Short Notes 2003

 



 

1

CAKOVSKI, Daniel - NSW SC, O'Keefe J, 8.1.2003
Citation: R v Cakovski [2003] NSWSC 1
Remarks on Sentence.
Murder.
The offence involved the multiple stabbing of a 53 year old man during the course of a robbery.
Issue of provocation left to the jury together with issue of self-defence.
Aged 19 at time of offence - objective seriousness of crime - general deterrence - remorse - contrition - rehabilitation - totality - drug addiction - special circumstances.
Sentenced to: 18y with NPP of 12y.
2

FORD, Glen Ian - CCA, 6.2.2003
Heydon JA, Hulme & Hidden JJ
Citation: R v Ford [2003] NSWCCA 5
Conviction and sentence appeal.
Murder.
16y with NPP of 12y.
Accused stabbed victim in a fight, becoming angered when victim made racist jokes. He had armed himself with a knife before provoking the fight. Evidence that he intended to kill the victim, having pursued him persistently over some hours, as well as making threats about stabbing him in the chest.
Supply of questionnaire to jury by trial judge - whether substitute for oral directions - jury request for 'previous testimony' of witness - testimony not in evidence - need for independent pathologist - failure to supply photographic evidence - jury member conflict of interest - circumstantial case.
Appeal dismissed.
3

RISCUTA, Doru - CCA, 6.2.2003
NIGA, Mariana
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Riscuta and Niga [2003] NSWCCA 6
Conviction and sentence appeals.
Riscuta: conspire to supply prohibited drug (heroin); alternate charge of supply heroin - 8y with NPP of 6y.
Niga: conspire to supply prohibited drug (heroin) - 6y with NPP of 4*y.
Police intercepted telephone conversations between Niga & Riscuta, wherein it was agreed that Riscuta would hand over a quantity of heroin to Niga's brother-in-law to enable him to make a delivery. The brother-in-law arrived at Riscuta's unit & received 193 grams of heroin, a bus ticket, a piece of an envelope on which the delivery address was written & $500 in cash.
Admissibility of voice identification evidence - relevance - s.55(1) Evidence Act 1995 - probative value - whether trial judge's direction on voice identification evidence adequate - over-confidence in witness - whether witness' prior familiarity with voice identified amounted to unfair prejudice - s.137 Evidence Act - identification evidence - s.116 Evidence Act - whether summing up satisfactory - perverse verdict - execution of search warrant at night - Jones v Dunkel (1959) 101 CLR 298 - failure to call particular witness - operation of proviso to s.6(1) Criminal appeal Act 1912.
Appeals dismissed.
4

ANDREWS, Stephen John - CCA, 6.2.2003
Heydon JA, Hulme & Hidden JJ
Citation: R v Andrews [2003] NSWCCA 7
Conviction and sentence appeal.
Murder.
21y with NPP of 16y.
Appellant killed his wife by firing shots from a .22 calibre rifle. Two bullets entered her brain. Question of intent was in issue. Argument was led regarding evidence of appellant's ingestion of alcohol & Zoloft. There was expert evidence as to their effect upon appellant. The Crown case relied on evidence of appellant's movements on the night of the killing & what it described as evidence of motive, that being jealousy on the part of the appellant. The daughter of appellant & deceased gave evidence as to appellant's jealousy.
Intent to kill - state of mind - jealous & violent disposition - tendency evidence - whether error in admission of evidence - proviso.
Appeal dismissed.
5

SIEVERS, Robert Theo - NSW SC, Sully J, 18.12.2002
Citation: R v Sievers [2002] NSWSC 1257
Remarks on Sentence.
Murder.
Prisoner & victim had been arguing. Prisoner claimed the victim approached him holding a small kitchen knife. He said he took the knife from her, folded his arms about her in order to quieten her down, struggled with her, then totally lost it & stabbed her fatally with the knife. He wrapped the body in a sheet of black plastic & placed it in the boot of his car. The next day he drew money out of the victim's bank account & drove up the coast. He dumped the body into bush where it was later found. Defence case at trial concentrated upon the issue of provocation.
Aged 60 - volatile domestic situation, dysfunctional, violent. Prior serious offences including the murder of a previous wife for which he was sentenced to life imprisonment in 1980. In 1992 this life sentence was redetermined & a MT of 12*y with an AT of 5y was imposed (see R v Sievers, NSWSC, Wood J, 21.8.1992).
Sentenced to life imprisonment.
6

KOSTECOGLOU, Tass - CCA, 20.12.2002 137 ACrimR 257
Giles JA, James & Hidden JJ
Citation: R v Kostecoglou [2002] NSWCCA 514
Crown appeal.
2 x ongoing supply of heroin; 2 x ongoing supply of cocaine; + Form 1 offence (possess unauthorised firearm).
Total of 3y 2m with NPP of 12m.
Respondent was one of a number of people belonging to a syndicate involved in the large scale distribution of heroin & cocaine. The syndicate's operations were the subject of extensive police surveillance over a 3 month period. Respondent worked as a street dealer for about 2 months.
Aged 23 at time of offences - no prior convictions.
Whether sentences inadequate.
Appeal dismissed.
7

SIMMONS, Warren James - CCA, 24.12.2002
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Simmons [2002] NSWCCA 522
Conviction appeal.
Counts 1 & 2: assault with an act of indecency;
Counts 3 & 7: attempt sexual intercourse;
Count 4: sexual intercourse;
Counts 5 & 6: assault with an act of indecency.
All offences were said to have been committed in circumstances of aggravation, the complainant being aged 13 at the time. Appellant pleaded guilty to the 1st & 6th counts. He was convicted on the 2nd count & acquitted on all other counts. The Crown case depended primarily on the evidence of the complainant. There was some supporting evidence from complainant's mother, evidence of complaint, as well as admissions made by appellant in an ERISP.
Inconsistent verdicts - whether guilty verdict unreasonable.
Appeal allowed in respect of 2nd count - verdict of acquittal entered on that count.
8

GALLEGO, Alvaro Ramon Casaubon - CCA, 17.12.2002
Sheller JA, Wood CJ at CL, Sully J
Citation: R v Gallego [2002] NSWCCA 529
Sentence appeal.
Import commercial quantity cocaine.
8*y, NPP 5*y.
Applicant arrived at Sydney Kingsford Smith Airport from Buenos Aires. His luggage consisted of a suitcase, a carry bag & a golf bag. Secreted within the golf bag Australian Federal Police found 1676.6 grams of powder which, upon analysis, revealed a content of 66.5% cocaine, giving a net pure weight of 1,114.9 grams of cocaine. At the time of his arrest, applicant was in possession of US$60.
Spanish national - no family or property ties within Australia - no previous record with Australian Federal Police.
Merely a courier - Wong & Leung (1999) 48 NSWLR 340 - general & personal deterrence - procedural fairness - warnings - incompetent representation - whether miscarriage of justice.
Appeal dismissed.
9

KHAN, Abdul Sameer - CCA, 19.12.2002
Giles JA, Sully & Dowd JJ
Citation: R v Khan [2002] NSWCCA 521
Conviction appeal.
2 x armed robbery.
Appellant faced trial on 8 counts (4 x robbery in company, 1 x steal MV, 3 x armed robbery). He pleaded guilty to 2 counts of armed robbery & not guilty to the remaining counts. Sentencing on the 2 counts was deferred & the trial proceeded on the remaining 6 counts. The Crown case depended on the evidence of 2 alleged co-offenders, however, each refused to answer questions asked by the Crown prosecutor. Each was then charged with contempt & later sentenced. The jury was discharged & appellant's trial relisted to a later date. Sentencing on the 2 counts to which he had pleaded guilty was also adjourned to that date. When the matter next came before the court, appellant was represented by new counsel & solicitor. He foreshadowed an application for leave to withdraw his pleas of guilty. The trial on the other counts was deferred. Application was made over the next few days, evidence taken & submissions received. The trial judge refused leave to withdraw the pleas of guilty. The remaining 6 counts were then the subject of a no-bill because of problems with obtaining evidence from the 2 alleged co-offenders. The trial judge was told of the no-bill & an ex officio indictment was presented for an additional charge of receiving to which appellant pleaded guilty. Appellant was later sentenced on the 2 charges of armed robbery & the receiving charge.
Failure to determine whether pleas were attributable to consciousness of guilt - whether a real question about guilt ( R v Wilkes [2000] NSWCCA 97) - whether miscarriage of justice.
Appeal dismissed.
10

MARKARIAN, Anthony - CCA, 7.2.2003 137 A Crim R497
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Markarian [2003] NSWCCA 8
Crown appeal.
Knowingly take part in supply of commercial quantity prohibited drug (heroin); + 4 matters taken into account on a Form 1.
2*y with NPP of 15m.
The principal offence consisted of acting as a chauffeur for Vincent Caccamo in connection with a substantial business Caccamo carried on of buying & distributing heroin. There were over 50 return trips made by respondent from the northern beaches to Croydon, as well as other journeys. From time to time, respondent remained with Caccamo at meetings where heroin was purchased, he made up deals for Caccamo & on occasion personally distributed heroin & collected money from Caccamo's runners. On occasions, respondent lent Caccamo money for the purpose of purchasing heroin. The quantity of heroin in the supply of which respondent was knowingly concerned was 415 grams.
Aged 37 at time of offence - drug abuse - prior drug offences.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 8y with NPP of 4*y.
11

CHACOS, Arthur George - CCA, 6.2.2003
Heydon JA, Hulme & Hidden JJ
Citation: R v Chacos [2003] NSWCCA 4
Conviction appeal.
23 x obtain money by deception.
Sentence not stated.
Each of the 23 charges involved appellant dishonestly obtaining a financial advantage by demanding sums of money by pretending to the victim that there was a real threat to his person which could be prevented by the payment of money to appellant. The charges related to a series of offences over a 4 year period. The victim was the uncle of the appellant. The various amounts of money involved payments ranging from $1,500 to $160,000. Throughout the period, the appellant & his wife received Newstart benefits from Centrelink from September 1993 to December 1997. The appellant's wife also received the Parenting Allowance from 1994 until the end of 1997.
Whether verdict unreasonable - beyond reasonable doubt - standard of proof - independent assessment of evidence - reliability of witness - credibility.
Appeal dismissed.
12

AZZI, Charle - CCA, 6.2.2003
Hodgson JA, Sully & Buddin JJ
Citation: R v Azzi [2003] NSWCCA 10
Crown appeal.
Armed robbery; + a similar offence taken into account.
2y suspended sentence.
Respondent drove himself & his co-offender to the vicinity of a service station in Padstow. After observing patrons at the premises, respondent & co-offender covered their faces with balaclavas then entered the service station. Respondent wielded a piece of timber, raised it above his head & demanded that the console operator open the till, which the operator did. Respondent took the till & ran from the premises. The offence taken into account involved a robbery of a service station in Moorebank. In this robbery, the employee of the service station activated the duress alarm button. Respondent grabbed some chocolate bars worth about $20 from the display shelf then he & his co-offender ran from the premises.
Guilty plea - intellectual disability - court's discretion.
Whether sentence manifestly inadequate.
Appeal dismissed.
13

SCHOFIELD, Vichai - CCA, 6.2.2003 138 A Crim R 19
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Schofield [2003] NSWCCA 3
Crown appeal.
1 x attempt obtain possession of commercial quantity MDMA (ecstasy); + 2 further offences taken into account (possess trafficable quantity methylamphetamine or ice, attempt obtain trafficable quantity amphetamine).
2y 4m with NPP of 18m.
A crate was airfreighted to Sydney from Jakarta. It contained an automotive transmission assembly weighing approx 46 kgs which was wrapped in clear plastic. Tablets were secreted in or about the inner housing of the transmission assembly. Respondent was arrested following police surveillance.
Guilty plea - respondent elected not to give evidence at the sentence hearing.
Whether & to what extent judge entitled to act upon hearsay material - probation & parole report & statements made from the bar table - appropriate allowance for assistance to authorities considered.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 5y with NPP of 3y.
14

SHEPHERD, Gregory - CCA, 6.2.2003
Heydon JA, Hulme & Hidden JJ
Citation: R v Shepherd [2003] NSWCCA 9
Crown appeal.
Sexual intercourse without consent.
4y with NPP of 2y.
Respondent entered the home of a defenceless 69 year old woman at night & committed the offence upon her.
Aged 19 at time of offence - guilty plea - general & specific deterrence - special circumstances.
Whether sentence manifestly inadequate.
Appeal dismissed.
15

SORRELL, Michael Peter - NSW SC, Greg James J, 7.2.2003
Citation: R v Sorrell [2003] NSWSC 30
Judgment.
Murder.
The victim & his brother went to an electrical retailer to purchase electrical components. The accused was present at those premises but left the store shortly thereafter. The victim & his brother left the store, then went to another electrical store. They were followed by the accused. When the victim & his brother left that store & returned to their vehicle, the accused approached them, spoke to the victim, then killed the victim with a knife. He then chased after the victim's brother, who managed to get away. Police found the accused asleep in his vehicle the following day. He had a large hunting knife & was in possession of the victim's wallet, which enabled police to link him to the murder. Accused admitted intent to kill deceased.
Defence of mental illness - history of mental illness - paranoid schizophrenia - confinement in various institutions - previously dealt with for serious crimes.
Verdict of not guilty by reason of mental illness.
16

HICKEY, William George - CCA, 29.11.2002 137 ACrimR 62
Spigelman CJ, Sully & James JJ
Citation: R v Hickey [2002] NSWCCA 474
Conviction appeal.
2 x armed robbery.
Total of 5*y with NPP of 3*y.
Appellant was convicted under s.97(2) Crimes Act 1900. The Crown case was that appellant & his 2 co-offenders, one co-offender armed with a pistol, robbed the proprietor of a newsagency of a sum of money taken from the till & also robbed the victim's son of a black bag & its contents. Appellant & one co-offender pleaded not guilty to the above offences, the other co-offender pleaded guilty to robbery. The Crown called a number of civilian & police witnesses at trial. There was no dispute as to the evidence given by civilian witnesses.
Joint criminal enterprise - principles of law - directions.
Conceded by counsel for appellant that pursuant to s.7(2) Criminal Appeal Act, the Court should substitute verdicts of guilty of robbery simpliciter (s.94 Crimes Act) for those of guilty of armed robbery as found by the jury.
Appeal allowed: Convictions for offences under s.97(2) Crimes Act quashed. The Court substituted verdicts of guilty for 2 offences of robbery under s.94 Crimes Act - sentence of 3y with NPP of 2y imposed.
17

PECKOVER, Brien William - CCA, 15.11.2002 135 A Crim R 400
Wood CJ at CL, Dowd J
Citation: R v Peckover [2002] NSWCCA 468
Sentence appeal.
Attempt to cause child under 14 years to participate in child prostitution.
4y with NPP of 2y.
Appellant met with a woman who was involved in prostitution. He expressed an interest in meeting her 10 year old daughter. The woman went along with the appellant in order to obtain information to give to police. Appellant asked the woman if he could meet the daughter & they agreed on a price of $600 for appellant to see the daughter. The woman then notified the police. She was fitted with a listening device. An arrangement was made for the daughter to meet the appellant. Police arrested the appellant after he had paid $600 to the woman & described to her in detail what he intended doing to the daughter.
Aged 50 at time of offence - early guilty plea - need for close supervision upon release - priors (attempt obtain money by false representation) - no previous imprisonment.
Impossibility of appellant participating in offence - Taouk (1992) 65 A Crim R 307 followed - special circumstances - specific deterrence.
Appeal dismissed.
18

SJH - CCA, 29.11.2002
Spigelman CJ, Sully & James JJ
Citation: R v SJH [2002] NSWCCA 532
Crown appeal.
2 x use false instrument; 4 x obtain financial advantage by deception; + Form 1 matters taken into account (2 x possess prescribed restricted substance).
Total of 2y with NPP of 12m.
Respondent acquired a business name under an alias & opened an account with Macquarie Investment Management Pty Ltd in that business name, upon which account he conducted transactions under an alias. Between September 2000 & June 2001, 7 cheques were drawn on the Westpac bank account of Caltex Australia Limited to the favour of "the Customs officer". Four of these cheques, totalling an amount of $624,968.13, were deposited to the Macquarie Bank account opened by respondent. The 4 cheques drawn on the Caltex Westpac Bank account paid into the Macquarie account constituted 4 breaches of s.178AB; 2 breaches of s.300(2) were constituted by the use of documentation in March 2000 to obtain the transfer of an amount of $285,000 at the direction of the respondent & the use of documentation in July 2001 to transfer an amount of $165,000 to an account in Lebanon. Respondent pleaded guilty to the charges & gave evidence at trial. In his evidence, he told the sentencing judge that he had committed the acts at the direction of another man, a Mr Moussa, whom he feared & whom he regarded as a dominant figure
Failure to consider prior conviction - failure to consider offences committed whilst on GBB - whether sentence manifestly inadequate - prior offence unrelated - offender previously a police officer - range of permissible discretion.
Appeal dismissed.
19

CAPAR, Yasin - CCA, 18.12.2002 - 136 A Crim R 564
Mason P, James & Dunford JJ
Citation: R v Capar [2002] NSWCCA 517
Crown appeal.
1 x supply large commercial quantity heroin; 1 x supply commercial quantity cocaine; 1 x money laundering; 1 x discharge firearm in manner likely to injure another person; + offences taken into account (2 x hinder police, 1 x intimidate police, 1 x offensive conduct, 1 x purchase firearm from unlicensed person).
Total of 6y with NPP of 3y.
Respondent joined a drug supply business operated by one of his brothers. Two other brothers also joined the business. The business operated continuously 7 days a week & was well organised with methods of operation designed to avoid capture by police. At first, respondent was employed on a wage of $600 per week. At the time of arrest, he was earning $1,100 per week. During the period respondent was involved in the business, more than 1 kg of heroin & over 600 grams of cocaine were supplied.
Aged 30 at time of sentence - guilty pleas - assistance to authorities - gave evidence against his brothers & another man - placed in virtual solitary confinement - had already received one bashing - modest criminal record - previous good character - on conditional bail at time of offences - married with 2 young children - stripped of assets after arrest - wife & children living in rented accommodation provided by Housing Commission.
Whether sentences manifestly inadequate.
Appeal dismissed.
20

DAVIDSON, Ruthven Troy - CCA, 11.2.2003
Giles JA, Bell J, Smart AJ
Citation: R v Davidson [2003] NSWCCA 11
Conviction and sentence appeal.
7 x sexual intercourse without consent; + offences of supply & self-administer cannabis taken into account.
Total of 10y with NPP of 7*y.
Appellant claimed sexual intercourse was consensual, although complainant denied this. Complainant was aged 16 at time of offences.
Aged 49 at time of offences - Aboriginal - past activist in support of preservation & dissemination of Aboriginal spiritual life - deep & abiding interest in Aboriginal art & the culture of his people - extensive record (dishonesty, serious driving, drugs, street offences, assaults) - previous imprisonment.
Element of offences - state of mind - attempt to change basis of case on appeal - accused not giving evidence - complainant's credibility - case fought on basis of guilty of all offences or none - whether error in directions - whether verdict unreasonable - whether sentence excessive.
Appeal dismissed.
21

FOLBIGG, Kathleen Megan - CCA, 13.2.2003
Hodgson JA, Sully & Buddin JJ
Citation: R v Folbigg [2003] NSWCCA 17
Appeal from judgment refusing application for separate trials.
4 x murder.
Applicant entered pleas of not guilty to murdering her 4 children. Before the primary judge, the Crown opposed the application for separation of counts on the basis that evidence relating to the deaths of each child & an apparent life-threatening event was admissible in relation to each count as tendency evidence under s.97 Evidence Act & coincidence evidence under s.98 of the Act. The primary judge accepted the Crown's contention.
Whether primary judge in error - tendency evidence - coincidence evidence.
Appeal dismissed.
22

MERRITT, Noel Joseph - CCA, 11.2.2003
Mason P, Greg James & Kirby JJ
Citation: R v Merritt [2003] NSWCCA 14
Application for extension of time to appeal against conviction.
1 x steal MV; 1 x attempt armed robbery with wounding.
In 2000, the Crown appealed successfully against the inadequacy of sentence regarding the above matters (see R v Merritt[2000] NSWCCA 365).
Long delay before application for extension of time to appeal against conviction.
Application for extension of time refused.
23

PARKES, Damien - CCA, 17.2.2003 147 A Crim R 450
Ipp JA, Hulme & Bell JJ
Citation: R v Parkes [2003] NSWCCA 12
Conviction and sentence appeal.
7 x offences under s.596(b) Corporations Law.
Total of 5y with NPP of 3y.
Offences related to the defrauding of separate nominated companies. In each instance, appellant caused a cheque in a particular amount to be drawn by a nominated company & the proceeds to be paid to a 3rd party. Aggregate amount transferred was $162,500. At trial, appellant's defence was that he was entitled to the monies transferred as of right as he had been a consultant for one of the companies & had charged fees for services rendered.
Whether error in striking out as irrelevant part of Crown witness' testimony favourable to appellant's claim - whether error in not allowing appellant to cross-examine on evidence that was struck out - whether hearsay evidence admissible at common law as prior consistent statement - whether admissible under ss.65 or 66 Evidence Act 1995 - whether exclusion gave rise to miscarriage of justice - whether error in making appellant aware in presence of jury the effects of s.128 of the Act - whether s.132 contravened - forensic tactics where Crown used s.38 Evidence Act as a forensic device - whether unfair or improper advantage - abuse - whether failure to refer to s.192 Evidence Act an error of law - whether cumulative effect of errors resulted in lost chance of appellant being acquitted.
Appeal dismissed.
24

JAMES, Scott - CCA, 17.2.2003
James & Greg James JJ
Citation: R v James [2003] NSWCCA 22
Sentence appeal.
1 x armed robbery; 1 x aggravated assault with intent to rob; 1 x steal from the person; +Form 1 matters (2 x take & drive vehicle without consent; 1 x detain for advantage).
Total of 10y with NPP of 6y.
The victim drove to a shopping centre accompanied by her 18 month old son who was in a car seat in the rear of the car. As the victim was about to leave her car at the shopping centre, the applicant entered the vehicle & threatened her with a syringe. He took hold of the seat belt & pulled it tight, pinning the victim in the driver's seat. He then directed her to drive through a number of areas into an industrial area. He demanded her handbag, then fled.
Guilty plea - drug addiction - priors include assault, goods in custody, stealing, B&E, breach of PD, take & drive conveyances, drive whilst disqualified.
Subjective features - whether sufficient weight given - special circumstances - utilitarian value of guilty plea.
Appeal dismissed.
25

PORTEUS, Russell Edgar - CCA, 17.2.2003
Giles JA, Simpson J, Smart AJ
Citation: R v Porteus [2003] NSWCCA 18
Conviction and sentence appeal.
2 x sexual intercourse without consent.
Total of 4y with NPP of 18m.
Appellant was the proprietor of a remedial massage business. The complainants each separately attended for a massage & each received much more than they thought was appropriate. Neither of the complainants protested at the time.
Whether verdict unreasonable - consent - recklessness - whether sentence excessive.
Appeal dismissed.
26

MONROE, James Stewart - NSW SC, O'Keefe J, 14.2.2003 56 NSWLR 652
Citation: R v Monroe [2003] NSWSC 55
Judgment on application for pre-trial disclosure.
Accused charged with the manslaughter of his 3 month old son. The Crown sought pre-trial disclosure of expert medical reports obtained by the defence.
Pre-trial disclosure - application of ss.47C & 47D Criminal Procedure Act.
Complex criminal trial - complex medical evidence - criteria for complex criminal trial - words & phrases: 'and', 'or', 'having regard to', 'includes', 'is to'- compound verb 'is to' has mandatory effect - ambush - discretion - moulding order - case by case approach.
27

INAMATA, Waldo - CCA, 14.2.2003 137 A Crim R510
Handley JA, Sully & Buddin JJ
Citation: R v Inamata [2003] NSWCCA 19
Conviction and sentence appeal.
1 x armed robbery.
Total of 10y with NPP of 6*y.
The 1st count related to the armed robbery of a bank, the 2nd count to the stealing of a BMW motor vehicle. The armed robbery was committed in company, the co-offender being armed with a pistol which he used to threaten bank staff. There was no suggestion that the appellant was armed. After the robbery, appellant & his co-offender departed the scene in a BMW vehicle which had been stolen 3 days earlier. The amount of money stolen from the bank was $57,217.00, which was taken from the tellers' cash drawers.
Aged 25 at time of offences - unhappy background - drug & alcohol abuse starting in early teens - poor performance at school - rarely been in gainful employment - prior offences - previous imprisonment.
Directions - identification - reliability of identification evidence - whether summing-up lacked balance - obligation to sum up the case - parity - totality.
Appeal dismissed.
28

ELACHI, Radwan - CCA, 19.2.2003
Hulme, Greg James & Shaw JJ
Citation: R v Elachi [2003] NSWCCA 24
Sentence appeal.
3 x obtain financial advantage by deception; 2 x use false instrument; + multiple offences on 3 Form 1 documents.
Total of 4y with NPP of 2y.
Applicant obtained loans from the St. George Bank & Esanda Finance using false documentation. These loans were on occasion used to purchase motor vehicles. The total amount of money applicant obtained through his acts of fraud & which has not been recovered was $131,292, after allowing for the value of 2 motor vehicles which were recovered.
Guilty pleas - priors - 'appalling record for offences of fraud'- previous imprisonment.
Assistance to authorities - whether error in failure to give discount for assistance - whether sentence excessive.
Any adjustment would render sentence disproportionately lenient - s.6 Criminal Appeal Act 1912 applies to end result not to a mere component of the sentence - no basis to interfere.
Appeal dismissed.
29

McCANN, Allen Leslie - CCA, 17.2.2003
James & Greg James JJ
Citation: R v McCann [2003] NSWCCA 21
Sentence appeal.
4 x armed robbery; 1 x being disguised with intent to commit indictable offence.
Total of 7y with NPP of 4y (partially cumulative).
The armed robs were perpetrated upon South Muswellbrook Cellars, the South Muswellbrook Bi-Lo Supermarket, the Eagle Boys Pizza Store at Muswellbrook & the Charters General Store. At all times, applicant was armed with a knife. The offences were committed in order to feed a drug habit.
Aged 21 at time of sentence - remorse - contrition - had stopped taking illegal drugs - on Methadone programme - good prospects of rehabilitation.
Totality.
Appeal dismissed.
30

CARDOSO, Calisto - CCA, 20.2.2003 137 A Crim R535
Meagher JA, Hidden & Greg James JJ
Citation: R v Cardoso [2003] NSWCCA 15
Sentence appeal.
Manslaughter.
8y with NPP of 5y.
Applicant was tried upon an indictment charging him with murder. The jury returned a verdict of not guilty of murder but guilty of manslaughter. Applicant stabbed deceased in the head during a fight. He was sentenced upon the basis that he had the intention to inflict GBH rather than to kill & was acting under provocation.
Pre-trial offer of plea to manslaughter - whether entitled to utilitarian value as if plea accepted.
Appeal allowed: resentenced to 7y with NPP of 4y.
31

COLVILLE, Patrick James - CCA, 21.2.2003 137 A Crim R543
Handley JA, Sully & Buddin JJ
Citation: R v Colville [2003] NSWCCA 23
Conviction appeal.
Maliciously inflict GBH.
Sentence not stated. Details of offence not stated.
On the 1st day of trial, appellant had made a late return to court after the luncheon break. At the end of proceedings that day, the trial judge informed him that he was to be back at court by no later than 9:30 am the following day, however, appellant only made his appearance at court at 10:40 am. The trial judge revoked the appellant's bail & directed that he remain in custody for the remainder of the trial. During the trial, it was obvious that the appellant was not feeling well. Ambulance officers attended him & found his blood pressure, temperature, sugar levels & heart to be normal. The appellant was a heroin user & at the time was suffering withdrawal symptoms. For much of the trial, he lay prone in the dock. Defence counsel made unsuccessful submissions for an adjournment because of the appellant's obvious ill-health. The jury retired to consider their verdict on Friday 30.11.2001. At about 4:00 pm, at the trial judge's request, a court officer advised the jury that unless they had a verdict by 4.30 pm they would have to return to court on the following Monday.
Whether error in revocation of bail, refusal of bail, refusal to grant adjournment, refusal to discharge jury - whether directions adequate on appearance & ill-health of appellant, silence of appellant at trial - procedural faults during trial - impermissible contact between judge & jury - whether miscarriage.
Appeal dismissed.
32

FINNIE, Sydney Thomas - CCA, 12.12.2002
Spigelman CJ, Dunford & Howie JJ
Citation: R v Finnie [2002] NSWCCA 533
Crown appeal.
10 counts of serious fraud offences contained in 4 indictments; + Form 1 matters (7 x serious fraud offences).
Respondent was sentenced on counts 1 & 2 in the 1st indictment & counts 1, 2 & 3 in the 2nd indictment to 3 years' imprisonment to commence on 26.1.2001 & expire on 25.1.2004 with a NPP of 18 months to expire on 25.7.2002. On the remaining 5 counts in the 3rd & 4th indictments, he was sentenced to imprisonment for 2 years to commence on 25.7.2002 & expire on 24.7.2004, but these sentences were suspended on him entering into a GBB for the term of the sentences. The total effect was that he was released from custody on the day the sentences were imposed, however, he was subject to parole for a further 18 months & subject to the suspended sentences for a further 2 years.
Aged almost 62 - poor health - conditions under which he will serve his sentences - priors - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to total of 4y 4m with NPP of 2y 10m (includes pre-sentence custody).
33

CZAJKOWSKI, Hans Johannes - CCA, 17.12.2002 137 ACrimR 111
SHEPHERD, James William
Sheller JA, Wood CJ at CL, Sully J
Citation: R v Czajkowski; R v Shepherd [2002] NSWCCA 530
Conviction appeal.
Attempt obtain possession of commercial quantity MDMA (ecstasy).
Shepherd: 29y 8m 29d with NPP of 19y 8m 29d.
Czajkowski: 24y 9m 26d with NPP of 15y 9m 27d.
More than 50 kgs of ecstasy contained in rolls of foil were imported into Australia by 2 men. Police intercepted the drugs & replaced them with a controlled delivery sample. The rolls were transported to the Sydney depot of TNT in Botany. Observations were made of appellants in the company of the 2 men & around the TNT depot. The prosecution relied on these observations to support the inference that they must have known the rolls contained prohibited drugs. The 2 men met appellants at a car park where the rolls were transferred into a van in which appellants were travelling. Czajkowski was the driver. The van was observed to drive in a manner which was relied upon by the prosecution as manifesting an intention to escape from surveillance police.
Jury trial - impartiality - bias - written communication from foreperson indicating fear of bias & prejudgment by unspecified jury members - whether jury should have been discharged - whether direction overcame prejudice - whether reasonable apprehension that jury had not discharged its task impartially.
Appeals allowed: new trials ordered.
34

JAQUES, Shane Horace - CCA, 11.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Jaques [2002] NSWCCA 444
Sentence appeal.
Threaten reprisal against a judicial officer.
2y with NPP of 1y.
Applicant attended the court office at Tumut to complete an application form in respect of a matter before the court. The officer attending him made reference to the applicant having to attend court at Wagga. Applicant then made comments about the LC magistrate, Mr Andrew O'Donaghoe, who had committed him for trial on a charge of malicious wounding. The words used by applicant were "If I go to gaol for this, then when I get out I'm going to kill him." He was then arrested & charged. In his trial applicant denied the offence.
Aged 28 - priors - previous imprisonment.
Undue weight given to previous record - circumstances of offence not severe - whether sentence excessive.
Appeal allowed: resentenced to 12m PD.
35

STRANO, Raymond Dominic - CCA, 17.12.2002
Sheller JA, Wood CJ at CL, Sully J
Citation: R v Strano [2002] NSWCCA 531
Sentence appeal.
17 x make false statement with intent to obtain financial advantage.
Total of 8y with NPP of 5y.
Crown case was that applicant, an investment adviser, carried on business between August 1995 & June 1997 under the names Retirement Advisory Services Pty Limited & Retirement Health and Life Style Planning, acting as an agent for George Balos to induce members of the public, on promises of returns varying between 4% & 12% per quarter, to invest money with him. Upon accepting the funds for investment from those investors, Balos would enter into a loan agreement whereby the investor would pay him money on the basis of a 90 day call loan. The agreements described Balos as either G Balos of Commodities International or G Balos of British Marine Bank. There was no legitimate business being carried on by Balos under either name. Applicant's practice was to consult with potential investors at his office or at their homes or, in some cases, at retirement villages. They were asked to provide a cheque & to sign a loan agreement, which applicant witnessed. Balos then executed this agreement & returned it to the investor. Investors' cheques were deposited into a number of bank accounts operated by Balos. They were given a choice of receiving monthly interest payments or accrued interest at the end of the investment period. Such limited payments as Balos did make were inconsistent with any form of income bearing investments, comprising isolated monthly interest payments & a limited number of lump sum repayments of capital. The charges on which applicant was found guilty related to representations he had made to certain individual investors regarding the nature of their investments, in particular the fact that the investment was being made through the British Marine Bank or Commodities International. The total amount of moneys involved in the charges of which applicant was found guilty was $973,024.00.
Parity - whether sentences manifestly excessive.
Appeal allowed: resentenced to total of 6y with NPP of 3y 9m.
36

WICKS, Leisa Lynette - CCA, 11.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Wicks [2002] NSWCCA 445
Sentence appeal.
1 x BE&S; 1 x drive conveyance without consent; + Form 1 matters (4 x possess car breaking implements, 2 x B&E with intent to commit serious indictable offence, 1 x larceny, 1 x goods in custody, 2 x being carried in a conveyance without consent, 2 x take & drive conveyance without consent).
Total of 5y with NPP of 3y.
Applicant & a co-offender stole an unattended, parked vehicle. They were observed by police. Applicant escaped & her co-offender was caught. When applicant was identified, tyres that had been stolen from the vehicle were recovered. The BE&S related to applicant remaining in a stolen car outside premises, whilst her co-offender smashed a window, entered & ransacked the premises, taking jewellery, a camera & camera equipment.
Aged 33 - guilty plea - drug habit - priors extending back to 1989 - special circumstances - general & specific deterrence.
Whether sentences excessive.
Appeal dismissed.
37

BURKE, Wayne Allen - CCA, 13.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Burke [2002] NSWCCA 456
Sentence appeal.
Dangerous drive occasioning GBH.
18m with NPP of 13m 2w; + 12m driving disqualification.
Applicant, a learner driver, was driving his vehicle carrying 3 passengers. There was no licensed driver in the vehicle. Applicant accelerated his vehicle to about 80 kph & overtook a vehicle on the wrong side of the road. He then pulled his vehicle back onto the correct side, however, he lost control, hit a gutter, mounted the grass verge & collided with a power pole, a rock wall & a small tree. By the time police & ambulance arrived, all occupants of the vehicle were outside the vehicle. Applicant & 2 passengers were taken to hospital. Applicant only sustained minor injuries & was released. He was found to have a blood-alcohol reading of .090. One of the injured passengers sustained severe facial lacerations requiring plastic surgery. She may require additional surgery for facial scarring. She also suffered fractures to her pelvis. In an ERISP, applicant admitted to drinking prior to the collision & to driving at 80 kph in what he said was a 60 kph zone. The speed signs, however, showed 50 kph.
Aged 19 at time of offence - early guilty plea - genuine remorse & contrition - no priors - previous good character.
Discount - whether sentence excessive.
Appeal dismissed.
38

MARTIN, Frank - CCA, 17.2.2003
James & Greg James JJ
Citation: R v Martin [2003] NSWCCA 25
Sentence appeal.
1 x robbery in company.
3y 4m with NPP of 1y 10m.
The victim was walking along a footpath as the applicant & his co-offender approached from the opposite direction. The co-offender walked in front of the victim & grabbed her left arm & squeezed it very hard. With his other hand, he grabbed her bag. At the same time, applicant pushed the victim from behind & she fell onto the footpath. The victim screamed as the pair ran off. Police officers in the area on unrelated business witnessed the entire incident & gave chase. Applicant was apprehended shortly afterwards in the driveway of a block of flats. The co-offender escaped. The victim suffered grazing to a knee & both arms were sore. The victim's property was recovered.
Aged 24 at time of sentencing - guilty plea - disadvantaged background - contrition - priors - previous imprisonment.
Parity - pre-sentence custody not taken into account - backdating of sentence.
Appeal allowed: resentenced to total of 3y 1m with NPP of 1y 9m.
39

SAKKAR, Sabri - CCA, 17.2.2003
James & Greg James JJ
Citation: R v Sakkar [2003] NSWCCA 26
Sentence appeal.
1 x ongoing supply of cocaine; + offences taken into account (1 x deemed supply cocaine, 1 x possess amphetamine).
4y with NPP of 18m.
On 4 separate occasions between 15.11.2001 & 22.11.2001, applicant supplied an undercover police operative with small amounts of cocaine. The total amount supplied was 1.86 grams. On 22.11.2001, a search warrant was executed at applicant's home & police found 17.4 grams of cocaine & 3 grams of methylamphetamine. They also found a quantity of cash, as well as scales & resealable bags.
Aged almost 26 at time of sentencing - born in Lebanon - migrated with family to Australia at age 8 - drug habit - priors - subject to suspended sentence & GBB at time of offences.
Whether sentence excessive.
Appeal dismissed.
40

KOSTADINOVIC, Sasha - CCA, 28.2.2003
SILJANOVSKI, Trajan
Hidden & Adams JJ
Citation: R v Siljanovski and Kostadinovic [2003] NSWCCA 38
Sentence appeal.
Siljanovski: 1 x ongoing supply of heroin; 2 x supply heroin; + Form 1 offences (2 x supply heroin) - Total of 7*y with NPP of 4y.
Kostadinovic: 4 x knowingly take part in supply of heroin; + Form 1 offences (4 x supply heroin, 1 x possess heroin, 1 x goods in custody, 1 x drive whilst disqualified) - Total of 3y with NPP of 1y 10m.
Applicants were the targets of a co-ordinated police investigation involving the use of undercover operatives, listening devices & telephone intercepts.
Whether undue disparity between sentences imposed.
Siljanovski: appeal allowed - resentenced to total of 6y with NPP of 3y.
Kostadinovic: appeal dismissed.
41

GIDDY, Keith - CCA, 28.2.2003
O'Keefe & Bell JJ
Citation: R v Giddy [2003] NSWCCA 46
Sentence appeal.
1 x aggravated indecent assault.
18m with NPP of 9m.
Applicant, a retired schoolteacher, was aged 70 at time of sentence. The above offence had been committed in 1992 at the Waratah Gymnasium where applicant was a senior gymnastics coach. He was arrested on 24.3.1997 & granted bail. He remained on bail until he was sentenced nearly 6 years after arrest & some 10 years after the offence. The circumstances of aggravation were that the offence was committed upon a girl aged 13 years.
Early guilty plea - immediate admissions - adverse medical condition - delay in proceeding to dispose of matter - no previous convictions - no violence involved - breach of position of trust.
Matter essentially one suitable for LC - maximum penalty in LC relevant.
Appeal allowed: resentenced to 12m suspended sentence.
42

BOJAN, Kandiah - CCA, 28.2.2003
O'Keefe & Bell JJ
Citation: R v Bojan [2003] NSWCCA 45
Sentence appeal.
4 x obtain money by deception.
Concurrent sentences of 3y with NPP of 2y on each count.
Applicant approached victim, offering to get him a large glazing & gyprock contract if the victim paid the applicant $20,000. The victim paid the applicant 4 amounts totalling $5,200, this being all the money he had. There was in fact no glazing or gyprock contract. No repayment of the money or recompense was made by the applicant.
Aged 50 at time of sentence - born in Sri Lanka - university educated in UK - migrated to Australia in 1990 - qualified as real estate agent.
On parole for multiple fraudulent offences at time of above offences - backdating of sentence - double punishment - seriousness of offences.
Leave to appeal refused.
43

SCOTT, Kevin James - CCA, 28.2.2003
O'Keefe & Bell JJ
Citation: R v Scott [2003] NSWCCA 28
Sentence appeal.
5 x sexual intercourse with person under 16 (13); 1 x aggravated indecent assault (same complainant); + Form 1 offences (4 x commit act of indecency (same complainant), common assault (2nd complainant), aggravated indecent assault (3rd complainant).
Total of 5y with NPP of 2*y
The above offences took place over a period of a little more than 6 months.
Aged 57 at time of sentencing - guilty plea - character evidence - remorse - no relevant criminal antecedents -no previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
44

AO - CCA, 4.3.2003 138 A Crim R 189
Hulme, Greg James & Shaw JJ
Citation: R v AO [2003] NSWCCA 43
Sentence appeal.
Multiple armed robberies (33).
Total of 7y with NPP of 4y to be served in a detention centre until age 21.
Applicant was sentenced on the basis that at the time of the offences he was 16, the sentencing judge having determined applicant was born in September 1984. The offences involved robberies upon service stations where employees were threatened with knives & at times some actual violence took place. These offences were committed over a 6 week period.
Young refugee from Somalia - appalling criminal record for multiple offences - had previously been the subject of recognizances, probation orders, control orders, CSO's & fines.
Child offender - fresh evidence to show offender aged 14 not 16, as held by trial judge - whether fresh evidence could make any difference.
Appeal dismissed.
45

SLEWA, Disho - CCA, 4.3.2003
Santow JA, Simpson J, Smart AJ
Citation: R v Slewa [2003] NSWCCA 50
Conviction appeal.
Detain for advantage; act of indecency; aggravated sexual intercourse without consent (maliciously inflicting ABH).
Complainant, aged 17, left her boyfriend's house at around 10:00 pm following a quarrel. She commenced walking to her father's home some 2 hours away. A red 2-door hatchback car approached & the driver offered her a lift, which she accepted. The driver grabbed her arm when she got into the car, then touched her leg. Complainant brushed him off. The driver then drove her to a deserted street where he assaulted her & had sexual intercourse with her without her consent. Complainant eventually managed to escape.
Aged 30 - Assyrian from Iraq.
Whether verdict unreasonable - directions - reasonable doubt - lies - whether miscarriage of justice.
Appeal dismissed.
46

IANNELLI, Rachel Lorna - CCA, 26.2.2003 139 A Crim R 1;56 NSWLR 247
Handley JA, Simpson & Bell JJ
Citation: R v Iannelli [2003] NSWCCA 1
Conviction appeal.
2 x defraud Commonwealth.
Count 1 - 8m PD, to be released on recognizance after 6m.
Count 2 - GBB.
Above offences alleged to have been committed by appellant in her role as director of & sole shareholder in 2 companies which she controlled. Group tax instalments were deducted from wages of both companies' employees, however, they were not remitted or remitted in full to the Commissioner of Taxation.
Whether the companies defrauded the Commonwealth by failing to pay group tax - Spies v The Queen (2000) 201 CLR 603 referred to.
Appeal allowed: convictions quashed, verdicts of acquittal entered in each case.
47

LLOYD, Briallen Elizabeth - CCA, 26.2.2003
O'Keefe & Bell JJ
Citation: R v Lloyd [2003] NSWCCA 49
Sentence appeal.
1 x steal from the person in circumstances of aggravation; 1 x armed with offensive weapon with intent to commit robbery (blood-filled syringe).
Total of 4y with NPP of 2y.
Applicant entered a mixed business, armed with a syringe filled with her own blood. Applicant was suffering from hepatitis C. She entered a room adjacent to the shop where the owners & their 13 year old daughter were seated at a table. The Applicant grabbed $200 from the table. She was restrained by the owners, whilst their daughter ran outside the shop & called the police on a mobile phone. Applicant kicked at the male owner & threatened to stab him with the syringe. She then pointed the syringe at him & sprayed the blood on him. The blood landed on his cheek near his mouth & ran down onto his neck.
Aged 22 - drug problem - rehabilitation - no priors - family support.
Early guilty plea - utilitarian value not taken into account.
Appeal allowed: resentenced to total of 3y with NPP of 18m.
48

BRYANT, Matthew John - CCA, 21.2.2003
James & Greg James JJ
Citation: R v Bryant [2003] NSWCCA 34
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon (knife).
5y with NPP of 3y.
Applicant entered a bakery & told the owner he wanted to look around. Some minutes later, he left the bakery & appeared to be looking in nearby shops. He returned to the bakery moments later & placed a plastic bag on the counter, then took a knife from a pocket in his pants & said 'Can you fill the bag, I am very hungry'. The shop owner moved back from the counter & looked for something to use for protection. Applicant then turned & ran from the bakery. He was pursued for a short distance by the shop owner & was seen running south. Shortly after, the applicant was spoken to by police outside his residence & subsequently searched. A black handled knife was found secreted in his sock & he was arrested. He participated in an ERISP & said that he committed the offence in order to obtain food.
Aged 25 at time of offence - born in Wales - migrated to Australia at age 17 - drug use from age 14 - average intelligence - priors - previous imprisonment.
Weight given to subjective features - capacity for rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
49

PATTEN, Wesley John - CCA, 21.2.2003
James & Greg James JJ
Citation: R v Patten [2003] NSWCCA 33
Sentence appeal.
1 x aggravated BE&S; + Form 1 offence (possess methylamphetamine).
3y PD with NPP of 1y 8m.
Applicant pleaded guilty to the above offence which was committed in company with 3 co-offenders. An alarm was activated in an industrial complex at Botany shortly after midnight & a car was observed loitering in the area. Police were notified & attended the scene & commenced surveillance. At about 2:55am they observed the same car & a van (a stolen vehicle) approaching. Both vehicles stopped & several persons got out of the car & entered the van. The persons in the van then included the 4 offenders. The van stopped outside a cafe in Botany, the 4 offenders got out, ran to the cafe, smashed open the glass doors & entered the caf*, where they stole a cigarette machine. Police intervened. All 4 offenders attempted to flee from the scene, however, they were all apprehended. After applicant was arrested, he was searched & police found 3.2 grams of methylamphetamine in a resealable bag in a canister in a bum bag he was wearing. Applicant & 2 of the co-offenders had each been on a GBB at the time of the BE&S offence.
Aged 26 at offences - Aboriginal extraction - guilty plea - criminal record - no previous imprisonment.
Parity - appropriate disparity in sentencing co-offenders - special circumstances.
Appeal allowed: resentenced to 2y 3m PD with NPP of 14m.
50

TABER, Peter David - NSW SC, Barr J, 28.2.2003
STYMAN, Ian Craig
STYMAN, Shannon Troy
Citation: R v Taber; R v Styman; R v Styman [2003] NSWSC 93
Remarks on Sentence.
Taber: murder; aggravated robbery.
Styman (Ian): murder, aggravated robbery.
Styman (Shannon): manslaughter.
The deceased was a 71 year old woman living alone. Offenders bound & gagged her, then perpetrated the robbery. When they decamped, they left the woman bound & gagged. Ian Styman made a telephone call to the 000 emergency services number some 24 minutes later, however, the emergency services operator failed to relay the message to police. The deceased died from dehydration.
Taber: Life imprisonment.
Styman (Ian): Life imprisonment
Styman (Shannon): total of 14y with NPP of 9y.
51

KENNING, Albert Edward - NSW SC, Whealy J, 20.2.2003
Citation: R v Kenning [2003] NSWSC 84
Remarks on Sentence.
Murder; AOABH.
Offender inflicted a savage beating upon his de facto, beating her until she died. He had accused her of sexual infidelity. He used a blunt instrument during the attack. He also assaulted a male with a tree branch.
Guilty pleas - aged almost 41 - happy childhood - good relationship with parents & siblings - educated to Year 10 - some employment - has undertaken some courses whilst in pre-trial custody - has a history of domestic violence - some remorse - drug & alcohol abuse - insignificant criminal history - no previous full-time imprisonment.
Sentenced to total of 21y 3m with NPP of 16y.
52

ABOU-CHABAKE, Andrew - NSW SC, Howie J, 28.2.2003
Citation: R v Abou-Chabake [2003] NSWSC 125
Remarks on Sentence.
Murder; shoot with intent to murder.
Deceased was driving his motor vehicle in Campsie in the company of his uncle, who was seated beside him in the front passenger seat. Shortly after having entered Frederick Street from Moore Street, a person approached the MV & fired 7 shots from a handgun at the MV as it proceeded past him. Three of the shots entered into the MV. One of the shots inflicted a superficial wound, grazing the deceased's left leg. A 2nd shot travelled through the deceased's back, penetrating his heart, aorta & right lung. The deceased died a short time later from these injuries. The deceased's uncle was uninjured. Fundamental to the Crown case was whether offender had fired the gun.
Aged 26 - degree of provocation - self-employed at time of offences - failure to acknowledge guilt - failure to show remorse - no relevant prior convictions.
Sentenced to 20y with NPP of 15y.
53

RYAN, Vincent Gerard (No 2) - CCA, 27.2.2003
Mason P, Hulme J, Smart AJ
Citation: R v Ryan (No 2) [2003] NSWCCA 35
Sentence appeal.
Matter remitted from HC.
Appellant, a priest, pleaded guilty to sexually abusing 12 victims (ages ranging from 6 to 14y) - offences occurred over 20y; additional 39 offences involving a further 16 victims taken into account. Appellant was sentenced to MT 11y, AT 5y. These sentences were made cumulative upon sentences imposed following an earlier trial.
Appellant appealed to the NSW CCA against the sentences received following the 2nd trial on the grounds that they were gross & excessive & that the judge had not taken into account nor given proper weight to the subjective features of the case. The CCA found the sentences imposed were severe, but the objective criminality involved was extreme, & dismissed the appeal.
Appellant was successful in his appeal to the High Court & the matter was remitted to the NSW CCA for sentence in accordance with the HC's reasons for judgment ( Ryan v The Queen (2001) 206 CLR 267).
Deterrence - relevance of good character - totality principle.
Appeal dismissed on counts 1,2,3,4,5,6,7,8,9,13&14.
Appeal allowed only on counts 10,11&12, with the 39 additional offences taken into account - appellant resentenced to concurrent sentences of 6y with NPP of 2y.
54

VUKIC, Joshua Barry - CCA, 27.2.2003
Adams J, Smart AJ
Citation: R v Vukic [2003] NSWCCA 13
Sentence appeal.
Aggravated dangerous drive causing death.
8y with NPP of 5y.
After an evening spent drinking & celebrating with his brother & a friend, applicant drove his car in excess of the speed limit & collided head-on with another car. The deceased, who was in the other car, suffered severe injuries & died at the scene. There were several eyewitnesses who gave evidence. A blood sample taken from the applicant showed a reading of 0.172 grams of alcohol per 100 millilitres of blood.
Aged 24 - guilty plea - history of alcohol & cannabis misuse - poor driving record - multiple driving offences.
Inadequate discount for guilty plea at earliest opportunity - bad case but not worst type of case - need for consistency in sentencing - sentence imposed out of kilter with pattern of sentencing.
Appeal allowed: resentenced to 7y with NPP of 4y.
55

FILIMOEHALA, Beauttlar (Bila) - CCA, 6.3.2003 138 A Crim R299
Mason P, Dowd J, Smart AJ
Citation: R v Filimoehala [2003] NSWCCA 37
s.5F appeal against an interlocutory judgment granting leave to the Crown to withdraw the acceptance of a plea of guilty previously entered by the applicant.
Applicant was arraigned on 20.8.2000. As had previously been arranged between counsel for the applicant & the Crown, applicant entered a plea of not guilty to maliciously inflict GBH with intent to do GBH but guilty to the alternative charge of maliciously inflict GBH. It was understood that the applicant would ask that several assault charges be taken into account on a Form 1. The Crown accepted the plea in full satisfaction of the indictment & proceedings were stood over for sentencing. On 7.11.2001 at Lismore DC, the DPP was successful in seeking an order that the Crown be granted leave to withdraw the acceptance of the plea of guilty.
Duty of the prosecution to the Court - prejudice to the accused - adduction of fresh, additional or substituted evidence.
Appeal dismissed.
56

HESFORD, Philip Mark - CCA, 18.12.2003
Mason P, James & Dunford JJ
Citation: R v Hesford [2002] NSWCCA 525
Application for extension of time in which to appeal against conviction and sentence.
1 x BE&S with intent to commit serious indictable offence (AOABH).
2y suspended sentence, except for one month, conditional upon 2y GBB.
Application for extension of time made 6 months out of time.
The victim of the alleged offence was the applicant's former wife who was living with the 4 children of her marriage to the applicant. A number of statements were tendered on behalf of the Crown, including a number of neighbours who said in their statements that they had witnessed part of the assault on the victim, by police officers who went to the victim's house & spoke to the applicant at the police station later that day, by a police physical evidence officer and by a doctor who examined the victim after she was assaulted.
Guilty plea - schizophrenia following cerebral haemorrhage - persecutory delusions.
Applicant appeared for himself in the CCA. He claimed that he had pleaded guilty because prison psychiatrists had administered drugs which had deprived him of the ability to think clearly & he had been coerced into pleading guilty by his legal representatives & by the sentencing judge himself.
Extension of time refused.
57

GEE - HC, 13.3.2003 212 CLR 230;77 ALJR 812
Citation: The Queen v Gee [2003] HCA 12
Criminal law - jurisdiction - exercise of Federal jurisdiction by State Supreme Courts - offences against laws of the Cth - where s.350 Criminal Law Consolidation Act 1935 (SA) provides for the Full Court of the Supreme Court of South Australia to hear & determine questions of law reserved by the District Court - whether s.68(2) Judiciary Act 1903 (Cth) confers jurisdiction on the FC of the SC to hear & determine a question of law reserved by the DC under State law during a trial of persons charged with offences against the laws of the Cth.
Powers of Cth DPP - whether questions of law reserved to the FC constituted an appeal for the purposes of s.9(7) Director of Public Prosecutions Act 1983 (Cth).
Whether case stated procedure provided for by s.350 Criminal Law Consolidation Act 1935 (SA) constitutes an appeal for the purposes of s.68(2) Judiciary Act.
Appeal allowed: Matter remitted to the FC of the SC of South Australia for further hearing & determination.
58

SOMA - HC, 13.3.2003 212 CLR 299; 77 ALJR 849
Citation: The Queen v Soma [2003] HCA 13
On appeal from the Supreme Court of Queensland.
Admissibility of evidence - prior inconsistent statement of accused - whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused - whether sound recording of applicant's interview wrongly admitted into evidence. Complaints - failure to object to cross-examination - whether trial judge required to rule where failure to object. Prosecution case closed - whether tender of prior inconsistent statement of accused evidence in rebuttal - prosecution not permitted to split its case.
Appeal dismissed.
59

CHALLIS, Michael David - CCA, 26.2.2003
O'Keefe & Bell JJ
Citation: R v Challis [2003] NSWCCA 48
Sentence appeal.
5 x BE&S; Form 1 matters (6 x BE&S with intent; possess housebreaking implement).
Total 5y 10m with NPP of 4y 4m.
Appellant was also subject to a revocation of a bond pursuant to s 12 (1)(b) Crimes (Sentencing Procedure) Act 1999 & was re-sentenced to 12m, NPP 2m, partly concurrent, which brought the total sentence to 6y with NPP 4*y.
Appellant & his co-offenders broke into a liquor store & a delicatessen on a single evening. Appellant was arrested some 19 months later following a spree of 10 break-ins over a single weekend. Items stolen were either money or equipment, which included laptop computers & mobile phones. Some of the break-ins involved ransacking & damage to property.
Aged 23 at offences - minimal educational & functional literacy - little employment - occasional use of alcohol - not a drug user - had overcome gambling habit - refused chances of rehabilitation in the past.
Whether sentence manifestly excessive - total sentence near top of range - whether insufficient weight given to efforts at rehabilitation, subjective features.
Leave to appeal refused.
60

DUONG, Thi Hong Hanh - CCA, 7.3.2003
Giles JA, Dunford J, Smart AJ
Citation: R v Duong [2003] NSWCCA 55
Conviction appeal.
Deemed supply of trafficable quantity heroin (9.3 grams).
3y with NPP of 15m.
A search warrant was executed at house where the appellant was living. A red envelope containing heroin was found in a drawer in appellant's bedroom. The issue at trial was whether the Crown had established that the heroin was in the appellant's possession.
Directions - elements of possession - failure to direct Crown had to negative possibility that the drugs were in the possession of someone other than appellant - reasonable doubt - whether miscarriage of justice.
Appeal dismissed.
61

McKAY, Glenn James - CCA, 19.2.2003
James & Greg James JJ
Citation: R v McKay [2003] NSWCCA 32
Sentence appeal.
1 x maliciously inflict GBH.
3y with NPP of 18m.
The above offence was one of domestic violence involving substantial injury to applicant's de facto partner.
Aged 37 at time of sentence - guilty plea - recent death of father.
Degree of seriousness of offence - asserted vulnerability & non-violent character of applicant - whether sentence excessive.
Appeal dismissed.
62

JONES, Paul Thomas Leslie - CCA, 7.3.2003
Santow JA, Simpson J, Smart AJ
Citation: R v Jones [2003] NSWCCA 54
Crown appeal.
Detain for advantage; aggravated sexual intercourse without consent; associated Form 1 offences.
11y with NPP of 6y.
The aggravated sexual intercourse involved the threat of bodily harm & infliction of ABH. All offences were committed by respondent upon the same complainant on the same occasion. He abducted complainant (aged a few days less than 20 years) from a shopping centre car park & made her drive to an isolated spot where he perpetrated various sexual acts upon her. DNA was obtained from a semen sample from a vaginal swabbing of the complainant which matched the DNA profile of the respondent.
Aged 17y 7m at time of offences - difficult & chaotic childhood - cannabis use - previous heroin use - priors - previous incarceration.
Objective gravity of offences - significant violence inflicted - threats to kill complainant - neither an opportunistic offence, nor a spur of the moment decision - principle of totality - principles of deterrence - double jeopardy.
Appeal dismissed.
63

X - CCA, 13.3.2003
Hodgson JA, Dowd & Barr JJ
Citation: R v X [2003] NSWCCA 56
Crown appeal.
1 x specially aggravated BE&S.
23m with NPP of 9m.
An allowance was made in the sentence for respondent's promise to give evidence against certain other offenders.
This was a 'home invasion'type offence perpetrated upon a 63 year old man. Respondent knew the victim & was aware that there was a safe in his house. He believed the victim kept a large amount of money & other valuables in the safe. He told Glenn Wilson that the victim owed him about $30,000. Wilson engaged others to rob the victim & introduced them to the respondent. The offence was committed at night when the victim, his wife & their children were at home. The offenders wore masks & were armed with a shortened double-barrelled shotgun, a knife & a baseball bat. Threats were made to kill the male victim & he was prodded with the knife. His face was cut when he was pushed into a wall. Offenders took money & jewellery belonging to the wife. Respondent, armed with an unloaded pistol, had remained immediately outside the house, his job being to intercept anyone trying to leave. At no time did he disclose to police the part he had played in the offence. A registered informer gave a statement to police implicating the respondent.
Aged 43 - long criminal record - started to offend at age 10 - previous imprisonment.
Special knowledge of the intended victim - offence a result of professional planning, organisation & execution - facts of case would have justified a conviction for armed robbery as contemplated in R v Henry - error in assessing respondent's favourable subjective features - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 4y with NPP of 2*y.
64

LUU, Duong Hoang - CCA, 26.2.2003
O'Keefe & Bell JJ
Citation: R v Luu [2003] NSWCCA 39
Sentence appeal.
1 x armed robbery.
8y with NPP of 5y.
The victim, a 19 year old Chinese student, was in Railway Parade, Burwood when 4 young Asian men, one of whom was the applicant, surrounded him. Two of the men were carrying items which it was believed were large knives wrapped in newspaper. One of the men told the victim he had just come out of gaol. The appellant did most of the talking to the victim. The victim's wallet was taken from his pocket. Inside the wallet was a Commonwealth Bank keycard. Offenders demanded that he give them the PIN number, which he did. Two of the men stayed with the victim whilst the applicant & one other went to an ATM machine at the Burwood Hotel. Two withdrawals were made, one for $100 & another for $700. A further attempt to obtain money from the machine was unsuccessful. The applicant & the other man returned & the victim was told that if he reported the robbery to the police they would find him. The 4 men then left. The victim went to the Bank & cancelled the card & later on went to the police.
Aged 21 at time of offence - special circumstances - no previous imprisonment.
Salient features - errors of fact - insufficient attention to matters which could affect overall sentence - insufficient attention to ratio between head sentence & NPP - whether sentence excessive.
Appeal dismissed.
65

BOLAMATU - CCA, 14.3.2003
Meagher JA, Dowd & Barr JJ
Citation: Bolamatu v R [2003] NSWCCA 58
Conviction and sentence appeals.
Counts 1&2: assault - guilty on one count & not guilty on the other;
Count 3: use offensive instrument (motor vehicle) with intent to hinder police investigation - not guilty;
Count 4: assault police officer in the execution of her duty (AOABH) - guilty.
Total of 7*y with NPP of 5y 3m.
Appellant & his brother went to a woman's flat & trashed the flat, 'with much noise and violence' Another resident in the same block of flats called the police. Two police officers arrived, parked their car & made their way to the building, however, their attention was drawn to the offenders' motor vehicle. The female police officer tried to stop the car as it was moving off & stood in front of it, holding up her hand in a 'halt'gesture & calling out 'Stop' The motor vehicle did not stop & ran her over. Appellant, who was the driver, said he did not see her. The police officer was gravely injured.
Inconsistent verdicts - different ingredients - aggregation or accumulation of sentences.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
66

CHRISTOFF, Scott William - CCA, 17.3.2003 140 A Crim R 45
Sheller JA, James J, Smart AJ
Citation: R v Christoff [2003] NSWCCA 52
Conviction and sentence appeal.
Dangerous driving occasioning death.
3y 8m with NPP of 2y 9m.
The deceased was appellant's de facto partner. At trial, the Crown urged the jury to consider resulting damage to the car & the injury to the deceased in considering whether appellant's driving had been dangerous. Appellant complained that the Crown prosecutor had implied that the damage & injury themselves qualified appellant's driving as being dangerous to the public. This complaint had not been squarely put to the trial judge, nor had any complaint been made at the time about the summing up.
Lengthy criminal history including numerous offences of dishonesty & a series of driving offences which included a similar offence that occurred 2 weeks prior to above offence for which appellant had been disqualified from driving for 12m & placed on a s.9 bond for 2y. Evidence that appellant may not have seen a speed limit sign.
Whether error in finding appellant had ignored the speed limit sign - remorse - moral culpability - whether miscarriage of justices - guidelines for sentencing - special circumstances - relevant considerations.
Appeal dismissed.
67

FANGUPO, Sione - CCA, 17.3.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Fangupo [2003] NSWCCA 61
Conviction appeal.
1 x sexual intercourse without consent in circumstances of aggravation (complainant aged 13, at the time under appellant's authority).
Appellant was found guilty of the above offence (which was the 2nd count in the indictment) & not guilty of an offence of sexual intercourse with child under the age of 10 (7y). The offence for which appellant was found not guilty was alleged to have involved appellant inserting a finger into complainant's vagina. The offence for which he was found guilty alleged that he inserted his penis into her vagina. Complainant did not tell her mother because appellant told her that if she did, her mother would kill both of them. Some 18 months later, complainant was taken for a medical examination which revealed healed hymeneal transections, consistent with penetration by a blunt object which could have been a finger or a penis. The only thing that could be said about the age of those transections was that they were more than a couple of days old. That evidence was consistent with there having been penetration on the 1st occasion alone, on the 2nd occasion alone, or on both occasions.
Whether verdict unreasonable & not supported by the evidence - whether verdict unreasonable by reference to acquittal on other count.
Appeal dismissed.
68

DAVIS, Ross Parker - CCA, 17.3.2003
Wood CJ at CL, Studdert J
Citation: R v Davis [2003] NSWCCA 62
Sentence appeal.
Robbery in company.
3y 4m with NPP of 2*y.
The offence was committed at a hotel in the early hours of the morning. Three employees were on duty at the time. When applicant met his co-offender outside the hotel, they went to the back of the hotel where one of the employees was putting out the rubbish. They accosted & forced the employee inside. Although the co-offender did most of the talking & took the money, the applicant taped up one employee & assisted in taping up the other (a young pregnant woman). Applicant was wearing a balaclava & had socks on his hands. He used a replica pistol in the robbery. The equipment used in the robbery was brought to the crime scene in the applicant's car. The amount of money taken was $4,600 in cash (the property of the proprietor of the hotel) & $40 in cash taken from the wallet of one of the victims (the bar manager).
Aged 37 at time of offence - supportive family - educated to high school level - began but did not complete university study - regular employment - duress - remorse - assistance to authorities - good rehabilitation prospects - prior convictions for minor offences.
Induced statement - whether error in taking into account material adverse to applicant - whether error in consideration of special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
69

LEE, John Andrew - CCA, 17.3.2003
Wood CJ at CL, Studdert J
Citation: R v Lee [2003] NSWCCA 63
Sentence appeal.
Assault with act of indecency (victim aged 8); + an offence of aggravated indecent assault taken into account (victim aged 10 or 11)
Total of 4y with NPP of 2y.
The 1st charge involved applicant fondling the victim's vagina; the 2nd charge involved applicant posing as a medical practitioner, gaining entry to the victim's house whilst she was at home alone & twice touching her near the vicinity of her vagina with a cotton bud.
Aged 36 at time of offences - early guilty plea warranting discount of 20% - contrition - remorse - unfavourable criminal history - on suspended sentence at time of offences - deterrence - special circumstances.
Whether sentence excessive - life in grave danger - psychologist's report inaccurate - objection to evidence tendered by Crown at sentence - fresh medical evidence - incompetence of counsel - extreme unfairness & bias by sentencing judge.
Appeal dismissed.
70

WILKIE, Colin - CCA, 21.3.2003 140 A Crim R 78
Shaw & Studdert JJ
Citation: R v Wilkie [2003] NSWCCA 69
Sentence appeal.
1 x supply prohibited drugs (heroin) on an ongoing basis; 1 x supply prohibited drug (heroin).
3y with NPP of 1y 10m on each charge (concurrent).
The offences related to a police operation. The applicant's female co-offender, referred to by applicant as 'boss', was charged on 2 similar charges as those with which applicant had been charged, as well as a further 6 counts taken into account on a Form 1. She pleaded guilty & was sentenced to a total of 4y with a NPP of 1*y.
Aged in mid-30's - previous full-time employment - alcoholism - heroin use - rehabilitation - prior record of driving & assault offences involving alcohol - previous imprisonment.
Parity - co-offender's role in criminal enterprise greater than that of applicant.
Appeal allowed: resentenced to concurrent sentences of 2*y with NPP of 1y 7m on each charge.
71

LANG, Paul - CCA, 21.3.2003
Shaw & Studdert JJ
Citation: R v Lang [2003] NSWCCA 68
Sentence appeal.
1 x robbery; 4 x robbery in company.
Total of 4*y with NPP of 2y 3m.
No details of offences given. The co-offenders (aged 15 & 16) were charged only with the rob in company charges & were sentenced in the Children's Court to control orders of 15m with NPPs of 9m.
Aged 18 at time of offences - prior offence of resist police - on bail for the robbery offence when the rob in company offences were committed.
Parity - whether justifiable sense of grievance.
Appeal dismissed.
72

NAI POON, Al Nai Wan - CCA, 5.3.2003 138 A Crim R 204;56 NSWLR 284
Ipp JA, Hulme & Bell JJ
Citation: R v Nai Poon [2003] NSWCCA 42
Sentence appeal.
1 x import trafficable quantity MDMA (ecstasy).
7y with NPP of 4y.
Applicant arrived at Sydney airport from Kuala Lumpur. A search revealed the drugs contained in elastic material around his waist. There were 5,800 tablets with an estimated street value in the order of $116,000-$408,000. Although applicant told police he had intended selling the tablets, the sentencing judge was not prepared to find applicant was a principal in the importation. There was evidence that persons had made enquiries for applicant at the hotel where he would have been staying, had he not been arrested.
Early guilty plea - good work record - nothing to distinguish case from that of a typical courier.
Whether error in sentencing judge finding that MDMA is equivalent to cocaine - whether sentence excessive - analysis of similar cases - appropriate range.
Appeal dismissed.
73

FISHER, Gregory Joseph - CCA, 7.3.2003 138 A Crim R 318; 56 NSWLR 625
Santow JA, Simpson J, Smart AJ
Citation: R v Fisher [2003] NSWCCA 41
Application pursuant to s.5F Criminal Appeal Act 1912 for leave to appeal against an interlocutory decision.
Applicant was charged with 3 offences under the Corporations Law & one offence under s178BB of the Crimes Act 1900 (NSW), a co-accused charged with one offence under s178BB. All charges arose out of their involvement in the management & administration of a company. A trial began on 15.10.2001, applicant represented by junior counsel. This was funded by applicant's parents. On the 6th day, the trial judge discharged the jury because of applicant's ill health & the discharge of 2 jury members, also because of illness. Applicant was granted a certificate under the Suitors Fund Act 1951 . A 2nd trial commenced on 5.5.2002, applicant represented by senior & junior counsel, with applicant's parents meeting the costs. During the trial, the co-offender referred to a file he said he had maintained with respect to dealings relevant to the charges both men faced. Believing the file was in the possession of ASIC, he had, at the stage of committal proceedings, issued a subpoena for its production. It was not produced & was not produced before or during the course of the 1st trial. After the 2nd trial had proceeded for almost 3 weeks, & counsel had made their final addresses & the judge was about to embark upon his directions, ASIC officers located the file, whereupon the Crown Prosecutor made it available to the 2 accused. The judge formed the view that the trial could not fairly continue & discharged the jury. He did this over the opposition of the applicant. Senior counsel then stated applicant's intention to seek an order that the Commonwealth DPP, who brought the prosecution, pay his costs of the aborted 2nd trial. This application was refused.
Wasted costs - exceptional circumstances - Dietrich v The Queen (1992) 177 CLR 292 - R v Mosely (1992) 28 NSWLR 735.
Appeal allowed in part: proceedings on the charges under the Corporations Law and s178BB of the Crimes Act1901 on which applicant was committed for trial be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on 5.5.2002.
74

DERBAS, Shadi - CCA, 5.3.2003
Hulme, Bell & Shaw JJ
Citation: R v Derbas [2003] NSWCCA 44
Sentence appeal.
Tamper with and dispose of motor vehicle with intent to hinder the discovery of evidence concerning a serious indictable offence committed by another person.
5y with NPP of 3y.
The above offence occurred following a shooting that resulted in the death of 2 men. After the shots were fired, the vehicle was driven away & taken to an address where, upon the instructions of the applicant, degreaser was sprayed on the inside & outside surfaces of the vehicle to remove any sign of fingerprints & saliva. He also gave instructions to tamper with the ignition steering lock & door locks in order to make it appear that the car had been stolen. The car was later found by police in the driveway of a property. As a result of the cleaning of the car, they were unable to obtain any fingerprints or DNA material from the vehicle. It was not until police received information from one of the applicant's associates that they were able to make any arrests. Originally, applicant was charged with being an accessory after the fact to murder but that charge was dropped & he pleaded guilty to the above offence.
Guilty plea - discount - contrition - minor criminal record - offence committed out of 'sense of misguided loyalty'- favourable prospects of rehabilitation.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
75

LIU, Qin - CCA, 17.3.2003
Wood CJ at CL, Studdert J
Citation: R v Liu [2003] NSWCCA 65
Sentence appeal.
1 x supply commercial quantity cocaine; + Form 1 matters, namely possess MDMA; possess knife in a public place; possess property suspected of being stolen ($705).
5y with NPP of 3y.
Applicant was arrested in the course of a surveillance operation which culminated in a search of his residential premises. The search revealed almost half a kilogram of cocaine, some small quantities of drugs wrapped in aluminium foil & a pair of scales upon which traces of cocaine were found. A knife & cash were also found.
Absence of interpreter at certain times - whether applicant understood plea, instructions by solicitor & pre-sentence report - whether sentence excessive.
Appeal dismissed.
76

BEMBRICK, Ian Michael George - CCA, 20.12.2003
Mason P, James & Hidden JJ
Citation: R v Bembrick [2002] NSWCCA 534
Crown appeal against an order made under s.10(1)(b) Crimes (Sentencing Procedure) Act 1999 discharging offender without proceeding to conviction on condition that he enter into a GBB for one year.
Malicious wounding - guilty plea.
An altercation took place at a school wherein the respondent produced what was described as 'a blade similar to a box cutter or Stanley knife' and wounded the victim. The victim suffered a laceration to the left temporal area & behind the left ear, with a separate small 2-millimetre puncture wound at the base of the left side of the neck.
During sentence proceedings, several character references, including a reference from the Director of Bradfield College, were tendered on behalf of the respondent, attesting that the offence was quite out of character. The respondent had no criminal record & had not previously come to the attention of police.
Youth of offender - previous good record - complete contrition - error of judgment - shock of the seriousness of actions sufficient to effect rehabilitation.
Crown submitted sentencing procedure procedurally flawed because the entire debate at the hearing proceeded on an assumption that left s.10 of the Crimes (Sentencing Procedure) Act out of the equation.
Appeal dismissed.
77

SAMPSON, Brett Herbert - CCA, 25.3.2003
Meagher JA, Wood CJ at CL, Greg James J
Citation: R v Sampson [2003] NSWCCA 66
Conviction appeal and Crown appeal.
1 x maliciously inflicting GBH with intent to do GBH.
Sentence not stated.
The above offence was committed during a bar-room brawl. The Crown case was that appellant punched the victim in the face with a beer glass, intending to cause him GBH. Although there was glass strewn across the floor, there was no evidence that appellant had used a glass to strike the victim. The victim suffered the loss of an eye as a result of injuries received during the brawl.
Whether verdict unreasonable or unable to be supported by the evidence - relevant principles.
Crown appeal dismissed.
Conviction appeal allowed: verdict and judgment of acquittal entered.
78

BURNS, Bradley Scott - CCA, 25.2.2003 137 A Crim R557
Hodgson JA, Sully & Buddin JJ
Citation: R v Burns [2003] NSWCCA 30
Conviction appeal.
1 x armed robbery.
7y with NPP of 4*y.
A store was robbed by a male (on the Crown case, the appellant) & a female (who subsequently pleaded guilty to rob with offensive weapon). Both were seen by witnesses outside the store. One witness said she saw them go into the store, then run out. When shown a series of photos by police, she identified the appellant as being the male but was not completely sure of the accuracy of her identification. The victim of the robbery gave evidence of the male offender pointing a 30 cm black serrated knife. When shown a series of photos by police, she was unable to identify anyone in the photos as having been the male robber. Two other witnesses gave evidence that the appellant had confessed to committing the robbery. When questioned by police, appellant denied knowing anything about the offence. $100-$150 was taken during the robbery.
Aged 24 at time of offence - more blameworthy role in the robbery - on parole at time of offence - multiple priors including driving, drug, property & violent offences - previous imprisonment.
Judge's failure to sum up appellant's case & arguments relied upon by his counsel in closing address - failure to give warnings on evidence of admissions, identification evidence - judge's refusal to allow defence counsel to cross-examine Crown witnesses - whether miscarriage of justice.
Appeal allowed: new trial ordered.
79

TISDELL - CCA, 12.3.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Tisdell [2003] NSWCCA 60
Conviction appeal.
5 x sexual intercourse without consent.
Appellant faced trial on 6 counts, the jury found him guilty on 5 counts & not guilty on the remaining count. He was sentenced to a total of 8y. At the time of appeal, he had served more than 4 years of that sentence.
Admission by complainant that evidence given at trial was false.
Appeal allowed: conviction quashed, order of acquittal entered.
80

PANAGAKOS, Bill - CCA, 1.4.2003 138 A Crim R 538
Studdert J, Smart AJ
Citation: R v Panagakos [2003] NSWCCA 81
Sentence appeal.
Supply large commercial quantity heroin; + offence of supply commercial quantity cocaine taken into account.
10y with NPP of 7*y.
Applicant entered a plea of guilty. He was one of 4 persons identified in a network involved in the supply of heroin & cocaine. The supply outlet was a hotel in Kings Cross. Applicant & a co-offender were responsible for the supply of heroin & cocaine from a room in the hotel. The drugs were sold in capsules contained within rubber balloons. Red balloons contained .25 grams of heroin & sold for $80; green balloons contained .20 grams of heroin & sold for $50; yellow balloons contained .20 grams of cocaine & sold for $60. Applicant & his co-offender worked alternate 12 hour shifts. Applicant was paid either $200 or $250 per shift, as was the co-offender. Evidence from the co-offender was that the takings per shift were of the order of $15,000 to $20,000. This would indicate that sales would have aggregated to 2 kilograms of heroin & 2 kilograms of cocaine over the relevant period. Because of assistance to police, the co-offender was sentenced to a total of 5y with a NPP of 3y.
Parity - whether sentence excessive.
Appeal allowed: resentenced to 10y with NPP of 6*y.
81

BOUSEHJIN, Tony - CCA, 25.3.2003 140 A Crim R 310
Spigelman CJ, Hulme & Buddin JJ
Citation: R v Bousehjin [2003] NSWCCA 86
Sentence appeal.
Possess trafficable quantity prohibited imports (heroin).
8y with NPP of 5y 4m.
Applicant entered a plea of guilty in what was described as a strong Crown case.
The heroin was imported into Australia by a person (K) who was apprehended at the airport after travelling from Jakarta. K co-operated with the authorities. Most of the heroin he was carrying (999.5 grams - 720 grams pure) was removed from his briefcase, leaving 20 grams in the briefcase. K was allowed to proceed to a motel where arrangements had been made for him to stay. He later received a telephone call from someone in Indonesia who informed him that someone else would contact him. An hour & a half later, K received a telephone call from a person who said his name was "Booshe". The following day, this man called again & said he would attend the motel in about 30 minutes. About 20 minutes later, the applicant attended on K & departed about 1* hours later. Some 3 hours later, he again attended K's room at the motel & handed him a package containing $20,000. Applicant attempted to leave the room with the briefcase & was arrested. Applicant was able to tell Australian Federal Police of the amounts in each of five bundles of money contained in the package but declined to say where the money came from or why he gave it to K. A search of the applicant's car revealed a notepad on which could be seen the imprint of K's flight number. A search of the applicant's home disclosed an entry referring to the motel & its phone number. Enquiries of Telstra supported the conclusion that the applicant was the person who had rung K. The sentencing judge found, beyond reasonable doubt, that the applicant 'played more than a bit role' in the importation.
Aged 38 at time of sentence - no prior criminal record - Iranian national, arriving in Australia after having escaped form Iran - severe injuries suffered in a work-related accident - unable to work since accident.
Whether sentence outside sentencing discretion - whether excessive.
Appeal dismissed.
82

NICHOLLS, Shirley Eva Agnes (nee McDermott) - CCA, 27.3.2003
Studdert J, Smart AJ
Citation: R v Nicholls [2003] NSWCCA 76
Sentence appeal.
8 x stealing; + 11 similar offences on a Form 1.
4*y with NPP of 2y 8m.
Applicant, who pleaded guilty, was one of nine offenders sentenced by the sentencing judge whom he described as being part of a gang of shoplifters. He considered each offender as being an important cog in the wheel of the gang's activities, which comprised well planned, organised & executed assaults on large retail outlets. The sentencing judge had previously sentenced a tenth offender. Two other offenders were sentenced in the LC. In all, applicant was involved in 19 out of 43 offences that were committed by the gang. The value of the goods relevant to the charges against her was $76,000. A number of members of applicant's family were also involved in the offences.
Parity - whether error in sentencing judge assigning role of principal to applicant - whether sentence excessive.
Appeal dismissed.
83

CONNELL, Kelvin John - CCA, 25.3.2003
Studdert J, Smart AJ
Citation: R v Connell [2003] NSWCCA 90
Sentence appeal.
Supply drugs (amphetamine) on an ongoing basis; + Form 1 offences.
4y with NPP of 2*y.
Offences involved 4 transactions into which applicant entered with an undercover police operative. Conversations between the undercover operative & the applicant were recorded by means of a listening device. Upon arrest, applicant was found to be in possession of 2 plastic resealable bags containing amphetamine, a rock-like substance wrapped in silver foil & a clear resealable bag containing several small buds of cannabis head. Applicant had $440 in his wallet & had a police style extendable baton in his jacket. When police searched applicant's car they found a further quantity of cannabis buds. There followed a search of applicant's residence where police found 10 cannabis plants growing in a garage. They also found a police scanner tuned into the local police channel.
Aged 50 at time of sentence - guilty plea - priors include property offences, offences of dishonesty, drug offences & driving offences - previously a drug user, had been on a methadone programme since 1992.
Sentence towards upper end of sentencing range - whether manifestly excessive.
Appeal dismissed.
84

LATUMETAN, Liesa - CCA, 21.3.2003
MURWANTO, Tommy
Studdert & Shaw JJ
Citation: LATUMETAN & MURWANTO [2003] NSWCCA 70
Sentence appeals.
Latumetan: 8 x make false statements with intent to obtain financial advantage; possess falsified passport; + offences taken into account (68 x make false statements with intent to obtain advantage, 3 x obtain credit by fraud, 4 x obtain NSW driver's licence by deception) - total of 28m.
Murwanto: 8 x make false statements with intent to obtain financial advantage; possess falsified passport; + offences taken into account (62 x make false statements with intent to obtain advantage, 6 x obtain credit by fraud, 6 x obtain NSW driver's licence by deception) - total of 28m.
Applicants, who are husband & wife, obtained $183,214.58 from various finance companies they had targeted. They also sought to obtain a further $346,000 by way of credit, however, this was declined. When arrested, applicants made full admissions to police & further assisted police by taking them to their home & surrendering various items of furniture & other objects they had bought with the proceeds of their offending. A substantial amount of money was outstanding at the time of sentencing, which included an amount of $109,000 obtained from the NRMA. Whilst on bail, applicants used passports of 2 people who had entered Australia at Darwin from Indonesia for the preparation of false passports with which they intended leaving Australia. They were apprehended at Sydney Airport. When imposing sentence, the judge declined to set a non-parole period pursuant to s.178BB of the Passports Act.
Error in declining to set NPP.
Appeals allowed insofar as NPP of 24m set for each applicant.
85

SLACK, Shane Robert - CCA, 7.4.2003 139 A Crim R 314
Sheller JA, Wood CJ at CL, Smart AJ
Citation: R v Slack [2003] NSWCCA 93
Conviction appeal; and
Crown appeal.
2 x aggravated sexual assault of girl aged 11.
Total of 3y with NPP of 2y.
Complainant was at appellant's home for an overnight stay with his daughters. The children watched a video film, after which a suggestion was made that they engage in hypnotism games. This had happened on the complainant's previous visit. The complainant said she was too tired, the idea was abandoned & the children went to bed. The complainant slept in a double bed with the daughter who was her friend. After they had gone to bed & after the daughter was asleep, the appellant went to the room, knelt beside the bed & spoke to the complainant. He put his hand under the sheet & twice inserted his finger into her vagina. At trial, the cross-examination of the appellant by the Crown prosecutor focussed extensively on the appropriateness of attempting to hypnotise young girls without the knowledge of their parents & the appropriateness of accepting the assurances of girls under the age of 15 that they were permitted to watch 15+ movies. At the request of the CCA, the trial judge furnished a report. In his report he stated that he was concerned that the complainant had not made any complaint until she made a statement to her mother & then to police a year after the alleged offences. The trial judge was concerned he may have erred in not directing the jury adequately about the lack of complaint, especially where there was no other evidence supporting the complaint. Sheller JA made reference to R v Johnston (1998) 45 NSWLR 362 at 474 per Spigelman CJ.
Cross-examination of accused - matters collateral to facts in issue - where beyond bounds of legitimate cross-examination to credit.
Crown appeal dismissed.
Conviction appeal allowed: verdicts of acquittal entered.
86

WHALEN, Andrew John - CCA, 13.3.2003 56 NSWLR 454
WILLER, Brett J.
Hodgson JA, Dowd & Barr JJ
Citation: R v Whalen and Willer [2003] NSWCCA 59
Conviction and sentence appeal.
Count 1: cultivate commercial quantity prohibited plants (cannabis);
Count 2: (alternative count) cultivate prohibited plants;
Count 3: supply cannabis leaf.
A plea of guilty on count 2 was offered by both appellants but not accepted by the Crown.
Following a trial, the jury returned verdicts of guilty against each appellant on the 1st & 3rd counts. Because the 2nd count was brought as an alternative to the 1st count, no verdict was taken on the 2nd count.
Sentence: Whalen - total of 4*y with NPP of 3y.
Willer - total of 3*y with NPP of 2y.
In the vicinity of the property where Whalen lived, police located 6 sites where a total of 376 cannabis plants were growing. Similarities on the sites included stakes, mulch & rabbit traps. Police monitored Whalen's telephone calls which revealed that at times Willer was present at the house. Conversations were recorded between appellants. They were also observed by police to enter one of the sites at night where 78 cannabis plants were growing, carrying torches & inspecting the plants. Police arrested them, following a short pursuit. A search of Whalen's house revealed $1,425 in cash in his wallet, a pair of two-way radios & night vision goggles (neither functioning). They also found 1.2kg of cannabis leaf wrapped in a tarpaulin & shade cloth hidden under a bush. Shortly before appellants were arrested, a vehicle or vehicles similar to that used by them on the night of their arrest was seen on a number of occasions occupied by 2 males & travelling in the vicinity of some of the other sites.
Identity of inanimate object - whether s.165 Evidence Act direction required - need to have defence case fairly before jury - whether alternative count appropriate - circumstances in which appeal court can substitute for the verdict found by the jury a verdict of guilty for another offence - need for utilitarian value of offer to plead guilty to count 2 - justifies more favourable view on issue of contrition.
Conviction appeals allowed for each appellant: a verdict of guilty on count 2 substituted for the verdicts of guilty on counts 1&3.
Sentence appeals allowed: Whalen sentenced to 2y 3m with NPP of 18m.
Willer sentenced to 1y 9m with NPP of 12m.
87

ROBERTS, Grant John - CCA, 21.3.2003
Studdert & Shaw JJ
Citation: R v Roberts [2003] NSWCCA 67
Sentence appeal
2 x armed robbery.
Total of 8y with NPP of 6y (made up of partly concurrent, partly cumulative sentences).
Applicant drove his motor bike to a pharmacy at Carlingford & entered the pharmacy wearing a black full face motorbike helmet with a black balaclava or scarf wrapped around his face under the helmet. He carried a knife & a bag. He brandished the knife at 2 women serving in the shop & demanded money & drugs. These items were placed in his bag which he took away with him. He then rode his motor bike to a pharmacy at Dundas Valley where he committed the 2nd crime. Applicant entered the pharmacy attired as before, again carrying a knife & a bag. He threatened the pharmacist & an employee with the knife. This time he took away money but no drugs. Applicant had attempted to hide or obscure the number plate of his motor bike by wrapping cloth around it. Only a period of approximately 15 minutes had elapsed between the 1st armed robbery & the 2nd armed robbery.
Whether total sentence imposed manifestly excessive - insufficient regard to fact that offences were committed within 15 minutes of each other, therefore one continuous episode of criminality.
Appeal dismissed.
88

WHITE, Michael Rodney - CCA, 21.3.2003 140 A Crim R 63
Giles JA, Dunford J, Smart AJ
Citation: R v White [2003] NSWCCA 64
Conviction appeal.
Armed robbery in company.
6*y with NPP of 3y 3m.
The robbery involved an amount of $20,358 taken from the St George Bank. During the trial, the judge granted leave for the Crown to examine the principal armed robber, who was a critical Crown witness, under s.38 Evidence Act 1995 without having first enquired into & considered the matters on which the Crown desired to cross-examine him.
Appellant sought a new trial on the basis that fresh evidence would show that he was the driver of the car & therefore was not one of the robbers who entered the bank. There was no dispute that the evidence was fresh, the debate being whether the evidence gave rise to a reasonable possibility that the appellant would have been acquitted.
Fresh evidence - error in granting leave to examine witness - correct exercise of judge's discretion - whether Crown examination exceeded permissible limits.
Appeal allowed: conviction quashed, new trial ordered.
89

WEININGER - HC, 2.4.2003 212 CLR 629;77 ALJR 872
Citation: Weininger v The Queen [2003] HCA 14
Appellant was sentenced for the Federal offences of knowingly concerned in the importation of a commercial quantity of cocaine & conspiracy to commit money laundering. He was also sentenced for the State offence of conspiracy to supply commercial quantity of cocaine, although the sentence for this offence was made concurrent & therefore subsumed by the sentences for the Federal offences. The statement of facts at the sentence hearing contained a comment by appellant to a police informer referring to appellant's involvement in ongoing importations & the trouble the syndicate had had in the past with importations. The statement of facts was uncontested. Appellant did not give evidence at the hearing, but relied upon statements made to his de facto & a psychologist that these offences were a 'one-off'. Appellant had no criminal record. The sentencing judge concluded that:
'The prisoner's prior good character in the sense that he comes before this court without any prior convictions is a matter which must receive some recognition. However, in the face of strong evidence establishing the prisoner's participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that status usually attracts'.
Whether the sentencing judge erred in her treatment of the appellant's prior character.
Appeal dismissed.
90

GS - CCA, 19.3.2003
Santow JA, Buddin J, Smart AJ
Citation: R v GS [2003] NSWCCA 73
Conviction appeal.
10 x sex offences (indecent assault, act of indecency, sexual intercourse).
4y with NPP of 2y.
At the time of alleged offences, appellant was living in a de facto relationship with complainant's mother. Complainant was born in January 1981 & was aged 7 at the time of the 1st offence & 14 or 15 at the time of the last offence. Complainant's mother & sister each gave evidence which provided confirmation of some of the details which complainant had given as to where the family had lived at various times together with other matters of a relatively peripheral nature. Complainant made complaint of the alleged offences to police on 27.1.1999. When spoken to by police, appellant exercised his right to remain silent. Appellant gave sworn evidence at trial in which he denied each of the allegations which had been made against him.
Directions - onus of proof reversed - impact of delay in complaint - sufficiency of Longman direction - warnings - use of evidence of 'uncharged acts'- failure of trial judge to assist jury by reminding them of evidence when requested to do so - whether trial miscarried.
Appeal allowed: conviction quashed, new trial ordered on all counts.
91

ZREIKA, Toufic - CCA, 28.2.2003 138 A Crim R 95
O'Keefe & Bell JJ
Citation: R v Zreika [2003] NSWCCA 47
Sentence appeal.
Attempt to pervert the course of justice (supply a letter to a prison officer to give to his brother and father with intent to pervert the course of justice).
5y FT.
Whilst in custody awaiting trial, applicant handed some hand-written papers to a prison officer to give to his father & brother who were visiting the prison. The pages were forwarded by the officer to police who were involved in the prosecution of the applicant. The papers included a request to applicant's brother to contact a female associate of the applicant in order to ensure that she used certain wording, as detailed by the applicant, in her statement of evidence. The object of the wording proposed was to discredit the evidence of a Crown witness.
Aged 26 - guilty plea - on remand at time of offence - priors include steal MV, possess prohibited weapon, breach CSO - previous imprisonment.
No NPP set.
Appeal allowed: sentence of 5y FT quashed - resentenced to 5y with NPP of 3y 9m.
92

DOPSON, Jason Marty - CCA, 10.4.2003 141 A Crim R 302
Hidden, Bell & Buddin JJ
Citation: R v Dopson [2003] NSWCCA 99
Crown appeal.
1 x cultivate commercial quantity prohibited plant (cannabis); + 4 related Form 1 offences.
2y suspended sentence.
Police executed a search warrant upon respondent's premises. A number of hydroponically grown cannabis plants were found in a garage, as well as 2 separate quantities of cannabis that had been laid out for drying, 2 glass jars containing what was suspected to be finely chopped cannabis leaf, one glass jar suspected of containing cannabis seeds & a large amount of hydroponic equipment, including lights, electrical equipment & water piping. In respondent's residence, police located a manual, 2 books & documentation relating to the cultivation of cannabis. In the bedroom they found 3 small resealable plastic bags suspected of containing cannabis leaf.
Delay of 16 weeks between date of sentence & date upon which respondent advised of appeal. No satisfactory explanation for delay.
The sentencing judge sentenced the respondent upon an acceptance that his cultivation of the cannabis plants was undertaken with a view to personal, as distinct from commercial, use - whether error in sentencing judge making this finding of fact - whether sentence manifestly inadequate.
Appeal dismissed.
93

BOA MORTE, Milton Pinto Costa - CCA, 19.3.2003
Studdert & Shaw JJ
Citation: R v Boa Morte [2003] NSWCCA 75
Sentence appeal.
Robbery in company; + Form 1 offence (AOABH).
Total of 32m with NPP of 20m.
Applicant entered a guilty plea. Applicant & his co-offenders robbed a young man, during which the applicant punched the victim, spun him around & kneed him in the stomach. Applicant was later arrested & released on bail. Three months later, he was involved in a robbery upon another victim, during which the victim was assaulted. An off-duty policeman came to the victim's assistance & he was taken to hospital. He suffered a number of injuries.
Whether trial judge wrongly assessed objective gravity of offence - whether over-stated offender's criminality - whether failure to properly consider subjective circumstances - whether sentence excessive.
Appeal dismissed.
94

JOYCE, James Patrick - CCA, 8.4.2003
Dunford, Simpson & Hidden JJ
Citation: R v Joyce [2003] NSWCCA 84
s.5F application for leave to appeal against interlocutory orders.
Applicant is awaiting retrial upon 2 charges of dangerous driving causing GBH. At a previous trial, the jury was unable to agree upon a verdict in respect of either charge. An application to the DPP to discontinue the proceedings was refused. On 16.12.2002, Dodd DCJ heard an application for a permanent stay of the proceedings. At the outset of the hearing, counsel for the applicant called upon a subpoena to the DPP to produce certain documents but, objection having been taken by the Crown prosecutor, his Honour declined to order production of those documents. The following day, his Honour gave judgment refusing the application for a permanent stay. It was against both of those decisions that the application for leave to appeal was brought.
Relevant considerations on stay application.
Application refused.
95

EAGLETON, Matthew Eric - CCA, 28.2.2003
O'Keefe & Bell JJ
Citation: R v Eagleton [2003] NSWCCA 40
Sentence appeal (extension of time).
1 x malicious wounding.
18m PD, no NPP was specified.
Appellant & victim had been sharing accommodation. They had an argument about household matters. The appellant hit the victim, kneed him to the head, punched & slapped him over a period of several hours. He also dropped a large stereo speaker on the victim's back & jabbed him in the chest & left shoulder with a knife. Appellant was affected by drugs & alcohol at the time.
Aged 30 at time of offence - early plea - genuine remorse - employed at time of offence - good prospects of rehabilitation - priors include larceny, malicious destruction of property, offensive behaviour, offensive language, common assault, custody of offensive implement in public place - no previous imprisonment.
NPP not specified.
Time extended. Sentence appeal allowed: NPP of 8m specified.
96

HERON - HC, 8.4.2003 77 ALJR 908
Citation: Heron v The Queen [2003] HCA 17
Application for special leave to appeal from decision of Court of Criminal Appeal of New South Wales.
Applicant was convicted of murder. The offence arose out of a bar room brawl during which the victim was stabbed. The applicant claimed he did not stab the victim. At the request of defence counsel, the judge left the defence of provocation to the jury. The judge instructed the jury to consider whether an ordinary person 'would' or 'must' have done, not 'could'have done, what the accused did. Point was not taken by defence counsel at trial, nor at appeal.
Whether circumstances of case exceptional - provocation - misdirection - no objection to direction - no request for further directions - significance of misdirection.
Application for leave dismissed.
97

NG - HC, 10.4.003 217 CLR 521; 77 ALJR 967
Citation: Ng v The Queen [2003] HCA 20
Application for special leave to appeal from decision of Court of Appeal, Victoria.
The applicant was convicted of conspiracy to import heroin. An order was made under s.14A Juries Act 1967 (Vic) for a jury of 15 to be empanelled. At the conclusion of the trial, 3 members of the jury were balloted off pursuant to s.48A. The name of the foreperson was drawn in the ballot & discarded as required by s.48A.
Whether applicant did not have a trial 'by jury' as required by s.80 Constitution - whether s.68 Judiciary Act 1903 (Cth) does not pick up s.48A.
Application for leave dismissed.
98

FITTOCK - HC, 10.4.2003 217 CLR 508; 77 ALJR 961
Citation: Fittock v The Queen [2003] HCA 19
Application for special leave to appeal from decision of the Court of Criminal Appeal, Northern Territory.
Applicant was convicted of murder & attempted murder. An order was made under s.37A Juries Act (NT) for 2 reserve jurors.
Whether s.80 Constitution applies to trials for offences against Northern Territory law - whether s.37A contradicts s.80 Constitution.
Application for leave dismissed.
99

DEPALO, Frank - CCA, 1.4.2003
Studdert J, Smart AJ
Citation: R v Depalo [2003] NSWCCA 80
Sentence appeal.
Supply prohibited drug (6.25 grams cocaine).
2*y with NPP of 1y 10m 12d PD.
Police intercepted telephone calls during a drug investigation which indicated appellant was arranging for the supply of prohibited drugs from one co-offender to another. Arrangements were made during the telephone conversations & appellant drove to a hotel via a roundabout route that included a number of stops as well as a meeting with a co-offender who was arranging the supply. After appellant left the hotel, police executed a search warrant & found 9 resealable plastic bags containing a total of 6.25 grams of cocaine in the room that was occupied by the co-offender to whom appellant had arranged to supply the drugs. Analysis revealed the cocaine content was 20%.
Aged 30 at time of offence - considerable delay between offence & arrest - guilty plea - significant utilitarian value - supportive family - isolated offence - role of middleman - good character - no priors.
Approach where single incident of relatively small quantity of cocaine supplied to a non-vulnerable person - necessity for exceptional circumstances to avoid custodial penalty - approach to imposition of PD.
Appeal allowed: in lieu of sentence imposed, applicant fined $3,300 & allowed 3 months in which to pay the fine.
100

MORRISON, Troy Anthony - CCA, 25.3.2003
Studdert J, Smart AJ
Citation: R v Morrison [2003] NSWCCA 89
Sentence appeal.
Maliciously inflict GBH; + offence of malicious damage to property taken into account.
5y with NPP of 3y 3m.
Applicant had been drinking with friends at an hotel when the victim entered & approached the bar area. Applicant challenged him & told him to leave the hotel. The victim did so, however, applicant followed him out of the hotel to the front of the car-park where he hit the victim in the face with his right elbow. The victim fell to the ground unconscious, whereupon the applicant kicked him 4 or 5 times in the head. He then left the victim unconscious where he had fallen & returned to the hotel & resumed drinking. Later, when he left the hotel, he head-butted a glass window of a shop, breaking the glass. Applicant was arrested some 8 hours later & made frank admissions to police in an ERISP. He also told police that one of his mates had seen what had happened & had stopped him from jumping on the victim's head. He said he did what he did to the victim because he hated him & wanted to hurt him enough so that he would leave the applicant's girlfriend alone. He perceived the victim as having harassed his girlfriend & her mother.
Aged 22 at time of offence - criminal record, including assault - on recognizance at time of offence - unfortunate upbringing - neglected as a child - sexually abused as a child.
Whether sentences manifestly excessive - whether insufficient allowance for special circumstances.
Appeal dismissed.
101

DAVIS, Justin Andrew - CCA, 1.4.2003
Studdert J, Smart AJ
Citation: R v Davis [2003] NSWCCA 79
Sentence appeal.
1 x aggravated B&E and commit serious indictable offence - 6y with NPP of 3*y;
1 x AOABH - FT 12m (concurrent).
Applicant & his co-offender broke into the home of the victim & his wife by forcing a window. Once inside, they searched for the keys to a vehicle parked in the carport. The 61 year old victim heard noises & went to investigate. When he entered the hallway he was confronted by the applicant & his co-offender. Both intruders were armed with baseball bats & both wore balaclavas. They beat the victim with the baseball bats. The victim suffered a number of blows to the arms & hands which resulted in bruising & lacerations. One of the intruders picked up a chair & attempted to strike the victim with it. Eventually, both intruders left with the keys & escaped in the victim's car. During the confrontation inside the house, damage was done to one of the walls in the dining area.
Almost 19 at time of offences - guilty plea - criminal record - on conditional bail at time of offences.
Co-offender dealt with in Children's Court - relevance of sentence imposed under Children's Court regime.
Appeal allowed only for the aggravated B&E and commit serious indictable offence - resentenced on that count to 5y with NPP of 3y.
102

BENDT - CCA, 14.3.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Bendt [2003] NSWCCA 78
Crown appeal.
2 x robbery in company; + Form 1 offences (2 x robbery in company).
Suspended 18m control order.
Respondent pleaded guilty to the above offences & was sentenced under the Children (Criminal Proceedings) Act 1987. The offences involved respondent & 7 other young males, some of them adults. All offenders wore beanies & 2 were armed with machetes. They entered a club & threatened, assaulted & robbed about 30 patrons & staff, often using the machetes. A large amount of money was taken. During the offence, the appellant stood by, ready to assist.
Aged 17 at time of offence - knew his co-offenders' course of action - regret - remorse - some rehabilitation prospects - subsequent priors include possess prohibited drug, goods in custody - no previous imprisonment.
s.18 Children (Criminal Proceedings) Act 1987 - whether serious indictable offence or not - whether a 'child' within the meaning of the Act - exercise of trial judge's discretion under s.18 - factors to be taken into account.
Appeal allowed: resentenced to total of 1*y with NPP of 1y, to be served in a detention centre.
103

RAMAZ, Sam - CCA, 4.4.2003
Giles JA, Dunford J, Smart AJ
Citation: R v Ramaz [2003] NSWCCA 91
Crown appeal.
Counts 1-11: supply prohibited drug (cannabis leaf);
Counts 12&13: deemed supply prohibited drug (cannabis leaf);
+ Form 1 offences (2 x possess cannabis leaf, 1 x goods in custody).
Sentence: counts 1-12 - FT of 8m to date from 6.12.2001; count 13 & taking into account Form 1 matters - 18m with NPP of 8m 17d to date from 6.12.2001.
Police carried out surveillance of various mobile telephone numbers used by the respondent. Over a 3 month period, they intercepted 12,958 activations on one of those numbers. Almost all of these activations were to arrange meetings between respondent & customers wanting to purchase cannabis. On average, respondent arranged to meet about 80 customers a day. The conversations were both coded & non-coded. Counts 1-9 & 11 related to sales by respondent to undercover police officers. On 10 occasions during a 3 month period an undercover police operative contacted respondent by telephone (each call recorded) & then met with him at the Woolworth's car park at Revesby. On each occasion respondent drove a car (a number of different cars were used) to the meeting & then sold varying amounts of cannabis to the undercover operative. The cannabis was packaged in the same manner on each occasion. Every transaction was observed by police surveillance teams & recorded using photographs & video footage.
Whether sentences manifestly inadequate.
Appeal allowed: sentences on counts 1-12 confirmed; sentence on count 13 quashed, respondent sentenced to 18m with NPP of 6m on that count, accumulative upon the sentences on counts 1-12.
104

GILFILLAN, Rickie Alan - CCA, 14.4.2003 139 A Crim R 460
Santow JA, Buddin J, Smart AJ
Citation: R v Gilfillan [2003] NSWCCA 102
s.5F appeal against trial judge's order refusing the adjournment of applicant's trial on serious offences to enable him to obtain legal representation. At appeal, applicant sought an order or certificate under Suitors' Fund Act 1951 for costs.
Applicant was on trial for 6 counts of aggravated sexual assault. The circumstances of aggravation were that immediately beforehand he threatened to inflict ABH on the complainant by means of an offensive weapon. Applicant withdrew his instructions to his legal representatives well into the Crown case. He was left without legal representation in a difficult trial where representation was essential for a fair trial & was unable to obtain other representation at short notice.
Need to consider reasons for withdrawal of instructions & questions of fault on applicant's part - problems as to conflict of interest of applicant's solicitor precipitated by Crown's late service of some witness statements & insistence on calling such witnesses - whether trial judge misdirected himself.
Appeal allowed: Judge's decision refusing to terminate trial set aside; applicant's trial be terminated & a new trial ordered. CCA declined to make an order for costs or grant of an indemnity certificate on the ground that it has no power to do so.
105

NGO, Phuong Canh - CCA, 3.4.2003 57 NSWLR 55
Stein JA, Sully & Levine JJ
Citation: R v Ngo [2003] NSWCCA 82
Conviction appeal.
Murder (of Member of NSW Parliament).
Life imprisonment.
See also R v Ngo [2001] NSWSC 1021.
Juror inadvertently exposed to inadmissible evidence - failure to discharge jury - whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded & informed member of the public that the juror or jury has not, or will not, discharge its task impartially - whether direction adequate to correct any prejudice or perception of prejudice to the accused.
Whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial - whether s 20A Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances - whether accused has a fundamental right to confront accuser where issues of identity involved - whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses - whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings ( Supreme Court Rules Part 75 rule 2(8)(b)) - whether inadequate direction as to lies - whether inadequate direction as to accomplice evidence
Appeal dismissed.
106

BERRELL, Robert Anthony - CCA, 27.3.2003
Smart AJ, Studdert J
Citation: R v Berrell [2003] NSWCCA 85
Sentence appeal.
Counts 1-5: Aggravated robbery - 5y with NPP of 3y 4m.
Count 6: Aggravated armed robbery; + Form 1 offences (6 x aggravated robbery, 1 x aggravated assault with intent to rob, 1 x aggravated robbery, 3 x assault) - 10y with NPP of 6y 8m.
The circumstances of aggravation in each instance of aggravated armed robbery was being armed with a dangerous weapon (replica pistol). The robberies were committed upon a newsagency, pharmacies, a caf*, Pizza Hut outlets, Tasty Chicken outlet, Red Rooster outlet.
Aged 32* at time of 1st offence - guilty plea - on methadone programme at time of offences - offences committed to support applicant, the woman he lived with & her drug habit - admitted to taking some of the drugs himself - tested positive for Hepatitis C - paranoia - need for continuing psychiatric help - reasonable prospects of rehabilitation.
Denied fair trial - poorly represented by solicitor - no violence used in any of the offences - assistance to authorities - extenuating circumstances not adequately placed before sentencing judge - whether sentences excessive.
Appeal dismissed.
107

TOZER, James Reginald - CCA, 27.3.2003
Studdert & Shaw JJ
Citation: R v Tozer [2003] NSWCCA 72
Sentence appeal.
2 x armed robbery; 1 x drive conveyance without consent.
Total of 7y with NPP of 5*y.
Applicant (armed with a large hunting knife) & his co-offender (armed with a tyre lever with a torch attached to make it look like a shotgun) drove to a paint shop in a stolen vehicle. The applicant wore a beanie & dark glasses & the co-offender a balaclava. Upon entering the shop, they demanded that the assistant open the cash drawer. While the cash ($285) was being put into a bag, the co-offender brandished his weapon, threatening to shoot staff.
Wearing balaclavas, applicant & his co-offender arrived at a video store in a stolen vehicle, the co-offender armed with a hollow pipe with a torch attached to make it look like a shotgun, the appellant armed with a hunting knife. The woman behind the counter was ordered to empty the contents of the cash drawer ($700). The offenders were apprehended by police soon after this offence.
Aged 41 at time of offences - plumber with own business, then worked as wardsman in a hospital - extensive substance abuse - unsuccessful rehabilitation - difficult upbringing - multiple priors - previous imprisonment.
Whether sentences excessive - application of Pearce - consideration of parity - adequacy of discount for utilitarian value - remorse - necessity for Ellis allowance concerning sentence for earlier armed robbery.
Appeal dismissed.
108

POPOVIC, Zlatan - CCA, 25.3.2003
Spigelman CJ, Hulme & Buddin JJ
Citation: R v Popovic [2003] NSWCCA 103
Sentence appeal.
9 x malicious wounding; 1 x manslaughter.
Total of 12y with NPP of 8y.
Applicant discharged 2 shots from a double-barrel shotgun, killing the deceased. A number of people were in the vicinity at the time & 9 of them were wounded. The applicant was charged with murder. At trial, he was found guilty of each count of malicious wounding, however, the jury was unable to agree on the murder count. A 2nd trial on the murder count led to the jury being discharged. The Crown subsequently indicated that it would be prepared to accept a plea to manslaughter on the basis of provocation. The plea was entered & accepted.
Where FT sentences imposed - where unsuccessful attempt to obtain assistance against deceased from police - whether sentences imposed for manslaughter & malicious wounding within reasonable exercise of sentencing discretion - whether sentencing judge minimised degree of provocation - where challenged findings of fact not of central significance to sentencing process.
Appeal dismissed.
109

HUGHES, David Zero Population Growth (aka David Roy) - CCA, 4.4.2003
Grove, Simpson & Hidden JJ
Citation: R v Hughes [2003] NSWCCA 105
Conviction appeal; application for leave to adduce fresh evidence.
Attempt to intimidate Commonwealth officer.
11m 15d, NPP 7m 15d.
Proceedings were brought against the appellant by the Australian Consumer and Competition Commission, resulting in orders being made for amendments to a website under the appellant's control. The appellant failed to comply with those orders. The Federal Court judge then made orders that the appellant be imprisoned for 2 weeks & directed that the relevant warrant lie in the office for a period. Further proceedings came before the Court. Towards the end of those proceedings, the appellant was seen to take a white metal box from a backpack. The appellant told the judge: 'It's a bomb.'He also said to the judge: 'Hmm, send me to jail and it'll go off.'This led to the above charge.
The central issue at trial was whether or not the appellant had the relevant intention. In giving evidence at trial, he specifically asserted that he had no intention of intimidating the Federal Court judge.
Appellant appeared for himself at the appeal.
Appropriate directions to jury - untenable grounds of appeal - no special point of principle.
Appeal dismissed; leave to adduce fresh evidence refused.
110

REILLY, Adam James - CCA, 17.2.2003
James & Greg James JJ
Citation: R v Reilly [2003] NSWCCA 20
Sentence appeal.
2 x BE&S; 1 x possess stolen goods; 1 x drive MV whilst disqualified.
4y with NPP of 18m.
Applicant entered the victim's home by forcing a bedroom window lock. He stole a laptop computer, luggage & sporting equipment. His fingerprints were found on the aluminium surface of a fly screen.
In fixing the above sentence, the sentencing judge had to have regard to the complexity of sentences arising from preceding offences.
Aged 19 at time of offences - drug & alcohol problem - extensive criminal record - prior offences include fraud/dishonesty, property, violence, driving - previous imprisonment.
Effect of complexity of sentences - relevant offence in breach of bonds activating suspended sentences - whether double punishment - contrition - rehabilitation.
Appeal dismissed.
111

RULE, Helena - CCA, 8.4.2003
Sully, Levine & Buddin JJ
Citation: R v Rule [2003] NSWCCA 97
Sentence appeal.
2 x conduct transactions so as to avoid reporting requirements (s.16BA Crimes Act (Cth)).
Aggregate 12m with NPP of 6m, conditional upon entering into 6m recognizance.
Appellant, a chartered accountant, was aware that her husband, using false names, carried out 27 separate transactions of transferring a total of $427,393 into foreign bank accounts operated by 2 clients of appellant's accountancy practice.
Aged 51 at time of 1st offence - guilty plea - previous good character - in remission from Crohn's disease - likely to lose accreditation as accountant - no priors.
Whether sentence excessive.
Appeal dismissed.
112

BAHSA, Ammin - CCA, 12.3.2003 138 A Crim R245
Sheller JA, James J, Smart AJ
Citation: R v Bahsa [2003] NSWCCA 36
Crown appeal.
8 x armed robbery; 1 x aggravated detain for advantage (ABH); 1 x robbery in company; 1 x being carried in a conveyance without consent of owner.
Total of 8y with NPP of 6y.
The above offences were committed over a period of 3* weeks. Respondent pleaded guilty to all charges.
Aged 18 at time of offences - early guilty plea - subject to suspended sentence & GBB at time of offences - heroin addict - reasonable prospects of rehabilitation - genuine remorse - poor literacy skills - priors - previous imprisonment.
'Guideline'offence - failure to sentence in accordance with Henry - totality - Pearce (1998) 194 CLR 610 - overall criminality - concurrent sentences - whether manifestly inadequate.
Appeal allowed: resentenced to total of 11y with NPP of 8y.
113

SYMSS, Shane Antoni - CCA, 2.4.2003
Sheller JA, James J, Smart AJ
Citation: Symms v R [2003] NSWCCA 77
Conviction appeal.
1 x murder; 1 x robbery with wounding and in company; steal MV; + 3 matters on a Form 1.
Total of 22y with NPP of 16*y.
Co-offender was found not guilty of murder but guilty of manslaughter & guilty on counts 2 & 3. He was sentenced to a total of 7*y with a NPP of 4*y (see R v Masson, R v Symss [2001] NSWSC 1037).
The victim was a 74 year old woman living alone.
Evidence important to appellant's case wrongly excluded - prejudicial character evidence - whether error in summing up - refusal to grant separate trial - counsel ignored instructions during trial - incompetence of counsel - jury member approached during trial - error in allowing co-accused to change plea - misdirections - refusal to discharge jury.
Appeal dismissed.
114

KINSELA, James Henry - CCA, 4.4.2003
Santow JA, Buddin J, Smart AJ
Citation: R v Kinsela [2003] NSWCCA 92
Sentence appeal.
Offence under s.100(1)(a) Rural Fires Act 1997 (NSW): 'sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority ..'.
3y with NPP of 2y.
A number of witnesses saw applicant standing in close vicinity to a fire in bushland in the Garigal National Park adjacent to Bantry Bay. He was then seen to commence a 2nd fire. Witnesses telephoned police & the Fire Brigade. Water Police spotted applicant watching the fire which had now spread. He was taken into custody.
Diagnosed with psychiatric condition - special circumstances - length of NPP - whether existence of special circumstances justified further shortening of NPP.
Appeal allowed insofar as NPP reduced to 15m, conditional upon applicant subjecting himself to the supervision & guidance of the Probation and Parole Service & obeying all reasonable directions in relation to psychiatric treatment and/or counselling (including in particular to starting of fires) & taking of medication prescribed by a medical practitioner.
115

LAKE, Clarence Victor - CCA, 21.2.2003
James & Greg James JJ
Citation R v Lake [2003] NSWCCA 27
Sentence appeal.
1 x aggravated sexual intercourse without consent (maliciously inflicting ABH); 1 x sexual intercourse without consent; 1 x detain for advantage (aggravated form); 1 x malicious wounding.
Total sentence of 10y with NPP of 7y.
Appellant detained his female partner at knifepoint in their home for some 10 hours. During this time, he inflicted a number of minor knife wounds & other injuries upon her. He also forced her on 2 separate occasions to have non-consensual intercourse with him.
Aged 51 at time of offences - guilty plea - Aboriginal - history of alcohol abuse & alcohol-related offending - remorse - low risk of re-offending - priors - previous imprisonment.
Offences involved overlapping elements - sentences imposed on basis of lengthy statement of facts covering all crimes & context - overall sentence involving some accumulation passed to reflect all crimes committed in single episode - no dissection of facts to reflect specific crimes charged - totality principle applied to overall sentence - necessity to apply both principles in Pearce.
Appeal allowed: new total of 9y with NPP of 6y.
116

JELISAVAC, Michael - CCA, 16.4.2003
Adams J, Smart AJ
Citation: R v Jelisavac [2003] NSWCCA 107
Sentence appeal.
2 x obtain money by deception; 2 x aggravated BE&S; 1 x B&E with intent to commit a crime in circumstances of aggravation; 4 x BE&S; + 16 offences taken into account.
Total of 7*y with NPP of 4*y.
Offences were committed over a period of 2 years. On 2 occasions, appellant forced open the bottom drawer of poker machines then repeatedly fed the coins through the machines until he obtained winning credits ($1,900 & $2,300). Appellant & co-offender broke into a nursing home & stole the safe from the office. Appellant smashed the front window of a newsagency & stole cigarettes worth $3,270. During one evening, appellant broke into 3 clubs & stole a total of $4,300 worth of cigarettes & $1,800 in cash. Appellant & accomplice broke into a pub & stole more than 300 packets of cigarettes before being disturbed by a cleaner. Appellant broke into a hotel, forced open a cigarette vending machine & stole a number of packets of cigarettes. When the hotelier confronted him, he threatened him with a screwdriver, then made his escape.
Aged 18 at time of 1st offence - destructive & disabling childhood & adolescence - violent, alcoholic father - abusive mother - series of foster placements - marijuana use from age 10, heroin use from age 14 - crimes motivated by drug addiction - attempts at rehabilitation - appalling criminal history - previous imprisonment.
Guilty plea - utilitarian value - effect of evidence of contrition.
Appeal allowed insofar as NPP reduced to 3*y.
117

MOULE, Wayne Raymond - CCA, 28.2.2003
Bell J
Citation: R v Moule [2003] NSWCCA 29
Sentence appeal.
Appeal brought pursuant to ss.5AF & 5AA Criminal Appeal Act 1912 against sentences imposed in the Drug Court.
Malicious damage; carried in conveyance without consent; possess prescribed restricted substance; B&E with intent to commit serious indictable offence; BE&S; larceny; possess prohibited drug.
Total of 1y with NPP of 9m.
Facts not stated.
Aged 33 at time of offences - disrupted upbringing - mother committed suicide - unemployed - continued disobedience of the law - priors - previous imprisonment.
Reconsideration of sentences - parity with co-offender.
Appeal dismissed.
118

HOUSSEIN, Mustafa Max - CCA, 28.3.2003
Meagher JA, Hulme & Hidden JJ
Citation: R v Houssein [2003] NSWCCA 74
Conviction and sentence appeal.
Maliciously inflict GBH.
3y with NPP of 2y 3m.
Appellant went to a flat where the victim was staying & stabbed him at least 4 times. The victim, who was the appellant's brother, spent 10 days in hospital.
Aged 39 at time of offence - prior offences include 21 x driving, 16 x property, 15 x violence, 2 x drugs, 6 x failure to appear, 14 x dishonesty, breach of parole - previous imprisonment.
Directions - alternative count - innocence - error in permitting Crown to read statement of witness in re-examination - failure to direct jury as to how they could use that statement - error in permitting cross-examination of accused on a conviction & order - discretion to exclude evidence.
Appeal allowed: new trial ordered.
119

LUMSDEN, Christine - CCA, 3.4.2003
Mason P, Hulme J, Smart AJ
Citation: R v Lumsden [2003] NSWCCA 83
Conviction appeal.
Supply prohibited drug on an ongoing basis (methylamphetamine).
2*y with NPP of 12m.
During the course of a police operation targeting the supply of prohibited drugs, appellant on 3 separate occasions within a period of 30 consecutive days sold 0.3 grams, 0.21 grams & 0.3 grams of methylamphetamine for $50 on each occasion either directly or through a third party to an undercover police officer.
Identification evidence - directions - admission of evidence - cross examination of witnesses - credibility rule - exceptions - whether error.
Appeal allowed: new trial ordered.
120

WASKIN, Mamdouh - CCA, 9.4.2003 141 A Crim R 1
Giles JA, Simpson J, Smart AJ
Citation: R v Waskin [2003] NSWCCA 96
Conviction appeal; and
Crown appeal
Do an act with intent to influence a witness.
$2,000 fine.
On at least 2 occasions, offender (a pharmacist) supplied large quantities of Sudafed at inflated prices to another person by using a young woman in his employ to deliver the drugs. After being charged with conspiracy to supply such drugs, the offender placed pressure on the young woman to mislead investigating police as to the nature of the material she delivered.
Aged 51 at time of offence - pharmacist for over 27 years - prior good character - real possibility of losing entitlement to practise as a pharmacist - no priors.
Administration of justice - deterrence.
Whether verdict reasonably open to jury.
Conviction appeal dismissed.
Crown appeal allowed: resentenced to FT of 18m PD.
121

YEOMAN, Sharon Kaye - NSW SC, Buddin J, 21.3.2003
Citation: R v Yeoman [2003] NSWSC 194
Remarks on Sentence.
Manslaughter.
The offence involved the killing of offender's de facto husband. She stabbed him once in the heart. Both the deceased & the offender were heavily intoxicated at the time. Due to the effects of intoxication, the offender was not fully aware of her actions. She had stabbed the deceased on a previous occasion.
Unlawful & dangerous act - element of provocation - prior good character - long history of domestic violence - isolation caused by recent move - grief over recent death of father - effect of imprisonment on 5y old son - genuine remorse - excellent prospects of rehabilitation.
Sentenced to 4y GBB.
122

MARCHANDO, Thomas Dale - CCA, 25.3.2003
Spigelman CJ, Hulme & Buddin JJ
Citation: R v Marchando [2003] NSWCCA 71
Sentence appeal.
Knowingly concerned in the importation of trafficable quantity methorphan and methylamphetamine.
10y with NPP of 7y.
This matter was previously before the CCA in an unsuccessful appeal against the refusal of the sentencing judge to allow appellant to withdraw his plea of guilty (see R v Marchando (2000) 110 A Crim R 337).
Appellant & his 2 female co-offenders were arrested upon arrival in Sydney from LA. Strapped to the co-offenders' legs was a quantity of methorphan (1,960 grams) & methylamphetamine (293.8 grams) in 4 packages of white tablets weighing a total of 7.2 kgs with an estimated street value of up to $1.16 million. The co-offenders identified appellant as having coached them on how to conceal the drugs on their bodies. He had also advised them on the details of the importation, the nature of the drugs, consequences of apprehension & the financial remuneration for their participation.
Aged 36 at time of offence - principal in actual importation - good employment history - continuing support of family - suffers from alopecia - value of guilty plea limited in view of attempts to withdraw it - offers of assistance to authorities of limited value - no priors in USA or Australia, however, was fined $1,500 when apprehended whilst entering Australia with 1,400 grams of tablets attached to his person in a body-pack, which he said were steroids but which were never scientifically analysed to determine their content.
Role of offender - fresh evidence - admissibility.
Appeal dismissed.
123

ZERAFA - CCA, 10.4.2003 139 A Crim R 439
Hidden, Bell & Buddin JJ
Citation: R v Zerafa [2003] NSWCCA 101
Crown appeal against refusal by trial judge to make forfeiture order arising from proceedings brought against respondent.
1 x knowingly take part in manufacture of methylamphetamine; 1 x supply methylamphetamine.
Total of 4y with NPP of 15m.
Investigating an unrelated offence, police discovered respondent's involvement in an ongoing & sophisticated methylamphetamine manufacturing operation. He was responsible for obtaining Sudafed tablets to be used in the manufacturing process, as well as recruiting 'tasters' to sample the finished product. He also supplied the drugs to several people. Telephone intercepts revealed he sold the drugs to one individual on at least 6 occasions. At the time of respondent's arrest, police executed a search warrant upon his premises & located 6 mobile phones, a Toyota Camry motor vehicle and $13,500 in cash. The sentencing judge ordered the forfeiture of the mobile phones & the motor vehicle, however, he declined to order the forfeiture of the cash.
Aged 20 at time of offences - no legitimate source of income - significant & ongoing role in drug manufacture & supply.
Tainted property - forfeiture order - R v Sultana (1992) 74 A Crim R 27 followed.
Appeal allowed: Order made in DC set aside. A new order made that respondent forfeit the sum of $13,500.
124

GARDENER, Guy Pierce - CCA, 11.4.2003
Ipp JA, Hulme & Bell JJ
Citation: R v Gardener [2003] NSWCCA 2
Crown appeal.
3 x armed robbery; + 2 Form 1 offences (attempt armed robbery, armed robbery).
Total of 6y 9m with NPP of 4*y.
Respondent & a co-offender robbed a bank. The co-offender, armed with a rifle, ordered customers to lie on the floor. He pointed the gun at the head of an 82 year old female customer who was slow in lying down. Respondent jumped over the counter, told staff he had a gun (which was untrue) & removed approx $22,349.50 from cash drawers before escaping. A couple of weeks later, he & 2 co-offenders (one armed with a sawn-off rifle) entered another bank. Respondent attempted to jump the counter but was prevented by a security screen. The armed co-offender threatened customers with the gun & all 3 offenders demanded they get on the floor & give up their money. A total of $560 was taken from 3 female customers. Respondent & a co-offender robbed another bank the following day, the co-offender armed with a sawn-off rifle. When respondent jumped the counter, he knocked a female teller to the floor, injuring her face. $1,577 was taken from the cash drawers & $107 from the wallet of the teller who had been knocked down.
Aged 21 at time of offences - on bail at the time - strong Crown case - Aboriginal - lengthy serious criminal record commencing at age 10 - majority of life spent in custody - poor & disrupted childhood - suffered abuse at hands of father, witnessed domestic violence against mother - ward of State from age 13 - significant learning & behavioural difficulties - disrupted education - diagnosed with ADHD - history of violence towards youth workers - history of drug addiction - heroin user from age 16 - possibility of suffering from drug induced psychotic illness - severe personality disorder - significant risk of re-offending - poor rehabilitation prospects - multiple priors - previous imprisonment.
Parity - totality - special circumstances - failure to apply Pearce - degree of criminality - Henry.
Appeal allowed: sentenced to new total of 9y 3m with NPP of 6*y.
125

UGOCHUKWU, Ireanus - CCA, 2.4.2003 138 A Crim R 544
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Ugochukwu [2003] NSWCCA 104
Conviction appeal.
Knowingly concerned in the importation of commercial quantity heroin.
7y 4m with NPP of 5y.
Police intercepted a package from Thailand addressed to a Fiaona Dickson at a motel in Sydney. The package contained a handbag with 217.9 grams of heroin inside it. A Federal Police courier arrived at the motel with the package & was approached by the appellant who said he was collecting a package for Fiaona Dickson. He handed over a letter signed by Fiaona Dickson giving authority for appellant to collect the parcel. After collecting the parcel, appellant returned to his car where he was arrested.
Appellant asserted on appeal that the trial judge erred in leaving to the jury a specific lie as evidence of consciousness of guilt. Respondent accepted that there was error, however, it relied upon the proviso. That was the only live issue on appeal.
Whether error in leaving specific lie as evidence of consciousness of guilt - whether proviso applicable in circumstances of error in trial - whether proviso applicable on circumstantial case.
Appeal dismissed.
126

DAVISON, Joel (aka Andrew William ECKERMAN) - CCA, 14.3.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Davison [2003] NSWCCA 95
Conviction appeal.
2 x armed rob.
Concurrent sentences of 6y with NPP of 3*y on each count.
Both offences were pursuant to s.97(2) Crimes Act 1900 & both involved the use of a large serrated carving knife, which the appellant described as a 'bread knife' In the 1st offence, the appellant robbed a male of $40. In the 2nd offence, he carried out the robbery of another male of $90, the property of a Mobile service station. After the commission of this offence, appellant fled from the scene. There was a subsequent police motor vehicle chase, but the appellant managed to elude the police. He was arrested at his place of work the following day & made full admissions to both offences, then later confirmed those admissions in an ERISP.
No evidence upon which appellant could properly be convicted under s.97(2), whilst there was clearly sufficient evidence for conviction under s.97(1).
Conviction appeal allowed: element of offence not made out - no power to correct error - conviction quashed - referral back to Local Court.
127

VINCENT, Shane David - CCA, 28.4.2003
Ipp JA, Buddin J, Smart AJ
Citation: R v Vincent [2003] NSWCCA 112
Crown appeal.
Armed robbery.
3y with NPP of 1y.
After completing her banking at a nearby credit union, the victim returned to her motor vehicle. The respondent entered the vehicle & brandished a 20 cm kitchen knife in front of the victim. He demanded money & threatened to cut off both her arms. He then grabbed the victim's handbag, which contained a wallet, credit cards & $80 in cash, then fled from the vehicle. He was stopped some 20 minutes later & the knife was found. Respondent took police to where he had put the bag. $15 of the $80 were recovered.
Aged 22 at time of offence - guilty plea at earliest opportunity - no priors, although after the above offence he was found guilty & fined for an offence of possess cannabis - full co-operation with authorities - genuine contrition - very significant family support - requirement to serve imprisonment in protective custody - psychiatric evidence - in early phase of serious mental illness.
Whether sentence manifestly inadequate.
Appeal dismissed.
128

MARINOS, Dennis - CCA, 30.4.2003
Wood CJ at CL, Simpson J
Citation: R v Marinos [2003] NSWCCA 136
Sentence appeal.
Robbery.
2y 3m with NPP of 15m.
Applicant snatched a bag from a 56 year old woman as she was walking down the street. The amount of cash & personal property taken was small. Although she suffered no physical injuries, the victim 'was seriously frightened and traumatised by the experience'.
Aged 22 at time of offence - full admissions - heroin addiction - positive attempts to overcome habit - minor prior record including 4 x shoplifting, 1 x possess knife - had served 3m PD following breach of CSO.
Seriousness of offence - whether overstated by sentencing judge - whether sentence excessive.
Appeal allowed insofar as NPP reduced to 9m.
129

MUNOZ, David Alexander - CCA, 30.4.2003
Wood CJ at CL, Simpson J
Citation: R v Munoz [2003] NSWCCA 133
Sentence appeal.
Use offensive weapon with intent to prevent member of the Police Service from investigating an act reasonably calling for investigation; discharge firearm in manner likely to endanger safety of others; 2 x knowingly concerned in the importation of cocaine.
Total sentence of 10y with NPP of 6y 9m.
A resident of premises in Warwick Farm was seriously assaulted by a group of men. Applicant lived in the same street. The following day he took it upon himself to mount an attack upon the unit in which he believed the men responsible for the assault were living. Using a rifle & a shortened firearm, he fired a number of shots in its direction, initially from a distance & later at close quarters. He entered the building & discharged more shots. Police were called & set up an operation to defuse the siege which had developed. After a standoff lasting approx 7 hours, during which police tried to negotiate with applicant, both by loudhailer & telephone, applicant eventually surrendered, however, this was not before more than 140 shots were fired. No-one was hurt in the incident. No shots were fired directly at police, however, the presence of the applicant in the building & the discharge of weapons while the police were outside effectively prevented them from safely investigating the incident.
Suffering from symptoms consistent with major depressive episode at time of offences - on bail for Customs Act offences at the time - prior record includes offences against public order, assault police, resist arrest.
Accumulation of sentences - whether total sentence manifestly excessive.
Appeal dismissed.
130

MACLEOD - HC, 7.5.2003 214 CLR 230; 77 ALJR 1047
Citation: Macleod v The Queen [2003] HCA 24
Appeal from the NSW CCA.
Appellant, who was the sole shareholder of 3 companies, was convicted under s.173 Crimes Act 1900 (NSW) - 'fraudulent taking or application, by a company director, of property of the company, for the use or benefit of that person, or for any use or purpose other than the use or purpose of the company'. As director, he received funds from investors purportedly for investment in film production. He in fact used the money for his own personal use.
Whether consent of appellant as single shareholder means money taken with consent of company - whether judge misdirected jury as to element of dishonesty in offence.
Appeal dismissed.
131

HAYMAN, Phiona Anne - CCA, 5.5.2003
Giles JA, Bell J, Carruthers AJ
Citation: R v Hayman [2003] NSWCCA 138
Sentence appeal.
2 x defraud Commonwealth.
Sentenced to 18m with order that applicant be released on recognisance after a period of 12m with reparation order for repayment of $48,705.30 (the balance of the sum of a little over $50,000 which applicant had obtained).
Social Security fraud. Offences related to obtaining payment of benefits to which applicant was not entitled & dishonestly causing loss to the Commonwealth by obtaining benefits from Centrelink to which she was not entitled. Applicant was charged under s.29D Crimes Act & s.135.1(5) Criminal Code rather than s.29B Crimes Act. At appeal, the Crown admitted that there was not a ready explanation for applicant being charged under s.29D, suggesting that it may have been to do with technicalities.
Applicant could have been charged with less serious offences - need to allow for absence of remissions - sentence at upper extremity of periods of imprisonment imposed for similar offences with similar amounts of money - sentencing discretion miscarried - effect of imprisonment on applicant's 3 young children.
Appeal allowed: resentenced to 12m concurrent on each count with direction that applicant be immediately released on recognisance release order upon giving security of self in the sum of $500 without sureties.
132

VO, An Binh - CCA, 2.5.2003
Levine & Simpson JJ
Citation: R v Vo [2003] NSWCCA 124
Sentence appeal.
2 x supply heroin; 1 x knowingly take part in supply heroin.
Total of 3*y with NPP of 2y 2m.
All 3 offences involved an undercover police operation in Cabramatta. The total amount of heroin supplied was .09 grams, which comes within the definition of a small quantity contained in the schedules to the Drug Misuse and Trafficking Act 1995.
Aged 26 at time of offences - born in Vietnam - granted refugee status in Australia - drug addiction - depression - remorse - favourable prospects of rehabilitation.
Jurisdiction of LC - discount for guilty plea - objective seriousness - general & personal deterrence - subjective features - whether sentence manifestly excessive.
Appeal dismissed.
133

TRAN, Phuc Hoa - NSW SC, Greg James J, 2.5.2003
Citation: R v Tran [2003] NSWSC 373
Remarks on Sentence.
Manslaughter.
Offender & his female partner went to sleep on a mattress in the spare bedroom at the home of a friend after they had consumed a considerable quantity of alcohol. Offender woke up to find his partner was dead. He woke his friend & told him he had accidentally killed her & asked him to help dispose of the body. Offender wrapped the body in plastic, whereupon it was placed in a vehicle & driven to a location where it was disposed of. A little more than 2 months later, offender was spoken to by police. He admitted killing the deceased & referred to having had a nightmare & waking to find she was dead. He admitted giving her telephone to a friend after replacing his simcard & also admitted to disposing of her property.
Level of culpability - affected by sleep disorder - lacked specific intent for murder - mental state verging on that of automaton - consideration of interim sentencing regime under amending legislation - aggravating & mitigating features - special circumstances found.
Sentenced to 5y with NPP of 2y 3m.
134

SMITH, Kevin John - CCA, 6.3.2003
Hodgson JA, Dowd & Barr JJ
Citation: R v Smith [2003] NSWCCA 53
Application for adjournment; conviction appeal; application for leave to appeal against sentence.
1 x enter dwelling with intent to commit serious indictable offence (kidnapping); 1 x possess shortened firearm; + Form 1 offences (2 x detain for advantage; 1 x possess prohibited weapon, 1 x possess ammunition without licence; 1 x contravening AVO).
Total of 6y 4m with NPP of 4y.
Appellant entered pleas of guilty & the matter was stood over for sentence. He then made an application to withdraw the plea, which was declined.
Guilty plea - psychological problems - prospects for rehabilitation if given lengthy supervision.
Whether in fit state to enter plea - emotionally vulnerable at the time; taking Diazepam which impaired consciousness & thought processes; in a state of depression because of legal representative's failure to act on instructions as to gathering of evidence & witnesses to be called.
Plea allegedly induced by mental state & pressure by legal representatives - whether miscarriage.
Application for adjournment refused.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
135

DOAN, Hai Long - NSW SC, Hidden J, 30.4.2003
Citation: R v Doan [2003] NSWSC 345
Remarks on Sentence.
Attempted murder.
Deceased was escorted from a coffee shop at Bankstown by a number of young men, including offender. He was taken to a park where he was kicked & punched by 4 of the men (not the offender). The violence ceased when an eyewitness approached & the deceased was taken back to the car. He was then taken to a house at Villawood, his wrists were bound & he was placed in a bedroom. Later, he was taken to the garage where he was punched by 3 men. He was struck twice across the back of the head with a piece of timber by one of the men, who then tried to strangle him with a length of wire. One of the men asked the offender to hold deceased's legs while this was being done, which the offender did. This was the act which constituted his participation in an attempt to murder the deceased. Shortly thereafter, offender helped the others place the deceased (then unconscious) into the car. Offender was instructed to drive to a construction site & was told to remain in the car. The other men dragged the deceased onto the construction site, where one of the men stabbed him a number of times in the throat. Deceased died a short time later.
Aged 18 at time of offence - Vietnamese - disturbed upbringing - mother left the family when offender was very young - found difficulty with schooling in Australia because of limited English - felt isolated from fellow students - began associating with people outside school environment, leading to becoming involved in criminal activity.
Sentenced to 7y with NPP of 3*y.
136

MURRAY, William - CCA, 2.5.2003
Levine & Simpson JJ
Citation: R v Murray [2003] NSWCCA 116
Sentence appeal.
1 x robbery in company; 1 x use offensive weapon to prevent lawful detention; 1 x steal from a person; + Form 1 matters (drive manner dangerous, malicious damage, assault police, take & drive conveyance, drive whilst unlicensed, resist officers, assault officers).
4y 9m with NPP of 2y 9m.
Applicant unrepresented at appeal.
Applicant & his co-offender robbed a female shop attendant at the UTS Union Newsagency early in the morning. Applicant approached the attendant, pretending to buy a newspaper. When the till was opened, the co-offender entered the shop, shut the roller door to the shop & ordered the attendant to sit in a corner. The co-offender pulled the telephone off the wall. The applicant took money from the till & items out of the safe. When approached by police 2* weeks later, applicant avoided arrest by driving a vehicle at speed directly at police officers.
25% discount for early guilty pleas - on 2 year bond at time of offences - genuine resolve to overcome drug habit - remorse - written apology to victim - difficult home life, upbringing - incomplete education - special circumstances.
Parity.
Appeal dismissed.
137

DENNIS, Leslie Paul - CCA, 13.5.2003
Hulme & Simpson JJ
Citation: R v Dennis [2003] NSWCCA 137
Sentence appeal.
Aggravated sexual assault.
12y with NPP of 9y.
Armed with a carving knife, applicant forced entry to a house occupied by the victim, her mother, sister & 2 brothers. He hid in the victim's bedroom until she entered the room. He then closed the door, grabbed hold of the victim, held the carving knife to her throat & told her that if she wanted to live she should 'shut up'. He forced her to undress & pushed her to the floor, forcing her to lie face down. He undressed himself, still holding the knife at the victim's throat & with his penis he penetrated her vaginally from behind. Throughout the assault, the victim was distressed & crying, telling the applicant to get off her. The victim's sister opened the bedroom door & disturbed the applicant. The applicant dressed & left through the bedroom window, still carrying the knife. Although the applicant was wearing a black beanie across his face, he removed it during the assault & the victim, who was already acquainted with him, recognised him. The victim was aged 15 at the time of the assault & had not previously had sexual intercourse.
Aged 36 or 37 at time of offence - Aboriginal descent - drug & alcohol problem - very lengthy criminal record - no prior instance of any offence remotely approaching seriousness of above offence - previous imprisonment.
Failure to give appropriate discount for guilty plea - error in factual finding - starting point too high - whether sentence manifestly excessive.
Appeal allowed: resentenced to 10y with NPP of 7*y.
138

HILL, Robert John - CCA, 8.5.2003
Sully, Levine & Buddin JJ
Citation: R v Hill [2003] NSWCCA 128
Sentence appeal.
2 x murder; 2 x malicious discharge of a firearm with intent to do GBH.
Aggregate MT of 30y, with AT of life.
All offences occurred on an industrial estate on a Sunday when the accused, who was illegally living in one of the industrial units, went on a rampage. He systematically set about seeking out & shooting some people who were working in units which were in close proximity to the unit in which the accused was living. Two of those people died.
Aged almost 43 at time of offences - guilty pleas - prospects of rehabilitation - on strict protection - priors.
Objective criminality - subjective considerations - correct sentencing principles - R v Harris (2002) 50 NSWLR 409.
Appeal allowed: resentenced to aggregate of 30y with NPP of 25y.
139

S - CCA, 7.5.2003
Mason P, James & Dunford JJ
Citation: R v S [2003] NSWCCA 122
Conviction appeal.
1 x aggravated sexual assault by digital penetration of the anus (maliciously inflict ABH immediately before the assault).
2*y with NPP of 12m.
Appellant & complainant had married in October 1995, had separated in 1997 & were divorced in October 1998. Offence was alleged to have occurred on 30 April 2001. In January 1997, appellant suffered severe injuries in a MV accident. His chest was crushed, his diaphragm damaged, his stomach muscles torn & his spinal cord completely severed, resulting in paraplegia from his nipples down. At the time of the alleged assault, he weighed 120 kgs, with much of his weight distributed to his shoulders & arms. He used a wheelchair but had developed significant strength & agility. The issue fought at trial was whether the physical & sexual assaults happened at all. The credibility of the complainant & of the appellant were the key matters for the jury. It was put to the complainant that she had fabricated her allegation, inter alia, with a view to getting compensation from the Victims Compensation Tribunal.
Whether evidence of motive to fabricate false allegation of sexual assault excluded - need for counsel to clearly formulate lines of future questions- s.44(2)(b) Evidence Act - what is requisite to enable Court to be satisfied that the document being used to cross-examine a witness will be admitted - whether judge entitled to be informed that document not that of witness being cross-examined before witness is confronted with it - whether unfair criticism of counsel caused trial to miscarry - damaging admission - attempt to explain cut short - proviso.
Appeal allowed: new trial ordered.
140

O'BRIEN, Jessi - CCA, 6.5.2003
Giles JA, Dunford J, Smart AJ
Citation: R v O'Brien [2003] NSWCCA 121
Conviction and sentence appeal.
Manslaughter.
5y with NPP of 2y.
Appellant was convicted of the above offence following the death of her 14 month old daughter who died of malnutrition. Appellant had refused to seek medical treatment for her child.
Battered Wife Syndrome - religious beliefs - sufficiency of summing up - relating evidence to issues in the trial - lies - assistance to authorities - possibility of serving sentence on protection.
Appeal dismissed.
141

YEO, Keng Hwee - NSW SC, James J, 23.10.2002
Citation: R v Yeo [2003] NSWSC 315
Remarks on Sentence.
Murder.
This trial followed a successful appeal against conviction wherein a new trial was ordered: see R v Galea; Yeo [2001] NSWCCA 270. Offender had been found guilty of the murder of the deceased. Her co-accused, Raymond Galea, was convicted & sentenced for being an accessory after the fact to murder. Offender & Galea had been in a de facto relationship, however, offender left Galea & entered into a sexual relationship with the deceased while working as a nurse in a psychiatric hospital. The deceased was a patient in that hospital. Offender obtained a pistol from Galea & shot the deceased in the head & neck, killing him. She told Galea about the killing & both she & Galea dismembered the body for disposal. At the retrial, offender was again found guilty of murder.
Sentenced to: 24y with NPP of 18y.
142

TOKI, Martin Marino - CCA, 13.5.2003
Levine & Hidden JJ, Smart AJ
Citation: R v Toki [2003] NSWCCA 125
Conviction and sentence appeal.
Murder.
24y with NPP of 18y.
Ambulance officers, summoned by 2 telephone calls made by the appellant, entered a flat where the appellant was living with his de facto wife (the deceased). 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. He said she had suffered a fit while showering & that both he and the deceased had taken ecstasy the previous night & both had reacted badly to the drug.
Whether evidence of mental disorder relevant to intent - whether sentence excessive - examination of pattern of sentencing for 'relationship' murder.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 22y with NPP of 16*y.
143

SEPULVEDA - CCA, 12.5.2003
Giles JA, Dunford J, Smart AJ
Citation: R v Sepulveda [2003] NSWCCA 131
s.5F appeal against orders granting leave for Crown to present amended indictment & dismissing an application for a stay of proceedings on the new counts in the amended indictment.
Multiple sex offences.
The 1st indictment was presented following committal proceedings. A 2nd indictment was subsequently presented with additional counts for which there had not been a committal.
Whether s.63A Criminal Procedure Act 1986, by which an indictment may not be amended after presentation except with leave or by consent, was inapplicable because the new counts were ex officio counts - whether there was amendment of the 1st indictment - whether leave was properly given on basis that a Basha inquiry would meet any prejudice from absence of committal proceedings on the new counts - whether error in refusal to stay proceedings on the new counts until committal proceedings had been conducted.
Appeal dismissed: no error in exercise of discretion.
144

LEUNG, Yiu Man - CCA, 1.5.2003
Meagher JA, O'Keefe & Bell JJ
Citation: Leung v Regina [2003] NSWCCA 51
Conviction and sentence appeal.
Attempt obtain possession of commercial quantity heroin.
20y with NPP of 12y.
A cargo ship arrived in Port Botany from China. Its cargo included a container in which there were 800 boxes. Each box contained 24 cans, which were documented as containing pineapple. Australian Customs officials became suspicious & x-rayed the container. They discovered that 7 boxes each contained a can containing heroin rather than pineapple. The total amount of heroin was 78.07 kgs which, upon analysis, contained 54 kgs pure heroin. Australian Federal Police removed the heroin & impounded it, replaced the heron they had removed with 20 grams of heroin in each of the 7 cans, resealed the cans & placed one can in each of the 7 boxes that had been reassembled. The boxes were then repacked into the container, returned to the wharf area, over which the police commenced surveillance. The container was later delivered to a vacant shop at Lansvale where the 800 boxes were unloaded & stacked. The 7 boxes containing the heroin were later taken away in a MV by the appellant & another man. When appellant was arrested, a large sum of money, credit cards, a card that gave appellant entry to a 'high rollers' room in a gambling casino in Melbourne & a number of false documents were found in his possession. The false documents included drivers's licences, an airline ticket & a bank Access Card, in the name of Ho Moon Kung.
Circumstantial case - prior entry into Australia using false name & documents - false banking - role more than mere courier - not mastermind, but performing organisational role.
Admission of evidence - directions - propensity - character - flight - lies - credibility - cross-examination - factual disputes between appellant & some Crown witnesses - whether judge overstated importance of appellant's role in the enterprise - degree of criminality - whether sentence manifestly excessive.
Appeal dismissed.
145

SHANNON, Candy Patricia - CCA, 17.4.2003
Hidden, Bell & Buddin JJ
Citation: R v Shannon [2003] NSWCCA 106
Crown appeal.
2 x dangerous drive occasioning GBH; + Form 1 offences (1 x drive under the influence of a drug; 1 x drive whilst licence suspended).
Total of 18m with NPP of 9m.
On 2 occasions, respondent was driving her car when the car veered to the incorrect side of the road, colliding with an oncoming car. On the 1st occasion, both the respondent & the driver of the other car were trapped in their cars for a period of time. The driver of the other car suffered severe multiple fractures to his left leg, severe bruising & lacerations & nerve damage to the right side of his face. A blood sample taken from respondent revealed a level of morphine sufficient to have impaired her driving ability. The presence of cannabis was also detected. The driver of the oncoming car in the 2nd accident suffered a closed head injury & facial neurological damage, as well as severe injuries to his left knee which could leave him with a degree of permanent disability. A blood sample taken from respondent again revealed a significant level of morphine, as well as diazepam & evidence of recent use of cannabis.
Mature woman with significant health problems, physical & mental - driving whilst affected by prescription drugs - exceptional case.
Whether manifestly inadequate.
Appeal dismissed.
146

DALEY, Anthony James - CCA, 28.4.2003
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Daley [2003] NSWCCA 109
Sentence appeal.
2 x aggravated sexual assault; 2 x armed robbery; 2 x detain for advantage; + Form 1 offences (4 x aggravated sexual assault; 1 x attempt aggravated sexual assault; 5 x armed robbery; 2 x detain for advantage; 1 x indecent assault).
Total of 22y with NPP of 16*y.
Applicant committed the offences over a period of almost 2 years. He used a knife or similar instrument on 5 out of 7 occasions & threatened to kill one of the victims.
Aged 24 at time of 1st offence - late guilty plea - some offences committed whilst on parole - multiple priors - previous imprisonment.
Utilitarian value of guilty plea - whether sentences excessive.
Appeal dismissed.
147

'WHITE' - CCA, 13.5.2003
Wood CJ at CL, Simpson J
Citation: R v 'White'[2003] NSWCCA 135
Sentence appeal.
2 x obtain financial advantage by deception; 12 x possess firearms without licence; + offences taken into account (possess Police Service badge; possess Police Service uniform; possess Police Service identification badge; obtain financial advantage by deception).
Total of 6*y with NPP of 4*y.
Applicant had been the subject of police surveillance starting some time before the commission of the above offences. Accompanied by his 7 year old son, applicant flew to Brisbane where he hired a car. The following day he drove south from Brisbane with his son. He was stopped by police at Murwillumbah & the vehicle was searched. Police found 8 semi-automatic handguns & 4 revolvers located in the vehicle. All firearms were unregistered & the serial numbers had been removed. Also located in the vehicle was a NSW Police identification badge, NSW & Queensland drivers' licences, credit & charge cards, a birth certificate & an Australian Taxation Office Tax File Number Advice, all in the name of James Luciano. The credit card had been used for a number of transactions amounting to almost $30,000. Some payments had been made on the accounts.
Aged 34 at time of offences - born in Macedonia - migrated to Australia at age 3 - minor criminal record - stable domestic relationship - clinical anxiety - mild Tourette's syndrome - good character.
Guilty plea - subjective considerations - discount - whether sentence excessive.
Appeal dismissed.
148

BLAKE, Edward Richard Rex - CCA, 28.4.2003
Hulme & Hidden JJ
Citation: R v Blake [2003] NSWCCA 113
Sentence appeal.
1 x B&E with intent; 1 x BE&S; 1 x receiving.
Total of 4*y with NPP of 3y.
Appellant & his 2 co-offenders went to an abandoned shop where the door was levered open by the appellant. Appellant then sat in the car as a lookout as his co-offenders broke into an adjoining tobacconist shop. They stole goods worth just under $15,000. Appellant received 10 cartons of cigarettes, some phone cards & $1,500 for his assistance. Appellant asked an acquaintance who had previously been in prison with him if he was still 'playing the game'& to give him a call if he came across any computer equipment. Appellant subsequently attended a computer store where a quantity of computer equipment was loaded into his vehicle. He kept some of the equipment.
Aged 28 at time of offences - guilty plea at earliest opportunity - history of homelessness, heroin addiction - serious gambling addiction - hardworking - multiple priors - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
149

NTSELE, Sonny - CCA, 30.4.2003 141 A Crim R 33
Sully, Levine & Buddin JJ
Citation: R v Ntsele [2003] NSWCCA 111
Crown appeal.
Possess trafficable quantity cocaine; attempt possess trafficable quantity heroin.
Total of 6y with NPP of 3y 2m.
A number of telephone calls involving coded conversations between respondent & a co-offender were intercepted by police. The 2 offenders arranged to meet so that respondent could collect a package. A short time later, police arrested respondent & his co-offender as they were sitting in the respondent's car. A white bag hidden under the seat contained electronic scales & 4 packages which were later found to consist of 394.6 grams of heroin with a pure weight of 311.9 grams. In the boot of respondent's car, police found $44,500. They found $12,000 in the co-offender's car. A later search of respondent's home revealed 2,304.3 grams of cocaine with a pure weight of 1,307.7 grams hidden in the chimney, together with $125,050.
Aged 31 at time of offences - limited value of assistance - more serious role than co-offender - priors not known - no previous imprisonment in Australia.
Two offenders, same charges, different objective facts in relation to each offender - question of parity - manifest inadequacy with respect to one offence - delay in Crown filing appeal - discretionary consideration - Pearce applied.
Appeal allowed: resentenced to total of 8y with NPP of 4y.
150

HICKEY, Thomas John - CCA, 24.4.2003
HICKEY, Joseph Martin
Sheller JA, James J, Smart AJ
Citation: R v Thomas John Hickey; R v Joseph Martin Hickey [2003] NSWCCA 110
Crown appeals.
Joseph Hickey: 1 x robbery in company; + Form 1 offence (steal from the person) - 3y 9m with NPP of 2*y.
Thomas Hickey: 2 x robbery in company - total of 4*y with NPP of 3y.
Both respondents, accompanied by 2 co-offenders, entered a bank & stole $18,904 in Australian foreign currency. Thomas Hickey jumped the counter with a co-offender & demanded the money, whilst Joseph & the other co-offender stood just inside the entrance to the bank. There were no disguises, weapons or threats of violence. On a previous occasion, Thomas Hickey was involved in the robbery of a TAB. He & 2 co-offenders stole $1,188.80 on that occasion. No disguises, weapons or violence were used. On another occasion, Joseph Hickey snatched a bag from a woman on the street (Form 1 offence).
Joseph Hickey: Aged 29 at time of offence - Aboriginal - cannabis user since age 13 - heroin addiction - abusive alcoholic father - lengthy criminal record - history for breach of parole - rehabilitation - remorse - contrition - below average intelligence - on parole & subject to bond at time of offence - previous imprisonment.
Thomas Hickey: Aged 32 at time of offences - Aboriginal - addicted to heroin since age 14 - alcohol & cannabis user from age 11 - abusive alcoholic father - lengthy criminal record - failed attempts at rehabilitation - need for supervision on release - previous imprisonment.
When sentences for robberies in company should be wholly & partly concurrent - proportionality between co-offenders when one has more serious record - Pearce applied - Henry applied.
Joseph Michael Hickey: appeal dismissed.
Thomas John Hickey: appeal allowed - resentenced to total of 6y with NPP of 4y.
151

WHITE, Michael Scott - CCA, 25.3.2003
Studdert J, Smart AJ
Citation: R v White [2003] NSWCCA 88
Sentence appeal.
2 x BE&S; + Form 1 offences (possess prohibited drug, enter enclosed lands, possess implements capable of being used to enter & drive conveyance).
Total of 5y 3m with NPP of 3y 3m.
The BE&S offences were committed upon two units. Items were taken from each unit. Other than the damage caused to the doors when he broke in, neither of the units was vandalised & nobody was threatened or injured.
Aged 30 at time of offences - disturbed upbringing - dysfunctional family - drug addict - commenced drug use at early age - lengthy criminal history starting at age 15 - committed about 92 offences since that time - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
152

EL-HAGE, George - CCA, 28.5.2003
Hulme & Simpson JJ
Citation: R v El-Hage [2003] NSWCCA 118
Sentence appeal.
2 x aggravated armed robbery; assault with intent to rob; + Form 1 offences (obtain money by deception; attempt obtain money by deception).
Total of 3y with NPP of 2*y.
Armed with a flick knife, applicant robbed a 13 year old victim of his credit card, rail pass & PIN on a suburban train. Applicant later withdrew $300 from victim's account. Applicant approached the same victim less than 3 weeks later & demanded money. He walked with the victim to his home, threatening to get his friends to kill the victim if he did not give him some money. Applicant & a co-offender robbed a victim on a train of $20, a mobile phone, bank key-card & driver's licence. Applicant threatened to stab this victim with his flick knife.
Aged 18 at time of offences - mentally slow & suggestible - severe endogenous depressive illness - assistance to authorities - no priors.
Special circumstances - mental illness.
Appeal dismissed.
153

EL-FARRA, Fadi - CCA, 5.5.2003
Giles JA, Bell J, Carruthers AJ
Citation: R v El-Farra [2003] NSWCCA 140
Crown appeal.
1 x AOABH; 1 x take & drive conveyance without consent of owner.
Total of 2*y with NPP of 20m.
Just as the victim had entered his car, the respondent entered the car on the passenger side. He produced a 30 cm long screwdriver, pushed it to the victim's throat & told him to drive. The victim managed to jump out of the vehicle & run across the road. The respondent drove off in the victim's car. The victim contacted police who eventually managed to apprehend the respondent. The victim suffered a superficial laceration to the throat.
Aged 24 at time of offences - guilty pleas - on parole at the time - premeditation - mild depressive disorder - severe personality problems - history of polysubstance abuse - possibility of rehabilitation - prior offences (violence; BE&S; fraud/dishonesty; property) - previous imprisonment.
Whether error in backdating sentences to date of arrest - whether error in imposing concurrent sentences.
Appeal allowed: resentenced to total of 2y 9m with NPP of 2y.
154

SHIAGETZ, Jason - CCA, 2.5.2003
Sully, Levine & Buddin JJ
Citation: R v Shiagetz [2003] NSWCCA 115
Conviction and sentence appeal.
1 x robbery in company.
4y with NPP of 2y.
Shortly after midnight, the victim, his wife & 3 friends were walking along the street after a football match when the appellant & a group of about 3 men approached the victim. Appellant grabbed the victim's shoulder & demanded his wallet, whereupon the victim threw a punch at the appellant. A struggle ensued which also involved a friend of the victim. During the struggle, the victim's backpack & wallet were taken. Police, who saw the appellant throw the victim's wallet into a garden & place the backpack on the ground, stopped the appellant. The appellant was identified by the victim as the person who had punched him & taken his bag & wallet.
Aged 28 at time of offence - history of drug abuse - need for supervision on parole - lengthy criminal record including minor offences of violence but no serious offences of violence - previous imprisonment.
Discrepancies & inadequacies in evidence - lack of probative force - late amendment to indictment - absence of one arresting police officer at the trial - whether miscarriage of justice - special circumstances - M v The Queen followed.
Appeal dismissed.
155

SPICER, David Ernest - CCA, 23.4.2003 139 A Crim R 206
Santow JA, Simpson J, Smart AJ
Citation: R v Spicer [2003] NSWCCA 108
Conviction and sentence appeal.
Knowingly take part in manufacture of commercial quantity methylamphetamine - 4y with NPP of 2*y;
deemed supply of commercial quantity methylamphetamine - 4y with NPP of 2*y (concurrent).
Whilst driving a borrowed vehicle, appellant was stopped by police for a random breathalyser test. Police found a virtually complete methylamphetamine laboratory in the car, including a substantial quantity of methylamphetamine oil. It was alleged that the total weight of the material seized was 5,096.7 grams & that if it had been converted to crystalline form & assuming it had a purity of 5%, it would have yielded 2.77 kgs of methylamphetamine with a street value of about $277,000.
Aged 42 at time of offences - full-time carer of chronically & acutely ill wife, daughter & mother - received meagre income from carer's pension - supplemented this income by scavenging - family lived in poverty - hardship to family - first custodial sentence - insignificant priors.
Knowingly take part in manufacture - more than transportation must be proved - deemed supply of prohibited drug in liquid form not able to be readily supplied - whether sentences excessive.
Conviction appeal allowed on knowingly take part charge: verdict of acquittal entered.
Sentence appeal allowed on deemed supply charge: sentence reduced to 3y with NPP of 21m.
156

PARBERY, John William - CCA, 2.5.2003 141 A Crim R 43
Ipp JA, Buddin J, Smart AJ
Citation: R v Parbery [2003] NSWCCA 120
Conviction appeal.
3 x aggravated sexual assault (victim under 16); 1 x aggravated indecent assault.
Total of 4y with NPP of 2y.
Appellant had been charged with 7 counts. He was acquitted on 2 counts of aggravated indecent assault & the jury failed to agree on a verdict on another count.
Complainant was a friend of appellant's son & often slept on the appellant's boat during his childhood. When the complainant was aged 12, he was in the shower on the boat when the appellant entered the shower & touched him on the penis. Over the next 3 years, appellant performed oral sex on the complainant on 3 occasions.
Uncorroborated and delayed allegations - sufficient doubt - whether verdicts unreasonable & inconsistent.
Appeal allowed: verdicts of acquittal entered.
157

IRVING, Thomas John - CCA, 8.5.2003
Levine & Simpson JJ
Citation: R v Irving [2003] NSWCCA 127
Sentence appeal.
1 x AOABH; 1 x BE&S.
Total of 4*y with NPP of 3y.
The victim was a 90 year old resident in an aged care home. Applicant broke, entered & stole from the victim in his suite & assaulted him with a chair.
Aged 22 at time of offences - traumatic childhood - drug & alcohol abuse since age 14 - requirement for ongoing drug & alcohol rehabilitation, psychological treatment, supervision upon release - significant pre-sentence custody for other offences - multiple priors - previous imprisonment.
Whether error in failing to take pre-sentence custody into account - failure to give effect to finding of special circumstances - totality.
Appeal allowed insofar as sentence adjusted: total 4*y with NPP of 3y.
158

BELL, Cecilia Ann - CCA, 2.5.2003
Levine & Simpson JJ
Citation: R v Bell [2003] NSWCCA 132
Sentence appeal.
Robbery in company.
6*y with NPP of 4y.
The victim was approached by the appellant who argued with her over money related to the purchase of cocaine. The appellant head-butted the victim, breaking & lacerating her nose. Appellant then left the area but returned a short time later with a co-offender. Both appellant & the co-offender then assaulted the victim & pulled her handbag from her.
Aged 33 at time of offence - guilty plea at first opportunity - abusive childhood - several violent relationships - long history of drug addiction - previous suicide attempt - victim of gang rape - hepatitis C - on 2 recognizances at time of offence - 2 breaches of bail - psychiatric treatment whilst in custody - supportive mother - multiple priors - previous imprisonment.
Aboriginality - disparity - guideline judgments - Henry applied - Thomson & Houlton applied.
Appeal allowed: resentenced to 4y 10m with NPP of 3y.
159

STANTON v THE QUEEN - HC, 29.5.2003 77 ALJR 1151
Citation: Stanton v The Queen [2003] HCA 29
On appeal from the Supreme Court of WA.
Wilful murder.
Appellant was convicted of the wilful murder of his estranged wife. This was a second trial. At a previous trial, the jury had been discharged, having failed to agree upon a verdict. Appellant shot his estranged wife at close range during an argument. The only issue at trial was whether he intended killing her. The trial judge directed the jury as to alternative verdicts, advising they must be unanimous as to a guilty or not guilty verdict on wilful murder before the court would take an alternative verdict.
Alternative verdicts of murder & manslaughter available - directions - whether trial judge reversed onus of proof - whether trial judge erred in informing jury about circumstances in which they could consider alternative verdicts.
Appeal allowed: retrial ordered.
160

EL HASSAN, Radwin - CCA, 21.5.2003 141 A Crim R 346
Santow JA, Simpson J, Smart AJ
Citation: R v El Hassan [2003] NSWCCA 139
Crown appeal; and
Conviction appeal.
Attempt possess commercial quantity cocaine.
7y 1m with NPP of 4y 7m.
Appellant was part of a joint criminal enterprise involving the importation into Australia of about 28 kgs of cocaine (17 kgs pure cocaine) which was concealed in a large autoclave machine. The responsibility of the appellant was to take the cocaine from the machine & store it prior to its distribution. The Federal Police had intercepted the operation & substituted the cocaine. They arrested the offenders when they removed & tested the substance.
Aged 30 at time of offence - role critical in intended distribution of drugs - financially deprived - material & emotional support to family - adjustment disorder - anxiety & depression - assistance to authorities - no relevant priors.
Role of offender - parity.
Conviction appeal dismissed.
Crown appeal allowed: resentenced to 9y 7m with NPP of 5y 7m.
161

KITCHENER, Robert Keith - CCA, 13.5.2003
Wood CJ at CL, Simpson J
Citation: R v Kitchener [2003] NSWCCA 134
Sentence appeal.
1 x supply methylamphetamine; 1 x supply commercial quantity methylamphetamine.
Total of 8y with NPP of 6y commencing 2.4.2001.
Offences involved the supply of methylamphetamine to an undercover police operative. On the 1st occasion, 224 grams were supplied for an amount of $5,600. Analysis showed the drug to have an average purity of 5.5%. The estimated street value was $20,790 to $27,720. The 2nd supply involved the supply of 280 grams for $7,000. Analysis on this occasion showed a purity of 6.5%. The estimated street value was $25,200 to $33,600.
Aged 47 at time of offences - long criminal record, including drug offences - close to 10 years in continuous custody - previous favourable Probation & Parole reports - 'model prisoner', 'exemplary conduct', 'responsible attitude'- more sceptical reports tendered at sentence hearing for above offences - 'prepared to take calculated risks for self gain'.
Proportionality - 'double punishment'- backdating - whether sentences manifestly excessive.
Appeal allowed: sentence of 8y with NPP of 6y backdated to 1.1.2001.
162

MELCHERS, Anthony John - CCA, 23.5.2003
Ipp JA, Buddin J, Smart AJ
Citation: Melchers v R [2003] NSWCCA 119
Conviction appeal; and
Crown appeal.
Manslaughter.
3y with NPP of 3y 3m PD.
The deceased collapsed & died at a party at the Woy Woy Masonic Hall. He suffered a subarachnoid haemorrhage which caused him to die within minutes. Evidence was that appellant had elbowed or pushed the deceased in a manner that was not hard, thereby causing him to fall, while other evidence was to the effect that the deceased had slipped & fallen. The Crown case was that appellant's injuries were caused by a punch. The Crown accepted that elbowing or pushing described in evidence would not fall within the ambit of an unlawful & dangerous act & would not ground liability for the offence of manslaughter.
Whether verdict unreasonable & inconsistent with evidence - evidence contained discrepancies, displayed inadequacies - lack of probative force - directions regarding close relationship between a witness & accused - jury at first unable to reach unanimous decision, later able to reach unanimous decision - whether circumstances under which jury returned verdict gave rise to miscarriage of justice.
Conviction appeal allowed: verdict of acquittal entered.
163

AYYILDLIZ, Muhammed - NSW District Court, Blackmore J, 26.8.2002
YAMAN, Hakan
TOKARCZUK, Matthew Luke
Judgment on application in relation to s.25ADrug Misuse and Trafficking Act.
Supply methylamphetamine.
Two of the accused entered pleas of guilty. The accused operated as shop-front drug dealers, providing drugs for cash on a number of occasions. They worked for a main dealer located nearby. The defence argument was that the legislation was aimed at 'dealers', as opposed to 'retailers'& submitted that the element of the offence requiring proof of supply for 'financial or material reward' means reward to the individual accused & failure by the Crown to establish this required an acquittal. The Crown submitted that there was nothing in the legislation that required such a limited interpretation & that the judge need only be satisfied of the fact that the supplies took place & that they were for financial or material reward, without that reward being limited to that obtained by the accused.
A request for a ruling was made as to whether the Crown must prove beyond reasonable doubt that the accused received some financial or material reward.
Held that it is not an element of the offence under s.25A of the Drug Misuse and Trafficking Act that the accused themselves financially or materially profited from the transaction.
164

LOWE, Simon - CCA, 2.6.2003 57 NSWLR 102;139 A Crim R 240
Handley JA, Sully & Buddin JJ
Citation: R v Lowe [2003] NSWCCA 150
Conviction and sentence appeal.
Count 1: threaten a witness in circumstances of aggravation - 4y with NPP of 2*y;
Count 2: supply prohibited drug - 6m FT (concurrent);
Counts 3 & 4: use listening device to record conversation - 2y with NPP of 9m (cumulative on Count 1);
Counts 5 & 6: publication of recording of a conversation - 9m FT (concurrent).
Appellant was convicted on a charge under s.322(a) of the Crimes Act of threatening a witness in circumstances of aggravation within s.324. The relevant count alleged that, in Sydney, appellant had threatened the complainant, a witness in a judicial proceeding at Melbourne Magistrate's Court, with intent to influence her to not attend as a witness. Section 324 authorised increased punishment or conduct within s.322(a) undertaken with intent to procure the acquittal of a person charged with a serious offence. The proceedings pending in the Melbourne Magistrate's Court were committal proceedings for a serious offence. Appellant was sentenced on the basis of an aggravated offence under s.324.
Whether offence against the administration of justice in Victoria punishable in NSW.
Conviction appeal on count 1 allowed: judgment of acquittal entered; conviction appeal otherwise dismissed.
Sentence appeal allowed on counts 3 & 4: resentenced to 2y with NPP of 9m; sentence appeal otherwise dismissed.
165

MARTINSEN, Ronald Allan - CCA, 30.5.2003
Sheller JA, Hidden J, Carruthers AJ
Citation: R v Martinsen [2003] NSWCCA 144
Sentence appeal.
Defraud Commonwealth; + Form 1 offences (2 x opening & operating a bank account without proper disclosure).
Total of 2y with NPP of 16m.
Over a period of 10 years, applicant claimed & received Social Security benefits in 2 names, using his own name as well as a name by which he was also known. He achieved this by supplying a volume of false documentation & opening & operating a bank account in the name of Bealing without disclosing to the bank that he already had an account in the name of Martinsen. It was his conduct in relation to that bank account which gave rise to the 2 offences on the schedule. He received legitimate Social Security payments under the name of Martinsen, but under the name of Bealing he received almost $80,000 to which he was not entitled. On the evidence, the sentencing judge found that he had taken advantage of the fact that he was known by 2 names & that the offences were not the product of any pressing financial need. At the time of sentence, payments to him had been withheld, so that about $78,000 remained outstanding. The sentencing judge made a reparation order, pursuant to s 21B of the Crimes Act, in that amount.
Aged 58 at time of sentence - long-standing problem of alcohol abuse - heavy smoker - suffers from a number of illnesses - poor vision due to cataracts & glaucoma - prior convictions.
Illness of applicant - whether any lesser sentence warranted.
Appeal dismissed.
166

McNAMARA, Noel David - NSW SC, Hidden J, 23.5.2003
Citation: R v McNamara [2003] NSWSC 429
Remarks on Sentence.
Manslaughter.
In an outburst of anger, offender attacked his mother, beating her severely. A post mortem examination revealed extensive bruising to the deceased's head, neck, torso & limbs. There were also fractures to her sternum & most of her ribs, causing a flail segment which inhibited her breathing. Offender was charged with murder, however, the jury found him not guilty of murder but guilty of manslaughter. The central issue at trial was that the offender denied that he had brought about his mother's death. The only basis upon which manslaughter was left to the jury was that they were satisfied that the offender was the killer but were not satisfied that he had any of the states of mind requisite for murder. Offender stood for sentence on the basis that he killed his mother by an attack which was both unlawful & dangerous but without an intention to kill or inflict GBH or a reckless indifference to human life.
Aged 29 at time of offence - on bail awaiting trial for another matter at the time of the killing - priors include AOABH; maliciously inflict GBH - previous imprisonment - educated to Year 10 - irregular employment in unskilled positions.
Sentenced to 9y with NPP of 6*y.
167

STRONG, Robert John - CCA, 8.5.2003 141 A Crim R 56
Sully, Dunford & Buddin JJ
Citation: R v Strong [2003] NSWCCA 123
Sentence appeal;
appeal against Habitual Criminal Declaration; Habitual Criminal sentence appeal.
Stalk with intent to cause fear of physical or mental harm; intimidation with intent to cause fear of physical or mental harm; + Form 1 offences (offensive language; unlawful custody of knife in public place).
Total of 8y with NPP of 6y.
Following conviction for the above offences, applicant was declared an habitual criminal pursuant to Habitual CriminalsAct 1957 (NSW) & sentenced to 14y (concurrent with above sentence).
Whilst in prison for unrelated stalking matters, appellant sent numerous sexually explicit letters to the victim, detailing acts he wanted to perform on her. When he was released from prison, he moved into a house across the street from where the victim lived. He began watching her & bragged to others that she was his woman. He wrote words to the effect that he loved her on a flag at his house. On one occasion, he waited outside her house in the dark & followed her when she left the house on foot, then watched her whilst she was at a hotel with friends & also while she was waiting for a taxi to go home. He waited outside her house the following night & yelled abuse & threats at her house, using offensive language. He was intoxicated at the time. He was approaching the house when a police vehicle came by as it patrolled the area, whereupon applicant fled.
Aged 40 at time of 1st offence - Aboriginal - lengthy criminal record - history of repeat sexual offences, including stalking, sexual assault - history of drug abuse - mental disorder, possible mental illness - need for ongoing treatment - serving sentence in strict protection - previous imprisonment.
Repeat offender - protection of community - rehabilitation prospects - Veen (No 2) considered - guideline judgments - Thomson and Houlton followed.
No evidence according to the mode of proof authorised that applicant had on 2 occasions previously served separate terms of imprisonment - whether error in making pronouncement without first finding that applicant had on 2 occasions previously served separate terms of imprisonment within the meaning of the Habitual Criminals Act or, alternatively, whether error in making such a finding.
Sentence appeal allowed: resentenced to 7y with NPP of 5y.
Appeal against Habitual Criminal Declaration: appeal dismissed.
Habitual Criminal sentence appeal: appeal allowed, sentence reduced to 8y (concurrent).
Effective aggregate: 8y.
168

GALEA, Raymond - NSW SC, Sully J, 30.5.2003
Citation: R v Galea [2003] NSWSC 465
Remarks on Sentence.
Accessory after the fact to murder.
This was the prisoner's third trial. He was first tried upon a charge of murder. That was a joint trial with Kathy Yeo. The jury found Yeo guilty of murder & the prisoner not guilty of murder but guilty of being an accessory after the fact to murder. Both the prisoner & Yeo appealed successfully to the CCA & a new trial was ordered for each of them. In the joint retrial, Yeo was again indicted for murder & the prisoner was indicted for being an accessory to murder. Yeo was again found guilty of murder, however, the jury could not agree upon a verdict in the case of the prisoner.
Galea & Yeo had been in a de facto relationship. Yeo left Galea & entered into a sexual relationship with the deceased while working as a nurse in a psychiatric hospital. The deceased was a patient in that hospital. Yeo obtained a pistol from Galea & shot the deceased in the head & neck, killing him. She told Galea about the killing & both she & Galea dismembered the body for disposal.
Sentenced to 5y with NPP of 2*y.
169

MAGOULIAS, Ross - CCA, 26.5.2003
Ipp JA, Buddin J, Smart AJ
Citation: R v Magoulias [2003] NSWCCA 143
Conviction appeal.
1 x detain by force with intent to carnally know; 1 x assault & immediately after the assault commit an act of indecency; 1 x maliciously inflict ABH with intent to have sexual intercourse.
Total sentence of 3*y with NPP of 2y.
The offences were committed upon a prostitute. There was no issue at trial that the victim was detained & assaulted. The issue was whether appellant was the offender. There was no identification evidence identifying appellant, nor were there any admissions made by him. He did not take part in a recorded interview with police, nor did he give evidence before the jury. The Crown relied, amongst other things, on the car allegedly used & the video & ATM records at a service station where the car carrying the victim stopped.
Strong circumstantial case - non-synchronisation of timing devices - common knowledge - ss.144 & 146 Evidence Act 1995 - whether error in directions - whether verdicts unreasonable.
Appeal dismissed.
170

MILLS, Lester Burnard - CCA, 28.5.2003
Ipp JA, Buddin J, Smart AJ
Citation: R v Mills [2003] NSWCCA 145
Conviction appeal
1 x sexual assault (person under 10); 3 x indecent assault (person under 10).
Total of 5y with NPP of 3y.
Appellant committed the above offences upon his 6 year old step-daughter. The complainant first told her mother of the incidents a little more than 2 years after the first offence.
Summing up - directions - unsworn evidence - delay in complaint - whether warning required - Longman v The Queen 168 CLR 79; Crampton v The Queen 206 CLR 16 ; Doggett v The Queen 208 CLR 343.
Appeal dismissed.
171

HARBULOT, Peter Raymond - CCA, 21.5.2003
Giles JA, Dunford J, Smart AJ
Citation: R v Harbulot [2003] NSWCCA 141
Conviction appeal.
Sexual intercourse without consent.
3*y with NPP of 2y.
Appellant & complainant, who were friends, spent an evening drinking at a hotel. Afterwards, the complainant accompanied the appellant back to his flat. The complainant was drunk & vomited a number of times in appellant's bathroom. After bathing, complainant again put on her clothes & later lay on the appellant's bed & went to sleep. She awoke when she felt appellant pushing his penis into her vagina. Complainant said the intercourse lasted about a minute, during which she pretended to be asleep. When appellant moved away from her, she got off the bed, left the premises & ran back to her house.
Evidence of complaint - probative weight - danger of unfair prejudice - failure to direct jury as required by s.165 Evidence Act 1995 (NSW) - unbalanced summing up - whether miscarriage of justice.
Appeal dismissed.
172

SULLIVAN, Dennis John - CCA, 11.4.2003
Hodgson JA, Buddin J, Smart AJ
Citation: R v Sullivan [2003] NSWCCA 100
Conviction appeal.
6 x armed robbery.
Overall sentence of 14y with NPP of 10y.
The appellant faced trial on 7 counts of armed robbery. The jury returned a verdict of not guilty on the one count & guilty on the remaining 6 counts. The Crown case depended heavily on evidence given by a co-offender who had pleaded guilty to a number of the offences with which appellant had been charged. This evidence was that he & the appellant had together committed the offences & that the appellant admitted to him that he had committed a further offence. At trial, when the co-offender was being cross-examined, he was asked whether he got a 50% discount on his sentence because of agreeing to give evidence for the Crown. The Crown prosecutor objected & the question was withdrawn. It was argued on appeal that the extent of the discount given to the co-offender should have been made known to the jury.
Failure to lead evidence of extent to discount and/or insufficiency of warning - comment of Crown prosecutor, repeated by judge, that appellant had an interest to give certain evidence - no objection taken at trial - whether miscarriage of justice.
Appeal allowed: new trial ordered on 6 counts for which appellant was found guilty.
173

JOHNSON, Bryan Steven - CCA, 22.5.2003
Giles JA, Bell J, Carruthers AJ
Citation: R v Johnson [2003] NSWCCA 129
Sentence appeal.
Manslaughter.
10y with NPP of 7*y.
When applicant was aged 13, he met the victim who grossly sexually abused him on 6 or 7 occasions & introduced him to the use of cannabis. After an interval of some years, during which applicant lived interstate, he returned to the area where the victim lived & occasionally visited him to obtain cannabis or money. The victim made further sexual approaches to the applicant during this period. On one of these occasions, after the victim rubbed himself against the applicant in a sexually explicit way, a knife was produced. During a struggle, applicant took hold of the knife & stabbed the victim in the back, neck & chest.
Aged 22 at time of offence - late plea of guilty - father a strict disciplinarian - parents separated when applicant aged 4 - at times lived with paternal grandmother who died when applicant aged 11, causing him severe emotional distress - exhibited signs of behavioural disturbance from age 12 - in months prior to offence, consumed substantial quantities of alcohol, Valium & amphetamines - on parole for assault with intent to rob at time of offence - priors (property & violent offences) - previous imprisonment.
Provocation.
Appeal allowed: resentenced to 9y with NPP of 6y 9m.`
174

DIB, Mohammed - CCA, 27.5.2003
Hodgson JA, Dowd & Barr JJ
Citation: R v Dib [2003] NSWCCA 117
Sentence appeal.
Accessory after the fact to malicious wounding with intent to do GBH.
3y 4m with NPP of 2y.
Applicant was charged with accessory after the fact to murder but pleaded guilty to the lesser charge, which was accepted by the Crown in full satisfaction of the indictment.
Applicant was involved in attempting to provide an alibi for his brother, who had stabbed a man during a street fight. Applicant & a number of co-offenders were present at the time of the stabbing. Shortly after the stabbing, applicant & his brother were seen discussing how to "fix" the situation. They met with a number of males at Bondi beach where applicant told the group about the incident & they discussed establishing an alibi. The group collected $1,000 & gave it to the applicant. Applicant & his brother were driven to Queensland by another co-offender. Police executed a search warrant 3 days later & applicant told them that he & his brother had left for Queensland the day before the stabbing.
Aged 20 at time of offence - guilty plea to lesser offence offered at earliest opportunity - no indication of remorse - limited rehabilitation prospects - significant pre-sentence custody - multiple priors (assault police, resist police, steal MV, intimidate police officer, stalking, goods in custody, hinder investigation) - previous imprisonment.
Utilitarian value of guilty plea - Thomson & Houlton - parity.
Appeal dismissed.
175

JCM - CCA, 28.5.2003
James J, Smart AJ
Citation: R v JCM [2003] NSWCCA 151
Sentence appeal.
Assault with intent to rob whilst armed with dangerous weapon.
4y with NPP of 21m (to be served in a Juvenile Justice centre).
The victim was using his mobile phone late at night on a railway bridge. Applicant acted as a lookout while a co-offender, armed with a knife & a loaded shortened firearm, approached & threatened the victim with the weapons in order to steal his mobile phone. The victim resisted & the applicant approached him & threatened that he would be shot if he did not hand over the phone. The co-offender chased the victim, who fought back & managed to grab the gun before a security guard intervened.
Aged 15 at time of offence - born in Peru - immigrated with mother to Australia at age 11 - absence of parental supervision due to single mother working long hours - close, supportive family - good rehabilitation prospects - educational difficulties due to lack of English language skills - good progress & behaviour in prison - pursuit of studies whilst in prison with good results - no priors.
Parity - need to look at what each of 2 co-offenders did & culpability of each - incorrect assessment of facts & application of principle - Henry (1999) 46 NSWLR 346; Lowe v The Queen (1984) 154 CLR 606.
Appeal allowed: resentenced to 3y with NPP of 20m.
176

ELETER, Tony - CCA, 20.5.2003
ELETER, George
Simpson, Hidden & Bell JJ
Citation: R v Eleter & Anor [2003] NSWCCA 130
Sentence appeals.
Affray.
16m with NPP of 12m.
Applicants, together with their father, their brother Michael & a juvenile, were originally charged with murder & affray. The brother Michael ultimately pleaded guilty to the murder & the other offenders pleaded guilty to affray.
After an earlier fight between Tony Eleter & another man, the applicants & their co-offenders went to a brothel where the man worked in order to exact retribution and/or revenge. An argument developed between the offenders & 2 men (one of them being the man involved in the earlier fight). These 2 men then retreated towards the front door of the premises & tried to block the group of offenders from entering. One of the offenders managed to get inside the premises & continued to struggle with one of the other men. Michael Eleter fired 10 shots at the front windows on either side of the entrance to the premises. The deceased, who was in the front office at the time, was struck by one of the bullets & died almost immediately. Michael Eleter was unaware at the time that anyone had been injured. His plea to murder was tendered & accepted on the basis that he acted with a reckless indifference to human life.
Applicants young offenders (twins, aged 19 at time of offence) - agreed facts - whether sentencing judge influenced by matters not in evidence - whether sentences excessive - whether special circumstances.
Appeals dismissed.
177

LYNDON, Brett Ralph - CCA, 30.5.2003
James J, Smart AJ
Citation: R v Lyndon [2003] NSWCCA 152
Sentence appeal.
Attempt armed robbery with offensive weapon.
5y with NPP of 3y 9m.
Applicant entered a service station at Greta, the only other person in the service station being the female console operator. Applicant tendered cash for a purchase & as the console operator opened the till, he produced a small silver pistol, pointed it at the operator's head & said 'Don't close the drawer I want the cash'As the operator closed the drawer, a customer drove into the service station. The applicant walked to the door, not having taken any money, told the operator not to press the alarm button, then ran towards the New England Highway. Applicant was identified by police from security footage.
The above sentence was ordered to be served cumulatively upon a 9m NPP which applicant was serving at the time for driving offences. Applicant complained that the effect of the sentences was that he would be in custody continuously for a period of 4*y with a parole period of 1y 3m.
Need to allow for accumulation of sentences - Clarke (1995) 78 ACR 226; Henry (1999) 46 NSWLR 346; Simpson NSWCCA 18.6.1992.
Appeal allowed in part: NPP reduced to 3*y.
178

VASQUEZ, Herman - CCA, 14.3.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Vasquez [2003] NSWCCA 94
Sentence appeal (extension of time).
Knowingly concerned in the importation of a trafficable quantity of cocaine.
9y with NPP of 6y.
Customs officers detected a package of cocaine concealed inside a suitcase which had been posted from Uruguay bearing applicant's phone number & the name of a non-existent company. The pure weight of the cocaine was 649.5 grams with a street value of $390,000. Applicant attended the Australian Customs Service Clearance section with documentation relating to the package & was told there was a delay. Three days later, he again attended. He claimed to be a representative from the company & collected the package. Subsequently, drug paraphernalia, including scales, plastic bags, residue, evidence of weight calculations & a rifle were found at his house during a search.
Aged 24 at time of offence - significant role - prior offences (drugs, property).
Parity.
Appeal dismissed.
179

BEREYNE, Michael James - CCA, 6.6.2003
Hidden & Adams JJ
Citation: R v Bereyne [2003] NSWCCA 153
Sentence appeal.
3 x armed robbery; + Form 1 offences (9 x armed robbery; 5 x steal MV; 2 x stealing; 1 x possess car-breaking implements; 2 x traffic offences).
Total of 12y with NPP of 8y.
Offences committed over a 4* month period. For some of the armed robberies, applicant used a blood-stained syringe, for others a knife. Several of the robberies were committed whilst applicant was on bail for another of the robberies.
Aged 23 at time of offences - disturbed background - limited schooling - drug abuse since early teens 'special circumstances - prior criminal record for less serious offences - previous imprisonment.
Utilitarian value for guilty pleas - on protection after being assaulted - limited contact with parents & lack of support from them - pursuit of rehabilitation - lack of pre-sentence report - whether sentence excessive.
Appeal dismissed.
180

HYDE, Glen Paul - CCA, 30.5.2003 142 A Crim R 32
James J, Smart AJ
Citation: R v Hyde [2003] NSWCCA 154
Sentence appeal.
B&E and commit serious indictable offence (steal).
2y FT (sentence partially suspended).
Applicant gained entry to a home unit in a large block of units by breaking the lock on a window. He searched through a number of drawers & cupboards, picked up a wrist watch belonging to the occupant & put it in his pocket. Police attended the unit & the applicant was arrested.
Aged 31 at time of offence - on bond - guilty plea -admissions - long-term problems with drugs & alcohol - extensive criminal record - Juvenile Justice institutions - priors (driving, mal. damage, offensive conduct, assault, mal. wounding, maliciously inflict GBH, BE&S, larceny, drugs) - previous imprisonment.
Interpretation of s.99 (1)(c)(i) Crimes (Sentencing Procedure) Act - R v Gamgee (2001) 51 NSWLR 707 applied - NPP not set.
Appeal allowed: sentenced to 21m 15d with NPP of 16m.
181

WALKINGTON, Benjamin - NSW SC, Newman AJ, 6.6.2003
Citation: R v Walkington [2003] NSWSC 517
Remarks on Sentence.
Murder.
Offender used 3 knives to inflict 23 stab wounds to his de facto's body. Such was the force of his attack that one knife broke, leaving its blade embedded in the deceased's neck. Offender & deceased had been in a de facto relationship for some 15 years & had 5 children. Offender was convicted of an assault upon his de facto in 1997. Family members regarded the relationship as being by & large successful, however, by the end of 2002, the relationship had deteriorated.
Aboriginal extraction - gainfully employed - unlikely to re-offend - objective gravity - special circumstances - offence prior to 1.2.2003, therefore s.44 Crimes (Sentencing and Procedure) Act 1999 applicable.
Sentenced to 18y with NPP of 12y.
182

CROSBIE, Adele Maree - CCA, 2.5.2003
Hulme & Simpson JJ
Citation: R v Crosbie [2003] NSWCCA 114
Sentence appeal.
2 x supply trafficable quantity methylenedioxymethylamphetamine (ecstasy).
Total of 4*y with NPP of 2*y.
The offences were committed following upon an undercover police officer expressing interest in acquiring 1,000 ecstasy tablets. The 1st charge related to actual supply, the 2nd to the offer made to supply.
Aged 48 at time of offences - commercial transaction to make money - middle degree of seriousness - prior history of committing drug offences - 'certain mental fragility'.
Traumatic events surrounding sexual assault of daughter - psychological & psychiatric issues - no previous imprisonment - parity - whether sentence excessive.
Appeal dismissed.
183

CRAWLEY, Daryl Edward - CCA, 26.5.2003
James J, Smart AJ
Citation: R v Crawley [2003] NSWCCA 149
Sentence appeal.
Detain for advantage.
10y with NPP of 6*y.
Applicant, 4 co-offenders & the 15 year old female victim were acquaintances living on the streets. Believing the victim had informed on them, applicant & the co-offenders detained the victim in their squat in a derelict building for 4 days, during which time she was tied up & tortured. She was repeatedly kicked, punched, threatened with a knife & burned with cigarettes, matches & flaming spray from a deodorant can. On several occasions, she was made to insert objects into her vagina. She was also forced to eat a cockroach & mouldy bread, drink urine & stand against a wall whilst knives were thrown at her. On one occasion, she was choked into unconsciousness & had to be revived by chest compressions. The victim was eventually released by another homeless youth & some friends.
Victim's injuries included multiple bruising to 75% of her face, multiple bruising & burn marks to her abdomen & chest, burn marks to her scalp & extensive burn damage to her hair, multiple & extensive bruising to her neck, burn marks to her pubic region.
Aged 19 at time of offence - guilty plea at first opportunity - deprived background - physical & sexual abuse by stepfather - placed in foster homes where subjected to sexual abuse - expelled from school at age 14 - limited intellectual capacity - little evidence of genuine remorse - guarded rehabilitation prospects - prior offences (property, drugs, violence) - no previous imprisonment.
Parity - proportionality - Postiglione v The Queen (1997) 189 CLR applied.
Appeal allowed: resentenced to 8y 9m with NPP of 5y 9m.
184

A - CCA, 13.6.2003
Santow JA, Sully & Buddin JJ
Citation: R v A [2003] NSWCCA 157
Sentence appeal; and
Crown appeal.
10 x cause child under age of 18 to participate in act of prostitution; + Form 1 offences.
Total of 3y with NPP of 15m.
The one female child was aged 13 at the time, the other aged 15. In a lengthy ERISP with police, applicant admitted to his involvement in the offences. He attributed most of the blame to his father whom he said had forced him to participate in the offences. The 13 year old girl was put into a brothel in Parramatta where she was forced to work. The arrangement was that the brothel owner received a percentage of the girl's earnings & the balance was given to the applicant who gave it to his father. The 15 year old girl was kept at various hotels & was also forced to work as a prostitute on Canterbury Road at Bankstown on a number of occasions.
Aged 19 at time of offences - dysfunctional family - ran away from home - spent time in refuges- drifted into criminal activities & ended up in juvenile detention centres - father 'an autocratic, domineering & violent individual'- applicant's mother & applicant were victims of his violence - mother left the father - applicant assumed some responsibility for looking after some of his younger siblings.
Young offender - pleas of guilty - acts committed whilst under coercion from dominant co-offender - significant assistance to authorities - whether sentence excessive.
Sentence appeal dismissed.
Crown appeal: Whether sentence inadequate.
Crown appeal dismissed.
185

DEMIROZ Muammer (aka Paul) - CCA, 26.5.2003
Sheller JA, Hidden J, Carruthers AJ
Citation: R v Demiroz [2003] NSWCCA 146
Conviction appeal.
2 x aggravated BE&S; 1 x take and drive vehicle without consent of owner.
Total of 8y with NPP of 5y.
Appellant drove a Tarago van, stolen the previous day, to Lidcombe where he broke into premises & placed stolen goods in the van. The 2nd count involved him cutting the fly screen around a door, opening the latch, then stealing a number of items which he placed in the van. All items were recovered in the stolen van after appellant's arrest.
Identification in issue - whether error in not giving directions & warning on identification evidence -requirements of ss.116 & 165 Evidence Act 1995 considered.
Appeal allowed: new trial ordered.
186

SIMON, Christina Marie - CCA, 23.6.2003 142 A Crim R 166
Sheller JA, Hidden J, Carruthers AJ
Citation: R v Simon [2003] NSWCCA 147
Sentence appeal.
Import commercial quantity ecstasy.
6y with NPP of 3*y.
Applicant arrived in Sydney aboard a flight from Europe. Her incoming passenger card indicated she was in Australia for a 20 day holiday. She entered Australia carrying 6 body packs containing ecstasy tablets (921.4 grams pure).
Aged 37 at time of sentencing - citizen of the USA - successful practising lawyer, however, resigned as partner after her marriage break-up - started up a business which became a successful distributorship of health products - business ultimately failed - claim of financial pressure - motivation to gain $5,000 fee - no priors.
Early guilty plea - whether 10% discount inadequate - Thomson & Houlton (2000) 49 NSWLR 383 referred to - suffering from rosacea which was not identified at time of sentencing - model prisoner - undertaken a number of courses whilst in custody.
Appeal allowed: resentenced to 4*y with NPP of 2*y.
187

MACKAY, Robert Bruce - CCA, 25.3.2003
Studdert J, Smart AJ
Citation: R v Mackay [2003] NSWCCA 87
Sentence appeal.
Maliciously inflict GBH - 3y with NPP of 10m;
AOABH - 18m with NPP of 10m (concurrent).
Applicant was about to leave his de facto wife. She tried to make him stay, whereupon he lost his temper & grabbed her arm & twisted it, breaking her wrist & dislocating her elbow. He then dragged her down the stairs & threatened her with a bread knife. The victim sustained superficial cuts to her body & hands in an attempt to disarm the applicant. She eventually escaped to a neighbour's house. The victim suffered permanent disabilities from the injuries sustained which affected her ability to type, work & study.
Specific findings of fact - whether error in fact finding exercise - whether error in concluding applicant had to demonstrate exceptional circumstances - whether sentences excessive.
Appeal allowed only on count of maliciously inflict GBH: resentenced on that count to 2y 3m with NPP of 10m.
188

DCU - CCA, 27.6.2003
Meagher JA, Dowd & Barr JJ
Citation: R v DCU [2003] NSWCCA 173
Conviction appeal; &
Application for leave to appeal against sentence.
1 x aggravated indecent assault; 2 x sexual intercourse with child under 16 being under authority.
Total of 6y with NPP of 3*y.
Appellant is the complainant's maternal uncle. The complainant was aged 12y 8m at the time of the offences. She made complaint some 5 years later.
Warnings - complaint evidence - delay - incompetence of counsel - inadequate directions - whether verdicts unreasonable & insupportable.
Conviction appeal dismissed.
Application for leave to appeal against sentence refused.
189

O'DRISCOLL, William Benedict - CCA, 26.6.2003 141 A Crim R 368; 57 NSWLR 416
Spigelman CJ, Hulme J, Carruthers AJ
Citation: R v O'Driscoll [2003] NSWCCA 166
Conviction appeal.
2 x defraud Commonwealth; 16 x 'structuring' transactions (s.31(1) Financial Transaction Reports Act 1988 (Cth)).
Appellant in fact stood trial on 2 charges of defrauding the Commonwealth & 20 structuring charges.
Over a number of years, appellant participated in a scheme to defraud by paying the wages of workers in the construction industry in cash. The structuring charges for which he was convicted were the result of his cashing multiple cheques for amounts less than $10,000 at the same time.
Structuring of charges - whether error in failing to find there was no case to answer - unfair cross-examination by Crown - Crown split its case - error in allowing Crown to call a case in reply.
Appeal allowed on counts 7-22: convictions quashed & verdict of acquittal entered on those counts.
Appeal otherwise dismissed.
190

MATSUMURA, Eiji - CCA, 23.6.2003
Ipp JA, Buddin & Shaw JJ
Citation: R v Matsumura [2003] NSWCCA 170
Crown appeal.
Transferring Australian/foreign currency into Australia (s.15(1)(a)(ii) Financial Transaction Reports Act 1988 (Cth)).
Trial judge exercised discretion to not enter a conviction.
Respondent pleaded guilty under s.51A Justices Act 1902.
Respondent arrived in Australia by air. He inadvertently ticked the wrong box on the incoming passenger card, thereby indicating he did not have currency with him in excess of $AUD10,000. In fact, he had a small amount of Australian currency & a vast amount of foreign currency in his possession. The total value in Australian dollars was $520,195.90.
Aged 28 - well-educated - has a law degree from a Japanese university - hopes of studying in USA - character evidence - successful international 'high roller' gambler.
Whether error in trial judge's discretion to not enter a conviction.
Appeal dismissed.
191

LAM, Michael Hok Chung - CCA, 2.7.2003 140 A Crim R 435
Sheller JA, Hidden J, Carruthers AJ
Citation: R v Lam [2003] NSWCCA 162
Sentence appeal.
1 x possess commercial quantity heroin; 1 x possess trafficable quantity heroin.
Total of 13y 2m with NPP of 9y 10m.
Applicant's arrest followed police surveillance of drug transactions involving a series of clandestine arrangements & several telephone calls using code words. Applicant's father was the principal in the enterprise (see R v Lam [2002] NSWCCA 190) & was responsible for the organised movement of drugs around Sydney. The father involved his son & others in the criminal transactions.
Guilty plea - subjective case - failure to take into account - parity.
Appeal allowed: resentenced to total of 9y with NPP of 5y 2m.
192

VOSS, Paul Anthony - CCA, 7.7.2003
Grove, Whealy & Shaw JJ
Citation: R v Voss [2003] NSWCCA 182
Sentence appeal.
BE&S in circumstances of special aggravation (maliciously inflicting GBH).
10y with NPP of 6*y (to be served in juvenile detention centre until age 21).
The offence occurred at night. Armed with a knife, applicant entered the bedroom of a dwelling house via a balcony. Whilst disconnecting a stereo system, a 12 year old boy woke up & called out for his mother. Applicant picked up a cricket bat belonging to the boy & struck him twice, then fled the scene with the stereo. The victim's skull was fractured & he suffers significant & permanent impairment as a result of his injuries. He has a markedly reduced scale of intellectual, verbal & performance abilities.
Aged 17* at time of offence - guilty plea - under influence of alcohol & drugs at the time - had resumed education whilst in custody - record for minor offences - not previously imprisoned.
Young offender - matters of principle - whether error in application or assessment.
Appeal dismissed.
193

CLARKE, Anthony Paul - CCA, 1.7.2003
Grove & Shaw JJ
Citation: R v Clarke [2003] NSWCCA 184
Sentence appeal.
2 x BE&S; + Form 1 offences (2 x BE&S, 4 x make false statement, 3 x use false instrument).
Total of 3y with NPP of 2y.
Applicant broke into factory premises & stole various items, including a set of golf clubs, a disc sander & a battery power pack. It was later discovered that some cheque forms had been taken from a cheque book. Applicant used the cheque forms & deposited them into his mother's bank account. They were dishonoured by the bank. On occasions, applicant's mother took goods to pawnshops on behalf of her son. She told police that on one particular occasion, she had taken golf clubs. Applicant also broke into private premises & stole a number of items, including a computer, TV, video cassette recorder, camera, disks & jewellery. His mother sold the computer to a pawnbroker on his behalf.
Guilty pleas - non-verbal cognitive functioning in lowest 12% of population - background of social disadvantage characterised by alcohol - subjected to sexual assault as a child - significant prior record - previous imprisonment.
Fresh evidence - psychiatric & psychological reports obtained after sentence indicating intellectual disability on level lower than 98% of population - whether lesser sentence warranted in law.
Leave to appeal refused.
194

OADES, Rick Kevin - CCA, 30.5.2003
James J, Smart AJ
Citation: R v Oades [2003] NSWCCA 155
Sentence appeal.
Count 1: demand property with intent to steal - 2y FT (from 12.3.02);
Count 2: B&E with intent to commit serious indictable offence in circumstances of aggravation - 3y FT (from 12.3.02);
Count 3: BE&S in circumstances of aggravation - 5y with NPP of 3y (from 12.3.03).
A number of offences on a Form 1 were also taken into account.
Total of 6y with NPP of 4y.
Seeing the male victim in the back yard, appellant opened a rear screen door & entered the man's house. He then entered the spare room & when approached by the male victim's wife, he held a 15 cm knife to hear head. The woman called out & the male victim entered the house. The appellant demanded his wallet. The woman escaped from the house & the appellant fled soon thereafter. On the following day, appellant entered the home of another victim by tearing a hole in a security door. He stole a wallet (value $70) as well as cash ($160) & personal papers. He knew someone was in the house at the time of the offence.
Aged 18 at time of 1st offence - substance abuse from early age - cared for by DOCS from 2* years - adopted by foster parents - claimed he was tricked into agreeing to be adopted - living on streets since age 13 - remorse - contrition - 1st time in adult prison - assaulted in prison - numerous offences committed as a juvenile.
Young offender - sentences not reflecting adequate discount for disclosure of offences - powerful subjective features - application of principle of totality.
Sentence appeal allowed only on count 3: resentenced on that count to 4y with NPP of 2y (from 12.3.03). New total sentence of 5y with NPP of 3y.
195

HEUSTON, Neil - CCA, 30.6.2003 140 A Crim R 422
Hodgson JA, Simpson & Greg James JJ
Citation: R v Heuston [2003] NSWCCA 172
Conviction appeal.
1 x robbery armed with offensive weapon (pistol & rifle).
Total of 13y with NPP of 10y.
Appellant & 3 co-offenders carried out a home invasion, during which the victims were robbed of several thousand dollars, quantities of cannabis & 4 rifles. The male victim was physically assaulted & threatened. His wife was sexually assaulted by having her legs forced apart & a gloved finger inserted into her vagina. At the time of the robbery, appellant was armed with a .32 calibre pistol & a .303 calibre rifle.
A subsequent investigation by the Police Integrity Commission exposed the principal investigating police officers in this case as being perjurers who regularly verballed suspects & planted guns on them.
Fresh evidence - failure to direct on delay - motive victims might have had for falsely identifying accused - whether miscarriage of justice.
Appeal allowed: new trial ordered. Sentence imposed for later, unrelated offences backdated to take account of result of this conviction appeal.
196

SCOTT, Cheryl Ann - NSW SC, Whealy J, 10.7.2003
Citation: R v Scott [2003] NSWSC 627
Remarks on Sentence.
Manslaughter.
Offender was charged with murder. She pleaded not guilty to murder but guilty to manslaughter. The plea was proffered & the Crown accepted it on the basis of excessive self-defence.
Offender's evidence was that her de facto husband had tried to kill her. She said she picked up an iron & hit him on the head. She claimed to have struck him 3 times. Three weeks later, she called a man in to dig a hole in the back yard. When asked what size she wanted, she replied 'Grave size'. The man noticed a putrid smell about the premises. Later that day, a neighbour saw the offender dragging a bag, which was in fact a double sheet, containing something large from the house to the rear of the house, towards the hole. The offender collapsed a short distance from the hole & the neighbour's husband went to her assistance & slid the bag into the hole. The neighbours were told the bag contained 2 dead peacocks. The offender was taken to hospital by ambulance & the neighbour's husband filled in the hole. The neighbour said she noticed a putrid smell emanating from the bag. Police executed a search warrant upon offender's home a little more than 2 months later. The hole in the back yard was excavated & the decomposed body of the deceased was recovered, wrapped in a blue & yellow doona. Beneath the doona, a yellow blanket was wrapped about the body. The deceased's head was covered by a black plastic garbage bag. Under this bag was a towel wrapped about the head & beneath the towel a vinyl bag was wrapped about the head. Beneath this, the head was covered with a plastic shopping bag.
Aged 42 at time of sentence - good family background, father a professor of chemistry - was doing well at school but dropped out at age 14 - left home at 15 - alcoholic - developed alcohol & drug dependence during teens - ceased cannabis & heroin use at age 25 - history of drink driving offences - depression - displayed many features of a battered woman - need for ongoing psychiatric assessment & treatment - need for counselling for alcohol dependency - need for supervision.
Sentenced to 5y with NPP of 2*y.
197

RS - CCA, 1.7.2003 142 A Crim R 322
Grove & Shaw JJ
R v Slater [2003] NSWCCA 178
Sentence appeal.
1 x sexual intercourse with person under 16 (12); 1 x sexual intercourse without consent.
Total of 5y with NPP of 3y.
Abusive behaviour towards complainant (applicant's daughter) began when she was aged 12. This pattern of behaviour continued until she was aged 21.
Guilty plea - apology to complainant - loss of family contact as a result of offending behaviour - absence of offences since 1991 - attendance at counselling - remorse.
Range of sentences available at time of commission of offences - delay - whether lesser sentences warranted.
Appeal dismissed.
198

NAUDI, Vincent - CCA, 30.6.2003
Hodgson JA, Simpson & Greg James JJ
Citation: R v Naudi [2003] NSWCCA 160
Application pursuant to s.155 Crimes (Administration of Sentences) Act 1999.
10 x sexual assault; 1 x AOABH; 1 x assault.
Total of 8y with NPP of 6y.
Applicant & his wife took the complainant into their home upon the death of her mother when the complainant was aged 11. The 1st offence occurred when the complainant was 11 or 12. For some years there was no sexual activity. The sexual activity resumed when the complainant was 15. On one occasion when the complainant resisted, applicant punched her in the stomach. Other instances of assault included the applicant pushing the complainant into a metal trolley & throwing a coat hanger at her, which penetrated her leg, causing injury.
Applicant's MT expired on 2.2.2003. He applied for parole, however, the Parole Board refused this application, its reasons being that the applicant was unable to adapt to normal community life, was at risk of re-offending & there was a need to address offending behaviour. A review hearing subsequently took place at which the Parole Board had a number of reports before it. Applicant's parole was again refused.
Whether information given to the Parole Board was false, misleading or irrelevant.
s.155 Crimes (Administration of Sentences) Act 1999 reproducing effect of s.23 Sentencing Act 1989 - not clear what the powers conferred by the section are intended to achieve (Simpson J at para.50 et seq and Greg James J at 57).
Application dismissed.
199

DE GROOT VAN EMBDEN, Eric Jan - CCA, 16.6.2003 140 A Crim R 403
Spigelman CJ, Hulme J, Carruthers AJ
Citation: R v De Groot Van Embden [2003] NSWCCA 156
Sentence appeal.
Attempt obtain possession of commercial quantity of prohibited imports (ecstasy).
12y with NPP of 8y.
Following the applicant's arrival in Australia, the Australian Federal Police were contacted by the Dutch Police Serious and Organised Crime Unit of Rotterdam, who advised the AFP that they were investigating a Dutch based syndicate believed to be involved in international drug trafficking. They identified the applicant as a member of that syndicate, whereupon the AFP placed him under surveillance. Applicant went back to Holland some 20 days later, then returned to Australia 7 weeks after that with his wife & daughter. A week later, they travelled to the Gold Coast, where applicant made a number of phone calls to members of the Dutch syndicate in Europe. He then recruited a co-offender & travelled to Melbourne to arrange for the collection of a consignment of drugs & its transport to Sydney by courier. Upon the consignment arriving in Sydney, a controlled delivery was organised by police, which ultimately resulted in the arrest of the applicant.
Aged 38 at time of offence - Australian principal of international organisation - 50% discount allowed for assistance to authorities - 15% discount allowed for guilty plea - protective custody.
Whether head sentence manifestly excessive - whether NPP manifestly excessive.
Appeal allowed insofar as NPP reduced to 7y.
200


JASPER, Matthew John - CCA, 8.7.2003 139 A Crim R 329
Mason P, Dowd & Adams JJ
Citation: R v Jasper [2003] NSWCCA 186
Crown appeal against orders.
Respondent, who was a police officer, entered into corrupt arrangements with a heroin dealer (Vincent Caccamo). He pleaded guilty to 4 of the 6 counts contained in the indictment but sought a permanent stay of proceedings on 2 charges alleging that he 'did supply a prohibited drug, namely heroin'on the basis that such charges were doomed to fail. Dunford J upheld this proposition on the basis that there was no evidence of the essential element of 'supply'.
The issue on appeal was whether the facts as agreed were arguably capable of supporting the charges of 'supply' within the terms of s.3 Drug Misuse and Trafficking Act 1985. More specifically, the issue was whether the respondent 'suffered'or 'permitted' the supply of heroin by the heroin dealer.
Appeal allowed: orders set aside.

201

MERES, Mark Arthur - CCA, 14.7.2003
DINEEN, Kathleen Frances
Grove J, Ipp JA, Shaw J
Citation: R v Meres; R v Dineen [2003] NSWCCA 193
Sentence appeals.
Meres: 1 x supply methylamphetamine on an ongoing basis; + Form 1 offences (2 x knowingly take part in supply amphetamine; 1 x possess methylamphetamine; 1 x goods in custody). Guilty plea - total of 4y 9m with NPP of 3y.
Dineen: 1 x supply methylamphetamine on an ongoing basis; in the alternative, supply methylamphetamine; + 5 further offences of supply methylamphetamine; + Form 1 offences (8 x supply methylamphetamine; 1 x supply cannabis). Not guilty plea to ongoing supply offence but guilty to alternative count of supply & the other 5 counts - sentenced to total of 6*y with a NPP of 4y.
Following numerous complaints from members of the public, a police operation was mounted to investigate the supply of prohibited drugs from residential premises which were located 2 doors from a primary & pre-school. The operation included the use of electronic surveillance, including telephone intercepts & listening devices. Undercover police were authorized to engage in "controlled operations" seeking to purchase & to purchase illicit drugs.
Meres: parity - whether justifiable sense of grievance. Appeal dismissed.
Dineen: whether sentences manifestly excessive. Appeal allowed on count 7 - applicant resentenced on that count, giving a total of 5y with a NPP of 3y.
202

THOMAS, Darren Mark - CCA, 20.6.2003
Hodgson JA, Simpson & Greg James JJ
Citation: R v Thomas [2003] NSWCCA 165
Crown appeal.
Steal motor vehicle; receive property stolen outside the State; + Form 1 offences (use unregistered vehicle, use uninsured vehicle, drive vehicle displaying misleading number plates, drive vehicle never having been licensed).
Total of 16m with NPP of 4m.
The steal MV offence occurred when a motorist gave the respondent a lift & the respondent subsequently stole the car. The receive charge was detected when police observed a Mack truck outside the respondent's premises. During the execution of a search warrant on those premises, police found a large amount of material from the truck. Respondent made full admissions.
At the time of sentencing, respondent was already serving a sentence of 12m with a NPP of 9m.
Aged 27 at time of sentencing - early guilty plea - Aboriginal - extensive criminal record - protective custody.
Cumulation of sentence aggravating circumstance of offence committed on bail - discretion to dismiss appeal notwithstanding sentencing error.
Appeal dismissed.
203

LEWIS, Daryl Bruce - CCA, 4.7.2003
Santow JA, Sully & Buddin JJ
Citation: R v Lewis [2003] NSWCCA 180
Conviction appeal.
9 x sex offences (5 x rape, 3 x indecent assault upon female under 16 (11-12 & 12-13); 1 x assault).
Total of 6y with NPP of 4*y.
The sentences were imposed following a trial some 24 years after the alleged offences took place. The complainants were 2 sisters & the events were said to have occurred between January 1975 & 31.3.1977. The appellant was aged between 14 & 16 at the time. He was aged 40 at the time of trial.
Offences as a juvenile against a juvenile - committed a substantial time ago - relationship evidence - insufficient directions - need for full & adequate Longman direction with Court's imprimatur - miscarriage of justice - proceedings fundamentally flawed - prejudice to defendant - Rule 4 Criminal Appeal Rules - admitting evidence of indecent & other assaults as relationship evidence - balance of unfair prejudice against probative value - failure of warnings - failure to give Murray direction - allowing prejudicial cross-examination on relationship evidence - failure of directions - statutory bars to proceedings (s.78 Crimes Act).
Appeal allowed: Counts 2-9 - new trial ordered; Count 1 - verdict of acquittal entered.
204

SCHODDE, Allan Wayne - CCA, 25.6.2003 142 A Crim R 307
Giles JA, Bell J, Carruthers AJ
Citation: R v Schodde [2003] NSWCCA 164
Sentence appeal (extension of time).
Count 1: supply methylamphetamine on an ongoing basis - 3y with NPP of 18m PD;
Counts 2,3&4: supply methylamphetamine - 6m PD on each count (concurrent with sentence for count 1).
Applicant failed to attend the detention centre on 5 occasions when he was not on leave of absence or the subject of a relevant exemption. The Parole Board revoked his PD order & he was subsequently taken into custody & commenced to serve his sentence in full-time custody. The balance of the sentence to be served, after allowance was made for the detention periods that he had served less the amount by which his sentence had been extended by operation of s.89 of the Administration of Sentences Act, was 2 years 11 months and 26 days with a NPP of 1y 5m 26d.
A police covert operation targeting the supply of illicit drugs by appellant revealed that during one day he sold 0.08 grams of methylamphetamine for $100, 0.03 grams for $50 & 0.05 grams for $150 to an undercover police officer. Within 3 days, on 4 occasions, he sold 0.46 grams, 0.29 grams, 0.46 grams & 0.19 grams of methylamphetamine for $150 on each occasion to another undercover police officer.
Aged 20 at time of offences - early guilty plea - parents separated when appellant aged 3 - attention deficit disorder diagnosed at 17 - drug user/dealer - desirability of longer than usual parole period - relatively minor criminal record including Children's Court convictions - no previous imprisonment.
Special circumstances - periodic detention - need to fix term of sentence before considering alternatives to full-time custody.
Appeal allowed: sentences confirmed, sentences to be served in full-time custody, backdated to take account of time spent in custody following revocation of PD order. Stay of execution of Order 3 for period of 14 days to allow applicant opportunity to make any application to the Court as he may be advised to make.
205

KARIPIDIS, Ilias - CCA, 25.6.2003
Ipp JA, Buddin & Shaw JJ
Citation: R v Karipidis [2003] NSWCCA 168
Sentence appeal.
Knowingly concerned in the importation of a trafficable quantity of cocaine.
8y with NPP of 4y 10m.
Telephone intercepts by police revealed appellant & 3 co-offenders were involved in a joint enterprise to import cocaine into Australia from Uruguay. Following a police surveillance operation, appellant & 2 of the co-offenders were arrested at a hotel. A package containing 240.1 grams of impure cocaine with a purity of 72.9% (175 grams pure) was found near a poker machine, alongside which appellant was seated.
Aged 21 at time of offence - violent alcoholic father - parents separated when applicant aged 12 - became involved with delinquent group - heroin addiction - on conditional liberty at time of offence - late guilty plea entered after jury empanelled - very significant role in offence - priors (violent offences, driving offences) - previous imprisonment.
Guilty plea - fresh evidence - further material relied on - delay - pre-sentence custody - no credit for time spent in custody in determination of head sentence.
Appeal allowed in part: resentenced to 7y 10m with NPP of 4y 10m.
206

HENDRADINATA, Paul - CCA, 27.6.2003 142 A Crim R 180
ROSSI, Bruce Sunandar
ANTAREDJO, Ronny
Santow JA, Sully & Buddin JJ
Citation: R v Hendradinata; R v Rossi; R v Antaredjo [2003] NSWCCA 161
Crown appeals.
Hendradinata: detain for advantage (kidnapping) - 4y with NPP of 1*y.
Aged 20 at time of offence - born in Indonesia - came to Australia at 15 - degree in business management - stable but immature personality - unlikely to re-offend - good prospects of rehabilitation - no priors.
Rossi: detain for advantage (kidnapping); maliciously inflict GBH with intent to do GBH -total of 4*y with NPP of 2y.
Aged 18 at time of offences - born in Indonesia - completed high school in Australia - failed to complete TAFE courses - failure to accept responsibility for offending behaviour - maintains innocence - good prospects of rehabilitation - no priors.
Antaredjo: detain for advantage (kidnapping); maliciously inflict GBH with intent to do GBH - sentenced to total of 4*y with NPP of 2y.
Aged 19 at time of offences - born in Indonesia - parents divorced before respondent came to Australia at age 12 - left school at 18 having failed to obtain HSC - good prospects of rehabilitation - no priors.
After luring the victim to a unit, respondents & their co-offenders detained him there & at another location for 4 days. They took money from his bank account, using his debit card. He was severely beaten, kicked, punched, hit with a baseball bat & threatened with various weapons, including a gun & a sword. The victim suffered extensive bruising, multiple abrasions & a fractured leg.
Appeals allowed: Hendradinata - sentence increased to 5y with NPP of 3y.
Rossi - sentence increased to total of 6y with NPP of 4y.
Antaredjo - sentence increased to total of 6y with NPP of 4y.
207

KIM, Sidney Son - CCA, 24.6.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Kim [2003] NSWCCA 167
Sentence appeal.
B&E dwelling house & commit serious indictable offence (AOABH); armed robbery; + Form 1 offences (2 x armed rob).
Total of 12y with NPP of 8y.
Appellant & his co-offender broke into a house, the appellant armed with a rifle, his co-offender with a knife. They then assaulted one of the occupants, inflicting injury. They also stole a mobile phone, jewellery & a DVD player.
Aged 19 at time of offences - unremarkable upbringing - subject to CSO for prior offence at the time of offences - priors (demand property with menaces) - no previous imprisonment.
Whether sentences excessive.
Appeal dismissed.
208

EASTMAN - HC, 28.5.2003 214 CLR 318
Citation: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28
Applicant was convicted of murder. During his trial, he exhibited erratic & unusual behaviour & was unrepresented from time to time. His fitness to plead was not raised at trial. After conviction, Supreme Court Judge instigated an inquiry into his guilt pursuant to s.475 of the Crimes Act 1900 (ACT) because of doubt about his fitness to plead at trial.
Fitness to plead - doubt or question as to guilt - criminal process - statutory construction - purposive approach - meaning of 'guilt'- meaning of 'doubt'or 'question'- whether doubt or question as to fitness to plead at time of trial is within scope of s.475 Crimes Act 1900 (ACT).
209

PETRIE, Thomas Moncrief - CCA, 23.7.2003 141 A Crim R 396
Tobias JA, James & Howie JJ
Citation: R v Petrie [2003] NSWCCA 208
Sentence appeal.
B&E and commit serious indictable offence in circumstances of aggravation (AOABH, armed with a jemmy); + Form 1 matters (2 x assault).
5y with NPP of 3y.
The offences were committed when applicant forced his way into the home of an elderly man. He attacked the man & his female carer with a jemmy. He attacked another man who came into the room. The man was finally able to remove the jemmy from the applicant. Applicant was placed in the toilet until police arrived.
Aged 51 - guilty plea - disturbed & dysfunctional family background - problem with alcohol - attempts at rehabilitation - need for further counselling for alcohol use & anger management - long history of criminal offences - previous imprisonment.
Error in assessment of objective criminality - error in having regard to strength of Crown case in determining appropriate level of discount for utilitarian value of guilty plea 'sentence manifestly excessive.
Appeal allowed: resentenced to 4*y with NPP of 2y.
210

MURRAY, Guy Ronald - CCA, 23.7.2003
Tobias JA, James & Howie JJ
Citation: R v Murray [2003] NSWCCA 209
Sentence appeal.
Count 1: B&E dwelling house & commit serious indictable offence in circumstances of aggravation.
Count 2: maliciously inflict GBH;
Count 3 (in the alternative): malicious wounding.
Applicant pleaded guilty to counts 1&3 (accepted in full satisfaction of the indictment).
Sentence: 3rd count - 2y FT; 1st count + Form 1 matters - 4*y with NPP of 2y (cumulative upon the FT).
The 1st offence arose when applicant broke & entered a dwelling house & stole a TV set, knowing there were persons present. The 2nd offence was the infliction of a wound to the male occupant's face.
Aged 20 at time of sentence - intoxicated at time of offences - attempts at rehabilitation since being in custody - spent formative years in & out of foster care - exposed to domestic violence & alcohol abuse from early age - barely literate - blind in left eye & deaf in right ear as a result of a fight - suffers from epilepsy - alcohol use since age 15 - remorse - need for alcohol & anger management - criminal record showing appearances in Children's Court from 1997 - first time in adult prison.
Judgment & punishment - error in approach to issues of totality & application of principles in Pearce 194 CLR 610 - failure to adequately reflect relevant features of background - Fernando (1992) 76 A Crim R 58 - whether pronouncement of sentence manifested error - whether excessive - special circumstances.
Appeal allowed only on count 1: sentence reduced to 3y with a NPP of 6m, conditional upon applicant placing himself under the supervision of the adult probation service.
211

O'MEARA, Kenneth Ian - CCA, 21.7.2003
Tobias JA, James & Howie JJ
Citation: R v O'Meara [2003] NSWCCA 206
Notice of Motion seeking leave to appeal pursuant to s.5F(3) Criminal Appeal Act 1912 against an order refusing a permanent stay of proceedings.
Cultivate commercial quantity cannabis; possess firearm (.22 Jennings self-loading pistol) without being authorised to do so by licence or permit; possess firearm (12-gauge Mossberg repeating shotgun) without being authorised to do so by licence or permit.
Applicant had already been convicted for the above offences & was awaiting sentence.
Whether anything left of substance to stay - whether refusal of leave to appeal would prevent same grounds from being raised in a subsequent conviction appeal.
Leave to appeal refused; Notice of Motion dismissed.
212

TAKAU, Gethsemane Mani - CCA, 20.6.2003
Hodgson JA, Simpson & Greg James JJ
Citation: R v Takau [2003] NSWCCA 181
Sentence appeal.
Maliciously inflict GBH.
4y with NPP of 2y 9m.
An altercation developed between the victim & a group of young men, including the applicant, during which the victim was beaten & kicked. While the victim was on the ground, the applicant stomped on his face & head several times. The victim was badly injured & spent a month in a coma. He suffered permanent brain & facial injuries.
Aged 22 at time of offence - guilty plea - born in Samoa - alcohol abuse - unemployed - intoxicated at time of assault - criminal history - no previous full-time imprisonment.
Parity - subjective circumstances - remarks on sentence - juvenile co-offender.
Appeal allowed: NPP reduced to 2y, otherwise sentence confirmed.
213

PARK, Sung Eun - CCA, 23.7.2003
Ipp JA, Buddin & Shaw JJ
Citation: R v Park [2003] NSWCCA 203
Conviction appeal.
Murder.
26y with NPP of 19*y.
Appellant is Korean, his deceased wife was Chinese. After 3 years of marriage, appellant left his wife & 2 young children & moved in with a young Korean woman. Almost a year later, his wife discovered he was living with the young woman & confronted her. A physical fight developed between them & police were called. Appellant was very angry over this as the young woman's visa had run out & she was technically an illegal immigrant. Some 5 days later, appellant received a letter from the Government Child Support Agency advising him his wife had applied for a child support assessment, angering him even more. Some days later, neighbours of the wife noticed there was no sound coming from her unit & many months later the remains of the 3 bodies were found in bushland. Plastic bags had been knotted over each of their heads. Forensic pathologist opined death was due to suffocation.
Circumstantial Crown case - motive.
Whether reasonable hypothesis inconsistent with guilt - directions on propensity - directions on silence - fresh evidence.
Appeal dismissed.
214

LANG, Paul - CCA, 21.3.2003
Studdert & Shaw JJ
Citation: R v Lang [2003] NSWCCA 68
Sentence appeal.
4 x robbery in company; 1 x robbery.
Total of 4*y with NPP of 2y 3m.
The applicant committed 4 robberies in company with co-offenders aged 15 & 16. Applicant had committed a robbery the previous week.
Aged 18 at time of offences - on bail for the robbery offence at the time of the rob in company offences - prior offence of resist police - no previous imprisonment.
Parity - co-offenders sentenced in Children's Court.
Appeal dismissed.
215

KHALOUF, Ali - CCA, 8.7.2003
Meagher JA, Dowd & Barr JJ
Citation: R v Khalouf [2003] NSWCCA 179
Conviction appeal.
Murder.
20y with NPP of 13*y.
Appellant stabbed the deceased repeatedly, mainly in the upper chest, the throat & neck: see R v Khalouf [2002] NSWSC 19.
Jury unable to agree - particular question - trial judge deferred answering the question - provocation - burden & standard of proof - directions not helpful - whether miscarriage.
Appeal allowed: new trial ordered.
216

LE, Vinh Khang - CCA, 15.7.2003
Sheller JA, James & O'Keefe JJ
Citation: R v Le [2003] NSWCCA 197
Sentence appeal.
1 x supply large commercial quantity heroin; + Form 1 matter (goods in custody).
12y with NPP of 9y.
The above offences were uncovered during a police operation. Police observed the applicant enter a house with a black satchel, then emerge some time later, walk to a car & hand the satchel to one of the 2 occupants. He then walked towards his own vehicle. The applicant & the 2 occupants of the other car were arrested. The black satchel was found to contain $160,000. When applicant was searched, $4,000 in cash was found on him. Police then raided the premises where they seized 28 grams of heroin, a knife, scales & blister packs of Panadine Forte. The sink in which the heroin was found had had a tap running. Samples of water in drains were quickly secured & were found to contain traces of heroin. The actual total weight of the heroin was left for the jury to determine on the evidence disclosed in telephone calls & a police officer's opinion in respect of the contents of those calls in which a crude form of code was used. The police officer estimated that reference to units or bottles of wine during the telephone calls related to heroin & that one unit or bottle represented 350 grams. The total amount of heroin was estimated to represent 1.4 kgs. It was upon this evidence that the Crown case as to a large commercial quantity rested.
Difficult childhood with civil war & poverty a feature of formative years - entered Australia in 1984 as a refugee - applicant a 'sales & delivery'man - drug addiction at time of offence - prior offence of aid & abet supply of large commercial quantity - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
217

HARRIS, Luke Patrick - CCA, 30.5.2003
James J, Smart AJ
Citation: R v Harris [2003] NSWCCA 177
Sentence appeal.
B&E and commit serious indictable offence (malicious damage); maliciously inflict GBH; AOABH; + Form 1 offence.
Total sentence of 4*y with NPP of 2*y.
Applicant & victim were in a relationship. The victim was at the applicant's home when an argument developed & the victim smashed the applicant's fish tank. Applicant hurled the victim into the broken fish tank, causing a severe laceration to her hand which required surgery. He then kicked her several times & threw her across the room. The assault continued for some time before the victim managed to escape from the premises & go to the police station. Applicant then went to the victim's house & forced entry by kicking in the front door. He struggled with the victim's flatmate then went into the bedroom & destroyed some of her property.
Aged 28 at time of offences - alcoholic - some remorse - reconciled with victim - good work history - prospects of rehabilitation - need for supervision & counselling - priors (firearm offences, possess prohibited drug, supply prohibited drug, assault, resist arrest, contravene AVO's) - previous imprisonment.
Inconsistencies in remarks on sentence - whether sentences excessive.
Appeal allowed: resentenced, giving a total of 4y with NPP of 2y.
218

McGRATH, David - CCA, 1.7.2003
Grove & Shaw JJ
Citation: R v McGrath [2003] NSWCCA 183
Sentence appeal.
1 x aggravated B&E and commit serious indictable offence (aggravated sexual assault whilst armed with offensive weapon); 1 x aggravated robbery; + 15 charges on a Form 1 (none of which approached seriousness of principal charges).
Total of 12y with NPP of 9y.
Armed with a large knife, applicant broke into the victim's home at night. He demanded money from the 87 year old victim, punched him, removed his pyjamas & performed oral sex on him. He then punched the victim several more times. He stole a collection of 50 cent coins & the victim's car.
Aged 21 at time of offence - extremely low level of intellectual functioning - strict protection - multiple priors (offensive language, assault, driving offences, breach of recognisance, drug offences, BE&S, malicious destruction of property, public mischief, enter enclosed lands, possess car breaking implements, use violence/intimidation to influence person, contravene AVO, goods in custody) - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
219

M - CCA, 14.4.2003
Hulme J, Greg James & Shaw JJ
Citation: R v M [2003] NSWCCA 98
Sentence appeal.
4 x corruptly giving an agent a benefit for doing something in relation to the business of the agent's principal (s.249B(2) Crimes Act); + Form 1 offences.
Total of 2y 3m with NPP of 18m
The offences involved applicant giving money to an agent, whose principal was the NSW Road and Transport Authority, in return for entering false particulars concerning motor vehicles into the authority's records (3 counts). The remaining count concerned the supply of 6 sets of NSW 'Police vehicle identification numbers'for the purpose of entering false particulars into the Authority's records. The Form 1 offences arose as a consequence of applicant paying a corrupt commission to the agent to fraudulently establish NSW vehicle registration for 9 vehicles.
50% discount given for assistance to authorities - 25% discount given for guilty plea.
Parity
Appeal dismissed.
220

KANAAN, Michael - CCA, 4.7.2003
Mason P, Dowd & Adams JJ
Citation: R v Kanaan [2003] NSWCCA 190
Application for leave to appeal against a ruling refusing permission for applicant to have a McKenzie friend at his trial. The person applicant wished to use as a McKenzie friend was on remand at the time & had a number of convictions for criminal offences. Barr J refused the application for a McKenzie friend, having ascertained that the applicant had a grant of legal aid but that he had dispensed with the services of his solicitor & counsel, choosing to represent himself with the assistance of a McKenzie friend.
Application for leave to appeal against ruling refused.
221

ELMIR, Fawaz Mohammed - CCA, 2.7.2003
SALAMI, Jamal
Mason P, Dowd & Adams JJ
Citation: R v Elmir; R v Salami [2003] NSWCCA 192
Crown appeal.
1 x B&E dwelling house with intent to commit serious indictable offence (AOABH); 1 x AOABH.
Elmir: total of 3y with NPP of 18m PD.
Salami: total of 2*y with NPP of 18m PD.
Home invasion type offences which were 'payback' for an attack upon Elmir's young brother, resulting in the brother suffering serious injuries. Elmir believed the police were not proceeding fast enough in their investigation of that attack, even though he, Elmir, had given them information.
Guilty pleas at earliest opportunity - contrition - each received 20% discount - general & personal deterrence - rehabilitation.
Whether sentences manifestly inadequate.
Appeal allowed, respondents resentenced to custodial sentences: Elmir: total of 2y with NPP of 1y;
Salami: total of 1y 9m with NPP of 9m.
222

ROZYNSKI, Glen Alan James - CCA, 29.7.2003
Hodgson JA, Simpson & Greg James JJ
Citation: Rozynski v Parole Board of NSW [2003] NSWCCA 214
Application pursuant to s.155 Crimes (Administration of Sentences) Act 1999.
Firearm offences; 1 x aggravated sexual assault.
7y with NPP of 4*y.
The Board refused parole upon the grounds that the applicant was unable to adapt to normal lawful community life; the risk of him re-offending; the need to address his offending behaviour by either doing the CUBIT, Anger Management or Drug & Alcohol programmes; and the fact that he had no post-release accommodation.
Whether information given to the Parole Board was false, misleading or irrelevant.
Appeal dismissed.
223

CAMPBELL, Robert Stuart - CCA, 30.5.2003
James J, Smart AJ
Citation: R v Campbell [2003] NSWCCA 176
Sentence appeal.
3 x carjacking-type offences (1st offence under s.154(1)(c) & s.344A Crimes Act; 2nd & 3rd offences under s.154C(2)).
Total of 4y with NPP of 18m.
All offences were committed on the same day. During and after the 'carjackings', applicant exhibited erratic, violent behaviour. Police had difficulty in arresting him & used several cans of capsicum spray in a fruitless effort to subdue him. They summoned assistance, including 2 police dogs. Applicant grabbed one of the dog's leads & was throttling the dog with the lead. He then bit the 2nd dog on its ear. It took 8 police officers to subdue the applicant & handcuff him. By this stage he was naked, his shorts & T-shirt having come off during the struggle. He was placed in the back of the caged police vehicle & taken to Gosford police station. It was apparent to police that he was affected by drugs. An acute care team at a psychiatric clinic was contacted & came to the police station but declined to enter the applicant's cell because of his highly agitated state. Whilst in the cell, applicant rolled around on the floor, trying to cover himself with a mattress. He bit his arms & legs until they started to bleed. It took 6 hours before he calmed down.
Aged 32 at time of sentencing - guilty pleas - dysfunctional childhood - parents divorced -time spent in orphanage -younger brother committed suicide - started using drugs after having to identify brother's body - married - 4 children, some with serious health problems - applicant suffered brain injuries from MV accident - carpenter by trade - minor criminal history in ACT - drug offences - special circumstances.
Mitigation by intoxication - mental condition at time of offences - whether appropriate weight given - whether sentences excessive.
Appeal dismissed.
224

ART - CCA, 1.7.2003
Grove & Shaw JJ
Citation: R v ART [2003] NSWCCA 189
Sentence appeal.
Aggravated sexual assault of child under 16; + Form 1 offence (aggravated sexual intercourse with child under 16).
2y with NPP of 9m to be served in juvenile detention centre.
Appellant engaged in sexual intercourse with his 5 year old step-sister & her friend. Appellant & the 2 victims were sleeping in the same bedroom at the time of the offences.
Aged 17* at time of offences - early guilty plea - admissions to police - contrition - genuine efforts at rehabilitation & study - social isolation - poor self-image - support of relatives - no prior sexual experience - no priors.
Whether sentence excessive.
Appeal dismissed.
225

COLLISSON, David Leonard - CCA, 29.7.2003 139 A Crim R 389
Tobias JA, James & Howie JJ
Citation: R v Collisson [2003] NSWCCA 212
Conviction appeal.
Murder.
24y with NPP of 18y.
Deceased & his girlfriend bought something to eat & drink, then drove to a vantage point in Greenwich where they got out of the car to eat their food while looking at the city lights. Appellant & a shorter man approached them. Appellant demanded that the deceased give him his wallet. When the deceased told him he did not have a wallet, the appellant shot him twice. Appellant & his companion then absconded. (See also R v Collisson [2002] NSWSC 229.)
The trial judge refused to make an order under s.128(5) of the Evidence Act requiring a witness (appellant's accomplice) to give evidence on the basis that his evidence was 'inherently suspect'& the charge against the accomplice had not yet been dealt with. There was no knowledge by either party as to what the witness might say.
Whether trial judge erred in applying the 'inherently suspect' principle to the witness when considering whether the interests of justice required the witness to give evidence.
Appeal dismissed.
226

LWP - CCA, 9.7.2003
Spigelman CJ, Bell J, Miles AJ
Citation: R v LWP [2003] NSWCCA 215
Sentence appeal.
Count 1: sexual intercourse with person aged 9 years (applicant's niece) - 3y, NPP 2y;
Count 2: act of indecent assault on person aged 9 or 10 years (applicant's daughter) - 2y 3m, NPP 18m;
Count 3: sexual intercourse with person between 12 & 14 years (applicant's other daughter) - 9y, NPP 6y.
The sentencing judge found special circumstances. The NPP on each of the 3 counts was structured to be 66.66% of the head sentence, however, the effect of the partial accumulation of the sentences resulted in a total head sentence of 11*y with a NPP of 8*y.
Aged 62 at time of sentencing - guilty pleas at earliest opportunity - poor health - good character.
Special circumstances - particular hardship in prison - sentencing discretion - intended sentencing result.
Appeal allowed only on count 3: resentenced on that count to 9y with NPP of 5y.
227

MARSHALL, Aaron Charles - NSW SC, Adams J, 23.5.2003
Citation: R v Marshall [2003] NSWSC 448
Remarks on Sentence.
Manslaughter.
Prisoner was acquitted by a jury of murder & convicted of manslaughter.
Baby shaking - momentary act of violence.
Unlawful and dangerous act - intent - culpability - risk of reprisal in gaol - need for protective custody - utilitarian value of guilty plea to manslaughter, although plea not accepted by Crown - remorse - contrition.
Sentenced to 6y with NPP of 3*y.
228

WEIR, Pauline Dorothy - CCA, 31.7.2003
Sheller JA, James & O'Keefe JJ
Citation: R v Weir [2003] NSWCCA 204
Sentence appeal.
4 x fraudulent misrepresentation; 1 x use false instrument; 1 x pass valueless cheque; + multiple offences on Form 1 documents.
Total sentence of 7y with NPP of 4y.
The offences involved the applicant's ongoing deception of persons with whom a relationship of trust had been built.
Criminal history for dishonesty - some offences committed whilst subject to CSO for prior offences of dishonesty - on conditional liberty on bail at time of some offences - gambling addiction - contrition - first time in prison.
On appeal, it was submitted the trial judge had erred in his assessment that the net loss to the victims had been over $1,000,000. It was also submitted that the trial Judge had neglected to address the possibility that one of the victims, who had a caveat over the applicant's home, might upon the sale of the home recover some of the money he had lost.
Appeal dismissed.
229

DHANHOA - HC, 5.8.2003 217 CLR 1; 77 ALJR 433
Citation: Dhanhoa v The Queen [2003] HCA 40
Conviction appeal.
Aggravated robbery in company with wounding; detain for advantage & cause injury.
The victim met 4 men at a hotel & invited them back to his flat. Shortly after arriving there, the victim was subjected to the above offences. He alleged all 4 men were involved. Police found appellant's fingerprints at the flat. They spoke to him 8 months later, giving him very brief details of the subject of the investigation & telling him of the fingerprints. Appellant said he had no idea how his fingerprints came to be there, denied having ever been to the hotel in question & said he knew nothing of the alleged occurrence. Fifteen months after the event, police showed the victim an array of photographs & he selected one of the appellant as being 'very similar' to 'one of the men that was there on the night'The issue at trial was whether appellant had been present at the relevant time. His case at trial was that he was one of the 4 men & he had gone to the victim's flat but had left shortly after arriving, before any of the critical events occurred. The Crown case was that all 4 men were jointly responsible.
Failure to give identification warning - failure to give direction on lies.
Appeal dismissed.
230

NP - CCA, 17.7.2003
Hodgson JA, Simpson & Greg James JJ
Citation: R v NP [2003] NSWCCA 195
Sentence appeal.
Counts 1,2,4,10,15&16: unauthorised possession of firearm;
Count 3: possess loaded firearm in public place;
Counts 5,6,7,8,9&12: possess unregistered firearm;
Counts 11,17,18&19: possess defaced firearm;
Counts 13&14: supply commercial quantity prohibited drug (cocaine);
Count 20: conspiracy to sell firearms without being authorised to do so; + Form 1 offences.
Total of 10y with NPP of 7*y.
Applicant was in the business of supplying firearms & drugs to criminals.
Guilty plea - utilitarian value - irrelevance of strength of Crown case - assistance to authorities - discounting process - cumulation of discounts - moderation of effect of discounting process - special circumstances - parity - whether error in accumulating sentences - whether manifestly excessive.
Appeal allowed only on count 20: resentenced on that count to 4y with NPP of 2y in lieu of 5y with NPP of 2*y.
231

GALATI, Dominic Joseph - CCA, 26.5.2003
James J, Smart AJ
Citation: R v Galati [2003] NSWCCA 148
Sentence appeal.
4 x supply prohibited drug (22.75 grams methylamphetamine; 19.04 grams ecstasy; 36.88 grams methylamphetamine; one gram methylamphetamine); + 13 Form 1 offences (possess prohibited drugs; possess prohibited weapons).
Total of 4y with NPP of 2y.
Whilst executing a search warrant on applicant's premises, police found 22.75 grams methylamphetamine, 19.04 grams of ecstasy, as well as a number of weapons & other drugs. Appellant was on bail for those offences when police executed another search warrant on his premises & found 36.88 grams of methylampheptamine. On that occasion, police also found a ring that had been used by a customer to pay for one gram of methylamphetamine.
Aged 34 at time of first offence - early guilty pleas - on recognisance at time of offences - some offences committed whilst on bail - running a business selling drugs - fragmented work history - drug & alcohol addiction - priors (driving, property, drug & violent offences; fraud) - previous imprisonment.
Guilty pleas - utilitarian value - pre-sentence custody - sentence calculations.
Appeal allowed insofar as sentences backdated to take pre-sentence custody into account.
232

LOGAN, Frederick Ralph - CCA, 24.6.2003
Meagher ACJ, Dowd & Barr JJ
Citation: Logan v R [2003] NSWCCA 185
Sentence appeal.
Robbery; steal from a person; malicious damage.
Total sentence of 6y with NPP of 3y.
In the early hours of the morning of 14.10.2001, applicant accosted & threatened a male in Kings Cross & demanded his wallet. The only thing of value the victim had with him was a watch & the applicant again threatened to stab him. Some of these events were observed by plainclothes officers who were driving past. The applicant abruptly left but was subsequently arrested in the area. The watch, valued at $40, has never been recovered.
The 2nd & 3rd charges arose out of events that occurred on 1.12.2001. The female victim was sitting in a motor vehicle in Waterloo with her handbag beside her on the front passenger seat when the applicant opened the passenger door, seized the handbag containing a mobile phone, $70 in cash & other items before running off into a house. Shortly afterwards he was sighted by police, having been identified by the victim. The applicant ran off & was apprehended with the mobile phone in his hand. He then threw the mobile phone against a nearby brick wall, smashing it into several pieces. The victim's handbag & other items were not recovered.
Aged 21 at time of appeal - alcohol dependency - grew up in family where alcohol abuse was prevalent - convictions recorded against applicant committed under various names in NSW & Queensland - no previous imprisonment.
Guilty plea - contrition - prospects of rehabilitation - totality - aboriginality.
Appeal dismissed.
233

KING - HC, 6.8.2003 215 CLR 150
Citation: King v The Queen [2003] HCA 42
Burglary - Offence of committing an offence in the place of another person when in that place without that other person's consent - Criminal Code (WA), s 401(2) - Onus of proof - Onus on prosecution to prove beyond reasonable doubt absence of consent under s 401(2) - Where offence alleged to be committed was breach of restraining order - Where restraining order prohibited entry onto premises - Statutory provision for defence to offence of breach of restraining order if defendant proves on balance of probabilities existence of consent to be on premises - Whether provision relevant - Whether Court of Appeal erred in dismissing appeal from trial judge's jury direction that onus was on prosecution throughout to negative consent.
Appeal dismissed.
234

CAO, Van Teo - NSW SC, Kirby J, 8.8.2003
Citation: R v Cao [2003] NSWSC 715
Remarks on Sentence.
Murder.
Prisoner & the deceased, a 25 year old heroin addict, had been living together on and off for a period of 3 years. Prisoner struck the deceased with a metal rod. This was found to be a spontaneous act. There was no evidence of abuse in the relationship.
Aged 45 at time of offence - born in Vietnam - father of 2 young children whose mother is dead - good prospects of rehabilitation - special circumstances - pre-sentence custody.
Sentenced to 15y with NPP of 10*y.
235

CARR, Dawn Marie - CCA, 4.7.2003
Mason P, Dowd & Adams JJ
Citation: Carr v R [2003] NSWCCA 175
Sentence appeal.
1 x defraud the Commonwealth.
2*y with NPP of 1y conditional upon entering a 2*y GBB. A reparation order of $8,230.50 was made by consent in favour of the Health Insurance Commission.
Applicant was one of 7 offenders in a fraud scheme which involved manufacturing false claims & accounts at a doctor's practice where the principal co-offender worked as a receptionist. This co-offender had produced false accounts for herself & her family, signing all the false claim forms. The scheme raised the sum of $176,282.55.
Parity - justifiable sense of grievance with particular co-offender's sentence - proven facts - Olbrich (1999) 199 CLR 270 - Lowe (1985) 154 CLR 606 - Postiglione (1997) 189 CLR 295.
Appeal allowed: resentenced to 2*y with NPP of 7m 2w, conditional upon entering a 2y GBB.
236

THOMPSON, Helen Anne - CCA, 4.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Thompson [2003] NSWCCA 219
Sentence appeal.
7 x make false instrument; 7 x use false instrument; + Form 1 offences (30 x make & 30 x use false instrument).
Total of 3y with NPP of 1*y.
Offences were committed over a period of 20* months. Applicant was employed as a credit collector with an alcohol distribution company. Applicant found herself in financial difficulties & began altering account records & redirecting cheques made payable to the company to herself (in a former married name). In all, she defrauded the company of $144,000. Because of financial & personal difficulties, she had begun consuming alcohol heavily & had become an entrenched gambler. She used some of the money for family expenses, the other for gambling. When confronted by senior employees of the company, she made full admissions & repaid about $800. A year later she was interviewed by police. She made full admissions & entered guilty pleas at the first available opportunity. There was considerable delay in bringing the proceedings to a conclusion & although some part of the delay was attributable to applicant's circumstances, the sentencing judge considered that most of the blame for the delay lay with the Crown.
Aged 43 at time of 1st offence - early guilty plea - no priors.
Whether sentence excessive.
Appeal dismissed.
237

TA - CCA, 25.7.2003 139 A Crim R 30; 57 NSWLR 444
Spigelman CJ, Dowd & Adams JJ
Citation: R v TA [2003] NSWCCA 191
Conviction and sentence appeal.
Sexual intercourse without consent; administer stupefying drug with intent to commit an indecent assault; indecent assault.
Total of 8y with NPP of 6y.
Much of the relevant interaction between complainant & appellant had been recorded by the appellant on a video camera. The prosecution relied on this recording which was discovered by police after appellant's arrest. At the time of the offences, appellant was aged 27 & was in his 1st year as a medical resident at Liverpool Hospital.
Abuse of professional position - loss of future career prospects as a doctor.
Consent - necessity to obtain evidence of complainant's opinion as to events recorded on videotape - complainant's state of mind - lay opinion - expert opinion - whether sentences excessive.
Conviction appeal dismissed.
Sentence appeal allowed insofar as sentences restructured.
238

EID, Shadi - CCA, 14.8.2003
Sheller JA, James & O'Keefe JJ
Citation: R v Eid [2003] NSWCCA 211
Sentence appeal.
Robbery.
4y with NPP of 3y.
The victim had stopped his vehicle at traffic lights. The applicant approached the vehicle & pointed to his wrist. The victim, believing he wanted to know the time, wound down the driver's window & told the applicant the time, whereupon the applicant told him to get out of the vehicle. Before the victim could wind up the window, the applicant thrust his hand through the open window & removed the ignition key. The victim got out of his vehicle & the applicant entered the vehicle & drove away. The applicant claimed to have committed the offence because of a drug debt.
Aged almost 27 at time of sentence - guilty plea - limited education - some sporadic employment - long-standing history of poly-drug abuse - not using drugs at time of offence, having had 2 naltrexone implants inserted in his body - significant criminal history - previous imprisonment.
Special circumstances - mistaken finding of fact that prospects of rehabilitation were poor - whether sentencing discretion miscarried.
Appeal allowed in part: new NPP of 2y 8m imposed.
239

TRAD, Billy - CCA, 31.7.2003
Sheller JA, James & O'Keefe JJ
Citation: R v Trad [2003] NSWCCA 213
Sentence appeal.
Armed robbery; robbery in company; + Form 1 offences.
Total of 12y with NPP of 8y.
Over a 2 year period, applicant committed 13 armed robberies. During a single day, whilst armed with a knife, he attempted to rob a convenience store & stole $250 from a service station. He was arrested after being identified on surveillance videos. Whilst on bail, he was arrested for other offences. After being released on bail, he robbed another service station whilst armed with a metal bar & stole approx $350. Applicant & a co-offender robbed a 7-eleven shop 4 days later. Applicant held a flick-knife to the console operator's throat whilst the co-offender forced a metal bar into his back. They stole cigarettes & $240 from the cash register, as well as the victim's wallet. Over the following 2 months, applicant & a co-offender committed a series of 9 armed robberies of service stations & stole cash, large amounts of cigarettes, phonecards & other items. On one occasion, over $10,000 worth of cigarettes were stolen. All offences were committed upon vulnerable workers who were threatened with knives & generally put in fear for their lives.
Aged 19 at time of 1st offence - offences committed to fund drug addiction - early guilty pleas for some offences - supportive family, girlfriend - good prospects of rehabilitation contingent upon motivation to remain drug-free - need for supervision, counselling - priors include property offences, drive whilst disqualified, drive unregistered vehicle, possess prohibited drug, larceny - no previous imprisonment.
Utilitarian value - relevance of other factors - strength of Crown case - whether sentence manifestly excessive.
Appeal dismissed.
240

GLB - CCA, 14.8.2003
Sheller JA, James & O'Keefe JJ
Citation: R v GLB [2003] NSWCCA 210
Sentence appeal.
3 x sexual intercourse with child under 10; 1 x indecent assault on child under 10.
Total of 4y with NPP of 2y.
The victim in all 4 offences was the applicant's 5 year old daughter. The offences were committed over a 2 day period when the applicant, who was separated from the victim's mother, had temporary custody of the victim & her older sister. Three days later, applicant voluntarily attended a police station & made admissions, despite the fact that no previous complaint or report had been made to police.
Aged 37 at time of sentence - physical disabilities - born with cerebral palsy - had never worked - had received Social Security disability pension since age 18 - no priors.
Voluntary disclosure - utilitarian value - whether sentence excessive.
Appeal dismissed.
241

TREVENNA, Leeanne Terese - NSW SC, Buddin J, 29 May 2003
Citation: R v Trevenna [2003] NSWSC 463
Remarks on Sentence.
Manslaughter.
The accused was charged with murder. After the second day of the trial & following discussions between accused's counsel & the Crown, the accused was re-arraigned. She then pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. The deceased died as a result of a gunshot wound to the head. Evidence against the accused was obtained through a listening device. The deceased was a violent man with a criminal record involving violence towards women. He was an active drug dealer.
Aged 32 - guilty plea after commencement of trial - long-standing heroin addiction - irrelevant prior convictions - productive time spent in custody - remorse - special circumstances.
History of domestic violence - excessive self-defence.
Sentenced to 7*y with NPP of 4*y.
242

ROBINSON, Harry - CCA, 18.8.2003
Beazley JA, Hidden J, Carruthers AJ
Citation: R v Robinson [2003] NSWCCA 188
Conviction appeal.
Murder.
22y with NPP of 15y.
Appellant was convicted of the murder of a fellow inmate at Junee Correctional Centre. The trial followed an earlier trial during the preceding year which had culminated in the discharge of the jury. At the time of the offence, the deceased was serving a sentence for sexual offences upon young boys when he was a teacher. This fact became known to fellow inmates. On the day of the offence, the deceased was bashed in his cell. He received a number of injuries to the head from which he died. The Crown case was that the appellant had killed the deceased by punching him & that when the deceased had fallen to the floor, the appellant had repeatedly stomped on his head. There was no issue at trial that the deceased was murdered. The only issue was whether the appellant was responsible.
Whether directions given on approach the jury should take to the evaluation & assessment of evidence of prison informer witnesses were adequate - whether directions given on approach the jury should take to assessment of evidence of witnesses who might reasonably be regarded as accomplices were adequate - whether error in directing the jury that warnings regarding the potential unreliability of prison informers applied to evidence favourable to the accused by such informers - whether error in admitting evidence of admissions allegedly made by appellant to police prosecutor at bail hearing - whether such admissions made during the course of official questioning.
Appeal allowed: conviction quashed, new trial ordered.
243

RAY, David - CCA, 20.8.2003 - 57 NSWLR 616
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Ray [2003] NSWCCA 227
Conviction and sentence appeal.
Manslaughter.
7*y with NPP of 4y.
Deceased died during the night at her home. An autopsy revealed lethal levels of both alcohol & morphine in her body. It was the Crown case that the deceased & the appellant had been drinking & that at some stage the appellant had injected the deceased intramuscularly with an excessive amount of morphine. Appellant's case was that deceased most probably killed herself, either deliberately or accidentally, at a time when she was depressed. At trial, it was contended that there was no conclusive evidence as to where the morphine found in her body had come from or whether it had been a significant contributing factor in causing her death.
Directions - lies - consciousness of guilt - application to discharge jury - whether error in refusal to hear counsel prior to jury deliberations - whether verdict unreasonable - whether miscarriage of justice.
Appeal allowed: conviction quashed, new trial ordered.
244

EL-SAYED, Khalid - CCA, 20.8.2003 - 57 NSWLR 659
Wood CJ at CL, Simpson & Adams JJ
Citation: R v El-Sayed [2003] NSWCCA 232
Crown appeal.
2 x robbery in company; 2 x detain for advantage.
Total of 3y with NPP of 15m.
The offences spanned a period of 13 hours. Respondent, in company with a co-offender, accosted the 2 victims in a car park near Liverpool railway station. The co-offender alleged that he had been assaulted by a man 2 months earlier & believed the 2 victims might have been able to identify & locate that man. The respondent had been recruited by the co-offender for the purpose of obtaining information from the victims. He was paid approx $400 for his participation. During the commission of the offences, the respondent threatened the victims with a knife. The victims' wallets were taken, as well as $750 removed from the one victim's bank account via an ATM. The victims were then driven to Green Valley where they & the co-offender remained in the offenders' motor vehicle while the respondent entered a police station for the purpose of reporting to police in compliance with bail conditions to which he was subject in relation to another charge he then faced. The victims were then driven back to Liverpool & the one victim was allowed to leave. The other victim remained in the company of the respondent. The respondent & that victim went to a hotel where they spent several hours in the gaming room. Eventually, the respondent drove the victim home & told him his property would be returned the following day. The property was not returned. Respondent entered pleas of guilty to all charges.
Failure to comply with undertaking to provide assistance to authorities - parity.
Crown appeal allowed: resentenced to total of 4y 3m with NPP of 1y 9m.
245

LUPTON, Peter Barry - CCA, 20.8.2003
Sheller JA, James & O'Keefe JJ
Citation: Lupton v R [2003] NSWCCA 200
Sentence appeal.
33 x sexual offences (aggravated indecent assault, sexual intercourse, act of indecency, aggravated sexual intercourse).
Total of 10y with NPP of 8y.
The above offences were committed upon applicant's 3 stepdaughters over a 9 year period. Some offences were with child between 10 & 16, others with child under 10. In all the charges in which aggravation was involved, the circumstance of aggravation consisted of applicant being a person in authority in that he was the children's stepfather.
Two separate committals - multiple counts in each committal - complaints by victims - voluntary disclosures by applicant - discount for guilty plea - discount for voluntary disclosure - relationship between overall sentence & NPP - power of Court to impose NPP greater than three-quarters of the term of the sentence - special circumstances.
Appeal dismissed.
246

SBD - CCA, 22.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v SBD [2003] NSWCCA 235
Conviction appeal.
2 x sexual intercourse without consent (complainant aged 15 at the time).
Appellant was tried on 6 charges (2 of indecent assault & 4 of sexual intercourse without consent). These offences were alleged to have occurred at various times when the complainant was 5 or 6, 11 & 15. Complainant first made complaint when he was about 17. He was aged 22 at the time of the trial. The appellant was approx 10 years older than the complainant.
Whether verdicts inconsistent - whether verdicts unreasonable - significant contradictions between complaint & trial evidence - whether guilty verdicts open on evidence.
Appeal allowed: convictions quashed.
247

CJP - CCA, 21.7.2003
CAD
MES
Sheller JA, Hidden J, Carruthers AJ
Citation: R v CJP; R v CAD; R v MES[2003] NSWCCA 363
Crown appeals.
CJP: 5 x sexual intercourse with child under 16 (13); + Form 1 offences (incite person under 16 (13) to perform act of indecency; aggravated sexual intercourse with child under 16 (10); attempt homosexual intercourse with child under 16 (13); 2 x aggravated sexual intercourse with child under 16 (13)) - guilty plea.
CAD: Sexual intercourse with child under 16 (13) - guilty plea.
MES: Sexual intercourse with child under 16 (13) under authority; + Form 1 offence (aid & abet another to have sexual intercourse with a child under 16 (10) - guilty plea.
On 29.11.2002, all 3 respondents appeared for sentence. On 4.12.2002 the learned sentencing judge indicated the sentences he intended to impose on each respondent without giving reasons but expressing his intention to give reasons the following day. On the same day, he endorsed the rear of the indictments with the proposed sentences. On 5.2.2003, notices of intention to appeal were filed. On 28.2.2003, his Honour handed down his Remarks on Sentence. In relation to one of the respondents, there was an inconsistency between the sentence which his Honour announced was to be imposed & the sentence reflected in the endorsement on the rear of the indictment. The Crown submitted that the endorsement was 'effective as part of the sentence imposed' even though the respondents apparently were not present when the endorsements were made.
Whether sentences endorsed by DC judge, in the absence of the parties, on Committal for Sentence Form validly imposed - delay of 3 months between imposition of sentences & publication of reasons - requirement for sentences to be accompanied by contemporaneous reasons emphasised - statutory obligations - whether any sentences validly imposed - necessity for all matters to be remitted to the DC.
Orders: Sentences quashed, matters remitted to DC for sentence according to law, including the publication of contemporaneous reasons. Crown appeals quashed.
Note: It was later brought to the Court's attention that there was an error in the recitation of one of the charges against the respondent CJP. This was corrected in R v CJP; R v CAD; R v MES [2003] NSWCCA 363.
248

EH - CCA - 12.8.2003
Wood CJ at CL; Simpson & Adams JJ
Citation: R v EH [2003] NSWCCA 223
Sentence appeal.
Discharge loaded pistol with intent to do GBH.
6y with NPP of 3y to be served in a detention centre.
The applicant, believing the victim (a schoolboy) was responsible for a previous arson attack on applicant's family's home & car, drove a stolen motor vehicle to the schoolboy's home. He drove in such a way as to attract the schoolboy's attention & when the schoolboy approached the vehicle, the applicant produced a gun which he fired. The bullet grazed the schoolboy on his right shoulder. The applicant fired another shot that passed so close to the schoolboy's face that he could feel the air displacement. The schoolboy ran off & as he did so he heard a car door open & heard another one or two gunshots. The schoolboy took shelter in the grounds of a nearby house.
Aged 16 at time of offence - born in Cuba of Cuban & Chilean heritage - guilty plea - significant disruption in early life - migrated to Australia with his mother - little contact with father - mother involved in various unsuitable relationships - some violence - no previous criminal history.
Young offender - subjective circumstances - rehabilitation - special circumstances.
Appeal allowed: resentenced to 4y with NPP of 2y to be served in a detention centre.
249

KEMSLEY, Jason Anthony - CCA, 8.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Kemsley [2003] NSWCCA 221
Conviction appeal; leave to appeal against sentence.
Aggravated robbery (the use of corporal violence).
2y with NPP of 1y.
The appellant perpetrated the above offence after he found out that while he was overseas for 12 months, his girlfriend had had a relationship with the victim.
Introduction into evidence of allegation of separate assault said to be upon a prosecution witness in circumstances unrelated to the offence charged - whether trial proceedings miscarried by reason of the fact that a series of questions asked by the Crown prosecutor in re-examination of that witness were not properly the subject of re-examination - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal dismissed.
250

SLEIMAN, Emad - CCA, 21.8.2003
Sully, Dunford & Kirby JJ
Citation: R v Sleiman [2003] NSWCCA 231
Conviction appeal.
Murder.
The deceased was fatally stabbed outside a hotel in Parramatta. The essence of the Crown case at trial was that the fatal wounds had been inflicted by the appellant with the intent to either kill or inflict GBH. Fundamental to the Crown case was eyewitness evidence given by the hotel's security manager. That evidence provided an essential factual background of all the grounds of appeal & was significant in connection with 2 particular grounds. After the stabbing, the deceased managed to go back inside the hotel. The security manager asked him who had stabbed him & he replied that it was Kalache, who was the co-offender who stood trial with the appellant & who was ultimately acquitted at the direction of the trial judge. The deceased died before either the police or the ambulance arrived at the hotel. Despite having given evidence about who the deceased claimed had stabbed him, the security manager maintained, when giving his evidence at trial, that it was the appellant who he had seen with the knife & who had stabbed the deceased. He had only told police that it was the appellant who had stabbed the deceased some 7 months after the offence, his excuse being that he had been in fear for his life & that of his family. There were other eyewitnesses who gave evidence about an altercation that had occurred inside the hotel between the appellant & the deceased shortly prior to the fatal stabbing. There was also evidence from eyewitnesses of events outside the hotel at about the time of the stabbing. This evidence did not entail a positive identification of the appellant as the assailant of the deceased, except for the evidence given by one eyewitness. No murder weapon was ever recovered by police.
Note: Almost 2 years after the appellant's trial, Kalache stood trial for the murder of another man. He was found guilty & was sentenced to 22y with a NPP of 17y for what was described as a brutal & callous killing (see R v Hassan Kalache[2002] NSWSC 507).
Whether misdirection as to dying declaration of deceased - whether trial miscarried as a result of admission of evidence of police sergeant - whether error in law in failure to leave manslaughter to the jury - whether verdict unreasonable.
Appeal dismissed.
251

SG - CCA, 4.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v SG [2003] NSWCCA 220
Sentence appeal.
7 x sexual intercourse in circumstances of aggravation (person under 16).
Total sentence of 3y with NPP of 1*y.
Applicant was alleged to have had sexual intercourse with his 14 year old cousin without her consent. The charges involved 3 separate groups of offences, the 1st of which was alleged to have occurred at the applicant's apartment & the 2nd & 3rd of which were alleged to have occurred in the complainant's family home. Offences charged alleged digital penetration, cunnilingus & fellatio.
Aged 23 at time of appeal - prior good character - strong subjective features.
Whether sufficient weight given to delay in arrest & finalisation of proceedings, rehabilitation, character & subjective material - whether sentence manifestly excessive - objective criminality - totality - whether calculation of sentences offended Pearce v The Queen (1998) 194 CLR 610 - matter capable of being dealt with in LC.
Appeal allowed: concurrent fixed terms imposed on each count, giving a total sentence of 12m FT.
252

DAETZ, Jayantha Harold - CCA, 6.8.2003 139 A Crim R 398
WILSON, Kirk
Tobias JA, James & Hulme JJ
Citation: R v Daetz; R v Wilson [2003] NSWCCA 216
Sentence appeal.
Daetz: Robbery in company; 2 x demand money with menaces with intent to steal. Guilty plea
Total sentence of 6y with NPP of 3y.
Aged 18 at time of offences - late guilty pleas - adopted - real contrition - serious injuries from assault - on bail for the demand money with menaces offences at time of rob in company - young offender - slight build - vulnerability in prison - prior common assault - previous imprisonment.
Wilson: Robbery in company; aggravated robbery (corporal violence); assault. Guilty plea.
Total sentence of 6y with NPP of 3y.
Aged 18 at time of 1st offence - early guilty pleas - on bond when rob in company offence committed - youth - vulnerability in prison - contrition - prior juvenile offences - no previous imprisonment.
Daetz approached 2 victims at a railway station & demanded money, making threats of violence. Wilson lured a victim into a toilet block by offering to sell him cannabis. He punched & kicked the victim in the face & took his mobile phone. Both appellants, whilst intoxicated, tried to take a mobile phone from a victim. The victim refused, whereupon the appellants punched & kicked him in the face. Wilson lunged at another victim with a bottle of whisky. Following the robbery, a number of men approached the appellants & seriously assaulted & injured Daetz.
Special circumstances - youth - intoxication - mitigation of sentence - extra-curial punishment.
Daetz: Appeal allowed - resentenced to total of 5*y with NPP of 2y 9m.
Wilson: Appeal dismissed.
253

GARVEY, Leslie Neville - CCA, 12.8.2003 142 A Crim R 194
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Garvey [2003] NSWCCA 226
Sentence appeal.
BE&S.
4y with NPP of 2y.
The offence was committed upon a warehouse occupied by an electrical retail company. Applicant stole a laptop computer, a cable tester & a video voltage rescue tester. Two hours later, a number of alarms were activated & a security officer was sent out to inspect the premises. Upon arrival, he found a smashed office window & the doors closed but unlocked. He entered the premises, which were filled with thick smoke, & saw a fire burning on a desk. He managed to extinguish the fire. The fire damage was relatively slight. When police examined the scene, a fingerprint of the applicant was found & he was subsequently arrested. At first, applicant denied knowing anything about the B&E, however, when the matter came before the LC, he pleaded guilty. The sentencing judge took the fire into account as an aggravating circumstance. Applicant was subsequently convicted of various traffic offences & assault police causing ABH. He was also charged with malicious damage to property, being the fire lit during the BE&S. This was double punishment as the lighting of the fire had already been taken into account in the sentence for the BE&S.
Aged 18* at time of offence - Aboriginal - use of marijuana since 13 - some employment - stable family background - on bail for driving offence at time of BE&S - intoxicated - remorse - good prospects of rehabilitation - prior record - control orders, probation under supervision, CSO, juvenile institutions.
Whether De Simoni principle relevant - whether appropriate discount for guilty plea - principle of rehabilitation - whether special circumstances.
Appeal allowed: resentenced to 3y with NPP of 21m.
254

JIN, Simon - CCA, 20.8.2003
Foster AJA, Grove & Dowd JJ
Citation: R v Jin [2003] NSWCCA 238
Sentence appeal.
2 x robbery in company; +Form 1 offences (larceny, enter enclosed lands, self-administer prohibited drug).
Total of 3y with NPP of 18m.
The offences were committed upon 2 young boys. $5 & the sim card from a mobile phone were taken from the one boy, a mobile phone from the other. Form 1 offences were not taken into account, the sentencing judge having concluded that none of them would have merited a custodial sentence.
Young offender - assistance to authorities - poor prospects of rehabilitation - prior convictions - failure to complete CSO - poor response to supervision whilst on bond - breach of bail.
Parity - whether error in approach or assessment - Lowe (1984) 154 CLR 505 & Postiglione (1997) 189 CLR 295 applied.
Appeal dismissed.
255

TABER; STYMAN; STYMAN - NSW SC, Barr J, 11.12.2002 56 NSWLR 443
Citation: R v Taber; R v Styman; R v Styman [2002] NSWSC 1239
Remarks on the basis on which murder should be left to the jury.
Murder - reckless indifference - unsuccessful attempt to rescue deceased deliberately placed in danger - continuing duty to remove danger - causation - series of acts & omissions causing death part of one transaction - mens rea sufficient at one essential stage.
256

ANFORTH, Wayne Stuart - CCA, 12.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Anforth [2003] NSWCCA 222
Crown appeal.
2 x aggravated kidnapping.
2y suspended sentence on each count.
Respondent (armed with a baseball bat) & 2 co-offenders (armed with a knife & shotgun) forced a man & woman into a waiting car. The victims, who were known to the offenders, were handcuffed together. An angle-grinder was later used to remove the handcuffs, resulting in both victims suffering burns to their arms. Respondent then stood guard over the victims for a short time, after which they were transported to a number of locations, finally ending up in Victoria. Respondent's involvement ended shortly after the handcuffs were removed.
Aged 29 at time of offences - guilty pleas - remorse - respondent rather naive - offence out of character.
Subjective circumstances - remarks on sentence - characterisation of role of respondent - respondent's purpose in participation - objective criminality - post-offence rehabilitation - assistance to authorities - value of assistance - principle of double jeopardy.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced to total of 2y with NPP of 10m.
257

McDOUGALL, Muir (DPP v) - CCA, 31.7.2003 57 NSWLR 489
Ipp JA, Studdert & Hulme JJ
Citation: DPP (NSW) v McDougall [2003] NSWCCA 217
Stated case.
1 x negligent driving.
Crown case was that respondent drove negligently by colliding with a stationary vehicle. Appellant was convicted in the LC of negligent driving & subsequently appealed to the DC against that conviction. The DC determined the information was invalid as it did not disclose an offence & quashed the conviction. The judge held the information was not sufficient as it referred only to negligent driving & should have specified that the respondent was driving the vehicle negligently & should have stated that this occurred on a road or on a road related area, not both. At the DPP's request, the DC judge stated a case to the CCA, questioning whether he had erred in law in his conclusion that the information was invalid.
Held: Error in concluding information invalid & did not disclose an offence.
No duplicity in information regarding location where offence took place - particulars sufficiently identified location.
History of matter meant not appropriate to remit matter to DC.
258

WARDINI, Louie Elias - CCA, 5.9.2003
Meagher JA, Sully J, Smart AJ
Citation: R v Wardini [2003] NSWCCA 249
Crown appeal.
1 x aid, abet, counsel, procure, solicit and incite another to commit an offence of supply large commercial quantity of methylamphetamine.
2y with NPP of 18m PD.
Not much in the way of facts in the CCA judgment. The respondent was pressured into the offence in order to discharge considerable debts that he had accumulated in operating his small building business. He did not initiate the commission of the crime & was not a drug trafficker. At the time of the appeal, the respondent had already served 5* months of his sentence. Meagher JA expressed concern that there had been an 'inordinate & inexcusable delay'in the respondent being charged 2 years & 4 months after the commission of the offence.
Guilty plea - good character - happily married with 2 young children - remorse - no prior convictions.
Failure to reflect objective seriousness of offence - disproportionate weight given to subjective features - whether sentence manifestly lenient.
Appeal dismissed.
259

O'MEARA, Kenneth Ian - CCA, 5.9.2003
Meagher JA, Sully J, Smart AJ
Citation: R v O'Meara [2003] NSWCCA 250
Conviction appeal.
Appellant faced trial on 4 counts of contravening s 29B of the Crimes Act 1914 (Commonwealth) & entered pleas of not guilty to each count.
The trial proceeded for some time, whereupon appellant intimated through his counsel that he wished to change his pleas. The jury being absent, the trial judge re-indicted the appellant & took from him pleas of guilty to the 4 counts in the freshly presented indictment. The Judge formally recorded convictions, brought the jury back into court, explained to them what had happened & then discharged the jury. The judge subsequently imposed sentence.
On appeal, appellant contended that the convictions should be quashed upon the basis that they were tainted by error of law which was contrary to the requirement of s 80 of the Commonwealth Constitution.
"The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial should be held at such place or places as the Parliament prescribes."
Whether miscarriage of justice.
Appeal dismissed.
260

ITA - CCA, 10.7.2003 139 A Crim R 340
Ipp JA, Buddin & Shaw JJ
Citation: R v ITA [2003] NSWCCA 174
Conviction and sentence appeal.
Aggravated sexual assault (in company); indecent assault.
Total of 7*y with NPP of 5y.
The victim was sleeping over at the appellant's house. She was asleep in the spare room when the appellant entered the room & made suggestive remarks & threats. He attempted to force the victim to commit fellatio on him. He pushed her onto the bed & inserted his penis into her vagina, then ejaculated on her stomach. When he left the room, a co-offender entered & penetrated the victim's vagina, despite her obvious distress. The victim showered & returned to the spare room. The appellant again entered the room, pinned the victim to the bed with his knees, then touched her body & kissed her neck & breasts.
Aged 32 at time of offences - good work history - deliberate, cruel & callous conduct towards vulnerable victim - no remorse or contrition - priors include driving offences, common assault, offensive language, contravention of ADVO, intimidate police officer in execution of duty, fail to appear for breach of CSO - previous imprisonment.
Indictment - defective - bad in law - evidence - inadequate directions - elements of offence - lies - consent -complaint - form of indictment - adequacy of summing up - duty of trial judge - rule 4 - duty of counsel - whether verdict unreasonable - whether miscarriage of justice.
Conviction appeal allowed in part: conviction for the aggravated sexual assault set aside: verdict of guilty of sexual assault (s.611) substituted.
Sentence appeal allowed: resentenced to total of 7y with NPP of 4*y.
261

KAZZI, Joseph John - CCA, 28.8.2003 140 A Crim R 545
WILLIAMS, Mark Raydon
MURCHIE, Richard Alan
Ipp JA, Grove & Dowd JJ
Citation: R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241
Crown appeal pursuant to s.5F against a decision by the trial judge refusing to admit the evidence of a statement by a Crown witness.
Respondents are facing trial in the DC on 3 charges. The 3rd count on the indictment is that each of the accused, armed with a dangerous weapon (shotgun) robbed the Crown witness of a large number of mobile phones, telephone accessory kits, the property of Mayne Nickless Ltd. The statement of the witness tendered by the Crown is crucial to the Crown case. Without it, the Crown will not be able to prove the charge. At trial, the Crown submitted that the witness' statement was admissible under either s.65 Evidence Act 1995 or s.289 Criminal Procedure Act 1986. The trial judge refused to admit the statement.
Whether error in refusing to admit evidence of a statement made by Crown witness - whether witness was available to give evidence - whether facts asserted in witness statement were fabricated - whether respondent would sustain relevant prejudice were the statement to be admitted.
Orders: That the order made by the trial judge, ruling that the statement was not admissible in evidence, be vacated.
262

CARTER, Susan Diane - CCA, 1.9.2003
Ipp JA, Dunford & Greg James JJ
Citation: R v Carter [2003] NSWCCA 243
Conviction and sentence appeal.
Ongoing supply of prohibited drug (heroin).
3y 8m with NPP of 2y 9m.
A female police operative obtained heroin from the appellant on 3 occasions through an intermediary. In each instance, the police operative spoke to an intermediary, the intermediary spoke to the appellant, the appellant handed the heroin to the intermediary, & the intermediary handed the heroin to the police operative in exchange for $50. In the 1st & 2nd instances, the intermediary was seen to hand the $50 to the appellant, whilst in the 3rd instance the handing over of the $50 by the intermediary to the appellant was not observed.
The issue on appeal was whether there was evidence from which it was open to the jury to find that on the 3rd occasion of supply, the applicant did it for financial or material reward.
Whether reasonable inference - special circumstances - longer NPP to facilitate rehabilitation - need to show that if such a longer period is allowed, rehabilitation will probably be successful.
Appeal dismissed.
263

BAVERSTOCK, Alan - CCA, 14.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Baverstock [2003] NSWCCA 228
Sentence appeal.
6 x sexual intercourse without consent; + 4 matters on a Form 1.
Total of 7y with NPP of 3*y.
An agreed statement of facts was tendered. Applicant met the complainant in China after having been introduced to her by the complainant's cousin. They married in China, then the applicant returned to Australia. The complainant remained in China awaiting the processing of her immigration visa. When she was granted a temporary resident visa, she came to Australia & lived with the applicant in his unit. The series of charges all relate to episodes of behaviour during a 2 month period when the applicant forced his wife to engage in acts of bondage. Against her will, he tied her to the bed with neck ties, and/or wrist ties, and/or ankle ties, then performed various acts of sexual intercourse. These acts were performed without the complainant's consent. At times, when she protested, he would say 'Go China', which the complainant understood to mean she would be returned to China if she did not comply with his sexual demands. The complainant was overcome by these threats, being vulnerable by reason of her temporary visa status. She confided in her cousin & her cousin remonstrated with the applicant on one occasion & asked him not to tie her up. He promised to stop the practice, however, he continued to behave in a similar way.
Whether error in consideration of Form 1 offences - whether sentence manifestly excessive.
Appeal dismissed.
264

KERR, Gerald - CCA, 26.8.2003
Beazley JA, Adams J, Miles AJ
Citation: R v Kerr [2003] NSWCCA 234
Sentence appeal.
Aggravated robbery (using corporal violence & maliciously inflict ABH).
13*y with NPP of 10*y.
Applicant managed to get 2 young men to accompany him in a car to steal cannabis plants. He took them to a house occupied by the victim. The younger man accompanied the applicant onto the veranda. Both wore balaclavas & the applicant carried a handgun. The applicant removed the bulb from the veranda light & called out to the occupant that someone was breaking into his taxi. This brought the victim to the door, whereupon he was struck by the applicant wielding the handgun & also by the younger man with a cricket bat. The 2 offenders forced their way into the house, the applicant continuing to strike the victim. The victim dislodged the applicant's disguise & the younger man, on the instructions of the applicant, put a sheet over the victim's head. The sum of $2,500 (together with other items not charged in the indictment) was stolen from the house. The offenders escaped in the car, the third offender driving briefly & the applicant taking over control. Offence described by sentencing judge as 'vicious, cowardly and violent'.
Aboriginal - born on or about 10.10.1969 - disadvantaged background - disrupted education - behaviour problems - became heavy user of alcohol & cannabis - institutionalised - personality disorder - anti-social features - lengthy criminal history, including a number of serious offences - previous imprisonment.
Parity - sense of grievance - whether sentence manifestly excessive.
Appeal allowed: resentenced to 9y 8m with NPP of 7y 3m.
265

EG - CCA, 19.8.2003
Spigelman CJ, Sully & Hidden JJ
Citation: EG v R [2003] NSWCCA 246
Sentence appeal.
Supply large commercial quantity heroin; + Form 1 offence (supply commercial quantity cocaine).
11y 3m with NPP of 8*y.
Applicant was involved at a managerial level in a major drug trafficking enterprise over a period of 4 months. He was not the principal in the enterprise, however, his role did not appear to have been very much less than that of a principal. The drugs were actually sold by other offenders but the applicant supplied the drugs to those offenders & he maintained a supervisory role over them.
Guilty plea - remorse - assistance to authorities .
Parity - whether any lesser sentence warranted in law.
Appeal dismissed.
266

CAKOVSKI, Daniel - NSW SC, O'Keefe J, 28.6.2002 133 A Crim R 18
Citation: Cakovski [2002] NSWSC 632
Application by Crown to cross-examine Crown witness.
Accused was charged with murder. It was alleged that he was in the company of SS at the time. SS gave evidence for the Crown of a plan made between her & the accused to lure the deceased into a quiet street where he could be robbed. SS completed her evidence & was excused. The accused gave evidence & was cross-examined. Arising from this, the Crown sought leave to recall SS. During her examination in chief, she became resistant to answering questions & was directed to do so. The Crown sought leave to cross-examine her.
Application by Crown to cross-examine Crown witness - evidence given unfavourable & inconsistent with prior statement - Criteria when considering grant of leave - ss.38(1), (3), 135(a), (c), 137, 192(2) Evidence Act 1995 (NSW).
Held (granting leave to re-open & to cross-examine): Evidence adduced from Crown witness when she was recalled was clearly unfavourable to a party to proceedings & she was clearly not making a genuine effort to give evidence.
267

WAN, Arthur Kuen - CCA, 14.8.2003 140 A Crim R 513
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Wan [2003] NSWCCA 225
Conviction appeal.
Possess commercial quantity prohibited drug (heroin); supply commercial quantity prohibited drug (heroin).
Total of 15y with NPP of 9y.
Subsequent to appellant's arrest for supplying heroin, a search of his flat revealed 14 kgs of heroin hidden in various places. Appellant claimed no knowledge of the drugs, saying they belonged to someone else. Directions were necessary on the issue of exclusive possession & joint enterprise as it relates to possession. Directions were given in 'conventional terms'& were not objected to by defence counsel at trial, despite being offered the opportunity to do so.
Issue of possession - whether sole or joint - whether alternative cases or prosecution may press both possibilities - appropriate directions - change of prosecution case - whether defence prejudiced.
Appeal dismissed.
268

KESISYAN, Karabet Gary - CCA, 3.9.2003
Meagher JA, Sully & Kirby JJ
Citation: R v Kesisyan [2003] NSWCCA 259
Conviction appeal.
Indecent assault & sexual assault of person under 16 whilst under authority.
Sentence not stated.
Complainant alleged that the sexual activity between her & the appellant (complainant's stepfather) began when the complainant was aged 10 & continued for some years. Appellant's case was simply that the facts alleged by the complainant were entirely false. The trial judge gave long & careful directions, including the Longman direction.
It was claimed on appeal that the Longman direction was insufficient.
Longman direction - purpose - form & content - delay - credibility evidence - admissibility & relevance.
Appeal dismissed.
269

EL HASSAN, Marouf - CCA, 24.6.2003
Meagher JA, Dowd & Barr JJ
Citation: El Hassan v R [2003] NSWCCA 252
Sentence appeal.
Attempt obtain possession of commercial quantity cocaine.
15y with NPP of 10y.
Authorities intercepted the importation into Australia of nearly 17* kgs of pure cocaine concealed in an autoclave. Upon detection, the cocaine was removed & replaced with some other substance in order to carry out a controlled delivery. When charged with the above offence, applicant pleaded guilty.
Parity - relevant facts - whether sentence excessive.
Appeal dismissed.
270

ROYAL, Michelle - CCA, 9.9.2003
Hidden, Greg James & Bergin JJ
Citation: R v Royal [2003] NSWCCA 260
Sentence appeal.
7 x obtain benefit by deception; + Form 1 offences (2 x obtain valuable thing by deception; 2 x goods in custody; 2 x possess prohibited drug).
Total of 3y 3m with NPP of 2y 1m.
Applicant & 3 co-offenders defrauded banks of large amounts of money. Stolen cheques were deposited into banking accounts that had been created in fictitious names. The scheme was set up by the 2 co-offenders. The applicant's role was to present herself at various banks & set up banking accounts by using false identification both for herself & for the companies which were nominated as the account holders. From 2.9.1999 to approx 24.9.1999, $348,000 was fraudulent withdrawn from the banks, of which $285,190.72 has not been recovered. The applicant claimed that she was to receive 10% of the proceeds, however, she said she in fact received $25,000 & had spent $5,000. At the time of the appeal, the co-offenders had not been charged for their part in the criminal enterprise.
Aged 24 at time of offences - 20% discount allowed for guilty pleas - good upbringing - supportive parents - good education - use of illicit drugs - good prospects of rehabilitation - special circumstances.
Level of culpability - whether sentence excessive.
Appeal dismissed.
271

ROBY Rhona - CCA, 19.8.2003
Spigelman CJ, Sully & Hidden JJ
Citation: R v Roby [2003] NSWCCA 242
Sentence appeal.
Count 1: supply methylamphetamine (19.69 grams) - 4y with NPP of 3y.
Count 2: supply methylamphetamine (21.32 grams); + Form 1 matters - 6y with NPP of 4*y, partly concurrent.
Aggregated sentence of 8y with NPP of 6*y.
Police executed a search warrant at applicant's home where they found 54 small resealable plastic bags of methylamphetamine in her bedroom. Other items found during the search included numerous plastic resealable bags, scales with powder residue on them & $1,952 in cash, despite applicant being unemployed. Applicant refused to make any comment & spent one day in custody before being granted bail. Three months later, police again searched the house. Whilst the premises were still under observation, a number of people were seen entering & leaving the house. When police entered the house, they found 60 resealable plastic bags of methylamphetamine. One plastic bag was retrieved from a flushing toilet into which applicant's son had thrown an unknown number of bags. Another 14 bags were found in the pocket of another man who also resided at the house, & 40 more bags were found concealed in the hollow tubing attached to a plant stand. A number were also found in the applicant's handbag, as well as $590 in cash. Applicant did not give evidence during the sentence hearing, however, her youngest son gave evidence of his mother's longstanding drug abuse & her comparative ill health (see R v Rhona Roby, NSWCCA, 28.6.1995).
Aged 54 at time of sentencing - drug supply for reward - active drug dealer - 2nd offence committed whilst on bail - disregard for the law - prior drug offences - previous imprisonment.
Refusal to give weight to prospects of rehabilitation - where earlier decision of CCA accepted applicant's subjective circumstances as extraordinary - whether failure to give appropriate recognition to subjective circumstances.
Appeal allowed only on count 2, insofar as NPP reduced to 4y, giving an aggregate sentence of 8y with a NPP of 6y.
272

FLANJAK, Michael - NSW SC, Adams J, 20.8.2003
Citation: R v Flanjak [2003] NSWSC 779
Remarks on Sentence.
Murder.
Thirteen empty cartridge cases, which had been fired from a Beretta, were found at the scene of the murder of offender's mistress. An autopsy revealed 25 gunshot wounds to her body, however, a number of these entry wounds were caused by fragments from bullets which had broken up, some after passing through the body & others from the bullet first striking other objects. A motorist observed offender's motor vehicle drive off the road, hit an embankment & then a tree. Upon investigation, the motorist found the offender collapsed on the front seat. When police attended, it was discovered that he had a bullet wound in the chest. There was a Beretta pistol in the car, its magazine empty but with a cartridge in the breach. It was obvious that the offender had not been shot in the car as the bullet was not recovered, even though it had passed through the offender's body. Although offender claimed that the deceased shot him first in a jealous rage when he refused to leave his wife to live with her, he said he remembered nothing after that until he regained consciousness in hospital. The offender had made earlier threats to kill the deceased if she ever attempted to break off her relationship with him.
Multiple gunshot wounds - attempted suicide by offender - prior relationship between deceased & offender - provocation - relevance of victim impact statements - sentencing principles.
Sentences to 20y with NPP of 15y.
273

TIMPSON, David Leslie - CCA, 5.9.2003
Meagher JA, Sully J, Smart AJ
Citation: R v Timpson [2003] NSWCCA 257
Sentence appeal.
No mention made of actual offence charged.
Although 5 years is mentioned as the sentence imposed, no mention is made of the NPP. The sentence was made to commence at the expiration of sentences applicant was already serving.
Applicant & his accomplice drove 600 kilometres to the 81 year old victim's home. They broke into his house at night by smashing a window & cut the phone line. They struck the victim twice on the head with an unknown object, then tied his hands behind his back with masking tape & a telephone cord. They bound his legs & a pillowcase was taped over his head. The offenders stole $600 of the elderly victim's money & ransacked his house. When they left the house, they stole the victim's car. The victim remained tied up for 2* days & was only discovered because of the police finding his car which had been abandoned. They became suspicious & investigated. When the victim was found, he was severely dehydrated & confused. He had extensive head injuries, 2 fractured ribs & his hands were extremely swollen & bruised. He had abrasions to his forearms & wrists. His pillowcase & bed were covered with a substantial amount of blood & his medical condition was such that an early attack of senile dementia was provoked.
Failure to adequately discount NPP, having regard to the accumulation of sentences.
Appeal dismissed.
274

WONG, Man Kam (Ambrose) - CCA, 12.9.2003
Meagher JA, Sully & Kirby JJ
Citation: R v Wong [2003] NSWCCA 247
Sentence appeal.
1 x malicious damage (splashing paint on a shop front window); 4 x demand property with intent to steal.
Total of 2*y with NPP of 1y 6m.
Applicant & his co-offenders were members of a gang, which consisted of a number of young people, both male & female. Most members were as young as 15 & a number, including the applicant, were 18 years old. Many had been recruited from schools, others joined through video parlours & internet cafes. The gang was highly organised, with a structure that insulated the person in charge (known as the 'Grandfather'). At street level, the gang was led by 2 young men, one aged 16 years 9 months, the other aged 18. Both were 'District Leaders' or 'Red Lanterns'The younger of these 2 offenders described himself as a 'first class street enforcer'The gang preyed on Asian shopkeepers & restaurateurs in the Parramatta area, demanding & receiving money for protection. The amount demanded varied, although it was usually $280 per week from each establishment. Police were alerted when the victims from one restaurant reported the matter, whereupon police conducted surveillance. They installed listening devices in a number of establishments & provided money (which was marked) which the victims gave the gang in answer to their demands. After gang members had collected the money on a particular Saturday, the police arrested those involved. The applicant was amongst those arrested & entered guilty pleas to the above offences.
Parity - comparison with ringleader, who was a child - comparison with adult.
Appeal dismissed.
275

ED - CCA, 11.9.2003
Spigelman CJ, Hidden & Greg James JJ
Citation: R v ED [2003] NSWCCA 255
Conviction and sentence appeal; application to extent time.
1 x steal motor vehicle.
3y.
Applicant was charged with the theft of a motor vehicle on or about 4.5.1956. The car was recovered about a month later & applicant was charged with the offence about 7 months later. The Crown case was founded upon admissions applicant was alleged to have made to a detective in the company of another detective at Paddington Police Station.
Application to extend time to appeal against conviction & sentence - 46 years out of time - sentence long since served - whether interests of justice required leave - fresh evidence - police corruption - incompetent legal representation - sentencing disparity.
Application refused.
276

LAURES, Andre Albert - NSW SC, Studdert J, 27.8.2003
Citation: R v Laures [2003] NSWSC 785
Remarks on Sentence.
Manslaughter.
Offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. Offender stabbed his de facto wife during an argument. The knife penetrated her heart. The offender phoned for an ambulance & the deceased passed away shortly after her admission to hospital. After deceased had been taken to hospital, offender stabbed himself & he too was taken to hospital for treatment. Deceased was 53 years old at the time of her death.
Deliberate & voluntary act - unlawful & dangerous act.
Aged 60 at time of offence - guilty plea - utilitarian value - contrition - ill-health - no priors.
Sentenced to 8y with NPP of 5y.
277

WONG, Dennis Hong - CCA, 3.9.2003
Meagher ACJ, Sully & Kirby JJ
Citation: R v Wong [2003] NSWCCA 261
Sentence appeal.
1 x knowingly concerned in the importation of a large commercial quantity of heroin.
20y with NPP of 13y.
The amount of heroin imported was 88 kgs in impure form & 64 kgs in pure form. Applicant was a member of a well-organised smuggling ring involved in bringing heroin into Australia from China, concealed in cargo.
Sentence being served in protective custody - whether sufficient weight given.
Appeal dismissed.
278

HOLMES, Barney Bernard - CCA, 11.9.2003
RATU, Jeremaia
Spigelman CJ, Hidden & Greg James JJ
Citation: R v Holmes & Ratu [2003] NSWCCA 258
Sentence appeal.
Murder.
Each sentenced to 16y with NPP of 12y.
Both applicants pleaded guilty to murder. The deceased, a taxi driver, died some 12 hours after being punched & kicked by the applicants. The attack upon the taxi driver lasted at least 10 minutes. The deceased also had a stab wound. The Crown had no case in relation to the stabbing & it was therefore not taken into consideration at sentence. Ratu was aged 18 at the time of the offence & Holmes 21. They each came from a stable family background.
Intoxication - explosion of drunken violence - admissions - discount for guilty pleas - rehabilitation.
Whether error in failure to find particular matters as special circumstances - whether error in failure to specify shorter NPP - necessity for appeal court to be persuaded some other sentence warranted in law.
Appeals dismissed.
279

KREMPIN, Peter James - CCA, 9.9.2003 142 A Crim R 56
Hidden, Greg James & Bergin JJ
Citation: R v Krempin [2003] NSWCCA 263
Sentence appeal.
1 x armed robbery with offensive weapon; 1 x assault with intent to rob armed with offensive weapon.
Concurrent sentences of 4y with NPP of 21m.
Applicant went into the shop at a service station, walked behind the counter & held a Swiss army knife close to attendant's right side at his rib area. He told the attendant to open the cash drawer & give him money. The attendant did so, giving him $150 in bank notes. Later that evening, applicant went into the shop at another service station & pushed the knife towards one of the attendants so that it 'just touched' the left side of his stomach. The attendant could smell alcohol on applicant's breath & noticed he was swaying. Applicant began talking to the attendant, mumbling & slurring his words. When the attendant asked what he wanted, he answered 'cigarettes'The attendant asked the applicant to go around to the other side of the counter, which he did. He then left the premises without any cigarettes. Applicant was arrested later that evening & had a Swiss army knife in his jacket pocket, which was a gift from his sister & which he kept on his key-ring.
Aged 30 at time of offences - parents divorced when applicant aged 3 - sexually abused by older step-brother when applicant aged 9 or 10 - teased at school about his mother being a lesbian - reported to treating psychologist of feeling awful & angry but keeping it all inside - started drinking at age 12 or 13 - completed Year 11 at school then enlisted in RAAF - completed basic training - daily heavy drinking - alcoholic at age 21 - suicide attempt - diagnosed with chronic dysthymia & alcohol induced depression with narcissistic behavioural traits - 'at risk of decompensating, precipitating severe psychotic illness'- major depressive episode & psychoactive substance dependence - continuing attendance in therapy to address childhood trauma - mandatory requirement to abstain from alcohol - need for review of medication - no history of violent behaviour.
Whether applicant's mental disorder properly taken into account.
Appeal allowed: NPP reduced to 18m.
280

SHANKLEY, Glen William - CCA, 11.9.2003
Greg James & Howie JJ, Smart AJ
Citation: R v Shankley [2003] NSWCCA 253
Crown appeal.
Count 1: Supply large commercial quantity methylamphetamine, + 10 matters of a Form 1 (the most serious being supply commercial quantity methadone possess firearm without authorisation) - 7y with NPP of 5y 3m;
Count 2: Possess firearm without authorisation, + Form 1 matters (charges alleging further breaches of Firearms Act) - 4y with NPP of 3y (partly cumulative).
Total sentence 8y 3m with NPP of 7y 3m.
The evidence to support the allegation in count 1 was substantially found in the transcripts of 405 calls made to or from respondent's mobile phone, which had been lawfully intercepted by the NSW Crime Commission & which evidenced the criminal conduct in which respondent was engaged at that time. The conduct related to his involvement with different types of prohibited drugs, his unlawful custody of property & illegal possession of firearms.
Count 2 arose as a result of police stopping respondent's motor vehicle. On the front seat was a small black bag containing a loaded .32 calibre pistol & a further 8 rounds of ammunition. Also in the bag were items indicative of the supply of drugs, a significant amount of amphetamine & a quantity of jewellery in plastic bags. A search of respondent's wallet revealed $780 & a piece of paper listing amounts of chemicals. The respondent was also in possession of the mobile phone upon which the intercepted calls had been made or received.
Guilty pleas - delay in lodging appeal - delay in matter being heard by the Court.
Patent & latent errors - sentencing judge mistaken as to maximum penalty for offence on 1st count - failure to reflect offences on Form 1 when imposing sentence on 1st count - error in understanding of respondent's criminal record - discount given for guilty plea excessive - whether sentences manifestly inadequate.
Appeal allowed:
In respect of count 1 & related Form 1 matters, resentenced to 8y with NPP of 6y; in respect of count 2 & related Form 1 matters, sentenced to 6y with NPP of 2y 3m.
New total sentence of 11y with NPP of 8y 3m.
281

GAR - CCA, 19.8.2003
Spigelman CJ, Bell J, Miles AJ
Citation: R v GAR [2003] NSWCCA 224
Conviction appeal and application for leave to appeal against sentence.
Sexual intercourse without consent.
6y with NPP of 4*y.
Appellant was charged with having detained his ex-wife for advantage, as well as the above offence. He was acquitted on the detain for advantage count & was found guilty on the count alleging sexual intercourse without consent. The trial judge was not asked to give a direction consistent with the direction outlined by Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82.
Inconsistent verdicts - evidence of complaint - whether misdirection given - whether Markuleski direction required - failure to give Longman warning - failure to give direction regarding witnesses not called - limits of Jones v Dunkel direction in a criminal trial - whether sentence excessive.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
282

HILL, Paul Geoffrey - CCA, 23.9.2003
Meagher JA, Hulme & Hidden JJ
Citation: Hill v R [2003] NSWCCA 16
Sentence appeal.
Manslaughter.
8y with NPP of 6y.
Applicant was originally charged with murder. He pleaded guilty to manslaughter & the Crown accepted that plea. Applicant was the de facto of the mother of the 2 year old deceased child. The deceased suffered multiple injuries & brain damage. The Crown case relied on both direct & circumstantial evidence contained in the statement & evidence of the child's mother, as well as some circumstantial evidence from various witnesses. There was evidence of the applicant abusing the deceased, as well as evidence of the mother abusing her children.
Failure to seek medical treatment when child was in dire need of medical treatment due to severe brain damage productive of vegetative state - guilty of manslaughter by way of criminal negligence - failure in duty of care.
Aged 23 at time of offence - has abused alcohol since age 13 - grew up in environment where parents abused alcohol - had been a heavy marijuana user - priors include assault, malicious damage, goods in custody, BE&S.
Credibility of evidence from victim's mother - mother's prior inconsistent statements - satisfaction of burden of proof - findings in aggravation of sentence - parity.
Appeal allowed: resentenced to 6y with NPP of 4*y.
283

ZELUKIN - CCA, 17.9.2003
Beazley JA, Hidden J, Carruthers AJ
Citation: R v Zelukin [2003] NSWCCA 262
Sentence appeal; application for extension of time to appeal against conviction.
Aggravated dangerous drive occasioning death.
5y with NPP of 3y.
Guilty plea.
Applicant was driving his utility south on a stretch of road near Canberra. Major roadworks were being carried out at the time. The section of road near where the accident occurred diverged from dual to divided lanes & then to single lanes for both north & south-bound traffic. A large dirt area divided the lanes. Applicant's vehicle traversed the dirt strip, went onto the north-bound lane & hit an oncoming vehicle, with applicant's vehicle mounting the bonnet of that vehicle & the bull-bar penetrating the cabin area. The driver of that vehicle was killed instantly.
A breathalyser test at the scene of the accident returned a reading of .085. A blood sample later taken in hospital returned a blood alcohol reading of .156 grams per 100 millilitres. The sample of blood also returned a drug reading of Delta 9THC .029 milligrams per litre & Delta 9THC acid greater than .10 milligrams per litre. A small quantity of cannabis leaf was found in a cigarette packet in applicant's shirt pocket.
Withdrawal of guilty plea - findings of fact - whether sufficient evidence to substitute lesser verdict - whether miscarriage of justice - whether sentence excessive.
Application for extension of time to appeal against conviction dismissed.
Sentence appeal dismissed.
284

JAOUHAR, Masoud - CCA, 15.9.2003
Hidden & Greg James JJ, Newman AJ
Citation: R v Jaouhar [2003] NSWCCA 266
Sentence appeal.
Knowingly take part in the manufacture of a commercial quantity of methylamphetamine.
6y with NPP of 3y, to be served in a Juvenile Detention Centre.
The arrest & charging of the applicant & his co-offenders came about as a result of a comprehensive police surveillance operation. Applicant was an active participant in the process of manufacturing methylamphetamine.
Aged 17 at time of offence - guilty plea - at time of offence was in breach of a bond imposed in the Children's Court for robbery in company.
Co-offenders - parity - youth - whether properly taken into account.
Appeal dismissed. The Court confirmed the order that the whole of the NPP be served in a Juvenile Justice Centre.
285

CHIN, Jason Chong Hun - CCA, 29.8.2003
Mason P, Hidden & Shaw JJ
Citation: R v Chin [2003] NSWCCA 267
Sentence appeal.
1 x supply commercial quantity ecstasy; 1 x supply cocaine; + Form 1 offence (goods in custody).
Total of 6y with NPP of 3*y.
The 1st charge involved applicant supplying ecstasy tablets to a number of men over a 4 month period. It was estimated that he supplied a little under 478 grams during that time. Upon arrest, applicant was in possession of $7,000, which formed the goods in custody charge on the Form 1. The 2nd charge arose from applicant supplying cocaine (approx 4* grams) over a period of about a month. He also offered to supply 29 grams of cocaine.
Aged 25 at time of offences - severe gambling problem - need to repay a friend & family members who had covered earlier gambling debts - some drug abuse.
Parity - whether sentences excessive.
Appeal dismissed.
286

TOTTEN, Graham Sherne - CCA, 14.8.2003
Sheller JA, James & O'Keefe JJ
Citation: R v Totten [2003] NSWCCA 207
Sentence appeal.
1 x aggravated indecent assault with child under 16 - 18m FT (commencing 12.9.2002);
1 x sexual intercourse with child aged between 10 & 16 under authority - 5y 4m with NPP of 4y (commencing 12.9.2002).
Complainant was aged between 10 & 12 at time of offences. She made complaint to her mother but the mother did not believe her. Approximately 1 year after complaining to her mother, complainant reported the incidents to police. She then went to live with her father. Police arrested & charged applicant 14 months after the complainant reported the incidents to them.
Guilty plea - character evidence - no relevant criminal history.
Delays - protective custody - special circumstances.
Appeal allowed: sentence of 18m confirmed for the indecent assault count;
sentence for sexual intercourse count quashed; resentenced on that count to 5y with NPP of 3*y (commencing 12.9.2002).
287

RITCHIE, Geoffrey Robert - NSW SC, Barr J, 19.9.2003
Citation: R v Ritchie [2003] NSWSC 864
Remarks on Sentence.
Murder.
Offender was the 55 year old adopted son of the deceased & her late husband. He had been living with the deceased for a year following the failure of his marriage. He killed the deceased by holding a pillow over her face until she suffocated. The deceased was 87 years old & in very poor health, suffering from ischaemic heart disease, poor blood circulation, difficulty in breathing & increasing blindness. After killing the deceased, the offender put her body into the back of his car, drove out to bush land & left her body there, covered with branches. He told people that the deceased had wandered off & had been taken away by others or had been kidnapped.
Substantial impairment by abnormality of mind.
Sentenced to 15y with NPP of 11y 9m.
288

RIDDELL, Bruce - CCA, 9.9.2003 140 A Crim R 549
Hidden, Greg James & Bergin JJ
Citation: R v Riddell [2003] NSWCCA 251
Appeal pursuant to s.5 Criminal Appeal Act 1912 against a special verdict under s.38 Mental Health (Criminal Procedure) Act 1990.
Attempt murder; malicious wounding with intent to do GBH.
Applicant represented himself on appeal. He claimed he had assaulted the victim because of the victim having assaulted him & not because of mental illness. Applicant complained that his trial counsel had denied him the right to show that he was not mentally ill.
Serious psychiatric illness - mentally ill at time of offences - schizophrenic illness - delusional beliefs - auditory hallucinations.
Availability of appeal - 'raising' of mental illness defence - effect of s.7(4) Criminal Appeal Act 1912 - consequence if found mentally ill on appeal.
Appeal dismissed.
289

STANLEY, Anissa Maude - CCA, 19.8.2003
Spigelman CJ, Sully & Hidden JJ
Citation: R v Stanley [2003] NSWCCA 233
Sentence appeal.
Assault with intent to rob whilst in company.
3y with NPP of 2y.
Applicant accosted the victim in the early afternoon. The victim knew the applicant, as they both resided in Wellington. The applicant persuaded the victim that she could get him some cheap beer & the victim withdrew some cash from an ATM. Meanwhile, the applicant made contact with her 2 female co-offenders who had up until this time remained concealed. The applicant then persuaded the victim to walk away from the shopping area with her. The 2 co-offenders followed. The co-offenders then joined up with the applicant & the victim. As they were all walking along together, the 3 females grabbed the victim & threw him to the ground & tried to get his wallet. Police, who had witnessed the whole incident, apprehended the 3 females. The victim suffered some abrasions.
The sentencing judge applied the guideline in R v Henry (1999) 46 NSWLR 346.
Aged 18 years & a little under 7 months at time of offence - Aboriginality - disadvantage - prior offences.
Whether error in sentencing judge characterising applicant as 'ringleader'- whether error in applying Henry.
Appeal dismissed.
290

GARDNER, Ricky - CCA, 13.8.2003
Sheller JA, James & O'Keefe JJ
Citation: Gardner v R [2003] NSWCCA 199
Sentence appeal.
Assault with intent to rob whilst armed with dangerous weapon; robbery whilst armed with dangerous weapon; + Form 1 offences (4 x AOABH; take & drive conveyance without consent; drive manner dangerous; drive whilst unlicensed; escape from lawful custody).
Total of 8y with NPP of 5y. Disqualified from holding a driver's licence for life ('never to be issued with a licence to drive any motor vehicle').
Applicant & his co-offender went to the victim's home & demanded drugs from him. Both applicant & the co-offender had been drinking heavily. Applicant was armed with a sawn-off .22 calibre rifle. The victim struggled with the applicant & the rifle discharged, however, no-one was injured. Applicant & his co-offender left the scene & shortly thereafter arrived at a take-away restaurant where they threatened a teenage employee & took his car. Items of property from the car were later pawned.
Aged 23 at time of offences - guilty plea - limited assistance to authorities - limited contrition - poor record - multiple priors - previous imprisonment.
Whether error in failure to adequately discount sentence for guilty pleas & assistance to authorities - whether error in ordering disqualification from holding MV driver licence for life.
Appeal dismissed, except in relation to disqualification of licence. Order disqualifying applicant from holding MV driver licence for life quashed; in lieu thereof, applicant disqualified from holding such licence until 2.2.2017.
291

HOANG, Chien Van - CCA, 28.8.2003
McColl JA, Grove & Dowd JJ
Citation: R v Hoang [2003] NSWCCA 237
Sentence appeal.
Manslaughter; assault; affray.
Total of 10y with NPP of 6y
Applicant was a member of a gang. An associate of the gang was attacked by persons believed to be members of a rival gang. Applicant's gang sought to avenge that attack. They attacked the one victim, the applicant punching him in the stomach & his co-offender stabbing him in the shoulder. Other members of the gang attacked the other victim by throwing bottles at him, hitting him with pool cues, as well as punching & kicking him. Applicant & his co-offender then joined in this attack. The applicant stabbed the victim in the back with a small pocket-knife given to him by his co-offender. This Co-offender inflicted the fatal stab wound which was 130mm deep & penetrated the victim's heart & lung. This co-offender was found guilty of murder. Neither victim was a member of the rival gang.
Applicant was aged 15 at the time of the offences.
Failure to comply with s.25 Children (Criminal Proceedings) Act 1987. Although a pre-sentence report was ordered & prepared & subsequently admitted in evidence, examination of the report showed that there had not been strict compliance with Regulation 6(d), (e) & (f) of the Act.
Appeal allowed: sentences quashed, matter remitted to trial judge for re-sentencing.
292

PROCHILO, CCA, 19.9.2003
Beazley JA, Greg James J, Smart AJ
Citation: R v Prochilo [2003] NSWCCA 265
Conviction appeal.
Supply prohibited drug (cannabis).
2y 3m with NPP of 1y.
The Crown case was that appellant & his co-offender were engaged in the supply of cannabis in Deniliquin. To prove its case the Crown relied on surveillance & some circumstantial evidence, but mainly on 57 telephone intercepts of conversations between suppliers & the co-offender, as well as those between appellant & the co-offender. A study of each of the 57 tapes established that the co-offender & the appellant were jointly engaged in a business of purchasing cannabis supplies from wholesalers in Melbourne & elsewhere & selling cannabis to local customers.
Proof of joint enterprise - whether directions confusing - whether directions on 'supply' sufficient - whether error in admitting challenged evidence & in directions given as to its use.
Appeal dismissed.
293

COLLINS, Nathan Dennis - CCA, 1.9.2003
Dunford & Greg James JJ
Citation: R v Collins [2003] NSWCCA 244
Sentence appeal.
1 x dangerous drive occasioning GBH; + Form 1 offences (drive whilst disqualified; failure to stop).
4*y with NPP of 3y 4*m.
The evening before the offence, a large party was held near applicant's home. Early the following morning a man knocked on applicant's door & alleged that he had stolen his car. An argument took place & applicant struck the man with a baseball bat. The man ran back to the party. The man's girlfriend left the party & walked past applicant's house. An argument developed between her & the applicant. The applicant's girlfriend punched the woman & she fell to the ground. A large group of people, including the man who had been struck with the baseball bat, approached applicant's house. Applicant got into his car, shouted at them & reversed out of the driveway. Someone from the group threw a metal pole at the car, which hit the driver's side of the roof. The car drove off at high speed & narrowly missed a small group of people on the nature strip when it mounted the gutter & collided with a water main. Applicant then drove to an intersection, turned the vehicle around & accelerated back down the street, mounting the gutter near where another group of people were standing. Most managed to jump clear, except one man who was struck on the leg. His leg was broken in 7 places. Applicant, who was a disqualified driver, drove off & failed to stop.
Rage driving - many people in the area - provocation - prior criminal record including similar offences - extenuating circumstances - guilty plea - prospects of rehabilitation.
Failure to have regard to R v Jurisic (1998) 45 NSWLR 209 & R v Whyte [2002] NSWCCA 343. 55 NSWLR 252. - failure to allow sufficient discount for guilty plea - whether sentence excessive.
Appeal allowed: resentenced to 3y 3m with NPP of 2y 3m.
294

KUMAR, Daniel - CCA, 29.7.2003
Ipp JA, Hulme & Buddin JJ
Citation: R v Kumar [2003] NSWCCA 254
Crown appeal.
Use offensive weapon (a MV) with intent to commit an assault; use offensive weapon (a MV) with intent to maliciously inflict GBH.
Total of 20m with NPP of 8m.
Respondent pleaded guilty to the above charges.
Respondent received a phone call from his girlfriend's brother, suggesting respondent join him at a park. Respondent borrowed his father's car & drove to the park & met up with his friend & another man. While there, they observed respondent's girlfriend with the victim. An argument took place between respondent, his girlfriend & the victim, which culminated in the girlfriend & victim walking off together. Respondent followed them in his vehicle then drove towards the victim. The vehicle struck the victim on his right knee & he was thrown over the bonnet & onto the front lawn of a house. After some time, a fight took place & respondent tried to take his girlfriend's hand & lead her away. She refused to go with him. Respondent & the 2 other men drove away. The victim & the female had resumed their walk, when respondent again drove his vehicle towards the victim. The vehicle hit the victim & then collided with a brick wall. Respondent & his 2 companions ran towards the victim, who was lying face down on the ground. The victim felt 2 impacts to the back of his head & saw respondent standing over him, holding a brick. There was some evidence of the victim being kicked.
The sentencing judge declined to find beyond reasonable doubt that the harm which the victim suffered was as a result of the impact of the respondent's vehicle.
Whether sentences manifestly inadequate.
Appeal dismissed.
295

NYKOLYN, Daniel Anthony - CCA, 12.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Nykolyn [2003] NSWCCA 229
Sentence appeal.
1 x drive in manner dangerous - 8m FT;
1 x use offensive weapon to prevent lawful apprehension (MV) - 5y 10m with NPP of 2y 11m (cumulative);
1 x steal MV - FT 1y (concurrent);
1 x drive whilst unlicensed - FT 6m (concurrent).
Total of 6*y with NPP of 3y 7m.
Each of the offences formed part of a single incident. Applicant was arrested the same day & spent 20 weeks & 3 days in custody before release to bail. Police were conducting an unrelated surveillance operation, when they became aware of applicant driving a stolen MV. When applicant noticed that they were following him, he initially slowed down & moved towards the kerb. He then accelerated & drove at speeds between 80 & 100 kph, failing to give way to other vehicles where required, weaving in & out of traffic. At one point, he drove for 30 metres on the footpath. Two police officers had positioned themselves on the footpath, their guns drawn & aimed at the applicant's vehicle, however, fearing for their safety, they were forced to leap clear of the car as the applicant continued towards them without stopping. The police pursuit was terminated & the applicant was later arrested by other police who had sighted the stolen vehicle. They followed the applicant on foot & arrested him in a nearby laneway. Applicant had never held a NSW driver's licence.
Whether proper account taken of pre-sentence custody - whether error in assessing maximum penalties - whether sentences imposed were individually & in combination manifestly excessive.
Appeal dismissed on steal MV count;
Appeal allowed on the following:
Drive in manner dangerous - FT 4m; drive whilst unlicensed - 5 penalty units; use offensive weapon - 4y 9m with NPP of 2y 9m. Sentences ordered to be served concurrently.
296

CRAWT, John William - NSW SC, Greg James J, 23.9.2003
Citation: R v Crawt [2003] NSWSC 880
Judgment on admissibility of evidence.
Pending murder trial - pre-trial ruling as to material objected to as irrelevant or to be excluded on the basis that the prejudicial effect outweighed the probative value.
Ruling: Subject to dealing with individual passages noted on the transcript, & on the evidence before the trial judge, a determination was made that the material was relevant & admissible & was not to be excluded.
297

M - CCA, 6.8.2003
Hulme & Simpson JJ
Citation: R v M [2003] NSWCCA 218
Sentence appeal.
12 x sexual offences (sexual intercourse with person under 10; incite person under 16 to commit act of indecency; aggravated sexual intercourse without consent; aggravated act of indecency; publish indecent article (images of 2 children performing sexual acts); aggravated sexual intercourse with person under 16 without consent); + 16 further offences on a Form 1 (incite person under 16 to commit act of indecency; aggravated indecent assault; act of indecency; possess child pornography).
Total of 7y 9m with NPP of 4y.
The complainants were boys & their ages were 5, 7, 8, 9, 10, 11 & 14 at the time of the offences. Offences took place from 1.9.2000 to 20.4.2001.
Aged just under 17 to 17* at time of offences - guilty plea - 'bright'& 'intelligent'- no prior convictions.
Principles in Pearce - whether error in setting sentences - remorse - failure to discount sentence - insufficient weight given to co-operation with authorities - error in assessment of applicant's sexual & emotional development - insufficient weight given to pre-existing depression - error in not ordering that sentence be served in a juvenile detention centre until age 21 - whether sentence manifestly excessive - special circumstances.
Appeal allowed: resentenced to total of 5y with NPP of 2*y.
Order made that the whole of the NPP be served in a detention centre, notwithstanding applicant attaining age of 18.
298

MORGAN, Darren - CCA, 20.8.2003 57 NSWLR 533
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Morgan [2003] NSWCCA 230
Sentence appeal.
Robbery in company; B&E with intent; AOABH.
7*y with NPP of 6y.
The robbery in company was committed when the victim, who had left a hotel for some fresh air, was attacked by applicant & his companion & knocked to the ground. The offenders stole his wallet, which contained $1,200. The victim suffered swelling & bruising to his eyes, as well as abrasions. The appellant was arrested soon after but was released. He was later charged with the offence, by which time a "match" had been found between the DNA of the victim & blood found on applicant's clothing. The B&E with intent & the AOABH occurred 3 months later when applicant arrived at premises occupied by 2 men. He accused one of the men of spending time with his girlfriend before head butting & slapping him. He then took hold of a kitchen knife & forced the other man to undress & lie motionless on the floor & repeatedly threatened to cut him up. He repeatedly swung the knife at the victim, cutting his hands, slashing his fingers, back & eyebrow. On other occasions he held a knife to his throat & nose & stomped on his face with his boot. Applicant then forced the victims to accompany him in a stolen car. After a while the 1st victim managed to escape, but the 2nd victim was forced to remain with the applicant until his arrest the following day.
Aboriginal - largely unemployed - deprived upbringing - intimidating, violent & alcoholic father - school attendance poor because of repeatedly running away from home to avoid abusive father - early experimentation with drugs & alcohol - good part of early life spent in boys' homes or correctional centres - multiple priors - previous imprisonment.
Discount for guilty plea - Fernando considerations - whether sentence excessive - Form 1 offences - totality.
Appeal allowed: resentenced to total of 6y with NPP of 4y.
299

PARKER - CCA, 25.9.2003
Beazley JA, Adams J, Miles AJ
Citation: R v Parker [2003] NSWCCA 270
Application for leave to appeal against sentence.
12 x BE&S; 3 x take & drive a conveyance without consent; 5 x larceny; + 8 Form 1 offences, including 2 x BE&S.
Total of 6*y with NPP of 4*y.
The sentences imposed were partly cumulative. The NPP was 77% of the aggregate sentence.
No actual details of offences given in the judgment. Applicant, aged 33 at the time of sentencing, had pleaded guilty to the above offences. He had a lengthy criminal history & had been on parole for a mere 2 months at the time of offending, having just served 5 years for similar offences.
Whether error in imposing a NPP greater than 75% of sentence - co-operation with police.
Leave to appeal refused.
300

MAILES, Graham Edward - NSW SC, Wood CJ at CL, 1.8.2003 142 A Crim R 353
Citation: R v Mailes [2003] NSWSC 707
Limiting Term - s.23(1) Mental Health Criminal Procedure Act
Sentencing - murder - convicted of murder at special hearing - s.23(1) Mental Health Criminal Procedure Act - assessment of appropriate limiting term.
Formal findings & orders:
'1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the defendant has been found to have committed, I would have imposed a sentence of imprisonment;
2. I nominate a limiting term in respect of that offence of 25 years to commence from 28 March 1996, being the date from which the defendant has been held in custody;
3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act, I refer the defendant to the Mental Health Review Tribunal;
4. Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre'.
301

HUYNH, Tai Van - CCA, 1.9.2003
Dunford & Greg James JJ
Citation: R v Huynh [2003] NSWCCA 239
Sentence appeal.
Robbery in company; AOABH.
Total of 9y with NPP of 6y.
Applicant & his co-offender accosted the victim shortly after he left a train at Lidcombe railway station. The co-offender told the victim he had a knife & said he had to go with them. The co-offender took the victim's wallet & mobile phone & demanded that he tell him his personal identification number for his phone, which the victim did. After walking for a while, they came upon some people walking towards them. After they passed, the victim ran off, hoping to escape. Applicant & his co-offender ran after him & caught him, whereupon they assaulted him. The assault took place in a driveway just as a woman was driving her car into the driveway. Despite this woman's presence, the applicant & his co-offender continued their assault upon the victim, during which the applicant put his hand on the driver's side of the bonnet of the car, leaving a fingerprint on it which linked him positively to the robbery & assault. The victim lost his wallet containing his identification papers, $40 Australian, $1,000 Hong Kong & his mobile phone. The victim suffered considerable injury as a result of the punching & kicking by applicant & his co-offender & was hospitalised in an unconscious state. Applicant was on parole at the time of these offences.
Subjective circumstances - cumulation of sentences - whether sentences excessive.
Appeal allowed: resentenced to total of 7*y with NPP of 5y.
302

TIMMIS, Michael Anthony - CCA, 20.6.2003
Hodgson JA, Simpson & Greg James JJ
Citation: R v Timmis [2003] NSWCCA 158
Sentence appeal.
Accessory after the fact to BE&S; receive stolen MV; larceny of MV; + Form 1 offences (BE&S, larceny of MV, possess housebreaking implements, B&E with intent to steal).
Total sentence of 4*y with NPP of 2y 3m.
Applicant used bolt cutters to enter chained, padlocked gates & open a padlocked shipping container. He removed a vehicle from the container, loaded some tools into the vehicle & drove it home, where he fitted some stolen registration plates to it & used it as his own. Police apprehended him following a car chase. Three men broke into a game fishing accessories business & stole property to the value of $76,000. Shortly after this, police saw appellant driving a stolen car which had been given to him by the 3 men & which had been used to assist them in their offence.
Aged 41 at time of most offences - supportive, loving family - married, although separated since arrest - 4 children - excellent father - highly qualified & respected plant mechanic - financial difficulties causing family home to be threatened - genuine remorse - on bail for 3 offences when final Form 1 offences committed - priors include BE&S, unlicensed driving, PCA, use registration plates calculated to deceive - no previous imprisonment - history of abuse of conditional liberty.
Whether special circumstances - guideline judgment Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 - quantifying Form 1 offences.
Appeal dismissed.
303

KMB - NSW SC, Bell J, 23.9.2003
Citation: R v KMB [2003] NSWSC 862
Remarks on Sentence.
Manslaughter.
Offender stood trial for murder. The jury returned a verdict of not guilty of murder but guilty of manslaughter. The deceased was the offender's uncle. The offender inflicted a large number of punches to his head & chest & a number of forceful kicks to his body. The assault lasted some 10 minutes. The deceased had engaged in sexually inappropriate behaviour in the presence of the offender's 4 year old child in the period immediately preceding the fatal assault. The deceased was a frail man in his fifties & took no action to protect himself during the assault. He was suffering from fronto-temporal dementia & at the time of his death he had the mental capacity of a child. He was also suffering from severe coronary artery disease & was at risk of sudden death at any time. A post mortem revealed extensive bruising to deceased's trunk & 13 broken ribs. Most of the rib fractures were recent, with 3 rib fractures estimated to have occurred 24 to 72 hours prior to death. One of those fractures was associated with a laceration of the lung. Two neighbours gave evidence that on the day before the killing they saw the offender assault the deceased outside the house & then drag him into the house. Two issues were central to the trial: causation & provocation.
Aged 32 at time of offence - tall, athletic.
Sentenced to 6y with NPP of 3*y.
304

SHILLINGSWORTH, Richard Frederick Brian - CCA, 26.9.2003
Meagher JA, Sully J, Smart AJ
Citation: R v Shillingsworth [2003] NSWCCA 272
Conviction and sentence appeal.
B&E dwelling knowing it was occupied; sexual intercourse without consent.
Total of 7y with NPP of 4y.
The Crown case was that the appellant broke into the home of the complainant by opening & entering through a door. He then proceeded to the main bedroom & raped the complainant whilst she was in bed with her husband. Both the complainant & her husband were asleep at the time. The complainant woke up to find the appellant on top of her, whereupon she screamed. This woke her husband, who punched the appellant.
Mental element - evidence of complaint, distress - inconsistencies - whether errors in summing-up - whether sentence excessive.
Appeals dismissed.
305

YOUNG, Jeremy Nathan - CCA, 1.10.2003
Hidden & Greg James JJ, Smart AJ
Citation: R v Young [2003] NSWCCA 276
Sentence appeal.
Steal from the person.
4y with NPP of 18m.
The 13 year old victim & 3 of his friends were camping near the Broken Hill Speedway & were sitting around a camp fire when the applicant & another man entered the camp site. The applicant stole a mobile phone & money from the victim. There was evidence of applicant exhibiting irrational mood swings & threatening behaviour.
Aged 23 at time of offence - disturbed upbringing - long-standing problem with drugs - alcohol use - remorse - priors include armed robbery & other offences of violence - previous imprisonment.
Appeal allowed: resentenced to 3y with NPP of 18m.
306

JOYCE, James Patrick - CCA, 29.9.2003
Tobias JA, Howie & Shaw JJ
Citation: R v Joyce [2003] NSWCCA 280
s.5F appeal against interlocutory judgment refusing permanent stay of an indictment charging applicant with 2 counts of dangerous drive occasioning GBH. A temporary stay of the indictment was allowed in order to allow applicant 9 months to raise finances to afford legal expenses.
Principles in Dietrich (1992) 177 CLR 292.
Leave to appeal refused.
307

McBRIDE, Andrew James - CCA, 3.10.2003 143 A Crim R 246
Foster AJA, Grove & Dowd JJ
Citation: R v McBride [2003] NSWCCA 282
Crown appeal.
1 x knowingly take part in manufacture of prohibited drug (pseudoephedrine); + Form 1 offences (deemed supply pseudoephedrine; deemed supply cannabis leaf). Guilty plea.
500h CSO.
Police executed a search warrant at respondent's premises & found a total of 823.4 grams of cannabis leaf in his wardrobe. An additional 1.5 kgs of leaf (mainly stems) was located in the garage, but not attributed to the respondent. In respondent's wardrobe they found (in a paste rock form) 386.1 grams of pseudoephedrine with a purity of 49.5%. Traces of pseudoephedrine were also found in items in the kitchen & around the house. Blister packs containing 810 Sudafed tablets were located in the pantry & a further 168.3 grams of tablets in 2 plastic bags in the lounge room. In a shed at the back of the premises were buckets & pots containing pseudoephedrine in paste form & paraphernalia used in the manufacture of drugs. Respondent claimed to have not known that the possession of pseudoephedrine was illegal. Respondent had been in custody for 23 days before bail was granted, which was taken into account on sentence. At the time of the Crown appeal, respondent had served 80 hours of community service.
On appeal, the Crown submitted that, having accepted the respondent's claim that he had no knowledge that pseudoephedrine was prohibited, the sentencing judge should have rejected the plea of guilty.
Error in sentencing discretion - finding of fact - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 1y 8m PD with NPP of 1y 3m.
308

MORGAN, Leonard James - CCA, 3.10.2003
Greg James & Howie JJ, Smart AJ
Citation: R v Morgan [2003] NSWCCA 284
Sentence appeal.
Count 1: sexual intercourse with person under 16 (12); + 2 offences on a Form 1 - FT 3y 9m;
Counts 2-6: sexual intercourse with person between ages of 10 & 16 (12) - 3y with NPP of 3m, cumulative upon sentence for count 1.
Applicant believed the complainant was over 16. He immediately ceased the relationship when he was told that she was 'only about 14'The judge accepted that the intercourse was consensual & that there was no suggestion of any force or violence.
Aged 27 at time of offences - Aboriginal - guilty plea - alcohol & amphetamine abuse - disadvantaged upbringing - taken from mother at age 10 - time spent in various relatives' homes - a lot of violence in the homes, a lot of alcohol, not much food - possibility of psychotic illness - long history of offending, commencing at age 10 - previous imprisonment - most of life spent in custody.
In fixing overall sentence, error in not taking harsher custodial conditions into account - correct application of principle of totality - Bavadra 115 A Crim R 152; Pearce (1998) 194 CLR 610.
Appeal allowed: resentenced to 3y 9m with NPP of 2y 9m on count 1 (+ Form 1 offences); on each of counts 2-6, a concurrent sentence of 3y with a NPP of 9m, cumulative upon NPP for count 1.
309

RUIZ-AVILA, Robert Marck - CCA, 26.9.2003 142 A Crim R 459
Hidden & Greg James JJ, Newman AJ
Citation: R v Ruiz-Avila [2003] NSWCCA 264
Conviction appeal on counts 2 & 3; sentence appeal on count 1.
Count 1: knowingly take part in supply of cannabis leaf;
Count 2: knowingly take part in supply of ecstasy;
Count 3: knowingly take part in cultivation of cannabis.
Total of 2y 2m with NPP of 17m. At time of appeal, appellant had already served over 10m of the sentence.
The Crown case was that appellant signed a lease on a unit, however, there was evidence that although he paid the rent & had the keys to the unit, he did not live there. There was evidence that several other men had access to the unit but there was no evidence that appellant had sub-let it. As a result of a complaint of a pungent odour emanating from the unit, police entered the unit, armed with a search warrant. A large quantity of cannabis was found in various places within the unit, some cannabis hanging from metal racks. Police found equipment for drying it & securing it in heat-sealed plastic bags. They also found a large set of electronic scales & equipment used in the cultivation of cannabis. The finding of this material gave rise to the 1st & 3rd counts. The 2nd count arose as a result of them finding plastic bags containing a total of 323 ecstasy tablets in a cutlery drawer in the kitchen.
Requirement of knowledge - whether verdicts unreasonable.
Conviction appeal allowed in relation to counts 2 & 3: verdicts of acquittal entered on those counts.
Sentence appeal allowed on count 1: sentence reduced to 10m & commencement date varied, resulting in the sentence having expired. Appellant's immediate release ordered.
310

ROYAL, Colleen Veronica - CCA, 29.9.2003
Wood CJ at CL, Greg James & Howie JJ
Citation: R v Royal [2003] NSWCCA 275
Crown appeal.
Dangerous drive causing GBH.
16m with NPP of 4m.
Respondent was travelling uphill into a moderate left-hand bend when her vehicle crossed the double unbroken centre line, headed towards oncoming traffic & collided with the victim's vehicle. The victim was trapped for more than an hour before being flown to hospital by helicopter. He sustained serious injuries. Police attending the scene of the accident found a brown paper bag containing numerous syringes in the respondent's vehicle. They searched respondent's backpack-style bag & found $200 in cash, 6 sachets of white powder, alcohol wipes, 2 capped syringes filled with clear liquid & a small quantity of cannabis. Paramedics treating the respondent noticed needle marks on the inside of her elbows. Analysis of the white powder indicated the presence of a total of 5.73 grams of methylamphetamine. Each of the 2 syringes with liquid contained methylamphetamine. A blood sample taken from respondent in hospital showed she had 0.13 milligrams per litre of amphetamine & 1.2 milligrams per litre of methamphetamine in her blood. A pharmacologist referred to the concentration of methamphetamine as 'in the toxic to fatal range'& the amphetamine as being 'above any therapeutic level'.
Early guilty plea - no prior criminal history.
Serious offence - sentence not supported on any view of the facts - sentencing discretion infected with errors - sentence imposed inadequate to a degree that would have justified interference by the CCA - failure to reflect objective seriousness of offence or denounce respondent's conduct - general deterrence.
Error in view that matter could have been dealt with in the lower court - sentence & NPP manifestly inadequate - NPP disproportionately short - guideline judgment - Jurisic (1998) 45 NSWLR 209; Whyte (2002) 55 NSWLR 252.
Appeal dismissed.
311

CHONG, Harry Pit Soen - CCA, 29.9.2003
Hidden & Greg James JJ, Newman AJ
Citation: R v Chong [2003] NSWCCA 274
Sentence appeal.
1 x supply ecstasy.
3y with NPP of 2y.
Police saw applicant leave some premises with 2 other males & enter a motor vehicle. When the vehicle reached the intersection, police stopped it & breath tested the applicant, which proved negative. The applicant produced his NSW driver's licence & a routine check was made upon the vehicle & applicant's licence. Certain information was received from the police radio, whereupon the applicant & the 2 male passengers were removed from the vehicle & searched. Police found $4,050 in a pocket of applicant's trousers & $790 in his wallet. Upon being cautioned regarding the money, he told police the cash was winnings from poker machines at the Star City Casino. Police then searched the vehicle & found 4 resealable plastic bags containing a total of 92 tablets. Upon being cautioned about the tablets, the applicant told police they were ecstasy tablets. He was then arrested.
Although the sentencing judge concluded that applicant's early guilty plea should attract substantial consideration for its utilitarian value, he did not quantify that consideration.
Aged 56 at time of sentence - early guilty plea - prior offences (1 x possess prohibited drug; 1 x use vehicle which did not comply with the standard - fines received for both offences).
Considerations mitigating length of NPP - first time in custody - elderly offender of prior good character - full utilitarian value for plea - prospects of & need for rehabilitation.
Appeal allowed insofar as NPP reduced to 18m.
312

KARNIB, Ahmed - CCA, 23.9.2003
Hidden & Barr JJ, Newman AJ
Citation: R v Karnib [2003] NSWCCA 271
Sentence appeal.
1 x conspire to receive stolen goods; conspire to dispose of stolen goods; 2 x receive stolen goods; + Form 1 offences.
3y PD.
The offences involved stolen laptop computers & accessories, as well as a steam cleaner. Applicant's one co-offender received 18m PD.
Early guilty pleas - assistance to authorities - good work history - minor criminal history.
Parity.
Appeal dismissed.
313

SCOTT, Peter Leslie - CCA, 7.10.2003
Tobias JA, Howie & Shaw JJ
Citation: R v Scott [2003] NSWCCA 286
Sentence appeal.
1 x wound with intent to do GBH; 2 x assault.
Total of 7y with NPP of 4y.
The wound with intent to do GBH was in the alternative to a count of cause GBH with intent to murder.
Having been disturbed by noise from a group of people leaving a party, applicant went onto his balcony & exchanged words with members of the group. He then went down to confront them & an argument developed. Applicant then returned to his apartment, armed himself with 2 kitchen knives & ran back onto the street. He slashed at one person with one of the knives but did not make contact. He chased another around a parked car while brandishing a knife. He then attacked another man & inflicted multiple stab wounds to his torso & upper body. The victim required abdominal surgery & spent some time in the intensive care ward. Applicant was also injured when, after stabbing the victim, other members of the group chased him. In his attempt to get away, he jumped a 10 metre wall & broke both ankles when he landed on a concrete driveway. He also sustained a compression fracture of the vertebrate, which required surgery. He remained in hospital for almost a month. Applicant was moderately to severely intoxicated by alcohol at the time of the offences.
Guilty plea - remorse - genuine, caring, warm, responsible person - well-regarded by family, friends, employer - violent conduct out of character - good rehabilitation prospects.
Whether error in assessment of appropriate discount for guilty plea & contrition.
Appeal dismissed.
314

RTI - CCA, 1.10.2003 58 NSWLR 438
Tobias JA, Howie & Shaw JJ
Citation: R v RTI [2003] NSWCCA 283
Conviction appeal.
Multiple sexual assault offences
2 indictments for sexual assault offences committed against 2 of appellant's daughters.
Total of 15y with NPP of 10y.
Appellant stood trial on 2 separate occasions. The above offences were committed against 2 of his daughters & were contained in 2 indictments. Appellant was to stand trial on 2 further indictments, one relating to allegations of sexual misconduct raised by his son, the other to allegations of a 3rd complainant. The question as to appellant's fitness arose following his 2nd trial.
Fresh evidence - mental state - fitness to stand trial - psychiatric & psychological evidence.
Appeal allowed: convictions quashed, new trial ordered on all charges.
315

GJW - CCA, 1.10.2003
Foster AJA, Grove & Dowd JJ
Citation: R v GJW [2003] NSWCCA 277
Conviction appeal and application for leave to appeal against sentence.
3 x AOABH; 1 x common assault; 1 x sexual intercourse with child between 10 & 16; 1 x sexual assault.
Total of 7y with NPP of 5y 3m.
The case at trial was full of claims & counter claims & contradictions between witnesses. There was also an issue as to whether complainant was seeking to blackmail appellant or whether he was seeking to persuade her to recant her allegations in return for payment.
Appellant resided on a property at Old Bar on which various habitations were located, including caravans & buildings. There was also some construction activity taking place on some buildings. Both the complainant (RL) & appellant gave evidence at trial. They gave differing accounts as to their first encounter as well as many other matters, but it was common ground that for a period RL resided at the Old Bar property.
In order to enable the development of the appellant's argument on appeal, the Court was informed that another girl (HS), who was RL's friend, also complained of sexual assaults by the appellant. Her complaints were the subject of a subsequent trial at which appellant was acquitted on all counts. Reference was also sought to be made to evidence given at that trial & to contrast it with evidence given or not given in the preceding trial.
New evidence - intermittent presence of visitors to property where sexual assault alleged to have taken place - credibility - issues of fact.
Conviction appeal dismissed; leave to appeal against sentence refused.
316

O'DRISCOLL, William Benedict - CCA, 1.10.2003
Spigelman CJ, Hulme J
Citation: R v O'Driscoll [2003] NSWCCA 281
Sentence appeal.
2 x defraud Commonwealth.
Total of 7*y with NPP of 5y.
Applicant had originally been convicted & sentenced for the above offence, as well as 16 offences of 'structuring' transactions: s.31(1) Financial Transaction Reports Act 1988 (Cth). A subsequent appeal resulted in the convictions on the 'structuring' charges being quashed & verdicts of acquittal entered: see R v O'Driscoll [2003] NSWCCA 166. Applicant's appeal against sentence for the defraud charges was based on the fact that in his remarks on sentence, the sentencing judge took into account the illegality of the structuring events in the sentences he imposed for the 2 fraud charges.
Whether sentences manifestly excessive.
Appeal dismissed.
317

WALKINGTON, Benjamin - CCA, 3.10.2003
Grove, Hulme & Greg James JJ
Citation: R v Walkington [2003] NSWCCA 285
Crown appeal.
Murder.
18y with NPP of 12y.
See R v Walkington [2003] NSWSC 517 for details.
Whether prior conviction for assault on victim can be disregarded when considering absence of prior record as a mitigating circumstance - degree of culpability - whether sentence manifestly inadequate - whether open to find special circumstances - whether ill-treatment of body after death 'gratuitous cruelty'.
Appeal dismissed.
318

JOUAYDE, Mohammed - CCA, 5.9.2003
Meagher JA, Sully & Kirby JJ
Citation: R v Jouayde [2003] NSWCCA 240
Sentence appeal.
2 x assault police officer in execution of his duty occasioning ABH; + 2 matters on a Form 1 (resist police officer in execution of his duty; use offensive language).
18m with NPP of 6m.
The offences resulted from an altercation following a minor traffic offence.
Guilty plea - special circumstances.
Parity - matter capable of being dealt with in LC - whether sentence excessive.
Appeal dismissed.
319

CLARK, Jon Joseph - CCA, 6.8.2003
Wood CJ at CL, Simpson & Adams JJ
Citation: R v Clark [2003] NSWCCA 288
Sentence appeal.
Drive in manner dangerous.
2y PD.
Applicant stopped at an intersection for some pedestrians, then commenced to turn. The victim, who was wearing earphones, stepped off the footpath onto the roadway. He appeared to be oblivious to the traffic. Applicant 'bipped'his horn, whereupon the victim made a rude gesture & thumped the bonnet of applicant's car. The victim then moved back towards the footpath, the applicant accelerated forward, knocked the victim down & ran over his leg, up to his chest, then reversed. The victim suffered multiple injuries to his legs & chest. The sentencing judge accepted that the applicant was moving slowly when the car hit the victim & that applicant was mildly intoxicated at the time.
Failure to specify NPP - failure to consider appropriate starting point for assessment of sentence to be imposed before allowing discount for guilty plea - whether sentence manifestly excessive.
Appeal allowed: 18m suspended sentence conditional upon entering a GBB.
320

JTB - CCA, 3.10.2003
Grove, Hulme & Greg James JJ
Citation: R v JTB [2003] NSWCCA 295
Conviction appeal.
Sexual misconduct towards a child.
Sentence not stated.
Applicant was found guilty upon 2 counts of sexual misconduct towards his granddaughter.
Complainant aged 8 at time of trial - assumption she could give evidence without being sworn - absence of relevant enquiries as to her understanding - statutory and common law requirements unfulfilled - failure to give s.165B direction - whether trial miscarried.
Appeal allowed: new trial ordered.
321

COTTER, Brett Allen - CCA, 1.10.2003
RUSSELL, Timothy
IREMONGER, Craig
ETER, Ahmed
Beazley JA, Hulme J, Carruthers AJ
Citation: R v Cotter & Ors [2003] NSWCCA 273
Crown appeals, as well as an application by Eter to appeal against severity of sentence.
2 x robbery in company.
Eter: total of 3y with NPP of 15m.
Cotter: total of 3y with NPP of 15m.
Russell: total of 2y suspended upon entering a GBB.
Iremonger: total of 2y suspended upon entering GBB.
Each respondent pleaded guilty to the above charges, which were in the alternative to 2 counts of robbery armed with a dangerous weapon.
Prior to his father's death some years before, Russell & his father had gone to the victim's property on shooting trips. His father had left some of his shooting equipment on the victim's property, including a stainless steel Ruger. After his father's death, Russell asked the victim for the return of the Ruger, however, he refused. Russell mentioned this at a party & some of the co-offenders offered to go to the victim's property to recover it. At the property, Eter produced what purported to be a police identification badge. Initially, only Eter & Cotter went into the house, Iremonger & Russell remaining in the car. After a while, Iremonger also went into the house. The victim & his female partner were ordered onto the floor & a towel was placed over their heads. They were shouted at & threatened. A number of firearms, ammunition, a bow with a quiver, a box of arrows & a hunting knife were taken, as well as money & other items. Russell remained out of sight but assisted in carrying the stolen items to the car.
Whether sentences inadequate.
Crown appeals dismissed.
Application by Eter granted, appeal dismissed.
322

GED - CCA, 16.10.2003 141 A Crim R 135
Studdert, Barr & Greg James JJ
Citation: R v GED [2003] NSWCCA 296
Conviction appeal.
2 x aggravated indecent assault; 1 x aggravated sexual assault without consent; 1 x aggravated sexual intercourse without consent.
Total of 2y with NPP of 18m.
Appellant was charged with 5 counts of sexual misconduct. The jury returned verdicts of guilty on counts 1-4 & a verdict of not guilty in relation to count 5. Complainant was a 14 year old who lived with his mother & 2 younger brothers. Appellant was an acquaintance of complainant's mother. Complainant made complaint to his mother about some of the incidents. He also made complaint to one of his brothers about 3 of the incidents. When interviewed by police, appellant denied having committed any of the offences. He did not give evidence at trial.
ROI tendered by Crown - failure of defence counsel to cross-examine Crown witnesses on assertions in interview - jury instructed it might consider such failure a concession assertions untrue - jury not instructed on other possible explanations for failure to cross-examine - accused's right to remain silent - whether trial miscarried.
Appeal allowed: new trial ordered.
323

SHEPHERD, Maurice Charles - CCA, 16.10.2003 142 A Crim R 101
Tobias JA, Howie & Shaw JJ
Citation: R v Shepherd [2003] NSWCCA 287
Sentence appeal.
Knowingly concerned in the importation of commercial quantity MDMA (ecstasy).
14y with NPP of 9y.
Applicant ran an importing/exporting business & had agreed with a friend & business associate to assist in importing 34.401 kgs of ecstasy contained in 480,000 tablets weighing 123 kgs. Applicant knew the co-offender owed a considerable sum of money to another man, as well as owing money to the applicant. Applicant was going to be paid $25,000 for his assistance. The ecstasy was hidden in freezer panels packed into crates & placed in a shipping container, which left Antwerp & arrived in Brisbane almost a month later. Customs officers searched the container & found the drugs. They removed all but 13,000 tablets & a controlled delivery was made. When giving evidence before the sentencing judge, applicant stated that his motivation for being involved was the repayment of his co-offender's debt & to assist him.
Guilty plea - assistance to authorities - inadequate discount allowed - whether sentence excessive.
Appeal allowed: resentenced to 11*y with NPP of 7y 4m.
324

P - CCA, 16.10.2003 142 A Crim R 94
Hidden & Barr JJ, Newman AJ
Citation: R v P [2003] NSWCCA 298
Sentence appeal (& extension of time).
Murder.
24* y with NPP of 18*y.
The above sentence was a re-determination of a life sentence originally imposed upon applicant in 1989, following applicant's conviction for the execution-type killing of a drug dealer. Whilst in prison, he was approached by an inmate who asked him if he knew anybody outside the prison who would be prepared to kill the inmate's wife's lover. He told the applicant he was prepared to pay $15,000 if the killing was successful. The inmate also approached another inmate with the same request. Applicant reported the matter to authorities. An undercover police operative was placed in the same cell as the applicant. The operative had sound recording equipment attached to his body. Eventually, the inmate made a similar proposal to the police operative. The inmate was charged with 2 counts of solicit to murder.
Aged 36 at time of original sentence - associate of criminals - addicted to drugs - difficult childhood, with alcohol & violence in the home - Illiterate - priors, including accessory after the fact to murder.
Assistance to authorities - failure to disclose assistance to sentencing judge - appropriate discount.
Application allowed: resentenced to 21*y with NPP of 16*y.
325

PECKHAM, Brent Paul - CCA, 3.10.2003
Hulme & Greg James JJ
Citation: R v Peckham [2003] NSWCCA 293
Sentence appeal.
Robbery armed with dangerous weapon.
8y with NPP of 6y.
The 45 year old victim was a cleaner at a tavern in Bathurst. Just after 6.00am there was a knock on the door. When she asked who was there, she was told "the police". She opened the door & was confronted by the applicant holding a sawn-off shotgun which he pointed at her. He said "Let me in. I want money or I will shoot you". He swung the shotgun upwards & discharged a shot into the air. He then pushed the victim & she fell onto her back. He again threatened her & pointed the shotgun at her. Applicant took cash & other items from the victim's handbag, including a credit card. He asked for her pin number. There was an ATM machine on the premises, but applicant was unable to gain access to it. He found a safe, put it on a trolley & wheeled it out of the building. Once he was outside, the victim locked the door & contacted police. Police conducted a search later that day upon applicant's premises & found some of the stolen items. Applicant was later arrested. The victim suffered anxiety, depression & stress.
Aged 37 at time of sentence - guilty plea - aboriginality - drug addiction - remorse - multiple priors - offending behaviour started at age 12 - previous imprisonment.
Whether sentence excessive - Henry referred to.
Appeal dismissed.
326

DUROCHER-YVON, Roland Steven - CCA, 20.11.2003 58 NSWLR 581; 142 A Crim R 489
Sheller JA, Sully & Howie JJ
Citation: R v Durocher-Yvon [2003] NSWCCA 299
Sentence appeal.
21 offences of dishonesty; + a further 180 offences on a Form 1.
7y 4m 2w, with NPP of 4y 7m 2w.
As a result of numerous fraudulent acts committed over the period 24.4.1999 to 19.9.2001, applicant obtained money & other financial advantages totalling $97,170.25, which was spent on living expenses, a holiday, luxury items, cocaine use & gambling. The sentencing judge determined that the applicant "likes to use other people's money in order to live the way that he wishes to live". He came to the conclusion that the applicant was "obviously a conman" & that he may be a pathological liar.
Aged 31 at time of sentence - on GBB or on bail at time of offences - criminal record, including a large number of dishonesty offences.
Fresh evidence - evidence of applicant entering protection after sentence imposed - whether the evidence should be received - relevance of protective custody to sentencing.
Appeal dismissed.
327

CIOBAN, Gheorge - CCA, 21.10.2003 139 A Crim R 265
Mason P, Hidden J, Smart AJ
Citation: Cioban v R [2003] NSWCCA 304
Sentence appeal.
Count 1: Manslaughter - 8y with NPP of 5y (partly concurrent with sentence on count 2);
Count 2: Maliciously discharge firearm with intent to do GBH - 18m FT.
Total of 9y with NPP of 6y.
Appellant was involved in a street fight with a group of Fijians, during which he was punched & kicked a number of times. Appellant produced a gun & fired a shot but did not hit anybody. He then ran away, however, the victim pursued him in an aggressive manner. The appellant backed into a doorway & fired a shot which hit the victim in the chest.
Excessive self-defence - unlawful & dangerous act - provocation.
No premeditation - believed necessary to defend himself.
Romanian - full time carer for disabled son - offence out of character - good prospects of rehabilitation.
Error in failure to properly warn jury regarding hearsay evidence - verdict on count 2 unreasonable.
Appeal allowed in part: Conviction on count 2 set aside, verdict of acquittal entered.
Sentence appeal allowed on count 1: resentenced to 6*y with NPP of 4y
328

MEHAJER, Mazin - NSW SC, Studdert J, 2.10.2003
JACOBS, John Lou
Citation: R v Mehajer & Jacobs [2003] NSWSC 885
Remarks on Sentence.
Robbery in company with wounding; murder; robbery in company causing GBH.
The Crown case was that Mehajer and Jacobs had assaulted a man in the course of a robbery. The man died from the injuries he sustained during that assault.
Mehajer - sentenced to total of 18*y with NPP of 14y.
Jacobs - sentenced to total of 17y with NPP of 13y.
329

D'ALENCON, Jose Rodolfo - CCA, 19.9.2003
Hidden & Greg James JJ, Smart AJ
Citation: R v D'Alencon [2003] NSWCCA 269
Sentence appeal.
1 x ongoing supply of methylamphetamine - 3y FT; 1 x supply methylamphetamine - 2y FT; 1 x supply commercial quantity methylamphetamine - 5*y with NPP of 3y.
Total sentence of 7*y with NPP of 5y.
Applicant was a willing supplier of considerable quantities of amphetamine. He supplied a police undercover operative with 6 small bags containing a total of 1 gram of amphetamine, 12 plastic bags containing a total of 1.5 grams of amphetamine & 20 grams of amphetamine on 3 separate occasions. He subsequently supplied 37 grams of amphetamine & offered to supply 400 grams of amphetamine.
Aged 57 at time of 1st offence - guilty plea - physical disability - minor record for driving offences, particularly drink driving - on bond at time of offences - no previous imprisonment.
Backdating - totality - application of Pearce - multiple offences - accumulation - special circumstances.
Appeal allowed in part: sentence for supply commercial quantity backdated.
New total sentence of 6*y with NPP of 4y.
330

RUSSELL, Glen Mark - CCA, 1.10.2003
Hidden & Greg James JJ, Smart AJ
Citation: R v Russell [2003] NSWCCA 279
Conviction appeal and leave to appeal against sentence.
Armed robbery with offensive weapon.
7y with NPP of 4y.
The above offence, which took place in the early evening, was committed upon a remote general store. The victim & her 2 children were in their residence, which was attached to the store. After hearing someone enter the store, the victim went into the shore, whereupon she was confronted by the appellant & his co-offender, both of them wearing balaclavas, one armed with a gun, the other unarmed but carrying a large bag. The victim was ordered to open the till, whereupon the money was emptied into the bag. Offenders also took 15 bottles of spirits & approx a dozen packets of cigarettes. They cut the telephone line before making their escape.
Isolated and vulnerable victim.
Aged 24 at time of offence - immature, naive - need for supervision to assist in rehabilitation - priors - no previous imprisonment.
The sentencing judge had sentenced the appellant for the more serious offence under s.97(2) Crimes Act (max 25y), whereas the jury had acquitted him of that offence & found him guilty of an offence under s.97(1) (max 20y).
Verdict unreasonable - unreliable evidence - warnings - fresh evidence - adverse pre-trial publicity - whether miscarriage - mistake in sentencing exercise.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 6y with NPP of 3y.
331

BURNS, Belinda Jane - CCA, 5.9.2003
Wood CJ at CL, Greg James & Howie JJ
Citation: R v Burns [2003] NSWCCA 278
Sentence appeal.
Aggravated B&E dwelling house & commit serious indictable offence (AOABH); demand money with intent to steal; maliciously damage property.
Total of 6y with NPP of 3y.
Applicant's co-offender received the same sentence.
The applicant had taken up residence with the victim & her small child. After living together for approx a month, the victim said she had received threatening phone calls from the applicant's boyfriend & asked her to move out. A heated conversation took place. The applicant demanded the return of her bond then stormed out. The following day, the applicant (armed with a baseball bat) & the boyfriend (armed with a hockey stick) entered the victim's house. The boyfriend struck the victim on the head with the hockey stick & the applicant struck her on the leg with the bat. They then ordered the victim to take them to an ATM to get some money. The victim refused, whereupon the applicant struck her on the hand with the bat & told her she was going to take property to the value of the bond. She then began smashing property in the premises with the baseball bat.
Aged 21 at time of offences - no remorse shown - no indication of any prior violence - grew up in dysfunctional family - need for counselling regarding childhood abuse - no priors.
Whether sentences excessive.
Appeal dismissed.
332

HUNT, Leo Vincent - CCA, 27.10.2003
Tobias JA, Howie & Shaw JJ
Citation: R v Hunt [2003] NSWCCA 301
Conviction appeal.
Murder.
14y with NPP of 10y.
The offence involved the multiple stabbing of the deceased. The day before the killing, police were called to the deceased's residence concerning a domestic altercation & alleged assault. After speaking to the deceased, the attending police officer asked the appellant to leave. Before leaving & in front of the police officer, the appellant threatened to kill the deceased if she got another AVO.
Subjective factors - Aboriginality - health status.
Whether Longman warning required in relation to evidence due to medical condition of witness - whether failure to do so resulted in miscarriage - where defence counsel at trial had not sought exclusion or warning - directions - whether trial judge gave impression he thought accused was guilty - whether miscarriage.
Appeal dismissed.
333

BELL, Stephen Charles - CCA, 24.10.2003
Sheller JA, Sully & Howie JJ
Citation: R v B ell [2003] NSWCCA 305
Sentence appeal.
3 x assault police officer acting in execution of duty (without occasioning ABH).
Total of 2y with NPP of 18m.
Applicant's motor vehicle was seen by police to be travelling at high speed. During the following pursuit, applicant's vehicle collided with the kerb, whereupon a passenger fled the scene & the applicant, who had been seen to be in the driver's seat, tried to get out of the front passenger side of the car. Police ran to the vehicle & told the applicant that he was under arrest, however, he refused to get out of the vehicle & became aggressive. During a struggle, one of the police officers drew his extendable baton & the applicant punched him on the left arm & chest. The officer struck the applicant on his left arm with the baton & attempted to restrain him again. Police attempted to handcuff the applicant but he continued to struggle & was pushed to the ground. The applicant kicked out at the same police officer, striking him on the left leg several times. The applicant, who was then lying on his back, yelled out to the officer 'I have hepatitis and I'm going to spit in your face so that you get it too and have a life of misery' Two people who had been in the car with the applicant intervened by putting their hands over his face to prevent him from spitting.
Aged 35 at time of sentencing - dysfunctional background - drug user - occasional work - incapacitated as a result of a car accident - disqualified driver.
Whether accumulation of sentences amounts to a special circumstance in fixing the NPP.
Appeal dismissed.
334

SY & KS - CCA, 15.10.2003
Ipp JA, Whealy & Howie JJ
Citation: R v SY & Anor [2003] NSWCCA 291
Crown appeals.
SY: 1 x robbery armed with offensive weapon - 3*y, NPP 2y 3m; 2 x assault - 3m (concurrent); + Form 1 offences.
Effective total 3*y with NPP of 2y 3m.
Aged 41 - guilty plea - prior criminal history - previous imprisonment.
KS: 1 x armed robbery - 3y with NPP of 2y; 2 x assault - 3m & 6m (concurrent); + Form 1 offences.
Effective total of 3y with NPP of 2y.
Aged 39 - guilty plea - prior criminal history - previous imprisonment.
Offences related to the robbery of a sports club in the early hours of the morning.
Early guilty pleas - replica pistol - delay in finalisation of matter.
Whether sentences manifestly inadequate.
SY: Crown appeal dismissed.
KS: Crown appeal allowed on armed robbery count - resentenced on that count to 5y with NPP of 3y.
335

BURT, Jason Andrew - CCA, 10.9.2003 140 A Crim R 555
Wood CJ at CL, Greg James & Howie JJ
Citation: R v Burt [2003] NSWCCA 248
Conviction appeal.
5 x assault with act of indecency; 1 x attempt sexual intercourse without consent.
Total of 3y with NPP of 18m.
The complainant was aged 17 at the time of the offences. He made early complaint. Complainant gave evidence that all offences took place on the same day at his house & that he felt intimidated & threatened by the appellant.
Standard of proof - Murray direction - whether adequate directions given - whether absence of instruction in relation to appellant's knowledge or recklessness as to complainant's lack of consent resulted in miscarriage of justice.
Appeal dismissed.
336

FRASER, Steven Anthony - NSW SC, Howie J, 27.10.2003
Citation: R v Fraser [2003] NSWSC 965
Judgment on directions to Crown to call evidence of a witness in its case and not in reply.
Accused charged with the murder of his 3 children.
Course of evidence - defence of substantial impairment by abnormality of mind under s.23A Crimes Act - Crown witness to rebut defence - direction sought under s.151(3) Criminal Procedure Act - relevant considerations.
337

RUTTER, Daniel Gordon - CCA, 26.10.2003
Tobias JA, Howie & Shaw JJ
Citation: R v Rutter [2003] NSWCCA 306
Sentence appeal.
BE&S.
6y with NPP of 3y.
This was a 'home invasion'type offence. Applicant & his co-offender drove to a house where the applicant remained in the car while his co-offender, armed with a pistol, entered the house & woke the residents. The co-offender represented himself as being a police officer who was there to execute a search warrant. During the commission of the offence, the applicant & the co-offender were in telephone communication with each other.
25% discount received for early plea of guilty.
Whether sentence excessive - mental state - general deterrence - parity.
Appeal dismissed.
338

SOUTHAMMAVONG, Ta - CCA, 31.10.2003
SIHAVONG, Vilasone
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Southammavong; R v Sihavong [2003] NSWCCA 312
Conviction appeals.
Southammavong: 1 x murder; 1 x malicious wounding with intent to inflict GBH.
Sihavong: 2 x malicious wounding with intent to inflict GBH.
An altercation occurred at a house amongst a group of men of Laotian descent. During the course of the altercation, a number of shots were fired. One person was killed & 2 others wounded. (See R v Southammavong; R v Sihavong [2002] NSWSC 854.)
Directions - burden & standard of proof - definition of 'beyond reasonable doubt'- where jury sought clarification on meaning of standard - where trial judge repeated earlier direction - whether trial judge erred by failing to address jury request.
Appeals dismissed.
339

ELLIS, Darren Douglas - CCA, 5.11.2003 58 NSWLR 700; 144 ACrimR 1
Spigelman CJ, Sully & O'Keefe JJ
Citation: R v Ellis [2003] NSWCCA 319
Conviction appeal.
11 x BE&S or attempt BE&S with intent or aggravated BE&S.
All offences were committed upon commercial premises in rural NSW. Access to the premises was facilitated by removing an entire pane of glass. Originally there were 13 counts on the indictment. Before the trial commenced, an issue arose as to the admissibility of evidence of each offence as tendency or coincidence evidence in relation to all other offences on the indictment. The trial judge concluded that such evidence was admissible in respect of 11 of the counts & permitted a joint trial to proceed on those counts.
Whether test in Pfennig v The Queen (1995) 182 CLR 461 applicable - whether tendency & coincidence evidence admissible.
Appeal dismissed.
340

VU, Tuan Chan - CCA, 31.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Vu [2003] NSWCCA 316
Sentence appeal.
Count 1: 1 x supply heroin (0.37 grams) - 6m FT;
Count 2: 1 x supply heroin (84 grams) - 4y with NPP of 3y (cumulative).
Total 4*y with NPP of 3*y.
Both offences involved the supply of heroin to an undercover police officer. Just before the 2nd supply, a co-offender was seen to hand a blue coloured napkin containing the heroin to the applicant. The applicant claimed he sold the drugs for the co-offender in order to pay off a gambling debt. The co-offender claimed that he took the drugs to the applicant as a favour & to pay off a gambling debt that he had. The co-offender was charged with one offence & was sentenced to 3*y with a NPP of 2y.
Aged 42 - guilty plea - 1st custodial sentence - good prospects of rehabilitation.
Parity - special circumstances - Judicial Commission statistics - whether sentences excessive.
Appeal allowed, applicant resentenced as follows:
Count 1: 6m FT;
Count 2: concurrent sentence of 4y with NPP of 2*y.
341

LAO, Binh Cuong - CCA, 31.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Lao [2003] NSWCCA 315
Sentence appeal.
1 x supply large commercial quantity ecstasy (1,016.6 grams).
5y with NPP of 3y.
The amount of drug involved was more than twice the minimum for the attraction of the appropriate penalty for a large commercial quantity. Although applicant entered a guilty plea, there was some concern as to whether he had the relevant intention to be liable for the offence. The matter turned on whether or not the applicant had believed that what he was transporting to Sydney from Melbourne was herbal medicine or an illegal drug.
Guilty plea - not an associate of the criminal element - a mere courier - gambling problem - otherwise of good character - strong prospects of complete rehabilitation.
Absence of express mention by sentencing judge of guilty plea - expression of intention by sentencing judge to pass a low sentence - whether plea disregarded - what is appropriate range - whether sentence within appropriate range.
Appeal dismissed.
342

KELLY, Leonard Shaun - CCA, 5.11.2003
Greg James & Howie JJ, Smart AJ
Citation: R v Kelly [2003] NSWCCA 317
Sentence appeal.
1 x assault with intent to rob whilst armed with dangerous weapon.
4y with NPP of 2y.
Armed with an extendable baton, applicant attempted to rob an employee of the Byron Bay Services Club of money kept in a drawer at the front desk of the club. The victim was struck on the side of the head with the baton. During an interview with police, applicant claimed that in response to a request from his father's friend, he had agreed to assault the person who had assaulted that friend's son. He claimed that the victim was pointed out to him as having assaulted the friend's son. He declined to name the friend. Applicant claimed he was to be paid $200 for the assault.
Guilty plea - radically differing accounts of events given to wife & psychiatrist to those given to police - mental illness - 1st time in custody - special circumstances.
Insufficient regard paid to mental illness - proper approach to question of deterrence where offender has mental disability - whether sentence manifestly excessive - whether lesser sentence warranted in law.
Appeal dismissed.
343

COLLEY, Richard Edward - CCA, 5.11.2003
Studdert, Barr & Whealy JJ
Citation: R v Colley [2003] NSWCCA 323
Conviction appeal.
Supply prohibited drug.
5y 8m with NPP of 4y 3m.
Following police surveillance, appellant's car was stopped & searched. In the centre console of the car, police found 12 plastic resealable bags containing white powder, as well as a tin containing 6 resealable bags of white powder. A box containing 12 black syringe disposable packs with used & unused needles was found on the floor of the car. When police told him they intended searching him, appellant adjusted his right ankle area with his left foot. A search revealed $3,500 in appellant's right sock. Appellant handed a needle & syringe from that sock to the police officer. A further $320 in cash was found in a wallet in appellant's jeans. Later that day, a search upon appellant's premises revealed sets of scales, a plastic bottle used as a bong, a small brass pipe, a small amount of cannabis, Glucodin, pieces of foil, a number of needle swabs, syringes, a plastic bag containing white tablets, a spoon with dried residue later identified as methadone & a black pile of rolled-up tape containing a plastic bag with what was later identified as morphine in it.
On appeal, counsel for the appellant acknowledged that the sole issue for the jury was whether appellant had proved on the balance of probabilities that he had the drugs in his possession other than for supply. Appellant's case was that the drugs were solely for his personal use.
Damaging & inadmissible evidence admitted without objection & without direction from trial judge limiting its use - evidence given by police officers - introduction of evidence concerning drugs & items found in appellant's premises - alleged lie - manner in which trial judge dealt with it - whether trial miscarried.
Appeal dismissed.
344

LO, Wai Hung - CCA, 31.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Lo [2003] NSWCCA 313
Sentence appeal.
Murder; conspiracy to murder; + drug-related offences taken into account.
Total of 36y with NPP of 27y.
This was a contract killing to pay for drugs (see R v Lo [2000] NSWSC 714, 115 A Crim R 53). A number of men (tow truck operators involved with drugs) recruited applicant to kill deceased because he was going to give evidence against an associate of theirs. Applicant carefully planned the killing. The 2nd offence arose when the applicant later assisted in an attempted murder by luring the victim to his residence.
Aged 29 - guilty plea - heavily in debt over drug transactions - various drug & weapon offences.
Guilty plea - discount - notion of percentage discount on an indeterminate sentence not meaningful - reduction of indeterminate sentence to sentence for term of years - assistance to authorities - motive not necessary factor for discount for assistance - effect of verbal formulae 'take into account'and 'must consider'- double dipping.
Appeal dismissed.
345

TRUONG, Lan Van - CCA, 31.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Truong [2003] NSWCCA 314
Sentence appeal.
Ongoing supply of drugs (heroin).
3*y with NPP of 2y.
On 3 occasions, applicant supplied a small quantity of heroin to an undercover police officer.
Guilty plea - inconsistencies in reasons for commission of offence.
Whether error in findings - whether error in determination of head sentence before applying discount for early plea.
Appeal dismissed.
346

HONEYMAN, Scot Kenneth - CCA, 1.10.2003
Hulme & Greg James JJ
Citation: R v Honeyman [2003] NSWCCA 292
Sentence appeal.
BE&S in circumstances of aggravation (inflicting ABH).
4y 9m with NPP of 2y.
Applicant gained entry to the 98 year old female victim's home in the early hours of the morning by removing a window at the rear of the house. The ABH was caused when applicant made his escape from the house when the victim was knocked to the floor. The victim suffered some bruising.
Aged 20 - guilty plea - 'appalling'criminal record - previous imprisonment.
Utilitarian value of guilty plea - failure to properly discount sentence - pre-sentence custody.
Appeal dismissed.
347

MARTIN, Danny Paul - CCA, 5.11.2003
Studdert, Barr & Whealy JJ
Citation: R v Martin [2003] NSWCCA 325
Sentence appeal.
3 x BE&S; 1 x enter land with intent to BE&S; 1 x larceny.
Total of 3y with NPP of 1y (finding of special circumstances).
The most serious offence was committed upon an elderly woman. The applicant was a friend of the victim's grandson. $151,000 was stolen during the commission of this offence. Some of the money was recovered by police, however, nearly $93,000 was still missing at the time of sentence. Applicant was arrested a week after the commission of this offence & was charged with this offence as well as the other 2 BE&S offences & the enter land with intent. At first he denied any knowledge of the offences, however, 2 weeks later he participated in a 2nd interview in which he made admissions to the offences & the additional offence of larceny. Applicant's one co-offender was an older man, the other about the same age as the applicant.
Aged 19 at time of offence - guilty plea - previous good character - no priors - parental support - depressive illness - need for psychiatric support & assistance.
Whether sentences manifestly excessive - parity - other sentencing options - assistance to authorities - deterrence - relationship between psychiatric & psychological condition & offences committed - inadequate weight given for efforts to compensate victims.
Appeal dismissed.
348

McCALLUM, John Darrin - CCA, 27.10.2003
Hidden & Greg James JJ, Smart AJ
Citation: McCallum v Parole Board of NSW [2003] NSWCCA 294
Application seeking direction pursuant to s.155 Crimes (Administration of Sentences) Act 1999.
The direction sought was to the effect that it is irrelevant for the Parole Board to take into account, when considering the grant of parole for sentences for robbery whilst armed & armed assault with intent to rob, that the applicant had not yet sufficiently addressed his offending behaviour as to 6 serious sexual assault offences when the sentences for those offences had been served.
Information to be taken into account by Parole Board when considering release of prisoner on parole - limited role of CCA - CCA has no power to review merits of Board's decision.
Application dismissed.
349

SHALALA, Alec - CCA, 11.11.2003
Handley JA, Sully & Buddin JJ
Citation: R v Shalala [2003] NSWCCA 330
Conviction and sentence appeal.
1 x deemed supply of commercial quantity heroin.
7y with NPP of 5y.
Heroin was found during a search of appellant's motor vehicle when police stopped that vehicle as a result of information received & searched it for weapons. The total weight of the heroin found was 260.4 grams.
Wrongful admission of evidence - misdirections - flagrant incompetence of defence counsel - whether verdict unsafe & unsatisfactory - whether sentence excessive.
Appeal dismissed.
350

DONOVAN, Horace James - CCA, 7.11.2003
Hidden & Greg James JJ, Smart AJ
Citation: R v Donovan [2003] NSWCCA 324
Crown appeal.
1 x escape from lawful custody - 1y FT;
1 x robbery in company inflicting GBH - 3*y with NPP of 2y (cumulative upon FT of 1y);
1 x robbery in company with wounding - 3y with NPP of 2y (concurrent);
2 x deemed larceny of MV - 18m FT (concurrent).
Total sentence of 4*y with NPP of 3y.
Respondent & his 3 co-offenders escaped from prison. In an effort to steal a car in order to make their getaway, the co-offenders attacked the female victim & her 19 year old son. Both victims were severely beaten & kicked. The male victim was seriously injured, suffering a fractured right cheekbone, lacerated internal & external right ear & bruising to the head & body. The female victim suffered concussion, a lacerated scalp & bruising to the face & body. The sentencing judge found the respondent to be the least culpable of the offenders in relation to the attacks on both the male & female victims. He left the prison after the other escapees & lagged behind them at a sufficient distance for a sufficient space of time such that the independent witnesses, including the male victim, did not observe him directly involved in the melee. Respondent did not directly strike or attack either victim. His liability arose as a result of the doctrine of joint criminal enterprise. The jury found he was present & assisting before the assaults on the victims.
Whether sentence manifestly inadequate - whether justified by respondent's limited role - whether sentences should have been concurrent - whether Henry guideline applicable.
Appeal dismissed.
351

PENISINI, Sione - NSW SC, Wood CJ at CL, 2.10.2003
LAGI, Meli
TAUFAHEMA, John (Sione)
Citation: R v Penisini; R v Lagi; R v Taufahema [2003] NSWSC 892
Remarks on Sentence.
Penisini: Murder; unauthorised use of firearm; attempt carjacking. Guilty pleas entered on all counts.
Taufehema: Murder (guilty verdict). Pleaded guilty to use offensive weapon in company with intent to prevent lawful apprehension; attempt carjacking; unauthorised use of firearm.
Lagi: Use offensive weapon in company with intent to prevent lawful arrest (guilty verdict); possess firearm without authority (guilty plea entered).
The above offences related to the killing of Snr Const McEnallay.
Sentences: Penisini: Total of 36y with NPP of 25y.
Taufehema: Total of 24y with NPP of 17y.
Lagi: Total of 10y with NPP of 6y, cumulative upon sentence already being served.
352

CHEN, Jack Chick - CCA, 7.11.2003 138 A Crim R 433
Meagher JA, Sully & Kirby JJ
Citation: R v Chen [2003] NSWCCA 326
Sentence appeal.
Conspiracy to import commercial quantity heroin.
40y with NPP of 26y.
The Crown case was that the applicant was the principal in a highly organised & ongoing conspiracy to import heroin concealed in parcels that supposedly contained computer parts. The conspiracy came to light as a result of a long-term investigation of the Joint Asian Crime Group (a task force of Commonwealth & State officers).
The sentencing judge calculated that the total weight of pure heroin was between 16.9 & 17.2 kgs, whereas the actual total weight of pure heroin was 12.6 kgs.
Aged 44*y at time of appeal - guilty plea, although not at earliest opportunity.
Error in findings of fact - error in emphasis placed on contemplated future importations of heroin - assessment of applicant's standing in hierarchy of conspiracy - parity.
Appeal allowed: resentenced to 31y with NPP of 23y.
353

SWAN, Jo-Anne Lee - CCA, 3.11.2003 140 A Crim R 243
Barr, Greg James & Howie JJ
Citation: R v Swan [2003] NSWCCA 318
Conviction appeal.
1 x supply prohibited drug (cocaine).
18m suspended for 2 years.
Judge alone trial.
The only issue raised before the trial judge was whether the offence had been made out by the evidence led in the Crown case by way of the tender of statements from prosecution witnesses. The appellant did not give evidence. It was submitted to the trial judge that the offence had not been made out on the evidence. The Crown alleged that the appellant had offered or agreed to supply an undercover police operative with cocaine on the date specified in the charge. The incident giving rise to the allegation occurred during a controlled police operation. Upon being told by the operative that he wanted to buy some cocaine, the appellant said to him, 'I'm about to do a coke run, I'll be back soon, just wait here in the park. You can give me the money now and I'll come back with it.'  Eventually the operative gave the appellant $50 for the drug & an additional $5 towards a taxi fare. Shortly thereafter, the operation concluded without the appellant returning to the park. She was arrested some months later.
Whether intent to supply a prohibited drug is a necessary ingredient where the Crown is alleging an offer to, or an agreement to, supply a prohibited drug.
Appeal dismissed.
354

MINALL, Benjamin Richard - CCA, 11.11.2003
WATKINS, Justin David
Meagher JA, Dowd & Barr JJ
Citation: Minall and Watkins v R [2003] NSWCCA 311
Sentence appeals.
Import trafficable quantity cocaine.
Each received 7*y with NPP of 5y.
Applicants arrived in Sydney on a flight from LA. Although travelling together, they approached Immigration separately. Minall told a Customs officer he was travelling alone, however, a Customs officer later noticed applicants waiting together at the taxi rank. Both applicants had told Customs officers the name of the hotel where they were to stay. A short time later, Australian Federal Police entered a room occupied by the applicants & saw Watkins lying on one side of a double bed with pellets wrapped in white paper towelling next to him. On the other side of the bed, where Minall had been lying, were pellets in a watch case. Further pellets were discovered in the room. Applicants were arrested & taken to hospital where x-rays revealed other items concealed internally. The remaining pellets were passed by both Minall & Watkins. The gross weight of the cocaine imported was 646.3 grams, the pure weight 437.3 grams. At the sentencing hearing, both applicants submitted that they should be regarded as couriers, claiming that they had been persuaded by an unnamed man to take part in the venture & that he had made threats against their families if they refused. The Crown had submitted that, in fact, the parties were principals.
Minall aged 34, Watkins 33 at time of sentence - both pleaded guilty - neither had any prior convictions.
Findings of fact - onus of proof - sentencing ratio - fresh evidence.
Appeals dismissed.
355

MARONEY - HC, 11.11.2003 216 CLR 31; 78 ALJR 51
Citation: Maroney v The Queen [2003] HCA 63
On appeal from the Supreme Court of Queensland.
Supply dangerous drug (aggravated).
Appellant was an inmate at a correctional facility & arranged for a person outside the facility to supply him with heroin through another person. However, before this person effected the on-supply, she discarded a packet containing 2 syringes, a balloon & the heroin in question (0.084 grams).
Whether criminally liable for the offence of supply within s.4 Drugs Misuse Act 1986 (Q) & s.7 Criminal Code (Q).
Construction of statutes - intersecting statutes of general & particular application - whether provision enacting substantive offence incompatible with deeming provision in statute of general application - provisions for primary & secondary liability for criminal offences - application of deeming provisions - approach to statutory intersection - whether history & suggested policy of the substantive legislation relevant to resolution of the intersection - whether context determinative of contested statutory construction.
Appeal dismissed.
356

GILLARD - HC, 12.11.2003 219 CLR 1;78 ALJR 64
Citation: Gillard v The Queen [2003] HCA 64
On appeal from the Supreme Court of South Australia.
Murder.
Appellant & a co-accused were convicted of the murder of 2 men & the attempted murder of another. Appellant contended that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the 2 men who were killed. That contention (rejected by the FC of the SC of SA) was supported by the respondent. The difference between the parties to the appeal was whether the case was a proper one for the application of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (SA).
Joint criminal enterprise - whether jury properly instructed would necessarily have returned verdict of guilty of murder - whether failure to leave manslaughter to jury occasioned substantial miscarriage of justice.
Appeal allowed: New trial ordered.
357

LEWIS, Brian James - CCA, 13.11.2003 142 A Crim R 254
Hodgson JA, Grove & Howie JJ
Citation: R v Lewis [2003] NSWCCA 332
Conviction appeal.
BE&S.
3y with NPP of 1y 2m.
Twelve days after appellant resigned as Secretary-Manager of a club, a large amount of money was stolen from the club's strongroom in circumstances that made it clear the offence must have been carried out by a person who had been or was an employee of the club & who had knowledge of the security system & how to access the safe. The Crown case relied significantly on an allegation that appellant had the requisite knowledge & had available to him the PIN numbers of other employees of the club because of the position he held before his resignation. There was a large amount of evidence as to the security arrangements in place & appellant's knowledge of them. Appellant's case was that the person most likely to have stolen the money was a particular employee. It was that employee's PIN number that was recorded as being used to de-activate the alarm system on the night the money was stolen. That employee gave evidence & was cross-examined. The Crown case was that the appellant caused the staff to change their PIN numbers & was given a list of the new numbers. The appellant denied he was aware of the particular employee's PIN number. The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant knew the employee's PIN number when he resigned.
Summing up - whether directions adequate to ensure fair trial - no request made for directions at trial - whether rule 4 should apply.
Howie J referred to the appeal as 'another 'arm chair'appeal'. He expressed the view that a substantial amount of public money had been wasted in running the appeal & was particularly critical of both counsel for the appellant & the Legal Aid Commission. In para 43, he concluded with the following:
'This Court has repeatedly criticised such appeals as the present yet such criticism apparently falls on deaf ears amongst the legal profession. At least the Legal Aid Commission and those who advise it should pay heed to that criticism. This is not to suggest that rule 4 should stand in the way of the grant of legal aid to a matter of real substance particularly where the appellant faces the prospect of a considerable period in custody as a result of the conviction. But in an era of sparse public funding, a more discriminating approach should be paid to expending the funds available than is evidenced by the present matter'.
Appeal dismissed.
358

BETANCUR-GALVIS, Jaime de Jesus - CCA, 13.11.2003 142 A Crim R 527
Studdert, Hulme & Hidden JJ
Citation: R v Betancur-Galvis [2003] NSWCCA 333
Conviction appeal.
Knowingly concerned in the importation of a commercial quantity of cocaine.
16*y with NPP of 10*y.
The case against the appellant was essentially based upon circumstantial evidence & evidence of his association with another man. During the course of summing up, the trial judge referred to there being 'a number of facets of the circumstantial evidence case'He instructed the jury that they were entitled to consider all the explanations advanced by the appellant 'because there are a number of facets of this matter that require explanation', then continued:
'I do not mean to imply that the accused is obliged to explain his movements in the sense that he would carry any onus or burden of proof. I simply say this to you, that if the Crown have established that there are inferences available, inescapable inferences, that the accused knew what was going on and was in contact in fact with Columbia, and was facilitating this importation, then the next step is that the accused is entitled to have you consider, and indeed he is entitled to say to you that the Crown must exclude from your consideration, any reasonable explanation consistent with innocence.
If there is a reasonable explanation consistent with innocence it will have been advanced to you by the accused, or his barrister, and you consider (a) whether it is reasonable and (b) whether it is consistent with innocence.
But there is one thing I need to tell you and it is my duty to tell you, that there has been no explanation advanced, reasonable or otherwise. And I tell you this quite clearly so that you be in no doubt about it, there is no explanation advanced for the accused having rung, on the Crown case six times, on the accused's case four times, that particular number in Columbia, the number from which Gomez was perfectly clearly receiving instructions and the number which Gomez rang in order to get the invoice sent to Panalpina.
Now there is no explanation advanced and there could only be one reason for that. And I here express of you as to the fact because as a matter of law I am obliged to tell you. That if there was an explanation available for that, an explanation would have been advanced to you in the record of interview, or advanced to you by the accused's counsel during his address. I do not know that I can put it more clearly than that. And if I there express a view as to the facts or course you must ignore that view unless it happens to accord with your own individually reached conclusion, but I tell you as a matter of law that before you can consider a reasonable explanation consistent with innocence, for that particular part of the Crown case, you must at least have an explanation advanced to you that could be either considered reasonable and/or consistent with innocence'.
Misdirection - whether case appropriate for application of proviso to s.6 Criminal Appeal Act.
Appeal allowed: new trial ordered.
359

SZABO, Lajos - CCA, 11.11.2003
Hodgson JA, Grove & Howie JJ
Citation: R v Szabo [2003] NSWCCA 341
Crown appeal.
1 x aggravated sexual intercourse without consent.
4y with NPP of 8m.
Appellant sexually assaulted his wife with a cucumber.
Aged in fifties - relationship with wife described as 'toxic'- living separate lives, under same roof - married for approx 30 years - 4 adult children.
Multiple serious medical conditions - specially onerous circumstances of incarceration - sentence nevertheless manifestly inadequate in terms of NPP - discussion of approach to and application of special circumstances - discretion of appellate court to dismiss Crown appeal.
Appeal dismissed.
360

HQ - CCA, 31.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v HQ [2003] NSWCCA 336
Sentence appeal.
2 x attempt strangle with intent to commit aggravated indecent assault; 1 x sexual intercourse without consent in circumstances of aggravation.
Total sentence of 13y with NPP of 10y 3m.
The counts related to a single course of events. The victim was the applicant's 15 year old stepdaughter. Applicant was the only father figure victim had ever known.
Weight to be given to circumstances of custody - psychiatric illness - relevance of psychiatric condition - existence of special circumstances - where NPP slightly higher than statutory proportion - whether error in partial accumulation of sentences - whether sentences manifestly excessive.
Appeal dismissed.
361

DSW - CCA, 5.11.2003
Studdert J, Barr & Whealy JJ
Citation: R v DSW [2003] NSWCCA 322
Crown appeal.
1 x maliciously inflict GBH.
4y with NPP of 2*y (to be served in a Juvenile Justice Centre).
Respondent, some friends & relations left an hotel in Grafton when the premises closed. As they moved away from the hotel, there was a bit of a scuffle & respondent broke away. He came upon a young man walking along the street & attacked him. No-one giving evidence was able to say how the violence began, but the sentencing judge was satisfied that the respondent started it. Respondent later gave 2 explanations why he attacked the victim. One was that a few days earlier he called him a poofter, the other was that he had made a racist remark. The sentencing judge believed neither explanation. The victim ended up on the ground, unconscious & quite unable to defend himself. The sentencing judge found that the respondent forcefully & deliberately jumped on his head more than twice. The attack ended when an adult member of respondent's group pulled him away. That adult tried to help the victim but was unable to do so. The victim suffered severe injuries. Scans revealed bilateral extracranial haematomas but no fracture of the skull or intracranial abnormality. He was badly affected & remained within the brain injury unit of the hospital for a number of months. He was doubly incontinent & dependent for all care. His cognition was seriously impaired.
Young Aborigine - aged 16* at time of offence - no convincing statement of remorse - alcohol & drug use since early age - prior offences - previous control order - on probation at time of above offence.
Sentencing discretion - whether sentence manifestly lenient.
Appeal dismissed.
362

ROBERTS, Bruce - CCA, 11.11.2003
Levine & Howie JJ, Smart AJ
Citation: R v Roberts [2003] NSWCCA 309
Sentence appeal.
2 x buggery; 1 x indecent assault; + 12 sexual offences on a Form 1.
Total of 13y with NPP of 10y.
There were 3 complainants, aged 7-9 when offences were alleged to have occurred. Offences were alleged to have taken place between 1971 & 1978.
Aged 52 at time of sentence - severe hearing disability - arthritis, migraine - in protection - history of anxiety, depression - prior similar offences - previous imprisonment.
Whether error in finding that applicant had little prospect of rehabilitation - whether error in approach to Form 1 offences - whether error in failing to properly take account of previous sentence - sentencing patterns - subjective circumstances - discount for guilty pleas - wholly cumulative sentence - special circumstances.
Appeal allowed: resentenced to total of 9*y with NPP of 6*y.
363

STEPANOVIC, Ivica - CCA, 18.11.2003
Tobias JA, Hidden & Greg James JJ
Citation: R v Stepanovic [2003] NSWCCA 343
Sentence appeal.
Robbery in company; + 2 offences taken into account (detain for advantage; obtain benefit by deception).
4y with NPP of 3y.
All offences arose from the one incident & were committed during the evening when the applicant & his co-offender entered the victim's car when it was stopped while he used the phone. The applicant sat in the back seat, the co-offender in the front passenger seat. The co-offender was armed with a knife. The victim was ordered to drive away. The offenders robbed the victim of items of personal property at knifepoint & used a card from his wallet to withdraw $200 from an ATM. The incident lasted about 20 to 30 minutes & only concluded when the victim deliberately drove his car into the path of oncoming traffic & then fled on foot. The applicant & his co-offender drove off in the victim's car. The victim suffered considerable emotional & psychological trauma from the incident. Applicant was detected as an offender by fingerprint & DNA matching, however, he was not charged for almost 2 years.
Aged 18 at time of offence - Serbian - arrived in Australia at age 3 - parents separated - violent father - left home at age 10 - commenced abuse of alcohol & drugs at age 10 - auditory hallucinations - depression.
Whether sentence manifestly excessive - whether special circumstances should have been found.
Appeal dismissed.
364

KAMMINGA, Robert - CCA, 20.11.2003
Barr J, Miles AJ
Citation: R v Kamminga [2003] NSWCCA 337
Sentence appeal.
Ongoing supply of prohibited drugs (amphetamine & methylamphetamine).
6y with NPP of 3y.
Applicant sold drugs to an undercover police operative on 3 occasions. On the 1st occasion a total of 8.1 grams of amphetamine & methylamphetamine were sold to him; on the 2nd occasion 7.4 grams of methylamphetamine; and on the 3rd occasion 6.6 grams of amphetamine. The total sale price was $2,800. Applicant had been under police surveillance for some time, during which period recordings were made of approx 750 telephone calls over a period of some 15 days. Police estimated that about 400 of the telephone conversations had something to do with drugs.
Aged 49 at time of sentence - chronic affective disorder - had led blameless life until age 46 when charged with possess prohibited drug, possess restricted substance, possess prohibited article & unlawfully obtain goods, for which he received a bond on each charge - the following year he received conditional bonds for 5 x possess prohibited drug & 4 x possess prohibited article - later charged with 2 x possess prohibited weapon without permit & 1 x possess prohibited drugs, for which he was fined on all counts.
Mental condition - general deterrence - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 2y.
365

KOKLAS, George - CCA, 16.10.2003
Whealy, Studdert & Barr JJ
Citation: R v Koklas [2003] NSWCCA 302
Sentence appeal.
1 x supply prohibited drug on an ongoing basis (heroin); 1 x supply prohibited drug (0.39 grams cocaine); + Form 1 offence of goods in custody ($585).
Total of 4y with NPP of 2y.
Applicant's arrest followed upon undercover police operations carried out over a 2 month period. During this time, he was employed as a 'runner' or 'street dealer'with other operatives working out of a unit. Drugs (heroin & cocaine) were being packaged inside the unit, then sold in 'deals'A street dealer would go to a prearranged place by car & would collect money & hand out 'deals'to customers. Although applicant was involved in supplies of this kind on an ongoing basis, it was agreed at the sentence hearing that he should be sentenced on the basis of 3 particular supplies of heroin. The Form 1 offence related to an undercover operative obtaining 2 lots of cocaine from the applicant (0.14 & 0.25 grams).
Early guilty plea - appropriate discount for plea - assistance to authorities - need for protection - parity - relevant principles - whether sentence excessive.
Appeal dismissed.
366

REICHER, Manfred - CCA, 1.10.2003
Hulme & Greg James JJ
Citation: R v Reicher [2003] NSWCCA 300
Sentence appeal.
Deemed supply methylamphetamine - 2y with NPP of 18m;
Sell firearm (semi-automatic pistol) - 2y FT;
Supply methylamphetamine - 12m FT;
Sell firearm (shotgun) - 12m FT.
Sentences partly cumulative, partly concurrent, giving an effective total of 5y with NPP of 4*y.
Applicant sold 0.5g of methylamphetamine to an undercover police officer for $200. He later sold to the same officer a semi-automatic pistol with holster & ammunition for $2,800. He also showed the officer a shotgun & offered to sell it to him for $1,000. Police executed a search warrant on applicant's home & found 8g of methylamphetamine & drug paraphernalia, which included electronic scales & resealable bags.
Aged 54 at time of offences - guilty plea - tragic background - left home at age 16 - severe alcohol problem - chronic back problem - involvement with drugs - long criminal history - remorse - contrition - prior imprisonment, however, no convictions recorded for past 30 years.
Failure to take into account effect of accumulation in setting NPP - failure to sentence applicant according to proper assessment of role in offences - failure to give proper weight to subjective case - failure to sentence in accordance with Pearce - special circumstances - need for rehabilitation.
Appeal allowed in part: sentence for deemed supply reduced to 2y with NPP of 9m - new total of 5y with 3y 9m NPP.
367

CLARK, Wayne Scott - CCA, 27.10.2003
O'Keefe, Hidden & Barr JJ
Citation: R v Clark [2003] NSWCCA 308
Conviction appeal.
2 x steal MV; 1 x robbery whilst armed with dangerous weapon (pistol); 1 x malicious wounding with intent to prevent lawful apprehension.
Total of 16y with NPP of 12y.
Applicant & a co-offender broke into a bank. Both wore balaclavas & both were armed with loaded pistols. They threatened bank staff & stole money from the bank. During the robbery, an off-duty police officer entered the bank in an attempt to stop the robbery. He was shot & wounded by one of the offenders. The offenders used 2 stolen vehicles to make their escape.
Applicant was sentenced for the above offences in 1998 & shortly thereafter he filed a notice seeking leave to appeal. He later filed a Notice of Abandonment & in the present application he sought leave to withdraw the Notice of Abandonment & an extension of time in which to file a Notice of Appeal. In considering whether to exercise its discretion to allow the withdrawal of the Notice of Abandonment, the Court considered the merits of the proposed grounds of appeal but refused leave to withdraw the Notice.
Abandonment of Notice of Appeal - R v Young (1999) NSWCCA 275 - application to withdraw Notice of Abandonment - fresh evidence - whether cogent - confession.
Leave to withdraw Notice of Abandonment refused; extension of time to appeal against conviction refused.
368

FOSSE, Colleen - CCA, 17.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Fosse [2003] NSWCCA 347
Sentence appeal.
1 x robbery in circumstances of aggravation (maliciously inflict ABH); 1 x attempt dishonestly obtain money by deception ($2,000); 1 x make false instrument (bank withdrawal slip); 1 x present withdrawal slip with intent to induce bank officer to accept as genuine; 1 x steal 30 litres petrol (value approx $30,00).
Total of 4y 4m with NPP of 22m.
The victim was an 82 year old man, who suffered from dementia & the applicant was aged 53 at the time of the offences. Applicant was subject to 2 recognizances at the time of the above offences.
Applicant suffering from bi-polar disorder & depression.
Whether sentence manifestly excessive.
Appeal dismissed.
369

MARTIN, James Charles - CCA, 19.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Martin [2003] NSWCCA 354
Sentence appeal.
2 x indecent assault; 1 x sexual intercourse with child aged between 10 & 16 whilst under authority; + 2 similar offences on a Form 1.
Total of 7y with NPP of 5*y.
Applicant is the victim's biological father. The indecent assaults commenced when the victim was approx 8 years old. The 1st act of penile/vaginal intercourse with the victim occurred when she was aged 12 to 13. Applicant continued to have a sexual relationship with the victim until she was about 21 years of age.
Aged 51 at time of appeal - early guilty plea.
Accumulation of sentences - proportionality between ultimate effective head sentence & NPP - disapproval of adverse comment directed at a person who is neither party nor witness.
Appeal allowed insofar as NPP reduced to 4y 1m.
370

SMITH, Kenneth Alfred - CCA, 24.11.2003
Meagher JA, Kirby & Shaw JJ
Citation: R v Smith [2003] NSWCCA 353
Sentence appeal.
1 x aggravated sexual assault; 2 x aggravated indecent assault; 2 x aggravated sexual intercourse (all offences upon child under 10 under authority).
11y with NPP of 8y.
Each offence committed upon applicant's 8 year old stepdaughter.
Aged 30 at appeal - guilty plea - difficult, deprived upbringing - history of substance abuse - received treatment for schizophrenia - prior similar offences - previous imprisonment.
Sentencing - accumulation - whether sentences excessive.
Leave to appeal refused.
371

BENTLEY, Paul Christopher - CCA, 9.12.2003
Barr, Greg James & Howie JJ
Citation: R v Bentley [2003] NSWCCA 360
Conviction and sentence appeal.
Supply prohibited drug on an ongoing basis (heroin).
3y with NPP of 2y 3m.
Appellant supplied a police undercover operative with 0.27 grams of heroin, 0.38 grams & 0.25 grams on 3 consecutive days. On each occasion, he received $120 for the drugs.
Aged 35 - addicted to heroin - priors include minor dishonesty offences & possess cannabis - previous imprisonment.
Whether failure to withdraw direction might have affected jury's deliberations - whether alternative count should have been left to jury - whether basis for sentence to be reduced as having to be served in onerous circumstances.
Appeal dismissed.
372

SWAIN, Peter William - CCA, 10.12.2003
Hodgson JA, Grove & Howie JJ
Citation: R v Swain [2003] NSWCCA 364
Conviction and sentence appeal.
1 x aggravated BE&S (in company).
4y with NPP of 2y.
A silent heat & motion alarm was activated at Newtown Public School in the early hours of the morning of the offence. A security officer arrived to investigate some 4 minutes later & positioned himself on the landing of a stairway. When he saw the appellant & his co-offender, he called out to them to halt, whereupon the appellant ran up the stairs & the security officer gave chase. In jumping over a railing, the appellant was injured & was taken to hospital. When police arrived at the school, they examined a black bag & orange box on the stairs, which were found to contain computer equipment. Two days later, appellant attended Newtown Police Station. He told police that he was at the school because of a phonecall he received from his distraught co-offender. He said the reason he went there was to ensure her safety. He denied that he had handled the box containing the computer equipment & said that he had in fact tripped over it when he ran up the stairs.
Joint criminal enterprise - sufficiency of evidence - directions on lies - request for further direction - one reference to stealing as distinct from breaking entering and stealing - whether miscarriage - proviso - whether sentence excessive.
Appeal dismissed.
373

LI, Alan Siu - CCA, 23.10.2003 139 A Crim R 281
Ipp JA, Whealy & Howie JJ
Citation: Li v R; R v Li [2003] NSWCCA 290
Conviction appeal and Crown appeal.
1 x knowingly concerned in the importation of commercial quantity heroin.
12y with NPP of 9y.
Appellant played an important supervisory role in a criminal enterprise involving a shipment of concealed heroin which arrived in Australia from Thailand. The shipment involved a number of blocks of heroin with a pure weight of 2,495.6 grams. In a joint operation with Thai police, Australian Federal Police intercepted the heroin when it arrived in Australia & substituted it with another substance. The addressee of the shipment gave evidence against appellant, explaining that the shipment was part of an international scheme involving a number of people. Tendered at trial were recorded telephone conversations & surveillance evidence, including camera footage.
Aged 46 at time of offence - Australian citizen born in Hong Kong - "Overall responsibility for the importation and delivery [of the drugs]" - principal or manager of operation in Australia - previous conviction for drug offence - some assistance to authorities - wife deported as a result of incarceration - previous imprisonment.
Conviction appeal: Admissibility of expert voice similarity evidence - admissibility of visual identification evidence - warnings - whether error - whether miscarriage - whether verdict unreasonable.
Conviction appeal dismissed.
Crown appeal: Error in starting point for head sentence - discount for assistance overly generous - whether sentence manifestly inadequate.
Crown appeal allowed: resentenced to 15y with a NPP of 11y 3m.
374

STANBOULI, Simon - CCA, 4.12.2003 141 A Crim R 531
Spigelman CJ, Hulme J, Carruthers AJ
Citation: R v Stanbouli [2003] NSWCCA 355
Crown appeal.
Conspiracy to import commercial quantity heroin.
13*y with NPP of 10y.
Respondent was employed in a licensed Customs broker and freight forwarding agency. The respondent's position enabled him to oversee the receipt, clearance & delivery of the shipments. There were 46 shipments in all, although some were 'dummy runs'.  Respondent said he was paid about $200,000 in total for his involvement.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 19y with NPP of 12y.
375

McCORMACK, Tyrone Mark - CCA, 29.10.2003
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v McCormack [2003] NSWCCA 340
Conviction appeal.
Knowingly take part in supply of cannabis resin.
2y with NPP of 1*y.
Appellant was convicted & sentenced for the above offence on 25.10.93. His subsequent appeal against conviction was dismissed. In 1996, evidence was led at the Royal Commission into the NSW Police Service that, apart from one police officer, all the police officers who gave evidence at the appellant's trial were corrupt. Each of the police officers was a member of the Gosford Drug Squad. On 6.6.2002, appellant petitioned the Governor of NSW for a referral of those proceedings to the CCA. On 23.9.2002, the Attorney General of NSW referred the matter to the CCA pursuant to s.474C(2) Crimes Act 1900.
The Court held that it was quite clear that at the trial the crucial issue was whether or not the police were giving honest testimony. Evidence had been led at the Royal Commission that 4 of the officers were in fact corrupt & that those officers fabricated evidence against suspects. Such evidence was the critical issue in the appellant's trial.
Whether miscarriage of justice.
Appeal allowed: verdict of acquittal entered.
376

DANG, Alan Andrew - CCA, 20.11.2003
Barr J, Miles AJ
Citation: R v Dang [2003] NSWCCA 338
Sentence appeal.
1 x robbery while armed with offensive weapon.
4*y with NPP of 2*y.
Offence involved the robbery of a convenience store.
Aged 20 at time of sentencing - guilty plea - drug addiction - under the influence of drugs at time of offence - genuine remorse - good prospects of rehabilitation - no priors.
Whether sentence excessive.
Appeal dismissed.
377

ARULTHILAKAN & MKOKA - HC, 10.12.2003 78 ALJR 257
Citation: Arulthilakan v The Queen; Mkoka v The Queen [2003] HCA 74
On appeal from South Australia.
Appeals against conviction.
Murder; wound with intent to do GBH; attempted armed robbery.
The 2 appellants & a 3rd offender were involved in the above offences. At trial, appellants sought to make out a case of self-defence. The trial judge declined to leave self-defence to the jury & the CCA upheld that decision. The central issue in the appeal to High Court concerned the complicity of the appellants in the stabbing of the deceased victim by the 3rd offender. The prosecution case against each appellant on the charge of murder was left to the jury on 3 alternative bases, the first 2 related to murder at common law, the third related to what was described as statutory murder. The grounds of appeal were confined to the directions given concerning statutory murder.
Appeal dismissed.
378

TAYLOR, Michael James - CCA, 7.11.2003
Spigelman CJ, Bell J, Miles AJ
Citation: R v Taylor [2003] NSWCCA 194
Conviction and sentence appeals.
Murder.
18y with NPP of 14y.
Appellant shot deceased. Deceased was an old acquaintance of appellant's ex-girlfriend. Prior to appellant & his girlfriend separating, deceased resumed contact with the girlfriend & they began seeing each other from time to time. This distressed appellant as he believed the deceased was a heroin user.
Unfavourable witness - whether leave should be granted pursuant to s.38 Evidence Act in a case in which witness does not recall circumstances of making statement to police - admissibility of solicitor's file note containing instructions from a client as a business record under s.69(2) Evidence Act - exercise of s.135 discretion to exclude evidence tendered on behalf of an accused in criminal proceedings. When proceedings for an offence are instituted for the purpose of the Crimes Self-Defence Amendment Act 2001 - whether re-arraignment on an indictment in all material respects the same as an earlier indictment amounts to the substitution of an indictment for s.20 Criminal Procedure Act 1986.
Whether sentence excessive.
Appeals dismissed.
379

HOERLER, Christopher - NSW SC, Miles AJ, 11.12.2003
Citation: R v Hoerler [2003] NSWSC 1187
Remarks on Sentence.
Manslaughter.
Deceased was a 7 month old baby who was found dead on the arrival of ambulance officers in the early hours of the morning. The baby's body bore the marks of multiple & severe injuries.
Offender was charged with murder, to which he pleaded not guilty. The trial proceeded & at the close of the prosecution case, counsel for the offender sought time to get instructions from him. The following day, a plea of guilty to manslaughter was entered, which was accepted by the prosecution.
Late plea of guilty to manslaughter - principles - whether worst category - whether maximum sentence appropriate - effect of plea - remorse - utilitarian value - deterrence - denunciation.
Sentenced to 11y with NPP of 8y 3m.
380

HOBDAY, Nathan Andrew - CCA, 19.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Hobday [2003] NSWCCA 345
Sentence appeal.
Dangerous drive causing death.
5y with NPP of 3y.
Applicant & his passenger had been drinking for approx 2 hours at a country club. During their journey home, the applicant's vehicle collided with a tree. The passenger died as a result of head injuries sustained in the collision.
Aged 21 - high level of blood alcohol concentration - travelling at 70 in a 60 kph zone.
Errors detectable in sentencing judge's remarks - need to accommodate discount for utilitarian value & offender's subjective case - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with NPP of 1y 9m.
381

HECTOR, Steven John - CCA, 15.7.2003
Sheller JA, James & O'Keefe JJ
Citation: Hector v R [2003] NSWCCA 196
Sentence appeal.
1 x sexual intercourse without consent; 1 x B&E dwelling with intent to commit serious indictable offence; + Form 1 offences (take & drive conveyance without consent, enter dwelling & commit serious indictable offence, drive whilst disqualified).
8y with NPP of 5y.
Agreed statement of facts.
Aged 30 at time of offences - drug addiction since teens - multiple priors, including drug offences - previous imprisonment.
Whether circumstances of aggravation wrongly taken into account - whether sentences manifestly excessive.
Appeal dismissed.
382

HICKEY, Andrew James - CCA, 17.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Hickey [2003] NSWCCA 344
Sentence appeal.
Count 1: escape from lawful custody; + Form 1 offence (assault police) - 3m FT;
Count 2: BE&S; + Form 1 offence (attempt BE&S); Count 3: BE&S - concurrent terms of 2y with NPP of 9m, cumulative upon FT;
Count 4: BE&S - 12m FT (concurrent).
Effective total of 2y 3m with NPP of 12m.
Unfavourable family background - low intelligence - minimal education - has never had paid employment - effectively illiterate - on 2 bonds at time of above offences - long criminal history, starting at age 11
Appeal allowed: sentences on counts 2&3 set aside, resentenced on those counts to 2y with a NPP of 6m.
383

LEBLER, Natalis Andre - CCA, 11.12.2003
Meagher ACJ, Kirby & Shaw JJ
Citation: R v Lebler [2003] NSWCCA 362
Conviction appeal.
2 x sexual intercourse without consent.
Appellant stood trial on 3 counts of sexual intercourse without consent. The jury returned a verdict of not guilty on the 1st count & guilty on the remaining 2 counts.
Each act of sexual intercourse was said to have taken place in appellant's car which was parked in a remote area outside Nimbin.
Inconsistent verdicts - unreasonableness of verdict - use of doubt on one count when resolving issues on other counts - pressure on jury to reach verdict - recklessness in context of consent to sexual intercourse - directions on complaint evidence of accused's denials.
Appeal dismissed.
384

OLSON, Raymond Patrick - CCA, 18.11.2003
Tobias JA, Hidden & James JJ
Citation: R v Olson [2003] NSWCCA 349
Sentence appeal.
1 x armed robbery.
5y with NPP of 3y 9m.
Applicant's co-offender grabbed hold of a woman's handbag as she was entering her car, then ran off with it. He returned to the vehicle where the applicant was waiting for him & the car sped off. A witness followed the car & subsequently called police.
Whether discount should have been given for assistance to authorities in relation to co-offender - whether sentence excessive.
Appeal allowed: resentenced to 4y 3m with NPP of 3y 2m.
385

DUKINO, Alan - CCA, 12.12.2003
MOSHREF, Adrian
Barr J, Newman AJ
Citation: R v Dukino; R v Moshref [2003] NSWCCA 379
Sentence appeal.
Dukino: 1 x robbery in company - 5y with NPP of 2y 9m.
Moshref: 3 x robbery in company - total of 5y with NPP of 2y 9m.
Both applicants pleaded guilty. All offences took place at the Guildford Railway Station, however, 2 of the offences with which Moshref was charged took place on 22.2.2002 & the robbery for which both applicants were charged took place on 26.2.2002. The 22.2.2002 offences involved a group of young people accosting & robbing a male & female who were sitting waiting on one of the station platforms. The male was assaulted & the female threatened. The male victim was robbed of $5, as well as his mobile phone, valued at $170. The female victim was robbed of $200 cash. The offence on 26.2.2002 was perpetrated upon a female customer service attendant who had just unlocked the door to the station-master's office. She was hit in the face & pushed to the floor. One of the offenders then kicked her left thigh & stood on her left foot. The offenders took approx $480 from a drawer under the counter, then left. On their way out, one of the offenders kicked the victim's left foot.
Parity - totality - use of criminal record - discount.
Appeals dismissed.
386

CHANG, David - CCA, 14.10.2003
Sheller JA, Sully & Howie JJ
Citation: R v Chang [2003] NSWCCA 327
Sentence appeal.
1 x supply heroin on 3 or more occasions; 1 x supply heroin; + Form 1 offences (goods in custody).
Total sentence of 6y 3m with NPP of 4*y.
The goods in custody matters related to 2 amounts of cash ($1,740 & $2,650).
Guilty plea - free & frank admissions.
Insufficient weight given to applicant's disclosure of otherwise undetectable guilt - error in stating amount of heroin - whether sentence manifestly excessive.
Appeal dismissed.
387

SHEPHERD, Robert Shane - CCA, 28.11.2003
Meagher JA, Kirby & Shaw JJ
Citation: R v Shepherd [2003] NSWCCA 351
Sentence appeal.
Count 1: affray - 1y with NPP of 6m;
Count 2: malicious wounding - 3y 9m with NPP of 2y (cumulative upon expiry of NPP on count 1).
Total sentence of 4y 3m with NPP of 2y 6m.
Appellant was one of 3 or 4 people involved in a brawl at a caf* attached to the Shell service station at Wilcannia, which took place during the evening as the caf* was about to close. Appellant & his companions had been drinking during the day. Appellant went into the caf* & asked for 2 dim sims. He asked for credit but was refused. He began shouting angrily, then left the premises & returned a short time later, accompanied by his co-offenders. An affray got out of hand & the victim was knocked to the ground, hit with a baseball bat & stabbed. The incident was captured on video surveillance maintained at the premises. One of the co-offenders did the stabbing. Although he was seen to join in the fracas, there was no clear evidence as to exactly what part the appellant played.
Wounding - whether a wounding - sufficiency of evidence - wounding amounting to a split lip caused by a punch - whether sentence excessive.
Appeal allowed insofar as sentence on count 2 quashed, resentenced on that count to 2y with NPP of 1y.
New total of 2y 6m with NPP of 1y 6m.
388

GLEKIS, Matthew - CCA, 25.11.2003
Hodgson JA, Grove & Howie JJ
Citation: R v Glekis [2003] NSWCCA 348
Conviction appeal.
Count 1: assault & commit act of indecency;
Count 2: sexual intercourse without consent.
The jury returned a verdict of guilty to the 1st count & not guilty to the 2nd count.
Sentenced to 1y suspended sentence.
The victim, a young Japanese woman who was in Australia on a working holiday, alleged that the appellant followed her into the women's change rooms at a gymnasium & perpetrated the above offences on her.
Whether verdict unreasonable or illogical.
Appeal dismissed.
389

FOWLER, Warwick - CCA, 11.11.2003 151 A Crim R 166
Tobias JA, James & Howie JJ
Citation: R v Fowler [2003] NSWCCA 321
Conviction and sentence appeal.
Murder.
10y 10m with NPP of 6y 10m.
This was the 3rd conviction for the above offence, the 2 previous convictions having been set aside after successful appeals to the CCA. This was a circumstantial case. The Crown alleged that the appellant was either the person who inflicted one or more of the bullet wounds to the deceased or, alternatively, was present at the time of the shooting, aiding or encouraging the person responsible for inflicting the wounds.
Lies as evidence of consciousness of guilty - circumstantial evidence - motive - accessorial liability - whether error in directions - warnings - whether error in permitting cross-examination of particular witness - whether error in admitting particular evidence - whether error in directions on meaning of unsworn statement - whether sentence excessive.
Appeal dismissed.
390

HEJAZI, Michael Mohammed - CCA, 3.12.2003
Wood CJ at CL, Smart AJ
Citation: R v Hejazi [2003] NSWCCA 383
Sentence appeal.
Supply commercial quantity methylamphetamine; supply large commercial quantity methylamphetamine; + Form 1 matters involving the supply of drugs.
Total of 9y with NPP of 6y.
The above offences were detected as a result of an undercover police operation.
Whether sentences imposed disproportionate to those imposed on co-offender.
Appeal dismissed.
391

FERRADA, Fernando - CCA, 18.12.2003
Barr & Kirby JJ
Citation: R v Ferrada [2003] NSWCCA 387
Sentence appeal.
B&E and commit serious indictable offence; robbery; armed robbery.
Total of 11y with NPP of 7y.
Applicant reversed a station wagon into the front doors of a produce store & stole cattle drench worth over $20,000. He drove to another part of town & tried to unload the stolen goods. Realising he had been seen, he drove off & set fire to the vehicle in order to distance himself from the offence. Some stolen goods were recovered.
A month later, he entered the offices of a credit union, wearing a black stocking over his head. He asked for cash & warned staff not to press the alarm. In all, he took $4,050.
Five days later, armed with a kitchen knife & wearing a black stocking over his head, applicant entered the offices of another credit union. This time he stole more than $39,000.
Guilty plea - assistance to authorities - contrition - heroin addict - personal & general deterrence.
Whether sentence excessive.
Appeal dismissed.
392

NAIR, Nilseh Nand - CCA, 3.12.2003
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Nair [2003] NSWCCA 368
Crown appeal.
2 x robbery in company.
12m suspended sentence on 1st count + an 18m GBB on the 2nd count.
The offences arose from the same incident, which involved respondent & his 2 co-offenders robbing an adult book exchange of $3,787 & a customer of that bookshop of $170.
Respondent's role limited - very favourable subjective case.
Whether sentences manifestly inadequate.
Appeal dismissed.
393

WEST, Anthony Charles - CCA, 18.12.2003
Santow JA, Hulme & Hidden JJ
Citation: R v West [2003] NSWCCA 403
Conviction appeal.
1 x robbery in company.
3y with NPP of 1y.
Applicant's co-offender approached the victim whilst walking along a street & asked for a cigarette. The victim gave the co-offender some cigarette butts or tobacco. The 3 men then stood together. The co-offender then walked a short distance away, then returned & unsuccessfully tried to remove the victim's wallet from the rear pocket of his trousers. The 3 men remained together for a short period, then the co-offender made another attempt to take the victim's wallet. The victim chased the co-offender, who was picked up by police shortly thereafter. There was clear evidence that the co-offender was acting on his own behalf & that the applicant had no involvement in the incident. Applicant & his co-offender had been drinking in a local park for much of the morning.
Evidence insufficient to support guilty verdict.
Appeal allowed: conviction & sentence quashed.
394

PHILLIPS, Benjamin - CCA, 8.12.2003
Sully & Hulme JJ, Miles AJ
Citation: R v Phillips [2003] NSWCCA 373
Sentence appeal.
1 x supply MDMA (ecstasy).
3y with NPP of 2y 3m.
Applicant gift-wrapped a box & despatched it from Mascot Airport via Australian Air Express to an address in Mackay, Queensland. The package was intercepted & x-rayed at Mackay Airport where it was found to contain 100 ecstasy tablets.
Early guilty plea - whether failure to discount - Thomson and Houlten (2000) 49 NSWLR 383; Ellis (1986) 6 NSWLR 603 - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 1y 3m.
395

HIDE, Sonia - CCA, 9.12.2003
Barr J, Newman AJ
Citation: R v Hide [2003] NSWCCA 371
Sentence appeal.
1 x ongoing supply of cocaine & methylamphetamine for financial reward.
4y with NPP of 2y.
The offence arose from the supply of drugs to an undercover police operative on a number of occasions.
Aged 29 at time of sentence - guilty plea - obtained school certificate, however, said to be illiterate & innumerate - had various unskilled jobs in the past - sole carer of 4* year old daughter - not worked since birth of child - 5 months pregnant at time of sentence.
Hardship to daughter & unborn child - mitigation - whether sentence excessive.
Appeal dismissed.
396

STRAHAN, Martin Francis - CCA, 16.12.2003
Hodgson JA at 23; Hulme J at 1; Hidden J
Citation: R v Strahan [2003] NSWCCA 397
Sentence appeal.
Accessory after the fact to manslaughter.
FT of 3y to be served by way of PD.
Although applicant was present when the deceased died as a result of being savagely beaten & kicked, he took no part in the assault, however, he & the killer wrapped the body of the deceased in a tarpaulin, put it in a car, took it into the bush & dumped it. The killing remained undetected for 6 months.
Applicant does not have a car & has difficulty in travelling from his home in the Bateman's Bay area to the PD centre at Unanderra. At times he has been absent from his PD without leave. The Parole Board revoked the PD order on 3 occasions, the last of which resulted in applicant being required to serve the then outstanding balance of his sentence by way of full-time imprisonment. At the time of the appeal, applicant had served 84 periods of PD, which was the equivalent of 2 years & 32 weeks.
Guilty plea - aged 25 at time of sentence - prior criminal record, including offences involving drugs, dishonesty & firearms - previous imprisonment.
Failure to fix NPP.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
397

KING, Philip Nathan - CCA, 19.12.2003 59 NSWLR 472;139 A Crim R 132
Spigelman CJ, Dunford & Adams JJ
Citation: R v King [2003] NSWCCA 399
Crown appeal against an interlocutory judgment in the DC permanently staying proceedings.
Maliciously inflicting GBH with intent to do GBH.
The DC judge determined that the offence as charged was 'doomed to failure'& made an order that the count under s.33 of the Crimes Act be permanently stayed.
Respondent & complainant engaged in a single act of consensual sexual intercourse, after which the complainant became pregnant. The respondent was unsuccessful in persuading the complainant to have an abortion. He offered to pay others to assault the complainant, but they refused. When the pregnancy was between 23 & 24 weeks, respondent assaulted the complainant. He kicked her in the stomach & stomped on her stomach about half-a-dozen times. The complainant was taken to hospital & an ultrasound was performed. No heartbeat was detected. The foetus was delivered stillborn 3 days later.
Whether death of foetus can constitute GBH to mother - meaning of 'person' in s.33 Crimes Act 1900.
Appeal allowed: order of permanent stay set aside. Respondent to have a certificate under the Suitors' Fund Act 1951.
398

SULTAN, Shadi - CCA, 3.12.2003
N
Wood CJ at CL, Smart AJ
Citation: R v Sultan; R v N [2003] NSWCCA 404
Sentence appeals.
Aggravated BE&S.
Each received a sentence of 9y with a NPP of 5y.
This was a home invasion type offence. Applicants & a co-offender broke into a home occupied by a man, his wife & their child. They threatened the male victim & demanded to know where he kept his safe. The wife & child managed to escape to their neighbour's house to get help. Shadi Sultan (wearing either a mask or balaclava) was armed with a baseball bat, & N (wearing a clown mask) with a knife. The co-offender (wearing a black gorilla mask) was armed with a shotgun. Another co-offender, who had armed himself with a pistol, pulled out of the arrangement when he reached the front gate. According to him, he decided at that point not to stay & assist the others. It was this co-offender who was charged by police & who made statements implicating the others.
Each applicant pleaded guilty - correct approach to prior criminal history - a few minor offences did not disentitle offenders to all leniency - application of principle of parity.
Appeals allowed: N resentenced to 7y with NPP of 4y; Sultan resentenced to 7y with NPP of 4y.
399

RK - CCA, 8.12.2003
Hidden J, Smart AJ
Citation: R v RK [2003] NSWCCA 389
Sentence appeal.
1 x use firearm without permit - 1y FT; 1 x malicious wounding - 2y with NPP of 15m (cumulative).
Total sentence of 3y with NPP of 2y 3m.
Applicant fired 3 shots at the victim at Bradfield Park, Milson's Point, resulting in the victim being hit 3 times in the leg. He lost a large amount of blood & required hospitalisation.
Valuable assistance to authorities - applicant in danger - whether sentence excessive.
Appeal allowed insofar as NPP on 2nd count reduced to 14m.
400

DEPOMA, Torrens - CCA, 15.12.2003
Barr & Kirby JJ
Citation: R v Depoma [2003] NSWCCA 382
Sentence appeal.
2 x dispose of stolen property; + Form 1 offences (2 x goods in custody, 2 x furnish false or misleading information).
Total of 2y with NPP of 1y 2m.
Applicant was arrested after he had been identified as having pawned stolen goods.
Multiple priors - previous imprisonment.
Whether offences could have been dealt with in the LC - failure to take into account effect of accumulating sentences upon a previous sentence - whether sentences manifestly excessive.
Appeal dismissed.
401

JENKIN, Mark Kenneth - CCA, 1.12.2003
Wood CJ at CL, Smart AJ
Citation: R v Jenkin [2003] NSWCCA 378
Sentence appeal.
Detain with intent to hold for advantage; assault with intent to rob in circumstances of aggravation.
Total of 11y with NPP of 8y.
The offences took place at the McDonalds Construction site at Warrawong. Towards the end of his shift, a security guard went to the nearby Commonwealth Bank ATM & withdrew $200. On his return, he was about to collect his belongings before catching the bus home when he was grabbed by a man wearing a black hat, a mask & latex gloves. The man was carrying a gun. He pushed the victim into the portable toilet block. The site foreman became concerned when the victim failed to return & having heard the commotion in the toilet block, went to investigate, whereupon he was confronted by a gun-wielding man in dark clothing with a black stocking over his face & wearing a baseball cap. He was ordered into a shower cubicle where he remained.
Eyewitnesses - co-offender - DNA evidence.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
402

STEPHEN, Peter Alexander - CCA, 1.12.2003
Wood CJ at CL, Smart AJ
Citation: R v Stephen [2003] NSWCCA 377
Sentence appeal.
1 x receiving; + Form 1 offence.
3y FT to be served by way of PD. No NPP specified.
Applicant received 11 stolen laptop & desktop computers & sold them to a man who on-sold them to another. Each man was charged with offences connected with receiving and/or disposal of stolen computers.
Whether error in declining to fix NPP.
Appeal allowed: 2y 3m NPP specified to be served by way of PD.
403

MASON, Samuel - CCA, 1.10.2003 140 A Crim R 274
Tobias JA, Howie & Shaw JJ
Citation: R v Mason [2003] NSWCCA 331
Conviction appeal.
1 x robbery with offensive weapon.
3y with NPP of 2y 3m.
The offence related to an armed robbery perpetrated by the appellant & his co-offender at a Video Ezy outlet in Woodcroft. The appellant was armed with a screwdriver at the time.
Tendency evidence - whether trial judge should have admitted such evidence.
Appeal dismissed.
404

PLUMB, Craig John - CCA, 1.12.2003
Wood CJ at CL, Smart AJ
Citation: R v Plumb [2003] NSWCCA 359
Sentence appeal.
2 x aggravated dangerous drive occasioning GBH.
Total sentence of 2*y with NPP of 1*y + disqualified from driving for 2 years.
Applicant's car was involved in a head-on collision with an oncoming vehicle. At the time, applicant's car had crossed onto the incorrect side of the road over double unbroken lines, on the crest of a hill. Applicant had a blood alcohol concentration between 0.205 grams per 100 millilitres & 0.260 grams per 100 millilitres of blood. Applicant admitted to travelling at about 100 kph at the time of the collision. Applicant was a long-term employee with the RTA. The occupants of the other vehicle suffered multiple fractures & serious injuries.
Early guilty plea.
Whether sentence excessive.
Appeal dismissed.
405

DKM - CCA, 9.12.2003
Barr J, Newman AJ
Citation: R v DKM [2003] NSWCCA 372
Sentence appeal.
2 x carnal knowledge (complainant aged 12 & 15); 1 x sexual intercourse without consent (complainant aged 17).
Total of 7*y with NPP of 6y.
Applicant was charged with having committed a number of sexual offences upon his daughter. By an arrangement made in the LC, he pleaded guilty to the above 3 counts & the prosecution offered no evidence on the remaining charges, which were dismissed. Applicant was sentenced in the DC to 4*y with a NPP of 3y on each count. The sentences were partially accumulated, resulting in the total sentence mentioned above.
Accumulation of sentences - whether effective total excessive.
Appeal dismissed.
406

LOWE, Simon - CCA, 28.8.2003
Ipp JA, Grove & Dowd JJ
Citation: R v Lowe [2003] NSWCCA 303
Application for leave to appeal under s.5F Criminal Appeal Act 1912 against refusal to stay proceedings.
Exercise of judicial discretion - onus on applicant to establish error - pre-trial publicity.
Application dismissed.
407

LEE, Todd Andrew - CCA, 18.12.2003
Barr & Kirby JJ
Citation: R v Lee [2003] NSWCCA 391
Sentence appeal.
Detain person with intent to obtain advantage (advantage being the avoidance of apprehension); + five related offences on a Form 1.
6*y with NPP of 3*y.
The offence related to a teacher & her pupils being held hostage by the applicant. At the time, applicant was armed with a Stanley knife, scissors & items he said were explosives. He originally gained access to the building in order to steal money. Applicant assaulted 3 of the school children during the commission of the principal offence.
Mentally unwell but not insane - deterrence - whether sentence gave proper weight to mental state.
Appeal allowed: resentenced to 5y with NPP of 2*y.
408

GARLICK, Maxwell Henry - CCA, 18.12.2003
Sully, Greg James & Adams JJ
Citation: R v Garlick [2003] NSWCCA 398
Conviction appeal.
6 x sexual offences.
Thirty seven years had elapsed between the time of the 1st alleged offence & the time when complainant made a statement to police. Complainant was aged between 13 & 17 and the appellant between 25 & 29 at the time of the alleged offences. Appellant was aged 65 at the time of trial.
Long delay in complaint - directions inadequate - whether error - whether miscarriage - proviso - sentence substantially served - whether to order new trial or acquittal.
Appeal allowed: verdict of acquittal entered.
409

SANDISON, Stephen John - CCA, 29.8.2003
Mason P, Hidden & Shaw JJ
Citation: R v Sandison [2003] NSWCCA 320
Sentence appeal.
Drive in manner dangerous causing GBH.
Sentence not stated.
Custody dispute contributed to dangerous driving resulting in hitting a pedestrian.
Victim known to driver - abandonment of responsibility - guideline in White (2002) 55 NSWLR 252- whether sentence excessive.
Appeal dismissed.
410

SHENTON, Patrick Neville - CCA, 17.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Shenton [2003] NSWCCA 346
Sentence appeal.
Maliciously inflict GBH with intent to do GBH
5y with NPP of 3y.
Applicant entered the victim's house by opening a door. He then viciously attacked her using a large metal torch. The victim suffered serious fractures, including to her skull.
Discount for plea - desirability of explicit statement of extent of discount- whether sentence excessive.
Appeal dismissed.
411

TANG, Choi Kian - CCA, 19.12.2003
Spigelman CJ, Dunford & Adams JJ
Citation: R v Tang [2003] NSWCCA 357
Conviction appeal.
Murder.
Appellant was convicted of murder. This was his 2nd trial upon this charge, following a successful appeal to the CCA ( R v Tang [2001] NSWCCA 210). Although a number of grounds of appeal were notified, the only ground pressed was that the learned trial judge erred in directing the jury in accordance with the principle in Jones v Dunkel in respect of witnesses not called by the appellant.
Absence of evidence - Jones v Dunkel direction against accused - no evidence that witness available - duty of Crown - no onus on defence to call any witness.
Appeal allowed: new trial ordered.
412

CAIRNS, Scott Benjamin - CCA, 5.12.2003
Hidden J, Smart AJ
Citation: R v Cairns [2003] NSWCCA 395
Sentence appeal.
Maliciously damage property by fire.
4*y with NPP of 3y.
Applicant, aged 19 at the time, & a Mark Wakeling, aged 18, were involved in an altercation at a nightclub. Almost 2 weeks later, applicant & his 2 friends, after drinking all night, decided to go to the Wakeling house with incendiary devices. Applicant & his friends arrived at the house at about 5:00am. Applicant lit the piece of cloth protruding from one of the bottles containing petrol & threw the bottle through a window into the front of the house. One of the other youths threw the other bottle. They saw a fire start, then left. Applicant sentenced on the basis that he thought someone would put the fire out before substantial damage occurred. Applicant said he had no knowledge of whether there was anyone in the house.
Balancing of gravity of crime with rehabilitation of young offender - delay in giving assistance.
Appeal allowed: resentenced to 4y with NPP of 2y.
413

ELFAR, Andrew Salim - CCA, 2.12.2003
Ipp JA, Whealy J, Davidson AJ
Citation: R v Elfar [2003] NSWCCA 358
Crown appeal.
Conspire to dispose of stolen property.
3*y with NPP of 1*y.
The offence related to the large-scale business of re-birthing of motor vehicles for transport to Jordan & elsewhere. Respondent's father was the head of the business. A report from the Probation and Parole Service referred to the fact that when respondent was in his 1st year at the University of Western Sydney, his father directed him to cease studying & assist him in his smash repair workshop. Respondent said he ran errands for his father & said that his father always told him what to do. He said he was never paid a salary, although his father would periodically give him a couple of hundred dollars. Respondent's father had been in prison previously for charges relating to re-birthing of vehicles.
Difficult relationship with father - father an aggressive man who would beat respondent - contrition - remorse - no relevant prior criminal history.
Whether sentence manifestly inadequate.
Appeal dismissed.
414

WRC - CCA, 19.12.2003 59 NSWLR 273
Spigelman CJ, Dunford & Hidden JJ
Citation: R v WRC [2003] NSWCCA 394
Crown appeal pursuant to s.5F Criminal Appeal Act 1912 against an order made in the DC permanently staying proceedings.
Respondent was charged with a number of counts of indecent assault upon a male person. At trial, the jury was unable to reach a verdict & was discharged. Respondent had also been convicted of similar acts in relation to 2 other complainants & had served some 20 months' imprisonment, however, in 2002 the CCA quashed those convictions & ordered retrials. The DPP decided there would be no further proceedings in those matters. On 27.6.2003, Woods DCJ ordered a permanent stay of proceedings on the indictment as an abuse of process on the ground that the respondent was unfit to be tried. He concluded that it was neither necessary nor appropriate to invoke the procedure to determine fitness to be tried under the Mental Health (Criminal Procedure) Act 1990, given the circumstances of the respondent's condition.
Fitness to plead - where trial judge ordered permanent stay of proceedings as abuse of process - test for ordering permanent stay - whether procedure for determining fitness to plead in Mental Health (Criminal Procedure) Act 1990 should have been allowed to operate - relationship between Mental Health (Criminal Procedure) Act & inherent jurisdiction of superior courts.
Appeal allowed: order made by Woods DCJ set aside.
415

Em, Sophear - CCA, 12.12.2003
Ipp JA, Hulme & Howie JJ
Citation: R v Em [2003] NSWCCA 374
Crown appeal under s.5F Criminal Appeal Act in respect of orders made excluding certain evidence that the Crown seeks to rely upon in prosecuting respondent on a number of charges, including murder. Shaw J rejected the Crown's tender of evidence of 2 conversations between investigating police & the respondent. The charges respondent faces arise from 2 incidents of home invasion.
Admissibility of evidence, admissions - secretly recorded conversation - failure to fully caution - persistent questioning - whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial - application of statutory discretions.
Appeal allowed: order that the order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 be vacated.
416

STAVRINOS, Anthony - CCA, 9.12.2003 140 A Crim R 594
Barr & Greg James JJ, Miles AJ
Citation: R v Stavrinos [2003] NSWCCA 339
Conviction appeal.
2 x supply MDMA (ecstasy).
Total of 2y with NPP of 1y.
The Crown case was that appellant possessed drugs for supply. During his closing address, the Crown prosecutor made comments regarding appellant's answers to police during investigation.
Right to silence - whether breached by Crown Prosecutor's closing address - whether consequent direction appropriate.
Appeal allowed: verdicts of acquittal entered.
417

DELANEY, Bryce Trent - CCA, 14.11.2003 59 NSWLR 1
Santow JA, James & Barr JJ
Citation: R v Delaney [2003] NSWCCA 342
Sentence appeal.
Robbery in company; + offences taken into account.
4y with NPP of 2y.
Applicant, in company with 2 others, entered a convenience store. One of the men pointed a syringe at the shop assistant & took money from the till. The 2nd man slammed his hand on the counter & demanded more money, then pushed the woman against the wall. The woman's husband entered from a small room at the rear of the shop brandishing the metal pipe from a vacuum cleaner. Applicant wrestled the pipe from the man & hit him with it, then used it to fend him off while the other 2 offenders made good their escape. All 3 men made their getaway in a car parked nearby. A witness outside the shop alerted police & shortly thereafter the 3 offenders were arrested.
Quasi-custody - time spent in drug rehabilitation programs - whether sufficient credit given.
Appeal allowed: resentenced to 3y 9m with NPP of 1y 10*m.
418

KING, David Scott - CCA, 21.11.2003
Handley JA, Grove & Adams JJ
Citation: R v King [2003] NSWCCA 352
Crown appeal.
Multiple B&E offences; + Form 1 offences (assault with intent to rob (x 2); robbery whilst armed with dangerous weapon (x 5); robbery; affray; attempt escape lawful custody; goods in custody).
3y with NPP of 1y 9m.
Forcing entry through the back door, respondent entered premises & stole items & cash totalling $24,052. He broke into other premises & stole goods & jewellery, total value $11,000. A 3rd break-in netted goods valued at $26,500.
Guilty plea - prior criminal history.
Young offender - unlawfully at large at time of offending - multiple offences - valuable total of property unrecovered - parity - co-offenders dealt with at Youth Drug Court - comment on purposes of remarks on sentence.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6y with NPP of 3*y.
419

PARK, Sung Eun - CCA, 10.12.2003
Mason P, James & Hidden JJ
Citation: R v Park [2003] NSWCCA 142
Crown appeal.
Murder.
26y with NPP of 19*y.
Respondent killed his wife & 2 young children. (See also R v Park [2003] NSWCCA 203.)
Challenges to judge's findings of fact - structure of sentences - whether sentences manifestly inadequate.
Appeal dismissed.
420

STIRRAT, Graham Emlyn - CCA, 19.11.2003
Handley JA, Grove & Adams JJ
Citation: R v Stirrat [2003] NSWCCA 350
Sentence appeal.
2 x armed robbery; 2 x robbery; + Form 1 offences (2 x demand money with menaces).
Total of 5y 8m.
Applicant robbed individuals of cash. He used a knife on 2 occasions & made threats on another occasion. One of the victims was employed by a building society. The judge was a customer of the building society. Applicant alleged that the judge was therefore biased.
Whether sentence excessive.
Application for leave to appeal dismissed.
421

BARTLE, Garry William - CCA, 3.12.2003
DIEZ, Maximiliano
FOX, Peter Darryl
FRY, Sir Thomas Graham
McCAFFREY, Thomas
ROBERTI, Robert Angelo
THOMPSON, Hamish Edmond
Mason P, Barr J, Smart AJ
Citation: R v Bartle & Ors [2003] NSWCCA 329
Conviction & sentence appeals;
Crown appeals.
Knowingly concerned in the importation of cocaine.
Bartle: 24y with NPP of 16y;
Diez: life with NPP of 25y;
Fox: 24y with NPP of 16y;
Fry: life with NPP of 25y;
McCaffrey: 24y with NPP of 16y;
Roberti: 24y with NPP of 16y;
Thompson: 24y with NPP of 16y.
The appellants & a man named Bateman were involved in the importation of 380 kgs of pure cocaine (see also R v Bateman [2000] NSWSC 915, James J 18.9.2000). A vessel was bought, repaired & equipped in NZ & sailed to a rendezvous point in the Pacific Ocean. The cocaine had been brought to that place on board another vessel by arrangement with suppliers in Central America. The drug was transhipped & taken to Patonga where it was seized when the transporting vessel landed on 1.2.2000. The cocaine seizure was then the largest in Australian history. In imposing sentence, the trial judge made detailed findings about the part played by each appellant & Bateman. He found that the criminality of Diez & Fry was so serious as to warrant imprisonment for life. He also found that Bateman masterminded & financed the Australian end of the enterprise & said that if Bateman had been before him he would have sentenced him to imprisonment for life.
Joint trial - whether miscarried - whether outburst by one joint accused that all accused had criminal records & had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately.
Conviction appeals by Bartle, Diez, Fry & Roberti dismissed.
Conviction appeals by Fox, McCaffrey & Thompson allowed: new trial ordered for each appellant.
Bartle, Diez, Fry & Roberti were granted leave to appeal against sentence, however, their appeals were dismissed.
Crown appeals dismissed.
422

K - CCA, 23.12.2003 59 NSWLR 431
Wood CJ at CL, Grove & Dunford JJ
Citation: R v K [2003] NSWCCA 406
Conviction appeal.
Murder.
On 14.8.2002, appellant was indicted for the murder of his 1st wife. A verdict of guilty was returned. This appeal was against that conviction.
Appellant had previously been placed on trial in relation to the murder of his 2nd wife but had been acquitted of that offence. Following the verdict in the current matter, virtually all of the members of the jury adjourned to a nearby hotel, which was also visited by the defence counsel. It was disclosed during conversations between counsel & a juror that a number of the jurors had acquired knowledge consequent upon internet searches about the history of the matter, although to varying degrees, including that the appellant had been accused of murdering his 2nd wife & that the current trial was a retrial in relation to the alleged murder of his 1st wife. Affidavits were obtained from 9 of the 12 jurors. That material related to the internet searches which had been made by individual jurors, the terms of which had been conveyed to other jurors & to the use which was made of that information by the jurors in coming to their verdict.
Whether trial miscarried if jury sought & found irrelevant, inadmissible & highly prejudicial material concerning the appellant.
Appeal allowed: new trial ordered.
423

RIMA, Mohamed - CCA, 22.12.2003
Tobias JA, Wood CJ at CL, Hidden J
Citation: R v Rima [2003] BSWCCA 405
Application for exclusion of identification evidence under s.137 Evidence Act.
Armed robbery.
Application allowed: Trial judge's ruling as to the victim's identification evidence be vacated; order that the Crown be permitted to lead evidence from the victim on the issue of identification; the respondent be granted a certificate under the Suitors Fund Act.
424

BESANT, Craig - CCA, 5.12.2003
Wood CJ at CL, Grove & Dunford JJ
Citation: R v Besant [2003] NSWCCA 388
Sentence appeal.
2 x dangerous drive occasioning death; + Form 1 matter (refuse to provide blood sample).
Total of 6y with NPP of 4y.
Applicant was a professional truck driver, driving his semi-trailer north on the Pacific Highway at Tabbimoble. He was on a tight time schedule & had set off from Blacktown. He said he needed to get to Brisbane within 9 hours. No rest times were recorded in his log book. The fatal impact occurred when applicant fell asleep. His semi-trailer veered onto the southern carriageway of the Pacific Highway, narrowly missing 2 oncoming cars. Applicant woke up & swerved back to the correct side of the road to avoid hitting another car. At the same time, that car also swerved in trying to avoid being hit by the applicant's truck & the 2 vehicles collided. The wife & daughter of the driver of the car died as a result of the impact.
Applicant originally pleaded not guilty. On the 4th day of the pre-trial voir dire he changed his pleas to guilty.
Discount for early pleas - meaning of 'early'- pleas after some days of voir dire hearing not 'early'.
Appeal allowed insofar as NPP varied. New total NPP 3*y.
425

McKEOUGH, Leigh Jason - CCA, 3.12.2003
Spigelman CJ, Dunford & Hidden JJ
Citation: R v McKeough [2003] NSWCCA 385
Crown appeal.
This appeal was against orders made in the DC ruling inadmissible evidence of the finding of 27.44 grams of methylamphetamine, 2 resealable plastic bags & a foil in a motor vehicle driven by respondent & the contents of an electronically recorded interview with the respondent following his subsequent arrest on the same day. The trial judge held that the search of the respondent's vehicle which resulted in the finding of the drugs was illegal, being not authorised by s.357E Crimes Act 1900 & that consequently the finding of the drugs & the admissions made by the respondent in the interview was improperly or illegally obtained evidence within the terms of s.138 Evidence Act 1995.
Whether error in finding that the search of the vehicle was illegal - whether error in ordering exclusion of electronically recorded interview - discretion to admit - exercise of discretion.
Appeal allowed: evidence of search of motor vehicle & of electronically recorded interview admissible in trial - matter remitted to DC for continuation of respondent's trial.
426

JJN - CCA, 19.12.2003
Tobias JA, Howie & Shaw JJ
Citation: R v JJN [2003] NSWCCA 402
Conviction appeal.
Aggravated indecent assault; sexual intercourse with person below 16.
In all, appellant was charged with 8 counts. The jury returned verdicts of guilty on counts 2, 3, 7 & 8 and verdicts of not guilty on counts 1, 4, 5 & the direction in relation to count 6.
The complainant in each count was the appellant's niece. The circumstance of aggravation for each count alleging indecent assault was that the complainant was a person under the age of 16, being 10 years old at the time. This was appellant's 3rd trial. The 1st trial was aborted after the jury had retired & one of the jurors realised that he or she knew one of the witnesses. The 2nd trial resulted in convictions on each count that were subsequently overturned by the CCA (see R v N [2002] NSWCCA 281).
Inconsistent verdicts - applicable principles - directions - whether verdicts unreasonable.
Appeal allowed: new trial ordered.
427

LEWIS, Bradley Scott - CCA, 5.12.2003
Hidden J, Smart AJ
Citation: R v Lewis [2003] NSWCCA 375
Sentence appeal.
Conspiracy to cheat and defraud.
2y with NPP of 18m.
Applicant wished to trade-in his car but felt that the trade-in amount was inadequate. He arranged for his car to be stolen & destroyed. The offence came to light when his co-offenders were caught speeding in the vehicle & confessions were made. Applicant was not the mastermind of the scheme but a willing participant once told of the idea.
Aged 21 - guilty plea.
Insufficient weight given to subjective features - whether sentence excessive.
Appeal allowed: resentenced to 12m with NPP of 16w.
428

LI, Peter - CCA, 19.12.2003 140 A Crim R 288
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Li [2003] NSWCCA 386
Conviction and sentence appeal.
3 x aggravated sexual intercourse without consent.
Sentence not stated.
The conviction followed upon a 2nd trial, the jury in the 1st trial having been discharged. A witness, who had given evidence during the 1st trial & whose evidence was crucial to the Crown case, was unavailable for the 2nd trial. The trial judge admitted the evidence given during the 1st trial into the 2nd trial, despite the fact that defence counsel had not cross-examined that witness during the 1st trial.
Summing up - directions - corroboration - onus of proof - reasonable doubt - lies - need for scrutiny of complainant's evidence - Crown prosecutor's final address - demeanour of complainant - reference to complainant's tears in court - 2nd trial after jury in 1st trial discharged - witness overseas - whether 'unavailable'- whether witness' evidence in previous trial admissible - depositions - requirement for reasonable opportunity to cross-examine - burden of proof.
Appeal allowed: new trial ordered.
429

KANAAN, Michael - CCA, 16.12.2003
EL-ASSAAD, Wassim
JAMAL, Saleh
Hodgson JA, Hulme & Hidden JJ
Citation: R v Kanaan; R v El-Assaad; R v Jamal
Crown appeal pursuant to s.5F Criminal Appeal Act 1912 against a judgment or order made.
The respondents had been charged with having discharged a firearm in or near a public place (s.93G(1) Crimes Act). In the course of argument concerning some preliminary points, the Crown briefly opened its case, indicating that it would be alleged that the 3 accused drove down Eveleigh Street in a stolen car & discharged a firearm from that car.
Firearm fired from car in public place - whether discharged in or near a public place - opinion of trial judge that facts alleged by Crown do not constitute offence - Hardman v DPP (NSW) [2003] NSWCA 130 referred to - whether an interlocutory judgment or order.
Appeal dismissed as incompetent.