RONEN, Ida - CCA, 22.3.2004 -
62 NSWLR 707RONEN, NitzanRONEN, IzharSpigelman CJ, Mason P, Kirby JCitation: R v Ronen & Ors  NSWCCA 67s.5F appeal against an interlocutory judgment.1 x conspire to defraud Commonwealth - s.86A
Crimes Act 1914 (Cth);1 x conspire to defraud Commonwealth - s.86(2)
Crimes Act 1914 (Cth).The s.5F appeal followed upon the trial judge dismissing an application by appellants which sought to set aside certain subpoenas that had been served on 4 corporations. At a preliminary hearing, the companies' payroll clerk had given evidence that, on the instructions of the appellants, a number of employees were paid in cash for overtime & that these payments were not recorded in the payroll. The payroll clerk indicated that old payroll records kept at the companies' premises might assist in showing the frequency & extent of the practice. The Crown served 4 subpoenas on the companies, seeking the production of all payroll reports for the period October 1991 to February 2001. The appellants sought to set aside the subpoenas on the basis that they were oppressive & an abuse of process because they required the accused, as the sole director & secretary of the company, & therefore its directing mind, to search for or direct others to search for & produce documents sought by the Crown to be used against each accused.Whether the proper officer of a company can claim privilege against self-incrimination where a subpoena
duces tecum is served on the corporation - meaning of 'proper officer'- whether requires express authority of the company to answer the subpoena - whether oppressive on the accused or an abuse of process for a corporation to comply with a subpoena where accused the sole director & secretary of the corporation - whether accused being asked to assist in preparation of Crown case - whether process of gathering documents an exercise of executive or judicial power.Appeal dismissed.
KEVENAAR, Theodorus - CCA, 28.6.2004 -
148 A Crim R 155DEDOES, MarinusPAN, Jin RongHulme, Simpson & Howie JJCitation: R v Kevenaar & Ors  NSWCCA 210Crown appeal.Kevenaar: Attempt possess commercial quantity MDMA (ecstasy) - 3y with NPP of 21*m.Aged 23 at offence - guilty plea - Dutch national - placed in children's home until age 18 following death of father & illness of mother - poorly educated - commenced work as garbage-man at 18 - genuine contrition - not much more than peripheral involvement on very edge of operation - rehabilitation well advanced - significant assistance - criminal record in Holland - prior BE&S - no previous imprisonment.Dedoes: Attempt possess commercial quantity MDMA (ecstasy) - 4y with NPP of 28*m.Aged 22 at offence - guilty plea - Dutch national - in children's home from ages 10-17 - lived on streets for several months, then with Salvation Army for approx 2 years - left school at age 16 - continuous labouring work for some 6 years - smoked cannabis (legal in Holland) several times a day by age 20 - demonstrated genuine contrition -
de facto wife & 2 children - criminal record in Holland - on probation at time of offence - similar role to that of Kevenaar - likely to serve entire sentence on strict protection - prior stealing - previous imprisonment for one week in Holland.Pan: Attempt possess commercial quantity MDMA (ecstasy) - 6*y with NPP of 3y 7*m.Aged 23 at offence - guilty plea - Dutch national - harsh early life, particularly from age 13 - no alcohol or cannabis use - occasional ecstasy user - genuine contrition not demonstrated - criminal record in Holland - on probation at time of offence - significantly more involved in criminal enterprise than co-offenders, but "slightly less than a middle man - prior offence of blackmail - previous imprisonment for one month in Holland.Respondents came to Australia to facilitate the distribution of ecstasy being imported into Australia. Dutch authorities notified the Australian authorities about the drugs & the Australian authorities intercepted the packages of drugs on their arrival & carried out a controlled delivery. One of the respondents took delivery of the packages. All 3 respondents were arrested when they met in a hotel room. The packages contained some 48,828 ecstasy tablets containing 5987.7 grams pure MDMA (accepted street value approx $50 per tablet).General deterrence - role of offenders - effect of repeal of s.16G of
Crimes Act (Cth).Appeals allowed & respondents resentenced as follows:
Kevenaar: 7y with NPP of 4*y;Dedoes: 7y 9m with NPP of 5y; Pan: 11y with NPP of 7y.
NELSON, Chantal Denise - CCA, 9.7.2004Grove, Dowd & Sperling JJCitation: R v Nelson  NSWCCA 231Conviction appeal.1 x aggravated dangerous drive causing death; 1 x aggravated dangerous drive causing GBH.Total of 6y with NPP of 2*y.Appellant was driving along a motorway with her
de-facto partner in the front passenger seat & 3 children in the rear seat. According to witnesses, the car was speeding at over 110 kph when it fishtailed & overturned. The
de facto partner died & one of the children suffered injuries amounting to GBH. A blood sample taken from the appellant shortly after the accident gave a reading of 0.194 grams of alcohol per 100 mls of blood. A police officer made a statement which claimed that when interviewing the appellant in hospital, she referred to one of the children's fathers & said "He might then come here and finish what I tried to do, kill myself." Appellant denied saying these words & testified that she said "my ex husband will come and kill me himself". She claimed that her
de facto had seized the steering wheel & that she was therefore not the driver of the car. She also relied upon the statutory defence that the harm was not in any way attributable to the fact that she was under the influence of alcohol (s.52A(8)
Crimes Act 1900). She gave differing versions as to who was in control of the car at the time of the accident.Aged 41 at time of offences - priors unknown.Whether miscarriage of justice in that evidence was received by the jury that should have been excluded - whether it was unfair not to exclude the comment made to the officer in the hospital, under s.90
Evidence Act 1995.Appeal dismissed.
The Guideline:(1) An ordinary case of the offence of high range PCA is one where:(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;(ii) the offender was detected by a random breath test;(iii) the offender has prior good character;(iv) the offender has nil, or a minor, traffic record;(v) the offender's licence was suspended on detection;(vi) the offender pleaded guilty;(vii) there is little or no risk of re-offending;(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:(i) an order under s 10 of the
Sentencing Act will rarely be appropriate;(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:(iv) a good reason under (iii) may include:(a) the nature of the offender's employment;(b) the absence of any viable alternative transport;(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:(i) an order under s 9 of the
Sentencing Act will rarely be appropriate;(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:(i) the degree of intoxication above 0.15;(ii) erratic or aggressive driving;(iii) a collision between the vehicle and any other object;(iv) competitive driving or showing off;(v) the length of the journey at which others are exposed to risk;(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:(i) an order under s 9 or s 10 of the
Crimes (Sentencing Procedure) Act would very rarely be appropriate;(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
HELD: (1) Where a "final sentence" for an indictable offence has been imposed by the Drug Court pursuant to s.12 of the
Drug Court Act 1998, the right of appeal is governed by s.5AF of the
Criminal Appeal Act 1912. This section provides that the appeal is to be heard by a single judge of the CCA. This approach was approved by the Court in
R v Ohar  NSWCCA 83 & also extends to summary offences where those offences were included in a single indictment along with indictable offences.
(2) Where an indictable offence was committed prior to an offender entering a Drug Court programme, but sentenced after entry to Drug Court programme, any appeal is governed by s.5(1)(c) of the
Criminal Appeal Act & the provisions of s.5AF relating specifically to appeals form the Drug Court do not apply:
R v Ohar followed. In those circumstances, the appeal must be heard by 2 or 3 judges of the CCA.
(3) Where any summary offence is sentenced by the Drug Court (other than summary offences included on an indictment with other indictable offences), the CCA has no jurisdiction to hear an appeal. The right of appeal in those circumstances is governed by s.5A of the
Justices Act 1902 & the appeal must be made to the DC.
NOTE: See also R v Rowley NSWCCA 388 and R v Rowley NSWCCA 390 for resolution of appeals against sentence.