for guilty pleas - remorse - psychological or psychiatric condition.
Appeal dismissed.
289

CALLEJA, Christopher Lee - CCA, 2.7.2001
Adams J, Smart AJ
Citation: R v Calleja [2001] NSWCCA 259
Sentence appeal.
Armed robbery (blood-filled syringe).
Aggregate total of 5y with NPP of 2*y.
Applicant entered a newsagency & threatened store owners whilst holding a blood-filled syringe. A struggle took place. Shopkeepers & others nearby came to victims' assistance & the applicant was eventually detained. Police came & applicant was taken into custody & charged. A week earlier, a young man working in a service station was similarly confronted by the applicant, with the applicant demanding money.
Aged 23 - early guilty pleas - drug addiction exacerbated by injuries - significance - need for extensive medical treatment - prison classification delayed - whether sentence excessive.
Appeal allowed on NPP: resentenced to overall total of 5y with NPP of 2y.
290

GWM - CCA, 12.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: R v GWM [2001] NSWCCA 267
Conviction and sentence appeal.
2 x unlawful sexual intercourse.
Aggregate total of 3y with NPP of 18m.
Appellant also stood trial for 2 x indecent assault but was acquitted on those counts.
Offences for which appellant found guilty alleged to have occurred when complainant was aged 9 & 11. The appellant was the step-grandfather of the complainant.
Inconsistent verdicts - verdicts unreasonable.
Appeal allowed: judgment of acquitted entered.
291

GREENE, Trevor Clive - CCA, 29.6.2001
Wood CJ at CL, Howie J
Citation: R v Greene [2001] NSWCCA 258
Sentence appeal.
Use offensive weapon with intent to inflict GBH.
5y with NPP of 2y.
The above charge, to which applicant pleaded guilty, was an alternative to attempt murder. The subject offence was perpetrated upon applicant's de facto. The attack upon the de facto culminated with the applicant trying unsuccessfully to set her alight with a cigarette lighter after splashing turpentine over her.
Aged 51 - alcoholic - limited mental capacity - no prior convictions - not prone to violence - incapacity to resolve interpersonal difficulties - self-employed painter & decorator.
Error in giving weight to need for general deterrence in domestic violence offences - insufficient weight given to guilty plea - discount - provocation - emotional stress - depression - whether sentence excessive.
Appeal dismissed.
292

HUGHES, Hamilton Matthew - CCA, 22.6.2001
Simpson J, Smart AJ
Citation: R v Hughes [2001] NSWCCA 264
Sentence appeal.
Armed robbery; + being passenger in a conveyance taken into account.
4y with NPP of 3y.
Applicant & 3 others travelled in a stolen MV to Penrith Plaza. Applicant & one co-accused armed themselves with large spanners, another with a 30 cm knife. The 3 men entered a jewellery store. The offender with the knife herded the staff into a rear office while applicant & the other co-offender smashed glass jewellery display cabinets & placed $250,000 worth of jewellery in bags which they brought with them. The 4th offender remained in the stolen MV. When the offenders drove off in the MV, it collided with a concrete barrier, which caused the front tyre to deflate. All 4 offenders ran off. The applicant & one other offender were apprehended. The jewellery was located nearby & returned to the owner. At the time of sentencing, the other 2 offenders had not been caught.
Almost 19 at time of offence - unemployed - born in Fiji - parents separated when he was aged 6m - raised mainly by grandparents - harshly disciplined as a child - sexually abused by relative at age 8 - school in Australia unhappy because of racial abuse, racially based violence - truanted, eventually expelled - talented footballer - prior offences.
Failure to find special circumstances.
Appeal allowed: resentenced to 4y with NPP of 2y.
293

DORMER, Leslie William - CCA, 6.7.2001
Studdert & McClellan JJ
Citation: R v Dormer [2001] NSWCCA 263
Sentence appeal.
Armed robbery.
6y with NPP of 4y (special circumstances found).
The female manager of a service station was on her way to the bank to deposit the takings of the preceding long weekend ($38,500+). Once she left her car in the carpark, applicant & a co-offender, who was talking on a mobile phone with a 3rd person who had alerted them about the victim's movements, approached the woman. She was struck on the back & pushed to the ground. Applicant took hold of the bag containing the money & both offenders fled. Victim's screams were heard by some police officers nearby & the offenders were quickly apprehended. Co-offender was found to be wearing a holster with a loaded pistol; applicant a holster with an expandable metal baton.
Aged 50 at time of sentence - only prior convictions were for driving with high range prescribed concentration of alcohol & an assault for which he had been fined.
Guilty plea - remorse - contrition - out of character - strong subjective factors - insufficient weight.
Appeal dismissed.
294

LO, Julian - CCA, 13.7.2001
Simpson & Sperling JJ
Citation: R v Lo [2001] NSWCCA 271
Sentence appeal.
Robbery in company.
5y 10m, NPP 3y (special circumstances found).
Applicant & 2 co-offenders entered premises of State Government Employees' Credit Union at Westmead Hospital. Applicant leapt over the counter & demanded money. He & his co-offenders ransacked the premises. Applicant stood over a female employee, terrorising her to such an extent she became hysterical. Hospital staff intervened & the offenders fled. Applicant was caught. Total amount of money taken was $4.
Aged 19 at time of offence - on CSO at the time - prior serious offences - early guilty plea.
Inadequate allowance for early plea of guilty - whether discount at bottom of range erroneous - utilitarian value of plea of guilty not diminished by strength of Crown case - Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383.
Appeal allowed: resentenced to 5y with NPP of 3y.
295

MANNERING, Rodney - CCA, 9.7.2001
Simpson & Sperling JJ
Citation: R v Mannering [2001] NSWCCA 275
Sentence appeal.
Robbery.
5y with NPP of 3y.
Applicant entered a mixed business store. He took a bottle of Coca Cola & after asking the 69 year old female attendant for a packet of cigarettes, he sprayed capsicum spray into her eyes, opened the cash register & took between $50 & $100 from it. When he left the shop he was chased by some witnesses. He then drove off in a motor vehicle. He was arrested 3 days later regarding a different incident.
Guilty plea - aged 39 at time of offence - criminal record going back to juvenile days - drug addiction - no previous imprisonment - said he only took enough money for one dose of heroin.
Sentence at upper limit of guideline in R v Henry - working towards rehabilitation whilst in custody - contrition - early guilty plea.
Appeal allowed: resentenced to 3*y with NPP of 2y 3m.
296

SINANOVIC - HC, 11.7.2001
Citation: Re Sinanovic's Application [2001] HCA 40
Application for leave to file new process.
Second special leave application where special leave previously refused. Registrar directed by a Justice to refuse to issue process without leave of a Justice first had & obtained - application for such leave - principles governing reopening of special leave application - nature & purpose of such application - powers of the HC to reopen hearing - whether exceptional circumstances established to warrant - whether change of circumstances shown - whether ground proposed was argued & considered in original special leave hearing.
Application refused.
297

DOYLE, Edward Emmett - CCA, 21.5.2001 - 123 A Crim R 151
Spigelman CJ, Hulme & Howie JJ
Citation: R v Doyle [2001] NSWCCA 252
Conviction appeal.
4 x impose upon Commonwealth (Social Security fraud) - recognizance, 150 CSO, compensation $19,738.60; goods in custody - fine of $100.
The Social Security fraud involved appellant making untrue representations using various names in order to claim sickness benefits. These representations were made on 4 separate occasions. The total received by the appellant was $19,738.60.
Appellant was induced to plead guilty as a result of improper pressure exerted by police which gave rise to a real doubt as to guilt. Application for withdrawal of guilty plea.
Improprieties of police - unsatisfactory matters regarding prosecution - antecedents incorrect - long period of custody before appellant brought before court - erroneous statements provided when bail refused - long delay between charge & sentence - wrong charge brought - decision to proceed summarily despite high degree of criminality - convictions amounted to miscarriage.
Appeal allowed: convictions & sentences quashed, verdict of acquittal entered.
298

GALEA, Raymond - CCA, 17.7.2001
YEO, Keng Hwee (Kathy)
Stein JA, Wood CJ at CL, Studdert J
Citation: R v Galea; Yeo [2001] NSWCCA 270
Yeo: Conviction appeal. Murder - 24y with NPP of 18y.
Galea: Conviction and sentence appeal. Accessory after the fact to murder - 8y with NPP of 6y.
Galea did not participate in the 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. 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 told Galea about the killing & both Yeo and Galea dismembered the body for disposal.
Failure to give evidence - whether Weissensteiner direction appropriate - examination on material not in evidence - discretion to allow - s.192 Evidence Act 1995 - balancing prejudice against probative value - ss.97, 101 Evidence Act 1995 - credibility - whether Edwards or Zoneff direction necessary - whether verdict unreasonable.
Appeals allowed: new trial ordered.
299

McCOY, Robert Ellis - CCA, 4.7.2001 - 51 NSWLR 702; 123 A Crim R 81
Giles JA, Hulme & Adams JJ
Citation: R v McCoy [2001] NSWCCA 255
Conviction appeal.
Manufacture prohibited drug (methylamphetamine) - 1y suspended for 1y.
Undisputed evidence at trial was that the chemicals being used in the course of an attempt to produce methylamphetamine were in fact incapable of leading to that result. The nature of the chemicals had been misrepresented to those whom the appellant was said to be helping.
Error in failing to direct jury to find appellant not guilty at close of Crown case - error in determining evidence capable of proving offence charged notwithstanding there was evidence to establish offence was incapable of being committed by appellant in the manner alleged - verdict of guilty unreasonable.
Appeal allowed: verdict of acquittal entered.
300

ELKHOURI, Christopher - CCA, 13.7.2001
Simpson & Sperling JJ
Citation: R v Elkhouri [2001] NSWCCA 277
Sentence appeal.
1 x BE&S - 2*y with NPP of 1y 11m.
The above offence involved the theft of a MV.
Three weeks after receiving above sentence, applicant was sentenced following pleas of guilty to 3 x receiving (MVs), as well as 2 similar offences which were taken into account. Recognising the principle of totality, sentencing judge imposed aggregate total of 4y with NPP of 2*y. The 1st sentence became a concurrent sentence which was, in effect, replaced by 2nd set of sentences & ceased to have any practical significance. Applicant sought leave to appeal against 1st sentence as well as 2nd set of sentences.
Whether sentence excessive - totality.
Appeal dismissed in each case.
301

WALTERS, Tyler Jay - CCA, 4.7.2001
Studdert & McClellan JJ
Citation: R v Walters [2001] NSWCCA 265
Sentence appeal.
Demand money with menaces; + 4 other offences taken into account (shop lifting, interference with pay telephone, larceny of mobile phone).
3y with NPP of 2y.
Applicant & accomplice decided to rob a bank. Applicant entered the NAB in Erina, approached the counter & passed a note to a trainee teller, demanding all the money in the drawers be placed in the applicant's bag. The applicant took off his back pack, put it on the counter, then put his hand into the bag. Believing the applicant was armed, the teller activated the safety screen. Security cameras were also activated. Applicant did not reveal the name of his accomplice. Money needed to fuel drug habit.
Aged almost 28 - guilty plea at first opportunity - co-operation with authorities - contrition - lengthy criminal history - drug abuse - mental health problems.
Whether sentence manifestly excessive.
Appeal dismissed.
302

THOMPSON, David George - CCA, 19.7.2001
O'Keefe J, Smart AJ
Citation: R v Thompson [2001] NSWCCA 278
Sentence appeal.
2 x BE&S - FT 2y on each;
1 x armed robbery; + offences on a Form 1 (8 x BE&S & 2 x B&E with intent) - 10y with NPP of 7y.
Total effective sentence 12y with NPP of 9y.
Upon arrest for armed robbery, applicant was interviewed by police regarding a number of BE&S offences. Applicant made full admissions. The armed robbery offence was committed upon a bank.
Aged 23 - early plea of guilty - long criminal history, starting at age 12 - significant alcohol problem - average to below average intelligence - feelings of not fitting in - depression - history of self-harm - difficulty in coming to terms with an accident in which he was the driver & 2 persons were killed, although he was completely absolved from blame - becoming 'institutionalised'.
Whether sentences manifestly excessive - application of principle of totality - need for rehabilitation - need for expert help - need for sustained treatment.
Appeal dismissed against FT sentences.
Appeal allowed against sentence for armed rob & Form 1 matters: resentenced to 8y with NPP of 5y.
303

ROZYNSKI, Glen Alan - CCA, 4.7.2001
Studdert & McClellan JJ
Citation: R v Rozynski [2001] NSWCCA 257
Sentence appeal (out of time).
(1) 2 x possess firearms - 12m.
(2) 1 x aggravated sexual assault; 2 x detain for advantage; 1 x steal MV - aggregate 7y with NPP of 4*y.
Following a 2nd trial for the 1st set of offences, the applicant was sentenced by the sentencing judge when dealing with the 2nd set of offences. When structuring the sentences imposed for the 2nd set of offences, the sentencing judge merely ordered time already served for the 1st set of offences. Even though applicant had originally been sentenced to 12m for the 1st set of offences at the conclusion of the 1st trial, he in fact had spent more than 16m in custody.
Second set of offences involved applicant 'kidnapping'a male & female, both aged 18, taking them to a unit, then to a laundry at the back of the units where he tied up the young man & then committed 3 types of sexual assault on the young woman. She protested she was a virgin. The sexual assault occurred in full view of the young man.
Aged 32 at time of sentence - lengthy & significant criminal record beginning when a juvenile - unstable & unhappy childhood - severe drinking problem.
Submitted on appeal there had been a miscarriage arising from apparent oversight of details in applicant's custodial history relating to sentencing for the firearm matters which arose following jury verdicts - sentenced on erroneous understanding of criminal record, so far as it should have attracted consideration of whether there should have been a backdate of the sentences imposed, or some other mode of calculation which would remedy the error disclosed.
Leave to appeal refused.
304

MILES, David John Thomas - CCA, 17.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: R v Miles [2001] NSWCCA 274
Crown appeal pursuant to s.5D Criminal Appeal Act against an order made in the DC.
Respondent pleaded guilty in the LC to 30 x BE&S, 2 x B&E with intent to commit an offence & 1 x attempt B&E with intent to commit an offence. He was committed for sentence to the DC & adhered to those pleas. On 15.12.2000, the DC judge, having heard evidence from the respondent & his father, adjourned the proceedings until 23.11.2001. Respondent was granted conditional bail. Respondent had a drug problem & on 31.8.2000 underwent a rapid detoxification procedure using Naltrexone, which required him to stay in hospital overnight & take medication for the next 12 months. Under the care of his parents, he was taking the medication & undergoing urine tests. He also attended regular psychiatric consultations. A psychiatric report tendered in court opined that incarceration would be detrimental to the respondent's progress.
Crown submitted on appeal that the course adopted by the judge in adjourning the sentence proceedings manifested error upon the basis that proceedings ought only be adjourned under s.11 where in the event that rehabilitation & reform are achieved during any period of adjournment it would be appropriate to impose a non-custodial sentence: see R v Tindall & Gunton (1993) 74 A Crim R 275. It was submitted that, having regard to the respondent's criminality, it would not be appropriate to impose a non-custodial sentence. Objective gravity of offences - deterrence - retribution.
Appeal dismissed. Remitted to the DC for hearing. Bail conditions to continue in the interim.
305

SMITH & JONES - CCA, 20.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: R v Smith & Jones [2001] NSWCCA 279
Sentence appeal.
Background of matter described in extremely general terms in order to ensure applicants remain unidentifiable. Balance of reasons contained in a separate confidential judgment. Both applicants convicted of serious offences, receiving lengthy prison sentences. Sentencing judge made no mention of any assistance applicants gave to authorities or any reduction of sentence on that account. A document before the sentencing judge attested to 'exceptional'assistance given by both applicants. In a sealed envelope was a copy of submissions made to sentencing judge urging that, because of safety issues, sentencing judge not mention during sentencing process that any assistance had been given by either applicant. Sentencing judge's failure to advert to this issue to be taken to have been in response to that request.
Lack of transparency in sentencing process - whether sentence excessive - 'exceptional'assistance would, in normal course of events, merit a discount of at least 50%.
Appeal allowed: Smith resentenced to 6*y with NPP of 4*y;
Jones resentenced to 4y with NPP of 2y.
306

SEYMOUR, John William - CCA, 12.4.2001
Giles JA, Studdert & Hulme JJ
Citation: R v Seymour [2001] NSWCCA 272
Conviction appeal.
1. Supply commercial quantity prohibited drug (methylamphetamine).
2. Supply prohibited drug (methylamphetamine) on not less than 3 occasions in a period of 30 days.
3. Possess unlicensed firearm.
Jury unable to agree on 1st count. Appellant convicted on 2nd & 3rd counts.
5y with NPP of 3*y.
Regarding the 2nd count, the Crown relied 'heavily, if not almost exclusively'on the evidence of one person, however, another person also gave evidence. There were inconsistencies in the evidence as to the occasions of supply. The evidence regarding the 3rd count was that police found a pistol in a disassembled state in a shopping bag in a wardrobe of a bedroom. Also found with the pistol was a laser firearm sight. Evidence that the bedroom was occupied by the appellant, although it was used from time to time by a female witness who denied knowledge of the gun, as did the appellant. A male witness claimed he had seen the appellant with a pistol & when the police showed it to him, he said that it was the gun he had seen.
Failure to direct in accordance with s.25A(3) - identification evidence - warnings - Clout (1995) 41 NSWLR 312; Lowe (1997) 98 A Crim R 300.
Appeal allowed in part: conviction on 2nd count quashed, new trial ordered on that count; otherwise appeal dismissed.
307

KALITI, Steven - CCA, 29.6.2001
Wood CJ at CL, Howie J
Citation: R v Kaliti [2001] NSWCCA 268
Sentence appeal.
Dangerous drive causing GBH in circumstances of aggravation - 5y with NPP of 3y 9m.
Applicant was under the influence of alcohol at the time his vehicle struck the victim, who was standing alongside a box trailer. Victim suffered extremely serious injuries, including traumatic amputation of one leg, the subsequent surgical amputation of his remaining leg, as well as brain damage. Breath analysis following the accident returned a reading of .2 grams alcohol per 100 millilitres blood.
Aged 30 - guilty plea - significant abandonment of responsibility - frank admission by applicant that he knew he was over the limit but nevertheless elected to drive his MV - long history of alcohol abuse.
Whether special circumstances justifying departure from ratio between NPP & term of sentence - whether age, lack of antecedents & fact that sentence involves 1st occasion of custody are of themselves special circumstances - whether special help needed to overcome drug or alcohol problem - prior good character - need for counselling & psychotherapy.
Appeal dismissed.
308

DAVIS, Phillip George - CCA, 18.6.2001
Simpson J, Smart AJ
Citation: R v Davis [2001] NSWCCA 254
Sentence appeal.
Supply commercial quantity methylamphetamine (878.5 grams); + 11 other offences taken into account - MT 3y with AT of 2y; Supply LSD (416 tablets); + 3 offences taken into account - FT of 12m.
Sentences were cumulative, resulting in an effective total sentence of 6y with a NPP of 4y.
At the time of the commission of supply LSD, applicant was on bail for methylamphetamine offence. Arrest for supply commercial quantity methylamphetamine followed police surveillance. Arrest for supply LSD followed police executing a search warrant upon the home where applicant lived with his parents.
Incompetence of counsel - parity - need to serve entire sentence in maximum security prison.
Appeal against sentence for supply LSD & Form 1 matter dismissed.
Appeal against sentence for supply commercial quantity methylamphetamine & Form 1 matters allowed: resentenced to 5y with NPP of 2*y.
309

DENNEY, William George - CCA, 24.7.2001
Studdert & McClellan JJ
Citation: R v Denney [2001] NSWCCA 281
Sentence appeal.
2 x BE&S; 1 x receiving; + 3 matters taken into account (1 x larceny, 2 x goods in custody).
Aggregate 4y 8m with NPP of 3*y.
The BE&S offences were committed upon residential premises. The receiving offence involved the applicant pawning a stolen watch.
Aged 40 at time of offences - appalling record commencing when he was a juvenile - partner was HIV positive - son had 'fallen foul of the law'- explanation for commission of offences was need for income & pressure imposed by partner to provide for her - told police his partner had put forward the idea of the one BE&S & that he acted in desperation because he & his accomplice were homeless & destitute.
Need to fix appropriate sentences for each offence - error in not finding special circumstances - error in giving only minimal consideration for pleas of guilty at earliest opportunity - Thomson (2000) 49 NSWLR 383 - whether sentences manifestly excessive.
Appeal dismissed.
310

LE, Anh Tuan - NSW SC, McClellan J, 1.6.2001
Citation: R v Le [2001] NSWSC 497
Remarks on Sentence.
Manslaughter.
Prisoner was indicted for murder. Jury found him not guilty of murder but guilty of manslaughter.
Stabbing. The fatal wound did not match the prisoner's knife. The size of the prisoner's knife was far greater than the size of the wound. Evidence that a knife which could have caused the fatal wound was observed to be secreted in a laneway near the scene of the melee earlier that morning. The person identified as having placed the knife there was a friend of the victim. Evidence given by deceased's brother that it was the prisoner who stabbed the deceased.
Act of stabbing deliberate - no evidence justifying use of knife in a manner which killed deceased.
Sentenced to 6y with NPP of 4y.
311

GALEA, Raymond - CCA, 20.7.2001
YEO, Keng Hwee (Kathy)
Stein JA, Wood CJ at CL, Studdert J
Supplementary Reasons for Judgment.
After delivery of judgment in appeal on 17.7.2001 (see R v Galea; Yeo [2001] NSWCCA 270), the solicitor for the appellant Galea wrote to the Registrar of the CCA asking for the Court to give a decision on ground 5, which contended that the verdict was unreasonable.
Open to jury to infer Galea assisted Yeo in cleaning up the flat & in the dismemberment & disposal of deceased's body - M v The Queen applied - evidence before jury not such as would raise significant possibility that an innocent person had been convicted.
Ground of appeal rejected.
312

MURRE, Michael Anton - CCA, 27.7.2001
Giles JA, Hulme & Adams JJ
Citation: R v Murre [2001] NSWCCA 286
Conviction appeal.
Sexual assault.
15m suspended on certain conditions as to supervision.
Complainant first made a statement to police in 1997 accusing appellant of sexual assault alleged to have occurred in 1972 at a school camp when appellant was a teacher & complainant a pupil. Complainant aged 13 at the time of alleged offence & appellant 22. The jury in the 1st trial were unable to agree on a verdict, however, a 2nd trial resulted in his conviction.
Appellant sentenced more than a year ago & has substantially 'served'the period of his suspended sentence - sentence served under a flawed conviction.
Delay in complaint made 25 years later - appropriate directions - content of Longman direction - sentencing judge's directions flawed - miscarriage of justice - fresh evidence - 'unsafe & unsatisfactory'.
Appeal allowed: conviction quashed, verdict of acquittal entered.
313

PLV - CCA, 25.7.2001 - 123 A Crim R 194; 51 NSWLR 736
Spigelman CJ, Simpson J, Smart AJ
Citation: R v PLV [2001] NSWCCA 282
Conviction and sentence appeal.
1 x sexual intercourse.
2y with NPP of 3m.
Appellant was charged with 6 counts alleging sexual offences against his younger sister, acquitted on 5 of those counts & found guilty on one count. On the count for which appellant was convicted, the younger brother of complainant & appellant gave evidence which was corroborative of complainant's evidence. All the incidents were alleged to have occurred from 1973-1974 when the complainant was 11 to 12 years old & the appellant 17 to 18. Complaint was made to police in December 1996.
Inconsistent verdicts - delay in complaint - unreliability of witnesses - directions - summing up - fresh evidence. Submitted that sentences should be in accordance with practices at time of offence rather than in accordance with practices at time of conviction - whether sentence excessive.
Appeal dismissed.
314

MURRAY, James Francis - CCA, 30.7.2001
Stein JA, O'Keefe & Simpson JJ
Citation: R v Murray [2001] NSWCCA 289
Conviction and sentence appeal.
Armed robbery (conspire to commit).
MT 4y 10m, AT 15m.
The charge related to an agreement to commit an armed robbery on Armaguard employees at the Macquarie Shopping Centre, following collection of weekend takings of Grace Bros. The offence was to take place in the parking lot, however, this plan was foiled because of the collection procedure being changed with the van proceeding to the loading dock instead.
Failure to direct that conspiracy was to commit particular armed robbery - failure to summarise evidence relating to elements of offence - exercise of discretion under ss.137 & 138 Evidence Act 1995 re evidence of police officers - whether 'verballed'- impossible for offence to have been committed - failure to direct on mens rea of conspiracy - admission of listening device tapes - whether terms of indictment excludes tapes - verdict 'unsafe & unsatisfactory'- whether sentence excessive.
Appeal dismissed.
315

SOTHEREN, Darren James - NSW SC, Dowd J, 15.6.2001
Citation: R v Sotheren [2001] NSWSC 214
Remarks on Sentence.
1 x manslaughter; 5 x robbery in circumstances of aggravation.
Offences occurred over 2 days. Robbery counts involved wallets & their cash contents, with one exception when a jacket, cash, egg rings & Chinese tea were taken. All offences committed in circumstances of aggravation. Manslaughter charge arose when accused attacked victim, hit him on the head, causing him to fall into the roadway & while he was on the ground, accused stomped on victim's face then took his wallet & mobile phone. Victim died 3 days later from severe brain injury sustained in the attack. Pattern of conduct that accused severely beat each of the victims accepted as admissible in respect of all counts.
Aged 29 - heavy addiction to amphetamines - injected amphetamines - made ward of State at early age - long periods in various child welfare institutions - serious psychiatric & behavioural problems as a child - treated for psychiatric problems from age 7 - violence towards teachers & pupils - subjected to physical & psychological abuse by associate of his mother & by person in authority when ward of the State.
Principle of totality - accumulation & concurrent sentences - special circumstances - Aboriginality.
2 x aggravated robbery - FT 2*y (concurrent);
2 x aggravated robbery - concurrent & partly cumulative FT 2*y to commence 1y after first 2 counts;
1 x aggravated robbery - FT 2*y partly concurrent, partly cumulative with previous sentences to commence 2y after commencement of first 2 counts;
1 x manslaughter - 5y with NPP of 2*y, to commence 2y after commencement of custody, partly cumulative & partly concurrent with 5 previous counts.
316

MARKULESKI, Tomislav - CCA, 1.8.2001 - 125 A Crim R 186; 52 NSWLR 82
Spigelman CJ, Wood CJ at CL, Grove & Simpson JJ, Carruthers AJ
Citation: R v Markuleski [2001] NSWCCA 290
Conviction appeal.
4 x indecent assault; 2 x sexual intercourse without consent.
Above offences alleged to have occurred in 1981 & 1982 against a girl under 16 years of age. Jury returned 5 verdicts of guilty & one verdict of not guilty (on one of the counts of sexual intercourse without consent). The case rested largely upon the word of the complainant against the word of the appellant.
Whether 5 verdicts of guilty returned unreasonable having regard to one verdict of not guilty - Jones v The Queen (1997) 191 CLR 439 - directions of trial judge to jury - whether adequate direction relating to relevance of delay in complaint to credibility of complainant - where significant delay between commission of offences & complaint - whether adequate direction given relating to relevance of acquittal on any count to credibility of complainant on all counts - whether question asked by jury about complainant's motivation for complaint suggested impermissible process of reasoning - where significant delay between commission of offences & complaint - whether trial judge's response to question adequate.
Appeal allowed: convictions quashed, new trial ordered.
317

VAN-OOSTVEEN, Stephanie Marie - CCA, 2.8.2001
Simpson & Sperling JJ
Citation: R v Van-Oostveen [2001]SWCCA 288
Sentence appeal.
1 x supply prohibited drug (heroin).
5y with NPP of 2*y.
Applicant was a passenger in a car driven by her brother which was stopped by police because of the way in which it was being driven. A random breath test returned a negative result, however, police noticed the driver's eyes were red & made some radio enquiries, then searched the vehicle. A wallet was found on the dashboard in front of the passenger seat & nearby was a small toiletry bag containing unused syringes, wipes & a wad of $50 notes. Female police officers searched the applicant & found a plastic bag concealed in her underwear as well as a plastic capsule containing a plastic bag & white powder. Subsequent tests showed applicant was in possession of a total of 74.9 grams of heroin, with a purity of just under 40%. The money amounted to approx $500.
Almost 49 at time of offence - maintained plea of not guilty until date fixed for trial, whereupon she entered a plea of guilty - heroin addict since the 1970s - drug-related offences dating back to 1973 - attempts at rehabilitation - became a patient of Chelmsford Hospital, underwent 4 courses of deep sleep treatment & electroconvulsive therapy - suffered physical injury in Chelmsford Hospital resulting in disfigurement to buttocks - psychiatric evidence suggesting she sustained some brain damage - many years later, applicant successfully sued medical practitioners who administered the treatment.
Whether sentence manifestly excessive - whether findings of fact open on the evidence - utilitarian value - contrition.
Appeal allowed: resentenced to 4y with NPP of 2y.
318

HOGAN, Garry James - CCA, 3.8.2001
Giles JA, Greg James J, Badgery-Parker AJ
Citation: R v Hogan [2001] NSWCCA 292
Conviction and sentence appeal.
1 x maliciously inflict GBH.
5*y with NPP of 4y 1m 2w.
Appeal followed a 2nd trial, the jury having been discharged in the 1st trial because of what appeared to be a mistake as to a relevant day & whether it might be open to a juror to accept account of complainant & hold that accused was a liar. A number of objections were taken & rulings on evidence made during 1st trial. The 2nd trial proceeded substantially on the basis of those rulings without further detailed objection, argument or the giving of detailed reasons by trial judge, apparently on the basis that the parties' rights were preserved.
Leave to cross-examine unfavourable witness - matters to be considered on grant of leave - extent of leave - ambit of cross-examination - prejudice - risk of shifting focus of trial - importance of adequate directions - miscarriage of justice.
Appeal allowed: new trial ordered.
319

BALLANGARRY, David Eric - NSW SC, Sully J, 27.7.2001
Citation: R v Ballangarry [2001] NSWSC 642
Remarks on Sentence.
Murder.
Prisoner & deceased had been in an intermittent de facto relationship for some years. The relationship was volatile & at times violent. After a drinking bout, the prisoner accused the deceased of having an affair with another man, which she denied. He punched her & she fell down. He stomped on her & kicked her, then he grabbed her by the hair & slammed her head onto the concrete a number of times. This incident was witnessed by a relative & a friend who were there at the time. Post mortem examination showed the cause of death to be from multiple injuries. A neighbour who came onto the scene after the attack said it looked as though deceased's head had been split open. Sentencing judge described injuries as horrific.
Aged 29 at time of sentence - Aboriginal - guilty plea - mild developmental disability exacerbated by effects of head injuries & alcohol-induced brain damage - diagnosed alcohol dependence syndrome - practically illiterate - never had any employment - no ordinary social & vocational skills.
Sentenced to 17y with NPP of 11y (15% discount for guilty plea).
320

KLUSKA, Martin - CCA, 25.7.2001
Ipp AJA, Hulme & Sperling JJ
Citation: R v Kluska [2001] NSWCCA 284
Application for leave to appeal against refusal to redetermine life sentence.
Murder.
Applicant was sentenced in August 1990. In February 1994, the CCA heard an appeal against conviction & an application for leave to appeal against sentence. Conviction appeal was dismissed, as was the application for leave to appeal against sentence. In November 1998, the judge at first instance heard an application by the applicant for redetermination of the life sentence. The judge held it was too early to redetermine the life sentence & directed that applicant not re-apply for 3 years.
Allegation by applicant that factual errors present in supporting material.
Appeal dismissed.
321

GIANG, David Cuong - CCA, 18.7.2001
Studdert & McClellan JJ
Citation: R v Giang [2001] NSWCCA 276
Sentence appeal.
Act with intent to pervert the course of justice.
15m with NPP of 8m.
A security guard working at the Mekong Club had an altercation with another security guard & struck that security guard with an extendable baton. He was subsequently charged with malicious wounding. He then recruited witnesses to give false evidence. Applicant agreed to give false evidence to the effect that the security guard was acting in self-defence. However, he did not do so, even though he attended court on the day he was to give evidence. Some contention as to whether the reason for not giving evidence was that the matter was adjourned, or, as applicant claimed, he had decided prior to that day not to give evidence.
Aged 22 at time of offence - guilty plea - did not stand to gain any reward - only motive to help a friend - prior for stealing from a person - not previously imprisoned - good education - gainful employment.
Early guilty plea - youth - real potential for general rehabilitation - contrition - general deterrence.
Appeal dismissed.
322

NEWHOUSE, Norbert Louis - CCA, 19.7.2001
Handley JA, O'Keefe J, Smart AJ
Citation: R v Newhouse [2001] NSWCCA 294
Conviction and sentence appeal involving 1st complainant; conviction and sentence appeal involving 2nd complainant.
1st complainant: 4 x indecent assault- FT 2y (13m pre-trial custody taken into account).
Offences alleged to have occurred between June 1979 & February 1983. Particulars of some of the charges were amended during trial. Crown case rested essentially upon evidence of complainant aged 5 years at the time of the 1st offence & 8 years at the time of the last offence.
Delay in complaint - uncorroborated evidence - young age of complainant - warnings.
Appeal allowed: conviction quashed, no new trial ordered.
2nd complainant: 2 x homosexual intercourse with under-age male person - 4y with NPP of 2y, cumulative upon above FT sentence. Conviction for these 2 offences as a result of applicant pleading guilty to some of the offences charged.
On appeal, applicant sought leave to withdraw his plea of guilty. Whether fitness to plead.
Leave to withdraw guilty pleas dismissed. Applicant then re-sentenced to 4y with NPP of 2y backdated to commence on the date the FT commenced.
323

LAW, Chun Hing - CCA, 27.7.2001 - 122 A Crim R 542
Meagher JA, Kirby J, Newman AJ
Citation: R v Law [2001] NSWCCA 291
Conviction appeal and application for leave to appeal against sentence.
Conspire to import commercial quantity heroin.
Life sentence.
Strong Crown case. Crown alleged appellant was a co-conspirator in 5 importations of heroin into Australia, which took place between January 1994 & January 1995. Crown case that first 4 importations evaded attention of authorities & that the interception of the 5th importation led to the trial of appellant & his co-conspirators. In each case, crates containing oriental objects d'art were airfreighted into Australia. Heroin was secreted in the crates. It was alleged the appellant leased premises used for the 1st, 2nd, 3rd & 4th importations. He was not in Australia when the 5th importation occurred. Crown also alleged appellant took part in transfer of funds between Australia & Hong Kong as one of the facets of the conspiracy. Appellant did not give evidence at trial.
Whether trial miscarried by reason of trial judge's comments on failure of accused to give evidence at trial.
Right to silence - distinction between comment & direction by trial judge - circumstances where comment permissible - contravention of s.20(2) Evidence Act 1995 (NSW) - Weissensteiner (1993) 178 CLR 217; RPS (2000) HCA 3; Azzopardi (2001) HCA 25.
Appeal allowed: conviction & sentence quashed, new trial ordered.
324

HAMEED, Syed Tareq - CCA, 2.8.2001 - 123 A Crim R 213
Simpson & Sperling JJ
Citation: R v Hameed [2001] NSWCCA 287
Sentence appeal.
1 x supply commercial quantity heroin; 2 x supply large commercial quantity heroin; + 2 offences on a Form 1 (supply large commercial quantity heroin).
Aggregate 7y 4m with NPP of 5*y.
Undercover police operation. Applicant a middle man who made arrangements with potential purchasers as to delivery of the drugs & payment of money. Although part of one course of criminal conduct, sentencing judge found there was a substantial degree of planning & organisation involved. Applicant's involvement was motivated by greed, however, the amount of money he was to make was relatively small.
Aged 32 at time of sentencing - no criminal record of any significance - 1st time in custody - guilty plea at earliest opportunity - very substantial assistance to authorities at earliest opportunity, continuing, posing considerable risk to applicant whilst in prison - being held in protection in prison system - would enter witness protection scheme on release & would need to be relocated with new identity.
Combined discount for early plea of guilty & assistance to authorities - whether sentence after discount excessive - whether strength of Crown case relevant to utilitarian value of plea - whether strengthening of Crown case by assistance to authorities relevant to plea as evidence of contrition - ambit of 'special circumstances'.
Appeal dismissed.
325

TARPEY, Joshua William - CCA, 6.8.2001
Dowd J, Smart AJ
Citation: R v Tarpey [2001] NSWCCA 300
Sentence appeal.
5 x BE&S - 3y on each (concurrent); 1 x BE&S + 8 offences taken into account (BE&S, larceny, assault, goods in custody, possess housebreaking implements, possess implements to steal a car) - 8y with NPP of 5y (concurrent).
Aggregate total of 8y with NPP of 5y.
Offences occurred over little more than 4 months. Special circumstances found because of applicant's age & not having served any substantial term of imprisonment. Aged 20 at time of 1st offence - heroin addict - long criminal record, starting at age 16 - 2 prior short gaol sentences, home detention, fines - recognition of need to remain drug free - unrealistic attitude as to how to achieve this.
Application of Pearce - sentence on one count manifestly excessive - special circumstances - youth - need for rehabilitation.
Appeal dismissed against the 5 BE&S sentences.
Appeal allowed against sentence for the remaining BE&S & offences taken into account: resentenced to 6y with NPP of 3y 9m, concurrent with the 3y FT.
326

SEWELL, Thomas Joseph - CCA, 10.8.2001
Heydon JA, Simpson J, Smart AJ
Citation: R v Sewell [2001] NSWCCA 299
Appeal against interlocutory order refusing withdrawal of guilty plea.
7 x use false instrument knowing it to be false; + 10 similar charges taken into account.
All charges relate to offences occurring over little more than a year & involving a total of $193,796.85. Applicant was employed as a manager of Westbus Pty Ltd & part of his duties involved arranging bus transport to take place of trains during track upgrades or derailments. Applicant entered a verbal agreement with one of the owners of Westbus whereby he was to be paid a commission of 5% on turnover for new business he obtained. Applicant photocopied blank invoices & placed details of bus jobs done on the photocopied invoices then delivered them to State Rail. State Rail paid the invoices, believing them to be correct & issued cheques payable to Westbus. Applicant took these cheques, placed a Westbus stamp on the back of each, endorsed them with a signature, making them payable to Prospect Promotions which the applicant owned. He subsequently withdrew the money.
Whether error in law in refusing withdrawal of guilty plea - construction of ss.299 & 300 Crimes Act 1900 - whether evidence sufficient to support charges.
Appeal dismissed.
327

ELCHAMI, Wassim - CCA, 24.7.2001
Sully & Hulme JJ, Newman AJ
Citation: R v Elchami [2001] NSWCCA 285
Crown appeal.
Aggravated robbery; + 2 matters taken into account - 5*y with NPP of 12m;
Robbery in company - 4y with NPP of 12m.
Respondent & co-offenders assaulted & robbed a man at knife-point. They stole his wallet & made threats of violence against his family. The 2nd offence involved an attack upon another person. A knife was also produced during this incident.
Inadequate weight given to need for deterrence - undue weight given to subjective features - error in ordering sentences be served concurrently without reason for that course - on conditional bail at the time - whether sentence excessively lenient.
Appeal allowed: resentenced to FT 12m for rob in company & 5y with NPP of 2y for aggravated rob.
328

DOGGETT - HC, 9.8.2001 - 208 CLR 343; 75 ALJR 1290
Citation: Doggett v The Queen [2001] HCA 46 (9 August 2001)
Failure of judge to give Longman direction
Sexual offences allegedly committed by appellant on de facto's daughter between 1979 & 1986 when complainant aged between 8 & 15 years. Some complaints made to mother between 1986 & 1990. Mother confronted appellant & claimed he made incriminating statements. Reported to police in 1998. Telephone conversation between complainant & appellant taped, appellant making incriminating, although not specific, statements. Brother also provided corroboration in relation to one incident. Appellant denied offences, claiming complainant was sexually aggressive & they had engaged in sexually suggestive, but legal, play.
Appeal allowed: convictions quashed, retrial ordered.
329

ELKADDOUR, Mahmoud - CCA, 6.8.2001
Dowd J, Smart AJ
Citation: R v Elkaddour [2001] NSWCCA 302
Sentence appeal.
Armed robbery with offensive weapon.
6y with NPP of 3*y.
Applicant knocked on victim's front door early one morning, purporting to be looking for 'Peter'Upon being told he had the wrong house, applicant asked to use the toilet. Victim allowed him to do so. Applicant then wanted to stay. Victim asked him to leave a number of times. Applicant produced a knife, demanded money & jewellery. He threatened to kill the victim & demanded that he disconnect the video & TV set. Applicant then bound victim's hands & legs together with tape & then untied them when he required victim's assistance. This happened twice. After telling victim to put the video down outside a block of units, applicant warned him not to call the police, saying 'I know where you live. I know you have a family'.
Strong Crown case. Applicant pleaded guilty on the 2nd day of the trial.
Whether sentence excessive.
Leave to appeal refused.
330

DHANHOA, Kamaljeet - CCA, 10.8.2001
Meagher JA, Dowd & Kirby JJ
Citation: R v Dhanhoa [2001] NSWCCA 293
Conviction and sentence appeal.
Aggravated robbery in company with wounding; detain for advantage and causing injury.
Aggregate total of 7*y with NPP of 4y.
The charges arose from an attack upon the victim by the applicant & 3 co-offenders, during which the victim was stabbed in the back, causing damage to both his kidneys & one of his lungs.
Evidence called by Crown at trial included victim's identification of appellant from photographs. Trial judge did not give a warning or direction in respect of this evidence. Appellant told untruths to police when they interviewed him. Trial judge commented on the untruths, but did not give any direction to the jury, nor did he analyse its significance.
Identification evidence - whether warning required - evidence of untruths told by appellant - whether evidence going to credibility or consciousness of guilt - whether warning required.
Appeal dismissed.
331

WALTERS, William John - NSW SC, Sully J, 27.7.2001
Citation: R v Walters [2001] NSWSC 640
Remarks on Sentence.
10 x knowingly concerned in defrauding the Commonwealth by a particular named company.
Tax fraud. A different company was named in each count, but the nature of the defrauding charged in each case was alleged to have been in respect of group tax required to be remitted to the Commissioner of Taxation by the particular named company.
Not guilty plea.
Count 1 - FT 2y;
Counts 2,3&4 - FT 3y (concurrent);
Counts 5,6,7,8&9 - 4y 8m with NPP of 3y (cumulative);
Count 10 - FT 3y (concurrent).
332

MARSHALL, David Gregory - CCA, 24.7.2001
Smart, Newman & Badgery-Parker AJJ
Citation: R v Marshall [2001] NSWCCA 283
Conviction and sentence appeal.
Conviction appeal against 1 x aggravated BE&S (armed with wooden axe handle).
Sentence appeal for above charge as well as a further charge of aggravated BE&S & an armed robbery.
FT 3y on each of the aggravated BE&S charges; 4y with NPP of 3y on armed robbery charge.
Omission from summing-up of element of Count 1 but complete as to lesser offence - parity.
Conviction appeal on 1st count of aggravated BE&S quashed & in lieu thereof substituted conviction for BE&S; sentence quashed on that count & FT 2y substituted.
Sentence appeal on 2nd aggravated BE&S refused.
Sentence appeal on armed robbery charge allowed: resentenced to 7y with NPP of 4y.
333

KERR, Nathan Anthony - NSW SC, Studdert J, 27.7.2001
Citation: Kerr v Commissioner of Police & Ors [2001] NSWSC 637
Summons for declaration and orders.
Forensic samples taken from suspect - suspicion of crime of murder - whether forensic procedure undertaken illegally - whether Court should now make an order restraining the testing of samples - whether the Court should now order the destruction of the samples - exercise of discretion - Crimes (Forensic Procedures) Act 2000 considered.
334

WILSON, Sean Adrian - CCA, 10.8.2001
Sully & Hulme JJ, Newman AJ
Citation: R v Wilson [2001] NSWCCA 298
Conviction appeal.
Attempt to incite a child to participate in an act of prostitution.
A 14 year old boy was riding his bicycle on a footpath when a car pulled up beside him & the driver beckoned him over. Expecting to be asked directions, the boy went to the car, whereupon the applicant asked if he was interested in earning some money by performing an act of fellatio upon the applicant. The complainant took a little time to grasp what was being suggested to him & as soon as he had 'clued on', he rejected the suggestion, returned to his home where he reported the incident to his brother & father.
Identification evidence - weight - consideration of issues outside evidence - error in finding of guilt.
Appeal dismissed.
335

McDONALD, Deborah Anne - CCA, 2.8.2001 - 124 A Crim R 17
Mason P, Sully J, Newman AJ
Citation: R v McDonald [2001] NSWCCA 301
Sentence appeal.
Manslaughter by gross negligence.
7y with NPP of 5y.
The victim was living in the home of the applicant & her husband. Also living there was another young person aged 14 or 15, who beat the victim over a long period. A post mortem revealed a variety of injuries consistent with prolonged & repeated physical abuse. Death was due to the collection of blood over the brain. The victim was aged 17 years with a developmental age of 12. He was small with a body weight of 40 kgs. The autopsy report notes he was physically underdeveloped & probably undernourished & in no position to protect himself against a serious physical assault. Applicant, although aware of the beatings taking place, did nothing to intervene or get help. She was also aware of the violent nature of assaults perpetrated upon the victim by the young person in the 10 days prior to the victim's death & was fully aware of the escalation of this violence on the afternoon of the fatal assault.
Insufficient weight given to guilty plea - special circumstances - parity.
Appeal dismissed.
336

BARRY, Maxwell Raymond - CCA, 10.8.2001
Dowd J, Smart AJ
Citation: R v Barry [2001] NSWCCA 304
Sentence appeal.
3 x buggery (involving children).
8y with NPP of 5y on two counts (concurrent); 5y FT on the other count (concurrent).
The applicant was sentenced for a further 12 sexual offences involving indecent assault, commit act of indecency & assault. The offences were committed on 2 brothers who were aged approx 11 & 8 when the offences began. Continuing course of conduct culminating in acts of buggery.
Aged almost 60 - priors - gross indecency, stealing, wilfully interfering with a telephone, supply prohibited drug - fines, CSO, GBB - no convictions for prior serious offences - health problems.
Protective custody - health situation necessitated applicant being held in the Metro Medical Centre - delay - application of ss.44 & 45 Crime (Sentencing Procedure) Act 1999 - whether sentences excessive.
Appeal dismissed.
337

SMITH v THE QUEEN - HC, 16.8.2001 - 206 CLR 650;75 ALJR 1398
Citation: Smith v The Queen [2001] HCA 50 (16 August 2001)
Evidence - relevance - identification evidence - recognition by police officers of accused in photographs from bank security cameras.
The appellant was convicted of armed robbery. The prosecution case was that the appellant was shown taking part in the robbery in photographs taken by bank security cameras. Police officers gave evidence that they had previous dealings with the appellant and recognised the person in the photographs as the appellant. The appellant submitted that the evidence should not have been received.
Police officers in no better position than jury to compare appearance of accused with photographs - s.55 Evidence Act 1995 (NSW) - whether evidence could rationally affect assessment by jury of probability of existence of a fact in issue - whether admissible as opinion evidence.
Appeal allowed: new trial ordered.
338

SCHLUENZ, Gloria Rosalin - CCA, 10.8.2001
Spigelman CJ, Grove J, Einfeld AJ
Citation: R v Schluenz [2001] NSWCCA 314
Sentence appeal.
Attempt obtain possession of trafficable quantity methylamphetamine.
7y with NPP of 4y.
The drugs entered Australia by post concealed in the hard drive of a computer (83.2 grams pure methylamphetamine).
Born in the Philippines - no relatives in Australia - affect of incarceration upon teenage son - inability to cope with stress in custody - hypertension & heart-related illness.
Appeal dismissed.
339

PATEK, George William - CCA, 10.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: R v Patek [2001] NSWCCA 315
Crown appeal.
Supply heroin (on 4 occasions).
27m with NPP of 20m.
The charge arose from a police undercover operation. On each occasion, a police undercover operative obtained a plastic bag containing powder from the respondent for $140 in cash. The quantity of powder involved in these transactions was 0.40 grams, 0.42 grams, 0.40 grams & 0.32 grams. In the last recorded conversation that the undercover operative had with the respondent, the respondent talked about being able to supply much larger amounts of the drug.
Whether sentence manifestly inadequate.
Appeal dismissed.
340

ANTECKI, Nigel Thomas - CCA, 10.8.2001
Dowd J, Smart AJ
Citation: R v Antecki [2001] NSWCCA 312
Sentence appeal.
8 x armed robbery; 2 x attempted armed robbery.
On counts 1-9 (7 armed rob & 2 attempt armed rob) - 5y FT on each count (concurrent).
On count 10 (armed rob & 13 offences of armed rob & one attempt armed rob taken into account) - 6y with NPP of 2y (cumulative). Effective head sentence of 11y with NPP of 7y.
Offences occurred in a short space of time. Each armed rob, with one exception, was committed in company with a co-offender & with applicant being armed with a kitchen knife. Robberies were committed at service stations in the western & south-western suburbs of Sydney. Although victims were threatened, very little physical violence was involved. In most of the offences, offenders were filmed on video cameras.
Aged 18 at time of offences - drug dependence due to mother's death & removal of support - unsettled upbringing - self-medication - unusual circumstances - guilty plea entered at earliest opportunity.
Whether sentence manifestly excessive - principle of totality - utilitarian value of early plea - error in starting point - remorse, contrition, drug addiction.
Appeal dismissed as to counts 1-9.
Appeal allowed in part on count 10: resentenced to 6y with NPP of 2y (partially concurrent with FT), resulting in an effective total head sentence of 9*y with NPP of 5*y.
341

PATTERSON, Wayne Desmond - CCA, 12.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: Patterson v Regina (Cwth) [2001] NSWCCA 316
Conviction and sentence appeal.
Knowingly concerned with the importation of a trafficable quantity of prohibited imports (cannabis resin - just over 7 kgs) - 6*y with NPP of 4*y.
The fact of importation & the appellant's involvement in it were clearly proved at trial. The only issue was whether the appellant's involvement was proved beyond reasonable doubt in that he knew that cannabis was being imported. No direct evidence of appellant's knowledge that cannabis was being imported. Crown case that this could be inferred. Appellant gave evidence he had no knowledge that cannabis was involved.
Prosecution submission concerning lies - whether trial judge's directions adequate - hearsay evidence - depositions from committal proceedings - whether admissible when witness not 'unavailable'within meaning of Evidence Act.
Credit for period of incarceration - whether NPP should be calculated before or after this credit is given.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 6*y with NPP of 4y.
342

HUYNH, Thi Xua - CCA, 29.6.2001
Wood CJ at CL, Howie J
Citation: R v Huynh [2001] NSWCCA 269
Sentence appeal.
Deemed supply of trafficable quantity heroin - 2y with NPP of 16m.
The charge for above offence was as a result of a surveillance operation directed towards the applicant's son. Applicant was seen by police to throw a bundle containing 36 balloons, each containing heroin, from a motor vehicle in which she was sitting (total weight 6.6 grams). They also saw the applicant's son throw 5 further balloons wrapped in tissue onto the applicant's lap (total weight .83 grams). The applicant's conviction was confined to the quantity of heroin contained in the 36 balloons she threw out the MV.
Deprived & difficult background - Vietnamese - limited English - unable to obtain employment - anxiety & depressive disorder - hypertension, arthritis, whiplash injury.
Whether special circumstances justifying departure from the ratio between NPP & term of sentence - possible confusion between 'exceptional circumstances'appropriate for non-custodial sentence & 'special circumstances'appropriate for departure from ratio.
Appeal allowed: NPP reduced to 12m.
343

BALDWIN, Dr Douglas - CCA, 15.8.2001
Wood CJ at CL, Sperling J
Citation: R v Baldwin [2001] NSWCCA 320
Sentence appeal.
1 x homosexual intercourse with person under the age of 10; 1 x assault and commit act of indecency on person under the age of 10; further matters taken into account on a Form 1 included 2 offences under s.78H & 5 offences under s.61M(2) - 5y with NPP of 2*y.
Offences were committed upon applicant's grandsons. At the relevant time, the applicant was a medical practitioner. After he was sentenced, applicant was diagnosed with prostate cancer. More than likely this condition was in existence when applicant was sentenced.
Aged 71 at time of sentence - previous unblemished character - poor health - underwent open heart surgery in period prior to sentence - early admissions - early guilty plea - contrition & remorse - sentence likely to be served in protection - little prospect of re-offending - good prospects of rehabilitation - must live with realisation that his behaviour has led to the destruction of his family unit.
Appeal allowed: resentenced to aggregate of 3y with NPP of 1*y
344

NG, Kwok Hung - CCA, 12.7.2001
Hodgson JA, Mathews AJA, Studdert J
Citation: R v Ng [2001] NSWCCA 305
Sentence appeal.
Knowingly concerned with importation of commercial quantity heroin - Life imprisonment with NPP of 18*y.
This importation involved 93.567 kgs of heroin (slightly over 69 kgs pure heroin) with an estimated street value of between $80 million & $95 million. At the time of sentence, it was the 4th largest known importation of heroin into Australia. The heroin was concealed within 3 commercial baking ovens which arrived in Australia with a number of other ovens aboard a ship from China.
Guilty plea - concern for members of family - asked for a lighter sentence.
Appeal dismissed.
345

BRAIN, Daryl William - CCA, 17.8.2001
Sully J, Smart AJ
Citation: R v Brain [2001] NSWCCA 319
Sentence appeal.
Robbery in company.
3*y with NPP of 1y 9m.
Complainant lured into toilets in a shopping centre on the pretext that applicant & co-offender could supply him with cannabis. While there, co-offender threatened complainant with a syringe. Applicant claimed he had no knowledge that the co-offender had a syringe.
Numerous offences starting when a juvenile - short periods of gaol (from 2-6 months) - full admissions immediately after arrest, nominated co-offender - guilty plea at first available opportunity - will spend time in segregation - disturbed childhood, suffering severe physical punishment from alcoholic father - borderline range of intellectual ability between low normal & intellectually disabled - intellectual delay - easily led.
Intellectual disability - assistance - co-offender more blameworthy - parity - need for rehabilitation.
Appeal allowed: resentenced to 3y with NPP of 18m.
346

NUTH, Savuth - CCA, 17.8.2001
Sully J, Smart AJ
Citation: R v Nuth [2001] NSWCCA 318
Sentence appeal.
Supply heroin on three occasions within 30 days; + 2 further similar offences & goods in custody taken into account.
4y with NPP of 2y.
The offences involved 3 very small quantities of heroin which applicant sold on the streets in Cabramatta.
Applicant, aged 18, made full admissions to police - one prior conviction for shoplifting - on a bond at the time of offences - commenced smoking marijuana in 1996 & using heroin in 1998 - applicant said he needed someone to help him with his drug addiction.
Born of Cambodian parents in a refugee camp in Thailand - came to Australia when he was about 3 - one of 6 children - expelled from school in Year 10 - limited period in employment - on social security.
Whether sentence excessive.
Appeal allowed: resentenced to 3y with NPP of 18m.
347

PARK, Steven - CCA, 13.8.2001
Wood CJ at CL, Sperling J
Citation: R v Park [2001] NSWCA 313
Sentence appeal.
2 x dangerous drive occasioning GBH.
2y with NPP of 1y.
Guilty pleas. Applicant's speed not substantially over the limit, but he was under the influence of alcohol, with a blood alcohol level of not less than 0.148 & not more than 0.170 at the time. Applicant's vehicle collided with another vehicle & then with a tree. Two passengers in applicant's vehicle were injured.
Insufficient weight given to subjective factors - applicant's first time in prison - failure to take into account that passengers were not innocent bystanders but had entered applicant's vehicle in full knowledge of applicant's condition.
Appeal dismissed. The sentencing order at first instance framed as 'recommending'applicant's release was varied to 'direct'the applicant's release at the expiration of the NPP.
348

STOKES, Gary Donald - CCA, 1.3.2001
Ipp AJA, Simpson J, Carruthers AJ
Citation: R v Stokes [2001] NSWCCA 82
Sentence appeal.
Escape from lawful custody.
3y with NPP of 1y.
Applicant was an inmate in the minimum security section at Grafton Gaol. He had access to gardening implements & tools. The day before his escape he secreted a pair of bolt cutters, a file & a hacksaw blade & the following morning he cut his way out of the perimeter fence. His wife was waiting for him in a car.
Aged 42 at time of offence - long criminal history - greater portion of life spent in custody - long-standing & serious problem with alcohol. Sentencing judge declined to make an order that the applicant be released on parole at the end of the NPP.
Whether sentence discloses error or is manifestly excessive - special circumstances.
Appeal allowed: resentenced to 2y with NPP of 8m.
349

CLARKE, Wayne Alan - NSW SC, McClellan J, 20.7.2001
Citation: R v Clarke [2001] NSWSC 703
Remarks on Sentence.
Manslaughter; conveyed in MV knowing the vehicle had been taken without consent of owner.
Offender & co-accused planned to snatch a handbag & escape using a stolen MV. Accused approached deceased, a young woman of 19, as she was standing on the footpath, grabbed her handbag & jumped into the MV. Co-accused began driving away & deceased ran alongside the vehicle. Co-accused stopped the vehicle briefly & deceased partially entered it. Co-accused accelerated, swerving the vehicle from side to side, then drove through a roundabout. Deceased grabbed hold of offender's head to stop herself falling from out. Co-accused, still driving, repeatedly punched deceased to the head until she fell out. She rolled onto the road & the vehicle's rear tyre struck her head. She was found unconscious, taken to hospital where she died as a result of her head injuries. Some days later, offender's solicitor contacted police on behalf of offender who wished to surrender himself. He made full admissions & undertook to give evidence at the trial of co-accused. Sentencing judge accepted that offender was overcome with remorse.
Aged 25 - will serve his time on protection - death threats made by co-accused.
Sentenced to: 5y with NPP of 3* for manslaughter; 6m FT (concurrent) for the MV offence.
350

PARIS, Robert John - CCA, 14.3.2001
Ipp AJA, Wood CJ at CL, Simpson J
Citation: R v Paris [2001] NSWCCA 83
Crown appeal.
Threaten to use offensive weapons with intent to prevent member of police force from investigating an act or circumstance that reasonably called for police investigation; + 2 x assault taken into account - 2y GBB.
This was a 'siege'wherein respondent held police at bay for a day & a night, with respondent at first threatening to kill himself, claiming he had a double barrelled shotgun (untrue) & 9 Molotov cocktails (partly true). He had 2 bottles, one containing mineral turpentine, the other methylated spirits, each fitted with a wick, which he threatened to ignite. He also threatened to shoot police & made threats directed at the children of one of the negotiators. This all followed a serious matrimonial discord between respondent & his wife, culminating in respondent leaving a note on the bedroom door claiming he had committed suicide & the wife subsequently contacting police. Conflicting accounts given by respondent & his wife of what led up to the offence charged.
Sentence manifestly inadequate.
Appeal allowed: resentenced to 2y suspended sentence.
351

HOWARD, Peter Andrew - CCA, 23.8.2001
Beazley JA, Wood CJ at CL, Sperling J
Citation: R v Howard [2001] NSWCCA 309
Sentence appeal.
Manslaughter - 7*y with NPP of 5*y.
Deceased, an 8 month old baby, had been left in applicant's care while the mother went shopping. Some time later, applicant called for an ambulance. Upon arrival, ambulance officers found the deceased had stopped breathing & had no pulse. They tried resuscitating 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 he died as a result of injuries sustained by being severely shaken.
Applicant spent 2 periods in pre-sentence custody: one of 10 days, the other 1 month 15 days. Sentencing judge only took into account the 1 month 15 days pre-sentence custody when sentencing the applicant.
Insufficient weight given to guilty plea - insufficient allowance for periods spent in protective & strict custody - failure to take into account pre-sentence custody.
Appeal allowed insofar as it was backdated by 1m 15d.
352

PAMPLIN, Nigel Peter - CCA, 14.8.2001
Spigelman CJ, Sully J, Smart AJ
Citation: R v Pamplin [2001] NSWCCA 327
Crown appeal.
Robbery with an offensive instrument; + a Form 1 matter - 13m 19d suspended sentence.
Crown submitted order made by sentencing judge not a valid order, as s.12(2) Criminal Appeal Act states suspended sentence orders 'may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order'At the time of imposition of order, respondent was serving a sentence of imprisonment not the subject of such an order.
Appeal allowed: Matter remitted, pursuant to s.12(2) to the DC for resentencing.
353

PHAM, Tuan Ba - CCA, 13.8.2001
Wood CJ at CL, Sperling J
Citation: R v Pham [2001] NSWCCA 307
Sentence appeal.
Supply large commercial quantity heroin (2.1 kgs); 2 x supply samples of heroin (0.38 grams & 0.19 grams); 1 x supply methylamphetamine (0.2 grams); + possess methylamphetamine taken into account (0.14 grams) - Aggregate total of 10y 6m, with NPP of 7y 11m.
Offences detected during targeted NCA operation, involving sophisticated & well organised criminal venture on the part of those involved. Although not at the very top of the hierarchy, applicant & co-offender were significantly involved in the operation & were described by the sentencing judge as 'secondary principals'.
The expression 'secondary principal'somewhat ambiguous - parity - whether correct starting point of sentence - whether court should have taken into account applicant's past drug use.
Appeal dismissed.
354

POTTS, Malcolm Robert - NSW SC, Hidden J, 31.8.2001
Citation: R v Potts [2001] NSWSC 753
Remarks on Sentence
Manslaughter.
Deceased was the offender's father & primary carer. Offender stabbed his father to death in a frenzied attack. From what offender told police & several forensic psychiatrists, there seemed to be some measure of provocative conduct on the part of the deceased, but nothing that would have caused such a violent reaction from someone who was in full command of their mental faculties. Psychiatric evidence that offence committed during an exacerbation of mental illness.
Aged 33 at time of offence - substantial impairment - schizophrenia since late teens - parents & 2 older siblings also suffered from mental illness of one kind or another - brother died of drug overdose - sister committed suicide - offender is the only surviving member of family - drug & alcohol abuse - divorced - son aged 9 - criminal record consisting of street offences, minor drug offences, minor offences of violence, armed robbery.
Sentenced to: 7y with NPP of 3y 9m.
355

BOLT, Dallas Clint - NSW SC, Hidden J, 31.8.2001
Citation: R v Bolt [2001] NSWSC 747
Remarks on Sentence.
Manslaughter.
Offender caused his mother's death by stabbing her repeatedly. The only issue at trial was provocation.
Aboriginal aged 19 at time of offence. Sad, disturbed upbringing. Parents were heavy drinkers & had a turbulent relationship. As a child, offender would run away from home in order to escape the turmoil. At times, his mother would throw him out of the house. Because of background, offender had a disrupted education, leaving school before completing Year 10 & has had little employment. His mother would constantly put him down, calling him 'useless'& 'good for nothing'The offence occurred after an incident where the mother had once again provoked him with a barrage of verbal abuse. Psychological opinion that offender suffers from profound feelings of inadequacy, poor self-esteem, an intense fear of rejection & abandonment, social anxiety & mistrust.
High degree of provocation - remorse - psychiatric report offender 'more damaged than dangerous'- need for psychotherapy for anger management, help with drug & alcohol abuse - suicide attempt whilst in prison.
Sentenced to 5*y with NPP of 2*y.
356

KOH, Yee Fang - CCA, 15.8.2001
Wood CJ at CL, Sperling J
Citation: R v Koh [2001] NSWCCA 324
Sentence appeal.
Conspiracy to cheat and defraud - 6y with NPP of 4y 2m.
The applicant & a large number of other people conspired to cheat & defraud American Express, MasterCard, Visa International & other financial institutions of large sums of money by the use of counterfeit credit cards. The cards were presented to retailers by persons called 'shoppers'Goods were fraudulently obtained & subsequently disposed of for profit. At first, applicant was employed as a shopper but later was involved in the recording of some of the goods obtained.
Contention as to whether applicant was involved in a practical way in the conspiracy as a whole or only within a 'cell'of it, despite a plea of guilty. Doubt as to what documentary evidence relevant to matters of importance were admitted into evidence at sentence hearing. Doubt as to the amount of money involved.
Appeal allowed: sentence quashed, matter remitted to DC for redetermination of sentence.
357

BUTCHER, Brett John - CCA, 4.9.2001
Greg James J, Smart AJ
Citation: R v Butcher [2001] NSWCCA 335
Application under s.43 Crimes (Sentencing Procedure) Act 1999.
Reference R v Butcher [2001] NSWCCA 188: judgment wrongly referred to applicant pleading guilty to 3 charges, whereas he pleaded guilty to 4 charges. Judgment also created impression that NPP was to be fixed on count 1, whereas it was intended that no variation occur on that sentence.
Amendment made to sentence as expressed in R v Butcher [2001] NSWCCA 188. Orders made.
358

PENNISI, Rosario - CCA, 4.9.2001
Beazley JA, Wood CJ at CL, Carruthers AJ
Citation: R v Pennisi [2001] NSWCCA 326
Sentence appeal.
Manslaughter.
Applicant shot deceased 10 times at close range. Applicant claimed he intended scaring deceased in an attempt to have him drop legal proceedings: See R v Pennisi [2001] NSWSC 461.
Assistance, co-operation - good character - anxiety/depression at time of offence - strong family ties - no risk of re-offending - good rehabilitation prospects - offer to plead guilty to manslaughter prior to committal - length of NPP - discount for plea.
Appeal dismissed.
359

HOSCHKE, Andrew Peter - CCA, 21.8.2001
Beazley JA, wood CJ at CL, Carruthers AJ
Citation: R v Hoschke [2001] NSWCCA 317
Crown appeal.
Robbery in company - 2y with NPP of 18m PD.
Respondent & co-accused robbed a 15 year old boy of $15 while the boy was standing at a bus station. Co-offender threatened to stab the boy. He hit the boy, then threatened to hit him again, this time with a closed fist. CCTV operators notified police & the respondent & his co-offender were arrested.
Respondent was aged 18 at the time of the offence. He entered an early guilty plea & remained in adult custody (78 days) until granted conditional bail. The sentencing judge found the respondent to be only half as culpable as his co-offender. Co-offender was sentenced by the same judge to 4y with a NPP of 2y.
Whether sentence manifestly inadequate - whether exceptional circumstances within meaning of Henry.
Appeal allowed: resentenced to 2y 9m with NPP of 16m to be served in a juvenile detention centre.
360

HARRIS, Richard John - CCA, 5.9.2001 - 125 A Crim R 27
Spigelman CJ, Simpson J, Einfeld AJ
R v Harris [2001] NSWCCA 322
Crown appeal.
Supply commercial quantity methylamphetamine; supply commercial quantity pseudoephadrine; supply commercial quantity cannabis leaf; + 13 offences under the Firearms Act 1996 taken into account.
Aggregate total of 5y with NPP of 3y 9m
Police maintained surveillance on a garage in Drummoyne which was being used as a 'safe house'for drugs, guns & chemicals. On a number of occasions respondent seen to deliver or remove drugs or chemicals from the premises. Two other men were identified as subjects of the investigation. One of those men was said to be the person on whose instructions the respondent acted.
Aged 37 at offences - married, young daughter - favourable pre-sentence report - priors - support of wife.
Need to give due recognition to gravity of offences taken into account: Morgan (1993) 70 A Crim R 368; Barton [2001] NSWCCA 63, Bavadra [2000] NSWCCA 292 115 A Crim R 152 - sentences unduly lenient.
Appeal dismissed.
361

COOPER, Maryanne Jane - NSW SC, Simpson J, 31.8.2001
Citation: R v Cooper [2001] NSWSC 769
Remarks on Sentence.
Infanticide.
Offender placed her hand over her 7 month old baby girl's mouth & nose until the baby stopped breathing.
Aged 21y 8m at time of offence - sad, unhappy childhood marked by abuse & physical violence - made a state ward at age 12 - began experiencing auditory hallucinations at age 15 - overdosed a number of times using Panadol, aspirin, Prozac. Post natal depression.
Sentenced to 4y GBB.
362

WALTERS, William John - NSW SC, Sully J, 23.8.2001
Citation: R v Walters [2001] NSWSC 786
Application pursuant to s.19AH Commonwealth Crimes Act 1914 to correct aspects of structuring of sentences imposed, e.g. it was submitted that the way in which the sentences were structured fell foul of the provisions of s.19AB & in particular of s.19AB(1) in that the structure adopted in the Remarks on Sentence does not fix a single NPP in respect of all the sentences: see R v Walters [2001] NSWSC 640, paras 64 & 65.
Before clarifying the structuring, Sully J had this to say:
'No sensible reading of pars 64 and 65 of the Remarks on Sentence in the present case could leave any intelligent person in the slightest doubt as to what it was that the Court was intending to do. ..'.
Sully J then amended para 64 of the Remarks on Sentence so that:
'...wherever the words 'a fixed term'appear, those words will be deleted and there will be inserted in lieu the words 'a sentence''.
He then went on to further amend para 64 by inserting the following words at the end of the paragraph:
'In order to give effect to the foregoing structure of sentences in a fashion that complies with s19AB(1)(d) of the Commonwealth Crimes Act, I set formally a non-parole period of six years in connection with all of the sentences variously imposed in connection with the ten counts to which reference is made in par 64'.
363

PUTA Arben - NSW SC, Hidden J, 30.3.2001
NITROVIC, Zeljko
CURRY, Raymond Arthur
MACKIC, Goran
OLDHAM, Russell Merrick
NANAI, Satuala
Citation: R v Puta & Ors [2001] NSWSC 225
Remarks on Sentence.
2 x manslaughter.
The above offenders were part of a group of 9 men who assaulted 2 men. Both victims were shot. There was no clear motive for the shootings & it was unclear who fired the shots: see also R v Bikic [2001] NSWSC 571. Puta also faced a charge of contempt of court. All of the above offenders were regarded as high risk while on remand.
Sentence: Puta: 10y with NPP of 6y + FT 3m for the contempt of court.
Nitovic: 9y with NPP of 5y.
Curry: 9y with NPP of 5y.
Mackic: 9y with NPP of 5y.
Oldham: 9y with NPP of 5y.
Nanai: 7*y with NPP of 4y.
364

BIKIC, Nedjelko - NSW SC, Hidden J, 6.7.2001
Citation: R v Bikic [2001] NSWSC 571
Remarks on Sentence.
Murder; manslaughter.
Offender charged with 2 counts of murder. Jury returned verdicts of guilty of murder on one count & guilty of manslaughter on the other. Offender had earlier faced trial with 6 other men, however, it was necessary to discharge that jury from giving any verdict in respect of the offender. The trial of the other 6 men proceeded & each was found guilty of manslaughter on both counts. Above offences involved an assault upon 2 men by 9 offenders. Both victims were shot. No clear motive for the shootings & unclear who fired the shots. The offender was convicted of murder on the one count on the basis that he was aware of the presence of guns & contemplated using them with the requisite intent for murder & was convicted of manslaughter on the basis of a shot fired after provocation. See also R v Puta & Ors [2001] NSWSC 225.
Aged 45 at time of offences - born in Croatia of Serbian parents - prior criminal record, including supply heroin - stringent bail conditions - high risk prisoner while on remand.
Sentence: Murder - 16y with NPP of 11y; Manslaughter - 10y with NPP of 7y.
Total effective sentence of 17y with NPP of 12y.
365

ANG - NSW SC, Ireland AJ, 4.9.2001
Citation: R v ANG [2001] NSWSC 758
Remarks on Sentence.
Manslaughter by criminal negligence.
Offender pushed semi-conscious body of his young uncle into a river, then told friends who helped him convey the body to a creek where they placed it in the water. It was later discovered by children. At the time of the offence, offender was heavily affected by amphetamines which had been placed in his drink by others without his knowledge. Deceased consumed a large quantity of drugs prior to semi-conscious state.
Aged 16y 8m at time of offence - expelled from school when charged with murder - became apprenticed to father as automotive technician - undertaken associated TAFE course & completed a few years of the course - unblemished record - highly regarded by members of family - remorse, contrition, regret - exceptional circumstances - well established rehabilitation.
Sentenced to: 2y suspended sentence.
366

UGUR, Sahin - CCA, 17.8.2001
Sully J, Smart AJ
Citation: R v Ugur [2001] NSWCCA 346
Sentence appeal (out of time).
1 x malicious wounding with intent to do GBH - 6y with NPP of 4*y;
1 x malicious wounding - FT 18m (concurrent);
1 x common assault - FT 18m (concurrent).
Applicant's wife was the victim in the 1st matter. Applicant inflicted a number of blows to her head & wrist with what was described as a small axe/tomahawk type weapon. Victim underwent significant surgical procedures. Victims in 2nd & 3rd matters were applicant's step-children. No details given regarding these offences except that the injuries were not of the same severity as those inflicted upon their mother.
Whether error in approach in fixing NPP
Extension of time granted, appeal dismissed.
367

KUCKAILIS, Rimantas - CCA, 5.9.2001
Bell & Howie JJ, Smart AJ
Citation: R v Kuckailis [2001] NSWCCA 333
Conviction appeal.
1 x assault with act of indecency.
1y suspended sentence.
The above charge was in the alternative to attempt sexual intercourse without consent. Both charges arose from the same incident & involved the same complainant. The jury acquitted the appellant of the attempt sexual intercourse without consent & convicted on the assault with act of indecency.
Manifest deficiencies in complainant's account of events - whether open to jury to have been satisfied beyond reasonable doubt.
In the CCA, the Crown pointed out a fundamental defect in the sentencing judge's directions as to elements of offence contained in alternate count, conceding these erroneous directions gave rise to a miscarriage of justice, & further conceded that if the CCA allowed the appeal, it should not order a retrial but direct a verdict of acquittal.
Appeal allowed: conviction quashed, verdict of acquittal entered, no order for retrial.
368

BRUNETTA, Salute - CCA, 29.8.2001
Sheller JA, Sully & Hulme JJ
Citation: R v Brunetta [2001] NSWCCA 331
Sentence appeal.
24 x dishonesty - 82w with NPP of 41w.
The appeal was against a sentence of imprisonment passed upon applicant consequent upon an order cancelling a sentence of 2y PD. In addition to above offences, various other offences had been taken into account. Applicant did not report for PD. Although she subsequently did commence service of the PD, she did so in a manner which the authorities thought to be in every way unsatisfactory. Application was then made to the DC to cancel the PD order. The matter came up for sentence, however, the applicant did not appear. The matter was adjourned & still the applicant did not appear, although her solicitor appeared on both occasions. The judge sentenced the applicant in her absence to full-time custody & ordered a warrant be issued for her apprehension. It was some 3* years later that such a warrant was issued & the applicant apprehended. Quite considerable amounts of money were involved in the offences.
Whether error in factual findings.
Appeal dismissed.
369

LEETE, Tracey Ellen - CCA, 7.9.2001 - 125 A Crim R 37
Sheller JA, Sully & Hulme JJ
Citation: R v Leete [2001] NSWCCA 337
Sentence appeal.
Supply heroin (22.99 grams) - 3y with NPP of 2y.
Sentencing judge declined to back-date commencement date of sentence, despite being aware applicant had been in custody since the date of offence, expressing the view that the offence merited a sentence in the order of 3* years.
Acting on information received, police apprehended applicant at Ballina airport following a return flight to Sydney. A number of containers containing heroin were found during a search of her property. Police found a notebook in her handbag indicating figures up to 12,000. Applicant admitted purchasing heroin for $7,000 when interviewed, asserting it was for her own use as she was trying to get off the drug & the money was part of her savings, however, it was not withdrawn from a bank. At sentence, she said the $7,000 was not her money & had been given to her by a supplier to whom she owed money & that she was to acquire the heroin in order to wipe out the $500 debt she owed the supplier. She was also to receive 1 gram of free heroin. Sentencing judge had some reservations, although he thought this version was probably partly true.
Failure to comply with relevant legislation before imposing conditions of parole - error in imposing condition that applicant undertake full-time rehabilitation - failure to adequately take pre-sentence custody into account in determining allowance for special circumstances - effective sentence manifestly excessive - error in failing to back-date sentence.
Appeal allowed: sentenced quashed, matter remitted to DC for re-sentencing.
370

PICCIN, Kay - CCA, 30.8.2001
Giles JA, James & Hulme JJ
Citation: R v Piccin [2001] NSWCCA 323
Conviction and sentence appeal.
On 9.2.2001, the CCA dismissed an appeal against conviction on a charge of malicious wounding & allowed an appeal on a charge of stalking: see R v Piccin [2001] NSWCCA 35. The appeal had been against conviction only. After the CCA pronounced its orders, an oral application was made regarding sentence. The Court directed the appellant to put on any application in relation to sentence for the malicious wounding charge. She subsequently put on the subject application.
Section 10 Crimes (Sentencing Procedure) Act - whether order should be made to dismiss charge, notwithstanding guilty verdict.
Appeal dismissed.
371

NGUYEN, Loi Thi - CCA, 7.9.2001
Spigelman CJ, Hulme & Howie JJ
Citation: R v Nguyen [2001] NSWCCA 334
Conviction appeal.
Knowingly take part in supply of heroin.
400h CSO.
As particularised & as put to the jury, the Crown case involved an actual supply by a cousin of the appellant on the day of the offence at a flat occupied by the appellant. The Crown asserted that the appellant permitted those premises to be used that day with actual knowledge that heroin was being supplied.
Reliance was placed on a certificate issued by the sentencing judge expressing his doubt about the correctness of the conviction & indicating that in his opinion the case was a fit one for appeal.
Whether miscarriage of justice - whether verdict unreasonable - whether cross-examination of appellant & certain defence witnesses in some respects improper & unfairly prejudicial.
Appeal dismissed.
372

BETHUNE, Matthew James - CCA, 31.8.2001
Mason P, Sully J, Newman AJ
Citation: R v Bethune [2001] NSWCCA 303
Crown appeal.
Armed robbery; malicious wounding; larceny of MV; robbery; assault police officer occasioning ABH; threaten to use offensive instrument with intent to prevent lawful apprehension; BE&S - 6y with 3*y NPP.
In the armed rob & malicious wounding, a blood-filled syringe was used. Respondent bit a police officer on the arm & threatened him with half a house brick.
Aged 27 at time of sentence - drug addiction - family support.
Inadequacy of sentence - double jeopardy.
Appeal allowed: resentenced to 6y with NPP of 3*y, the commencement date varied to start one year later.
373

ERIKSSON, Leanne Charmaine - NSW SC, Ireland AJ, 7.9.2001
Citation: R v Eriksson [2001] NSWSC 781
Remarks on Sentence.
Manslaughter by criminal negligence.
The above offence arose out of the death of the offender's 2 year old son 9 days after he was thrown by the offender's de facto. Offender failed to obtain medical assistance despite the child's health deteriorating. The de facto inflicted a number of injuries on the young child over the 10-14 days prior to the child's death.
Aged 24 - suffering from incurable progressive, congenital retinal dystrophy - close to legal blindness - will be blind within decade - guilty plea - assistance to authorities - undertaking to give evidence against co-accused - sentence to be served in strict protection.
Sentenced to 3y with NPP of 18m.
374

STELFOX, Adrian Luke - NSW SC, Howie J, 23.7.2001
Citation: R v Stelfox [2001] NSWSC 630
Remarks on Sentence.
Manslaughter.
The offence of manslaughter arose out of the shooting of the deceased during an attack by 3 men, including the offender. The attack was intended as a pay back for the insulting behaviour of the deceased towards a co-offender's mother. The offender was aware of the presence of a shotgun & was an active participant in the attack.
25% discount for guilty plea - 45% discount for assistance - offence out of character - mildly affected by drugs at time of offence - depressed as a result of offence - remorse.
Sentenced to 5y with NPP of 2*y.
375

PELLO, Michael - NSW SC, Hidden J, 3.8.2001
Citation: R v Pello [2001] NSWSC 650
Remarks on Sentence.
Manslaughter.
A number of people were sharing a house, including the deceased & the offender. On the day of the offence, the deceased had been drinking & began to argue with 2 of the female occupants. This continued for several hours, during which time the deceased assaulted both women. The women then left the house, the deceased followed them outside, the offender remonstrated with the deceased about her fighting then went back to the house & returned with a knife & stabbed the deceased a number of times. He remained at the scene where he surrendered to police.
Aged 40 - unhappy childhood in West Timor - miserable existence in Australia - genuine remorse - suffering psychiatric illness at time of offence - isolation in gaol.
Provocation assessed against background of stressful & exploitative environment of house - out of character - degree of provocation high.
Sentenced to 5*y with NPP of 3y.
376

SEE, Choon Hai - NSW SC, Hulme J, 7.9.2001
Citation: R v See [2001] NSWSC 776
Remarks on Sentence.
Manslaughter; attempt use offensive weapon with intent to assault thereby occasioning ABH.
The offender stabbed a fellow employee to death with a carving knife & a meat cleaver, inflicting 30 wounds in all. He chased another employee with the meat cleaver. The offences followed what the sentencing judge described as 'puerile'teasing on the part of the victims. However, there were some aspects of the teasing calculated to cause fear in the offender who was working illegally in Australia. The loss of self-control was great.
Malaysian - history of being teased & picked on - isolation in custody - little English - degree of provocation moderate.
Sentence: Manslaughter - 7y with NPP of 4*y;
Attempt use offensive weapon w.i. to assault thereby occasioning ABH - FT 1y (concurrent).
377

CARDOSO, Calisto - NSW SC, Hulme J, 7.9.2001
Citation: R v Cardoso [2001] NSWSC 775
Remarks on Sentence.
Manslaughter.
The offender was involved in a fight between the deceased & a group of men in a shopping centre. He left the fight, then returned with a table knife & stabbed the deceased in the head. The wound was such as to have required a high degree of force.
East Timorese refugee - difficult background - remorse - limited English - isolated - moderate degree of provocation - retribution.
General deterrence.
Sentenced to 8y with NPP of 5y.
378

O'MEARA, Kenneth Ian - CCA, 7.9.2001 - 124 A Crim R 493
Sheller JA, Sully & Dowd JJ
Citation: R v O'Meara [2001] NSWCCA 340
s.5F application against a decision by a magistrate to admit evidence of certain witnesses in the course of committal proceedings against the claimant. The claimant had been charged with the offence of defrauding the Commonwealth. He submitted that this evidence was inadmissible because the requirements of ss.48B & 48D of the Justices Act 1902 had not been complied with.
Whether CCA had jurisdiction to issue relief - Administrative Decisions (Judicial Review) Act 1977 - R v Buckett (1992) 61 A Crim 49 applied.
Held: The Court lacked jurisdiction to determine the claim.
379

STEWART, Malcolm James - CCA, 5.9.2001 - 124 A Crim R 371; 52 NSWLR 301
Spigelman CJ, Hulme & Howie JJ
Citation: R v Stewart [2001] NSWCCA 260
Conviction and sentence appeal
Aggravated BE&S - 4y with NPP of 2*y
Crown case that appellant & co-offender armed themselves with offensive weapons then entered a dwelling house & stole property from that house. Co-offender pleaded guilty to the charge & gave an undertaking to give evidence against appellant. As a result, co-offender's sentence reduced to take into account the offer of assistance. At appellant's trial, co-offender gave evidence implicating appellant.
Whether error in summing up - warnings - s.165 Evidence Act - evidence of a 'kind' that may be unreliable.
Appeal dismissed.
380

McCORMACK, Jason - CCA, 18.6.2001
Simpson J, Smart AJ
Citation: R v McCormack [2001] NSWCCA 360
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon - 8y with NPP of 6y.
Young female victim was using an automatic teller machine when applicant approached from behind & put her in a headlock. He said he had a knife & demanded she withdraw all her money. He then pushed her & she fell onto the ground. Victim saw he did in fact have a knife. She began to struggle & scream, whereupon the applicant ran off. Off-duty Federal Police officers nearby pursued & apprehended applicant.
Guilty plea - absence of consideration of reduction in accordance with s.22 Crimes (Sentencing Procedure) Act 1999 - rehabilitation - Thomson and Houlton referred to.
Appeal allowed: resentenced to 6y 8m with NPP of 5y.
381

LEWIS, Brian James - CCA, 10.9.2001
Priestley JA, Sully J, Smart AJ
Citation: R v Lewis [2001] NSWCCA 345
Conviction appeal.
BE&S - 3y 9m with NPP of 18m.
Appellant was charged with breaking & entering the premises of the Condobolin RSL Club & stealing cash totalling $27,633.65.
Undue intervention by trial judge in examination & cross-examination - erroneous restriction on cross-examination of possible suspect - failure by accused's counsel to lead evidence of good character - evidence incorrectly rejected - competence of counsel - whether verdict not reasonably support by evidence.
Appeal allowed: new trial ordered.
382

HANCOCK, Phillip John - CCA, 17.8.2001
Sully J, Smart AJ
Citation: R v Hancock [2001] NSWCCA 339
Sentence appeal.
1 x BE&S; 2 x assault police officer in the execution of his duties; + a number of offences taken into account.
Aggregate of 5y with NPP of 3*y.
Applicant drove to court in Newcastle in a stolen car. His girlfriend was with him. On the way back, he committed the BE&S. As he drove off with the property he had stolen, the stolen car broke down. He stole another vehicle, transferred the stolen property into that vehicle, then he & his girlfriend drove off. That vehicle was reported stolen & police gave chase. His girl friend was arrested, but the applicant got away. On another occasion, he drove into a police officer to avoid arrest. On yet another occasion, police were in the process of arresting him in a loan office while he was pawning property when he suddenly made a break & drove off, however, a police officer's arm was stuck in the door frame of the car when the applicant drove off. He was eventually arrested by police after entering a room in premises in Glebe & climbing into a manhole.
Failure to have regard to fact that matters could have been dealt with in LC - error in finding that applicant required longer sentence than his previous sentence for similar matters - whether sentence manifestly excessive.
Appeal dismissed.
383

BALL, Lawrence Elwyn - CCA, 5.5.2001
Bell & Howie JJ, Smart AJ
Citation: R v Ball [2001] NSWCCA 352
Conviction appeal (indictment 29.10.97).
1 x buggery - 4y with NPP of 18m; 3 x indecent assault - FT 12m (cumulative).
The above sentences were to be served concurrently with cumulative sentences previously imposed for other sexual offences (indictment of 27.10.97).
Appellant also appealed against sentence (indictment of 27.10.97).
1 x homosexual intercourse with male person aged 9 - FT 4y; 1 x sexual assault with act of indecency with person under 9 - MT 1*y with AT of 1y (cumulative); 6 x sexual assault with act of indecency with person under 16 & 3 x homosexual intercourse with person aged 15 - FT 3y on each count (concurrent with FT of 4y).
Credibility - failure to give direction in accordance with Longman - where lengthy delay & Crown case depended on complainant - adjustment of sentences on other matters to accommodate new trial on certain offences. Longman, Crampton & Doggett cited.
Conviction appeal allowed (indictment of 29.10.97): new trial ordered.
Sentence appeal allowed (indictment of 27.10.97): sentences quashed, resentenced to FT 3y on each of the homosexual intercourse charges; 2*y with NPP of 18m on each of the assault with act of indecency charges.
384

QUTAMI, Hami - CCA, 28.6.2001 - 127 A Crim R 369
Spigelman CJ, Simpson J, Smart AJ
Citation: R v Qutami [2001] NSWCCA 353
Crown appeal.
Solicit to murder.
4y 5m 21d with NPP of 11m 21d.
Respondent, of Jordanian extraction, contacted Mr Jumeau, the director & owner of Southern Cross Investigations, enquiring how much it would cost to have his niece killed, explaining 'We're Christians she's moved out with a Muslim this is very bad in our culture, we'd like to get rid of her totally.'He also enquired as to the cost of having her seized & brought back to the family where they had someone who could deal with her. Mr Jumeau immediately contacted the police who installed a tape recorder on his telephone. After a number of preliminary phone calls from the respondent, they met. Mr Jumeau had been fitted with a listening device & the conversation was recorded. Police arrested the respondent later that evening.
NPP manifestly inadequate - desirability of prisoner giving evidence - very limited weight to be given to untested, self-serving statements made to experts - role of restoration of community harmony.
Appeal allowed in part: appeal against sentence of 4y 5m 21d dismissed; NPP of 11m 21d set aside, resentenced to NPP of 29m 21d.
385

BEG - CCA, 7.9.2001
Adams J, Smart AJ
Citation: R v BEG [2001] NSWCCA 341
Sentence appeal.
2 x aggravated sexual intercourse without consent.
5y with NPP of 3y on each count (concurrent).
The circumstances of aggravation were that each of the 2 children involved was under 16 & under the applicant's authority, the one girl being his step-daughter, the other her friend. Both girls were aged 10 at the time of the offences.
Health problems in existence at time of sentencing but effect of dealing with them in custody not sufficiently appreciated - need for intensive care & treatment.
Appeal allowed in part: NPP varied from 3y to 2y 3m.
386

CONNOLLY, Geoffrey William - NSW SC, Dowd J, 20.7.2001
Citation: R v Connolly [2001] NSWSC 787
Remarks on Sentence.
Manslaughter.
The prisoner stabbed his wife when he became obsessed with the suspicion that she was being unfaithful to him & that she was about to leave him. This suspicion was completely without foundation. Some years before, the prisoner divorced his first wife after forming deep suspicions about her fidelity which were also totally unfounded. He was also intoxicated at the time of offence.
Remorse - 25% discount for plea.
Delusional disorder - special circumstances.
Sentenced to 7*y with NPP of 4*y.
387

ADAMS, Debbie Marie - NSW SC, Sperling J, 12.9.2001
Citation: R v Adams [2001] NSWSC 773
Special hearing under s.18Mental Health (Criminal Procedure) Act.
Accused was charged with murder & malicious wounding with intent to cause GBH.
Following the special hearing, the accused was found, on the limited evidence available, to have committed the crimes of manslaughter & malicious wounding with intent to cause GBH. Accused suffered from a severe personality disorder.
388

McDONALD, Raymond Anthony - CCA, 14.9.2001
Beazley JA, Wood CJ at CL, Sperling J
Citation: R v McDonald [2001] NSWCCA 363
Conviction appeal.
2 x aggravated sexual intercourse without consent.
Offences alleged to have been committed in Taree in October of 1997, aggravating factor was a threat with a knife. Issue at trial was the identity of offender. Appellant's defence was that this was a case of mistaken identity, claiming he was in Byron Bay in October 1997. Although complainant made prompt complaint to friends & a sexual assault counsellor, it was not until June 1998 that she reported the matter to police.
Error in permitting complainant to identify appellant in court - inadequate warnings - error in admitting picture identification - inadequate warnings as to danger - delay in complainant reporting to police - inadequate warnings - error in allowing evidence contrary to s.157 Criminal Procedure Act.
Error of reasoning in admitting identification evidence over objection based on s.137 Evidence Act 1995.
Appeal allowed: new trial ordered.
389

BEG - CCA, 7.9.2001
Adams J, Smart AJ
Citation: R v BEG [2001] NSWCCA 341
Sentence appeal.
2 x aggravated sexual intercourse without consent - 5y with NPP of 3y on each count (concurrent).
Circumstances of aggravation that each of the 2 children involved were under 16 & under applicant's authority. One girl was his step-daughter, the other her friend. Both girls aged 10 at time of offences. Sentencing judge attached considerable weight to applicant's health, particularly his very severe back pain.
Health problems in existence at time of sentencing but effect of dealing with them in custody not sufficiently appreciated - need for intensive care & treatment.
Appeal allowed in part: NPP varied from 3y to 2y 3m.
390

MACLEOD, Robert James - CCA, 14.9.2001 - 125 A Crim R 60; 52 NSWLR 389
Mason P, Simpson J, Newman AJ
Citation: R v Macleod [2001] NSWCCA 357
Conviction and sentence appeal.
19 x fraud charges - Aggregate MT 5*y, AT 1*y.
Appellant charged with 25 offences, 6 of which were in the alternative. Convicted of 19 counts. All charges prosecuted by DPP (Cth). Appellant was a director of 3 companies, purportedly making films & videos. He invited others to invest & several thousand investors contributed a total of more than $6,000,000. Only $718,000 was used to make films. More than $2,000,000 used by appellant for his own use. Investors were furnished with statements creating illusion films were being made & returning profits - totally untrue.
Fraudulent intent - dishonesty - directions - claim of right - 'prescribed interest'& 'participation interest'pursuant to Companies (NSW) Code and Corporations Law - onus of proof - consciousness of guilt - directing mind of company - whether consensual transaction in transferring company's property - authority of DPP (Cth) to prosecute charges under state legislation - jurisdiction of NSW DC to hear charges.
Conviction appeal allowed on counts 12 & 13 - convictions quashed on those counts.
Conviction appeal against all other counts dismissed.
Sentence appeal allowed on counts 12 & 13 - sentences quashed on those counts.
Sentence appeal against all other counts dismissed.
391

ROSE, Rodney Wayne - CCA, 9.7.2001
Simpson & Sperling JJ
Citation: R v Rose [2001] NSWCCA 370
Sentence appeal.
1 x sexual intercourse without consent - 5y with NPP of 3y; 1 x AOABH - 2y with NPP of 15m (concurrent).
Applicant met victim & later that day they met at a nightclub, after which they returned to victim's home. Applicant made sexual overtures which victim rejected. He persisted, became violent & committed the above offences.
Aged 27 at time of offences - released from prison 4 months previously after serving sentence for AOABH whilst armed with offensive weapon & deprivation of liberty - earlier offences - unsatisfactory early life - mother abandoned family when applicant was 3 - father remarried - deprived of emotional support - subjected to sexual abuse by friend of father - 2 sisters committed suicide - applicant has alcohol problem - violent behaviour towards partner - has 7 year old son - good work record - become a committed Christian.
Pre-sentence custody.
Appeal dismissed.
392

OSBORNE, Jeffrey Nedly - CCA, 13.7.2001
Simpson & Sperling JJ
Citation: R v Osborne [2001] NSWCCA 371
Sentence appeal.
3 x robbery in company - Aggregate total of 4*y with NPP of 3y.
Offences, to which applicant pleaded guilty, all part of same enterprise committed upon the ANZ Bank in Rockdale. Applicant's role was to keep watch inside the front door of the bank.
Aged 29* at time of offences - criminal record includes stealing, malicious damage, assault with intent to rob, armed rob while in company - troubled history - family migrated from NZ - parents separated - father's heavy consumption of alcohol - family life marked by violence - lived on streets at age 12 - drug use.
Guilty pleas - timing of pleas - role in offences - whether sentence excessive.
Appeal dismissed.
393

JACKSON, Adam Mathew - CCA, 14.9.2001
Spigelman CJ, Simpson J, Einfeld AJ
Citation: R v Jackson [2001] NSWCCA 355
Crown appeal.
7 x defraud public company; + 22 matters on a Form 1.
5y with NPP of 2y on the 1st count & taking into account the Form 1 matters.
On other counts, he imposed concurrent sentences of 4y with NPP of 18m; & 3y with NPP of 15m.
Offences systematically committed over 2 year period, involving more than $5,000,000. Special circumstances relevant to the determination of the NPP, however, excessive weight given to them.
Early guilty plea - contrition - 'borderline'special circumstances - residual discretion - hardship to family.
Undue weight given to special circumstances - s.44(2) Crimes (Sentencing Procedure) Act 1999.
Crown appeal allowed on 1st count: resentenced to 5y, 3y NPP (taking into account 22 matters on Form 1).
Crown appeal against remaining sentences dismissed.
394

MITROVIC, Dragan - CCA, 17.7.2001
Stein JA, Simpson & O'Keefe JJ
Citation: R v Mitrovic [2001] NSWCCA 359
Conviction appeal.
Supply prohibited goods; goods in custody.
Appellant was arrested & charged in October 1989. He failed to turn up at the sentence hearing & was sentenced in his absence to 3m PD for the supply charge; fined $500 on each of the other charges. He appealed to the DC against the conviction on the supply charge & the matter was adjourned a number of times because of his failure to appear. The appeal was finally dismissed in February 1992 & a bench warrant issued for appellant's arrest. He was arrested in October 1996, pursuant to the bench warrant. The DC confirmed the dismissal of the appeal & ordered that the PD commence, however, appellant never attended, the order was revoked & he was sentenced to 18w full-time custody. A bench warrant was issued & the appellant was arrested in December 2000. He remained in custody for 11 weeks until he was released on bail following the grant of bail made in the SC pending the outcome of the subject appeal.
Prosecution case against appellant depended significantly upon the evidence of the arresting officer.
Credibility of investigating police officers - evidence emerged in Royal Commission that arresting officer corrupt & that he was the leader of a corrupt clique of police officers known as the 'Rat Pack'- not clear whether all police officers involved in appellant's arrest part of corrupt clique, however, one of those involved in the arrest died in 1991.
Fresh evidence casting doubt upon safety of convictions.
Convictions quashed, verdicts of acquittal entered.
395

AH-SEE, Craig Thomas - CCA, 14.9.2001
Sully J, Carruthers AJ
Citation: R v Ah-See [2001] NSWCCA 375
Sentence appeal.
1st indictment: accessory after the fact to robbery in company;
2nd indictment: supply prohibited drug on an ongoing basis ;
+ 4 matters on a Form 1 (administer prohibited drug - heroin; goods in custody - $285 in cash; possess prohibited drug - heroin; possess prohibited drug - cannabis).
Total of 7y with NPP of 5y 3m.
Two co-offenders carried out a robbery at a BP garage in Orange, the one armed with a knife, the other a syringe filled with a dark red-coloured substance. After the robbery, the two co-offenders were driven away by the applicant, who was aware that they had committed the robbery.
Drug charges arose following police stopping applicant for a driving matter. They saw him take something out of his pocket & drop it onto the front passenger seat. Police searched the car & found 14 foils, each containing a small quantity of heroin. They also found compressed heroin, a gram of cannabis & money.
Parity - failure to make allowance for discount by reason of principles established in Ellis.
Appeal dismissed.
396

ATKINSON, Brent Raymond - CCA, 10.8.2001
Spigelman CJ, Grove J, Einfeld AJ
Citation: R v Atkinson [2001] NSWCCA 342
Sentence appeal.
Possess prohibited imports (cocaine - 800 grams) - 7*y with NPP of 4*y;
supply commercial quantity prohibited drugs (cocaine - 2.2 kgs) - 4*y FT (concurrent).
Applicant originally arrested for discovery of less than 1 gram cocaine at his house. He then took police to other premises where other drugs were found. Without his admission, the 800 grams cocaine (57% pure) which formed the 1st charge would not have been found. The 2nd charge also arose from applicant making admissions in a formal police interview where he told police that the cocaine seized earlier was part of a recent importation of 2* kgs & the supply of about 2.2 kgs cocaine.
Aged 37 at time of 1st offence - revelation of undetected crimes - considerable assistance to investigating police - 40% discount for assistance on 1st offence - 25% discount for early guilty plea - priors - not previously imprisoned - subjective matters - protective custody - special circumstances.
Error in determining principles applicable to fixing head sentence by considering total quantity of substance rather than the quantity of pure drug.
Appeal allowed: resentenced to 6y with NPP of 3y 9m.
397

ZAJAC, Milos - CCA, 14.9.2001
Sully J, Carruthers AJ
Citation: R v Zajac [2001] NSWCCA 361
Sentence appeal.
Supply prohibited drug (cocaine).
16m with NPP of 10m.
After applicant's marriage breakdown, he took in 2 people to share his house (the co-offenders). Applicant had a carpet cleaning business, however, on occasions he supplied small quantities of cocaine. Telephone calls were made to his house by people wanting to purchase cocaine from him. The co-offenders also had some involvement, although the one co-offender's involvement was restricted to passing on messages to the applicant.
Aged 54 - delay in finalisation of case - cocaine & alcohol abuse - steps taken towards rehabilitation - depressive illness.
Parity - whether justifiable sense of grievance.
Appeal dismissed.
398

PEARCE, Anthony Terrance - CCA, 17.8.2001
Sully J, Smart AJ
Citation: R v Pearce [2001] NSWCCA 351
Sentence appeal.
Robbery in company; + 4 related offences taken into account (drive in manner dangerous, drive stolen MV, drive MV whilst unlicensed, steal MV).
Aggregate total of 5y 3m with NPP of 3y 3m.
The rob in company involved the applicant & co-offenders robbing the Commonwealth Bank at Hurstville. During the robbery, an altercation took place between one of the offenders & the manager, who was pushed to the ground & kicked several times to the head & upper part of his body. Threats were made to other bank employees & one teller was punched on the side of his face. Offenders took between $58,000 & $61,000. When they made their getaway, the manager caught a taxi & went in pursuit. He was able to obtain the registration of the getaway MV & phoned the police. Police saw the stolen MV in Banksia & pursued it, with the getaway car reaching speeds of 180 kph. At one point, the stolen MV rammed the police vehicle & afterwards collided with 2 parked MVs. The applicant was seen to be seated in the driver's seat. The pursuit continued at high speeds to Waterloo & the stolen MV was eventually stopped in Redfern.
Applicant on parole at the time - sentencing discretion - whether error in finding of fact.
Appeal dismissed.
399

PENMAN, Aaron - CCA, 13.8.2001
Wood CJ at CL, Sperling J
Citation: R v Penman [2001] NSWCCA 308
Sentence appeal.
1 x larceny; 1 x take a conveyance without consent of owner.
16m with NPP of 12m.
The offences involved the taking of a truck & the theft of the furniture which it contained.
On recognizance at time of offences - circumstance of considerable aggravation - general & specific deterrence.
Whether sentence manifestly excessive - rehabilitation - whether special circumstances.
Appeal allowed in part: NPP reduced to 9m.
400

HANDLEY, Brendan - CCA, 15.8.2001
Wood CJ at CL, Sperling J
Citation: R v Handley [2001] NSWCCA 311
Sentence appeal.
1 x supply prohibited drug on an ongoing basis.
3y 1m with NPP of 18m.
Applicant was arrested following execution of a search warrant at his home. Police found 2 bags containing amphetamines, a number of resealable plastic bags, a set of electronic scales, a number of syringes, a diary containing names & details of amounts paid or payable & a 'tick'list. When interviewed, applicant made free admissions. His own use of amphetamines was accepted as having been significant.
Whether sentence occasioning undue hardship to family.
Appeal dismissed.
401

WOODMAN, James - CCA, 15.8.2001
Wood CJ at CL, Sperling J.
Citation: R v Woodman [2001] NSWCCA 310
Sentence appeal.
5 x offences of dishonesty.
Aggregate total of 3y 9m with NPP of 1y 3m
Four offences involved fraudulently omitting to account for a deposition or for rent received by him from a prospective purchaser & tenants, the 5th related to a count of fraudulently converting property to his own use, e.g. monies received by way of rental bond; + a further 18 matters taken into account on a Form 1.
Whether sentence outside range - general deterrence - whether insufficient weight given to offer of reparation.
Appeal dismissed.
402

KHENG, Kien Jin - CCA, 19.3.2001
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Kheng [2001] NSWCCA 85
Sentence appeal.
Conspire to cheat and defraud.
4y with NPP of 3y.
The offence concerned a very large-scale fraudulent enterprise involving counterfeit credit cards. The amount of money involved was estimated to be in the region of $US16 million. The facts concerning the applicant showed he had actually participated in transactions involving hundreds of thousands of dollars, although he maintained in evidence that his involvement was much less.
Parity.
Appeal dismissed.
403

AM - CCA, 23.2.2001
Grove & Simpson JJ
Citation: R v AM [2001] NSWCCA 80
Sentence appeal.
1 x cause GBH with intent to murder - 11y 8m with NPP of 7y;
1 x use offensive weapon to commit assault - 6y with NPP of 4*y (concurrent).
The 1st charge was preferred on the basis that applicant was a principal in the second degree. He was indicted as a principal on the 2nd charge. Four offenders involved. Applicant agreed to be involved in an attack which was intended to result in the murder of one of the victims. He was to be paid $10,000 for his participation. Applicant's role was to subdue the victim's wife while her husband was murdered. Co-offenders cut the throat of the victim & stabbed him several times in the chest. The wife was punched & kicked numerous times & a cable tie was drawn over her head & pulled tightly around her throat.
Assistance to authorities - utilitarian value of guilty plea - discount - special circumstances.
Appeal dismissed.
404

MAXWELL, Brian - CCA, 14.9.2001
Simpson & McClellan JJ, Ireland AJ
Citation: R v Maxwell [2001] NSWCCA 362
Conviction and sentence appeal.
Murder.
16y with NPP of 10y.
The appellant was convicted of murder (s.19A Crimes Act) following the shooting of his wife. They had separated about a year earlier & the appellant was upset about the breakdown of the marriage & the dispute over custody of their child. The defence case was that the appellant was suffering from a depressive illness at the time of the shooting which substantially diminished his responsibility.
This was the 3rd trial for the above offence. At the 1st trial, appellant pleaded guilty to manslaughter which the Crown accepted, however, the sentencing judge rejected this plea. Following an appeal to the CCA & an appeal to the High Court by the appellant, the Crown appealed to the CCA to withdraw its acceptance of the guilty plea. This was allowed & the 2nd trial for murder proceeded before Bruce J. Appellant was found guilty & sentenced. He appealed against that conviction & a new trial was ordered. The instant appeal follows the 3rd trial.
Appellant represented himself on appeal & presented the Court with 80 closely typed pages of 'appeal points', none of them of any relevance.
Appeal dismissed.
405

MJK - CCA, 30.8.2001
Dowd J, Smart AJ
Citation: R v MJK [2001] NSWCCA 325
Sentence appeal.
Count 1: sexual intercourse with girl aged 14 - 2y 3m FT;
Count 2: sexual intercourse with girl aged 15 - 2y 3m FT (cumulative);
Count 3: homosexual intercourse with boy aged 14 - 2y 3m FT (cumulative);
Count 4: aggravated sexual intercourse with seriously intellectually disabled girl; aggravated act of indecency with same girl; aggravated indecent assault with same girl - 10y with NPP of 7*y (cumulative);
Count 5: publish indecent article; possess prohibited weapon (imitation pistol); possess child pornography - 2y FT (concurrent with Count 1).
Aggregate total of 16y 9m with NPP of 14y 3m.
Contact was made with victims in counts 1-3 via the Internet. Charges in count 4 arose when applicant went to a disability service centre in the very early hours on the morning of the offences & entered a block where the victim & 5 other disabled children lived with a carer. The victim was seriously intellectually disabled. Applicant knew disabled children resided at the centre & purposely drove to it with the intention of having sexual relations with somebody there. The carer saw applicant leaving the block & found the victim naked & in a distraught state. Police were called. Applicant was also seen on the premises by another witness. Later in the day, the applicant attended Eastwood Police Station with his solicitor, a psychologist & his father & made full admissions. At the time, the applicant was on bail.
Application of principles of totality.
Appeal dismissed on counts 1,2,3 & 5.
Appeal allowed against sentence on count 4: resentenced to 9y with NPP of 6y (partially concurrent with the sentence on count 3).
Aggregate total of 14y with NPP of 11y.
406

PATERSON, Bruce Raymond - CCA, 7.9.2001 - 125 A Crim R 252
Sully & Bell JJ, Carruthers AJ
Citation: R v Paterson [2001] NSWCCA 368
Sentence appeal.
Murder - 22y with NPP of 17y commencing 27.3.2001;
Maliciously damage property by means of fire (a dwelling house); + 1 x BE&S taken into account - FT 4*y commencing 27.3.1999.
Applicant shot the deceased, then dismembered the deceased's body by removing the head, hands & lower parts of the arms. The remainder of the corpse was taken to a remote location & buried. The head, hands & lower arms were burned in a domestic heating appliance. Some time later, applicant retrieved what was left of the victim's remains, put them into a large wheeled garbage trolley, sealed the lid with screws & dumped the trolley into a river. He had tried to remove an identifying number from the garbage bin, however, the bit he cut away fell into the bin & remained there until the bin was discovered & retrieved. When interviewed by police, he denied any implication in the killing. Police were contacted some time later by a psychiatrist who had been consulted by the applicant. He told police what the applicant had told him about the killing. After some lengthy investigation by police, applicant was arrested.
Approach of sentencing judge - proper application of Ellis.
Appeal dismissed.
407

KCH - CCA, 19.9.2001 - 124 A Crim R 233
Ipp AJA, Hulme & Sperling JJ
Citation: R v KCH [2001] NSWCCA 273
Conviction and sentence appeal.
1 x sexual intercourse with child under 10; alternative count of aggravated indecent assault on same child.
6*y
After the 1st day of the trial & prior to the conclusion of the Crown case, appellant changed his plea to the alternative count from not guilty to guilty, which was accepted by the Crown in satisfaction of the indictment.
Withdrawal of guilty plea - miscarriage of justice - inappropriate advice - improper pressure - legal representatives told appellant of alleged comments of trial judge as to likelihood of being convicted - whether sufficient for pressure to be one of a number of factors leading to a decision to plead guilty - tactical advantage in pleading guilty - duty of legal representatives not to bring improper pressure on clients to plead guilty.
Failure of counsel to obtain instructions as to factual basis of matter to be argued on sentence.
Appeal allowed: withdrawal of guilty plea allowed, conviction set aside, new trial ordered.
408

BUHAGIAR, Scott James - CCA, 8.8.2001
Dowd J, Smart AJ
Citation: R v Buhagiar [2001] NSWCCA 376
Sentence appeal.
BE&S. At the time of pleading guilty, applicant was in custody on other matters. 2 months credit given for time already served. - Effective sentence of 46m with NPP of 34m.
Applicant & co-offender broke into & entered a remote farm at Holgate. Inside the house, they came upon a young 23 year old man coming out of the bedroom. They ordered him to lie down on the floor & covered his head with a towel. He was asked if there were guns on the premises, which he denied, except for a BB gun. A number of articles were stolen from the house. The victim was asked to provide tape that was used to bind him. He was threatened that he would be bashed & was kept for some time tied up with tape. Some serious threats were made against him & his family. Applicant was arrested on some other matters and, although not a suspect in the above matter, he indicated he wished to provide information about a number of matters. He made full admissions about the above offence to police.
Aged 25 at time of sentence - on parole at the time of the offence - prior offences - guilty plea at earliest opportunity - application of Ellis principle.
Appeal dismissed.
409

BATES, Jason Benjamin - CCA, 6.8.2001
Dowd J, Smart AJ
Citation: R v Bates [2001] NSWCCA 374
Sentence appeal.
1 x attempt armed robbery with dangerous weapon - 2*y FT; 1 x robbery with dangerous weapon - 7*y with NPP of 5y (cumulative).
The attempted robbery involved an unsuccessful attempt to rob the TAB. They were unable to get into the area where the money was kept. Co-offender discharged a sawn-off shotgun at the lock area of the door that was between him & the area where the cash was kept. The 2nd robbery was at a bank. Co-offender carried a loaded shotgun but did not fire it. A considerable amount of money was taken. Applicant & co-offender were arrested in the vicinity of the bank.
Parity - pre-sentence custody - aggravating factors - justifiable sense of grievance.
Appeal against sentence on count 1 dismissed.
Appeal against sentence on count 2 allowed: resentenced to 6*y with NPP of 4*y (partly concurrent).
410

SCOTT, Michael Vincent - CCA, 10.8.2001
Dowd J, Smart AJ
Citation: v Scott [2001] NSWCCA 377
Sentence appeal.
1 x aggravated BE&S; + 13 matters on a Form 1 - 7y with NPP of 4*y.
Applicant on bail for the Form 1 matters at the time of the commission of the subject offence. He & co-offender gained entry into a house by removing the fly screen window & unlocking the rear door. The victim, aged 80, was in bed at the time. He was threatened & offenders demanded that he give them his money. Before he could answer, he was struck a number of times on the face with a wooden tomato stake, causing a laceration above his right eye & under his chin. He suffered severe bruising, swelling & redness to most of his face. Offenders stole $420 from the victim's wallet. Applicant denied inflicting the blows.
Extensive criminal history - several prior terms of imprisonment - dysfunctional behaviour disorder - drug problem.
Parity - justifiable sense of grievance.
Appeal allowed: resentenced to 5*y with NPP of 3*y.
411

KARKI, Keshun Dhoj - CCA, 31.8.2001
Sheller JA, Sully & Dowd JJ
Citation: R v Karki [2001] NSWCCA 378
Sentence appeal.
Knowingly concerned in the importation of a commercial quantity heroin - 10y with NPP of 6y.
The sentence imposed was reduced by 1 year to take into account the assistance provided by applicant to the authorities. The bulk quantity of heroin imported was slightly in excess of 3.4 kgs. The NCA had dealings with a registered informant who tipped them off about the pending importation of heroin.
Guilty plea - aged 31 or 32 - born & normally resides in Nepal - university level of education - good family background - no prior criminal history - wife & child living in Nepal.
Whether sentence manifestly excessive - impact on family.
Appeal dismissed.
412

ZREIKA, Mahmoud - CCA, 21.9.2001
Hodgson JA, Dowd J, Carruthers AJ
Citation: R v Zreika [2001] NSWCCA 373
Conviction appeal.
4 x receive motor vehicles knowing they were stolen.
Aggregate total of 2y with NPP of 1*y.
On each of the motor vehicle charges against the appellant, he faced 3 charges: stealing, receiving,
disposing of. The 2nd of those charges in relation to each MV was brought as an alternative to the 1st charge, and the 3rd charge was brought as an alternative to the 2nd charge. In relation to each MV, the jury found the appellant not guilty on the stealing charge & guilty on the receiving charge. The guilty verdict on the receiving charges satisfied the charges of disposing. Appellant's defence at trial was that he did not know the vehicles were stolen. At trial, he offered explanations for his possession of the vehicles.
Directions in relation to explanations - unfairly prejudicial remarks & opinions expressed by trial judge in summing up.
Appeal dismissed.
413

HAYES, Gregory Peter - CCA, 12.9.2001
Sully J, Carruthers AJ
Citation: R v Hayes [2001] NSWCCA 358
Sentence appeal.
Malicious wounding with intent to do GBH.
11y 8m with NPP of 8y 9m.
Applicant was charged with one count of causing GBH with intent to murder & in the alternative to one count of malicious wounding with intent to do GBH. He pleaded not guilty to the 1st count but guilty to the alternative count, which was accepted by the Crown in full satisfaction of the indictment.
In 1983 applicant was sentenced to life imprisonment for the murder of his daughter (aged 3). He served 15 years for that offence & was then released to parole. After his release from prison, he lived with his brother & his brother's partner & her 3 children. The brother's partner was the victim of the subject offence. Applicant perpetrated a vicious attack upon the victim which lasted about 20 minutes, during which the applicant told the victim he was going to kill her & that she had better start praying. The victim suffered substantial loss of blood & extensive serious injuries. She underwent more than 9 hours of surgery.
Aged 44 - long criminal history, starting at age 13 - substance abuse - personality disorder with antisocial qualities - problems with anger management - degree of institutionalisation - unresolved issues to do with women.
Whether sentence excessive - sentence to be served in protective custody - whether sufficient allowance for guilty plea.
Appeal dismissed.
414

TOWNSEND, Luke William - CCA, 4.9.2001
Hodgson JA, Dowd J, Carruthers AJ
Citation: Townsend v Parole Board [2001] NSWCCA 379
Application that a direction be given by the Court to the Parole Board under s.176 Crimes (Administration of Sentences) Act 1999 that the information provided to the Parole Board was misleading when the Board made a decision to revoke a parole order on the ground that the parole originally imposed was unconditional.
Robbery; demand money with menaces; + 11 matters on a Form 1.
3y with NPP of 12m on each charge (concurrent).
At the time the above sentences were imposed, applicant was serving a number of sentences of imprisonment. The above sentences were backdated to reflect pre-sentence custody. When applicant was released to parole, he twice reported as required by the conditions of parole, but then failed to report. The Parole Board had evidence that the applicant was not resident at his recorded address. After considering 2 probation & parole reports, the Parole Board revoked applicant's parole for breaches of the conditions. Applicant was returned to custody & there followed a review of the revocation order pursuant to s.174 of the Act. The Parole Board determined the order for revocation should stand.
Abuse of process- conditions of parole - false, misleading or irrelevant information.
Application dismissed pursuant to s.176(3).
415

LRS - CCA, 22.8.2001
Priestley JA, Sully J, Smart AJ
Citation: R v LRS [2001] NSWCCA 338
Crown appeal.
Maliciously inflict GBH with intent to do GBH - 3y GBB.
After drinking with the complainant for some time, respondent returned to complainant's home & they carried on drinking. Complainant invited respondent to look at some 'girlie pictures'& they were in the complainant's room, when the complainant grabbed respondent, pushed him onto the bed & tied up his left wrist & ankle with a piece of rope. Various sexual acts were perpetrated upon respondent. Respondent, in an attempt to be let free, asked complainant to untie him so he could properly participate in the acts. Complainant untied respondent, whereupon respondent attacked complainant, tied him up then proceeded to cut into the base of the complainant's penis, almost amputating it. No statement from complainant was tendered in court. Smart AJ stated 'It would have exposed him to cross-examination and possibly to self-incrimination'Respondent just under 18, complainant 43 at time of offence.
Sentence manifestly inadequate.
Appeal allowed: resentenced to 2y suspended sentence.
416

BAFFSKY, Wayne ( COMMISSIONER OF TAXATION v) - CCA, 7.9.2001 - 122 A Crim R 568
Spigelman CJ, Simpson J, Einfeld AJ
Citation: Commissioner of Taxation v Baffsky [2001] NSWCCA 332
Stated case.
2 x failure to furnish income tax return.
Appellant pleaded guilty to the charges & was fined one amount of $800 for the 2 offences. He appealed to DC, arguing the circumstances of the case such that it was appropriate to apply provisions of s.19B Crimes Act 1914 (Cth) & dismiss the charges. DC judge found the circumstances were such that s.19B should be applied & quashed the convictions. Following an application by the appellant, the DC judge submitted several questions of law to the CCA for determination pursuant to s.5B Criminal Appeal Act 1912 (NSW).
Revenue offence against the Commonwealth - factors to be considered in exercising discretion to dismiss a charge without proceeding to conviction - s.16A & s.19B Crimes Act 1914 (Cth) - whether irrelevant matters taken into account - whether failure to take into account or give sufficient weight to relevant matters - failure to pay provisional tax - bankruptcy - reduced motivation - delay in complying with notice from Tax Office - general deterrence.
Questions answered.
417

GARDNER, Guy - CCA, 25.9.2001
Sheller JA, Sully & Hulme JJ
Citation: R v Gardner [2001] NSWCCA 381
Conviction appeal.
Robbery.
Appellant pleaded not guilty to 4 counts of robbery alleged to have taken place at a branch of Westpac Bank. Part of Crown evidence at trial consisted of photographs taken by a bank security camera. Police officers gave evidence they were previously acquainted with appellant & separately nominated appellant as one of the persons in the photographs. Appellant objected to this evidence, however, trial judge admitted it. In the course of summing up to jury, Crown prosecutor made a comment on failure of appellant's mother to give evidence. Trial judge made a comment that, to clear up any confusion about identification, appellant could put on a jacket & cap & stand in the same position relative to jury as person in photographs.
Error in admitting identification evidence - failure to exclude evidence pursuant to s.137 Evidence Act - error in not discharging jury after Crown made comment contrary to s.20(3) Evidence Act - error in directing jury as to failure of appellant to provide a profile to the jury & to put on the jacket & cap.
Appeal allowed: new trial ordered.
418

JACKSON, Lloyd Jackson - CCA, 25.9.2001

Powell JA, Sully & Bell JJ

Citation: R v Jackson [2001] NSWCCA 387

Crown appeal pursuant to s.5F Criminal Appeal Act 1912 against an order for separate trials in respect of counts against each of 5 named persons. The Crown did not press for a joint hearing of all counts or proposed counts in respect of those 5 named persons, but indicated that it wished to proceed with a joint indictment relating to offences affecting only 3 of those persons.

Similar acts - prejudice to accused - tendency evidence - coincidence evidence - Court's discretion to order - whether discretion miscarried.

Appeal allowed: matter remitted to DC to be determined in accordance with law.

419

SANDNES, Tony - CCA, 25.9.2001
Powell JA, Sully & Bell JJ
Citation: R v Sandnes [2001] NSWCCA 385
Sentence appeal.
Manslaughter - 11y with NPP of 8*y.
Applicant originally charged with murder, but pleaded guilty to manslaughter. Applicant & accomplice, the grand-daughter of deceased, broke into the home of deceased who was a frail, sick, 80 year old man in bed. Their intention was to get money for drugs. Applicant, 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 - 1st lengthy period in gaol.
Guilty plea - discount - error in approach - appropriate range of sentencing - whether sentence excessive.
Thomson & Houlten, Ellis, Cartwright & Winchester referred to.
Appeal dismissed.
420

DONNELLY, Paul James - CCA, 5.10.2001
Giles JA, Wood CJ at CL, Simpson J
Citation: R v Donnelly [2001] NSWCCA 394
Conviction and sentence appeal.
Robbery with wounding.
MT 5*y, AT 2*y.
Appellant's co-offender hit the victim on the back of the neck, causing him to fall down. When he got up, the co-offender was holding a shortened baseball bat & demanded the victim's wallet & watch. When the victim refused, the appellant approached the victim, demanded the wallet & threatened the victim. The next thing victim recalled was waking up on the ground. He suffered a broken nose & a laceration on the back of his head. Blood with DNA matching that of the victim was found on the appellant's shoes, as well as a receipt from the victim's wallet.
Aged 26 at time of offence - Aboriginal - priors, including violent offences - previous imprisonment.
Fresh evidence - exculpatory evidence of 3rd party - cross-examination about persons to be called by defence - directions as to joint criminal enterprise - directions as to lies - unreasonable verdict - whether sentence excessive.
Appeal dismissed.
421

AMANATIDIS, Michael - CCA, 5.10.2001 - 125 A Crim R 89
Giles JA, Hulme J, Adams J
Citation: R v Amanatidis [2001] NSWCCA 400
Conviction appeal.
Supply heroin (deemed supply).
3y with NPP of 28m.
The heroin was in a cigarette packet in a locked car. Appellant had driven the car to where it was parked & was in possession of the car keys. Amount of heroin involved was 3 grams.
There was evidence of other keys to the car at appellant's house for the use of his daughter. There was also evidence that appellant's daughter had driven the car the previous night, that her regular brand of cigarettes was the same as the packet found in the car; that she had previously been convicted of possessing heroin & another drug offence; that also found in the car was a passport, a Medicare card & building society passbook in the name of appellant's daughter as well as men's & women's clothing & that at the time the car was searched, appellant had said 'be careful, that's my daughter's, she might have a syringe in her shirt'.
Knowledge - physical control or custody - whether verdict unreasonable.
Appeal allowed: conviction quashed.
422

ROBERTS, Bruce - CCA, 5.10.2001 - 124 A Crim R 60; 53 NSWLR 138
Giles JA, Howie J, Carruthers AJ
Citation: R v Roberts [2001] NSWCCA 163
Conviction appeal.
3 x indecent assault (fellatio); 2 x buggery; 1 x assault (grab testicles); 1 x procure act of indecency with another male person (pose naked for photographs).
Aggregate total of 10y with NPP of 7y.
Complainant was aged 7 to 10 years at times of offences charged. There was a delay of some 20 years before complainant first made complaint to authorities.
Longman direction - no request for direction - failure of Crown & defence counsel to fulfil duty to court.
Appeal allowed: new trial ordered.
423

NEK - CCA, 3.10.2001
Priestley JA, Sully J, Smart AJ
Citation: R v NEK [2001] NSWCCA 392
Conviction appeal.
5 x sexual intercourse with child under 16 under authority; 6 x assault with act of indecency; sexual intercourse without consent; 1 x AOABH.
Complainant was born in August 1976. Offences alleged to have occurred between September 1989 & April 1999. Complainant first told police about the alleged offences shortly after May 1999. The jury was directed to acquit on one count of sexual intercourse with child under sixteen. They returned a verdict of guilty on the count of sexual intercourse without consent & not guilty on the remainder of the counts. The appellant is the complainant's father.
Inconsistent verdicts - Markuleski [2001] NSWCCA 290 applied.
Appeal allowed: verdict of acquittal entered.
424

WILKS, Terrence George - CCA, 25.9.2001
Powell JA, Sully & Bell JJ
Citation: R v Wilks [2001] NSWCCA 383
Conviction appeal.
BE&S.
3y with NPP of 2y.
Appellant entered a residential premises & stole a substantial sum of cash & a fob watch. He pleaded guilty in the LC & was committed for sentence to the DC.
Miscarriage of justice in that despite plea of guilty, appellant should not have been convicted of any offence that incorporated 'breaking'as an element.
Appeal allowed: new trial ordered in the LC.
425

BLYTH, Maurice William - CCA, 8.10.2001
Mason P, Levine & Howie JJ
Citation: R v Blyth [2001] NSWCCA 402
Conviction and sentence appeal.
Knowingly take part in manufacture of prohibited drug (ecstasy).
5y with NPP of 2*y.
Following the execution of a search warrant, police discovered a laboratory for manufacturing drugs on the appellant's premises. Traces of substances used to create ecstasy were found on the appellant's clothing.
Aged 47 at time of offence - prior offences, including drug offences - previous imprisonment.
Whether error in not directing verdict of not guilty - alternative ground that conviction constituted a miscarriage of justice in that there was insufficient evidence to sustain a verdict of guilty.
Appeal dismissed.
426

BUJAROSKI, Lube - CCA, 9.10.2001
Hodgson JA, Dowd J, Smart AJ
Citation: R v Bujaroski [2001] NSWCCA 403
Conviction and sentence appeal.
Aid & abet fraudulent misappropriation.
3y with NPP of 2y 3m.
Appellant negotiated a loan for $65,000 which required the principal sum to be repaid in addition to an extra $10,000. Appellant's solicitor (the co-accused) also took part in the transaction. $65,000 was placed in the co-offender's Solicitor's Trust Account on the condition that it remain there. $62,720.92 was withdrawn from the trust account by the co-offender & $50,000 sent by telegraphic transfer to overseas solicitors by the appellant. Two amounts of $10,000 were repaid on the loan, however, no part of the principal was ever returned to co-offender's trust account.
Whether verdict unreasonable - whether open to jury to find appellant knew & understood contents of document which he signed - whether circumstantial evidence direction required - whether consideration of parity required reduction in sentence.
Conviction appeal dismissed.
Sentenced appeal allowed: resentenced to 2y with NPP of 19m PD.
427

SABELGUNST, Russell - CCA, 8.10.2001
Grove & Howie JJ
Citation: R v Sabelgunst [2001] NSWCCA 408
Sentence appeal.
Robbery; BE&S; malicious damage by fire; take & drive conveyance without consent; Form 1.
Aggregate total of 6y 9m with NPP of 3y 9m.
No facts about offences provided.
Aged 19 at time of offence - dysfunctional family - primary level of education - de facto relationship - unemployed - sexually abused as a child - drug use from early age - criminal activity to support drug habit - prior offences - previous imprisonment.
No matter of principle. Eager to demonstrate a law-abiding life - subjected to bashing & almost raped whilst in prison.
Appeal dismissed.
428

CUTHEL, Paul Steven - CCA, 10.9.2001
Sully J, Carruthers AJ.
Citation R v Cuthel [2001] NSWCCA 347
Sentence appeal.
Supply prohibited drug (lysergide); unauthorised possession of firearm (7.65 mm calibre Mauser self-loading pistol); attempt influence witness; + Form 1 matters (supply methylamphetamine; supply cannabis resin; possess stolen or unlawfully obtained money) - Aggregate total of 3y 8m with NPP of 2y 6m.
Police searched appellant's premises where they found a lunchbox containing 420 LSD tablets & an automatic handgun. While appellant was on bail, police intercepted telephone calls whereby appellant attempted to locate his ex de facto to prevent her from giving evidence against him.
Aged 33 at time of 1st offence - cannabis use - prior offences including drug offences - not previously imprisoned.
Totality - special circumstances.
Appeal dismissed.
429

TEUMA, Jason Raymond - CCA, 20.9.2001
Giles JA, Howie J, Carruthers AJ
Citation: R v Teuma [2001] NSWCCA 369
Sentence appeal.
1 x supply prohibited drug (cannabis leaf); + 2 matters on a Form 1 (possess amphetamines; goods in custody being $3,250 in cash).
3y with NPP of 1y.
Acting on information, police arrested appellant in a hotel car park. They searched the boot of his car & found 3 garbage bags containing 22 heat-sealed vacuum packed plastic bags of cannabis heads weighing approx 10 kgs (street value $30,000). During a search at the police station, 2 small bags containing approx 2 grams of amphetamine & $3,250 in cash were found in appellant's wallet. He claimed his role was to pick up the drugs & distribute them for which he was to receive $400 for each bag of cannabis. He refused to implicate any other persons.
Whether special circumstances - reliance upon JIRS statistics to argue sentence was manifestly excessive bearing in mind only a single episode of supply drugs - applicant said to be go-between.
Appeal dismissed.
430

FARLOW, Lyndsay Frances - CCA, 10.9.2001
Sully J, Carruthers AJ
Citation: R v Farlow [2001] NSWCCA 348
Sentence appeal.
12 x dishonestly obtain money by deception; + 13 offences on a Form 1.
Aggregate total of 4y with NPP of 2*y.
Appellant was employed as a clerical assistant at a university in NSW where she controlled payments for the Building & Grounds Department. She raised a large number of false purchase orders & invoices over an 8 year period by falsifying her superiors' signatures. Payments were made to a false company bank account which was set up & controlled by the appellant. Total amount of fraudulent transactions $480,970.
Aged 38 - young daughter with chronic illness in need of constant care - de facto relationship - secondary level education - abuse & traumatic childhood in dysfunctional family - need to protect & provide for 9 siblings - no relevant priors.
Special circumstances.
Appeal dismissed.
431

BARAKAT, Kassem - CCA, 14.9.2001
Sully J, Carruthers AJ
Citation: R v Barakat [2001] NSWCCA 366
Sentence appeal.
4 x BE&S.
Aggregate total of 3y with NPP of 2y 3m.
Offences were committed over a 4 day period. Appellant gained entry to a number of private dwellings by forcing locks or smashing windows. None of the stolen property was recovered.
Aged 33 at time of offences - migrated to Australia at age 21 - a sister the only other family member in Australia - other family members in Lebanon - family ashamed of appellant's behaviour - expressed a desire to return to Lebanon - emotional instability & depression - substance abuse - gambling addiction - on parole at time of offences - priors include property offences & offences of violence - previous imprisonment.
Special circumstances - public interest.
Appeal dismissed.
432

MURTAZA, Shahbaz - CCA, 4.9.2001
Hodgson JA, Dowd J, Carruthers AJ
Citation: R v Murtaza [2001] NSWCCA 336
Crown appeal.
1 x larceny as a clerk.
3y GBB.
Appellant employed by a computer equipment distributor as a computer systems operator with supervisory responsibilities. He disabled security video cameras in order to gain after hours access to the business premises. In all he stole computer equipment valued at approx $80,000. Well planned actions over an extensive period. All stolen equipment recovered.
Aged 23 - unstable marriage due to cultural differences - separated from wife - supporting 2 young children - heavily in debt due to gambling & alcohol addiction - no priors.
Whether too much weight given to subjective circumstances.
Appeal allowed: resentenced to FT 6m.
433

WALDEN, Brian Joseph - CCA, 14.9.2001
Sully J, Carruthers AJ
Citation: R v Walden [2001] NSWCCA 365
Sentence appeal.
2 x obtain money by deception; 2 x receiving.
Aggregate total of 2y 8m with NPP of 2y.
Appellant involved in rebirthing of 2 stolen prime movers. He was also associated with making false claims against an insurance company on the pretence that vehicles with which he had some connection were stolen.
Aged 43 - on recognizance at time of offences - business in financial trouble - prior property offences - previous imprisonment.
Extent of loss to owners/insurers not established at trial - alleged failure of trail judge to consider principle of totality.
Appeal dismissed.
434

TOOTH, William Richard - CCA, 10.10.2001
Grove & Howie JJ
Citation: R v Tooth [2001] NSWCCA 407
Sentence appeal.
2 x use false instrument.
Aggregate total of 4y with NPP of 2y.
Appellant used 2 stolen bank cheques to pay out 2 mortgages on a property he had purchased 2 years earlier (390,637.75 & $24,490). The paying banks refused to honour the stolen cheques & police were contacted. Appellant refused to answer questions regarding the stolen cheques.
Aged 46 - married - employed - on bail at time of offences - 20% discount for early plea - financial difficulties - remorse - prior offences of fraud, dishonesty - previous imprisonment.
Assistance to authorities - protective custody.
Appeal dismissed.
435

EL AZZI, William - CCA, 8.10.2001 - 125 A Crim R 113
Mason P, Levine & Howie JJ
Citation: R v El Azzi [201] NSWCCA 397
Application for leave to appeal against interlocutory judgment.
Knowingly take part in manufacture of large commercial quantity prohibited drug (methylamphetamine); conspire to manufacture prohibited drug (methylamphetamine).
Appellant allegedly involved in manufacture of drugs by playing the role of caretaker in relation to premises where the manufacture took place, providing finance for purchase of precursors used in the manufacturing process, participating in actual process of manufacture at one of the sites.
Abuse of process - conspiracy to commit the impossible.
Application for leave to appeal refused.
436

SCOTT, John Herbert - CCA, 15.10.2001
Grove & Bell JJ
Citation: R v Scott [2001] NSWCCA 418
Sentence appeal.
Supply prohibited drug (heroin).
4y 9m with NPP of 3*y.
This appeal followed a 2nd trial, the applicant having successfully appealed against conviction following the 1st trial.
Some 10 years had elapsed between the commission of the offence & the 2nd trial. No details of actual offence.
Guilty plea - long delay between offence & sentence - some factors favouring offender - comments by Crown prosecutor inspiring expectation - absence of specific reasons for disagreement - special circumstances.
Appeal allowed to shorten NPP: new NPP of 2y 8m.
437

BARTLETT, Graham David - NSW SC, Hidden J, 9.8.2001
Citation: R v Bartlett [2001] NSWSC 685
Remarks on Sentence.
Manslaughter.
Was charged with murder but pleaded guilty of manslaughter, accepted by the Crown in full discharge of the indictment on the basis of substantial impairment under s.23A Crimes Act.
Offender & deceased lived at a boarding house. On the evening of the killing, deceased went to offender's room to complain about the noise from offender's TV set. There was an altercation & offender attacked deceased with a hammer, striking him a number of times about the head. Deceased died 8 days later.
Aged 51 - suffering from personality disorder with schizotypal traits & chronic depression.
Sentenced to 8y with NPP of 4y.
438

MELROSE, Mary Ann - NSW SC, McClellan J, 31.8.2001
Citation: R v Melrose [2001] NSWSC 847
Remarks on Sentence.
Manslaughter (unlawful & dangerous act).
Charged with murder, pleaded guilty to manslaughter.
Offender stabbed her de facto in the shoulder during a violent argument. Earlier in the evening the deceased had assaulted the offender. Relationship characterised by violence over a long period of time.
Aboriginal - remorse & severe psychiatric reaction to killing - significant suicide risk - exceptional circumstances.
Sentenced to 4y GBB.
439

WHITFIELD, Jonathon Troy - NSW SC, Adams J, 5.10.2001
Citation: R v Whitfield [2001] NSWSC 876
Remarks on Sentence.
Murder.
Offender & 3 others armed themselves with knives & a metal handle broken off a shopping trolley, then went to deceased's home in order to rob him. Offender stabbed the deceased during a struggle. One wound passed through the left kidney, the others through the aorta & the right buttock. He was also struck very hard on the head with a blunt object, causing a fractured skull. Offender inflicted all stab wounds.
Aged 17 - lengthy criminal record - of Aboriginal heritage, identifies as Aborigine.
Sentenced to: 20y with NPP of 13y.
440

FOWLER, Geoffrey Warwick - NSW SC, Simpson J, 21.2.2001
Citation: R v Fowler [2001] NSWSC 179
Remarks on Sentence.
Murder.
The murder was committed in January 1988. The reason for delay was that offender had twice previously been convicted on the same charge but each time successfully appealed against the conviction.
Premeditated shooting of offender's brother-in-law. Offender believed the deceased was mistreating the offender's sister. Three shots involved, at least one fired by offender.
Aged 40 at time of offence, now aged 54 - prior good character - no significant criminal history.
Sentenced to: 10y 10m with NPP of 6y 10m. Having already spent 5y 1m 6d in custody for this offence, the offender faced an effective sentence of 16y with a NPP of 12y.
441

DENTON, Scott John - NSW SC, Howie J, 28.9.2001
GOSLING, Amos
SINGLETON, Paul David
Citation: R v Gosling, R v Denton, R v Singleton [2001] NSWSC 850
Remarks on Sentence.
Gosling - murder.
Denton - manslaughter.
Singleton - manslaughter.
The deceased was shot during an attack by 4 men as pay-back for alleged insulting behaviour of the deceased towards the mother of one offender. Offender's culpability somewhat reduced by a mental disorder. Manipulated by the son of the woman allegedly insulted.
Gosling: 16y with NPP of 12y.
Singleton: 8y 3m with NPP of 4y 9m.
Denton: 9y 3m with NPP of 5y 3m.
442

ESHO, Edward - CCA, 23.10.2001
SAKO, Thamir
Spigelman CJ, Simpson J, Smart AJ
Citation: R v Esho, R v Sako [2001] NSWCCA 415
Conviction and sentence appeals.
Esho: maliciously inflict GBH - 6y 8m with NPP of 5y; affray - FT 2y (concurrent).
Sako: maliciously inflict GBH - 5y with NPP of 3y 9m.
A number of men were accused of taking part in the slaying of Police Constable Carty outside a tavern in Fairfield. The primary charge Escho faced was murder, in the alternative maliciously inflicting GBH with intent to do so (s.33 Crimes Act). Sako was charged under s.33. Both men were acquitted of the charge under s.33 & convicted of its alternative under s.35.
Whether verdict under s.35 unreasonable having regard to acquittal under s.33 Crimes Act - whether directions inadequate - whether verdict unreasonable & not supported by evidence - doctrine of joint criminal enterprise - malice - ss.38(1), 38(2) & 192(2) Evidence Act - reliability of admissions - identification - parity - whether sentence manifestly excessive.
Appeals dismissed.
443

KEONG, Benny - CCA, 12.10.2001
Grove & Howie JJ
Citation: R v Keong [2001] NSWCCA 416
Sentence appeal.
6 x obtain benefit by deception (total $138,000); 2 x use false instrument (fraudulent cheques); + 2 x goods in custody on a Form 1.
4y with NPP of 3y.
Applicant was party to a scheme of banking stolen cheques by using false identities & then withdrawing the funds. A relatively sophisticated scheme using a number of accounts at various banks. Some cheques used were from a quantity stolen with a face value of over one million dollars. Other cheques were traced to accounts of persons having connections with the applicant. Police located 13 accounts in the name of the applicant at various banks.
Aged 35 - Malaysian national - does not speak English - received no visitors whilst on remand - regrets offences.
Failure to give sufficient weight to guilty plea - failure to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
444

TAYFUN, Ayan - CCA, 15.10.2001
Grove & Bell JJ
Citation: v Tayfun [2001] NSWCCA 417
Sentence appeal.
1 x BE&S; + 3 further offences on a Form 1.
3y with NPP of 2y.
No facts of offence given.
Aged 23 at time of offence - drug problem - medical condition - poor prospects of rehabilitation - prior property offences - previous imprisonment.
Submitted judge did not take into account the need for rehabilitation - not receiving appropriate treatment for medical condition - discount.
Appeal dismissed.
445

AIKEN, Luke - CCA, 8.10.2001
Grove & Howie JJ
Citation: R v Aiken [2001] NSWCCA 409
Sentence appeal.
Supply prohibited drug (methylamphetmine); + a Form 1 charge of possess cannabis.
2y with NPP of 18m.
No details of offence provided.
Aged 26 at time of offence - employed - de facto relationship - has young children - on bond at time of offence - priors include drug, property & driving offences, as well as an offence of violence - previous imprisonment.
Sought backdating of sentence to date from when taken into custody.
Appeal dismissed.
446

REED, Robert Gregory - CCA, 14.9.2001
Sully J, Carruthers AJ
Citation: R v Reed [2001] NSWCCA 364
Sentence appeal.
Possess offensive weapon (.22 calibre shortened firearm) with intent to commit indictable offence; + 4 additional charges on a Form 1 (possess shortened firearm; handle firearm under influence of alcohol; possess loaded firearm in public place; possess unlicensed firearm).
4*y with NPP of 2y 8m.
Victim was believed to have some months earlier behaved in a disgusting & offensive manner towards the appellant's mother. Appellant demanded an apology, victim attacked appellant who sustained serious injuries to the head. Appellant went home, obtained a .22 shortened rifle then went in search of the victim. He found him outside a hotel & took aim from the car. Victim seized 2 women standing nearby & used them as a shield. Appellant withdrew the rifle & victim ran away, appellant following. When victim entered another hotel, appellant gave up his attempt to harm the victim & voluntarily surrendered himself to police a short time later.
Special circumstances - mental illness.
Appeal allowed: resentenced to 4y with NPP of 2y.
447

SLOANE, Adam Claude - CCA, 3.10.2001 - 126 A Crim R 188
Wood CJ at CL, Studdert & Bell JJ
Citation: R v Sloane [2001] NSWCCA 421
Crown appeal.
Maliciously inflict GBH; + 2 x assault on a Form 1.
2y 11m PD, with a NPP period of 2y (65 days pre-sentence custody taken into account).
The maliciously inflict GBH was committed upon an off-duty police officer. The assaults were committed upon 2 other men in the course of the same incident. Sentencing judge expressed opinion that victims & witnesses had embellished their evidence & that in some way the incident had been provoked by the off-duty police officer in circumstances where he had been unduly affected by alcohol. No reasons were given for this opinion in the judge's summing up, however, he submitted a report to the CCA stating his reasons.
Whether sentence manifestly lenient where reasons for sentence inadequate - failure to make clear & explicit findings of fact - purpose of report of trial judge to CCA - whether sentence commensurate with objective gravity of crime - whether insufficient weight given to general deterrence - error of law - double jeopardy - rehabilitation - delay.
Appeal dismissed.
448

PERRIN, David John - CCA, 12.10.2001
Grove & Howie JJ
Citation: R v Perrin [2001] NSWCCA 422
Sentence appeal.
2 x armed robbery.
Aggregate total of 4*y with NPP of 2*y.
Applicant, aged 19, was watching videos when he decided to commit a robbery. Armed with a kitchen knife, he rode off on his brother's bicycle to a video store where he exposed the handle of the knife, whereupon staff opened the till & gave him approx $330. Early the following morning, again riding his brother's bicycle, there was almost a repeat of what had occurred the previous afternoon, however, this time McDonalds was the target. When applicant tried to flee the scene of this crime, staff members chased him, including one in a motor car. The applicant had a collision, then proceeded on foot, collided with a police officer, was able to persuade this officer he was visiting a friend & was not arrested. He was arrested some days later & pleaded guilty when charged.
Young offender - confession - discount for early guilty plea - contrition.
Appeal allowed: resentenced to aggregate total of 3*y with NPP of 1y 9m.
449

BOARDMAN, Scott Christopher - CCA, 19.10.2001
Grove & Howie JJ
Citation: R v Boardman [2001] NSWCCA 431
Sentence appeal.
Supply prohibited drug on an ongoing basis.
3y 9m with NPP of 2y 10m.
Applicant & his de facto each sold drugs to undercover police officers; the wife on four occasions, the applicant on three.
Error in finding of making a commercial profit - parity - error in taking into account transcript of conversation using listening device of future intention of supply when assessing criminality of charge actually brought against applicant.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
450

MBB - CCA, 12.10.2001
Dowd J, Smart AJ
Citation: R v MBB [2001] NSWCCA 354
Sentence appeal.
Aggravated sexual assault - 4y 9m with NPP of 2y 3m;
aggravated indecent assault - FT 2y (concurrent).
Appellant followed the 14 year old female victim as she was walking across a park. He was holding a knife & told her to go with him. She entered a toilet block & he followed, then he grabbed her & ran a hand over her body. The victim kneed him & grabbed his face. Appellant then ordered the victim to take off her pants & threatened her. Appellant rubbed victim's vagina then forced her onto her knees & placed his erect penis in her mouth.
Aged 16 at time of offence - remorse - rehabilitation - unstable family - no priors.
Appeal dismissed.
451

HANLEY, James Eugene - CCA, 12.10.2001 - 125 A Crim R 268
Dowd J, Smart AJ
Citation: R v Hanley [2001] NSWCCA 350
Sentence appeal.
Manufacture commercial quantity methylamphetamine; supply large commercial quantity methylamphetamine.
10y with NPP of 7*y.
Applicant & 3 co-accused were involved in a joint criminal enterprise. Premises owned by one of the co-accused was under police surveillance. Police searched the house & found a large amount of equipment & chemicals. Also found were 31 resealable plastic bags containing methylamphetamine, each bag weighing about one pound. In total, over 13 kgs of methylamphetamine were found.
Aged 46 at time of offences - on bail at the time - prior similar offence - unlikely to re-offend - generally of good character - prior drug & driving offences - previous imprisonment.
Sentences partially cumulative - whether excessive.
Appeal dismissed.
452

MARINELLIS, Nikolaos - CCA, 6.7.2001
Studdert & McClellan JJ
Citation: R v Marinellis [2001] NSWCCA 328
Sentence appeal.
2 x pervert course of justice.
Aggregate total of 20m with NPP of 12m.
Appellant had been charged with sexual assault. He visited an acquaintance & asked her to provide him with a false alibi. On a later occasion, he asked her if, for payment, she could organise for some of her friends to assert that the police had been stopping them & informing them that the appellant had raped a girl. He also approached another acquaintance asking her for similar help in return for payment.
Aged 33 at time of offences - personality disorder - under psychological pressure at time of offences - prior driving offence - no previous imprisonment.
Whether sentences manifestly excessive.
Appeal dismissed.
453

HAYES, Jon Charles - CCA, 10.10.2001
Grove & Howie JJ
Citation R v Hayes [2001] NSWCCA 410
Sentence appeal.
8 x sexual assault of person under 16; 3 x indecent assault.
Aggregate total of 6y with NPP of 4y.
Offences occurred between 1984 & 1985 upon 2 victims. No further details of offences provided.
Aged 42 at time of offences, now aged 59 - guilty plea - on bail and/or bond at the time of offences - prior sexual offence - no previous imprisonment.
Range - comment on published sentence statistics & their use - whether sentence excessive.
Appeal dismissed.
454

HELLYER, Dennis - CCA, 10.8.2001
Dowd J, Smart AJ
Citation: R v Hellyer [2001] NSWCCA 384
Sentence appeal.
1 x aggravated B&E with intent & maliciously inflict ABH; 1 x aggravated B&E with intent whilst armed with offensive weapon (large kitchen knife).
Aggregate total of 7y with NPP of 4y.
First offence involved applicant entering home of 71 year old female victim, tying her up & gagging her mouth. He took cash & rings he had forcibly removed from the woman's hand. Second offence involved applicant & co-accused entering the home of a 72 year old male victim & his 68 year old wife. Both applicant & co-offender were armed with knives. After forcing their entry into the house, they manhandled the male victim, he was threatened with a knife which was pushed up against his back. Offenders stole cash & jewellery.
Guilty plea entered at earliest opportunity - whether sentences excessive.
Appeal dismissed.
455

AULIFF, Martin Andrew - CCA, 25.9.2001
Powell JA, Sully & Bell JJ
Citation: R v Auliff [2001] NSWCCA 393
Conviction appeal.
1 x unlawfully cause to be taken a stupefying drug (flunitrazepam) with intent to commit sexual intercourse without consent.
4y with NPP of 2y.
Appellant also faced two other charges: assault & commit act of indecency (jury unable to agree on verdict); sexual intercourse without consent (not guilty verdict). Jury discharged without verdict on 2nd count.
Appellant & victim went to a restaurant together. At the restaurant, victim visited the toilet twice & after her 2nd trip, she felt weak & was unable to walk properly. She asked appellant to take her home. The last thing she recalled was appellant stroking the inside of her thigh whilst in the car. When she awoke at her premises the next day, her jewellery & contact lenses were missing, she was wearing a t-shirt & her underpants were stained with semen. A DNA test of the semen matched a blood sample taken from the appellant.
Whether inconsistent verdicts - whether formal order for separation of jury required.
Appeal dismissed.
456

ADAM - HC, 11.10.2001 - 207 CLR 96;75 ALJR 1537
Citation: Adam v The Queen [2001] HCA 57 (11 October 2001)
Appellant convicted of murder of off-duty police officer during scuffle outside hotel. Crown witness made statements to police supporting Crown case. It became clear at trial that the witness would give evidence unfavourable to the Crown. After a voir dire hearing, the judge gave leave under s.38 Evidence Act for the Crown to cross examine the witness on prior inconsistent statements. He also ruled that statements could be used as proof of facts asserted.
Whether error in admitting evidence of statements to police as evidence of truth.
Appeal dismissed.
457

MAILES, Graham - CCA, 19.10.2001 - 126 A Crim R 20; 53 NSWLR 251
Spigelman CJ, Wood CJ at CL, Greg James J
Citation: R v Mailes [2001] NSWCCA 155
Conviction appeal.
Murder - 25y with NPP of 18y.
Prior to appearing for trial, an inquiry was conducted into appellant's fitness to stand trial pursuant to Mental Health (Criminal Procedure) Act 1990 (NSW). He was found fit to stand trial. The question of his possible unfitness was again raised by counsel before the trial & on separate occasions during the trial, however, the trial judge declined to order a further fitness hearing.
Whether intellectually disabled offender (not suffering a mental illness) falls within scope of Mental Health (Criminal Procedure) Act - statutory interpretation - history of common law - whether issue of fitness raised in good faith - whether additional hearing should have been ordered - whether miscarriage of justice.
Appeal allowed: new trial ordered.
458

ATROUSHI, Safar - CCA, 12.10.2001
Giles JA, Howie J, Carruthers AJ
Citation: R v Atroushi [2001] NSWCCA 406
Conviction appeal.
1 x stalk with intent to cause fear of personal safety; 1 x possess loaded firearm in public place.
MT 3y, AT 1y.
The offences arose after the appellant, a Kurdish man, had asked his uncle for his daughter's hand in marriage. The uncle gave his consent provided his daughter was agreeable to the marriage. His daughter was not agreeable & subsequently married another man. She & her husband set up home together & the appellant continued to stalk, harass, threaten & intimidate, despite an apprehended violence order having been taken out against him.
Whether relationship evidence admissible - probative value of evidence - danger of unfair prejudice.
Appeal dismissed.
459

WJT - CCA, 8.10.2001
Mason P, Sully & Dowd JJ
Citation: R v WJT [2001] NSWCCA 405
Conviction appeal.
1 x buggery; 1 x sexual intercourse with child under 16 (14) - Sentence not stated.
Complainant was appellant's natural daughter. The buggery offence occurred some 3 years prior to sexual intercourse offence. Complaint was made some 13 or 14 years after the first offence occurred.
Delay in complaint - uncertainty, vagueness in allegations - relationship evidence - admissibility of complaint evidence - directions - whether error in not discharging jury after inadmissible evidence led on basis that jury would not have heard it - whether evidence of complainant's & mother's financial circumstances should have been allowed - whether verdict 'unsafe & unsatisfactory'.
Appeal dismissed.
460

McGARRY - HC, 24.10.2001 - 207 CLR 121; 75 ALJR 1682
Citation: McGarry v The Queen [2001] HCA 62 (24 October 2001)
Appeal from Western Australia against order made by Judge for indefinite imprisonment.
Long history of sexual offences against children.
Sentencing - indefinite imprisonment - conditions for making order - sufficiency of material to support conclusion that an order for indefinite imprisonment could be imposed - whether HC should substitute order or remit matter for re-sentencing in the SC.
Appeal allowed: para.3 of the order of the CCA of WA set aside & in lieu thereof order that the order for indefinite imprisonment be quashed.
461

SOTHEREN, Darren James - CCA, 24.10.2001
Beazley JA, Wood CJ at CL, Carruthers AJ
Citation: R v Sotheren [2001] NSWCCA 425
Crown appeal.
1 x manslaughter; 2 x aggravated robbery inflicting GBH; 3 x aggravated robbery (maliciously inflict ABH).
Aggregate total of 7y with NPP of 4*y.
The offences were committed upon 6 different victims over a 24 hour period. One victim died 3 days after the attack upon him. All other victims, including a taxi driver, suffered severe injuries. During the relevant period, respondent had injected himself with a considerable quantity of amphetamines.
Mistaken regard to maximum available penalty for 5 robbery offences - failure to give sufficient weight to fact that offences were committed whilst on parole - failure to impose adequate sentence in respect of taxi driver - error in treating respondent's state of drug intoxication as mitigating factor - error in giving insufficient weight to impact on victims of the crime - failure to impose sentence in proportion with objective gravity of crimes & subjective features of the respondent.
All grounds made out.
Appeal allowed: resentenced to aggregate total of 12y with NPP of 6y.
462

SEEVOLA, Reno Guerino - CCA, 19.10.2001
Grove & Howie JJ
Citation: R v Seevola [2001] NSWCCA 430
Sentence appeal.
Supply prohibited drug (cocaine) on 3 separate occasions contrary to s.25A Drug Misuse and Trafficking Act; supply prohibited drug (cocaine) contrary to s.25; + unlawful possession of property taken into account ($400, alleged to be proceeds of drug sales).
Aggregate MT 2y 9m, AT 1*y.
The charges arose following a police operation conducted pursuant to the Law Enforcement (Controlled Operation) Act 1997.
Early guilty pleas - drug habit.
Whether discount was applied only to MT - whether sentence manifestly excessive - failure to give sufficient credit for early plea of guilty.
Appeal dismissed.
463

GK - CCA, 16.10.2001 - 125 A Crim R 315; 53 NSWLR 317
Mason P, Sully & Dowd JJ
Citation: R v GK [2001] NSWCCA 413
Questions of law.
The questions arose out of the trial of GK in September 1999 on charges of sexual assault involving his step-daughter. At trial, the Crown sought to prove that GK was the father of the complainant's baby by tendering evidence of certain DNA testing. Objection was taken to this evidence under s.137 Evidence Act 1995. Following a voir dire, the trial judge limited admissibility to evidence that the testing did not exclude the possibility of paternity. He refused to allow evidence of likelihood or the percentage of probability of paternity.
At a subsequent trial in February 2000, the Crown sought to lead evidence of further DNA testing which had been carried out since the 1st trial. A voir dire was conducted in which experts called by the Crown gave evidence about the interpretation of the DNA testing. The trial judge held that legal principles required him not to disturb the exercise of the discretion from that which was exercised by the trial judge in the 1st trial. He ruled that 'there should not be arithmetical figures put before the jury'This 2nd trial aborted & a 3rd was conducted on the basis of the rulings in the 2nd trial. The jury finally returned a verdict of not guilty upon all 8 counts in the indictment.
Evidence - Bayes' Theorem - whether probative value outweighed by risk of unfair prejudice - 'prosecutor's fallacy'.
'Question 1: Where a trial judge makes a discretionary ruling on the admissibility of certain evidence is a trial judge at a subsequent trial following a failure by the first jury to agree on its verdict bound to follow that ruling with respect to the admissibility of the same evidence? Answer: No.
Question 2: Was his Honour Judge Moore in error in refusing to admit evidence of the probability, in numerical terms derived from DNA testing, that ..... (GK)..... was the father of the complainant's child, on the basis that there was a real risk of unfair prejudice to the accused? Answer: Yes as to Paternity Index Statistics, No as to Relative Chance of Paternity Statistics'.
464

SINGH, Gurinder - CCA, 12.10.2001
Grove & Howie JJ
Citation: R v Singh [2001] NSWCCA 424
Sentence appeal.
1 x supply commercial quantity methylamphetamine; supply heroin; supply methylamphetamine; supply cocaine; + 2 matters on a Form 1 (supply heroin, possess cannabis).
Aggregate total of 5y with NPP of 3y.
The charges arose from police investigations of the supply of drugs through a caf* in Kings Cross over a 2 month period. Drugs were stored in the office of the premises & distributed by staff members. Orders were placed on behalf of the caf* from various suppliers. During the police operation, evidence was obtained against the applicant by means of intercepted telephone calls & surveillance using an undercover operative. The applicant was the supplier to the caf*, selling the drugs in large amounts at cost price.
Parity - whether failure to adequately reduce NPP to reflect finding of special circumstances.
Appeal dismissed.
465

POIHIPI, Phillip - CCA, 16.8.2001
Mason P, Sully J, Newman AJ
Citation: R v Poihipi [2001] NSWCCA 306
Crown appeal.
8 x robbery in company; attempt robbery in company; AOABH.
Aggregate total of 3y with NPP of 5m.
Victims were confronted by 3 offenders, one of whom was the respondent. They were threatened & robbed of their mobile phones & other valuables. The respondent's role was to appear dangerous so that the victims would part with their property, however, he participated more actively in the robberies. The AOABH arose when a co-offender hit one of the victims over the head with a baton, after which the respondent punched the victim 4 or 5 times.
Aged 19 at time of offence - mildly intellectually handicapped - full confession upon arrest - volunteered information for crimes on which evidence was not available - genuine remorse - offences committed to obtain money to buy drugs - fears for safety whilst in gaol - prospects of rehabilitation - prior larceny offences - no previous imprisonment.
Appeal dismissed.
466

YOUNG, Jason Raymond - NSW SC, Taylor AJ, 3.9.2001
Citation: R v Young [2001] NSWSC 942
Remarks on Sentence.
Manslaughter.
Offender charged with murder, pleaded guilty to manslaughter in full discharge of indictment.
Crown alleged that the assault, which resulted in the death of the deceased, was part of an attempted robbery of the deceased. The offender maintained that the assault arose in circumstances other than an attempted robbery in that he thought the deceased said something to which the offender took exception. He punched & kicked the deceased who died shortly afterwards. The offender was in company with Junior Vaa Mamae, who also kicked the victim (see R v Mamae [2001] NSWSC 936).
Joint criminal enterprise - co-operation with authorities - youth - special circumstances.
Sentenced to: 6y with NPP of 4y.
467

MAMAE, Junior Vaa - NSW SC, Taylor AJ, 4.10.2001
Citation: R v Mamae [2001] NSWSC 936
Remarks on Sentence.
Manslaughter.
Offender was arraigned on a charge of murder; in the alternative, aggravated assault with intent to rob. During the course of the trial, the Court granted leave to the Crown to withdraw the alternative charge as it would have been too confusing for the jury. The jury returned a verdict of not guilty to murder, but guilty of manslaughter.
See also R v Young [2001] NSWSC 942.
Joint criminal enterprise - lesser role in the attack - special circumstances.
Sentenced to: 6y with NPP of 4y.
468

SANTOS, Roberto - NSW SC, Levine J, 12.10.2001
Citation: R v Santos [2001] NSWSC 923
Remarks on Sentence.
Manslaughter.
Charged with murder, pleaded guilty to manslaughter in full satisfaction of indictment. Substantial impairment by abnormality of mind.
Offender believed the deceased was having a relationship with his (the offender's) estranged wife. He stabbed deceased 21 times, some of the stab wounds being compression wounds, i.e. requiring compression against the deceased's body in order for the blade to penetrate to the depth it did.
Sentenced to: 7y with NPP of 5y 3m.
469

BROWN, Keith - CCA, 12.9.2001
Sully J, Carruthers AJ
Citation: R v Brown [2001] NSWCCA 367
Sentence appeal.
2 x supply (deemed) prohibited drug (methylamphetamine); + 2 further drug matters on a Form 1.
4y with NPP of 2y on 1st count of deemed supply; 5y with NPP of 3y on count 2.
Police stopped & searched applicant's car. They found a set of scales, a foil containing white powder (27.5 grams methylamphetamine) & a large number of resealable bags. Some months later, police stopped a car in which applicant was a passenger. A search revealed a white shopping bag on the front seat. The bag contained an 'M & M'packet filled with cannabis & a box with a plastic resealable bag with white powder (22.8 grams methylamphetamine).
Rehabilitation - failure to take pre-sentence custody into account.
Appeal allowed: resentenced to 4y with NPP of 2y on each count to be served concurrently.
470

KNIGHT, John Adrian - CCA, 5.9.2001 - 123 A Crim R 377
Bell & Howie JJ, Smart AJ
Citation: R v Knight [2001] NSWCCA 344
Conviction and sentence appeal.
Count 1: wound with intent to murder;
Count 2: malicious wounding with intent to prevent lawful apprehension (in the alternative);
Count 3: malicious wounding;
Count 4: detain for advantage.
Appellant pleaded guilty to counts 3 & 4, which the Crown accepted in full discharge of the indictment.
3*y with NPP of 6m on each count (concurrent).
Appellant was being investigated for fraud. He was approached by a female police officer when leaving a bank & asked to answer some questions. A struggle ensued & the appellant took hold of the police officer, then produced a knife. The police officer was cut on the back of the neck. Appellant then held the knife to the front of the officer's throat, threatening to kill her. Appellant left the bank with the officer & continued down the road. He released her a short distance away from the bank.
Aged 51 at time of offences - bi-polar disorder - pre-sentence custody - priors for fraud & dishonesty offences - previous imprisonment.
Withdrawal of guilty plea - special circumstances.
Conviction appeal dismissed.
Sentence appeal dismissed on count 4; allowed on count 3: resentenced to FT 12m.
471

WHITE, Angela - CCA, 3.9.2001
Bell & Howie JJ, Smart AJ
Citation: R v White [2001] NSWCCA 343
Sentence appeal.
5 x impose upon Commonwealth (Social Security fraud).
1. 18m with NPP of 9m.
2. FT 6m (concurrent).
3. (x 2) FT 3m (concurrent).
4. FT 1m (concurrent).
Appellant had claimed & received benefits over the years from the Department of Social Security in the name of her mother, to which she was not entitled. The total amount obtained was $41,179.79.
Aged 23 at time of 1st offence - good character - repaying debts to Commonwealth - single mother with a son - hardship to son - served 2m 3w of sentence before being granted bail - no priors.
Exceptional circumstances - utilitarian value - Thompson & Houlton considered.
Appeal allowed on 4 of the counts, resentenced to: 1. 12m PD, recog 3m; 2. FT 3m PD; 3. FT 2m 3w.
472

SALGADO-SILVA, Salvador - CCA, 28.9.2001 - 126 A Crim R 1
Heydon JA, Wood CJ at CL, Carruthers AJ
Citation: R v Salgado-Silva [2001] NSWCCA 423
Sentence appeal.
Import commercial quantity cocaine.
17y with NPP of 13y.
Applicant & co-offender entered Australia, purportedly as cameraman & assistant cameraman to do recording preparation for the Olympic Games in Sydney on behalf of the NBC. They had video recording equipment with them. A search revealed white powder contained inside some batteries - 12.862 kgs cocaine, 63% purity (8.105 kgs pure cocaine).
Whether applicant sentenced for participating at an incorrectly high level in the organisation - whether NPP excessive - whether a worst case.
Appeal allowed: Head sentence confirmed. NPP reduced to 11y 4m.
473

JANDO (Principal Registrar of the Supreme Court of NSW v) - NSW SC, Studdert J, 15.10.2001 - 125 A Crim R 473
Citation: Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969
Judgment on declarations and orders.
Contempt of Court.
Defendant was interviewed by police. He said that what he had told them was correct & that he would be willing to go to court to give evidence against an offender. He subsequently signed an undertaking to give evidence at the trial of that person in relation to armed robbery offences. Defendant subsequently appeared before a magistrate in the Children's Court charged with 6 robbery offences & a further offence of robbery in company. He was sentenced to a period of control of 1y 3m for the robbery offences & a further period of control of 9m (cumulative) for the robbery in company offence, with a 2m NPP for the latter offence. In imposing those sentences, the magistrate indicated he had given credit in aggregate of 6 months after taking into account the undertaking to give evidence. In the course of the trial in the DC of the offender against whom the defendant gave an undertaking to give evidence, the defendant declined to give any evidence & the judge charged him with contempt of court.
Threats - reprisals.
Declarations made as sought; order made for costs; defendant sentenced to 12m PD; liberty to apply on 48 hours' notice concerning the commencement date of each sentence.
474

WHAITES, Gary Wayne - CCA, 17.10.2001
Wood CJ at CL, Grove J
Citation: R v Whaites [2001] NSWCCA 426
Sentence appeal.
1 x threaten to inflict ABH by means of offensive weapon with intent to have sexual intercourse.
MT 4y, AT 2y.
Offence committed in 1987 upon a female Swedish tourist.
13 year delay caused by appellant absconding & receiving interstate sentence for further serious offences - whereabouts not appreciated by NSW authorities - released for extended period after serving interstate sentences.
Guilty plea - error in not taking into account - totality.
Appeal allowed: resentenced to: 5y with NPP of 2y 10m.
475

KANAAN, Michael - NSW SC, Greg James J, 31.10.2001
Citation: R v Kanaan [2001] NSWSC 959
Remarks on Sentence.
2 x murder; 1 x malicious wounding with intent to do GBH.
Evidence of the offences was given at trial by an associate of the accused. He said that 2 people were having an altercation outside a hotel in Five Dock when the accused & his associates were passing by in a car. The accused made a remark to them & one of the men, the victim of the malicious wounding, came over to the car & attempted to punch the associate. The accused then left the car & shot the two deceased at point-blank range. The man who had come to the car was shot in the shoulder. The accused then attempted to fire his gun at this man a number of times but the gun did not discharge. There was no suggestion that either of the deceased had given any provocation or presented any danger or impediment to the accused. The two deceased died the day after the shootings.
Aged 26 at time of sentencing - prior conviction for common assault - prospects of rehabilitation or recidivism - general deterrence - community protection.
Sentenced to life for each of the murder offences; 25y for the malicious wounding offence.
476

O'sULLIVAN, Michael John - NSW SC, Hulme J, 7.9.2001
Citation: R v O'sullivan [2001] NSWSC 772
Application under ss.474D & 474E Crimes Act, seeking an enquiry into convictions & sentences imposed & that that enquiry be referred to the CCA.
Supply prohibited drug (heroin) (s.25(1) Drug Misuse and Trafficking Act 1985); administer prohibited drug (s.12(1).
Applicant was sentenced in the LC to 6m imprisonment on the 1st charge & 3 months on the 2nd charge. On appeal to the DC, the sentences were changed to a 2y deferred sentence for the 1st offence & 10m PD for the 2nd offence.
Whether sufficient doubt as to guilt to warrant enquiry.
Application for enquiry granted. Matter to be referred to the CCA.
477

SHARP, Brett Francis - NSW SC, O'Keefe J, 27.9.2001
Citation: R v Sharp [2001] NSWSC 842
Redetermination of life sentence.
Murder - life; sexual intercourse with female without consent - 7y (concurrent).
Applicant in custody for almost 13* years.
Offences were committed when the applicant was aged 19 years. The deceased was the same age. Applicant followed the female from a club late at night. He forced anal & vaginal intercourse on her in a school playground. Applicant repeatedly banged deceased's head against a pavement & cut her throat to prevent apprehension. He was heavily under the influence of drugs and alcohol at the time.
Protective custody - educational & other courses undertaken - good prison reports - risk of re-offending low - need for time to prepare applicant for civilian life - need for period of supervision in civilian life after release.
Application allowed: sentenced to 21y with NPP of 16y.
478

DOVER, Craig Scott - CCA, 11.10.2001
Stein JA, Studdert & Greg James JJ
Citation: R v Dover [2001] NSWCCA 412
Conviction appeal.
Malicious wounding with intent to do GBH.
MT 5y, AT 2y 4m.
Appellant, during the course of a drug transaction, pulled up his car alongside the car in which the victim was seated, then shot the victim in the face at close range. The victim's credibility was attacked during the trial & the victim did not identify who shot him when first interviewed by police. Appellant did not give evidence at trial.
Directions to jury regarding election of appellant not to give evidence:- (i) ...'accept more readily the complainant's evidence'; (ii) ...'any doubt' as to complainant's evidence could be 'more readily discounted'; (iii) The direction implied 'denial or contradiction' may not be available to the appellant.
Appeal allowed: new trial ordered.
479

LORENZO, Christopher Anthony - CCA, 27.9.2001
Powell JA, Sully & Bell JJ
Citation: R v Lorenzo [2001] NSWCCA 389
Sentence appeal.
Murder.
MT 17y, AT 5*y.
Female victim returned home & was savagely beaten by intruders who had gained access through an open upper storey door. She was taken upstairs & further attacked, suffering major lacerations, fractured skull & brain damage. She was gagged & tied, then finally strangled. A diamond engagement ring, a sapphire dress ring, a watch & gold bracelet were removed from her body. Her handbag, wallet & a gym carry bag were also taken.
Aged 33 at time of offence - on parole at the time - assistance to authorities - sentence served in protection - pre-sentence custody referable to previous or current offences - prior property offences as well as offences of violence - previous imprisonment.
Totality - protection prisoner - special circumstances.
Appeal dismissed.
480

AJC - CCA, 6.8.2001
Dowd J, Smart AJ
Citation: R v AJC [2001] NSWCCA 388
Sentence appeal.
4 x indecent assault against child under 16 (s.76 Crimes Act, now repealed); 1 x act of indecency (s.81, now repealed); 2 x aggravated act of indecency.
Aggregate total of 3y 4m with NPP of 3y.
Sexual abuse of applicant's daughter, son & stepdaughter.
Aged 26 at time of 1st offence; now aged 54 - good rehabilitation - priors include wilful obscene exposure - not previously imprisoned.
Whether sentence manifestly excessive.
Appeal allowed: sentenced to aggregate total of 3y 4m with NPP of 2*y.
481

CB - CCA, 3.10.2001 - 125 A Crim R 284
Wood CJ at CL, Studdert & Bell JJ
Citation: R v Best [2001] NSWCCA 401
Crown appeal.
Maliciously inflict GBH - 2y control order suspended with 2y GBB;
AOABH - 12m control order, suspended with 12m GBB (concurrent).
Form 1 matters included common assault, AOABH.
Victim was respondent's 2 month old baby daughter. When the baby wouldn't stop crying, respondent shook her, leaving her dazed, with her eyes rolling back in her head. A few days later, while the baby was crying & kicking, one of the kicks landed on the respondent so he punched the baby to the side of her head with his fist. As a result of both incidents, the baby suffered serious injuries adversely affecting areas of learning, language & cognitive thinking, with the possibility of cerebral palsy developing.
Aged 17 at time of offence - no priors.
Whether sentence manifestly inadequate.
Appeal allowed: matter remitted to DC for sentencing according to law.
482

MARTIN, Shane Leslie - CCA, 26.10.2001
Spigelman CJ, Studdert J, Ireland AJ
Citation: R v Martin [2001] NSWCCA 442
Crown appeal.
Multiple armed robberies.
8y with NPP of 6y (concurrent with sentences already being served).
Respondent was sentenced by one judge for 12 counts of armed robbery & one count of attempt armed robbery within a period of approx 3 months. He was later sentenced by another judge for an additional 8 counts of armed robbery taking place within the same time-frame. The second set of sentences were made concurrent with the first set of offences, effecting no increase in punishment.
Failure to increase penalty held to be erroneous.
Appeal allowed: sentences restructured & made partly concurrent, partly cumulative, thereby effecting an increase of 18m.
483

TAN, Chiap Nam - CCA, 24.10.2001
Spigelman CJ, Studdert J, Ireland AJ
Citation: R v Tan [2001] NSWCCA 438
Sentence appeal.
Possess commercial quantity methylenedioxymethamphetamine (ecstasy) reasonably suspected of having been imported.
15y with NPP of 9y.
Applicant was arrested following the Australian Federal Police conducting an investigation concerning members of a Singaporean & Chinese syndicate allegedly responsible for shipping narcotics to Australia, Canada, the USA & Europe. 46,229 tablets of ecstasy (approx 6.15 kgs), with an estimated street value of approx A$2.5 million were found in a suitcase which was seen to be taken by the applicant & left at premises which were subsequently searched by police.
Guilty plea at earliest opportunity - aged 46 at time of sentencing - Singaporean national - unemployed - prior employment as cook, car salesman, manager in textile industry - married - not a principal in drug syndicate - middle man - 20% discount given for guilty plea - strong Crown case.
Inappropriate consideration to plea of guilty - ecstasy a 'middle range'drug - prior good character - whether sentence excessive.
Appeal dismissed.
484

DONCEV, Kosta - CCA, 1.11.2001
Spigelman CJ, Studdert J, Ireland AJ
Citation: R v Doncev [2001] NSWCCA 440
Conviction appeal.
Possess trafficable quantity methylenedioxymethamphetamine (ecstasy)
6y with NPP of 3y.
Police seized a parcel which had been sent from The Netherlands. The parcel contained two photograph albums. The ecstasy was concealed inside the back & front covers of the albums. Police then proceeded with a controlled delivery.
Error in admitting evidence of transfer of funds overseas - error in refusing to allow further cross examination of a witness - error in failure to direct as to lies.
Appeal dismissed.
485

BONEY, Trevor - CCA, 19.10.2001
Wood CJ at CL, Grove J.
Citation: R v Boney [2001] NSWCCA 432
Sentence appeal.
1 x armed robbery; + Form 1 containing 1 x take & drive conveyance.
3y with NPP of 18m.
Applicant & co-offender (applicant's younger brother) entered premises of a woolbroking company, the co-offender carrying a screwdriver behind his back. The co-offender asked the victim whether he had $2. Victim replied in the negative. Applicant then took the screwdriver from co-offender & threatened to stab the victim. The victim opened his wallet, took out $35 & handed it over. Co-offender then took the wallet & searched it for further money. At the same time, applicant asked victim where the safe & money bag were. Victim said there was no safe & he did not know if there was a money bag. When applicant & co-offender left the premises, applicant apologised to the victim. Both applicant & co-offender initially declined to be interviewed by police. Each subsequently pleaded guilty to the offence.
Co-offender received 100h CSO in the Children's Court. Applicant had a long criminal history - co-offender also had record - offence committed whilst applicant on parole & co-offender subject to conditional liberty - applicant had long history of substance abuse - co-offender had minor record of recreational drug use - 18 months difference in age.
Parity - whether sentence manifestly excessive - whether justifiable sense of grievance.
Appeal allowed: resentenced to 2*y with NPP of 1y 3m.
486

P - CCA, 5.10.2001
Wood CJ at CL, Studdert & Bell JJ
Citation: R v P [2001] NSWCCA 404
Application pursuant to s.5F Criminal Appeal Act.
2 x solicit to murder.
Appellant was charged with soliciting a person to murder his ex de facto wife & her partner. Trial judge allowed audio tape & transcripts into evidence.
Trial judge ruling - audio recorded evidence - whether transcripts inadmissible due to poor quality.
No jurisdiction under ss.5F, 5F(3)(a), 5F(3)(b) Criminal Appeal Act 1912 (NSW).
Appeal dismissed.
487

SMITH, David Charles - CCA, 15.10.2001
Grove & Bell JJ
Citation: R v Smith [2001] NSWCCA 420
Sentence appeal.
Maliciously inflict GBH; + breach of AVO on a Form 1 taken into account.
4y with NPP of 3y.
Applicant, armed with 2 knives, attacked his estranged wife in the driveway of her parents' home. He pushed her face onto the ground a number of times, then dragged her to a cyclone mesh fence & pushed her face against it a number of times. He then dragged her to her parents' front door. After smashing the front door, he banged her head against the floor a number of times.
Aged 37 at time of offence - Aborigine - depression - steady employment - protective custody as he worked as an Aboriginal prison officer - priors include property, driving & violent offences - not previously imprisoned.
Utilitarian value of plea - Thomson & Houlton - special circumstances.
Appeal allowed: resentenced to 4y with NPP of 2y.
488

TAUFUA, David Uaine - CCA, 11.10.2001
Stein JA, Studdert & Greg James JJ
Citation: R v Taufua [2001] NSWCCA 411
Sentence appeal.
1st indictment: 3 x armed robbery; 1 x assault with intent to rob - FT 5y.
2nd indictment: 3 x shoot with intent to prevent apprehension; firing a firearm in manner likely to injure persons or property; 2 x use offensive weapon with intent to prevent lawful apprehension; 1 x detain person for advantage (kidnapping); + Form 1 offences: larceny, possess firearm, take & drive conveyance without consent - aggregate total of 10y with NPP of 5y (cumulative upon FT for charges in 1st indictment).
Aggregate total of 15y with NPP of 10y.
Offences in 1st indictment involved robbing a building society. The use offensive weapon with intent to prevent lawful apprehension occurred when police tried to speak to him. Applicant then went to a hotel, put a pistol to a man's head & forced him to get into a truck & drive away with the applicant. During the ride, applicant leaned out the passenger's window, pointed the pistol at 2 following police officers, then pulled the slide mechanism which didn't release. When the truck stopped, he discharged one round in the direction of the police vehicles. Later he fired another round into an adjacent block of flats. He left the truck together with the civilian victim & entered a pharmacy. Staff & customers fled. He told the victim to search for syringes & help him remove a white substance with which he injected himself. Victim was released in return for cigarettes.
Aged 26 at time of 1st offence - heroin addiction - suicidal at time of 2nd offence - long criminal history - on bail at time of offence - intellectual functions at low level - disadvantaged upbringing - priors include driving, property & violent offences - previous substantial imprisonment.
Different tellers menaced in one incident - whether an abuse not to charge as only one offence.- whether error in way in which sentences are accumulated - culpability of offences - totality - whether sentences manifestly excessive.
Appeal dismissed.
489

HELMHOUT, Mark - CCA, 19.9.2001 - 125 A Crim R 257
Ipp AJA, Hulme & Sperling JJ
Citation: R v Helmhout [2001] NSWCCA 372
Conviction appeal.
Murder.
18 with NPP of 13*y.
Admissibility of confession - Pt 10A Crimes Act 1900 - police powers to detain persons under arrest for periods of time in order to enable involvement in commission of offences to be investigated - vulnerable persons - requirement to comply with cl.28 Crimes (Detention After Arrest) Regulation.
Whether, in determining whether evidence obtained in contravention of cl.28 should be admitted pursuant to s.138 Evidence Act, trial judge should have had regard to particular characteristics of Aboriginal person from whom evidence was obtained in order to assess that person's capacity to deal adequately with police questioning in the absence of legal representation.
Appeal dismissed.
490

WISBEY, Tony - CCA, 17.10.2001
Wood CJ at CL, Grove J
Citation: R v Wisbey [2001] NSWCCA 434
Sentence appeal.
Sexual intercourse with child under 16; + an offence of aggravated indecent assault also taken into account; + sexual offences on 51A document.
Aggregate total of 5*y with NPP of 3*y.
Both offences committed upon a 13 year old boy. When the matter came before the DC judge in November 1999, it was stood over by way of a Griffiths remand until May 2000 to enable applicant to develop a co-operative relationship with a counsellor in order to address his problems & to prove himself to the court. He was required, as a condition of bail, to accept the reasonable directions of the Probation and Parole Service in relation to counselling & therapy. The matter had previously been adjourned for 6 months for a similar purpose. When the matter came back before the DC judge in May 2000, it was apparent that the applicant had not co-operated in relation to counselling & his bail was rescinded. He came before the court for sentence in July 2000, at which time there were three other offences on a s.51A document: 2 offences committed upon another 13 year old boy, one offence upon an 8 year old boy. These 3 offences occurred whilst the applicant was on bail for the offence in the indictment.
Accumulated sentence - whether sentence manifestly excessive - whether too much weight given to general deterrence.
Appeal dismissed.
491

ANDREWS, Robert Murray - CCA, 12.10.2001
Grove & Howie JJ
Citation: R v Andrews [2001] NSWCCA 428
Sentence appeal.
Aggravated sexual intercourse without consent; AOABH.; + 3 deemed supply prohibited drug taken into account (cannabis, cocaine & amphetamine) - Aggregate total of 6y with NPP of 4*y.
Sexual intercourse & AOABH offences were committed upon applicant's de facto. The aggravating feature in the sexual intercourse charge was that he threatened to kill her if she did not perform fellatio upon him.
Aged 30 - prior record, including drug offences - previous imprisonment.
Discussion on seriousness of particular form of sexual act.
Special circumstances.
Appeal dismissed.
492

FULLER, Terrence James - CCA, 26.9.2001
Heydon JA, Wood CJ at CL, Carruthers AJ
Citation: R v Fuller [2001] NSWCCA 390
Conviction appeal.
Carnal knowledge of person under 16 - 16m with NPP of 12m.
Appellant was tried on 13 counts of sexual offences. The jury returned verdicts of not guilty on all but one count. Appellant was the de facto husband of the 14 year old complainant's aunt. While the complainant was staying at her aunt's house, complainant went to sleep & awoke to find that her underwear had been pulled down & the appellant lying naked on top of her. He then proceeded to put his penis in her vagina. Appellant was interrupted when complainant's aunt entered the room.
Inconsistent verdicts - credit of complainant - delay in complaint - inadequate directions.
Appeal dismissed.
493

SCHMAKOWSKI, Reinhard - CCA, 28.9.2001
Heydon JA, Wood CJ at CL, Carruthers AJ
Citation: R v Schmakowski [2001] NSWCCA 395
Sentence appeal.
Import trafficable quantity ecstasy - 8y with NPP of 4y 9m.
A body pack containing ecstasy was found by members of the Australian Customs Service during a frisk search of applicant at Sydney Kingsford-Smith Airport. Arrangements were made for applicant to take part in a controlled delivery. The pure quantity of the drug was 410 grams with a wholesale value of approx $240,000.
German citizen - aged 43 - no prior convictions - resident of Indonesia.
Whether sentence manifestly excessive - whether failure to take into account utilitarian value of plea, assistance to authorities & contrition - whether starting point of sentence too high - consideration of objective & subjective circumstances.
Appeal dismissed.
494

TJH - CCA, 19.10.2001
Wood CJ at CL, Grove J
Citation: R v TJH [2001] NSWCCA 433
Sentence appeal.
Sexual offences against children: aggravated sexual assault; aggravated indecent assault; sexual intercourse; indecent assault.
Aggregate total of 5y with NPP of 3y 9m.
There were 2 sets of offences involving applicant's daughter & his niece. Both children were under 16 at the time of the offences, the daughter aged between 5 & 8, the niece 8 & younger. The offences against the niece occurred before those against the daughter, however, she only made complaint at age 15 because of threats. The daughter told her mother what had happened to her & applicant 'told her off'Applicant was assessed as suitable for the Cedar Cottage programme. Some time later, the Director of the Cedar Cottage notified the Crown that the applicant had breached his undertakings. Breach proceedings were commenced & the applicant was called up for sentence.
Whether sentence manifestly excessive - whether correct starting point - whether accumulation appropriate - whether sentencing judge took too narrow view of special circumstances in not finding such circumstances to exist.
Inappropriate for Court to embark upon settling manner of sentencing principle as to what may be special circumstances - that issue reserved for 5 judge bench.
Appeal dismissed.
495

WILSON, Glen Leslie - CCA, 3.10.2001 - 125 A Crim R 450
Wood CJ at CL, Studdert & Bell JJ
Citation: R v Wilson [2001] NSWCCA 399
Crown appeal.
1 x assault with intent to rob whilst armed with offensive weapon - 2y 3m with NPP of 1m 5d, then to be released to parole conditional upon remaining with the William Booth Bridge program until completion of that programme; 1 x attempt to steal from the person - 18m with NPP of 1m 5d, with a similar order as that on the assault charge.
Respondent came up behind a woman who had just withdrawn some money from an ATM, said 'Sorry to do this to you'She saw he was holding a syringe pointed at her. It was filled with respondent's blood. The woman swore at the respondent, then ran up the street. Respondent followed her, however, the woman managed to hail a taxi & get away. This incident was witnessed by a man who called the police & identified the respondent to police. The same witness subsequently saw the respondent grab 2 bags from an elderly lady as she was waiting for a bus. Respondent was arrested by police.
Aged 28 - long-term drug addict - convincing progress towards rehabilitation - no significant priors - no previous imprisonment.
Whether sentence manifestly lenient.
Appeal dismissed.
496

PERCIVAL, Brian - 19.10.2001
Wood CJ at CL, Grove J
Citation: R v Percival [2001] NSWCCA 429
Sentence appeal.
2 x sexual intercourse with child under 16; + 2 x aggravated indecent assault on a Form 1 taken into account - 6y with NPP of 4y.
Indicted for multiple sexual offences. After one complainant had given evidence-in-chief, applicant was re-arraigned & pleaded guilty to one count in respect of each victim. The Crown elected not to proceed upon other counts in the indictment. Applicant was a car dealer. He persuaded 3 young girls to come & assist him in his business. He made small payments for their help & at times, when they gratified his sexual impulses, he would pay them larger amounts.
Aged 55 - prior good character - late pleas of guilty - predatory behaviour towards nieces - likely to serve time on protection - ill-health.
Whether sentence manifestly excessive - contrition - special circumstances.
Appeal dismissed.
497

DERLEY, Kenneth Robert - CCA, 15.10.2001 - 125 A Crim R 308
Grove & Bell JJ
Citation: R v Derley [2001] NSWCCA 419
Sentence appeal.
Supply commercial quantity prohibited drug (methylamphetamine); + 4 matters on a Form 1 taken into account (2 x make false statement with intent to obtain financial advantage, 1 x use false statement, 1 x possess prohibited drug - 3 ecstasy tablets).
Sentence not stated, except that the notional starting point was 12 years.
The supply charge arose as a result of a National Crime Authority investigation. Three of the matters on the Form 1 related to a fraudulent insurance claim when applicant's car was badly damaged in an accident. Applicant arranged to have the vehicle reported as stolen.
Aged 52 at sentence - financial difficulties - long criminal record dating back to when aged 13 - disadvantaged & poor background - previous lengthy imprisonment.
Whether sentences excessive - sentencing discretion - range - starting point - undue weight given to prior record and/or Form 1 offences.
Appeal dismissed.
498

HILL, Paul Geoffrey - NSW SC, Ireland AJ, 2.11.2001
Citation: R v Hill [2001] NSWSC 978
Remarks on Sentence.
Manslaughter by criminal negligence.
Guilty plea. Step-father of 2 year old child. Failure to seek medical treatment over a 5 day period, during which the child was in dire need of medical treatment due to severe brain damage productive of vegetative state at the hands of the offender.
Sentenced to 8y with NPP of 6y.
499

DUNGAY, Ricky Mark - CCA, 1.11.2001 - 126 A Crim R 216
Ipp AJA, Studdert & Greg James JJ
Citation: R v Dungay [2001] NSWCCA 443
Conviction appeal.
Sexual intercourse without consent.
4y with NPP of 18m.
Complainant alleged she had been sexually assaulted by a number of men at 2 locations. The appellant was arrested & interviewed some 2 hours after arrest. Appellant was not told of the reasons for his arrest. The Crown alleged that the appellant confessed to the offence charged in an ERISP, although the complainant gave evidence exculpating him, saying that during the whole ordeal, the appellant showed her 'respect'The audio tape of the appellant's so-called confession that was before the jury has since been lost. The transcript of the interview was admitted into evidence, but 'as an aide memoire only'The trial judge explained that the purpose of the transcript was to help the jury follow what was on the tape. At times there was confusion as to what was said on the tape & what appeared in the transcript.
Illegality of arrest - reasons for arrest to be given - arrest solely for investigative purposes - no intention to bring arrested person before judicial officer - arrest illegal, despite Pt.10A Crimes Act - interview at police station - confession - false statement by police officer - failure by police officer to disclose complainant's exculpatory statement - admissibility of evidence - test for unfairness - s.138(1) Evidence Act.
Appeal allowed: verdict of acquittal entered.
500

BLANCHETTE, Benjamin Ralph - CCA, 5.11.2001
BLANCHETTE, Christian Joshua
Heydon JA, Dowd & Bell JJ
Citation: R v Blanchette [2001] NSWCCA 446
Conviction appeal; &
Crown appeal against sentence.
2 x robbery in company.
Each received 18m with NPP of 12m home detention.
Appellants alleged to have robbed 2 men in Hyde Park. In all, $440 in cash was taken, as well as a wallet.
New trial - where Crown conceded appeal against conviction should be allowed but sought new trials - whether new trials should be ordered or acquittals entered - whether Crown proposed to make a new case not made at 1st trial.
Onus of proof - standard of proof - prior good character - findings of fact - judge's misunderstanding of evidence - miscarriage - fresh evidence - election to have trial by judge alone - failure of police to conduct fingerprint examination - incompetence of counsel - counsel absent from trial during part of prosecution case, whole of defence case & whole of Crown final address - verdict 'unsafe & unsatisfactory'.
Crown appeal dismissed.
Conviction appeal allowed: new trial ordered for both appellants.
501

PUAFISI, Fisiatina - CCA, 30.10.2001
Ipp AJA, Studdert & Greg James JJ
Citation: R v Puafisi [2001] NSWCCA 439
Sentence appeal.
No details given of sentence or offence.
Sentence contained technical defects. Conceded by Crown that application for leave to appeal should be upheld. Crown submitted sentence should be re-crafted.
Appeal allowed: resentenced to 2y 5m 10d with NPP of 22m.
502

HURLEY, Robert Henry - NSW SC, Levine J, 2.11.2001
Citation: R v Hurley [2001] NSWSC 1007
Remarks on Sentence.
Murder.
Offender pleaded not guilty to murder but guilty to manslaughter based upon partial defence of substantial impairment by abnormality of mind. The Crown did not accept the plea & the offender stood trial for murder. Offender & deceased had been in a relationship but had separated, at the instigation of the deceased, 2 weeks prior to the offence. On the night of the offence, offender went to deceased's house, beat her, stabbed her & hit her on the head with a hammer. Deceased's 2 young sons were at the house at the time
Aged 32 - no relevant criminal antecedents - alcohol & cannabis dependence - post traumatic stress disorder - panic disorder with agoraphobia - adjustment disorder with depressed mood - avoidant personality disorder.
Sentenced to 18y with NPP of 13*y.
503

KNIGHT, Katherine Mary - NSW SC, O'Keefe J, 8.11.2001
Citation: R v Knight [2001] NSWSC 1011
Remarks on Sentence.
Murder.
Stabbing death of de facto. A post mortem examination revealed that deceased was stabbed at least 37 times, some of the wounds being deep & extending into vital organs. Prisoner then skinned the deceased & hung the pelt on a meat-hook where it remained until later removed by investigating police. The deceased was then decapitated & his head cooked in a pot, together with some vegetables. Pieces of the deceased's buttocks & some vegetables were baked in the oven. This was later arranged on plates & left as meals for the son & daughter of the deceased, accompanied by vindictive notes to each in the prisoner's handwriting. A third piece of baked buttock was thrown on the back lawn. The remainder of the skinned body was arranged with the left arm draped over an empty soft drink bottle & the legs crossed.
Not guilty plea on arraignment, later changed plea to guilty.
Premeditated - planning - defiling body of deceased - worst case category - absence of contrition or remorse - borderline personality disorder.
Sentenced to life imprisonment.
504

DANG, Hung Duc - CCA, 31.10.2001
Beazley JA, Wood CJ at CL, Carruthers AJ
Citation: R v Dang [2001] NSWCCA 321
Conviction and sentence appeal.
Robbery in company - 2y FT; use offensive weapon to prevent lawful apprehension - 2*y FT (concurrent);
manslaughter - 7*y with NPP of 4y (cumulative).
Appellant was charged with murder, however, the jury found him not guilty of murder, but guilty of manslaughter. He had pleaded guilty to all other charges.
Crown case that the principal & appellant embarked upon a joint criminal enterprise to rob someone & that the appellant was guilty of manslaughter by reason of the principles applicable to extended criminal enterprise (common purpose) when, following their commission of such a robbery, his co-offender killed a would-be pursuer.
Aged 29 at sentence - good background - supportive family - no prior criminal record - not directly responsible for inflicting fatal injuries - remorse & contrition.
Whether conviction supported by evidence - whether killing part of joint criminal enterprise - whether use of knife other than in self-defence was in the contemplation of the appellant - whether sentence for manslaughter manifestly excessive.
Appeal dismissed.
505

DUNLOP, Henry Kendal - CCA, 16.11.2001
Wood CJ at CL, Studdert & Bell JJ
Citation: R v Dunlop [2001] NSWCCA 435
Crown appeal.
Dangerous drive causing death; dangerous drive causing GBH; drive whilst intoxicated.
3y with NPP of 12m PD.
Respondent responsible for a head-on collision wherein a passenger in the other car (11 year old boy) died & the driver of that car was seriously injured. It was probable that the respondent had fallen asleep at the wheel. Respondent had been drinking for some hours the previous night, however, there was evidence that he had slept for some 5-6 hours & had something to eat before driving. Respondent also received significant injuries in the accident and had no memory of the events immediately prior to or after the collision. He was observed, in an injured state, to be doing all within his power to rescue & assist the occupants of the other vehicle. He sustained additional injuries during those rescue attempts.
Aged 21 at time of offences - no prior record - guilty pleas - special circumstances found.
Whether sentence manifestly lenient - whether abandonment of responsibility on part of offender - whether sentence reflected moral culpability & seriousness of offence - whether PD properly available - consistency of sentencing - Jurisic 45 NSWLR 19; Hallocoglu (1992) 63 A Crim R 287; House (1936) 63 A Crim R 287 - double jeopardy - Everett (1994) 181 CLR 295, Dinsdale (2000) 74 ALJR 1538 - error of law - whether Court should intervene.
Appeal allowed: NPP increased to 2y.
506

EDIGAROV, Mikhail - CCA, 5.10.2001 - 125 A Crim R 551
Wood CJ at CL, Studdert & Bell JJ
Citation: R v Edigarov [2001] NSWCCA 436
Crown appeal.
1st set of offences: assault (common) - FT 6m; assault police officer in execution of his duty thereby occasioning ABH - 18m suspended sentence ; + 4 offences on a Form 1 (4 x assault police officer with intent to resist arrest);
kidnap - 2y with NPP of 6m 12d (concurrent with FT).
Respondent assaulted his wife in the presence of their 3 year old daughter. The wife & daughter went to a friend's unit & police were called. Respondent pushed one of the police officers who was trying to handcuff him, the officer fell & as a result suffered serious fractures to his lower leg & ankle. He also assaulted 4 other police officers. Some months later, respondent kidnapped his wife, forced her into the boot of his MV, took her to his parents' home & repeatedly punched & kicked her before she managed to escape.
Aged 28 at 1st offence - kidnap committed whilst on bail & subject to AVO - limited progress towards rehabilitation - priors include contravene ADVO, driving offence - no previous imprisonment.
Whether error of law in imposing a suspended sentence when respondent already subject to another sentence of imprisonment which had not been suspended - whether criminality involved could be appropriately dealt with by way of suspended sentence - whether objective seriousness of offence required accumulated sentence - subjective circumstances inappropriately outweighed objective criminality of offence - double jeopardy and discretion.
Appeal allowed: new aggregate total of 3*y with NPP of 2*y.
507

LEWIS, Mark - CCA, 9.11.2001
Hodgson JA, Barr & Greg James JJ
Citation: R v Lewis [2001] NSWCCA 448
Conviction and sentence appeal.
2 x murder.
Life for the one murder; & 18y for the other murder (felony murder).
Joint criminal enterprise. Applicant contracted a man to kill his de facto. As part of an arranged plan, applicant had driven his de facto to her business premises. Shortly after arriving there, applicant's de facto & her employee were shot. The de facto was also stabbed. The applicant watched the murder of his de facto & urged the killer to hurry up. Applicant then set fire to the premises. Eyewitness evidence given by a man who accompanied the contracted killer.
Whether verdict unreasonable - whether aggravating feature that appellant knew the victim's death would deprive 5 children of their mother.
Appeal dismissed.
508

NGO, Phuong Canh - NSW SC, Dunford J, 14.11.2001 - 125 A Crim R 495
Citation: R v Ngo [2001] NSWSC 1021
Remarks on Sentence.
Murder (of Member of Parliament).
Ngo was convicted of arranging for the murder of John Newman MP. Following a long period of planning & after several unsuccessful attempts to kill the politician, the deceased was gunned down outside his house. Asserted that Ngo retrieved & disposed of the gun.
Principal offender - motivated by political ambition - wanted to run for pre-selection in seat occupied by Newman.
Killing for political reasons - protection of persons in public life - application of s.61(1) Crimes (Sentencing Procedure) Act 1999.
Sentenced to life imprisonment.
509

GREY - HC, 15.11.2001 - 75 ALJR 1708
Citation: Grey v The Queen [2001] HCA 65 (15 November 2001)
Appellant was convicted of 5 x steal MV & 4 x dishonestly dispose of MV.
Issue was whether a criminal trial miscarried because accused was not provided with a copy of a letter of comfort which had been given by an investigating police officer to a person who had had an involvement in the events giving rise to the charges against the appellant & was a key prosecution witness against him at his trial.
CCA erred in classifying problem as one of fresh evidence - Crown should have disclosed document - Crown witness was important, even critical witness - Crown witness with prior convictions - Crown presented him as reliable with innocent involvement in offences - letter put very different complexion on matter - defence deprived of opportunity to request s.165(1)(d) warning - whether absence of disclosure to accused of favourable treatment of Crown witness caused the trial of the accused to miscarry - substantial miscarriage of justice.
Appeal allowed: convictions quashed, a new trial ordered on all counts.
510

TOKI, Martin Marino - NSW SC, Howie J, 9.11.2001
Citation: R v Toki [2001] NSWSC 1036
Remarks on Sentence.
Murder.
Following the prisoner contacting police, they entered a flat where the prisoner was living with his de facto wife. The deceased was found lying naked on the floor, covered by a sheet. She was in a state of decreased consciousness, suffering from multiple injuries. It was apparent that she was suffering the effects of brain injury & was convulsing. She died the following day. Prisoner denied assaulting deceased, maintaining she had fallen in the shower.
Defence of substantial impairment rejected by the jury.
Sentencing took place one day short of a year after the prisoner was found guilty of murder. Sentencing judge considered the delay was completely unacceptable. The matter had been listed a number of times but on each occasion that it was listed, either one or the other of the parties was unable or unprepared to proceed. Uncertainty on part of prisoner as to his ultimate fate taken into account in determining appropriate sentence.
Aged 34 - born in Cook Islands - alcohol & drug abuse - long criminal record, including offences of violence - protection of community.
Sentenced to 24y with NPP of 18y.
511

WONG & LEUNG - HC, 15.11.2001 - 207 CLR 584; 76 ALJR 79
Citation: Wong v The Queen; Leung v The Queen [2001] HCA 64 (15 November 2001)
Appeal against decision of CCA to increase sentence for importation of heroin on Crown appeal and to issue guideline judgment in relation to importation of heroin.
Failure to adequately take into account the nature of a prosecution appeal - whether error in publishing 'quantitative guideline'- whether inconsistent with applicable legislation - significance of weight of narcotics - whether 'two-stage'approach to sentencing open - whether publication of prescriptive table of sentences within jurisdiction or power of CCA when exercising Federal jurisdiction - whether 'promulgation'of guidelines incompatible with exercise of Federal jurisdiction by State court - whether incompatible with decision of a 'matter'within Ch III of the Constitution - whether inconsistent with terms of Federal legislation applicable to case.
Appeal allowed (by majority) - matter remitted to CCA for re-determination.
512

ZABUL, Adris - CCA, 17.10.2001
Wood CJ at CL, Grove J
Citation: R v Zabul [2001] NSWCCA 455
Sentence appeal.
4 x robbery in company; + 1 x rob in company on a Form 1.
Total aggregate of 6*y with NPP of 3y 3m.
Robberies carried out upon service stations.
Parity - whether legitimate sense of grievance - submission not made good -doctrine of parity should not be applied so as to require imposition of an inadequate sentence.
Appeal dismissed.
513

MOUSSA, Victor Ian - CCA, 15.11.2001 - 125 A Crim R 505
Giles JA, Howie J, Carruthers AJ
Citation: R v Moussa [2001] NSWCCA 427
Conviction appeal.
1 x supply commercial quantity prohibited drug (ecstasy) - 4*y with NPP of 3y;
1 x supply prohibited drug (ecstasy) - FT 3y.
Both offences arose from an incident when appellant's MV, in which he was travelling as a passenger, was stopped by 2 police officers. Circumstances in which the officers stopped the vehicle in dispute & very much at the heart of the issues the jury had to determine. Crown case was that in searching the vehicle, police found a quantity of tablets in a computer case in the boot. The 2 charges arose because there were 2 different types of the drug found in the case. Police gave evidence that the appellant admitted being in possession of the tablets. Appellant denied the version of the conversation given by the police officers, claiming he had no knowledge of the computer bag or its contents, saying he had loaned the MV to another person & that person must have put the case containing drugs in the boot.
Confession & admissions - s.424A Crimes Act - reasonable excuse for failure to record - practice & procedure - search & seizure of goods - whether search lawful - summing up - failure to give directions on lies - Zoneff v The Queen (2000) 200 CLR 234.
Appeal dismissed.
514

WILLOUGHBY, Leyton Terence - SW SC, Greg James J, 9.11.2001
Citation: R v Willoughby [2001] NSWSC 1015
Remarks on Sentence.
Manslaughter.
A violent beating of the deceased by the offender, who perceived the deceased as stealing from him.
Guilty plea - excessive response to irrationally perceived threat of theft - no intent to cause other than transient injury - subjective circumstances.
Sentenced to 6y 9m with NPP of 3y 9m.
515

SWEET, Reuben Kingsley - CCA, 24.10.2001 - 125 A Crim R 341
Spigelman CJ, Studdert J, Ireland AJ
Citation: R v Sweet [2001] NSWCCA 445
Sentence appeal.
24 x defraud Commonwealth.
4y with NPP of 3y.
Between January 1998 & June 2000, applicant was paid a Newstart allowance following his release from custody after serving a term of imprisonment for dishonesty offences. During this period, he was paid Newstart allowances in 24 different names. The money he was not entitled to totalled $125,065. When arrested, he was being paid $7,320 per fortnight, to which he was not entitled.
Whether sentence manifestly excessive - significant history of crimes of deception - guilty plea at earliest opportunity - assistance to police - whether reduction by one-third an inadequate recognition of utilitarian value of guilty plea & assistance - whether NPP of 75% indicative of error.
Appeal dismissed.
516

PEARCE, Edward Spencer - CCA, 7.11.2001
Dowd & Greg James JJ, Smart AJ
Citation: R v Pearce [2001] NSWCCA 447
Conviction and sentence appeal.
3 x defraud Commonwealth.
5y 4m with NPP of 3y 4m.
Commonwealth was defrauded of large amounts of group tax purportedly deducted from the wages of many employees of 3 companies, & which was not forwarded on to the ATO. The companies used all moneys received in each business principally to pay wages of employees & for materials. Each company was unprofitable.
Notional deduction of group tax - responsibility for not sending in employment declarations & for alterations to group number & company names - refusal of adjournment to allow further investigation - admissibility of evidence - whether improperly obtained - danger of unfair prejudice.
Conviction appeal dismissed.
Sentence incorrectly constructed.
Sentence appeal allowed: resentenced to aggregate total of 5y 4m with NPP of 3y.
517

GREENHALGH, Gary Grant - CCA 2.10.2001
Citation: R v Greenhalgh [2001] NSWCCA 437
Sentence appeal.
Manslaughter.
8y with NPP of 4*y.
Charged with murder, pleaded guilty to manslaughter in full discharge of indictment.
Accused, some friends & deceased were involved in a drinking bout over a period of some 2 days. An argument broke out during the night of the killing between the accused & the deceased. Accused walked over to deceased who was sitting on a bed & punched him hard, knocking him back onto the bed. Then accused punched him some more. Deceased left the room, walked outside & the accused followed him, trying to get the deceased to fight him. Accused punched deceased again, whereupon deceased fell to the ground. Accused tried to kick him but did not manage to do so, then walked away from the deceased, who was then still alive, & returned to his unit. Some 6 hours later, the deceased, who was still lying on the ground outside, died from a subdural haemorrhage.
History of alcoholism - claimed he did not remember the fight - - priors for assaults & thefts - average to low intelligence - not premeditated.
Whether sentencing judge failed to approach sentencing task in manner required by s.44 Crimes (Sentencing Procedure) Act 1999 - whether NPP should be reduced - serious offence - general & specific deterrence.
Appeal allowed: resentenced to 6y 9m with NPP of 4*y.
518

GROAT, Steven Grant - CCA, 17.10.2001Wood CJ at CL, Grove J
Citation: R v Groat [2001] NSWCCA 452
Sentence appeal.
3 x supply prohibited drug (methylamphetamine) - 3y with NPP of 2y.
Two charges involved applicant supplying an undercover police officer (2.83 & 3.2 grams), the 3rd charge arose following the execution of a search warrant at applicant's home (30.52 grams).
Guilty plea - error in failure to give credit for contrition - necessity for separation of elements of contrition & utilitarian value of guilty plea - Thomson (2000) 49 NSWLR 383 - whether sentence manifestly excessive - prior record - error in treating prior conviction as aggravating feature.
Appeal allowed: resentenced to 2*y with NPP of 18m on each count (concurrent).
519

AU, Johnson - CCA, 19.11.2001
Spigelman CJ, Sully & Greg James JJ
Citation: R v AU [2001]NSWCCA 468
Sentence appeal.
Breach of s.31(1) Financial Transaction Reports Act 1988 - 14m with NPP of 9m & GBB of 5m.
Applicant executed 8 transfers of funds over approx 1*m in amounts ranging from $7,000 to $8,500 to two accounts in China. Sentencing judge found that it was a reasonable inference that the dominant purpose of the remittances was to avoid the reporting requirements of the Act. Aggravating element that offence committed whilst on parole. Applicant maintained he had made the remittances on behalf of a fellow prisoner by the name of Chiu Lin, which the judge declined to accept.
Submitted on appeal that such a man existed & that he indeed was a fellow prisoner of the applicant with both sharing the same wing, a fact that would have entailed ample opportunity for contacts of the kind which the applicant put forward at his sentence hearing.
Failure to give consideration to non-custodial alternatives - deductions - error in taking strength of Crown case into account - failure to give sufficient weight to guilty plea - co-operation, assistance - prospects of rehabilitation - undue emphasis given to general deterrence.
Cases cited: Thomson & Houlton (1999-2000) 49 NSWLR 382; Carter, unreported, [2001] NSWCCA 245; Wong & Leung [2001] HCA 64.
Appeal allowed: resentenced to 12m with NPP of 7m & GBB of 5m.
520

SCEVOLA, Reno Guerino - CCA, 19.10.2001
Grove & Howie JJ
Citation: R v Scevola [2001] NSWCCA 430
Sentence appeal.
Extension of time application.
1. Supply prohibited drug (cocaine) on 3 separate occasions - MT 2y 9m, AT 1*y;
2. Supply cocaine - 12m FT (concurrent);
+ taken into account unlawful possession of property ($400 cash) alleged to be proceeds of drug sales.
Following a conversation, applicant supplied an undercover police operative with 1 capsule of cocaine for $60. Applicant had earlier been observed supplying a capsule to another unidentified male for $60. The following day, applicant supplied another capsule for $60 to the undercover police operative. The 2nd charge arose when police approached applicant in a MV, searched the MV & located 39 balloons, each one containing a gelatine capsule. Another 6.09 grams of cocaine & $400 found during a search of applicant's home.
Aged 31 at time of offences - multiple prior drug offences - driving & violent offences - previous imprisonment.
Whether sentences excessive - guideline judgment - Thomson & Houlton.
Appeal dismissed.
521

KESSEY, Scott Richard - CCA, 23.11.2001
Giles JA, Sully & Kirby JJ
Citation: R v Kessey [2001] NSWCCA 469
Crown appeal.
Aggravated BE&S - 18m with NPP of 8m; receive stolen property - FT 4m (concurrent);
The circumstances of aggravation in the BE&S charge arose from the fact that the respondent knew there was a person inside the house. The receive stolen property offence involved a video recorder, a play station, video games, a wallet, a backpack & sunglasses.
Findings of fact by sentencing judge - Victim Impact Statement - whether sentence manifestly inadequate.
Appeal allowed: resentenced to aggregate total of 2y 3m with NPP of 1y 3m.
522

WRW - CCA, 26.11.2001
Heydon JA, Simpson J, Smart AJ
Citation: R v WRW [2001] NSWCCA 466
Conviction appeal.
1 x rape; 1 x indecent assault.
The indictment charged the appellant with 4 counts of rape & one count of indecent assault; in relation to each of the rape counts he was charged in the alternative with unlawful carnal knowledge. The complainant was the appellant's stepdaughter, aged between 11 & 12 at the time of the alleged offences. The jury failed to reach a verdict on the 1st count of rape & found a verdict of not guilty on counts 2 & 3. They returned a verdict of guilty on the 4th count of rape & the count of indecent assault.
Error in allowing Crown prosecutor to re-examine complainant as to why she failed to complain to her mother & aunt - failure to exclude complainant's evidence in re-examination as to her belief that appellant & her aunt were having an affair - verdicts of guilty unreasonable & not supported - directions - truthfulness, reliability of complaint evidence.
Appeal dismissed.
523

BOULGHOURGIAN, Jack (aka SIMONS, Jake) - CCA, 19.11.2001 - 125 A Crim R 540
Spigelman CJ, Sully & Greg James JJ
Citation: R v Boulghourgian (aka Simons) [2001] NSWCCA 460
Conviction and sentence appeal.
1 x knowingly concerned in importation of trafficable quantity cocaine (114.5 grams).
6y with NPP of 4y.
The appellant had pleaded not guilty & was found guilty by the jury after a 3 day trial. The trial initially also involved a co-offender, but when problems occurred with the co-offender's representation, the prosecution proceeded against the appellant alone.
Prior record for drug offences - some evidence of rehabilitation.
Adequacy of directions as to 'knowingly concerned'- directions suitable to issues at trial - whether verdicts unreasonable & unsupported by evidence - trial judge followed sentencing parameters prescribed in Wong & Leung - that decision overruled by the High Court.
Appeal dismissed.
524

CHEUNG - HC, 22.11.2001 - 209 CLR 1; 76 ALJR 133
Citation: Cheung v The Queen [2001] HCA 67 (22 November 2001)
Applicant, a senior Customs official in Hong Kong, was convicted of being knowingly involved in the importation of heroin. A dispute arose on sentence as to the motive for involvement & when the applicant actually became involved in the offence. The judge accepted that the applicant was involved over a long period & was motivated by financial greed. He rejected the applicant's version that he became involved in the importation late in the piece & that he allowed the importation, intending to report it to the authorities. The verdict did not make clear the jury's view of basis for culpability - sentenced to life imprisonment with a NPP of 21y 11m.
Whether judge erred in sentencing on basis of his finding of fact on sentence - this involved consideration of role of jury and judge in determining facts forming the basis of sentencing.
Appeal dismissed.
525

PHAN, Vinh Hgoc - NSW SC, Greg James J, 22.11.2001 - 126 A Crim R 257
Citation: R v Phan [2001] NSWSC 1069
Remarks on Sentence
Accessory after the fact to murder.
This trial followed a successful appeal against conviction on a charge of murder: see R v Phan [2001] NSWCCA 29.
Prior to the empanelment of a jury for the 2nd trial, a number of interlocutory steps were undertaken & the proceedings against the accused stood over. The Crown then proposed that the accused plead guilty to the present offence & give an undertaking to give evidence against a co-accused. The accused subsequently pleaded guilty to the accessory after the fact to murder charge & the murder charge was dropped.
Co-operation & undertaking to give evidence against co-accused - evidence assessed as valuable - extensive period of prior custody - bail refused on more serious charge now withdrawn - appropriate form of sentence.
Sentenced to 2y suspended sentence with a GBB of 2y.
526

MALLOTT, Allison Kay - CCA, 10.9.2001
MALLOTT, Tania Maree
Sully J, Carruthers AJ
Citation: R v Mallott and Mallott [2001] NSWCCA 453
Sentence appeal.
AOABH.
Each sentenced to 18m with NPP of 9m.
Not much in the way of details of offence. No long-term damage suffered by victim - domestic type disagreement which has since been smoothed out by applicants & victim. Material placed before the CCA in an affidavit described as 'deeply troubling and of such a kind that the state of affairs disclosed by it ought to be avoided ..'..
Appeal allowed: each applicant resentenced to 17m suspended sentence & placed on a 17m GBB.
527

HARRISON, Bruce Malcolm - CCA, 21.11.2001
GEORGIOU, Konstantinos
Giles JA, Sully & Greg James JJ
Citation: R v Harrison & Georgiou [2001] NSWCCA 464
Conviction appeals.
3 x murder - 33y with NPP of 28y; 1 x attempted murder - 10y FT (concurrent).
The charges related to the execution-type shooting of 3 men & the wounding of a 4th man in the basement of the Blackmarket Caf* in Chippindale, Sydney. Evidence before the jury was extensive & included 2 guns that were used in the shootings. It was open to the jury to find that 2 persons must have done the shootings. No direct evidence that the persons were the appellants. The Crown case alleging the appellants were involved was circumstantial.
Joint criminal enterprise - need for directions relating evidence to legal principles.
Appeals allowed: new trials ordered.
528

BETT, Donald Michael - CCA, 23.10.2001
Hodgson JA, Simpson & Barr JJ
Citation: R v Bett [2001] NSWCCA 482
Crown appeal.
Maliciously inflict GBH.
3y with NPP of 1y PD.
Respondent attacked a 62 year old man who was walking with the aid of a walking stick. Respondent jumped out of his MV, grabbed the victim by the throat & shook him. The victim hit out with his stick, respondent grabbed it & threw it away, then proceeded to punch & kick the victim. He threw him to the ground & victim struck his head on the kerb. Victim required surgery, having sustained 2 broken cheeks, a broken nose & lacerations. He also lost the sight of his right eye due to the attack. Respondent's girlfriend had told the respondent that the victim had sexually assaulted her over a period of 7 years, beginning when she was 6 years old. Although she had sought counselling, she had decided not to report the assaults to the police. Immediately before the attack, the girlfriend had also told the respondent that the victim looked at her & made a throat slitting gesture in her direction. Respondent had not personally witnessed this.
Subjective circumstances - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 12m FT.
529

MOORE, Dominick James - CCA, 10.9.2001
Sully J, Carruthers AJ
Citation: R v Moore [2001] NSWCCA 454
Sentence appeal.
Armed robbery.
4*y with NPP of 2*y.
Applicant was outside an escort agency when he saw 2 female employees of the escort agency counting money that the agency had taken from clients during the day. He decided to steal the money & entered the back room of the agency, then threatened the 2 victims with a piece of timber.
Aged 22 at time of offence - drug & alcohol abuse - priors - previous imprisonment.
Submitted that inappropriate emphasis given to Henry - unplanned, opportunistic robbery - sentences excessive - pleaded guilty at 1st opportunity, without legal advice - relevant factors for sentencing - error in interpretation of relevant factors for sentencing.
Appeal dismissed.
530

CHAPMAN, Kevin John - CCA, 16.11.2001
Ipp AJA, Hidden & Barr JJ
Citation: R v Chapman [2001] NSWCCA 457
Sentence appeal.
313 x defraud Commonwealth.
3y with NPP of 22m then 14m recognizance with order for reparation of $274,111.10.
Applicant a member of the Australian Regular Army with the rank of Sergeant. Employed as a Chief Clerk with the Parachute Training School at Nowra, part of his duties to arrange for the payment of allowances. He devised an elaborate system whereby he retained monies belonging to the Commonwealth & concealing what he had done.
Aged 29 at time of 1st offence - guilty plea - gambling addiction - excellent service record - no priors - loss of pension - financial losses as a result of conduct - impact upon family - steps towards rehabilitation - position of trust.
Whether addiction to gambling constituted exceptional circumstances - whether sentence excessive.
Appeal dismissed.
531

WONG, Kai Chee - CCA, 1.11.2001
Ipp AJA, Studdert & Greg James JJ
Citation: R v Wong [2001] NSWCCA 444
Conviction appeal.
Fraud - 2y GBB.
Appellant was the manager & director of a company which was an intermediary for sourcing of goods & commodities to other companies. The ANZ bank erroneously duplicated a transaction involving $US288,562.50 ($AUD431,269.62) into the account of the appellant's company. Appellant used the money resulting from this error in a series of investments. During a period of 3 weeks, appellant made a number of withdrawals which almost exhausted the amount deposited. These withdrawals were used to purchase shares, some in the appellant's name, some in appellant's brother's name & some in the name of a company controlled by the appellant. Appellant had considerable experience in working for banks & had acquired a working knowledge of international banking transactions.
Belief - ownership - whether error in rejecting evidence - whether verdict unreasonable.
Appeal dismissed.
532

SPATHIS, Alexios - CCA, 29.11.2001
PATSALIS, Michael
Heydon JA, Carruthers & Smart AJJ
Citation: v Spathis; R v Patsalis [2001] NSWCCA 476
Conviction & sentence appeals.
Murder.
Appellants were charged with the murder of the deceased. At trial, Crown formulated its case on alternative bases, including felony murder & mens rea murder. The jury convicted both appellants of murder. Patsalis had 2 different counsel during the trial, both of whom he dismissed. He was sentenced to 21*y with a MT of 16y & an AT of 5*y. Spathis was sentenced to 19y with a MT of 14y & an AT of 5y. Both appealed against their convictions & applied for leave to appeal against their sentences. Only Patsalis advanced arguments in relation to sentence.
Conduct of legal practitioners - incompetent representation - whether counsel should have led further character evidence - whether incompetence caused prejudice - whether trial judge should have ordered separate trials - application to adduce further evidence on appeal - whether 'fresh evidence'- whether raised possibility of miscarriage of justice - directions - whether misdirections - whether manslaughter verdict ought to have been left open to jury - elements of felony murder - relationship evidence - lies & consciousness of guilty - directions re evidence from deceased witness.
Whether sentence excessive - parity - whether proper consideration by sentencing judge of assistance given.
Appeals dismissed.
533

ROSE, Jeffrey William Spencer - NSW SC, Kirby J, 22.11.2001
Citation: R v Rose [No.10] [2001] NSWSC 1060
Judgment [No.10] - Direction on Identification.
Request by Crown for warning concerning identification evidence - evidence favourable to accused - warning sought regarding reliability of identification evidence - need to consider reliability of identification evidence.
Request for warning granted.
534

BUSHELL, Daniel Michael - CCA, 21.11.2001
Barr & Adams JJ
Citation: R v Bushell [2001] NSWCCA 462
Sentence appeal.
1 x armed robbery.
3*y with NPP of 1*y.
Some delay between conviction & sentence. Applicant was granted bail but failed to appear for sentence. Eventually he was arrested & brought to court.
Applicant held a pair of scissors & asked a fellow passenger for a cigarette, which the passenger refused. Applicant then put the scissors away. Later, whilst standing on the platform & the passenger standing in the train, applicant held the scissors yet again & asked for $5, which the passenger refused to give him. Applicant then walked away.
Aged 26 at time of offence - spur of the moment offence - bottom end of scale of seriousness - long record of similar type convictions - drug addiction - attempts at giving up use of drugs, then lapsing back into their use - genuine desire to give up use of drugs - remorse - some time spent at Wentworth Area Mental Health Service at Nepean Hospital because of drug-induced psychosis - deterrence.
Failure to give proper consideration to psychiatric illness - auditory hallucinations - failure to reduce weight given to general deterrence - whether sentence manifestly excessive.
Appeal allowed: resentenced to 2y with NPP of 1y 1m & an order that within 7 days after release to parole he report to Wentworth Area Mental Health Service at Nepean Hospital & accept advice as to treatment & medication.
535

RAP - CCA, 6.9.2001
Hodgson JA, Dowd J, Smart AJ
Citation: R v RAP [2001] NSWCCA 471
Conviction and sentence appeal.
Application for extension of time.
1 x sexual intercourse with child under 16; alternative of aggravated indecent assault of child under 16.
8y 201d with NPP of 5y 18d.
The jury returned a verdict of guilty on the 1st count. The complainant was appellant's 3y old niece.
Aged 25 at time of appeal - unhappy childhood - sexually assaulted as a child - prior conviction - appellant held in strict custody.
Conviction unreasonable and could not be supported by evidence - whether sentence manifestly excessive - failure to take into account the nature of custody under which appellant would serve sentence.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 7y with NPP of 4y 201d.
536

MASSON, Leonard James - NSW SC, Howie J, 8.11.2001
SYMSS, Shane Antoni
Citation: R v Masson, R v Symss [2001] NSWSC 1037
Remarks on Sentence.
Masson: manslaughter; robbery with wounding & in company; larceny.
Symss: murder; robbery with wounding & in company; larceny.
Both offenders had offences on a Form 1 taken into account.
Offenders robbed the home of the deceased, a 75 year old widow who lived alone. The deceased had been a close friend of Masson's wife for a number of years. On occasions Masson voluntarily performed odd jobs around her home. After Masson's marriage break-up, he was living in a hostel where he met Symss. On the morning of the killing, the deceased had complained to a neighbour that she had heard noises the previous night & in the morning had found her back gate open & a hole near the lock on the fly screen of her back door. The neighbour said she would get her husband to look at the damaged flyscreen when he came home from work later that day. When the neighbour's husband went to the deceased's house later that day, he noticed the back door was open but when he called out there was no reply. He entered the house & found the deceased's body on the lounge room floor. A post-mortem examination showed she had been smothered. There were bruises & abrasions to her face, a patterned abrasion consistent with her glasses being forced against her face, lacerations to the right ear consistent with an earring being pulled form her ear & 2 stab wounds to her neck. Jewellery was scattered around on the bedroom floor & deceased's MV was missing.
Masson: 7*y with NPP of 4*y.
Symss: 22y with NPP of 16*y.
537

SK - CCA, 30.11.2001
OZ
Hidden J, Newman AJ
Citation: R v SK; R v OZ [2001] NSWCCA 492
Sentence appeal.
1 x maliciously throw destructive explosive substance with intent to burn; 1 x maliciously wound with intent to do GBH - Each sentenced to 7y with NPP of 3*y.
Both applicants took part in a pre-planned ambush at midnight, having lured the victim to a park where SK struck him on the head with some kind of rod, then OZ stomped on him after he fell unconscious to the ground. SK then poured petrol over the victim. OZ tried repeatedly to set fire to the petrol with a cigarette lighter but the lighter would not work. The victim's brother had come to the park with the victim & was being held by another person, however, he managed to break away, which caused the offenders to leave the scene.
OZ on bail & SK on probation at the time of the subject offences.
Sentencing young offenders - principles different from adults - provisions of s.6 Children (Criminal Proceedings) Act - whether fully taken into account.
Appeal dismissed.
538

DONEY, Richard John - CCA, 30.11.2001 - 126 A Crim R 271
Ipp AJA, Hidden & Barr JJ
Citation: R v Doney [2001] NSWCCA 463
Reference by Minister of Justice under s.474 Crimes Act 1900.
Knowingly concerned in the importation of 2,185 kgs cannabis resin.
16y with NPP of 9y.
Appellant's appeal to the CCA against his conviction was dismissed. His subsequent appeal to the HC was also dismissed: see Doney v The Queen (1990) 171 CLR 207. Appellant has already served his sentence.
The matter was referred to the CCA after a long series of trials & appeals. A Crown witness gave evidence that appellant recruited him to assist in the importation. A handwriting expert gave evidence that a document found on witness' premises containing instructions was in the appellant's handwriting. Appellant denied this evidence in an unsworn statement.
On appeal, appellant sought to lead fresh evidence of a handwriting expert suggesting that the document was not in the appellant's handwriting. Primary issue for the CCA was whether there was a significant possibility that had the fresh evidence been before the jury, the jury would have had a reasonable doubt that the appellant was the author of the document.
Whole case rule not applicable - Crown entitled to adduce evidence tending to contradict or weaken fresh evidence - jury entitled to make comparison between handwriting in dispute & admitted - significant possibility jury would have a reasonable doubt that appellant was the author of the document.
Verdict of acquittal entered.
539

DUNCOMBE, Gordon Andrew - CCA, 29.11.2001
Sheller JA, Dowd & Greg James JJ
Citation R v Duncombe [2001] NSWCCA 483
Crown appeal.
1 x assault police officer in execution of his duty; 1 x BE&S; + Form 1 matters (5 x receiving; 2 x BE&S; 2 x drive whilst licence cancelled; 1 x drive with special range prescribed concentration of alcohol; 1 x drive whilst unlicensed; 1 x use unregistered vehicle; 1 x use uninsured vehicle).
Total of 3y 6m 2w with NPP of 15m 2w.
Respondent & co-offenders drove in a MV bearing stolen number plates, then broke into & stole from a bowling club, a supply store & a general store. The general store was owned by a police officer who lived in a house attached to the store. He woke up & confronted them. The offenders ran to their MV. The police officer drove his vehicle & stopped in front of the offenders' MV in order to prevent them from leaving the scene. Respondent drove the offenders' MV into the police officer's car. Respondent & co-offenders then ran off, but shortly afterwards respondent gave himself up to police.
Aged 33 - 'appalling'record - spent all but one or 2 years in custody since age 16 - guilty plea - disadvantaged upbringing - subjected to violence & sexual abuse - circumstances identified in Fernando applicable.
Application of guideline judgment in Ponfield - inadequate sentences - disproportionately short NPP.
Appeal allowed: resentenced to total of 6y with NPP of 4y.
540

AKBARY, Said Najibullayh - CCA, 28.11.2001
Hidden & Greg James JJ
Citation: R v Akbary [2001] NSWCCA 491
Sentence appeal.
1 x robbery whilst armed with offensive weapon; + a Form 1 matter (1 x robbery whilst armed with offensive weapon) - 4*y with NPP of 2*y.
Applicant, armed with either a meat cleaver or meat hammer, demanded money & cigarettes from a shopkeeper. Applicant had left a psychiatric hospital only a short time before the robbery was committed. This offence occurred approx 5 weeks after a similar offence which gave rise to the Form 1 matter. Applicant pleaded guilty in circumstances which revealed he had a lack of recollection due to his mental state & also having ingested drugs & alcohol. However, he retained sufficient recollection to not only confess to police about one of the crimes but also when he gave evidence at trial he was able to refer, to some extent, to what he believed must have happened.
Prior record for numerous offences, including armed robberies of shopkeepers - previous custody on many occasions - serious mental illness - whether error in approach to sentencing.
Appeal dismissed.
541

HENDRICKS, Aliem - CCA, 28.9.2001 - 125 A Crim R 303
Heydon JA, Wood CJ at CL, Carruthers AJ
Citation: R v Hendricks [2001] NSWCCA 396
Sentence appeal.
Import trafficable quantity cocaine - 6*y with NPP of 4y 3m.
Applicant arrested upon his arrival at Sydney Airport, having swallowed 52 objects containing cocaine. The total net weight of the cocaine was 162.7 grams.
Aged 24 at time of offence - depressive character - no priors.
Low level trafficable quantity - courier - financial gain - sentence at top end of range - early guilty plea - utilitarian value - whether discount inadequate - sentencing discretion - guideline judgment: Wong & Leung.
Appeal dismissed.
542

MILOJEVIC, John Jovan - CCA, 19.11.2001
Barr & Adams JJ
Citation: R v Milojevic [2001] NSWCCA 461
Sentence appeal.
Threaten to use offensive weapon with intent to hinder lawful apprehension; + 7 outstanding charges leading up to the offence charged taken into account.
5y 5m 15d with a NPP of 3y 5m, 15d.
Applicant was visiting a friend, had an argument with him, threatened the friend & the friend's family, then was physically removed from the premises. Applicant went to his mother's home where he, his de facto & daughter lived. He assaulted his de facto, then threatened to kill his daughter. When police arrived, there was a fire in the front room. They were unable to approach applicant who stood at the front door & squirted some accelerant onto the front porch, then ignited it. He threatened police that if they came any closer he would spray them & set them alight. He later threatened police with a 30-centimetre kitchen knife.
Aged 27 at time of offence - drug abuse - heavy drinker - subjected to considerable violence in his home when growing up - on recognizance & bail at time of offence - multiple priors.
Guilty plea at earliest opportunity - remorse, contrition - whether sentence excessive.
Appeal dismissed.
543

GPP - CCA, 6.12.2001 - 129 A Crim R 1
Heydon JA, Wood CJ at CL, Carruthers AJ
Citation: R v GPP [2001] NSWCCA 493
Conviction and sentence appeal.
1 x indecent assault; 1 x attempted rape - Aggregate total of 5y with NPP of 2y.
After a trial before a judge & jury, appellant was convicted on the above counts. The offences were alleged to have occurred in 1979 or 1980 when the complainant was aged approx 9. Complainant said she had made complaint to her husband in 1991 & to police in 1995. The appellant is the brother of the complainant's father.
Delay in complaint - whether Longman warning necessary - whether delay caused forensic prejudice to accused - lies - whether verdicts unreasonable causing miscarriage of justice.
Appeal allowed: convictions quashed, new trial ordered.
544

GIACOBELLO, Nunzio - CCA, 26.11.2001
Hidden J, Newman AJ
Citation: R v Giacobello [2001] NSWCCA 473
Sentence appeal.
1 x cultivate large commercial quantity prohibited plant (cannabis) - 4y with NPP of 3y.
Applicant admitted cultivating the cannabis. Police had found something in the order of 2,000 plants of cannabis & estimated that the value of the crop would be approx $4,000,000, a figure which the trial judge viewed with some scepticism. Applicant admitted that he expected to gain financial advantage for his part in the cultivation.
Aged 46 at time of sentence - prior criminal record, including a drug offence.
Utilitarian value of early guilty plea - whether insufficient weight given.
Appeal dismissed.
545

FESTA - HC, 13.12.2001 - 208 CLR 593;76 ALJR 291
Citation: Festa v The Queen [2001] HCA 72 (13 December 2001)
On appeal from the SC, Queensland.
2 x armed robbery (of banks).
Weapons & ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies.
Whether evidence of weapons admissible as "propensity" evidence - whether trial judge adequately directed jury in relation to discovery of weapons & ammunitions.
Exclusion of evidence - identification evidence - usual precautions for identifying suspects not followed - whether probative value of identification evidence outweighed danger of unfair prejudice to accused - whether admission of identification evidence resulted in miscarriage of justice - whether evidence of association between accused & co-accused admissible - whether direction by trial judge about association a material misdirection.
Application of "proviso" - whether errors by trial judge constituted a substantial miscarriage of justice - whether evidence was so strong that no reasonable jury could fail to convict accused.
Appeal dismissed.
546

KADDOUR, Kaldid (ATTORNEY GENERAL v) - CCA, 16.11.2001
TURKMANI, Bassam
Spigelman CJ, Sully & Adams JJ
Citation: Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Crown appeal, pursuant to s.5F Criminal Appeal Act 1912 (NSW), against interlocutory judgment & orders rejecting claim of public interest immunity.
Respondents on trial for soliciting to murder. Prosecution case based on evidence of informers. The Commissioner of Police made an application that witnesses should not be questioned in a way which would ascertain the identity of informers on the grounds of public interest immunity. The respondents claimed they could not have a fair trial if the claim to immunity was upheld.
Whether matters under s.130(5) Evidence Act 1995 (NSW) adequately considered.
Appeal allowed: interlocutory judgment & orders rejecting claim of public interest immunity vacated.
547

O'DONOHUE, Shane Patrick - CCA, 21.11.2001
Heydon JA, Dowd & Bell JJ
Citation: R v O'Donohue [2001] NSWCCA 458
Conviction appeal.
1 x malicious damage to premises by means of fire with intent to cause bodily injury to persons; in the alternative, malicious damage to premises by means of fire.
A guilty verdict was returned on the alternative charge.
3y with NPP of 18m.
Appellant was alleged to have set fire to 2 beds in a suburban hotel. He was in the hotel on the day of the fire & left in a hurry. There was evidence that the fire had not been caused by an electrical fault. The trial judge gave directions regarding motive.
Directions - whether adequate - whether gave rise to miscarriage of justice.
Appeal allowed: verdict & conviction set aside, no new trial ordered.
548

PERESE, Jonathon - CCA, 13.12.2001
Beazley JA, Hulme & McClellan JJ
Citation: R v Perese [2001] NSWCCA 467
Conviction and sentence appeal
Armed robbery.
3y with NPP of 8m.
Crown alleged that appellant & 2 other males entered a branch of the ANZ bank & that appellant & another male jumped over the counter. Appellant allegedly accosted a bank officer with a knife & demanded money from her, then took $2,890 from a cash drawer. Appellant then fled from that area through a door. Crown contended that bank security surveillance cameras took a series of photographs which depicted the appellant. A number of witnesses were called who provided various descriptions of the assailants, but there was no evidence of identification of the appellant by any witness to the incident.
Wrongful admission of evidence - discretion to order new trial: King v R (1986) 161 CLR 423 - DPP (Nauru) v Fowler (1984) 154 CLR 627; R v Gordon (1994) 71 A Crim R 459.
Appeal allowed: new trial ordered.
549

TOGIAS, Nikolitsa - CCA, 14.12.2001 - 127 A Crim R 23
Spigelman CJ, Grove J, Einfeld AJ
Citation: R v Togias [2001] NSWCCA 522
Crown appeal.
Import commercial quantity MDMA (ecstasy).
3y suspended sentence.
Respondent arrived alone at Sydney Kingsford Smith Airport from Bali. A Customs officer noticed a bulky item around her waist. An examination of this disclosed 8,282 tablets, with a purity of 44.7%, resulting in 967.5 grams MDMA.
Aged 21 - guilty plea - courier acting for financial gain - becoming pregnant after arrest & charge - appearing for sentence at a time when new-born apparently being breast-fed - insufficiency of evidence of potential contact between mother & child if mother in custody.
Sentence manifestly inadequate.
Appeal allowed: remitted to DC for resentence.
550

ABDALLAH, Brian Abraham - CCA, 13.12.2001 - 127 A Crim R 46
Sheller JA, Dowd & Kirby JJ
Citation: R v Abdallah [2001] NSWCCA 506
Conviction appeal.
Knowingly concerned in importation of trafficable quantity cocaine.
During trial, an inconsistency arose between a statement by counsel for the appellant & the evidence of the appellant himself. The inconsistency was as to when the appellant became aware of the arrival of the package of cocaine into Australia. Prosecution & trial judge suggested the jury might conclude that the appellant had changed his story.
Directions - where inconsistency between statement by counsel & evidence of accused - application of R v Birks (1990) 19 NSWLR 677 - lies - application of Zoneff v The Queen (2000) 200 CLR 234.
Appeal allowed: new trial ordered.
551

BKK - CCA, 14.12.2001
Spigelman CJ, Grove & Sperling JJ
Citation: R v BKK [2001] NSWCCA 525
Conviction appeal
13 x sexual offences.
(Sentence not stated.)
Complainant is appellant's adopted daughter. She was born in June 1974, claimed her first recollection of any sexual act occurred when she was aged under 11. The final sexual act alleged to have occurred in late 1994.
Delay - prejudice to accused - requisite assistance to jury of handicap in preparation of defence - denial of events earlier alleged offences but consent to later events - accused unrepresented at trial - illness of accused - whether trial unfair - whether instructions to jury adequate - particular instructions on complaint, corroboration, character & failure to testify.
Appeal allowed in part: convictions & sentences quashed on 5 counts & new trial ordered; remitted to DC for resentence on balance of counts.
552

HALL, Maddison (previously known as Noel Compton HALL) - NSW SC, McClellan J, 29.11.2001
Citation: R v Hall [2001] NSWSC 1125
Redetermination of life sentence.
Murder.
Killing of a hitchhiker who claimed to be able to obtain drugs for applicant & associate. When he failed to do this, applicant thought hitchhiker was ripping them off & only using them to obtain a free lift to his parents' home in Adelaide. Applicant became angry & decided to kill the deceased. Deceased was shot in the back then, when he fell to the ground, was shot through the mouth, blowing the back of his head away.
Since incarceration, applicant identifies as female & has undergone appropriate treatment.
High degree of criminality but did not involve criminality of the highest order - where appropriate to set a specified term.
Application allowed: resentenced to 22y with NPP of 16y.
553

ANGELES, Jose - CCA, 13.12.2001
Mason P, Sully & McClellan JJ
Citation: R v Angeles [2001] NSWCCA 515
Sentence appeal.
Detain person for advantage (kidnap).
3y with NPP of 15m.
A number of men abducted victim from his home & held him for ransom. Applicant not involved with the actual kidnapping, however, his participation included driving 2 of the kidnappers & also keeping surveillance of the victim's home before the kidnapping. After the kidnapping, victim's mother contacted police. A neighbour of the victim had noticed applicant's car outside victim's home some time prior to the kidnapping & had kept a note of the registration which was given to police. Police rescued victim 6 days after the kidnapping.
Whether sentence excessive - parity.
Appeal dismissed.
554

ELHALABI, Patrick - CCA, 13.12.2001
Mason P, Sully & McClellan JJ
Citation: R v Elhalabi [2001] NSWCCA 516
Sentence appeal.
1 x detain person for advantage.
3y with NPP of 15m.
A number of men abducted victim from his home & held him for ransom. Although applicant not involved with the actual kidnapping, he did know that a kidnapping was to take place. His job was to drive a car to the scene of the kidnapping & back. Police rescued victim 6 days after the kidnapping.
Whether lack of parity in sentence created a justifiable sense of grievance.
Appeal dismissed.
555

LEVER, Samuel Noel - NSW SC, Bell J, 13.12.2001
Citation: R v Lever [2001] NSWSC 1131
Remarks on Sentence.
Manslaughter.
Originally stood trial for murder. Jury returned a verdict of guilty of manslaughter.
Offender was married to the deceased. The deceased's death was caused by a severe beating perpetrated by the offender. A post-mortem revealed evidence of a number of blows that were administered by at least 2 different types of weapon, apart from a number of injuries caused by either fists, feet or some type of broad, non-sharp edged object. Deceased also suffered a number of broken ribs, her lungs were bruised & there was bruising to the membrane attaching the bowel to other structures in the abdomen. There was also a tear to the liver. The pathologist conducting the post-mortem examination was of the opinion that it would have taken a considerable amount of force to produce these injuries.
The trial was conducted solely upon the offender's mental state at the time of the killing. There was psychiatric evidence that supported the defence of diminished responsibility., however, the defence of mental illness was not made out. Prior to the trial, offender offered to plead guilty to manslaughter, which was rejected by the Crown.
Aboriginal - aged 36 at time of offence - deliberate act accompanied by requisite intent for murder - mental responsibility for that act substantially impaired by abnormality of mind - intent to inflict GBH.
Sentenced to 10y with NPP of 6y.
556

MAARBANI, Brian - CCA, 13.12.2001
Wood CJ at CL, Grove J
Citation: R v Maarbani [2001] NSWCCA 509
Sentence appeal.
Maliciously inflict GBH; supply prohibited drug (methylamphetamine); + 7 Form 1 offences.
Also before the sentencing judge was an appeal from the LC against a sentence of 6m for breach of a CSO.
Aggregate total of 3y with NPP of 2y.
The supply offence was detected during a police operation in which applicant was seen to drive into a Kentucky Fried Chicken car park & speak to a person who had been waiting there for some time. When police made their presence known, the other person fled. Applicant's MV was searched & 3 plastic packets containing the drug were found (9.5 grams, with a purity of 2.5%).
Consistent pattern of offending - record described as 'rather appalling'.
Rehabilitation - special circumstances - development of idiopathic epilepsy - medication not entirely successful in preventing fits - whether sentence excessive - need for deterrence.
Appeal allowed: NPP of 14m substituted.
557

ANDERSON, Raymond Peter - CCA, 7.12.2001 - 127 A Crim R 116
Sheller JA, Dowd & Kirby JJ
Citation: R v Anderson [2001] NSWCCA 488
Conviction appeal.
1 x knowingly concerned in the importation of a commercial quantity prohibited import (cocaine).
Appellant & 3 others flew to the USA & returned to Sydney on a flight from LA 19 days later. Customs officers searched the aircraft upon its arrival in Sydney & discovered garbage receptacles at the rear of the aircraft containing 20 packages of white powder (yielding 7.5 kgs cocaine). Four pieces of tape around some of the packages were found to have human hairs trapped in the adhesive. These hairs were subjected to DNA analysis. Some were found to match the profile of the appellant, the others were consistent with the body hair of a person of Tongan extraction. The appellant's 3 travelling companions were of Tongan extraction. Fingerprints of the appellant were found on the sticky side of some adhesive tape. It was the Crown case that others were to collect the drugs from the garbage receptacles once the aircraft had reached Sydney.
Whether verdict unreasonable having regard to evidence - whether 'beyond reasonable doubt'should be explained - directions where credibility of accused attacked.
Appeal dismissed.
558

SALDANERI, Paul Italo - CCA, 19.11.2001
Spigelman CJ, Sully & Greg James JJ
Citation: R v Saldaneri [2001] NSWCCA 480
Sentence appeal.
1 x supply prohibited drug (cannabis); + a Form 1 offence (cultivate prohibited plant).
20m with NPP of 15m (to expire 26.5.2001).
Police went to applicant's premises. Those premises were divided into 3 flats. Applicant & his family resided in one of them. When police entered the other flats, they found a significant operation of cultivating cannabis. Those flats were fitted out with artificial lighting, a fan & a power system, as well as watering systems. There were a number of pots containing cannabis plants. There were also a number of containers containing dried cannabis leaf & 2 sets of scales. In total, 169 plants were found, averaging about 1 metre in height. In addition, there was a total of 5,017.5 grams of cannabis leaf. When sentencing applicant, sentencing judge failed to make a direction that applicant be released at the expiration of the NPP.
Where sentencing judge required to direct applicant be released at expiration of NPP - whether adequate discount for guilty plea - whether appropriate weight given to subjective features - whether sentencing judge determined whether sentence should be suspended - special circumstances.
Appeal granted to vary the sentencing judge's order by directing the applicant be released to parole on 22.5.2002.
Appeal otherwise dismissed.
559

JCG - CCA, 12.12.2001 - 127 A Crim R 493
Spigelman CJ, Sully & Adams JJ
Citation: R v Galli [2001] NSWCCA 504
Conviction and sentence appeal.
Aggravated sexual intercourse without consent.
7y with NPP of 5y 3m.
The circumstances of aggravation were that the complainant has a serious intellectual disability & was under the care of the appellant who worked at the house where the complainant lived. The Crown case was circumstantial. One aspect of its case on which it placed particular reliance was evidence of DNA testing carried out by a forensic biologist.
DNA - Paternity Index - relative chance of paternity - 'Prosecutor's Fallacy'- admission of DNA evidence - directions - use to be made of DNA evidence - errors committed at trial - conviction inevitable - application of the proviso - s.6(1) Criminal Appeal Act 1912.
Appeal dismissed.
560

PRIVETT, Dean Anthony - CCA, 13.12.2001
Mason P, Sully & Levine JJ
Citation: R v Privett [2001] NSWCCA 518
Conviction and sentence appeal.
Murder.
17y 9m with NPP of 14*y.
Appellant shot the deceased in the face at close range during a robbery of a property on which the deceased was staying. The deceased's dog was also shot.
Joint trial - whether risk of impermissible prejudice - NPP exceeding three-quarters of head sentence - whether NPP excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 17y 9m with NPP of 13y 4m.
561

CHUNG, Wing Piew (Chris) - CCA, 19.11.2001
Spigelman CJ, Sully & Greg James JJ
R v Chung [2001] NSWCCA 484
Conviction appeal.
Supply large commercial quantity prohibited drug (heroin).
Sentenced to life imprisonment.
Central to the Crown case was the evidence of a witness who had been directly involved in the alleged offence, along with the appellant. The witness for the Crown gave evidence against the appellant. The reinforcement given to this witness' evidence by the trial judge in his directions on the appellant's failure to give evidence was of significance in this case.
Directions - where trial judge gave directions with respect to failure of appellant to give evidence that contravened the authority of RPS (2000) 199 CLR 620 and Azzopardi [2001] HCA 25, 75 ALJR 931.
Appeal allowed: new trial ordered.
562

GRANT, Dale Francis - CCA, 30.11.2001 - 127 A Crim R 124
Spigelman CJ, Sully J, Smart AJ
Citation: R v Grant [2001] NSWCCA 486
Conviction appeal.
1 x assault and commit act of indecency.
Appellant was acquitted of the charge that he detained the complainant with intent to hold her for his advantage. Most of the evidence at trial was directed to that charge. Crown case depended upon the contents of a written statement that a witness made to police. That witness died after the committal proceedings but prior to the trial.
Admission of prescribed statement made by deceased complainant - exercise of discretion to exclude under s.116(2) Criminal Procedure Act 1986 - relationship of s.116(2) and Evidence Act 1995 - discretion to exclude otherwise admissible evidence because of leading to unfair trial - whether verdict reasonably supported by evidence.
Appeal dismissed.
563

SCIBERRAS, David Joseph - CCA, 12.12.2001
Spigelman CJ, Sully & Adams JJ
Citation: R v Sciberras [2001] NSWCCA 514
Conviction and sentence appeal.
2 x AOABH; 1 x malicious damage to property; 1 x assault.
Total FT of 4m 15d.
Appellant originally pleaded not guilty to 9 counts. During the trial, he withdrew his plea of not guilty to Count 5 in the indictment & then pleaded guilty to that charge. He was subsequently acquitted on Counts 1 & 2 of the indictment following a direction by the trial judge. Appellant was ultimately acquitted on Counts 3, 7 & 8 of the indictment & found guilty on Counts 4, 6 & 9.
Inconsistent verdicts - credibility of complainant - failure to direct - whether sentence excessive.
Appeal dismissed.
564

BOLT, Dallas Clint Nhummet - CCA, 13.12.2001 - 126 A Crim R 284
Sheller JA, Dowd & Greg James JJ
Citation: R v Bolt [2001] NSWCCA 487
Crown appeal.
Manslaughter - 5*y with NPP of 2*y.
Respondent was indicted for murder; the jury returned a verdict of not guilty of murder but guilty of manslaughter.
Respondent caused his mother's death by stabbing her repeatedly. The issue at trial was upon provocation.
See R v Bolt [2001] NSWSC 747 for details of offence.
Provocation - intention to kill - whether sentence inadequate.
Appeal allowed: resentenced to a total of 6y with NPP of 3*y.
565

BYRNE, Suellen Lynn - NSW SC, Dunford J, 17.12.2001
Citation: R v Byrne [2001] NSWSC 1164
Remarks on Sentence.
Manslaughter.
Mother causing the death of her 5 year old son by unlawful & dangerous acts. The child was taken to the emergency ward at Grafton Base Hospital in a comatose state. His skin colour was abnormal & mottled with a cyanosed bluish red appearance, he was not breathing or circulating blood adequately & his body temperature was 28.9 degrees Celsius. There was also severe bruising to arms, legs & trunk & a large burn area on his back. There were also grazes over the right cheek, right knee, fine red bruising over the lining of the left eye, fingernail-like marks over the right side of the neck, excess fluid in the lungs, inhaled blood in the lungs, small shallow ulcers on the lining of the stomach, blood in the bowel & next to the pancreas & a swollen brain. There was also infection of the lungs, probably related to a recent viral infection. The combined effect of the multiple injuries were identified as the cause of death.
Aged 33 - guilty plea - utilitarian value - a number of different versions given by offender of how deceased received injuries leading to death - general and personal deterrence.
Sentence to 8*y with NPP of 6y.
566

JCJ - CCA, 23.11.2001
Barr & Adams JJ
Citation: R v JCJ [2001] NSWCCA 477
Sentence appeal.
1 x entice with intent to hold for advantage - 3y with NPP of 1y; 1 x sexual intercourse without consent in circumstances of aggravation - 3y with NPP of 1y.
The applicant is the older sister of the complainant. Applicant was instrumental in enticing her sister to a spot where she was taken in a car by the applicant's male companion & another man to a flat occupied by the applicant & her male companion. Various sexual acts were performed on the complainant by the applicant's male companion & she was required to perform sexual acts upon him. She was threatened with death if she refused. The complainant was aged 16 at the time of the offences and felt betrayed by what her sister had done.
Sentencing judge gave applicant a discount of 50% for her plea of guilty, her contrition & offer of assistance in giving evidence at any trial of the male companion, if called upon to do so.
The complainant submitted a letter to the court wherein she stated that she did not want the applicant to be sent to prison.
Whether sentence excessive.
Appeal dismissed.
567

JONES, Kevin John - NSW SC, Bell J, 30.11.2001
Citation: R v Jones [2001] NSWSC 1170
Remarks on Sentence.
Assault.
Offender stood trial for murder. The jury returned a verdict of not guilty. Following the verdict, the sentencing judge was asked to deal with a charge of assault as a related offence pursuant to the provisions of Pt 2 Div 4 Criminal Procedure Act 1986. The evidence upon which the Crown relied in support of the assault charge was the evidence given by the offender at his trial for murder. The assault charge formed part of a series of connected events which culminated in the deceased being placed inside an industrial waste bin & set alight.
Aboriginal - itinerant lifestyle - alcohol abuse - lengthy criminal record including offences of violence - previous imprisonment.
Sentenced to 12m.
568

SCHLENERT, Darren John - CCA, 21.11.2001
Barr & Adams JJ
Citation: R v Schlenert [2001] NSWCCA 481
Sentence appeal.
Carnal knowledge of girl between the ages of 10 & 16 (namely 12 or 13).
12m GBB.
Applicant pleaded guilty in the LC to the above charge & adhered to his plea in the DC when the matter came up for sentencing. Applicant was aged 14 or 15 at the time of the offence. The applicant had sexual intercourse with the complainant in the back seat of a car, then an older boy got into the car & had sexual intercourse with her. The complainant told her mother but the mother decided not to report the matter to the police. Some days later, the applicant went to the complainant's house & apologised for what he had done. Some 18 years later, the complainant's husband found out what had happened & he arrested the applicant & took him to the police station. Almost a year later, police interviewed the husband & more than a further year later, police interviewed the applicant. He made full admissions of everything he was able to remember. Only then was he charged.
Delay in complaint - delay in being charged - stale offence - obliged to take into account R v DJS [2001] NSWCCA 189 - good character - in regular employment - no risk to the community.
Appeal allowed: orders made by sentencing judge quashed; an order made by the CCA pursuant to s.10 Crimes (Sentencing Procedure) Act that the charge be dismissed.
569

WATE, Vula - CCA, 19.11.2001
Barr & Adams JJ
Citation: R v Wage [2001] NSWCCA 474
Conviction appeal.
1 x robbery in company with wounding.
8y with NPP of 4y.
Vicious attack upon a taxi driver in which he sustained various injuries, including being stabbed in the arm and chest.
Pre-sentence custody not taken into account.
Appeal allowed: resentenced to 8y with NPP of 4y, backdated by 108 days in order to take into account pre-sentence custody.
570

PHOMARANUPHONG, Cherdchai - NSW SC, McClellan J, 28.11.2001
Citation: R v Phomaranuphong [2001] NSWSC 1157
Judgment on Special Hearing.
Accused was indicted on a charge of murder. On 1.12.2000, Barr J found him unfit to be tried. On 9.7.2001, the Mental Health Review Tribunal determined that the accused would not become fit to be tried for the offence within 12 months of the finding of unfitness. The AG directed a special hearing be conducted in accordance with s.18 of the Mental Health (Criminal Procedure) Act 1990. Accused elected the special hearing be conducted by a judge alone.
Accused claimed to have killed the deceased & planned on killing himself so that they could be together in the after-life. Psychiatric opinion that he was suffering from a mental illness at the time of the killing and that he still suffers from that mental illness.
Defence of mental illness established.
Not guilty on grounds of mental illness.
571

CAMILLERI, Victor - CCA, 19.12.2001 - 127 A Crim R 290
Meagher JA, Dowd & Kirby JJ
Citation: R v Camilleri [2001] NSWCCA 527
Conviction appeal.
Count 1: knowingly take part in supply of prohibited drug (cannabis leaf) - 5y 8m with NPP of 4y 3m;
Appellant was also charged on a 2nd count: knowingly take part in supply of prohibited drug (ecstasy). The jury returned a verdict of guilty on Count 1 but failed to agree upon the 2nd count.
Police conducted surveillance on the premises of Lesley Kalache. Video cameras & a listening device were installed.
Crown case relied upon recorded conversations between Kalache & a person referred to on the tapes as 'Victor', alleged by the Crown to be Victor Camilleri. The Crown also relied upon an association during the relevant period between Camilleri & Kalache.
Circumstantial evidence direction - voice identification warning - need to include matters affecting reliability of identification - inferences arising from counsel's conduct of cross examination - need for circumspection when drawing inference.
Appeal allowed: conviction quashed on Count 1 - new trial ordered.
572

RAVET, Shane John - CCA, 6.12.2001
Stein JA, Hidden & Kirby JJ
Citation: R v Ravet [2001] NSWCCA 535
Crown appeal.
BE&S.
Guilty plea. Respondent had also pleaded guilty before the LC to a BE&S offence & this matter was also before the sentencing judge.
Total of 2y with NPP of 12m.
Aged 29 - lengthy criminal history - 75% of last 14 years spent in juvenile institutions & prison.
Offence committed whilst on parole - objective seriousness of offence - deterrence - drug addiction - rehabilitation program - double jeopardy - appellate discretion.
Appeal dismissed.
573

PORTER, Christopher Mark - CCA, 2.11.2001 - 126 A Crim R 83: 53 NSWLR 354
Spigelman CJ, Studdert J, Ireland AJ
Citation: R v Porter [2001] NSWCCA 441
Stated case.
Appellant arrived in Sydney having flown from Western Australia. Police were waiting for him at the airport after received information about him. Appellant was charged with goods in custody (a bag containing $150,000 in Australian currency).
Validity of Commonwealth Places (Application of Laws) Act 1970 (Cth) - whether Commonwealth DPP has exclusive authority to conduct proceedings - s.6(1) Director of Public Prosecutions Act 1983 (Cth) - whether State DPP can conduct proceedings - s.24 Director of Public Prosecutions Act 1986 (NSW) - whether State police can arrest and search in a Commonwealth place.
Whether inconsistency between s.527C of the Crimes Act 1900 (NSW) and the Proceeds of Crimes Act 1987 (Cth).
No inconsistency, therefore determination not erroneous in law.
574

AHMED, Emad - CCA, 21.11.2001
Heydon JA, Dowd & Bell JJ.
Citation: R v Ahmed [2001] NSWCCA 450
Conviction and sentence appeal.
Insurance fraud (accessory before the fact to the burning down of appellant's business premises).
18m with NPP of 9m.
Appellant was the proprietor of a fruit shop. He asked an employee if he wanted to earn some extra cash by burning down the shop so that the appellant could claim the insurance money. The employee accepted the offer & duly set fire to the shop. Appellant was charged under s.197(b) of the Crimes Act 1900 (NSW). At trial, the employee gave evidence against the appellant.
Directions - 'gain'- 'dishonesty'- whether requirement to warn under s.165 Evidence Act - whether witnesses' evidence was hearsay.
Appeal dismissed.
575

WRIGHT, David Andrew - NSW SC, Adams J, 13.9.2001
Citation: R v Wright [2001] NSWSC 1050
Remarks on Sentence.
Murder; + offence on Form 1 (aggravated robbery with wounding).
The murder offence arose out of the killing (stabbing) of a middle-aged woman in her own home. The offence was motivated by robbery, the offender having broken into the home with the intention of robbing the victim. He killed the victim to prevent identification. The offender had previously worked for the victim & her husband.
Aged 15 - guilty plea - troubled childhood - some prospects of rehabilitation - relative immaturity.
Assessment of appropriate sentence.
Sentenced to 22y with NPP of 16*y.
576

BARBY, Owen Albert - NSW SC, O'Keefe J, 18.12.2001
Citation: R v Barby [2001] NSWSC 1169
Remarks on Sentence.
Manslaughter.
Offender stood trial for murder, was found not guilty upon that charge but guilty of manslaughter. Deceased died as a result of being shot in the chest with a single round from a shotgun discharged at close range.
Absence of specific intent - deliberate shooting - drunkenness - drugs - cannabis - aggravation - mixture of drink, drugs & dangerous weapons - subsequent behaviour - concealment of crime, death & body - special circumstances - held in protective custody.
Sentenced to 10y with NPP of 6y.
577

PERESE, Jonathon - CCA, 13.12.2001 - 126 A Crim 508
Beazley JA, Hulme & McClellan JJ
Citation: R v Perese [2001] NSWCCA 478
Sentence appeal.
2 x armed robbery - 6*y with NPP of 4y.
Applicant was charged with robbing two banks. Moneys taken were $99,000 from the NAB & $26,500 from Westpac. In imposing sentence, the sentencing judge found special circumstances because of the applicant's youth, contrition, remorse & prospects of rehabilitation.
Whether sentence manifestly excessive - whether principles in Henry applied - whether adequate weight given to guilty plea - whether sentencing judge erred by not separately identifying component of sentence relating to different offences.
Appeal dismissed.
578

VITSOS, Nicholas - CCA, 10.12.2001
Greg James & Whealy JJ
Citation: R v Vitsos [2001] NSWCCA 528
Sentence appeal.
5 x BE&S.
Total of 4y with NPP of 3y.
Offences involved breaking into & ransacking residential premises. Total value of property stolen was $28,370. Applicant was apprehended following the matching of his fingerprints with those found at the various scenes.
Aged 32 - poor literary skills - consistent substance abuse.
Whether error in failure to find special circumstances warranting a lesser NPP & a longer period of parole.
Appeal dismissed.
579

SIMPSON, Neil Andrew - CCA, 19.12.2001 - 53 NSWLR 704; 126 A Crim R 525
Spigelman CJ, Mason P, Grove & Sully JJ, Newman AJ
Citation: R v Simpson [2001] NSWCCA 534
Sentence appeal.
7 x obtain money by making false statement; + 25 similar offences on a Form 1 taken into account.
3*y with NPP of 2y 7m.
The counts in the indictment involved loan applications to three different banks containing material particulars which were known by the applicant to be false. Guilty pleas.
Special circumstances - s.44(2) Crimes (Sentencing Procedure) Act 1999 - statutory trigger for re-sentencing - s.6(3) Criminal Appeal Act 1912.
Appeal dismissed.
580

RAY, David Stafford - NSW SC, 13.12.2001
Citation: R v Ray [2001] NSWSC 1145
Remarks on Sentence.
Manslaughter.
The deceased was the prisoner's mother. Her death arose as a result of the combined effects of alcohol which she had ingested & morphine with which she had been injected by the prisoner. The Crown asserted that the killing amounted to manslaughter because the act causing death was deliberately done in circumstances which amounted to assault as the deceased had not consented to being injected with morphine. In the alternative, it asserted that even if consent had been given by the deceased, the killing still amounted to manslaughter because the death arose out of an unlawful & dangerous act.
Onus & standard of proof - analysis.
Sentenced to 7*y with NPP of 4y.
581

JOINER, Patrick - NSW SC, 14.12.2001
Citation: R v Joiner [2001] NSWSC 1163
Remarks on Sentence.
Murder.
Deceased was the prisoner's wife. Prisoner claimed his wife had disappeared & enlisted her family & friends to conduct a search for his wife. Police found her body in a state of advanced decomposition in the boot of her vehicle. Forensic evidence that injuries included a 10 millimetre laceration to her left upper lip; extensive bruising around the left side of the jaw, extending onto the left upper neck area; a 10 millimetre laceration lateral to the right eye; a 14 millimetre long curved full thickness laceration of the right parietal scalp above & behind the ear with associated bruising in the deep scalp; a curved 45 millimetre long full thickness laceration on the posterior right parietal scalp behind & just above the right ear.
History of violence by prisoner towards deceased - evidence from former wife & 2 other women that prisoner was prone to outbursts of anger in domestic situations.
Sentenced to 18y with NPP of 13*y.
582

HOLMES, Barney Bernard - NSW SC, 18.12.2001
RATU, Jeremaia
Citation: R v Holmes & Ratu [2001] NSWSC 1183
Remarks on Sentence.
Murder.
The deceased was a taxi driver. He was kicked & punched by both offenders over a period of at least 10 minutes & died some 12 hours later. Both offenders pleaded guilty to the charge of murder.
Each sentenced to 16y with a NPP of 12y.
583

AB - CCA, 15.12.2001
Spigelman CJ, Sully & Adams JJ
Citation: R v AB [2001] NSWCCA 496
Conviction and sentence appeal.
6 x homosexual intercourse with child between ages of 10 & 18 years.
Complainant was distantly related to appellant. Appellant went to live with complainant's family & appellant & complainant slept in complainant's bedroom for some 2 years. There were 2 beds in the bedroom. Appellant later met with complainant in various places. Specific offences were specified in the 6 counts on the indictment, however, Crown sought to prove that they were but examples of continuing acts of sexual behaviour over a period from when the complainant was 10 years old to when he was 16 years of age.
Tendency evidence - requirement to give notice - Reg 6, Evidence Regulations 1995 - nature of requirement - whether reference to extrinsic documents.
Appeal dismissed.
584

GRIFFIS, Leigh Barry - NSW SC, McClellan J, 13.12.2001
Citation: R v Griffis [2001] NSWSC 1154
Remarks on Sentence.
Manslaughter.
Offender shot the deceased when they were camped near Dawes Creek in the Hunter Valley. At the time of the offence, the offender & deceased were heavily intoxicated & affected by cannabis. Offender was charged with murder, however, the Crown accepted his plea to manslaughter.
Guilty plea - provocation - assistance to police.
Sentenced to 7y with NPP of 5y 3m.
585

LORD, Luke Thomas - CCA, 4.12.2001
Stein JA, Hidden & Howie JJ
Citation: R v Lord [2001] NSWCCA 533
Crown appeal.
Aggravated B&E with intent; + an offence of AOABH taken into account - 12m GBB.
Respondent & another young person made a forced entry into the home of a 71 year old woman & searched for money or jewellery to steal. When the victim entered the room they were searching, offenders grabbed a tapestry carry bag & forced their way past the woman in order to escape. This caused the victim to fall heavily onto the floor & injure herself.
Young offender - excellent prospects of rehabilitation - extenuating circumstances - double jeopardy.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 18m suspended sentence.
586

FOLLI, Michael - CCA, 19.12.2001
Mason P, Sperling & McClellan JJ
Citation: R v Folli [2001] NSWCCA 531
Conviction and sentence appeal.
Multiple counts of indecent assault and sexual intercourse without consent.
Total of 9y with NPP of 6y 9m.
The 2 complainants were brothers. The 1st complainant made complaint when he was aged 31, alleging offences occurred when he was aged between 10 & 14. The 2nd complainant was aged 32 when he made complaint, alleging offences occurred when he was aged 15. Appellant was a brother in a religious order & taught the 2 complainants at a college where they were students.
Over 17 year delay in complaint - Longman warning required rather than mere comment on delay - direction fundamentally flawed.
Appeal allowed: new trial ordered.
587

RONDO, John - CCA, 24.12.2001 - 126 A Crim R 562
Spigelman CJ, Simpson J, Smart AJ
Citation: R v Rondo [2001] NSWCCA 540
Conviction appeal.
Supply prohibited drug (cannabis leaf - 224 grams); cultivate prohibited plant (59-63 cannabis plants).
2y suspended sentence.
Police stopped a vehicle driven by appellant, searched it & allegedly found $860 in the console & some cannabis leaf in the glove-box. Appellant was arrested & taken to Chatswood Police Station but refused to answer questions. Police obtained a detention warrant & a search warrant to search the home where he lived with his mother. During the search of the home, they allegedly found some cannabis leaf & some cannabis plants.
Admissibility of admissions made to police but not tape recorded - error in determining detention warrant issued pursuant to s.356E Crimes Act was valid - balancing of conflicting interests of police investigations & rights of citizens - importance of contents of application, prescribed form of application requires amendment to elicit information required by Act - grounds specified for issue of search warrant insufficient - admissibility of evidence - exercise of discretion under s.138 Evidence Act flawed.
Appeal allowed: convictions quashed, verdict of acquittal entered.
588

BEATTIE, John - CCA, 7.12.2001 - 127 A Crim 250
Mason P, Sully & Levine JJ
Citation: R v Beattie [2001] NSWCCA 502
Conviction appeal.
Attempt escape.
Early one morning, prison officers discovered a rope over an exterior wall of the prison. The rope was entangled in the razor wire. Some electrical flex cord was on the ground beneath the rope and on the other side of the wall was an extension ladder tied to the other end of the rope. A pair of heavy gloves & some oranges were also on the ground.
Crown relied upon circumstantial evidence. Upon viewing the security video, 3 prison officers identified the appellant as the prisoner attempting to escape. That video tape has been missing since the trial. The security video was not a moving picture but rather a time-lapse camera, taking a series of photographs every 4 seconds.
Whether appellant was prisoner who attempted to escape - police witnesses in no better position than jurors to make relevant comparison - Court unable to inform itself as to critical issue.
Appeal allowed: conviction and sentence set aside, new trial ordered.
589

VAN DAM, Jeanette - CCA, 12.12.2001
Greg James & Bell JJ
Citation: R v Van Dam [2001] NSWCCA 507
Sentence appeal.
1 x BE&S.
3y with NPP of 1y.
No objective facts provided.
Aged 23 at time of offence - early guilty plea - on probation at the time - priors including property, violence, driving, drug, dishonesty - previous imprisonment.
Sole ground of appeal related to commencement date of sentence.
Appeal allowed: sentence backdated to take into account pre-sentence custody.
590

CARLAW, Lindsay Paul - CCA, 23.11.2001
Barr & Adams JJ
Citation: R v Carlaw [2001] NSWCCA 479
Sentence appeal.
1 x steal from dwelling house; 1 x aggravated break, enter & commit an indictable offence; + matters taken into account (1 x cause malicious damage to property; 1 x self-administer cannabis).
Aggregate total of 5y 2m with NPP of 3y 9m.
The 1st count involved applicant & another man entering a room at a motel & stealing money. The malicious damage to property occurred when they tried to steal a wallet from a parked car at the motel. They damaged a window in the attempt. The following night they entered a house & stole money from a bag.
Guilty plea - aged almost 30 at time of sentencing - long history of BE&S starting at age 11 - previous imprisonment - drugs - alcohol - need for extended period of supervision.
Appeal allowed: resentenced to aggregate total of 3y with NPP of 1*y.
591

KG - CCA, 12.12.2001 - 54 NSWLR 198; 129 A Crim R 42
Priestley JA, Greg James & Kirby JJ
Citation: R v KG [2001] NSWCCA 510
Proceedings brought by the Crown on questions of law pursuant to s.5A(2) Criminal Appeal Act 1912 (as amended).
Questions concerned the interpretation of R v Tillott and the effect upon it of the Evidence Act 1995 (NSW).
KG was acquitted following a trial in which he faced 2 counts of unlawful carnal knowledge of a girl under 16. During cross examination, complainant said she had undergone eye movement de-sensitisation & reorganisation (EMDR) treatment administered by a psychologist. On the basis of this evidence, counsel for KG submitted that the whole of the complainant's evidence should be excluded in view of the decision in R v Tillott (1995) 38 NSWLR 1 in which it was stated that evidence from a witness treated by EMDR was not admissible unless in the course of the treatment particular procedures had been followed by the person administering the treatment. It was common ground that these procedures had not been followed during the complainant's treatment & that if her evidence was excluded, the prosecution of KG must fail.
Whether error in admitting evidence.
Held: R v Tillott laid down advisory guidelines not mandatory rules of exclusion - not necessary to answer other questions following upon question 1.
592

RY - CCA 21.11.2001
Barry & Adams JJ
Citation: R v RY [2001] NSWCCA 499
Sentence appeal.
Robbery with corporal violence.
12m with NPP of 9m
Applicant accosted the victim in a shopping mall & asked for money. He refused, whereupon she punched him in the face & head & yelled for 2 acquaintances to help her. The 3 offenders then repeatedly punched & kicked the victim, even after he had collapsed to the ground. As the assaults became more serious, applicant took a mobile phone from the victim & left the scene. The other 2 offenders continued attacking the victim & one offender stabbed the victim before all three offenders ran away.
Aged 13* at time of offence - borderline intellectual functioning - conduct disorder, suffering from depression - erratic behaviour.
Child - whether should be dealt with according to law - whether mode of dealing with co-offenders relevant - adjournment under s.11 Crimes (Sentencing Procedure) Act 1999 - whether permissible to require bond.
Appeal allowed: resentenced to 1 year control order with conditional parole.
593

JOHNSON, Raymond - CCA, 12.12.2001
Greg James & Bell JJ
Citation: R v Johnson [2001] NSWCCA 517
Sentence appeal.
5 x armed robbery (knife); 3 x robbery.
Total of 11y with NPP of 7*y.
Applicant committed a series of robberies against staff employed at convenience stores in various Sydney suburbs over a 6 month period. On five such occasions, applicant threatened staff with a knife in order to obtain money & during one of these robberies he assaulted an employee who tried to stop him escaping. Applicant returned on 3 occasions to a store he had previously robbed. When staff recognised him, they handed money to him.
Early guilty plea - aged 28 at time of offences - on parole - priors: property & violence - previous imprisonment.
Global criminality of series of offences - principles enunciated in Pearce (1998) 194 CLR 610 - whether sentence manifestly excessive.
Appeal allowed: resentenced to total of 8y with NPP of 4*y.
594

SMITH, Edwin John - CCA, 21.11.2001
Barr & Adams JJ
Citation: R v Smith [2001] NSWCCA 475
Sentence appeal.
1 x aggravated sexual intercourse without consent (having inflicted ABH upon complainant); 1 x sexual intercourse without consent.
Total of 7y with NPP of 5y 9m.
The offences were committed upon a young woman of limited intellect.
Aged 27 at time of offences - married with 3 children - limited education - illiterate - priors - father had given him alcohol at an early age & he had become an alcoholic by age 14 - failed attempts at overcoming alcohol addiction - no real problem with drugs.
Whether error in failure to fix NPP less than three quarters.
Appeal dismissed.
595

ZVONARIC, Peter Ian - CCA, 14.12.2001 - 54 NSWLR 1; 127 A Crim R 9
Spigelman CJ, Sully & Adams JJ
Citation: R v Zvonaric [2001] NSWCCA 505
Conviction and sentence appeal following a special hearing pursuant to Pt 2 Mental Health (Criminal Procedure) Act 1990.
Appellant was charged with a number of offences which occurred following his occupation of a hotel room.
Count 1: maliciously damage property with intent to endanger life.
Count 2: malicious damage by means of fire.
Counts 3,4,5: resist police officers in execution of their duty.
12m GBB.
Appellant unfit for trial - special hearing - necessity for arraignment - whether evidence must be sworn -whether person charged may consent to tender of entire prosecution case - desirability of reading tendered statements - adequacy of reasons.
Admissions - s.184 Evidence Act - conventional trial - special hearing - s.21(3) of the Act - absence of express explanation. Evidence Act - principles of law & findings of fact - requirements of s.21B(2)
Appeal allowed: verdicts of acquittal entered.
596

JOHNSON, Raymond Richard - CCA, 23.11.2001 - 125 A Crim R 564
Hodgson JA, Simpson & Barr JJ
Citation: R v Johnson [2001] NSWCCA 465
Crown appeal under s.5F Criminal Appeal Act 1912 against an order permanently staying criminal proceedings against respondent.
2 x kidnap; AOABH; assault; possess prohibited weapon.
Original intention of Crown to proceed with joint trial against respondent & co-offender. Matter adjourned on a number of occasions. Crown unable to proceed with joint trial as co-offender to face trial in Melbourne in an unrelated matter which also involved co-accused. Refusal of legal aid precipitated the application for a permanent stay.
Whether stay order justified.
Appeal allowed: order appealed against vacated.
597

WAN, Yu Ming - CCA, 23.11.2001
PHAN, Canh Loc
Barr & Adams JJ
Citation: R v Wan & Phan [2001] NSWCCA 501
Sentence appeal.
Wan: 2 x supply large commercial quantity heroin.
Phan: 1 x supply large commercial quantity heroin.
Both applicants were sentenced to 10y with NPP of 7*y.
Wan's offences came to light as a result of an undercover operation by the NCA. An undercover operative entered into a transaction whereby Wan supplied the operative with 350.4 grams of heroin for $51,000 in cash. She later agreed to supply 5 blocks of heroin similar to the block already supplied at a price of $50,000 each.
Phan supplied heroin on one occasion. The difference in substantive criminality that separated applicants was that Wan supplied heroin on 2 occasions jointly with Phan & on one occasion on her own account.
Error in assessing Phan's criminality as being the same as that of Wan - sense of grievance: Lowe 154 CLR 606 - insufficient discount given for utilitarian value of guilty plea by both applicants.
Appeal allowed. Resentenced to: Wan - 9y with NPP of 6y 9m; Phan - 7*y with NPP of 5y 7m.
598

MAROUCHE, Fadal - CCA, 23.11.2001
Barr & Adams JJ
Citation: R v Marouche [2001] NSWCCA 500
Sentence appeal.
2 x aggravated BE&S (armed with a pistol); 2 x aggravated BE&S with intent (armed with a syringe containing Hepatitis C); 1 x being armed with intent to rob (syringe); + 29 BE&S offences on a Form 1.
12y with NPP of 8y.
Offences involved applicant breaking into homes where elderly people resided. Some victims suffered injuries at the hands of the applicant. When police arrested the applicant in a car park following the commission of the final offence, he still had items he had stolen from the last victim. Applicant made ready admissions as to the matters on the Form 1, although there was no evidence to link him to those offences.
Aged 24 - prospects of rehabilitation - significant degree of assistance to police.
Whether sentence excessive.
Appeal allowed: resentenced to total of 7y with NPP of 6*y.
599

SHAW, Wayne Keith - CCA, 21.11.2001
Barr & Adams JJ
Citation: R v Shaw [2001] NSWCCA 498
Sentence appeal.
1 x supply amphetamine (.41 grams sold for $50) - 30m with NPP of 22*m.
The matter could have been determined in the LC, however, the applicant was also facing charges relating to 6 other counts involving the supply of drugs. Applicant was sentenced on the basis that he was 'a small-time dealer in amphetamines and it would appear in the past he has dealt in cannabis'.
Error in taking other offences into account in sentencing - whether sentence excessive.
Appeal allowed: resentenced to 2y with NPP of 12m.
600

ARNOTT, Diane Joan - CCA, 19.11.2001
Barr & Adams JJ
Citation: R v Arnott [2001] NSWCCA 497
Sentence appeal.
Supply heroin on 4 occasions for financial gain; + 5 x supply heroin taken into account.
Sentence not stated, although mention is made of a 5 year starting point & also that the sentencing judge declined to give the full benefit of a 25% discount.
Applicant's arrest occurred as a result of a controlled operation targeting the supply of drugs in the Orange area. Undercover police operatives purchased foils from the applicant on different occasions for $50 per foil. The total weight of drugs sold was 0.2 of a gram. When interviewed by police, applicant made full admissions.
Aged 47 at time of offence - selling for profit, not to feed a drug habit - in desperate financial need - a child to support.
Guilty plea at earliest opportunity - utilitarian discount - assistance - need to take into account avoidance of necessity to call undercover police.
Whether sentence excessive.
Appeal allowed: resentenced to 2y 8m with NPP of 2y.