Short Notes 2006
BARTA, Stefan - CCA, 3.2.2006 McClellan CJ at CL, Howie & Latham JJ Citation: Barta v R  NSWCCA 6 Sentence appeal (extension of time). 1 x supply commercial quantity heroin; 1 x supply heroin on an ongoing basis; + Form 1 matters. Total sentence of 8y 5m with a NPP of 6y 9m. Whilst intercepting calls on Vincent Caccamo's telephone, police became aware that the applicant was a source of drugs supplied to Caccamo. They conducted an investigation of the applicant using telephone intercepts, listening devices, surveillance, bank records & an induced statement by Caccamo. Over a period of about 9 weeks, applicant supplied Caccamo with 349 grams of heroin (street value $197,000). On an almost daily basis & sometimes more frequently, Caccamo was driven to applicant's premises where he purchased 7 grams of heroin at a cost of $2,000. Further intercepts on applicant's telephone revealed that the applicant supplied heroin totalling about 213 grams on 46 separate occasions to a number of persons, including Caccamo. Aged 37 at time of sentence - born & raised in Romania by grandparents - came to Australia with wife in 1990 after period spent in refugee camps in Yugoslavia - divorced in 1992 - remarried in 1998 - 2 children from 2nd marriage - sale of drugs to support cocaine addiction - attempts at rehabilitation whilst in prison - previous imprisonment. Whether sentence excessive - whether quantifying increase in sentence an error of discretion - NPP more than 75% of total sentence - parity between co-offenders when a co-offender's sentence is inadequate. Appeal dismissed.
TAYLOR, Jeffrey Thomas - CCA, 3.2.2006 McClellan CJ at CL, Howie & Latham JJ Citation: Taylor v R  NSWCCA 7 Sentence appeal. Dangerous drive occasioning GBH. 2y with a NPP of 12m; disqualified from driving for 12 months. The applicant was driving a Nissan Patrol wagon towing a trailer when his vehicle collided with the rear of the victim's vehicle. The applicant's vehicle then continued to push the victim's vehicle until it hit a telegraph pole. The applicant drove his vehicle for some distance before he got out & entered his residence. He stayed there for a few minutes before walking back outside, scuffling with a neighbour & then walking away from the area. The victim was assisted from his vehicle by witnesses & onlookers & treated by ambulance officers at the scene & then conveyed to hospital. He was later transferred to another hospital for further treatment. Police were unable to locate the applicant on the night of the collision. However, they received several witness statements indicating the applicant as being the driver of the motor vehicle at the time it collided with the victim's vehicle. The following morning, police began to make enquires as to the whereabouts of the applicant. They were informed that the applicant would be attending the Parkes police station about 7.45am that morning. The applicant attended the Parkes police station with his mother & stepfather. He admitted being the driver of the vehicle that collided with the victim's vehicle. He was cautioned & placed into custody. A short time later he & his stepfather accompanied police to the scene of the accident. After returning to the police station, the applicant took part in an ERISP. He once again freely admitted being the driver of the vehicle at the time of colliding with the victim's vehicle. He further admitted that he had consumed one stubby of Tooheys New Beer immediately prior to the accident & had also smoked a couple of cones of marijuana. He stated that he had been suffering from sleep deprivation in the 3 days leading up to the accident as a result of his marriage break-up. Fatigue - influence of marijuana & alcohol - serious permanent injury caused - knowledge of own physical condition - recent personal emotional turmoil impairing psychological functioning - whether a mitigating factor - whether lowers moral culpability - whether sentence manifestly excessive - importance of general deterrence. Appeal dismissed.
LODHI, Faheem Khalid - CCA, 4.4.2006 - 65 NSWLR 573 Spigelman CJ, McClellan CJ at CL, Sully J Citation: Lodhi v R  NSWCCA 101 Appeal arising from orders made. Terrorist offences - Criminal Code 1995. The applicant faced 4 charges. A motion brought to quash the indictment was dismissed by Whealy J. That decision was appealed & the appeal was heard by the Court on the same day as the instant application. The instant application for leave to appeal arose from orders which Whealy J made on 17.3.2006 following a motion brought by the Commonwealth Attorney-General seeking orders prohibiting the disclosure of information & evidence provided at the trial. The orders which his Honour made are intended to protect the operational capacity of ASIO from being compromised & took the following form:
Until further order: 1. The Court be closed at all times when information is disclosed, or evidence is heard, which discloses:
a. the fact of, or content of, ASIO's dealings with any of its sources; or b. the fact of, or content of, ASIO's relationship with any foreign agency.
2. The Court be closed at all times when ASIO witnesses give evidence in the proceedings.
3. There be no disclosure or publication (except in closed Court) of any information which discloses:
a. the fact of, or content of, ASIO's dealings with any of its sources; b. the fact of, or content of, ASIO's relationship with any foreign agency; or c. details of the physical appearance of any ASIO witness or any other details which disclose the identity of, or are likely to lead to the identification of, any ASIO witness.
4. Officers or employees of ASIO be referred to, in and for the purposes of these proceedings, by pseudonym.
5. Any ASIO witness referred to in row 1 of the Table attached to the certificate issued on 2 March 2006 under subsection 28(2) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act) be screened from all persons other than:
a. the Judge; b. the Judge's Associate; c. the jury; d. the legal representatives for the Defendant; and e. the legal representatives for the Prosecution.
a. The transcript of any proceedings which occurred in closed Court (other than any closed hearing under section 29 of the NSI Act) is to be provided forthwith in electronic format to the legal representatives for the Crown, the Accused and the Attorney-General; b. The Attorney-General will inform the Court of any proposal to edit any part of the transcript; c. If the Court considers it appropriate to do so the Court may grant leave to media interests to be heard in respect of the proposed edits to the transcript; and d. The transcript will then be made publicly available in its edited form as soon as practicable after the edited transcript is received by the Court and in any event not later than 48 hours after the day to which the transcript relates or such further time as the Court may allow'.
The applicant appealed against the whole of Order 1 & sub-paras (a) & (b) of Order 3 insofar as that Order requires that evidence is to be given in closed court. Appeal arising from orders made - prohibition of disclosure of information - national security - whether appropriate balancing & weighing exercise - operational capacity of ASIO - dealings with witnesses - dealings with other intelligence & security services - protective orders - right to a fair trial - open justice - risk of unfair prejudice resulting from need to interrupt hearing & close the Court - weight to be given to release of the transcript. Appeal dismissed.
VO, Cam Thi - CCA, 24.5.2006 TRAN, Tung Thanh McClellan CJ at CL, Hislop & Johnson JJ Citation: R v Vo; R v Tran  NSWCCA 165 Crown appeal. Conspire to import trafficable quantity heroin. Vo: 9y with a NPP of 6y. Tran: 6y with a NPP of 2 y. Both respondents were sentenced with the benefit of a finding of past & prospective co-operation with the authorities in relation to the drug importation enterprise in which they were involved: s.21E Crimes Act 1914 (Cth). This assistance concerned 3 other offenders (Dang, Nguyen & Vu). When sentencing Vo & Tran, the sentencing judge found that Vo was a principal, together with Nguyen, in the enterprise to import heroin from Vietnam into Australia. Tran, who is Vo's partner, was described as an assistant to Vo & was found to have engaged in a degree of organisation & management. It was found that he acted on & conveyed instructions & did not play a role as a principal. The criminal enterprise was discovered following investigation by the South East Asian Crime Squad. The investigation was focused on the activities of Vo & Tran. Vo employed a number of people to recruit drug couriers on her behalf. These couriers would travel to Vietnam, usually in pairs, where they were put in contact with a source of heroin established by Vo & Nguyen. The couriers would then smuggle the goods into Australia, concealed in various ways.
Vo & Tran gave evidence at the trial of the other offenders, however, their evidence was unsatisfactory. Vo's evidence was contrary to the witness statement attached to her s.21E undertaking. It was also contrary to the objective evidence tendered at the trial, which was available from telephone intercepts & surveillance material. The judge concluded that Vo was an unfavourable witness, pursuant to s.38 Evidence Act 1995 (NSW). Although she continued to answer questions, she suggested that in many respects matters in her original statement were false insofar as the 3 accused may have been involved in the criminal enterprise. When asked about the true meaning of the telephone calls, Vo on occasions claimed she did not remember what was meant by the conversation & denied the meaning suggested to her by counsel. Vo gave evidence that she had not read her statement in its entirety before signing it. She also claimed she had given a false statement implicating others simply to obtain a reduced sentence. The trial judge criticised Vo during the course of her giving evidence & pointed out to her the difficulties she faced if she failed to give truthful evidence. Although she was offered the opportunity of seeking legal advice, Vo declined to do so. Tran's evidence revealed a number of problems & the trial judge found that he was an unfavourable witness. Although, like Vo, he continued to answer questions, his evidence was unsatisfactory & he appeared to avoid answering any question that would implicate the accused Nguyen. Many of the answers he gave were in direct contradiction with the statement he had provided (annexed to his s.21E undertaking) & were also inconsistent with the objective evidence.
Crown appeal allowed, respondents resentenced as follows: Vo: 10y with a NPP of 6 y. Tran: 6y 8m with a NPP of 2y 10m.
ALCORN, Brian Dean - CCA, 10.7.2006 McClellan CJ at CL, James & Hall JJ Citation: Alcorn v R  NSWCCA 209 Sentence appeal. 2 x knowingly use false instrument (s.300(2) Crimes Act); 4 x corruptly receiving a benefit as an agent (s.249B(1)(b); + Form 1 (2 x knowingly use false instrument; 4 x corruptly receiving payments as an agent)). Total of 2 y with a NPP of 15m. In each of the 2 offences under s.300(2), the applicant had used a false instrument (a statutory declaration purportedly signed by Manus Michael Friel or by Kevin Patrick Friel & Manus Michael Friel) knowing it to be false, with intent to induce an officer of the Office of State Revenue to accept the instrument as genuine & give the applicant a cheque. In each of the 4 offences under s.249B(1)(b), the applicant, being an agent of the Marsdens Law Group solicitors of which he was a partner, had corruptly received from a man named Neville Stumer a signed but otherwise blank cheque, on the understanding that the applicant could complete the cheque in his favour for a certain sum & the receipt of the cheque would have tended to influence the applicant to show favour to Neville Stumer in relation to the business of the Marsdens Law Group. Error in categorising appellant's objective criminality as a principal in the fraud involving the co-offenders - failure to give sufficient weight to significant delay between applicant disclosing offences & when he was charged, particularly having regard to contrition & rehabilitation during that period - failure to have proper regard to restitution & reparation made by applicant, particularly when made before the charges were laid. Appeal allowed: resentenced to 2y with a NPP of 1y.
HARRISON, Phillip Dale - NSW SC, Michael Grove J, 21.7.2006 Citation: R v Harrison  NSWSC 740 Remarks on Sentence. Murder. The deceased died as a result of the prisoner stabbing him in the throat. The prisoner had a mistaken belief that the deceased was responsible for the death of the prisoner's friend. The friend & others had injected themselves with heroin. The friend & 2 other men had adverse reactions to the heroin. The friend fell into unconsciousness & attempts to resuscitate him proved unsuccessful. An ambulance & police were called, however, the prisoner's friend was unable to be revived & died. Aged 31 at time of offence - Aboriginal - background of deprivation & lack of opportunity - long-standing drug addiction - low functioning intelligence compromised by extended substance abuse & repeated head trauma - easily confused - considerable difficulty in utilizing cognitive resources - specific intent to kill deceased. Sentenced to 20y with a NPP of 15y.
HIGGINS, Graham Patrick - CCA, 10.10.2006 Tobias JA, Grove & Bell JJ Citation: R v Higgins  NSWCCA 326 Crown appeal. Fraudulently omit to account (s.178A Crimes Act 1900). 3y with a NPP of 1y 9m (special circumstances found). The respondent was a manager employed by the Commonwealth Bank. An elderly female customer, who had come into a sum of money, gave him a cheque for $73,000 to invest on her behalf. The respondent did not in fact invest the money & did not account for the money. The elderly customer subsequently died & the matter came to light when the executor of her will discovered a receipt for the funds. When the respondent was charged with the above offence, the bank dismissed him. Whether error in declining to find breach of trust was an aggravating feature under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 - whether error in giving too much weight to good character - whether error in not giving weight to general deterrence - whether error in finding special circumstances - whether sentence manifestly inadequate.
Grove J observed:
'... that breach of trust in the sense of misconduct by a trustee may not necessarily be synonymous with abusing a position of trust as expressed in s 21A (2) (k). Be that as it may, it was his Honour's task to sentence the respondent for what he had done and to avoid what has come to be referred to as 'double counting' in making sentence assessment'.
He went on to endorse the observations of Howie J in Elyard, which were:
'It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse  NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands.'( Elyard v R  NSWCCA 43)