Short Notes 2006

 

 

1


BICHAR, Therry Gillar - CCA, 23.1.2006
Basten JA, Howie & Hall JJ
Citation: Bichar v R [2006] NSWCCA 1
Sentence appeal.
Armed robbery.
3y with a NPP of 18m.
Whilst waiting for a train at Liverpool station, the applicant struck up a conversation with the victim. When the train arrived, they boarded the train & the applicant sat behind the victim. The victim started using a laptop computer. As the train approached Sefton station, the applicant put his right arm around the victim's neck & held a used syringe to the left side of the victim's neck. He demanded that the victim hand over his laptop & a small bag. The applicant then left the train. The victim also left the train & dialled 000 on his mobile phone. The victim pursued the applicant for some time, assisted by the driver of a vehicle he had flagged down. Police arrived shortly thereafter & the applicant was arrested.
Aged 32 at time of offence - entered army in 1989, served in Cambodia & Malaysia - medically discharged in 1997 suffering from Post-Traumatic Stress Disorder arising from witnessing deaths of & injuries to children caused by land mines - resultant abuse of alcohol - subsequent successful treatment - commenced employment with railways & suffered a head injury during course of that employment - treated at the Brain Injury Unit at Westmead Hospital - resultant headaches, neck pain, dizziness, difficulty controlling temper, depression, feelings of hopelessness, suicidal thoughts - began using heroin while rehabilitating from injury - relatively minor criminal record - previous imprisonment.
Error in holding that discount for early guilty plea had already been taken into account in applying Henry guideline - whether drug addiction a mitigating circumstance - whether lesser sentence warranted.
Appeal dismissed.

 

2


McANDREW, Jamie Charles - CCA, 2.2.2006
Grove & Rothman JJ
Citation: McAndrew v R [2006] NSWCCA 12
Sentence appeal.
Supply commercial quantity ketamine; + Form 1 (possess methylamphetamine).
7 y with a NPP of 4 y.
The drugs were found following police executing a search warrant on residential premises occupied by the applicant. The applicant was arrested & taken to the police station. He declined to take part in an electronically recorded interview & entered a plea of guilty in the LC.
Aged 37 - disabled pensioner (renal failure) - guilty plea - priors - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.

 

3

 

BARTA, Stefan - CCA, 3.2.2006
McClellan CJ at CL, Howie & Latham JJ
Citation: Barta v R [2006] 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.

 

4


GONZALEZ, Paul Kevin - CCA, 19.1.2006
Basten JA, Howie & Hall JJ
Citation: Gonzalez v R [2006] NSWCCA 4
Sentence appeal.
2 x aggravated dangerous drive causing GBH.
2 y with a NPP of 15m.
Applicant & his 2 passengers had been drinking at a hotel & had consumed a large quantity of alcohol. When they left the hotel, the applicant insisted on driving. About 500 metres from the hotel, their vehicle failed to negotiate a right-hand bend, mounted the kerb & travelled about 5 metres before coming into contact with a telegraph pole. The impact resulted in the pole snapping at its base. The vehicle rotated in an anti-clockwise direction around the pole & rolled onto its roof. The 2 passengers both suffered a number of serious injuries. Blood taken from the applicant about an hour after the collision gave a reading of 0.173.
Aged 22 at time of collision - previous offences of exceeding speed limit - on GBB at time of collision.
The sentencing order did not comply with s.44 Crimes (Sentencing Procedure) Act.
Whether error in failure to adequately evaluate moral culpability - fresh material - need to address purpose & usefulness of material tendered - concurrent sentences - whether sentence manifestly excessive.
Appeal allowed only to amend sentencing orders. Sentence otherwise unchanged.

 

5


HAYEK, Fadi - CCA, 30.1.2006
Giles JA, Howie J
Citation: Hayek v R [2006] NSWCCA 5
Sentence appeal
Take & drive conveyance without consent of owner; possess implements to enter & drive conveyance; + 4 summary offences on a s.166 certificate (dangerous drive, possess methylamphetamine, carry cutting weapons, drive whilst disqualified).
Total sentence of 2y 9m 1d with a NPP of 2y 1d.
Applicant stole an unattended car that had been left with the keys in the ignition. Police were notified & a high-speed pursuit took place. Because of the applicant's dangerous driving, police terminated the pursuit. They located the applicant a short time later & arrested him. At the time of arrest, applicant was found to be in possession of .02 grams of methylamphetamine, numerous car keys for obtaining entry into various makes of cars & 2 folding knives. He was unlicensed, having been disqualified from driving.
Whether sentence excessive - guilty plea at earliest opportunity - remorse - ill-health of elderly father - rehabilitation.
Appeal dismissed.

 

6


ANTOUN, Joseph - HCA 8.2.2006 - 80 ALJR 497
ANTOUN, Antoine
Citation: Antoun v The Queen; Antoun v The Queen [2006] HCA 2
On appeal from the NSW CCA: see R v Joseph Antoun; R v Antoine Antoun [2004] NSWCCA 268.
Demand money with menaces.
Antoine Antoun: 3 y with NPP of 2 y.
Joseph Antoun: 6y with NPP of 4 y.
The appellants demanded protection money from a nightclub owner, who refused to pay. After a number of visits & threats, he reported the matter to the Police Crime Agency. He was subsequently fitted with a listening device & conversations between the appellants & the nightclub owner were recorded & admitted into evidence.
Judge alone trial - apprehension of bias - standards of fairness & detachment required.
Appeal allowed: new trial ordered.

 

7


RG - NSW SC, Buddin J, 30.1.2006
Citation: R v RG [2006] NSWSC 15
Ruling on admissibility of evidence.
Before the jury was empanelled, objection was taken on behalf of the accused to part of a conversation she had with police officers. The accused is a 45 year old woman charged with the murder of her 7 month old baby daughter.
Whether utterances by accused constituted an admission - whether utterances met test of relevance - significance of accused's mental illness upon question of reliability of admissions - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice.
Objection overruled.

 

8


GAGE, Kenneth James - CCA, 10.2.2006
Giles JA, Howie & Hoeben JJ
Citation: Gage v R [2006] NSWCCA 14
Conviction appeal.
2 x supply methylamphetamine; 1 x supply commercial quantity methylamphetamine.
The offences came to light following a police task force investigation into the distribution of methylamphetamine on the Central Coast of NSW.
After the trial judge made his opening remarks & the Crown prosecutor made her opening address, the jury retired. One of the jurors informed a Sheriff's officer that he might have seen the accused at his place of work & this was relayed to the judge. That juror was discharged. The remaining 11 jurors were then discharged. They returned to the jury panel & a fresh jury was empanelled. Four members of the original jury were on this fresh jury.
Whether reasonable apprehension of bias on part of fresh jury - whether miscarriage of justice in failure to discharge jury after possibly prejudicial evidence of dealing in other drugs - whether verdict in relation to Count 1 unsafe - whether miscarriage of justice because counsel unprepared or failed to act on instructions in conduct of defence.
Appeal dismissed.

 

9


TETLEY, Jason Phillip - CCA, 10.2.2006
Handley JA, Adams & Latham JJ
Citation: R v Tetley [2006] NSWCCA 22
Sentence appeal.
6 x receive & dispose of cattle; + Form 1 (6 x obtain benefit by false representation).
Total of 2 y with a NPP of 1y.
Applicant entered pleas of guilty to the above offences. There were 195 head of cattle involved, valued at about $55,350. The Form 1 matters related to applicant obtaining a benefit by falsely representing himself as being the owner of the cattle.
Failure to find applicant unlikely to re-offend - failure to find good prospects of rehabilitation - delay - whether error in ordering full-time custody rather than PD - whether sentence manifestly excessive.
Appeal dismissed.

 

10


AB - NSW SC, Michael Grove J, 17.2.2006
Citation: R v AB [2006] NSWSC 69
Remarks on Sentence.
Accessory before the fact to murder; + Form 1 offence (possess firearm).
The victim's brother-in law owed drug dealer Yonky Tan several hundred thousand dollars. The accused was contracted by Tan to splash acid on the victim's face to scare the brother-in-law out of hiding, but the accused refused. Instead, he recruited 2 other hitmen. The hitmen ultimately went to the victim's home & poured hydrochloric acid into the victim's mouth, causing severe burns & permanently blinding him. The victim was put into an induced coma & died 20 days later.
Aged 36 at time of offending - on parole at the time - guilty plea at earliest opportunity - father of 5 - native of Philippines - permanent residency in Australia - tertiary qualifications not recognized in Australia - substance abuse - prior convictions - previous imprisonment.
Assistance to authorities - consideration of mental state caused by long-term drug abuse - premeditated & planned infliction of GBH.
Sentenced to a total of 18y with a NPP of 13 y.

 

11


LAM, Kwai Chen - CCA, 2.2.2006
Grove & Rothman JJ
Citation: R v Lam [2006] NSWCCA 11
Sentence appeal.
Supply commercial quantity heroin; supply large commercial quantity heroin.
Total sentence of 17 y with a NPP of 12 y.
The offences arose from one course of conduct. The applicant entered Sydney on a flight from Hong Kong in company with a co-offender. The co-offender returned to Hong Kong a week later & the applicant 10 days after that. They returned to Australia the following month on a flight from Hong Kong to Melbourne. They & others were then subjected to surveillance by the authorities.
Aged 41 - wife & 3 children live in Vietnam.
Whether sentence excessive - extent of appropriate accumulation of sentence - special circumstances - totality - parity with co-offenders.
Appeal allowed: resentenced to a total of 14y with a NPP of 10y.

 

12


LOWE, Simon - CCA, 2.2.2006
Grove & Rothman JJ
Citation: R v Lowe [2006] NSWCCA 10
Application for leave to appeal against sentence; & application for adjournment of hearing in order to appeal against conviction, which was entered after a guilty plea.
Intimidation.
12m FT suspended upon entering into a recognizance to be of good behaviour.
The above offence took place over a period of approx 6 months. The victim was a woman with whom the applicant had been in a relationship. When the matter came before the court, the applicant gave evidence that he had recognised the termination of that relationship & had entered a new relationship, therefore, there was no prospect of him re-offending. Some 10 months prior to the above offence coming to court, the applicant had been convicted for an offence of AOABH & had been sentenced to 3 months' imprisonment. He appealed against that sentence & was subsequently dealt with at the same time as being sentenced for the offence of intimidation. The sentencing judge confirmed the conviction for the AOABH but set aside the sentence & ordered the applicant to enter into a recognizance to be of good behaviour for a period of 2y.
Suspended sentence now expired - no breach during operative period of recognizance - appeal not pursued with timely diligence - no practical point to appeal - adjournment to allow later contest to plea of guilty refused.
Leave to appeal refused.

 

13


McKECHNIE, John Michael - CCA, 15.2.2006
Mason P, Barr & Hall JJ
Citation: McKechnie v R [2006] NSWCCA 13
Conviction and sentence appeal.
Attempt choke with intent to have sexual intercourse without consent; aggravated sexual assault (OABH).
Total sentence of 15y with a NPP of 11y.
The applicant viciously attacked the victim as she was leaving the beach.
Directions - use of doctor's evidence - doctor not cross-examined - evidence of complainant & accused - complaint that trial judge's remarks diverted jury from its fact finding task - directions on choosing between account of complainant & accused - use of rhetorical questions in addressing jury - warnings - uncorroborated evidence - Murray direction - whether error in directions as to self-defence - whether sentence excessive.
Appeal dismissed.

 

14


BUSHARA, Bushoy - CCA, 6.2.2006
Basten JA, Howie & Hall JJ
Citation: Bushara v R [2006] NSWCCA 8
Sentence appeal.
Aggravated BE&S; + Form 1 offence (take & drive conveyance).
4y with a NPP of 2 y.
The applicant entered the Drug Court programme on 5.3.2003. On 15.3.2004, whilst still on that programme, he committed the above offences. The above sentence was subsequently imposed. That sentence was made cumulative upon other sentences imposed by the sentencing judge.
Sentences imposed by Drug Court after termination of Drug Court programme - whether sentences manifestly excessive having regard to pre-sentence custody (period spent in Drug Court programme, sanctions imposed on applicant & period spent in rehabilitation centre) - whether NPP excessive having regard to those matters.
Appeal allowed: resentenced to 3 y with a NPP of 2y.

 

15


MAGRIN, Gregory Allan - CCA, 15.2.2006
Giles JA, Howie & Hoeben JJ
Citation: Magrin v R [2006] NSWCCA 17
Conviction appeal.
Sexual intercourse with a child under 10 years (aged 6 years).
5y with a NPP of 3y.
Cross-examination of accused by prosecutor - whether it could have led to miscarriage by breaching right to silence or tending to shift onus of proof.
Appeal dismissed.

 

16


YASSIEN, Nabil - CCA, 13.2.2006
Giles JA, Grove & Hoeben JJ
Citation: Yassien v R [2006] NSWCCA 15
Sentence appeal.
AOABH.
2y with a NPP of 1y.
Applicant had also been sentenced to a FT of 3m for resisting police in the execution of their duty & fined $50 for entering enclosed lands. At the time of the appeal, the sentence for resist police had already been served.
Applicant had known the victim for approx 4 years & had a brief sexual encounter with her 4 months prior to the above offence, after which the victim told the applicant she no longer wished to see him. However, he visited her home every 3rd night to speak to her about leaving her husband for him. On all occasions the victim told him she did not want him visiting her home. On one such visit to the victim's home, the applicant forced his way inside the victim's home by pushing her. She lost her balance & moved backwards. She yelled out for help. He then grabbed hold of both sides of her face & told her how much he loved her. She told him how much she hated him. He then punched the victim twice, one punch after the other, to the left eye. The victim fell to the ground & the applicant then punched her again in the left eye. She continued to yell for help & her 4 children ran into the hallway. The applicant then grabbed the victim around the throat & began to choke her. By that time, the police were in the vicinity. The applicant threatened that if the victim went to the police he'd burn down her house. The victim ran to the front window, opened it & yelled out for help. The applicant then left the house. The police pursued him through bushland but did not apprehend him. The applicant visited the victim's home once more. A neighbour called the police but the applicant had left by the time they arrived. Police then went to his house & arrested him. At the time of offending, the applicant was on bail.
Born in Egypt in 1980 - migrated to Australia with parents in 1986 - parents separated in 1993 - left school at age 16 - erratic behaviour - increasing suspicion of people - on disability pension for past 7 years due to mental illness - schizophrenic - relatively long criminal record going back to matters dealt with in Children's Court.
Offence capable of being dealt with summarily - failure of sentencing judge to refer to that fact - whether error - principle of totality.
Appeal dismissed.

 

17


WILLIAMS, Daniel Lee - CCA, 17.2.2006 - 160 A Crim R151
McClellan CJ at CL, Howie & Latham JJ
Citation: Williams v R [2006] NSWCCA 26
Conviction appeal.
Maliciously inflicting GBH with intent; kidnapping; attempted kidnapping.
Total sentence of 8y with a NPP of 5 y.
The offences involved one victim. The victim had bought drugs from the appellant & had not paid for them.
Directions - claim of right - fact of an acquittal on one count in considering verdicts on others - unreasonable verdicts on the evidence - regard to be had to jury's benefit in seeing & hearing witnesses at trial.
Appeal dismissed.

 

18


PHILLIPS - HCA 1.3.2006 - 80 ALJR 537
Citation: Phillips v The Queen [2006] HCA 4
On appeal from the SC of Qld.
Conviction
3 x rape; 2 x unlawful carnal knowledge; 1 x assault with intent to commit rape.
Appellant & complainants were all teenagers at the time of the offences. It was alleged that the appellant sexually assaulted the girls on separate occasions over several years. The appellant was acquitted on 2 counts, convicted on 4 counts & convicted on the alternative counts to 2 other counts. Each complainant was an acquaintance, coming into contact with the appellant at a party or get-together.
Indictment - joinder of counts - ss.567, 597A Criminal Code (Qld) - series of offences of same or similar character - multiple complainants - whether admission of evidence of each complainant in relation to all counts prejudicial to appellant such that separate trials should have been ordered - similar fact evidence - probative value - prejudicial effect - application of principles in Pfennig v The Queen (1995) 182 CLR 461 - whether unreasonable verdicts - whether verdicts only explicable as the product of compromise between jurors.
Appeal allowed on all counts: separate retrials ordered.

 

19


SHANNON, Robert James - CCA, 2.3.2006
Mason P, Barr & Howie JJ
Citation: Shannon v R [2006] NSWCCA 39
Sentence appeal.
3 x sexual intercourse with child above age 10 & under age 16.
Total sentence of 5y with a NPP of 3y.
The 1st & 3rd counts each related to an incident in which the applicant had the 12 year old complainant perform fellatio upon him & the 2nd count related to the applicant's penis penetrating the complainant's vagina. At the time of the offences, the complainant's father was seriously ill. The complainant did not tell any member of her family because she did not want to cause them any further stress, however, she did tell a friend. A month later, the complainant's mother found a letter from the applicant to the complainant & she confronted the applicant about it. She then contacted DOCS & attended a police station to make a statement. The matter was not investigated further either by DOCS or the police. Two years later a school counsellor notified police. The applicant was not arrested & charged until August of the following year.
Aged 28 at time of offences - married with 2 children - lack of insight into offending - contrition.
Whether sentence manifestly excessive - vulnerability of victim - relevance of delay in prosecution.
Appeal dismissed.

 

20


ELYARD, Travis James - CCA, 6.3.2006
Basten JA, Howie & Hall JJ
Citation: Elyard v R [2006] NSWCCA 43
Sentence appeal.
Aggravated dangerous drive occasioning GBH.
5y with a NPP of 2 y.
Applicant drove through a red light & collided with a pedestrian, who suffered significant injuries requiring hospitalisation, emergency surgery & treatment. She has been left with ongoing disabilities. When police attended the scene of the accident, the applicant appeared to be well affected by some substance. A blood sample taken from the applicant some 1  hours after the accident was found to have the following present: morphine (0.36 mgs per litre), codeine (0.03 mgs per litre), diazepam (0.5 mgs per litre), nordiazepam (0.4 mgs per litre), oxazepam (0.4 mgs per litre), temazepam (0.1 mgs per litre), clonazepam (0.01 mgs per litre), delta-9-THC (less than 0.005 mgs per litre) & delta-9-THC acid (0.035 mgs per litre). Applicant's urine sample also indicated the presence of acetylcodeine, monoacetylmorphine, imipramine & methadone. At the time of the accident, applicant was on probation for a suspended sentence of take & drive conveyance without consent of owner. About 5 weeks prior to the aggravated drive offence, police observed applicant driving a motor vehicle in the car park of a hotel. Blood & urine analysis disclosed that he had ingested a combination of drugs similar to those detected after the subject offence. At the time the sentence for the subject offence was imposed, applicant was serving 2 sentences of PD relating to driving whilst under the influence of a drug & a re-determination of a suspended sentence in relation to the take & drive offence.
Aged 26 - guilty plea.
Whether error in not allowing discount for guilty plea - whether error in finding that applicant did not apply brakes until after colliding with victim - whether error in coming to the view that applicant had poor prospects of rehabilitation - Insufficient weight given to subjective circumstances - error in refusing to hear further evidence - failure to take into account evidence of contrition & remorse.
Appeal dismissed.

 

21


HAJJE, Odeness - CCA, 23.2.2006
Simpson, Adams & Hoeben JJ
Citation: Hajje v R [2006] NSWCCA 23
Conviction appeal.
Malicious wounding.
The victim was shot in the left calf during a fracas involving a number of men & the use of 3 guns. It was the Crown case at trial that the appellant was the person who fired the gunshot or, alternatively, that he was 1 of 3 men, all of whom shot at the victim in pursuance of a common design & that, therefore, even if the appellant was not the person who actually fired the shot that struck the victim, he was guilty by reason of the doctrine of joint criminal enterprise. Given the way the case was conducted, the Crown accepted that the appellant could not be convicted unless the jury was satisfied beyond reasonable doubt that the appellant was in possession of & fired a gun. The jury was directed accordingly. It was not necessary that the Crown establish that it was the appellant who fired the actual bullet that struck the victim.
Whether verdict unreasonable - tendency evidence - credibility of prosecution witnesses - whether evidence of unrelated ammunition in appellant's home admissible - whether miscarriage of justice - directions on identification evidence, unreliable evidence, 'real issues', credibility.
Appeal dismissed.

 

22


SWAN, Rick Barry - CCA, 6.3.2003
Spigelman CJ, Barr & Howie JJ
Citation: R v Swan [2006] NSWCCA 47
Sentence appeal.
1 x assault with intent to rob in circumstances of aggravation (use of corporal violence); 1 x armed with intent to rob with wounding.
Total sentence of 7 y with a NPP of 2 y.
The above offence was committed in company. The applicant gave evidence that he had previously suffered sexual abuse at the hands of the victim. Since the commission of the above offence, the victim has been charged with a wide range of offences, including the offences about which the applicant made complaint almost 4 years previously.
Significant medical problems since infancy - Intellectual disability - cerebral palsy - schizophrenia - auditory hallucinations - universally impaired across all cognitive functions - history of abuse, deprivation, neglect, poor integration into school & society - very unstable home situation - easily led - prior offences.
Special circumstances - general deterrence & intellectual disability - principle that individuals should not be allowed to take the law into their own hands accorded less weight where offender has an intellectual disability - where motivation is retaliation for prior sexual abuse by victim the need for personal deterrence & protection of the community is considerably lessened unless prior offences indicate the behaviour is not isolated - fresh evidence.
Appeal allowed: resentenced to 5y with a NPP of 2y.

 

23


BENITEZ, Paul - CCA, 23.2.2006 - 160 A Crim R 166
Hunt AJA, Simpson & Rothman JJ
Citation: Benitez v R [2006] NSWCCA 21
Sentence appeal.
2 x solicit to murder.
Total sentence of 12y with a NPP of 7y.
Following the break-up of his marriage, the applicant became obsessed & anxious about the treatment & welfare of his children, who no longer lived with him. He subsequently came into contact with a person known as 'Michael'who claimed to be willing to harm the applicant's former wife & her new partner in return for money. Michael then talked the applicant into accepting the idea of murder rather than physical harm. The ulterior motive on Michael's part was that he, Michael, would approach the media with the story. When the media refused to have any part of it, he went to the police. Michael subsequently introduced the applicant to a man who claimed to be a professional hit man. In fact, he was an undercover police operative who was taping his conversations with the applicant. The applicant engaged in a number of conversations with the operative, which culminated in a purported agreement between them that both the former wife & her new partner would be killed by the operative & his accomplices & that it should be made to look like a robbery gone wrong. The applicant gave the operative $1,000 in cash as a down payment & a watch as a token of appreciation. Shortly thereafter, the applicant was arrested & charged with 2 counts of soliciting to murder.
Aged 39 at time of sentence - guilty pleas - prior good character - suffered a breakdown as a result of losing his wife & children - suffering from depression - significantly affected by a disturbed state of mind.
Subjective circumstances - offences held to exceed mid-range of seriousness - prospects of rehabilitation - finding of special circumstances - relationship between applicant's mental condition & commission of offences - whether applicant's depression relevant to sentencing process - objective seriousness of offences.
Appeal allowed: resentenced to a total of 10y with a NPP of 5 y.

 

24


SKIPWORTH, Bruce Robert - CCA, 1.3.2006
Mason P, Barr & Hall JJ
Citation: Skipworth v R [2006] NSWCCA 37
Conviction appeal.
2 x sexual intercourse without consent; 1 x commit act of indecency.
The complainant's mother & the appellant were in a business relationship at the time of the offences & both the complainant & her mother were boarding in the appellant's home. The complainant told her mother of the sexual assaults 66 days after they were alleged to have taken place.
Delay in making complaint evidence - sexual assault - whether fresh in memory under s.66 Evidence Act 1995 - complaint evidence - 'vague' or lacking clear element of complaint - probative value - prejudice - corroborative value - introductory directions as to respective roles of Crown, defence & jury - whether distinguished Crown's approach to the evidence as scrupulously fair as against the defence.
Appeal dismissed.

 

25


LAVENDER, Wayne Kelvin - CCA, 8.2.2006
Sully, Hoeben & Latham JJ
Citation: Lavender v R [2006] NSWCCA 24
Sentence appeal.
Manslaughter (criminal negligence).
4y with a NPP of 18m.
The appellant was convicted of manslaughter for driving his front-end loader into a 13 year old boy. He then appealed to the CCA & the conviction was quashed: see  R v Lavender[2004] NSWCCA 120. A Crown appeal against sentence was unanimously dismissed. The Crown appealed to the HC, which reinstated the conviction & the sentence originally imposed on the appellant: see Lavender v The Queen[2005] HCA 37. The appellant then appealed out of time against the severity of his sentence. At the time of the subject sentence appeal, his NPP had expired but because his conviction appeal was initially upheld there was no opportunity for the Parole Board to grant parole.
Appeal dismissed. Sentence reinstated as in judgment.

 

26


TORY, Joel - CCA 16.2.2006
TORY, Luke
Hunt AJA, Adams & Latham JJ
Citation: R v Joel Tory; R v Luke Tory [2006] NSWCCA 18
Crown appeal.
Aggravated B&E and commit serious indictable offence; + offence of common assault taken into account.
Each respondent was placed on a 2y GBB.
The circumstances of aggravation were that the respondents were armed with a golf club, were in company, used corporal violence & they knew there were persons in the house at the time.
Whether sentences manifestly inadequate - objective seriousness - relevance of standard NPP.
Appeals allowed, respondents resentenced as follows:
Luke Tory: suspended sentence of 14m with a NPP of 7m.
Joel Tory: suspended sentence of 10m with a NPP of 4m.

 

27


MANGANO, Ignazio - CCA, 24.2.2006 - 160 A Crim R 480
Basten JA, Howie & Hall JJ
Citation: R v Mangano [2006] NSWCCA 35
Crown appeal.
Knowingly take part in cultivation of cannabis: + Form 1 offence (knowingly take part in cultivation of cannabis).
2y with a NPP of 14m to be served by way of PD.
Police executed a search warrant at a property near Dubbo, as a result of which a large number of cannabis plants were located. The respondent had an active role in the enterprise & was involved in the set-up & growing of the cannabis crop by helping to clear the site for the crop, providing advice about the preparation of the soil, conveying food & materials necessary for other workers, attending the machine suppliers with Tony Grecco on the occasion when Grecco purchased a diesel generator, bringing the mother plants to the property & assisting in the cloning from these mother plants. The respondent attended the farm once a week. He usually stayed for a night & occasionally for 2 nights. The evidence disclosed that he was to be paid $100,000 upon completion of the work. Police estimated that the street value of the crop was approx $20,000,000. The Form 1 offence involved a property near Fifield, where 6,000 plants were discovered by police. The respondent's involvement in that cultivation was limited to transporting the seedlings from the Dubbo property & providing advice on occasions about the preparation of the soil & taking fertiliser to the property. The Fifield operation in fact involved 2 properties, one of which was owned by Bill Skorin, the other by his uncle, Giuseppe Mimone (or Mammone).
Whether sentencing judge to impose an adequate sentence - role in the cultivation - determination of appropriate starting point - consideration of the manner in which the contents of a Form 1 should be taken into account - consideration of appropriateness of PD - assistance to authorities - consideration of s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) - whether mandatory considerations in s.23(2) taken into account - whether sentence unreasonably disproportionate to nature & circumstances of offence.
Appeal allowed: respondent resentenced to 4y 5m with a NPP of 2y 5m, full-time custody.

 

28


HIGGINS, John Michael - CCA, 22.2.2006
Spigelman CJ, Barr & Howie JJ
Citation: Higgins v R [2006] NSWCCA 38
Sentence appeal.
3 x dishonest conduct contrary to s.1041G Corporations Act 2001 (Cth); 15 x fraudulent misappropriation contrary to s.178A Crimes Act 1900 (NSW).
Total sentence of 8y with a NPP of 5y.
The charges under the Corporations Act relate to 3 different investors toward whom the applicant engaged in dishonest conduct by holding himself out as an authorised financial adviser when that authority had been revoked. The charges under the Crimes Act relate to 9 different investors where the applicant fraudulently misappropriated to his own use certain moneys in violation of the terms on which he received that money. He presented himself to each of these investors as being competent to advise them to put their money, often retirement funds, into various companies & ventures. Investors assumed that the moneys were being put into legitimate investments for their ultimate benefit & security. The applicant in fact put the money into his own business without the investors' permission. The total amount of moneys diverted by the applicant was $1,702,527. The offences came to light following complaints that led to an investigation by ASIC.
Whether sufficient reasons given regarding factors in s.16A(2)(a) Crimes Act 1914 (Cth) - whether sentence manifestly excessive - special circumstances - general deterrence in white-collar crimes involving breach of trust.
Appeal dismissed.

 

29

 

TAYLOR, Jeffrey Thomas - CCA, 3.2.2006
McClellan CJ at CL, Howie & Latham JJ
Citation: Taylor v R [2006] 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.

 

30


BUCKLEY - HCA, 8.3.2006 - 80 ALJR 605
Citation: Buckley v The Queen [2006] HCA 7
On appeal from the Supreme Court of Qld.
The appellant entered pleas of guilty to charges arising out of 3 violent attacks on women & was sentenced to an indefinite sentence, pursuant to s.163 Penalties and Sentences Act 1992 (Qld). The principal issue in the HC appeal was whether, in imposing that sentence, the sentencing judge observed the principles to be applied in the exercise of the power conferred by such legislation. An additional issue was whether the sentencing judge made material errors of fact requiring reconsideration of the sentencing discretion.
Appeal allowed: matter remitted to the SC of Qld for further consideration.

 

31


NUDD - HCA, 9.3.2006 - 80 ALJR 614
Citation: Nudd v The Queen [2006] HCA 9
On appeal from the Supreme Court of Qld.
The appellant was convicted of being knowingly concerned in the importation of cocaine & was sentenced to a lengthy term of imprisonment. The appellant claimed that his conviction involved a miscarriage of justice & blamed his trial counsel. His counsel appeared to have conceded the identity of the applicant in intercepted conversations & the applicant's knowledge of the importation.
Miscarriage of justice - competence of counsel - alleged failure to take instructions - alleged failure to understand elements of offence & relevant statutory provisions - alleged failure to be familiar with applicable judicial decisions.
Appeal dismissed.

 

32


RADISICH, Shane Peter - CCA, 3.3.2006
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Radisich v R [2006] NSWCCA 52
Sentence appeal.
Knowingly take part in supply of methylamphetamine (1.3 grams).
2 y with a NPP of 12m.
The above offence was the 5th of a series of 5 charges for a similar offence. On counts 1-4, the applicant was sentenced to 9m on each charge. At the time of appeal, those sentences had already been served. The applicant's involvement in the offences came to light as a result of a police undercover operation.
Whether sentence excessive.
Appeal allowed: sentence imposed on count 5 reduced to 2y with a NPP of 11m 1w.

 

33


GOBBETT, Ian - CCA, 8.3.2006
Mason P, Barr & Howie JJ
Citation: Gobbett v R [2006] NSWCCA 46
Sentence appeal.
2 x dangerous drive causing death; 1 x dangerous drive causing GBH.
Total sentence of 6y with a NPP of 4y.
The applicant was driving along Pacific Highway in a southerly direction. In the car with him was his partner & 3 of her children. The applicant's vehicle passed an articulated vehicle by pulling over into the breakdown lane & travelling on the left-hand side of the articulated vehicle. The speed limit at the time was 80 kph, however, the applicant's vehicle was travelling well in excess of that speed at the time. As the applicant's vehicle reached the driving cab of the articulated vehicle, it side-swiped the external fuel tank of that vehicle & then passed the vehicle, but was out of control. It travelled in front of the articulated vehicle & rotated in a clockwise direction, crossed the double unbroken centre line into the path of a north-bound vehicle, whereupon the north-bound vehicle crashed into the left-hand side of the applicant's vehicle. The applicant's female partner & her one daughter were killed. The driver of the north-bound vehicle received serious injuries. There was evidence of the applicant driving in a dangerous manner prior to attempting to pass the articulated vehicle.
Aged 24 - guilty pleas - drug addiction - devastated by death of partner & her child -no attempt to minimise role in offences - since offence spent 2 months in residential rehabilitation - made 'giant steps'in solving drug problem - family support - expressions of remorse/contrition of 'highest nature'.
Whether error in assessing aggravating features - whether sentence excessive.
Appeal allowed: length of individual sentences adjusted, resulting in the total of 6y with a NPP of 4y being unchanged.

 

34


HEIKKINEN, Juha - CCA, 8.3.2006
Spigelman CJ, Simpson & Adams JJ
Citation: R v Heikkinen [2006] NSWCCA 50
Crown appeal.
3 x armed robbery; 1 x attempt armed robbery; 1 x assault with intent to rob; 1 x larceny.
Total sentence of 3y with a NPP of 18m.
The offences were committed upon 4 service stations & a tavern.
Aged 45 at time of offences - born in Finland - came to Australia with family in 1961 - good employment record - under intense pressure at work - serious alcohol problem - gambling habit - contrition - good rehabilitation prospects - psychiatric disorder at time of offending - no prior criminal history.
Whether sentence manifestly inadequate - principles of accumulation - Henry guidelines - whether early guilty plea necessarily results in full 25% discount.
Appeal allowed in part: respondent resentenced to a total of 4y with a NPP of 2 y.

 

35


FD & JD - 21.2.2006 - 160 A Crim R 392
Sully, Hulme & Hall JJ
Citation: R v FD; R v FD; R v JD [2006] NSWCCA 31
Conviction and sentence appeal by FD.
Crown appeals against sentences.
FD: Murder; malicious wounding with intent; armed robbery - 26y with NPP of 20y.
JD: Manslaughter; armed robbery - 5y 3m with NPP of 3y.
The 33 year old victim was stabbed to death after placing an advertisement in the Trading Post offering a diamond ring for sale after the break-up of his engagement. He & his parents organised to meet FD at an address in Glebe. Upon their arrival at the address, the family was ambushed, with FD threatening them with a knife before his teenage accomplice ran into the backyard of the home brandishing a pistol (later found to be a replica). The mother's handbag, which contained the ring, was snatched from her & in the ensuing chase the father was stabbed in the chest, puncturing his lung. The victim managed to pin the teenager to the ground, whereupon FD stabbed him 4 times. He did not survive emergency surgery.
Conviction and sentence appeal by FD:
Specific directions - subjective test in relation to self-defence - failure to exercise discretion - s.53 Evidence Act - citizen's arrest'- speculative inferences on motive - whether verdict of guilty unreasonable - whether sentence excessive - accumulation - one overall event of criminality - special circumstances.
Appeal dismissed.
Crown appeals against sentences:
Whether sentences manifestly inadequate - concurrence - accumulation - standard NPP - discount - s.21A Crimes (Sentencing Procedure) Act 1999 - whether misapplication.
Appeals dismissed.

 

36


RUSHBY, Bradley - CCA, 28.2.2006
Beazley JA, Simpson & Rothman JJ
Citation: Rushby v R [2006] NSWCCA 25
Sentence appeal.
Assault - 3y with NPP of 1y; malicious wounding - 5y with a NPP of 3y, wholly accumulated upon the 1y NPP for the assault.
Total of 6y with a NPP of 4y.
Both offences were committed during a single evening at a private residence in Singleton. The applicant believed a man named Tallar had assaulted his son. He went to an address he believed to be occupied by Tallar. When he rang the doorbell, the victim opened it, however, the applicant assumed that it was Tallar. The applicant accused the victim of assaulting his son. When the victim denied any knowledge of the assault, the applicant produced a knife & threatened to stab him. After cutting the victim with the knife, the applicant forced his way into the home. An altercation then took place, during which the victim was punched & kneed. The victim suffered pain to the face, head & back. Photographs showed cuts & lacerations to the victim's face & a significant wound around the right eye & at the top of the forehead.
Whether total sentence manifestly excessive - whether offence justified a sentence near the statutory maximum - mental & emotional disorder & the sentencing process - concurrence - accumulation.
Appeal allowed in part: commencement date of sentence for the malicious wounding offence changed to commence the same date as that for the assault offence, resulting in a total sentence of 5y with a 3y NPP.

 

37


LIVAS, James - CCA, 10.3.2006
Grove & Rothman JJ
Citation: Livas v R [2006] NSWCCA 54
Sentence appeal.
Deemed supply of cannabis.
6m FT.
Possess cannabis (deemed supply).
FT of 6m.
A month after sentence, the applicant was granted bail pending his appeal.
The applicant came to the attention of law enforcement agencies while they were conducting an investigation into interstate trafficking of cannabis by a Melbourne resident & his associates. One of the couriers met with the applicant & supplied him with 2.26 kgs of cannabis. The applicant had been a user of cannabis since the age of 19 & he had agreed to collect the package for his usual supplier in return for a payment of $500. It was not alleged that the applicant was a member of the syndicate being investigated.
Whether sentence excessive - parity - discretion - constraint on exercise of discretion - matters relevant to discretion.
Appeal allowed & applicant resentenced: 6m suspended sentence.

 

38


CALLAGHAN, Jason - CCA, 10.3.2006 - 160 A Crim R 145
James, Simpson & Hall JJ
Citation: Callaghan v R [2006] NSWCCA 58
Sentence appeal.
2 x B&E with intent to steal.
Total sentence of 2y with a NPP of 12m.
The offences were committed upon the same premises, 9 days apart, the first late at night, the second early in the morning. On both occasions, the applicant used an object to smash a glass panel in a video shop. He entered the premises, searched drawers & cupboards & then left without taking any money or property. On the first occasion, having left the premises, he returned & re-entered, but again left empty-handed. The applicant was on parole at the time of the offences. Parole was revoked & the applicant was sentenced.
Whether sentence excessive - sentences for above offences made fully cumulative upon head sentence for previous offences - effect of revocation of parole - whether applicant doubly punished - discretion to backdate sentence where parole was revoked by reason of offence for which offender is to be sentenced - whether exercise of sentencing discretion miscarried.
Appeal dismissed.

 

39


LAY, Morgan Joseph - CCA, 6.3.2006
James, Buddin & Hall JJ
Citation: R v Lay [2006] NSWCCA 45
Crown appeal.
18 x BE&S; 2 x attempt B&E with intent to steal; 1 x larceny; + 12 matters on a Form 1 document.
Total sentence of 4y 3m with a NPP of 2y 9m.
The offences were committed upon various premises. Almost all were committed in company.
Aged 20 at time of offences - early guilty pleas to some offences, belated guilty pleas to others - on parole for armed robbery at time of offending - unsettled upbringing - commenced using cannabis at age 12 - graduated to using amphetamines - was spending $700-$800 per week on that drug at time of above offences - also using cannabis each week - alcohol abuse since age 15 - at time of sentencing was in a stable relationship that produced a young son - positive steps towards rehabilitation - substantial criminal record starting when respondent a juvenile - served a sentence in a Juvenile Detention Centre.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 5y with a NPP of 3y.

 

40


STAMBOLIS, Anthony Michael - CCA, 10.3.2006 - 160 A Crim R 510
Giles JA, Howie & Hoeben JJ
Citation: R v Stambolis [2006] NSWCCA 56
Crown appeal.
Indictment 1: BE&S - 18m suspended sentence; possess housebreaking implements - FT of 9m.
Indictment 2: Aggravated BE&S- 18m suspended sentence; possess housebreaking implements + Form 1 offence (escape from lawful custody) - FT of 9m.
The partial accumulation of the FT's resulted in a total FT of 11m.
The offences on the 1st indictment related to the applicant breaking into a house & stealing a laptop computer in a carrying case, a wallet containing personal documents & $101.25 in cash, 3 gold rings, 1 gold necklace, 1 watch, some earrings, 2 gold pendants & 1 gold watch. Some council workers spotted him running along the Cooks River Walkway from Tennant Parade & contacted police. A search of the area resulted in the respondent being found underneath a house. He was arrested, charged & released on bail.
The offences the subject of the 2nd indictment were committed in company when the respondent broke into a pawnbroking shop in Dulwich Hill & stole a large amount of jewellery & a safe. The total value of the jewellery stolen was in excess of $40,000. The respondent was arrested 2 days later. Most of the stolen goods were recovered. Upon being arrested, respondent asked to be allowed to secure his pet dogs in the rear yard & used the opportunity to escape by jumping the rear fence. Police gave chase & he was arrested nearby.
Aged 34 at time of offending - late guilty pleas - on a bond at the time - qualified cook - worked in a number of restaurants - extensive criminal record - long-term drug addiction the motivation for offending - dysfunctional upbringing as a result of his father's alcohol abuse & violence towards the family - relationship with mother good - strained relationship with father - mother supportive of respondent, believing he was emotionally vulnerable with a tendency to place needs of others above his own - some steps taken to participate in rehabilitation programmes - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 5y with a NPP of 3y.

 

41


BROWNE, Steven Gregory - 14.3.2006
Sully & Latham JJ
Citation: Browne v R [2006] NSWCCA 62
Sentence appeal.
1 x robbery; 3 x robbery in company; + Form 1 (robbery in company).
Total of 6y with a NPP of 3 y.
Four of the victims were robbed whilst travelling on trains, the other victim was followed as he alighted from a train, whereupon the applicant robbed him. The 3 robbery in company offences were committed whilst the applicant was on bail for the robbery offence & the offence on the Form 1.
Parity - whether justifiable sense of grievance - whether sentence manifestly excessive.
Appeal dismissed.

 

42


VAA - CCA, 3.3.2006
James, Buddin & Hall JJ
Citation: R v VAA [2006] NSWCCA 44
Crown appeal.
3 x being an accessory before the fact to maliciously damaging property by fire; 1 x conspiracy to maliciously damage property by fire; 1 x conspiracy to maliciously inflict GBH with intent to do so; + Form 1 offences (2 x conspiracy to maliciously damage property by fire).
Total sentence of 3y 9m with a NPP of 2y 3m.
A Police Strike Force was formed to investigate 12 incidents of arson committed upon businesses involved in the wholesale supply of hairdressing material. The total damage, including damage to buildings & stock in trade as well as loss of earnings, was estimated to be as high as $100 million. The respondent was not dealt with in relation to all of those incidents.
Early guilty pleas - significant assistance to authorities.
Whether error in imposing wholly concurrent sentences - whether any of sentences manifestly inadequate.
Appeal allowed in part.

 

43


MINNITI, Robert - CCA, 20.2.2006 - 159 A Crim R 394
Sully, Hoeben & Latham JJ
Citation: Minniti v R [2006] NSWCCA 30
Conviction and sentence appeal.
Attempt possess commercial quantity MDMA (ecstasy).
12y with a NPP of 8y.
A large piece of farm equipment was imported into Sydney from Belgium. Secreted within the machinery was a very large quantity of tablets (865 bags) that were found to contain MDMA. A Dutch national, Rutten, came to Australia to supervise the distribution of the tablets. A little later, 2 Belgian nationals came to Australia, removed the tablets & provided them to Rutten. All 3 men were arrested some weeks later. Upon arrest, Rutten agreed to assist authorities. A controlled operation was then put into place. Ecstasy tablets were taken out of a wheelie bag & an inert substance placed in the bag. It was during this operation that the appellant was stopped by a Federal Agent while wheeling the bag containing the inert substance. The appellant left the bag & ran off but was apprehended by a number of Federal Agents a short time later.
Directions - flight - previous good character - insufficient weight- whether sentence manifestly excessive.
Appeal dismissed.

 

44


DERON, Jason George - CCA, 22.3.2006
Spigelman CJ, Simpson & Johnson JJ
Citation: Deron v R [2006] NSWCCA 73
Sentence appeal.
Supply heroin.
4y 10m with a NPP of 3y 4m.
Applicant & his co-accused were involved in the supply & distribution of heroin in the Lake Macquarie & Newcastle areas. Their activities included the supply of amounts to lower level dealers & also the supply of small amounts directly to users. The operation was conducted over a period of time & involved planning & co-ordination. The supply occurred on numerous occasions & was the subject of direct evidence through police undercover operations. There was nothing to distinguish applicant's involvement from that of his co-offender, however, unlike the applicant, the co-offender pleaded guilty & was subsequently sentenced to 3y (less 91 days' pre-sentence custody) & a NPP of 2y (less 91 days' pre-sentence custody).
Whether pre-sentence custody to be taken into account via backdating or deduction - whether protective custody justified difference in magnitude of co-offender's sentence - whether sentence excessive.
Appeal dismissed.

 

45


GALVIN, Craig Henry - CCA, 20.3.2006 - 161 A Crim R 449
McClellan CJ at CL, Howie & Latham JJ
Citation: Galvin v R [2006] NSWCCA 66
Conviction appeal.
Sexual assault offences upon a child.
The appellant faced 10 counts relating to the 13 year old female complainant. There were another 5 counts on the indictment relating to a 14 year old male complainant. The Crown sought to run a joint trial of all the counts in the indictment, even though shortly after making complaint to police by way of a video-recorded interview, the male complainant committed suicide. The trial judge granted an application for separate trials in relation to the allegations made by the female complainant & an indictment was then presented containing 10 counts. The Crown indicated it intended playing portions of the male complainant's vide-recorded interview at the trial which related to the charges affecting the female complainant. Counsel then appearing for the appellant took objection but the judge stated that he had already ruled in favour of the Crown tendering the evidence during the course of determining the separate trial application & confirmed that he would allow the evidence. An edited copy of the video-recorded interview was played to the jury. This tape contained allegations made by the male complainant of sexual acts committed by the appellant upon the female complainant which were not the subject of the charges on the indictment, complaint by the female complainant to the male complainant about the appellant's sexual activity with her & an admission allegedly made to the male complainant by the appellant of a sexual act committed by him upon the female complainant. Following the opening addresses, the judge allowed the Crown to amend the indictment to include an additional count that was numbered '6'& replaced the original count with that number on the indictment upon which the appellant had been arraigned. However, the count that had originally been numbered '6'remained on the indictment but was unnumbered & was expressed to be in the alternative to the new 6th count. The appellant was then re-arraigned on the amended indictment. Seven of the counts on that indictment were in respect of offences of aggravated sexual intercourse contrary to s.66C(2) of the Crimes Act, three were in respect of offences of aggravated acts of indecency contrary to s.61O(1) of the Act & one was in respect of an offence of aggravated indecent assault contrary to s.61O(1) of the Act. Each count referred to the complainant as being between the ages of 10 & 16 years. The offences were alleged to have occurred over a period of 6 months.
Video-recorded evidence of deceased child witness admitted - whether admissible as 'context' evidence - whether evidence should have been rejected under s.137 Evidence Act 1995 (NSW) - whether direction as to use to be made of evidence appropriate - failure to give warnings re video-taped evidence.
Appeal allowed: new trial ordered.

 

46


SKONDIN, Mark Shane - CCA, 23.3.2006
Spigelman CJ, Simpson & Adams JJ
Citation: Skondin v R [2006] NSWCCA 59
Sentence appeal.
Armed robbery.
6y with a NPP of 3y.
At the same time as the sentencing judge imposed the above sentence, he also sentenced the applicant for an offence of malicious wounding for which the applicant was convicted following a trial. The sentence imposed for the armed robbery offence was made partially cumulative upon the sentence imposed for the malicious wounding. On 8.12.2005, the CCA quashed the conviction on the malicious wounding charge & a verdict of not guilty was entered: see Skondin v R [2005] NSWCCA 417. The sentence imposed in respect of that offence was also quashed. By the time that appeal was heard, however, the whole of the term of that sentence had expired.
The sole basis of the application for leave to appeal in respect of the armed robbery offence was that because the sentence had been made partially cumulative upon a sentence that had been quashed, the commencement date ought to be adjusted so as to recognise the time the applicant had already served.
Appeal allowed: commencement date adjusted.

 

47


SULTAN, Fouad - CCA, 2.12.2005
Grove, Sully & Howie JJ
Citation: R v Sultan [2005] NSWCCA 461
Sentence appeal.
Act with intent to influence juror.
1y 10m with NPP of 12m.
The applicant was on bail during the course of his trial on a charge of BE&S in circumstances of special aggravation when he entered a service station where the husband of one of the jurors was on duty & said: 'I just want you to ask your wife to listen to the evidence carefully'. There was agreement that these words had been spoken by the applicant but disagreement regarding the context in which they were said. There was no finding that the conduct of the applicant was planned or unplanned.
Absence of sinister connotation in intended communication to juror to listen to evidence carefully - whether sentence manifestly excessive.
Appeal allowed: resentenced to 12m with a NPP of 6m.

 

48


FREEMAN, Jennifer - CCA, 2.12.2005
Grove, Sully & Howie JJ
Citation: R v Freeman [2005] NSWCCA 460
Sentence appeal.
1 x aggravated stealing from the person.
3y 4m with a NPP of 2y.
The 18 year old victim was travelling home by train after attending a TAFE college. She was seated, listening to a walkman when the applicant & her co-offender attacked her. The co-offender punched her in the nose & to the side of her head, which then struck the window. The victim tried to retaliate but the co-offender punched her in the mouth. The applicant made off with the victim's backpack. A bystander intervened & pulled the co-offender away. The 2 offenders went to the vestibule of the carriage, rifled through the backpack & then alighted from the train when it arrived at a station. They threw some of the victim's property onto the railway tracks. Their conduct was reported to transport staff & they were detained. Police arrived & arrested them. The victim sustained a fractured nose, requiring surgery under general anaesthetic. She also suffered other injuries.
Sentencing - appellant disadvantaged by being in custody longer for offence than her co-offender who was imprisoned for additional offence - parity - justifiable sense of grievance.
Appeal allowed: resentenced to 3y 2m with a NPP of 1y 10m.

 

49


GADSDEN, Robert Geoffrey - CCA, 14.12.2005
Hodgson JA, McClellan CJ at CL, Hall J
Citation: Gadsden v R [2005] NSWCCA 453
Crown appeal.
Armed robbery with offensive weapon; + Form 1 (assault with intent to rob whilst armed with offensive weapon).
200 hours CSO.
The respondent & 2 male co-offenders were in a vehicle owned & driven by the respondent when they saw a male & female dressed as punks walking down a suburban street. The respondent & his co-offenders alighted from the vehicle & approached the male & female from behind, saying: 'We're coming after you, we're going to catch you'. One co-offender, armed with a silver aluminium baseball bat, walked in front of the victims, waved the bat & demanded money. The male victim said he did not have any. The female victim ran off to get help. The 2nd co-offender, who was standing behind the male victim, took the backpacks they were carrying while the other continued to threaten the male victim with the baseball bat. All 3 offenders then ran off. The backpacks contained clothing & a mobile phone with a distinctive cover. A short time later, police stopped the vehicle in which the 3 offenders were travelling & noticed a baseball bat on the rear seat of the car. In the glove box, they found a mobile phone matching the description of the stolen mobile phone. The respondent was arrested but denied any knowledge of or involvement in the offence until 3 months later.
Aged 18 at time of offending - regular employment - remorse - no priors - good prospects of rehabilitation.
Whether undue weight given to subjective features - whether insufficient weight given to objective seriousness - whether appropriate in exceptional circumstances to impose non-custodial sentence - whether circumstances exceptional - whether sentence manifestly inadequate.
Appeal dismissed.

 

50


PLEVAC, Josef - CCA, 27.10.2005
McClellan CJ at CL, Simpson & Hoeben JJ
Citation: Plevac v R [2005] NSWCCA 454
Sentence appeal.
Murder.
25y with a NPP of 19y.
This appeal followed the redetermination of a life sentence imposed on the applicant for the murder of his wife: see Regina v Plevac [2004] NSWSC 916. Applicant's wife died as a result of full thickness burns to 90% of her body after being doused in petrol & then set alight. Applicant & his wife had been estranged at the time, with the wife & young child living in an apartment block in Parramatta. Before she died, the deceased said she was unable to identify her attacker, but did say that it was neither her husband nor her boyfriend. There was, however, evidence of the applicant being in the vicinity at the time of the attack.
Whether sentence manifestly excessive - excess weight placed on maintenance of innocence where no community protection imperative - uncertain prospects of rehabilitation where applicant maintains innocence.
Appeal dismissed.

 

51


NGUYEN, Bao - CCA, 8.2.2006
Mason P, Barr & Hall JJ
Citation: Nguyen v R [2005] NSWCCA 448
Sentence appeal.
Knowingly take part in cultivation of commercial quantity cannabis plant.
9y with a NPP of 5y.
The applicant had been recruited to work on a property where approx 30,000 cannabis plants were being grown, the street value of which would have been more than $50,000,000. The applicant expected to be paid between $50,000 & $80,000 for his services. He worked on the property for approx 4 months before police entered the property & arrested the applicant & 7 other workers. The applicant told police he had assisted with preparing the land, planting crops, irrigation & fertilisation of plants. The sentencing judge did not accept the applicant's submission that he only learned that growing cannabis was unlawful after watching a TV programme 2 months after he commenced working on the property. It was accepted that the applicant took the job when he was unable to find other work & that he did so in order to assist his mother in supporting his 2 disabled siblings.
Aged 21 at time of offending - early guilty plea - Vietnamese refugee who settled in NZ - subsequently came to Australia - supportive family - prior good character - contrition - steps taken towards rehabilitation - doing good work in prison system - undertaken courses whilst in prison - no priors.
Whether sentence excessive - whether justifiable sense of grievance when comparing applicant's sentence with sentences later imposed upon 3 co-offenders.
Appeal allowed: resentenced to 5 y with a NPP of 3y.

 

52


BANTING, Troy - CCA, 10.3.2006
Grove & Rothman JJ
Citation: Banting v R [2006] NSWCCA 53
Sentence appeal.
Assault; sexual intercourse without consent; larceny.
Total of 6 y with a NPP of 4 y.
The applicant & the victim had been in a de facto relationship for 8 years. At the time of the offences, the applicant & the victim lived in the same premises, although the de facto relationship had ended some time earlier. On Christmas Day 2002, after the relationship had ended, the victim returned home with the couple's daughter to find the applicant drunk. An argument developed & the applicant poured a bottle of beer over the victim's head & sprinkled ashes & cigarette butts from an ashtray over her head & body. Shortly thereafter, the victim moved out with the young daughter. Some 3 months later, the applicant insisted on coming to the victim's house. Despite her refusal to see him, he pushed his way through the front door. After pushing the victim onto a bed, the applicant had vaginal intercourse with the victim. The young daughter was present in the house during the assault. The applicant then left, taking a number of pieces of jewellery & a mobile phone with him.
Aged 22 at time of offending - on bail for 2 years prior to trial - had undergone successful rehabilitation for alcohol - has not consumed liquor for 18 months - sentencing judge found applicant unlikely to re-offend - priors - no previous imprisonment.
Special knowledge - past relationship - special circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 6y 5m with a NPP of 3y 5m.

 

53


HARRIGAN, Michael Leonard - CCA, 15.12.2005
Grove, James & Simpson JJ
Citation: Harrigan v R [2005] NSWCCA 449
Sentence appeal (extension of time).
1 x dangerous drive occasioning GBH - 4y 9m with a NPP of 3y 3m; 1 x doing an act intending to pervert the course of justice - FT of 18m.
Total sentence of 6y 3m with a NPP of 4y 9m.
The applicant was driving his utility on a road during heavy peak hour traffic. For approx 2 kilometres he drove very closely behind several cars & occasionally swerved onto the incorrect side of the road. A car being driven by the victim's partner moved towards the left lane, at which point the applicant's vehicle hit the victim's car. The impact caused that car to veer sharply to its left & the front passenger side of the vehicle collided with a telegraph pole. The victim was 7 months pregnant at the time of the collision. As a result of the impact the foetus expired. Among other injuries, the victim required a full hysterectomy. The sentencing judge found the applicant was driving at least 65 kph in an area with a speed limit of 60 kph. After the collision, the applicant failed to stop & drove instead to the depot of a transport company where he sought a crow bar. The judge inferred this was to remove the damaged mudguard from his utility. The applicant told drivers at the depot that he left the accident scene because he had consumed a few beers. He concocted a false version of events which 2 of his friends agreed to recount in interviews with police, asserting that the applicant's vehicle had been stolen. One of the friends later gave the true version to police but the applicant continued to deny being the driver. The judge took into account the serious consequences for the victim in assessing the gravity of the offence, but stated that the applicant was not to be punished for causing the death of her unborn child, such an offence not being then available at law.
Aged 36 at time of offending - priors - no previous imprisonment.
Whether sentencing judge erred in failing to make the sentence for perverting the course of justice offence either wholly or in part concurrent with the driving offence - totality - whether sentence excessive.
Appeal dismissed.

 

54


MUNN, Sharyn Ann - CCA, 24.3.2006
MILLER, Thomas
Spigelman CJ, Simpson & Barr JJ
Citation: Munn v R; Miller v R [2006] NSWCCA 61
Conviction appeals.
Munn: 1 x act of indecency; 1 x sexual intercourse.
Miller: 1 x act of indecency; 2 x sexual intercourse.
Sentence not stated.
The appellants were jointly charged with having committed an act of indecency towards a 7 year old girl & having, on 2 occasions, had sexual intercourse with her. In addition, the 2nd appellant was charged with another count of having had sexual intercourse with the complainant. The complainant lived with her mother & stepsister in rural NSW. She & other children used to play in the driveway of a block of flats near her home. The 2nd appellant lived in one of those flats & the 1st appellant, his girlfriend, often stayed there. There was an occasion when the complainant travelled to Queensland to visit her father & his wife. The complainant told her stepmother that the 2nd appellant had sexually assaulted her. The police were called in & she was interviewed. The interview was videotaped. In the interview, she said that the 2nd appellant had placed his finger inside her vagina, put his penis into her vagina & had licked her vagina. She said that the 1st appellant was present during those assaults. The 2nd appellant was arrested but denied all allegations. Later on, the complainant was again interviewed. She gave further details & said that the 1st appellant was lying naked in bed next to her during the assaults. Police arrested the 1st appellant & interviewed her. She denied all the allegations. Police again interviewed the complainant on 3 further occasions. She gave additional details about the assaults & acts of indecency. She also said that at about the same time, she had had sexual intercourse with a 12 year old boy, whom she named. The complainant's evidence was adduced principally by playing videotapes of the several interviews she had had with police. She was further examined in chief, cross-examined & re-examined by means of remote CCTV. The 2nd appellant gave evidence denying that any of the assaults had happened. The 1st appellant did not give evidence but called an ex-partner to give evidence of good character.
Whether juror biased - whether complaint appropriately dealt with - whether irregular to receive verdicts without further enquiry - defence counsel prevented from cross-examining complainant on her general sexual experience - Crown prosecutor submitted in closing that complainant appeared to lack sexual experience - delay in complaint - whether substantial - whether warning required about effect of delay on ability of accused to defend themselves - whether convictions unreasonable - whether miscarriage of justice.
Appeal allowed: new trials ordered.

 

55


ASLETT, Dudley Mark - CCA, 24.3.2006
Spigelman CJ, Barr & Howie JJ
Citation: Aslett v R [2006] NSWCCA 49
Conviction and sentence appeals.
Multiple counts, including BE & commit serious indictable offence of robbery in circumstances of aggravation (in company & in circumstances of special aggravation, namely wounding), sexual intercourse without consent while in company, deprive of liberty while in company, incite victim to commit an act of indecency upon herself.
Total sentence of 40y with a NPP of 30y.
Dudley Mark Aslett was one of 4 men who broke into a unit in Newington, in Sydney's west, in July 2003. They tied up the parents of a young16 year old teenage girl before brutally raping the teenager at knifepoint. In sentencing the men in 2004, the sentencing judge said that the complainant had the worst injuries he had seen in his 35-year legal career. Those injuries required surgery to her genitalia following the attack. The complainant spent 3 days in hospital as a result of the physical injuries she sustained. The appellant was the ringleader in the commission of the offences upon the young teenager. The sentencing judge remarked that it was a "particularly brutal home invasion". In the CCA, Barr J said at 138: 'The appellant's offences were very serious indeed. These findings of the sentencing judge have not been challenged. The appellant was the first to rape the complainant, holding a knife against her cheek and ordering her not to look or he would poke out her eyes. He encouraged the others to rape her knowing that she was bleeding and wounded and that they would make her wounds worse. Her injuries were severe. Her ordeal amounted to torture and extended over a few hours. The complainant suffered physical and lasting emotional harm. She was imprisoned, degraded and utterly humiliated. The offences fell into the worst category of cases'.
Aged 32 at time of offences - guilty plea - Aboriginal - lengthy criminal history - started offending as a child - from age of 10 was the inmate of either an institution or gaol - longest period spent out of gaol was 10 months - on conditional liberty at time of offences - offences 'motivated by hatred for, or prejudice...'- deliberate targeting of 'Asians'- victims vulnerable - offences 'part of a planned or organised criminal activity'- 'complainant suffered physical and lasting emotional harm'- 'savage'rapes - complainant & her parents 'treated cruelly by the offender and his gang'.
Accomplice evidence - whether direction adequate - obligation to direct on uncorroborated evidence - Crown prosecutor, in opening to jury, mistakenly misstated effect of witness' evidence - whether jury ought to have been discharged - whether identification evidence wrongly admitted - prior inconsistent statements of Crown witness - whether wrongly admitted - irrelevant evidence admitted - whether proviso should apply - remarks of Crown prosecutor - whether miscarriage of justice - whether verdicts unreasonable - whether sentences manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 30y with a NPP of 22 y.

 

56


ASLETT, Steven James - CCA, 24.3.2006
Spigelman CJ, Barr & Howie JJ
Citation: Aslett v R [2006] NSWCCA 48
Sentence appeal.
Multiple offences: armed robbery in circumstances of special aggravation, aggravated sexual intercourse without consent in company, sexual intercourse without consent, deprive of liberty.
Total of 24y with a NPP of 17y.
Steven Aslett was one of 4 men who broke into a unit in Newington, in Sydney's west, in July 2003. They tied up the parents of a young 16 year old teenage girl before brutally raping the teenager at knifepoint. The young victim suffered extensive injuries to her genitalia, which required surgery under general anaesthetic. Steven Aslett is the nephew of Dudley Aslett: see  Aslett v R [2006] NSWCCA 49.
Aged 18 at time of offences - guilty plea - Aboriginal - told Probation Officer & psychologist that he had a troubled upbringing - did not provide evidence of this - called no-one in support - negativistic & antisocial personality type.
Gratuitous cruelty involved in offences - threats to stab complainant when she told applicant she was going to vomit.
Whether sentencing judge erred in regarding particular features as aggravating criminality - whether sentencing judge erred in findings of fact - parity - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 20y with a NPP of 13y.

 

57


REND, Susan Betty - CCA, 14.3.2006 - 160 A Crim R178
James, Buddin & Hall JJ
Citation: Rend v R [2006] NSWCCA 41
Conviction and sentence appeal.
1 x robbery; 1 x drive whilst disqualified.
4y with a NPP of 2y.
The victim was walking along King Street, Newtown on his way home in the early hours of the morning when a car travelling in the opposite direction passed him. The victim kept walking but then heard someone running up behind him. It was a man armed with a knife. The victim recognised the man as being the person in the front passenger seat of the car that had passed him. The man asked the victim what money he had & the victim produced $10. The man took the money & ran back to the car that had stopped about 50 metres away. The victim managed to obtain the registration number of the vehicle before it drove away. He reported the matter to police & was able to give them some information about the male who had robbed him & the female driver of the car. The information supplied subsequently led to the vehicle being stopped by police.
Whether miscarriage of justice occasioned by Crown prosecutor's address which relied on lies told by appellant as evidence of guilt - whether miscarriage of justice occasioned by failure of trial judge to properly direct jury in relation to lies - whether error in allowing Crown to call evidence in reply.
Whether error in taking into account prior convictions & fact that offence committed in company as aggravating factors - whether disparity with co-offender's sentence gives rise to justifiable sense of grievance.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 3y with a NPP of 18m

 

58


MITCHELL, Neil - CCA, 24.3.2006
Sully & Latham JJ
Citation: Mitchell v R [2006] NSWCCA 72
Sentence appeal.
13 x obtain money by deception.
Total sentence of 8y with a NPP of 5y.
From 22.12.1999 until 30.7.2003, the applicant was employed as the national accountant by CanTeen, the Australian Teenage Cancer Patient's Society. Evidence established that between 13.4.2000 & 18.6.2003, the applicant made a number of unauthorised electronic fund transfers from the NAB accounts of CanTeen to his own ANZ bank, SGE Credit Union and Westpac Visa accounts, resulting in 244 unauthorised transactions totalling $302,099.34.
Whether overall sentence manifestly excessive.
Appeal allowed: resentenced to a total of 5y with a NPP of 3y 2m.

 

59


DOUGAN, Dee (previously Robert Wilkie Dougan) - CCA, 6.3.2006 - 160 A Crim R135
Giles JA, Grove & Hoeben JJ
Citation: Dougan v R [2006] NSWCCA 34
Sentence appeal.
Assault with intent to rob whilst armed with dangerous weapon (pistol); threaten a witness.
Total of 9y with a NPP of 7y.
The applicant & a co-offender rode a stolen motorbike to a service station, with the applicant riding as the pillion passenger. The applicant went into the store, pulled out a pistol & pointed it at the 74 year old male proprietor's neck. He then walked over to the cash register & asked for the weekend takings, whereupon the proprietor told him the takings were at home. The applicant ran from the shop when another customer arrived. The co-offender had been watching the service station for 12 months. The applicant & his co-offender began discussing & planning the robbery one month before the hold-up was committed. Subsequently, a witness was called to give evidence in the LC against the applicant. She had identified him as being the person who had pointed the pistol at the victim during the robbery. After the solicitor for the DPP had asked her some questions, the applicant drew his finger across his throat. The witness felt scared, threatened & intimidated.
Aged 40 at time of offending - no evidence of contrition - little prospect of successful rehabilitation - on parole at the time for a similar offence - on protection in remand - because of prior conviction for escape lawful custody, would always be held in maximum security prison - multiple priors - criminal record dating back to when aged 14 years - previous imprisonment.
Whether sentence manifestly excessive - whether matters properly taken into account under s.21A Crimes (Sentencing Procedure) Act 1999 or whether matters were elements of the offence - use to be made of offender's criminal record.
Appeal dismissed.

 

60


BAIN, John - CCA, 24.3.2006 - 160 A Crim R 36
Sully & Adams JJ
Citation: Bain v R [2006] NSWCCA 79
Sentence appeal.
Armed robbery (shotgun).
9y with a NPP of 6y 4m.
The applicant, armed with a double-barrelled shotgun, robbed a bank during business hours. The total amount of money taken was $43,500.
Error in taking into account matters as aggravating features in manner contrary to law - whether error in sentencing process - whether sentencing excessive.
Appeal dismissed.

 

61


CHAPLIN, David Andrew John - CCA, 1.3.2006 - 160 A Crim R85
McClellan CJ at CL, James & Buddin JJ
Citation: Chaplin v R [2006] NSWCCA 40
Sentence appeal.
Attempt detain without consent with intent to obtain sexual gratification; indecent assault.
Total sentence of 7y with a NPP of 5y
The 2 offences occurred within a short period of time.
The 1st offence occurred when the applicant saw a 12 year old school girl walking down a street in her school uniform. He followed her into another street & took a folded piece of cloth from his pocket. He placed the cloth over her mouth, whereupon the girl screamed & managed to pull away. The applicant apologised then quickly walked away in the same direction as the complainant had been walking. The complainant followed slowly behind him until she reached her home where she told her mother what had happened. Soon after this incident, the applicant approached a walking track & saw the 2nd victim walking towards him. After they passed each other, he turned to follow her. He caught up with her & placed his left hand around her so that it was on her belly button. He then brought his right hand across her face placing it on her right cheek and pulled her head towards her right shoulder. As he did this he said: 'you're beautiful.' The complainant attempted to break the applicant's grip. The applicant then said: 'can I give you a kiss?'& kissed her cheek. The complainant screamed, 'help' and the applicant let go of her. He jogged back up the track as 2 witnesses came to the victim's assistance. The applicant was arrested later that afternoon having been identified by the first victim in the course of a drive around. He immediately admitted the offences & participated in an ERISP.
Early guilty pleas - remorse - offences committed whilst on conditional liberty - bizarre behaviour - possible organic brain dysfunction of frontal lobe - on parole at time of offending - prior offence of inflicting ABH with intent to have sexual intercourse - troubled upbringing - adopted at birth.
Whether sentence manifestly excessive.
Appeal dismissed.

 

62


DOOLAN, Isaac Robert - CCA, 17.2.2006 - 160 A Crim R54
McClellan CJ at CL, James & Buddin JJ
Citation: Doolan v R [2006] NSWCCA 29
Sentence appeal.
2 x common assault; 3 x sexual intercourse without consent; 1 x aggravated sexual intercourse without consent.
Total of 10y with a NPP of 7y.
The applicant & the complainant had lived in a de facto relationship for a period of approx 2 years. The complainant obtained an AVO against the applicant, who subsequently breached that order as a result of which the complainant terminated the relationship. The applicant was charged with various offences arising from that incident & received a sentence of imprisonment. The complainant then moved to Cowra but continued to travel back to Bathurst for work. The applicant also worked in Bathurst & the applicant & complainant met up again. Both then travelled to Cowra. It was following this period in time when the alleged offences occurred.
Regarding the applicant's motivation, the sentencing judge concluded that 'it was not to obtain sexual gratification, it was to control her and teach her a lesson'.
Aged 24 at time of offences - Aboriginal descent - difficult upbringing - left school at age 15 - completed a number of TAFE courses - has been in regular employment since leaving school - hardworking & respected employee - keen & active sportsman - intoxicated at time of offences - binge drinker on weekends - priors - no previous imprisonment.
Whether error in considering various aggravating factors - whether less severe sentences warranted.
Appeal dismissed.

 

63


PERRIN, Leigh Paul - CCA, 15.3.2006
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Perrin v R [2006] NSWCCA 64
Sentence appeal.
Sexual intercourse without consent; + Form 1 offence (aggravated indecent assault).
6y with a NPP of 4y.
The count of sexual intercourse involved penile/vaginal intercourse for a relatively brief period. The aggravated indecent assault involved the applicant putting his penis in the face of the complainant without her consent whilst in the company of another.
Error in sentencing applicant on a factual basis not supported by the evidence - criminality incorrectly elevated - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2y.

 

64


CHISARI, Steven - CCA, 23.2.2006
Beazley JA, Simpson & Rothman JJ
Citation: R v Chisari [2006] NSWCCA 19
Crown appeal.
Maliciously inflict GBH with intent.
2y 8m with a NPP of 14m (special circumstances found).
The victim was a police officer investigating a complaint from the proprietor of a service station about a vehicle that had been left unattended & parked across the service station entrance, blocking access. The vehicle was registered to the respondent's brother. At some earlier stage, an infringement notice had been attached to the windscreen of the vehicle. The police officer placed a 2nd infringement notice on the vehicle, then made arrangements for a tow-truck to remove the vehicle. The tow-truck arrived & the operator began hooking the vehicle to the tow-truck so that it could be removed. At that point, the respondent & his brother arrived. The brother became agitated & abusive. The respondent unhooked the vehicle from the tow-truck & started it. He locked the door from inside while his brother continued behaving abusively & threateningly, shouldering the police officer away from the vehicle. The police officer pointed a can of capsicum spray at him. The respondent reversed the vehicle & then drove forward in the direction of where the police officer was standing. With no escape route, the officer jumped onto the bonnet of the vehicle & attempted to hold onto the windscreen. The vehicle accelerated & the police officer rolled off the bonnet & fell to the ground. Without the headlights turned on, the respondent drove off at high speed, swerving in & out of traffic. Two days later, in company with legal advisers, the respondent presented himself at a police station & handed in a statement in which he claimed the police officer, with his gun drawn, ran to the car, jumped on the bonnet & smashed the windscreen, resulting in the police officer being injured. The respondent denied that the injury had been his fault or that he had any intention of harming the police officer.
Aged 27 at time of offence - stable, happy family background - left school in Year 12 - completed motor mechanic's apprenticeship - worked in motor industry & building trade - minor criminal record - no previous imprisonment.
Whether sentence manifestly inadequate - aggravating factors - whether previous convictions amount to an aggravating circumstance - whether disregard to public safety an aggravating feature - whether actual use of weapon an essential element of offence - subjective circumstances - evaluation of objective seriousness of offence.
Appeal allowed: respondent resentenced to 5y with a NPP of 2 y.

 

65


WHYTE, Michael - CCA, 24.3.2006
Spigelman CJ, Simpson & Barr JJ
Citation: Whyte v R [2006] NSWCCA 75
Conviction appeal.
Detain with intent to obtain advantage, namely to have sexual intercourse & at the time occasioning ABH.
Sentence not stated.
The appellant was sitting at a table in a caf  when he heard the young woman working in the caf  tell her mother that she needed to go to the toilet. She collected the key to the toilet then left the caf . The appellant followed her up to the 1st floor of the arcade where the toilet was situated. He waited for the young woman outside the toilet hallway door & when she came out, he grabbed her & pushed her backwards into the hallway. The young woman eventually managed to free herself & run out into the arcade & call for help, however, she had sustained a number of injuries. At the time, the appellant had a packet of condoms in his pocket.
Whether verdict unreasonable - proof of intermediate fact - admission of part of complainant's evidence - whether circumstantial case on intent requires particulars of sexual intercourse to be separately supported by separate evidence - whether complaint evidence properly admitted - whether miscarriage of justice.
Appeal dismissed.

 

66


PIKE, Andrew Howard John - CCA, 3.3.2006
McClellan CJ at CL, James & Buddin JJ
Citation: Pike v R [2006] NSWCCA 32
Conviction and sentence appeal.
7 x dishonesty obtain money by deception.
Total sentence of 19m with a NPP of 12m - sentences to be served by way of PD.
In all, the applicant was indicted upon 14 counts. There were 2 alleged victims of the offences charged. The appellant told the 2 victims that he was a solicitor, which was not true, & said he was able to get them large returns if they allowed him to handle some investments for them. In all, a large amount of money was involved. The trial judge directed the jury to return verdicts of not guilty on counts 2,4,5 & 6, having concluded that the evidence given in those matters could not establish an essential ingredient of the offence. At the conclusion of the trial, the jury returned verdicts of guilty on counts 1,7,8,9,12,13 &14 and verdicts of not guilty on counts 3,10 &11.
Whether verdicts unreasonable & not supported - whether error in failure to grant an application by appellant for an adjournment so as to secure attendance of witnesses - whether failure to correct a mistake in Crown's closing address - whether failure to take into account onerous bail conditions.
Conviction appeal allowed on counts 7,8,9,12,13 &14 - verdicts of acquittal entered on those counts.
Appeal against conviction on count 1 dismissed.
Appeal against sentence on count 1 dismissed.

 

67


ROSS, Michael Anthony - CCA, 15.3.2006 - 160 A Crim R 526
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Ross v R [2006] NSWCCA 65
Sentence appeal.
Armed robbery with offensive weapon (knife).
5y with a NPP of 2 y.
The applicant & others boarded a train late at night at Wyong en route to Newcastle. They were observed to be in possession of knives. The victim alighted at the station before Newcastle & the accused & the others followed. The accused followed the victim from the station & demanded his wallet, threatening to use a knife if the wallet was not handed over. The applicant took the wallet & a mobile phone. The applicant & the others were captured on CCTV at the station as they went through the wallet, taking the contents. The applicant was also seen later at Newcastle Station aboard a train cutting a seat with a knife. It was conceded by the Crown that the knife was not wielded at the victim or held against his person. There was no evidence of pre-planning. The applicant told police he committed the robbery because he was hungry, having not eaten for days. After the robbery, he & his friends went to McDonalds & used the proceeds of the robbery to buy food.
Aged 18 at time of offence - guilty plea - disturbed upbringing - diagnosed with ADD & ADHD from age 6 - physically & verbally abused by natural father - drug use from age 9 - living on the streets since age 15 - combination of longstanding damage to most areas of intellectual function because of frontal lobe brain damage early in life, lack of education, dysfunctional family & drug addiction leading to drug induced psychosis at time of offence.
Error in incorrectly treating certain matters as aggravating features - whether head sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2y.

 

68


GIAMMARIA, Robert Vito - CCA, 14.3.2006
KARAGIANNIS, Bill
Sully & Latham JJ
Citation: Giammaria v R; Karagiannis v R [2006] NSWCCA 63
Sentence appeals.
Giammaria: Knowingly take part in cultivation of commercial quantity cannabis plants - 6y with a NPP of 2 y.
Karagiannis: Knowingly take part in cultivation of commercial quantity cannabis plants - 6y with a NPP of 3 y.
Both applicants entered pleas of guilty. The applicants were part of a larger group actively involved in the cultivation of cannabis. The applicants' involvement was for financial gain.
Giammaria: Appeal allowed - resentenced to 4 y with a NPP of 2y.
Karagiannis: Appeal allowed - resentenced to 4 y with a NPP of 3y.

 

69


HOSWELL, Clint Clement - CCA, 24.3.2006
Spigelman CJ, Simpson & Barr JJ
Citation: Hoswell v R [2006] NSWCCA 70
Sentence appeal.
BE&S.
2y 8m with a NPP of 2y.
The applicant forced entry through a balcony door to a unit & stole property valued at a little over $2,000, which included a computer that belonged to the occupant's employer. Although the applicant was well-known to police & his fingerprints were identified on a balcony window near where he had forced entry, he was not arrested or charged until a little more than 10 months later. During the months between the commission of the above offence & his arrest, the applicant was arrested & charged with a series of unrelated offences & was sentenced to imprisonment for 12m with a NPP of 9m. Although both the NPP & the overall sentence expired prior to sentencing in respect of the above offence, the applicant was refused bail & remained in custody until the present sentence was imposed. It was because of that sentence that the commencement date of the sentence for the above offence was selected. The sentence was made wholly cumulative upon the earlier NPP.
Almost 28 at time of offence - guilty plea - lengthy criminal record involving numerous offences of same or similar kind - alcohol abuse from age 15 - cannabis use from age 16 - heroin use from age 19 - cocaine use from age 23.
Utilitarian value of guilty plea - matters in mitigation - whether taken into account - remorse - rehabilitation - special circumstances - protective custody - accumulation of sentences - whether sentence manifestly excessive.
Appeal dismissed.

 

70


FORD, Scott James - CCA, 7.2.2006
Giles JA, Howie J
Citation: Ford v R [2006] NSWCCA 9
Sentence appeal.
Count 1: drive in manner dangerous occasioning GBH - 3y with a NPP of 2y 3m.
Count 2: drive in manner dangerous occasioning GBH - 3y with a NPP of 2y 3m (concurrent).
Total sentence of 3y with a NPP of 2y 3m; licence disqualification for 2y.
The applicant was driving his vehicle with 3 passengers when he was overtaken at a set of traffic lights by 2 vehicles. He tried to overtake these vehicles. His vehicle crossed double lines while approaching a bend & a crest in the road then collided with the front driver's side of an oncoming vehicle. The applicant lost control of his vehicle which travelled a further 170 metres before hitting a small embankment, crashing through a barbed wire fence & coming to rest in a paddock. The other vehicle spun around a number of times before becoming stationary in the middle of the road. It was estimated that the applicant's vehicle was travelling between 100-120kph in an 80kph zone. The sentencing judge did not accept the applicant's evidence that he was attempting to escape a 'road rage situation.' The applicant sustained fractures to the right hip & femur, right foot & ankle, as well as a closed head injury that resulted in pressure on the right side of the head, blurry vision & occasional blackouts. Neuropsychological assessment by a clinical psychologist revealed evidence of impaired cognitive functioning commensurate with having sustained a traumatic brain injury. As a result of his injuries, the applicant experienced considerable difficulty in performing his work in the building industry. The driver of the other vehicle sustained a small cut over one eye, however, both of his legs were broken, resulting in 15 screws, 2 pins & a plate being inserted in his right leg & one pin in his left leg. A rear passenger in the applicant's vehicle also sustained a broken leg & was hospitalised for a week.
Aged 20 at time of offences - extensive criminal history - on bail at time of offending & was also supposed to be serving a sentence of PD but had failed to turn up - previous imprisonment.
Concurrent sentences - double-counting between guideline judgment & s.21A - whether sentence excessive.
Appeal allowed & applicant resentenced as follows:
Count 1 - 2y 6m with a NPP of 1y 10m.
Count 2 - 2y 6m with a NPP of 1y 9m.
These sentences were made partially concurrent, resulting in a total sentence of 3y with a NPP of 2y 3m; + licence disqualification for 2y.

 

71


DE CAMPOS, Lucille Margaret - CCA, 28.2.2006
Beazley JA, Adams & Howie JJ
Citation: De Campos v R [2006] NSWCCA 51
Sentence appeal (extension of time).
Import trafficable quantity heroin.
8y with a NPP of 5y.
The applicant, a South African citizen, arrived at Sydney airport from Johannesburg. Although she denied having any prohibited items in her possession, Customs officers were suspicious that she was carrying narcotic drugs & obtained her permission to conduct an 'internal search'. She was taken to St George Hospital where a scan revealed a number of foreign objects concealed within her body. While at the hospital, over a period of approx 17 hours, the applicant passed a total of 66 small cylindrical objects that were found to contain heroin with a gross weight of 452 grams & a purity of 62%, resulting in a pure weight of 280.2 grams. She was to be paid about $4,000 for the importation.
Guilty plea - aged 44 - subjective circumstances.
Offer of assistance refused by police - offer not recorded by police in statement - not known by prosecutor at sentencing hearing - whether there should be a discount for assistance.
Appeal allowed: resentenced to 7 y with a NPP of 4 y.

 

72


SUKKAR, Joseph - CCA, 30.3.2006 - 172 A Crim R 151
McClellan CJ at CL, Howie & Latham JJ
Citation: R v Sukkar [2006] NSWCCA 92
Crown appeal.
Knowingly concerned in the importation of a commercial quantity of MDMA (ecstasy).
13y 3m with a NPP of 8 y.
The applicant & 3 of his brothers were involved, along with others, in the importation of the drugs. A shipment containing a cool room arrived in Brisbane from Belgium. The shipment consisted of 3 crates containing 48 modular plastic columns, 4 modular doors & a number of panels. Approx 480,000 tablets were concealed in tubes that had been inserted into each column. The tablets were removed & replaced with a substitute. A controlled delivery then took place.
Extent of discount for guilty plea & assistance - objective criminality erroneously assessed as equal to that of partner - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 20y with a NPP of 12y.

 

73


SAUER, Jay - CCA, 27.3.2006
Grove, James & Simpson JJ
Citation: Sauer v R [2006] NSWCCA 81
Conviction appeal.
Supply commercial quantity methylamphetamine; + Form 1 (supply ecstasy).
6y with a NPP of 4y.
Police stopped the appellant & searched his motor vehicle. In the rear pocket of the front passenger's seat they found a clear plastic resealable bag wrapped in newspaper, containing 132.2 grams of methylamphetamine (72.5% pure). During the search, the appellant denied knowledge of the presence of these drugs. At the time, he was carrying $1,500 in cash, which he told police he received from a friend who had repaid a debt. He was escorted to his business premises where his residence was also located & in a cabinet beside his bed police found a clear plastic resealable bag, again wrapped in newspaper, the contents of which were found to be 189.2 grams of methylamphetamine (76.5% pure). The appellant also denied knowledge of these drugs. Within the premises, police found 2 amounts of cash ($9,160 & $18,100). They then found 9 tablets, 3 of which were mauve in colour & had a logo of the cartoon figure Donald Duck imprinted on them. The tablets were ecstasy & the appellant told police they were for his personal use. Another 78 mauve tablets with the Donald Duck logo were discovered in a clear resealable bag. The appellant denied any knowledge of these tablets. It was this collection of tablets that constituted the Form 1 offence.
The applicant entered a plea of guilty in the DC.
On appeal, the appellant sought the setting aside of the conviction on the ground that it constituted a miscarriage of justice because the plea of guilty was entered in circumstances wherein the integrity of the plea as an admission of guilt was compromised.
Guilty plea - claim that plea based on flawed advice not consciousness of guilt - dispute that claimed advice was given.
Appeal dismissed.

 

74


O'CONNELL, Christopher Scott - CCA, 27.3.2006
Grove, Simpson & Rothman JJ
Citation: O'Connell v R [2006] NSWCCA 82
Sentence appeal.
Murder.
35y with a NPP of 25y.
The deceased was a 15 year old girl. She & the appellant were acquainted. After a telephone conversation with the appellant, the young girl went to the unit where the appellant lived with his mother. The appellant's mother was at work at the time. The appellant & the young girl spent some time together before the appellant killed her, inflicting a large number of horrific injuries upon her.
The sentencing judge stated: 'But for the prisoner's youth and his plea of guilty, a life sentence would have been imposed. 'In the CCA, Grove J said: 'I consider that this was an offence which would find its place in the worst category.' Counsel for the appellant in his written submissions acknowledged that: 'this was a serious case of murder'. In a statement tendered in the proceedings, the appellant's mother recorded: 'I have read about the detail of how (the victim) died and I am horrified by it'.
Aged 18 at time of offence - guilty plea - offence in the 'worst category'- a desire to 'act out violent sexual proclivities'.
Having found special circumstances, whether error in failure to take into account this finding in the determination of the NPP - utilitarian value of guilty plea - whether error in determination of discount - whether error in failure to have proper regard to appellant's youth - whether error in failure to have adequate regard to appellant's mental disorder (attention deficit disorder).
Appeal dismissed.

 

75


POOLE, Sean - CCA, 3.4.2006
Simpson, Adams & Hoeben JJ
Citation: Poole v R [2006] NSWCCA 93
Conviction appeal.
3 x homosexual intercourse with male between 10 & 18 years; 3 x aggravated indecent assault; 1 x sexual intercourse with child aged between 10 & 18 years.
Total sentence of 3y 4m with a NPP of 1y 8m.
All offences were alleged to have taken place in a period of a little less than 7 months. The offences allegedly occurred when the complainant was aged 10 & 11 years of age. His evidence in chief was given by the playing of 3 video-taped interviews with police.
Fresh evidence - test of admissibility - significance - Longman direction - necessary elements - change in Crown case during cross-examination of appellant - whether should have been permitted - dates of alleged offences - whether essence of changes - whether departure from particulars - tender of complainant's videoed ROI with police & the use in connection with that interview of a transcript.
Appeal allowed: new trial ordered.

 

76


LAW, Chun Hing - CCA, 4.4.2006
McClellan CJ at CL, James & Buddin JJ
Citation: Law v R [2006] NSWCCA 100
Sentence appeal.
Conspire to import commercial quantity heroin.
Life imprisonment with a NPP of 30y.
This appeal followed a retrial. The applicant had previously been tried & convicted of the same offence & was sentenced to life imprisonment without parole. That conviction was quashed by the CCA & the applicant was re-tried.
The Crown alleged that the applicant was a co-conspirator in 5 importations of heroin into Australia, which took place between January 1994 & January 1995. It was the Crown case that the first 4 importations evaded the attention of authorities & that the interception of the 5th importation led to the trial of the applicant & his co-conspirators. In each case, crates containing oriental objects d'art were airfreighted into Australia. Heroin was secreted in the crates. It was alleged that the applicant leased premises used for the 1st, 2nd, 3rd & 4th importations. He was not in Australia when the 5th importation occurred. The Crown also alleged that the applicant took part in the transfer of funds between Australia & Hong Kong as one of the facets of the conspiracy.
Whether justifiable sense of grievance due to disparity with co-offenders - whether error in failure to take into account unavailability of remissions - whether sentence manifestly excessive.
Appeal dismissed.

 

77


YILDIZ, Hakan - CCA, 5.4.2006 - 160 A Crim R218
Simpson, Adams & Hoeben JJ
Citation: Yildiz v R [2006] NSWCCA 97
Conviction and sentence appeal.
Supply large commercial quantity ecstasy (602 grams).
10y with a NPP of 7y.
The motor vehicle being driven by the appellant was kept under police surveillance as it drove from North Sydney to Auburn where police stopped & searched it. Ecstasy tablets were located in a bag in the boot. Almost $3,000 in cash was found on the appellant's person, together with a small notebook.
Alleged agreement to supply drugs found in possession of accused on arrest - Crown case relied on agreement & deemed supply - whether duplicity - whether verdict unanimous - proviso - significance of standard NPP - inherent fact treated as aggravating feature - whether sentence manifestly excessive.
Appeal dismissed.

 

78


BAQUAYEE, Mohammed Tamin - CCA, 5.4.2006
Grove, Simpson & Howie JJ
Citation: Baquayee v R [2006] NSWCCA 103
Conviction appeal (extension of time).
2 x malicious wounding with intent to do GBH.
Total sentence of 6y with a NPP of 2y 9m.
The victims were part of a group of people in a cinema complex at Mount Druitt. There existed some animosity borne by the victims towards the applicant & his brother. A fight broke out, the victims being the aggressors. The applicant produced a pistol & fired 2 shots, wounding both the victims. One victim was shot in the thigh, causing a fracture of his femur & bullet fragments being lodged in his flesh. The other victim was shot in the epigastric region & suffered damage to his liver & lung. His injuries were life-threatening & he was in a coma for 2 weeks.
'In court' identification - evidence not objected to - absence of true identification issue - alternative counts - double jeopardy - silence of accused at trial - sufficiency of warning.
Appeal dismissed.

 

79


DOUGLAS, Warren William - CCA, 5.4.2006
Sully & Latham JJ
Citation: Douglas v R [2006] NSWCCA 94
Sentence appeal.
1 x aggravated BE&S; + Form 1 (take & drive conveyance without consent of owner).
3y 4m with a NPP of 1y 8m.
The offences occurred during the evening of 5.11.2001. A 'ram raid' was carried out at a loan office in Penrith. The applicant & 3 co-offenders then entered the premises, shattered the glass display counters & stole watches, necklaces, bracelets & rings. During the commission of the offence, an alarm was set off. The applicant & his co-offenders returned to the vehicle where another co-offender was waiting. They all returned to the applicant's townhouse where the proceeds of the offence were divided up. The value of the items stolen was approx $41,995. Approx $15,000 worth of damage was caused to the loan office premises & fittings. The Form 1 offence related to the theft of a red Hyundai shortly before the commission of the BE&S offence.
Aged almost 21 at time of offending - guilty plea - 15% discount for utilitarian value of guilty plea - lengthy criminal history - 'continuing attitude of disobedience to the law'.
Parity considerations where co-offender sentenced in Children's Court - relevance of 4y difference in age between applicant & juvenile co-offender.
Appeal dismissed.

 

80


BLINCO, Shane Stephen - CCA, 5.4.2006
Grove, Simpson & Howie JJ
Citation: Blinco v R [2006] NSWCCA 105
Sentence appeal.
1 x indecent assault upon person under age of 10 years.
4y 9m with a NPP of 2y 9m.
The above offence was committed by the applicant upon his 9 year old daughter.
Error in setting NPP independently - impermissible factors taken into account in assessing objective seriousness of offence.
Appeal allowed: resentenced to 3y with a NPP of 1 y.

 

81


DAGWELL, Colin Charles - CCA, 5.4.2006
Beazley JA, Adams & Howie JJ
Citation: R v Dagwell [2006] NSWCCA 98
Crown appeal.
9 x sexual assault offences committed upon a child aged 13 years.
Total sentence of 21m with a NPP of 9m.
The complainant, aged 13, entered a chat room on an Internet site where she came into contact with the respondent who described himself as a male over 21. The respondent was in fact then aged 47. The complainant started communicating with the respondent by email & in the chat room. Eventually, the respondent & the complainant exchanged mobile phone numbers. The respondent rang the complainant on a number of occasions & once suggested that they meet but she declined to do so. The complainant & the respondent discussed sexually explicit matters both on the phone & via the Internet once or twice a week. Subsequently, the complainant rang the offender. The complainant & the respondent met on 2 occasions. The offences with which the respondent was sentenced occurred on those 2 occasions.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced to a total of 4y 5m with a NPP of 3 y.

 

82


QUALTIERI, Rocco - CCA, 4.4.2006 - 171 A Crim R 463
McClellan CJ at CL, Howie & Latham JJ
Citation: Qualtieri v R [2006] NSWCCA 95
Conviction appeal.
Count 1: Incite person under age of 10 years (either 3 or 4 years of age) to commit act of indecency.
Count 2: Assault person under age of 10 years (either 3 or 4 years of age) & at time of such assault did commit act of indecency on her.
Count 3: Sexual intercourse with person under age of 10 years (either 3 or 4 years of age).
Count 4: Assault person under age of 10 years (between 4 or 6 years of age) & at time of such assault did commit act of indecency on her.
Count 5: Sexual intercourse with person under age of 10 years (between 4 or 6 years of age).
Total sentence of 5y with a NPP of 3y.
The offences were allegedly committed by the appellant upon his young daughter.
Admission of evidence - whether erroneous - whether miscarriage of justice occurred - probative value - unfair prejudice - erroneous directions - rule 4 - whether prejudice resulting from not being able to cross-examine - evidence of uncharged incidents - relationship evidence - context evidence - tendency evidence - propensity evidence - guilty passion - whether verdicts unreasonable - motive to lie - unreliability - inconsistency.
Appeal allowed: retrial ordered.

 

83


ABDALLAH, Adrian - CCA, 5.4.2006
Hidden, Kirby & Hislop JJ
Citation: Abdallah v R [2006] NSWCCA 90
Sentence appeal.
2 x receiving stolen property; 1 x receiving property stolen outside state of NSW; + similar offences on a Form 1.
Total sentence of 2 y with a NPP of 1 y.
Guilty plea - all property the subject of the charges recovered.
Offender in his fifties - prior good character - subjective factors - health issues - whether full-time custodial sentence appropriate.
Appeal dismissed.

 

84


BORODIN, James - CCA, 28.3.2006 - 171 A Crim R 448
BORODIN, Irene
ED
BOGOMIAGKOV, Timothy
Sully, Simpson & Howie JJ
Citation: Borodin, Borodin, ED and Bogomiagkov v R [2006] NSWCCA 83
Conviction appeals.
Amendment of indictment during Crown case - whether resulted in miscarriage of justice.
Appeals dismissed.

 

85


LODHI, Faheem Khalid - CCA, 4.4.2006 - 65 NSWLR 573
Spigelman CJ, McClellan CJ at CL, Sully J
Citation: Lodhi v R [2006] 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:

'Orders

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.

6.

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.

 

86


AA - CCA, 10.3.2006
McClellan CJ at CL, Hulme & Rothman JJ
Citation: R v AA [2006] NSWCCA 55
Crown appeal.
1 x cultivate cannabis; 1 x possess cannabis; 1 x supply heroin; 2 x possess prohibited pistol; 1 x not keep firearm safely; 1 x possess ammunition without licence.
Total of 2y with a NPP of 1y.
Police searched applicant's premises & found a firearm, ammunition & cannabis plants. On a later date, police stopped the applicant's car for a random breath test. Upon searching the vehicle, they found a pistol.
Guilty plea - drug addiction - attempts to break habit - assistance to police - beaten up for assistance - claimed he carried firearm for protection - vulnerable to influence of others - suffers depression.
Whether sentence manifestly inadequate - whether sentence disproportionate to seriousness of offending.
Appeal dismissed.

 

87


VICKERS, Brett David - CCA, 31.3.2006 - 160 A Crim R195
James, Simpson & Hall JJ
Citation: Vickers v R [2006] NSWCCA 60
Conviction appeal.
Maliciously inflict GBH - FT of 2 y to be served by way of PD;
AOABH - deferred passing sentence conditional upon appellant entering into a bond.
The offences were committed in the Fisherman's Club at Brighton-Le-Sands. The appellant, a director of the club, was at a table drinking with friends & behaving in a disruptive manner. Complaints were made by patrons who were at another table with the 2 victims. At about midnight, when the 1st victim went to the toilets, the appellant followed & hit him on the head. The 2nd victim entered the toilets & intervened & the appellant poked him in the eye. The 1st victim was rendered unconscious for a short time & was bleeding. He was taken to hospital & underwent surgery. The 2nd victim received medical attention to his eye.
Admission of evidence over objection - statement tendered at trial pursuant to s.65(2)(b) & (c) Evidence Act 1995 - maker of statement unavailable to give evidence - objection taken on grounds of late notice & discretionary factors - no separate objection to content of evidence - whole of statement admitted - whether error in admitting statement - whether failure to adequately warn of danger of relying on evidence of statement.
Appeal dismissed.

 

88


ANDREWS, Mark Allen - CCA, 6.3.2006 - 160 A Crim R 505
Giles JA, Grove & Hoeben JJ
Citation: Andrews v R [2006] NSWCCA 42
Sentence appeal.
Robbery in company.
6y with a NPP of 3y.
The victim was jogging along the foreshore of the Rocks area. He stopped to withdraw some money from an ATM. The applicant & his co-offender saw him take money from the ATM & decided to rob him. The victim then jogged along Hickson Rd. The applicant approached him & obstructed his progress, giving the co-offender an opportunity to take hold of the victim from behind. When the victim denied having any money on him, the co-offender told him that he had a knife & said 'we will hurt you'. The victim called for help, a struggle ensued & the applicant put his hand into the victim's pocket & removed a mobile phone. The offenders then fled. A passing limousine driver caught up with the applicant & detained him. Police were called & the applicant was arrested & taken to the police station. He made full admissions in an electronically recorded interview.
Aggravating factors scheduled in statute which are elements of offence - absence of explanation of how such factors given account in assessment - risk of 'double counting'- whether sentence manifestly excessive.
Appeal dismissed.

 

89


SHAMOUIL, Linard - CCA, 12.4.2006 - 66 NSWLR 228
Spigelman CJ, Simpson & Adams JJ
Citation: R v Shamouil [2006] NSWCCA 112
Crown appeal pursuant to s.5F(3A) Criminal Appeal Act 1912 against a ruling to exclude evidence.
The respondent is to stand trial for offences related to the shooting of Mr Daniel Dawood on 17.7.2004. Immediately following the shooting, the victim provided police with details of the assailant & on 5.8.2005 he identified the respondent in a photo-board identification. A month later, the victim provided police with a statement retracting his earlier identification, to the effect that he was unable to identify his assailant. The victim maintained this position on the voir dire. In addition to the victim's identification evidence, the Crown case involved: evidence of the relationship between the victim, the respondent & a former girlfriend of the respondent; evidence of telephone calls made to the victim from a mobile telephone linked to the respondent; evidence that the shooter identified himself by the respondent's first name; the respondent's access to a vehicle fitting the description of the vehicle from which the shooter alighted; & identification evidence from the victim's cousin. In a judgement of 23.11.2005, Maguire DCJ excluded the evidence of the photo-board identification on the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant, pursuant to s.137 Evidence Act 1995.
The Crown appealed to the CCA pursuant to s.5F(3A) Criminal Appeal Act 1912 on two bases. First, that his Honour had wrongly considered the reliability of the identification evidence when determining its probative value. Secondly, that his Honour had failed to identify any unfair prejudice. The respondent contended that the evidence caused unfair prejudice because of the danger that the jury might speculate about the victim's motive for retracting the identification, & the danger that the jury might convict on the basis of mistaken identification evidence.
Appeal allowed: Judgment set aside.

 

90


GHOSSEIN, Mathew Luke - CCA, 5.4.2006
Grove, Simpson & Howie JJ
Citation: Ghossein v R [2006] NSWCCA 108
Conviction and sentence appeal.
Supply methylamphetamine.
2y with a NPP of 18m.
Trial by judge alone.
Acting on intelligence, police stopped a vehicle heading towards Mudgee from Sydney. The appellant & other persons were in the vehicle. Police took the appellant back to a police station & searched him. No drugs were found & he was allowed to leave. Later, a condom containing what was analysed as being 13.3 grams of methylamphetamine was found behind a rubbish bag in the police station. The purity of the drug was 7%, approximately twice the purity of amphetamine usually found in the Mudgee area. DNA tests revealed the condom had been in the possession of the appellant. Police interviewed the appellant about the condom & its contents but he denied knowing anything about them. The appellant gave evidence at trial admitting that the condom was his. He said he bought the amphetamine in Sydney & paid $500 for half-an-ounce. He said he was unemployed & had received a loan from his parents to use as bond money for a place to rent in Mudgee, however, he had used the money to purchase the drugs. He said he bought the amount he did because of the expense of the drug in Mudgee. He was using about half-a-gram to a gram each day. He had bought as much amphetamine as he could with the $500 & was intending to use it himself. He admitted telling lies to the police. His mother gave evidence to the effect that she had given the appellant about $600. The amount of drug the appellant had in his possession at the time of arrest was more than the trafficable quantity specified for methylamphetamine. The only issue for the trial judge was whether the appellant had proved, on the balance of probabilities, that he had the drug in his possession for a purpose other than supply.
Aged 30 at time of sentencing - grew up in stable family environment - completed School Certificate - completed apprenticeship as spray painter & employed for 6 years - extensive drug history - criminal record for serious offences - significant mental problems brought on through use of drugs.
Whether failure to comply with s.133 Criminal Procedure Act - findings - principles - warnings - whether failure to take into account appellant's mental disability - whether there should have been a finding of special circumstances.
Appeal dismissed.

 

91


RETSOS, Anthony Simon - CCA, 28.3.2006
Sully, Simpson & Howie JJ
Citation: Retsos v R [2006] NSWCCA 85
Sentence appeal.
Count 1: corruptly solicit a benefit;
Counts 2,3&4: give false evidence before ICAC.
Form 1 offences: 34 x give false evidence before ICAC.
Total sentence of 3y to be served by way of PD + fines totalling $80,000.
The applicant pleaded guilty to the above offences.
In October 2001, ICAC commenced an inquiry into Rockdale City Council & the conduct of its Councillors in soliciting or attempting to solicit corrupt payments from developers with development applications lodged or to be lodged with the Council. The applicant's co-offender, Andrew Smyrnis, was elected a Councillor of Rockdale City council on 11.9.1999. The applicant was a director of a formwork company & a friend of Smyrnis.
Evidence before the sentencing judge showed that the applicant did not receive any financial benefit from his corrupt conduct. His most recent tax return showed a gross income of $21,000. His wife was employed but had to extend her hours of work in order to assist in supporting the family. There were 2 dependent children. The applicant was an undischarged bankrupt.
The pre-sentence report contained the statement: 'the offender is able to meet a financial penalty'. However, the report did not reveal the particular source relied upon in support of that statement & did not give any indication of what range of penalty it was suggested the applicant was able to pay. The sentencing judge seemed to take the statement from the pre-sentence report as justifying that the applicant had a capacity or potential capacity to pay fines totalling $80,000.
Whether error in imposing effective fine of $80,000 - mandatory requirements of s.6 Fines Act - parity - whether error in failure to impose NPP.
Appeal allowed only to the extent of quashing orders for payment of fines totalling $80,000.

 

92


PRITCHARD, Christopher John - CCA, 19.1.2006
Basten JA, Howie & Hall JJ
Citation: Pritchard v R [2006] NSWCCA 2
Sentence appeal.
Robbery armed with an offensive weapon (screwdriver); aggravated car-jacking (armed with offensive implement); escape from lawful custody; + offences on a Form 1.
Total sentence of 5y with a NPP of 4y.
Five days before the expiration of a NPP he was serving for a previous offence, the applicant escaped from custody & remained at large for over 2 months. The applicant took a mobile phone from a custodial officer who saw him beside the road shortly after the escape, as well as the motor vehicle in which that officer & another person were travelling at the time.
Aged 21 at time of offending - priors - previous imprisonment.
Whether the overall NPP should be reduced by 4 months so as to conform with s.44(2) Crimes (Sentencing Procedure) Act 1999.
Appeal dismissed.

 

93


KING, Paul David - CCA, 11.4.2006
Beazley JA, Adams & Howie JJ
Citation: King v R [2006] NSWCCA 110
Sentence appeal.
Import trafficable quantity cocaine.
7y with a NPP of 4y 4m.
The appellant was one of a group of 5 offenders who brought cocaine into Australia on 14.11.2003. All the offenders were foreign nationals. Although the sentencing judge considered that there was a measure of organisation & co-ordination amongst the offenders, he proceeded upon the basis that the individual offenders were charged & were to be sentenced on the basis of their respective participation in the drug importation, with the offence being confined to the precise quantity that each offender brought in individually.
Whether sentences excessive - parity - comparison with sentences imposed on co-offenders - whether lesser criminality in importing lesser amount - whether error in failure to differentiate between offenders on quantity - whether justifiable sense of grievance.
Appeal allowed: resentenced to 6 y with a NPP of 4y.

 

94


SOOD, Suman - CCA, 12.4.2006
Spigelman CJ, Simpson & Adams JJ
Citation: Sood v R [2006] NSWCCA 114
Conviction appeal.
96 x dishonestly obtain financial benefit by deception (s.134.2 Criminal Code Act 1995, Cth).
300h CSO on the 1st charge plus a fine of $250 on each of the other 95 charges, totalling $23,750.
The appellant was a medical practitioner & a registered provider with the Health Insurance Commission (HIC). The Crown case was that she obtained a financial advantage from the HIC by claiming assigned Medicare benefits (via bulk billing arrangements) for the termination of pregnancy services whilst also imposing additional charges for those services on patients. The appellant's patients were charged additional fees for counselling & theatre services. These fees varied according to how advanced the patient's pregnancy was. The Crown contended that this arrangement was contrary to s.20A Health Insurance Act 1973 (Cth), which provides for the assignment of Medicare benefits to practitioners 'in full payment of the medical expenses incurred in respect of the professional service'. The claim form signed by the appellant contained a declaration, which implemented this section in the form: 'No payments have been sought ... in respect of the professional services' the subject of the assignment.
The Crown case was that the appellant was not entitled to make a claim for assigned benefits in the circumstances, that she knew this to be the case & that she made a false statement on the claim forms in order to dishonestly obtain the benefits in question. At trial, the question of entitlement was not seriously raised, the defence case instead focusing on dishonesty. Whilst giving evidence, the appellant appeared to accept that the arrangements at her clinic were contrary to the legislative scheme, although she denied that she knew that at the relevant time.
Elements of statutory scheme - whether question of entitlement one of law or fact - meaning of 'with respect to'- whether trial judge made a ruling or gave a direction on question of entitlement - whether directions on dishonesty constituted miscarriage of justice.
Appeal allowed: new trial ordered.

 

95


GU, Wen Fei - CCA, 7.4.2006
Grove, Simpson & Howie JJ
Citation: R v Gu [2006] NSWCCA 104
Crown appeal.
1 x supply methylamphetamine; 1 x supply ecstasy: + 3 matters on a Form 1.
25m PD.
Police investigations were being carried out into allegations of fraud & a number of phone calls were lawfully intercepted. As a result of these intercepts, the respondent was identified as being involved in the supply of prohibited drugs. The 1st charge related to 500 tablets of methylamphetamine & the 2nd charge concerned the supply of 300 ecstasy tablets.
Aged 20 at time of offences - guilty plea - no prior convictions - drug use - gambling habit - strong family support - continuing rehabilitation - 3m pre-trial custody.
Whether sentence of PD manifestly inadequate - young vulnerable offender - whether at risk in custody - failure to find facts - failure to properly take matters into account - exercise of discretion.
Appeal dismissed.

 

96


OLSEN, Matthew Scott - CCA, 29.3.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Olsen v R [2006] NSWCCA 88
Sentence appeal.
2 x armed robbery; + offence taken into account (armed rob).
Total sentence of 4y with a NPP of 20m.
The offences were committed upon the same pharmacy over 3 consecutive days. Both the applicant & his co-offender were armed with kitchen-style knives on each occasion.
Guilty plea - specific & general deterrence - assistance to authorities - sentencing judge erroneously treated offences as part of a single episode of criminal conduct.
Parity - pre-sentence custody.
Appeal dismissed.

 

97


MARCHANT, Leith - CCA, 19.4.2006
CRAWT, John William
Hulme, Hidden & Hall JJ
Citation: Marchant v R; Crawt v R [2006] NSWCCA 120
Sentence appeals.
Murder.
Marchant: 38y with a NPP of 32y.
Crawt: 35y with a NPP of 28y.
The deceased was interested in buying or selling stolen jewellery. On the pretext of dealing in jewellery, Marchant lured the deceased to an isolated spot in Lane Cove National Park, where Marchant, who was accompanied by Crawt, shot the deceased twice in the head at close range. The offenders then decamped.
Both offenders have extensive criminal records - both were on parole at the time of the above offence.
Whether sentences manifestly excessive.
Marchant: appeal dismissed.
Crawt: appeal allowed - resentenced to 30y with a NPP of 24y.

 

98


CORNWELL, Richard Bruce - CCA, 11.4.2006 - 160 A Crim R243
McClellan CJ at CL, Hulme & Adams JJ
Citation: Cornwell v R; R v Cornwell [2006] NSWCCA 116
Conviction appeal; and
Crown appeal.
Conspire to import commercial quantity cocaine.
The Crown case was that there was an agreement between Cornwell & another person to import 120 kgs of cocaine from Columbia. It was alleged that the importation involved co-operation between 2 groups. The group in South America was to obtain the drugs & conceal them in a ship, which would then transport the drugs into Australian waters. The Australian group would arrange to pick up the drugs & bring them into Australia. The Crown alleged that Cornwell was a prime mover in the Australian arm of the venture.
s.128 certificate - admissions - failure to adequately sum up defence case - whether unreasonable verdict - proviso - application of 'this jury' test - whether miscarriage of justice.
Crown appeal dismissed.
Conviction appeal allowed: new trial ordered.

 

99


DOYLE, Anthony David - CCA, 13.4.2006
McClellan CJ, Rothman J, Smart AJ
Citation: R v Doyle [2006] NSWCCA 118
Crown appeal.
Aggravated dangerous drive occasioning GBH.
FT of 2y (suspended); disqualified from driving for 2y.
Respondent pleaded guilty to the above offence. The respondent drove his car onto the wrong side of the road & collided with an oncoming vehicle. A passenger in the oncoming car received serious injuries. At the time of the collision, the respondent had a blood alcohol reading of 0.205.
Whether sentence manifestly inadequate.
Relevance of depression in reason for consumption of alcohol - custodial sentence required.
Appeal allowed: resentenced to 3y with a NPP of 18m; disqualified from driving for 3y.

 

100


WRIGHT, Damien Vincent - CCA, 13.4.2006
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Wright v R [2006] NSWCCA 122
Sentence appeal.
6 x demand money with menaces with intent to steal.
4y with a NPP of 3y.
The victim & the applicant worked together at Woolworths in Bass Hill. The victim witnessed some conduct by the applicant in the liquor section of the store, which indicated theft & spoke to the applicant about it. A few days later, the victim told the store manager about the applicant's conduct & the applicant was dismissed. Thereafter, he extorted $8,995 from the victim by using threats of retribution, violence & death.
Aged 24 & 25 at time of offending - discount of 40% for early guilty pleas & assistance to police - significant remorse/contrition - supportive family - no priors.
Failure to give effect to finding of special circumstances - whether sentence manifestly excessive.
Appeal dismissed.

 

101


LOZANOVSKI, Vidan Victor - CCA, 5.5.2006
McColl JA, Adams & Latham JJ
Citation: Lozanovski v R [2006] NSWCCA 143
Sentence appeal.
Multiple offences: indecent assault of child under age of 16; sexual intercourse with child under age of 16; sexual intercourse without consent; indecent assault; detain for advantage.
Total sentence of 8y with a NPP of 6y.
The complainant was the applicant's niece. The Crown case was that the offences occurred over a period of some years, starting when the complainant was 9 years of age.
Aged 56 at time of sentencing - late guilty plea - no prior convictions.
Failure to treat applicant as person of good character - failure to treat prior good character as mitigating factor - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 5y with a NPP of 4y.

 

102


HOCKEY, Rachael Jane - CCA, 8.5.2006
McClellan CJ at CL, Adams & Johnson JJ
Citation: Hockey v R [2006] NSWCCA 146
Sentence appeal.
1 x supply methylamphetamine; supply commercial quantity methylamphetamine; + Form 1 (1 x supply methylamphetamine).
Total sentence of 3 y with a NPP of 2y.
The applicant's involvement in the supply of methylamphetamine came to light following a police investigation into the supply of methylamphetamine in the Bateman's Bay area.
Guilty plea - 50-60% discount for utilitarian value - undertaking to give evidence against suppliers.
Significance of subjective factors - whether users of drugs are 'victims' within s.21A(2) Crimes (Sentencing Procedure) Act 1999 - whether drug dealing 'committed without regard to public safety' within s.21A(2)(i) - potential for double counting - accumulation of sentences.
Appeal dismissed.

 

103


PARKES, Phillip Raymond - NSW SC, James J, 5.5.2006
Citation: R v Parkes [2006] NSWSC 331
Remarks on Sentence.
Murder.
The prisoner bludgeoned his elderly mother to death with a steel pipe.
Aged 49 - guilty plea - prior offences - previous imprisonment.
Sentenced to 18y with a NPP of 13y.

 

104


TAUFAHEMA, Motekiai 'Oscar' - CCA, 8.5.2005 - 162 A Crim R 152
Beazley JA, Adams & Howie JJ
Citation: Taufahema v R [2006] NSWCCA 152
Conviction appeal.
Murder.
23y with a NPP of 16y.
The victim, Snr Const McEnallay, pursued the appellant & his 3 co-offenders, who were driving erratically & at speed in a stolen car. The victim activated the lights & sirens of his unmarked police car. While making a right-hand turn, the stolen car struck the gutter & came to a stop as a result of a damaged wheel. A co-offender, Penisini, exited the car armed with a .38 Smith and Wesson revolver & fired 5 shots in quick succession at the driver's side window of the police vehicle, which had stopped 10 metres away. The victim suffered gunshot wounds to the head & chest. The offenders then ran from the stolen vehicle. All the offenders were armed at the time of the offence, the appellant being armed with a .357 Magnum six-chamber revolver. The victim died 7 days after the shooting.
See also R v Taufahema [2004] NSWSC 833.
Aged 25y 9m at time of sentence - born in Tonga - eldest of 11 children - migrated with family to Australia at age 12 - cultural dislocation - reaction against previous patterns of parental discipline, leading to other inappropriate behaviour - left school at age 16 - very limited employment record - significant criminal history - previous imprisonment.
Joint criminal enterprise - mere knowledge of other's intention insufficient if no agreement - nature of enterprise - necessity for underlying criminal offence - whether evading police 'hindering'- manslaughter - necessary to foresee possibility that accomplice might murder the victim - mere advertance to possibility of death or GBH insufficient.
Appeal allowed: verdict of acquittal entered.

 

105


BCC - CCA, 27.4.2006
James, Simpson & Hall JJ
Citation: R v BCC [2006] NSWCCA 130
Crown appeal.
Supply commercial quantity MDMA (ecstasy).
2y with a NPP of 18m, suspended.
The respondent's car was parked in the carpark of the McDonald's Restaurant, Enfield. Members of a police taskforce had the co-offenders Smith & He, who were parked in another MV in the carpark, under observation. They observed the respondent approach that parked car, lean into the car & then go back to his own vehicle, carrying a plastic bag. Police approached the respondent's car, whereupon his girlfriend dropped the bag onto the ground. Police saw the respondent try to kick the bag underneath the car. The bag was recovered & found to contain 5 bundles of pink tablets, totalling 500 tablets (later found to contain ecstasy). The respondent was then arrested.
Assistance to authorities - prior good character - remorse - good prospects of rehabilitation.
Whether sentence manifestly inadequate.
Appeal dismissed.

 

106


MJD - CCA, 10.5.2006
Hodgson JA, James & Hoeben JJ
Citation: MJD v R [2006] NSWCCA 151
Conviction and sentence appeal.
3 x assault & commit act of indecency; 3 x sexual intercourse without consent.
Total of 7y with a NPP of 4y.
All the offences were committed upon the appellant's 47 year old intellectually disabled sister.
Apprehension of bias - comment by judge in absence of jury - no application to disqualify - whether objection waived - whether miscarriage of justice - whether sentence manifestly excessive.
Appeal dismissed.

 

107


KDOUH, Mohammed Ali - CCA, 27.4.2006
McClellan CJ at CL, James & Hall JJ
Citation: Kdouh v R [2006] NSWCCA 140
Sentence appeal.
2 x supply heroin.
Concurrent sentences of 3y with a NPP of 2y.
The applicant was selling balloons of heroin as a runner for someone higher up in the drug chain on the streets of Kings Cross. The above offences involved small amounts of heroin (.1 & .3 of a gram).
Aged 28 & on parole at time of offending - living on streets at Kings Cross - significant criminal history - convictions for previous drug offences - good prospects of rehabilitation.
Whether sentence manifestly excessive - double punishment - totality - subjective circumstances.
Appeal dismissed.

 

108


TWP - CCA, 1.5.2006
Beazley JA, Simpson & Rothman JJ
Citation: R v TWP [2006] NSWCCA 141
Crown appeal.
Multiple sex offences, including sexual assault, incest, sexual intercourse with child.
Total of 10y with a NPP of 7 y.
The respondent pleaded guilty to 17 offences of various kinds of assault, sexual assault & incest committed by him against his 3 daughters over a number of years.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 16y with a NPP of 12y.

 

109


FINA'I, Manua - CCA, 27.4.2006
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Fina'I v R [2006] NSWCCA 134
Sentence appeal.
3 x aggravated indecent assault of child under 10 (s.61M(2) Crimes Act; 2 x sexual intercourse with child under 10 (s.66A); attempt sexual intercourse with child under 10 (s.66B); 1 x aggravated indecent assault (s.61M(1).
Total sentence of 9y with a NPP of 7y.
The applicant is the complainant's step-father.
Aged 33 at time of sentence - born in Samoa.
Objective seriousness - abuse of trust - trauma - commitment to rehabilitation - partial accumulation of sentences - whether error in application of s.54A Crimes (Sentencing Procedure) Act 1999 as having regard to an irrelevant consideration - whether error in failure to give effect to finding of special circumstances - deterrence.
Appeal against sentences imposed on counts 1,2,4,5,6,7 dismissed.
Appeal against sentence on count 8 allowed in part: resentenced on count 8 to 3y with a NPP of 9m, resulting in a total sentence of 9y with a NPP of 6y 9m.

 

110


POWCH, John - CCA, 27.4.2006
McClellan CJ at CL, James & Hall JJ
Citation: Powch v R [2006] NSWCCA 147
Application under s.5F (3).
Refusal to grant application for separate trial - refusal to grant stay pending appeal on separate trial - whether separate trial necessary on some counts - series of charges in relation to one person - whether injustice to defendant in not separating trial - admissibility as evidence of relationship - trial judge's direction to admit evidence - whether adequate directions to jury can be given.
Application for leave refused.

 

111


TABAR, Pierre - CCA, 20.3.2006
Adams J
Citation: R v Tabar [2006] NSWCCA 139
Application seeking to withdraw abandonment of appeal against conviction for an offence for which applicant pleaded guilty - application for adjournment.
Application for adjournment refused.

 

112


MD - CCA, 5.5.2006
Hodgson JA, James & Hoeben JJ
Citation: MD v R [2006] NSWCCA 142
Sentence appeal.
1 x supply heroin; 1 x supply cocaine.
Total of 6y with a NPP of 4y.
The offence in each case consisted of an ongoing course of conduct. At the time of sentence, the applicant was serving a sentence of 10y for manslaughter commencing on 26.5.2001, with a NPP of 5 years expiring on 25.5.2006. The head sentence on the subject charges were therefore totally concurrent with the head sentence on the manslaughter charge, while the NPP on the subject charges was concurrent to the extent of 2y 3m with the NPP for the manslaughter charge.
Aged 16 at time of offending - vulnerable to pressure from drug boss - developed anxiety, depression during incarceration - in segregation - family support - promise of employment upon release.
Whether sentence manifestly excessive - whether appropriate discount given for guilty plea.
Appeal dismissed.

 

113


GIANOUTSOS, Mark - CCA, 1.5.2006
v GLYKIS, Maria
McClellan CJ at CL, Sully & Hislop JJ
Citation: Gianoutsos v Glykis [2006] NSWCCA 137
Stated case.
Application for apprehended personal violence order - anonymous emails - whether reasonable grounds for fear - whether DC appeal a hearing de novo - whether judge erred in treating appeal as a hearing de novo - onus of proof - standard of proof - balance of probabilities - whether necessary to be satisfied that there was conduct amounting to harassment or intimidation - adequacy of reasons.
Leave to appeal allowed: matter remitted to DC.

 

114


O'MEARA, Kenneth Ian - CCA, 28.4.2006
Simpson, Buddin & Hall JJ
Citation: O'Meara v R [2006] NSWCCA 131
Conviction and sentence appeal.
Cultivate commercial quantity cannabis; 2 x unauthorised possession of firearm.
Total sentence of 3 y with a NPP of 2y 7m.
Appellant indigent; unrepresented at trial & on appeal.
Application for stay of proceedings - appellant unrepresented and indigent - application refused - appellant refused leave to appeal - grounds of appeal - appeal against refusal of stay - pre-trial voir dire - pre-trial procedures - whether court should have held inquiry into appellant 's fitness to be tried - appellant 's medical fitness to continue with trial - appellant complains of voir dire being held in absence of jury - items taken from appellant 's home in execution of 2 search warrants - bail conditions - evidence of identification of appellant - evidence alleged to have been illegally or improperly obtained - seizure of items in execution of search warrant - trespass to property - validity of search warrant - validity of certificate of identification of cannabis plants - evidence that shotgun was previously stolen - evidence of appellant 's possession of police badge - evidence before jury in error - irregularity - no consequences - no miscarriage of justice - whether evidence illegally or improperly obtained - no such evidence - juror ineligibility - ground abandoned - alleged improper relationship between members of jury and members of prosecution team - no impropriety established - ground abandoned - execution of bench warrants during course of trial - alleged by appellant to have been observed by some jury members - ground abandoned - double jeopardy - certificate of dismissal of count of goods in custody - amendment of indictment - power to grant leave to amend indictment - separate trial of counts - abuse of process - official amnesty with respect to possession of firearms - firearms legislation repealed and replaced by time of trial - effect of repeal - pre-repeal operation preserved by s30 Limitation Act 1987 - asserted bias of trial judge - post-conviction remarks - no bias or reasonable apprehension of bias established - complaint about summing up - directions with respect to failure of accused person to give evidence - directions with respect to failure to call a witness - directions concerning firearms amnesty - verdict asserted to be unsafe and unsatisfactory - whether jury properly sworn - validity of indictment - whether appellant charged on indictment with offences that could only be prosecuted summarily - whether appellant initially charged under FirearmsAct 1996 or Firearms Act 1989 - application for leave to appeal against sentence - comparable offender - whether irrelevant or unsubstantiated circumstances taken into account on sentencing - whether prior convictions wrongly taken into account.
Appeal dismissed.

 

115


NWL - CCA, 29.3.2006
James, Buddin & Hall JJ
Citation: NWL v R [2006] NSWCCA 67
Conviction and sentence appeal.
1 x aggravated indecent assault (person under 16);
8 x aggravated indecent assault (under authority);
3 x incite person 16 years of age or above to commit act of indecency.
Total of 6y with a NPP of 4y.
The complainant's father introduced the complainant to golf when the complainant was only 8 or 9 years old. The complainant first met the appellant, who was the profession golfer at the golf course, when he was about 10 years old. The complainant participated in golf clinics for children run by the appellant. At the age of 12, he played golf with the appellant after school. When he was 15, the complainant & the appellant travelled together to golf tournaments. The complainant worked part-time in the appellant's golf pro shop & later undertook an apprenticeship with the appellant in order to become a professional golfer. The offences occurred at the appellant's & complainant's houses, on their golf-playing trips & in the appellant's car.
Evidence & directions on issue of consent - whether verdicts unreasonable - whether sentences excessive - where sentencing judge failed to apply s.44 Crimes (Sentencing Procedure) Act as in force at time of offences - whether failure to give effect to finding of special circumstances.
Conviction appeal allowed only on count 8: verdict of acquittal entered on count 8.
Appeal against sentence on counts 2-7,9 &11 allowed but only for the purpose of imposing sentences complying with s.44 Crimes (Sentencing Procedure) Act as in force at time of offences.
New total sentence of 5y with a NPP of 3y.

 

116


SMITH, Kevin - CCA, 27.4.2006
James, Simpson & Hall JJ
Citation : R v Smith [2006] NSWCCA 129
Crown appeal.
Supply commercial quantity MDMA (ecstasy)
2y with a NPP of 1y.
A taskforce was directed at suspects in Burwood & Botany. Telephone intercepts confirmed that the respondent was involved in the supply of prohibited drugs in association with He. On 26.10.2004, police undertook surveillance & saw the respondent & He in a MV & followed them to the McDonalds Restaurant at Strathfield where they parked the car. Another co-offender approached the parked car & engaged in a transaction from that car. Police then approached that offender & his girlfriend in their car whereupon the girlfriend threw something out of the car window. The 'something' was recovered & later analysed to be 160 grams of ecstasy (approximately 500 pink tablets of MDMA embossed with a star). The respondent's car drove off but was pursued by police & the occupants were arrested as they drove through Homebush. The sentencing judge observed that the relevant sequence of events established that the respondent & one or more others were involved as sellers of quantities of drugs for more senior people in the drug business.
The respondent had previously been sentenced in relation to 3 supply prohibited drug charges at the Bidura Children's Court.
Aged 18 at time of offence - early guilty plea - remorse/contrition - reasonable prospects of rehabilitation.
Whether sentence manifestly inadequate. Principles in relation to determination of a Crown appeal against sentence in the case of a young offender.
Appeal dismissed.

 

117


VINCENT, Shamus - CCA, 24.3.2006
Sully & Adams JJ
Citation: Vincent v R [2006] NSWCCA 78
Sentence appeal.
Knowingly take part in supply commercial quantity MDMA (ecstasy); supply commercial quantity MDMA (ecstasy).
Total of 5y with a NPP of 3y 9m.
The applicant was present when negotiations took place for the supply of 1000 ecstasy tablets to undercover police for $16,250. He was not a direct participant in the negotiations & was not present during the transfer of the drugs. A month later, the applicant supplied undercover police with 1000 ecstasy tablets for $17,250. Upon analysis, these tablets were found to contain 36.5% ecstasy.
Aged 29 at time of offending - minor criminal record - no previous drug convictions - no previous imprisonment.
Error in imposing heavier sentence after facts re-stated more favourably to applicant - manifestly unjust sentence for first offence - total criminality.
Appeal allowed: resentenced to a total of 4y 9m with a NPP of 3 y.

 

118


BROWNE, Joanne Maree - CCA, 21.4.2006
REID, Hadley James
Hodgson JA, James & Hoeben JJ
Citation: Brown v R; Reid v R [2006] NSWCCA 144
Sentence appeals.
Browne: 1 x supply prohibited drug on ongoing basis - 2y with a NPP of 12m; 1 x supply prohibited drug - 12m with a NPP of 6m; 2 x goods in custody - FT of 6m for each offence. All sentences to commence on 15.11.2005.
Reid: 1 x supply prohibited drug on ongoing basis - 2y with a NPP of 12m; 3 x supply prohibited drug - 12m with a NPP of 6m. All sentences to commence from 14.11.2005.
Before going to prison, the applicants were in a de facto relationship. Although they were not actually co-offenders in the offences for which they were sentenced, the offences for which each was sentenced were similar to the offences for which the other was sentenced. Each applicant pleaded guilty to all the offences for which he or she was sentenced. The offences involved small amounts of heroin.
Strong subjective case - both applicants successfully completed 14m of a strict drug rehabilitation programme.
Both applicants assessed as suitable for Magistrates Early Referral Into Treatment programme - error in sentencing judge not giving consideration to whether the execution of any sentences of imprisonment should be suspended pursuant to s.12 Crimes (Sentencing Procedure) Act.
Appeals allowed. Execution of all sentences suspended. Applicants released from custody on condition that they enter into GBB's for the term of their count 1 sentences.

 

119


GLEN, David Jack - CCA, 11.5..2006 - 161 A Crim R 281
Grove, Adams & Hislop JJ
Citation: R v Glen [2006] NSWCCA 153
Crown appeal against the redetermination of a life sentence where, on 28.10.2005, Barr J substituted the life sentence with a sentence of 36y & a NPP of 24y: see  R v David Jack Glen [2005] NSWSC 1093.
The life sentence had been imposed by Wood J (as he then was) on 22.12.1986, following the conviction of the respondent for the murder of his 10 year old female cousin. The offence occurred in 1985 & was both vicious & sadistic. Following violent sexual attacks upon the young girl, the respondent choked her to the point of unconsciousness with a military-type wooden baton. He then strung her up by the neck to a rail in the wardrobe with a belt tied around her neck by means of a slipknot. Her body was supported on a chair & she was left there to die by asphyxiation. The respondent left the flat shortly after 3:00pm & remained out until about 5:00am, returning to dispose of the young girl's body. However, in his absence, the body was discovered by police.
Respondent was aged 20 at the time of the murder.
Life sentence imposed prior to Sentencing Act 1989 - application to redetermine resulting in finite head sentence & NPP - necessary consideration of special provision for indeterminate sentence with parole opportunity - special provision not referred to in reasons for redetermination - intervention to redetermine appropriate - recapitulation of facts - youthful offender - offence in worst case category - whether unsupervised liberty in public interest.
Appeal allowed: Redetermination of sentence by Barr J quashed. Application to set a specific term for the sentence imposed by Wood J on 22.12.1986 declined; set a NPP of 24y pursuant to clause 4(1)(b) to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999.

 

120


SIMPSON, Julian Mark - CCA, 13.4.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Simpson v R [2006] NSWCCA 117
Sentence appeal.
1 x supply cannabis; 1 x supply methylamphetamine; 1 x supply MDMA (ecstasy).
2 y with a NPP of 15m.
The drugs were discovered when police executed a search warrant at a unit rented by the applicant
Guilty plea - deemed supply - custodial sentence - strong subjective case - alleged exceptional circumstances - deterrence - whether sentence manifestly excessive.
Appeal dismissed.

 

121


KANAAN, Michael - CCA, 13.4.2006
MAWAS, Rabeeh
EL-ASSAAD, Wassim
Hunt AJA, Buddin & Hoeben JJ
Citation: Kanaan & Ors v R [2006] NSWCCA 109
Conviction and sentence appeals.
Murder.
Kanaan: life imprisonment.
Mawas: 25y with a NPP of 19y.
El-Assaad: 24y with a NPP of 18y.
The appellants were members of a criminal organisation of which Danny Karam was the head. The Crown alleged that the appellants were members of a joint criminal enterprise to kill Karam. He was murdered by 3 men standing next to his motor vehicle & shooting at him. The Crown alleged that Kanaan & Mawas were 2 of the shooters & that El-Assaad had sent a telephone alert to the 3 shooters that Karam was on his way down to the motor vehicle. The Crown case relied principally on the evidence of a witness given the pseudonym Rossini, who had been a member of the same organisation & who might reasonably be supposed to have been criminally concerned in the joint criminal enterprise. Prosecutions against Rossini on drug supply charges were withdrawn when he gave an undertaking to give evidence in this & other cases. He was in turn given an undertaking by the Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. The witness himself believed that he had an immunity from serious charges of conspiracy to supply commercial quantities of cocaine, of murder & 'everything that had happened'. The Crown case also depended to a lesser extent on the evidence of 2 brothers given the pseudonym Laycock, who were related to Rossini & who might reasonably be supposed to have been accessories after the fact of murder.
In sentencing the appellants, Wood CJ at CL described the killing as a deliberate assassination carried out under the leadership of Kanaan, substantially to advance the interests of the appellants in ongoing criminal activities, motivated by greed. The killing was pre-meditated, callous & cold-blooded. The deceased was described as being a vicious killer who was himself a danger to the community.
Failure to give warning that dangerous to convict on uncorroborated evidence of 'accomplice'- independent support for evidence of 'accomplice' in the evidence of the Laycock brothers - warning on benefit obtained by witness - Crown prosecutor's breach of the rule in Browne v Dunn - direction on negative identification evidence.
Appeals against conviction by each of the appellants dismissed.
Application by Kanaan to defer an application for leave to appeal against sentence refused.
Application by Mawas for extension of time & leave to appeal against sentence granted - sentence appeal dismissed.
Application by El-Assaad for leave to appeal against sentence granted, appeal against sentence allowed - resentenced to 22y with a NPP of 16 y.

 

122


TAPUELUELU, Moeakiola - CCA, 3.4.2006
Simpson, Grove & Howie JJ
Citation: Tapueluelu v R [2006] NSWCCA 113
Sentence appeal.
1 x robbery in company; 1 x armed robbery.
Total sentence of 8y with a NPP of 6y.
The 1st offence involved the applicant & his co-offender robbing a liquor store in Lumeah. The co-offender produced a handgun which he pushed into the attendant's ribs. A sum of money was taken from the cash register. When the applicants left the store, the co-offender made threats against the attendant if he told anybody what had happened. The 2nd offence was committed by the applicant acting alone. It took place at a liquor store in Marrickville, during which he produced a semi-automatic firearm & pointed it towards the attendant's chest & demanded money. He took money & EFTPOS receipts from the till, some coin rolls from the safe & $700 from the attendant's wallet. The offence of robbery in company was aggravated by the co-offender's possession of an offensive weapon.
Correct age & date of birth of applicant - prospects of rehabilitation - prior criminal record - recording of conviction in Children's Court - whether error in taking into account matters dealt with in Children's Court - joint criminal liability - statutory ratio between head sentence & NPP - accumulation of sentences - whether sentences manifestly excessive.
Appeal allowed against sentence for armed robbery count. New total sentence of 8y with a NPP of 5y 3m.

 

123


RJP - CCA, 16.5.2006
Hidden, Kirby & Hislop JJ
Citation: RJP v R [2006] NSWCCA 149
Sentence appeal.
1st indictment:
Carnal knowledge of female child under age of 10 (namely 9); assault and commit act of indecency upon female child under 16 (namely 14); + Form 1 (3 x indecent assault upon same victim at ages 9, 10 & 12).
The applicant pleaded guilty to the above charges. The complainant was the applicant's sister.
2nd indictment:
Sexual intercourse with female child under 16 (namely 6); sexual intercourse with female child under 10 (namely 8); + Form 1 (2 x sexual intercourse without consent; 5 x indecent assault).
The complainant pleaded guilty to the charges on the 2nd indictment. Most of the offences were committed upon a female cousin. The 5 indecent assault offences were committed upon the same complainant, as well as 2 other female cousins. The complainants were aged from 5 to 9 at the time of the offences.
Total sentence of 12y with a NPP of 8y.
The applicant committed the sexual offences against his sister when he was aged between 15 & 21 years of age and committed sexual offences against his cousins when he was aged between 21 & 33 years of age. All the victims continue to suffer long-term psychological damage as a result of the applicant's behaviour. The applicant was convicted in 1985 & placed on 12 months' probation for aggravated sexual assault & in December 1989 he was sentenced to 4y imprisonment for 2 offences of indecency of a boy under the age of 14. He has not re-offended since his release from custody in 1991. He has a good employment record & received a 20% discount for his guilty pleas.
Mitigating factors - age of applicant at time of offences upon his sister - application of s.21A(3)(g) Crimes (Sentencing Procedure) Act 1999 - totality - whether sentences manifestly excessive.
Appeal dismissed.

 

124


DOHERTY, Stuart Charles - CCA, 28.4.2006
Grove, Simpson & Bell JJ
Citation: Doherty v R [2006] NSWCCA 133
Sentence appeal.
1st indictment:
1 x aggravated B&E and commit serious indictable offence; 2 x indecent assault; 3 x aggravated sexual assault; + Form 1 offence (BE&S).
2nd indictment:
1 x supply cannabis; + Form 1 (2 x goods in custody; 1 x possess prohibited drugs).
Total sentence of 17y with a NPP of 12y.
All the offences on the 1st indictment were committed when the applicant broke into a home in the middle of the night. The victim was a 55 year old widow who was asleep in bed. She was alone in her home, which she shared with her daughter. She woke up when she heard a noise & went to investigate. The applicant tried to hide then rushed towards her, wrestled her to the floor, causing lacerations to her lower lip, inside her mouth, her nose & some grazing to her face. The victim tried to fight off the applicant. The applicant then tied her hands behind her back, forced her into her bedroom & placed her face down on the bed. He then undressed himself, pulled up her nightie, rolled her onto her back & sexually assaulted her a number of times. In all, the applicant was in the victim's home for approx 50 minutes. From time to time, he left the bed & rummaged through the victim's drawers & cupboards. When he heard sounds of the victim's daughter arriving home, the applicant fled, taking approx $500 in cash & the victim's key-card. Some 2 weeks later, police learned that the applicant was in a motel room in Windsor. When they entered the room, police found the applicant in possession of more than 2.2 kgs of cannabis, together with more than $5,000.
Aged 38 at time of offences - guilty pleas - disturbed background - physically & sexually abused by step-brother - left school at early age - significant drug addiction - very extensive criminal record for dishonesty offences, as well as convictions for manslaughter & robbery - some paranoia - not diagnosed as suffering from any current psychosis.
Principles of totality in sentencing - circumstances of aggravation - same aggravating factor in respect of 4 offences -need for caution to avoid duplication of punishment - accumulation of sentences discretionary - accumulation excessive - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total sentence of 15y with a NPP of 10y.

 

125


CRAGO, Christopher Robert - CCA, 19.4.2006
Hodgson JA, James & Hoeben JJ
Citation: Crago v R [2006] NSWCCA 68
Sentence appeal.
1 x fire firearm in manner likely to endanger safety of specified person; 9 x use offensive weapon with intent to commit indictable offence (malicious wounding while in company); 1 x maliciously damage a motor vehicle; 1 x possess firearm without being authorised.
Total sentence of 6 y with a NPP of 5y 3m.
There was an agreed statement of facts. All the offences were committed on the same day. During the morning of the day of the offences, the applicant was in the company of another man (Rogan) when the applicant shot at magpies in the rear garden of a tavern. After the applicant shot a magpie, Rogan also used the air rifle to shoot the magpie. Later in the day, over a period of some hours & with the applicant driving their motor vehicle, the applicant's 19 year old co-offender (Smith), as part of a joint criminal enterprise with the applicant, deliberately & randomly shot at & injured 9 people who ranged in age from 11 to 65 years.
Aged 35 at time of offences - guilty pleas - cannabis use since age 15 - alcohol abuse - has attended counselling & undertaken drug & alcohol courses whilst in custody - need for ongoing counselling when released.
Whether failure to give effect to finding of special circumstances - totality - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 5y with a NPP of 3 y.

 

126


JJB - CCA, 26.4.2006 - 161 A Crim R 187
Spigelman CJ, Kirby & Howie JJ
Citation: JJB v R [2006] NSWCCA 126
Conviction appeal.
2 x sexual intercourse with person between 10 & 16 years (namely 10 or 11).
The complainant was the niece of the appellant, who was her father's brother. The complainant was born in 1981 & was aged 23 at the time of appellant's trial.
The appellant faced trial on 5 charges. As the complainant did not give evidence in respect of one of those counts, the judge directed a verdict of acquittal regarding that count. The jury returned a verdict of not guilty on 2 other counts & a verdict of guilty of the 2 offences listed above.
Delay - accused absconded, adding to delay - Longman direction.
Appeal dismissed.

 

127


GIP, Shayla Ngoc Trang - CCA, 11.4.2006 - 161 A Crim R 173
LY, Sung
McClellan CJ at CL, Rothman J, Smart AJ
Citation: R v Gip; R v Ly [2006] NSWCCA 115
Crown appeal against sentences.
Supply heroin.
Gip: 2y with a NPP of 15m.
Ly: 2y with a NPP of 1y (suspended).
There was a factual dispute relating to the extent of the respondents' drug dealing activities. Although they pleaded guilty to supplying a quantity of 51 grams of heroin, the Crown alleged that the sentencing judge should find that there was a further supply of 3 ounces of heroin. The argument before the sentencing judge was that that conclusion should be drawn from intercepted telephone conversations. However, his Honour concluded that he could not be satisfied beyond reasonable doubt that the parties did in fact reach an agreement to supply. His Honour's conclusion was that although there was evidence suggesting that they did, he could not rule out the possibility that, although there may have been negotiations, they did not conclude an agreement. His conclusion that he could not find more than one act of supply was reflected in the approach he took in sentencing.
Whether an ongoing supply or trafficking of drugs - application of principles regarding exceptional cases & a non-custodial sentence - whether appropriate to ameliorate sentence due to impact of full-time sentence on children - whether sentence manifestly inadequate - delay in lodging Crown appeal.
Appeal dismissed.

 

128


HAMZE, Wesam - CCA, 6.3.2006
Giles JA, Grove & Hoeben JJ
Citation: Hamze v R [2006] NSWCCA 36
Sentence appeal.
Armed robbery in company; unauthorised sale of firearm; + Form 1 (BE&S, armed robbery in company, carried in conveyance without consent).
Total sentence of 8y 4d with a NPP of 5y 4d.
The applicant & 3 other men, all wearing balaclavas & gloves & at least one armed with a sawn-off shotgun or rifle, entered a service station. Present in the service station were the console operator & a customer. One offender pointed his gun at the console operator's head, threatened him, made him lie on the floor & took his wallet. Another offender ordered the customer to lie on the floor. One of the offenders placed his firearm into the console operator's back & demanded to be told where the phone cards were kept, whereupon he pointed to them. The offenders left the service station with cash, cigarettes & phone cards. Some stock was damaged during the robbery. A friend of the customer was waiting for him in a car outside the service station, saw what occurred & called the police
Aged 18 at time of offending - on bail & serving CSO at the time - no contrition/remorse. extensive criminal record - prior similar offences - previous imprisonment.
Whether elements of offence taken into account as aggravating factors - s.21A Crimes (Sentencing Procedure) Act 1999 - whether facts justified aggravating factor of disregard for public safety - whether offences on Form 1 could be taken into account as aggravating factor of series of offences - whether sentence manifestly excessive.
Appeal dismissed.

 

129


BARKER, Sean Norman - CCA, 15.2.2006
GIBSON, Glen Russell
Basten JA, Howie & Hall JJ
Citation: R v Barker, R v Gibson [2006] NSWCCA 20
Crown appeal.
Barker: Aggravated car jacking; + Form 1 matters (2 x being conveyed in stolen MV) - 3 y, NPP 1 y.
At the time of being sentenced for the above, respondent was serving 4y with a NPP of 2 y for unrelated offences. This increased the total term of imprisonment by 4m but did not interfere with the NPP of 1 y.
Gibson: Aggravated car jacking; + Form 1 matters (2 x being conveyed in stolen MV) - 3 y. NPP 1 y.
Gibson was subsequently sentenced to 3y with a NPP of 2y for an armed robbery. The effective overall NPP was thus increased by 4m & the total sentence was increased by 1y 4m.
The carjacking & the Form 1 matters all occurred in the early hours of the morning when the respondents & a juvenile stole 2 motor vehicles. The 1st was taken from Dubbo & resulted in a police chase. The 2nd vehicle was taken a short time later from a suburb of Bathurst & resulted in a police chase to the outskirts of Lithgow & then from Mount Victoria to Penrith. The 1st vehicle was located in the vicinity of where the 2nd vehicle was taken with damage to the ignition, console & a window. A palm print was taken which was later identified as belonging to the juvenile offender. The 2nd vehicle was located crashed into a tree on an M4 off-ramp. A cigarette butt was found in the vehicle from which DNA similar to that of the respondent Gibson was obtained. The car-jacking offence was committed a short distance from the scene of the crash.
Concurrent sentences for unrelated offences - delay before arrest - whether relevant.
Appeals allowed in part: commencement dates changed.

 

130


DISANO, Carmelo - CCA, 18.5.2006
McClellan CJ at CL, Hoeben & Johnson JJ
Citation: Disano v R [2006] NSWCCA 125
Conviction appeal.
Murder.
17y with a NPP of 12y.
The appellant was found guilty & convicted upon a charge that he murdered the father of his estranged wife. On the morning of 2.1.2004, the appellant & the deceased were involved in a fight on a path near the Abbotsford Wharf, resulting in the death of the deceased. The appellant was 53 years of age at the time & the deceased 70 years of age. A forensic pathologist attributed the death to a combination of multiple blunt force injuries & the inhalation of foreign material (leaf litter & bark material found in & partly obstructing deceased's mouth, windpipe & airways).
Whether jury misdirected as to provocation under s.23(3)(a) Crimes Act - rule 4 Criminal Appeal Rules.
Appeal dismissed.

 

131


MRN - CCA, 18.5.2006
McClellan CJ at CL, James & Simpson JJ
Citation: MRN v R [2006] NSWCCA 155
Sentence appeal.
1 x possess pre-cursor intended for use in manufacture of methylamphetamine; 1 x supply cannabis; 1 x ongoing supply methylamphetamine, MDMA (ecstasy), lysergic acid (LSD), cocaine; 1 x supply lysergic acid; 1 x supply MDMA; 1 x supply methylamphetamine; + Form 1 (5 x goods in custody, 3 x possess prohibited weapons, 3 x possess various prohibited drugs).
Total sentence of 10y 7m with a NPP of 8y 2m.
The applicant conducted a legitimate business in the Campbelltown area, retailing accessories for high performance motor vehicles. His business was not doing well & he moved the business from commercial premises to his home. The applicant had a significant drug habit & had incurred a large debt. He began using his business operation in order to supply drugs of various kinds.
Aged 27 at time of offending - guilty pleas - Aborigine - criminal record includes serious offences - deprived background - as a child, sexually abused by a relative & another person over 5 year period - resultant behavioural problems - began using drugs at age 13 or 14 - also used alcohol at 16 - cocaine use at age 24, resulting in cocaine-related psychoses - developed gambling habit - diagnosed with long-standing Chronic Complex Post-Traumatic Stress Disorder - drug use directly related to experiences as a child - successful completion of drug rehabilitation programme.
Subjective circumstances - assistance - protracted proceedings - treatment of delay in sentencing - assumption delays entirely attributable to applicant - extent of rehabilitation - error of fact in respect of telephone calls - not evident all phone calls & text messages related to drug dealing - sentence excessive.
Appeal allowed: resentenced to a total of 8y with a NPP of 5y.

 

132


GALAXIDIS, John - CCA, 16.5.2006
Hodgson JA, James & Hoeben JJ
Citation: Galaxidis v R [2006] NSWCCA 154
Sentence appeal.
Multiple offences. Three indictments + Form 1.
Indictment 1:
2 x dishonestly obtain by deception for himself or for another a valuable thing or money or a financial advantage; 16 x credit card fraud.
The first 2 counts involved the applicant & a man named Kilpatrick obtaining loans under a bogus name. Each loan was supported by false documentation. The remaining counts involved the applicant & Kilpatrick obtaining details of credit cards with high credit limits from a corrupt bank officer. In each of the offences charged, the applicant or someone on his behalf ordered goods or services over the phone, paying for the goods or services by giving details of one of the credit cards.
Indictment 2:
1 x supply methylamphetamine.
The applicant supplied 20.3 grams of methylamphetamine to an undercover police operative for $1,200. It was apparent from intercepted phone calls that this was not an isolated transaction.
Indictment 3:
1 x dishonestly obtain by deception a financial advantage for a business.
The applicant & Kilpatrick purchased a second-hand Porsche at an auction for $130,410. The applicant fabricated documents purporting to show a sale of the Porsche by his firm, Nicks Motors, to a company associated with Kilpatrick for $210,000, of which $15,000 had been paid as a deposit. Kilpatrick used the fabricated documents to obtain a payment of $195,000 from CBFC Ltd, which was paid to Nicks Motors & then disbursed, mainly to Kilpatrick.
The applicant pleaded guilty to all charges. Shortly before he was to be sentenced, he signed a list of additional charges (31 x dishonestly obtain money by deception, 1 x receive stolen property).
Total sentence of 6y with a NPP of 4 y.
Whether manifestly excessive - principles of totality.
Appeal dismissed.

 

133


PARTINGTON, Shane John - NSW SC, Mathews AJ, 16.5.2006
Citation: R v Partington [2006] NSWSC 442
Remarks on Sentence.
Manslaughter.
Accused faced trial on a charge of murder to which he pleaded not guilty. The jury found him not guilty of murder but guilty of manslaughter & the matter was stood over for sentence.
Sentenced to 13y with a NPP of 8y.

 

134


CHAHINE, Hassan - CCA, 5.4.2006
Grove, Simpson & Rothman JJ
Citation: Chahine v R [2006] NSWCCA 99
Conviction and sentence appeal.
Robbery in company.
10y with a NPP of 7 y.
The applicant & his male co-offender robbed a suburban bank of $16,585. During the course of the robbery, which was captured in surveillance photos, one of the offenders jumped the counter & told everyone in the area to get down. He demanded money & asked for the safe to be opened, then pulled open drawers & took money which he placed in his pants. Both men left the bank & climbed into a waiting car driven by another male. A witness took down the car registration number. The car had been stolen earlier from a shopping centre car park. The car was located a short time later & the offenders were arrested.
Aged 20 & at time of offence - significant criminal history - previous imprisonment.
Whether miscarriage of justice - direction on retrial - direction on joint criminal enterprise - incompetence of counsel - whether verdict unreasonable - whether sentence manifestly excessive - failure to find special circumstances.
Appeal dismissed.

 

135


BUONOCORE, Emiliano - CCA, 18.5.2006
McClellan CJ at CL, Hall & Latham JJ
Citation: Buonocore v R [2006] NSWCCA 159
Sentence appeal.
1 x armed robbery; + Form 1 (armed robbery).
7y with a NPP of 4 y.
Two female employees of a large pharmacy at Silverwater went to the NAB in Silverwater to deposit the pharmacy's weekend takings. The driver of the vehicle, a Ms Osores, was a co-offender, having previously discussed with the applicant the means by which they would rob the business of a sum of money. The applicant had been employed on a casual basis & knew of Ms Osores' responsibility for the banking. Ms Osores told the applicant how & when she did the banking. The applicant 's girlfriend, who also worked in the pharmacy, was directed to send a coded text message to the applicant, letting him know when Ms Osores & the co-worker were leaving the premises to go to the bank. The female passenger, however, was entirely ignorant of the plan. Ms Osores parked the vehicle near the entrance of the bank in a car park. A male co-offender approached the driver 's door, placed his arm through the driver 's window (which was partially open by prior arrangement) & said "Give me the bag'. He produced a knife approximately 20cm in length which he brandished towards Ms Osores. She gave him a bag containing $24,103.60 in cash & cheques to the value of $22,419.04. The male co-offender then ran from the car park to a vehicle driven by the applicant.
Police investigations proved fruitless until the commission of the offence on the Form 1, when 2 male employees of the same pharmacy went to the bank to deposit the takings of the business. An eyewitness to the robbery recorded the registration number on the offenders' vehicle.
Aged 24 at time of sentence - powerful subjective features - no prior criminal history.
Personal deterrence - weight to be given - prospects of rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.

 

136


ADLER, Rodney - CCA, 18.5.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Adler v R [2006] NSWCCA 158
Sentence appeal.
Total sentence of 4 y with a NPP of 2 y.
White collar crime - HIH Insurance Limited - breaches of Corporations Act - dissemination of false information - dishonesty - failure to discharge duties as a director in good faith and in the best interests of the company - whether evidence to support findings relating to inducement to purchase securities, share price rise and investors' loss - whether adequate weight given to principle of double jeopardy having regard to civil penalty proceedings - application of De Simoni principle - whether punished for an offence for which not convicted - whether sentence reflected objective criminality - whether adequate weight given to guilty plea - whether sentence manifestly excessive
Appeal dismissed.

 

137


CB - NSW SC, Buddin J, 7.4.2005
IM
Citation: R v CB; R v IM [2006] NSWSC 261
Remarks on Sentence
Murder; maliciously inflict GBH with intent; + Form 1.
One offender on conditional liberty - standard NPP applied to each offence - pleas of guilty - one offender provided assistance to authorities - parity.
Sentence:
CB: total term of 20y with a NPP of 15y.
IM: total term of 24y with a NPP of 18y.

 

138


ANDERSON, Noelene Patricia - CCA, 16.5.2006
McClellan CJ at CL, James & Hall JJ
Citation: Anderson v R [2006] NSWCCA 156
Conviction and sentence appeal.
Murder.
17y with a NPP of 11y.
This appeal followed a 2nd trial for the above offence. The 1st trial was the subject of a successful appeal to the CCA, resulting in a new trial: see R v Anderson [2002] NSWCCA 194.
The Crown case was the same at each trial. The appellant was in a turbulent & violent marriage with the deceased. The deceased had a criminal record that included convictions for assaulting the appellant. The appellant strangled the deceased with a piece of cord & buried him beneath a concrete slab under the house. Because of the state of the deceased 's body, it was not possible to determine whether or not, as had been suggested, any poison or other substances had been ingested before he died.
New evidence - miscarriage of justice - whether coroner's reports valid - whether sufficient evidence to support jury's conclusion as to cause of death - directions on provocation - whether competent conduct of defence by counsel - no submissions put forward in support of appeal against sentence.
Appeal dismissed.

 

139


TURNER, Robert John Norman - CCA, 24.5.2006
McClellan CJ at CL, Hislop & Johnson JJ
Citation: Turner v R [2006] NSWCCA 166
Sentence appeal.
B&E and commit serious indictable offence (AOABH).
2y with a NPP of 18m.
The victim of the offence was a young woman who had been a friend of the applicant. She agreed that the applicant could stay at her home from 4.6.2005 pending a court hearing on 6.6.2005. On 6.6.2005, the court hearing was adjourned & the applicant returned to the victim's home. He became intoxicated & the victim asked him to leave. He did so on the following day. Shortly before 10.30pm on 7.6.2005 the applicant returned to the victim's home. The victim was in the house with a 16 year old female neighbour. They refused to open the door when the applicant knocked. The applicant then forced his way into the home & assaulted the victim.
Aged a little under 32 years at time of offence - on bail & on bond at time of offence - lengthy criminal record - problem with alcohol & drugs - delusional - psychotic - unclear whether he has an underlying mental illness and/or personality disorder.
Effect of accumulation in determining NPP - mental illness - whether sentence manifestly excessive.
Appeal dismissed.

 

140


PENGILLEY, Conrad Eugene - CCA, 24.5.2006
McColl JA, Adams & Latham JJ
Citation: Pengilley v R [2006] NSWCCA 163
Conviction appeal.
Maliciously wound.
The alleged offence took place at the Royal Hotel in Queanbeyan. The Crown case was that the appellant had maliciously wounded the victim by smashing a beer glass into his face, near his eye. Friends of the victim took him to hospital where he received about 60 stitches to his face.
Failure of trial judge to explain 'concept of recklessness'- whether jury properly directed as to meaning of 'maliciously'.
Appeal allowed: new trial ordered.

 

141


VO, Cam Thi - CCA, 24.5.2006
TRAN, Tung Thanh
McClellan CJ at CL, Hislop & Johnson JJ
Citation: R v Vo; R v Tran [2006] 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.

 

142


PARAGALLI, Joseph - CCA, 29.3.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Paragalli v R [2006] NSWCCA 87
Sentence appeal.
Count 1: carry on business without disclosing that he was an undischarged bankrupt.
Counts 2,3 & 4: obtain credit without informing the credit provider that he was an undischarged bankrupt.
Two offences on a Form 1.
Total sentence of 2 y with a NPP of 6m; + 3y GBB.
The applicant, while under 2 undischarged bankruptcies, was the sole operator of a removalist business that traded under various names. During much of the time, the applicant's wife was the director & secretary of those companies, however, it was the applicant who negotiated contracts on behalf of the companies, signed company documents & instructed staff. In relation to count 1, the applicant obtained trucks to the value of $282,260 & in relation to counts 2,3 & 4, he obtained credit to the value of $31,300.60. The 2 offences dealt with on the Form 1 involved the applicant obtaining goods & services for less than $3,000 in value.
Aged 37 at time of offences - on bond at the time - in protective custody - health problems - priors.
Whether 3y recognizance release order excessive - the NPP failed to reflect sentencing judge's intended variation to the customary ratio - whether sentence manifestly excessive.
Appeal dismissed.

 

143


TANG, Hien Puoc - CCA, 24.5.2006 - 65 NSWLR 681; 161 A Crim R 377
Spigelman CJ, Simpson & Adams JJ
Citation: R v Tang [2006] NSWCCA 167
Conviction appeal.
1 x robbery armed with offensive weapon.
The robbery occurred at a convenience store & was videotaped, showing 3 offenders. The tape was not of sufficient quality to enable clear identification of the offenders. Two of the offenders were arrested 40 minutes after the commission of the offence. Their car contained property like that stolen from the convenience store. DNA evidence connected them to hats in the car, which matched those worn by 2 of the offenders on the surveillance video. The co-offenders pleaded guilty. Eight months after the robbery, the appellant came to the attention of police & was linked to the offence through fingerprints found on some of the stolen goods. At trial, the appellant gave evidence that he had met the co-offenders some months prior to his arrest in order to purchase marijuana. As part of this transaction, he said he had purchased some cigarettes, during the course of which he handled various packets inside the bag of stolen goods. The Crown case relied on expert evidence identifying points of resemblance between the surveillance images of the 3rd offender & photographs of the appellant based on facial mapping & body mapping techniques.
Judicial discretion to admit or exclude evidence - whether opinion evidence of identity based on facial mapping & body mapping admissible - expert opinion - whether facial mapping & body mapping constitute areas of 'specialised knowledge'- meaning of 'specialised knowledge'- meaning of 'knowledge'- s.79 Evidence Act 1995 (NSW) - whether CV of witness correctly admitted - whether use of phrase 'ultimate issue' in directions constituted miscarriage of justice.
Appeal allowed: new trial ordered.

 

144


SHARWOOD, Wayne Robert - CCA, 24.5.2006
McClellan CJ at CL, Hoeben & Johnson JJ
Citation: Sharwood v R [2006] NSWCCA 157
Conviction and sentence appeal.
5 x aggravated indecent assault.
Total sentence of 7 y with a NPP of 5y 4m.
The circumstances of aggravation were that the complainant was under the age of 16 (she was actually aged 10). The offences took place during one night when the complainant stayed at the appellant's home as a guest of the appellant's daughter, who was also 10 years of age. The complainant arrived at her home at approximately lunchtime the following day, whereupon she told her mother about what the appellant had done to her. The mother placed the child's underpants, boxer short & top she had been wearing the night before into a bag & gave them to the police.
Failure to call analysts who carried out DNA tests - point conceded at trial - rule 4 Criminal Appeal Rules - application to discharge jury - whether risk of substantial miscarriage of justice - incorrect maximum penalty relied upon - whether offences 'in middle range of objective seriousness'- evidence of extra curial punishment - totality, proportionality.
Conviction appeal dismissed.
Sentence appeal allowed: appellant resentenced to a total of 2y with a NPP of 1y 3m; order that applicant be forthwith released to parole.

 

145


WETHERALL, Denise Lynette - NSW SC, Patten AJ, 18.5.2006
Citation: R v Wetherall [2006] NSWSC 486
Remarks on Sentence.
Manslaughter.
Somewhere around 10pm on the night of the killing, the offender armed herself with a kitchen knife, left her home in Earlwood & drove to the vicinity of the Canterbury Hotel, entered the hotel & approached the victim, who was drinking with some acquaintances. After a short conversation, the offender produced the knife & stabbed the victim. The wound proved fatal. It was inflicted with what the forensic pathologist (called in the Crown case) described as moderate force & led to the death of the victim shortly afterwards. The victim & the accused had been in an 'on-and-off' long-term relationship. They had an adopted daughter as well as a birth daughter.
Aboriginal - accused was sexually abused as a child - victim accused of sexually assaulting the adopted daughter on 2 occasions.
Sentenced to 3y with a NPP of 18m.

 

146


O'CONNER, Anthony William (DPP v) - NSW SC, Johnson J, 12.5.2006
Citation: Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458
Committal proceedings - direction under ss.91 & 93 Criminal Procedure Act 1986 that complainant attend to give evidence - refusal of prosecution application for adjournment of ss.91 & 93 application - whether denial of procedural fairness - special reasons test - whether actual or constructive failure by magistrate to exercise jurisdiction on ss.91 & 93 application - legal status of Local Court Practice Note - adequacy of reasons for direction.

 

147


COLLINS, Cassandra - CCA, 22.5.2006
Spigelman CJ, Simpson & Johnson JJ
Citation: Collins v R [2006] NSWCCA 162
Conviction and sentence appeal.
Robbery with wounding in circumstances of aggravation.
8y with a NPP of 5y.
At about 7.00pm on 18.1.2003, the victim & her 3 children travelled by taxi to the Uniting Church, Liverpool. Having briefly entered the church, the victim returned outside in order to make a phone call to her husband. They arranged that he would drive to the church in order to deliver a sum of money to her. He did so & gave her $500. The victim placed this money in her handbag. She remained in the garden of the church, speaking on her mobile phone. She felt something that she later described as a needle or knife in her back. She looked to her left & saw a woman holding a knife. The woman was attempting to take the victim's handbag & slashed the victim's hand & arm. She then ran off with the handbag. It was the Crown case that the woman was the appellant. It was never in issue that the offence had been committed. The issue was for the jury to determine whether the appellant had been proved to be the perpetrator. See also: Elsobky v R [2006] NSWCCA 168.
Warnings - directions - conflicting accounts given by complainant - Crown prosecutor granted leave to cross-examine complainant - evidence of identification - complainant & complainant 's husband known to appellant - complainant's husband pleaded guilty to charge of accessory after fact to armed robbery of his wife - complainant's out of court representations at variance with trial identification evidence - unreliable evidence - descriptive evidence - whether verdict unreasonable - appellant's prior criminal record - offence committed whilst on conditional liberty - victim vulnerable - planned criminal activity - whether appellant knew of victim's vulnerability - pre-trial period in custody - sentence to reflect pre-trial period in custody
Conviction appeal dismissed.
Sentence appeal allowed in part: commencement date changed.

 

148


EROHIN, Anatol Boris - CCA, 7.4.2006
James, Simpson & Hall JJ
Citation: Erohin v R [2006] NSWCCA 102
Conviction and sentence appeal.
1 x B&E a dwelling in circumstances of aggravation & commit serious indictable offence (sexual intercourse without consent); 1 x indecent assault.
Total sentence of 9y with a NPP of 7y.
The circumstances of aggravation in the 1st charge were that the appellant, at the time he broke & entered the dwelling, knew that there was a person inside. The victim of both the offences was an adult woman. She was the appellant's neighbour & worked as a sales assistant for a business where the appellant was the manager. The appellant made constant advances to the complainant, who rejected him. On one occasion, while she was making coffee at work, the appellant came up behind her & put his hands down the front of her top & felt her breasts. In June 2002, the complainant injured her back at work & was off work on workers' compensation. She received phone calls from both the appellant & the owner of the business, asking when she would be able to return to work. The appellant also asked the complainant about her partner's working hours. In the early afternoon of 17.7.2002, the complainant saw the appellant talking to her partner over the fence that separated their properties. The complainant's partner left for work at his normal time in the late afternoon. That night, the complainant put her children to bed & prepared to go to bed herself. She went to the laundry & then into a room she described as an 'activities room' where she saw the appellant. She demanded to know why he was in the house. The appellant propositioned the complainant but she told him to get out. The appellant then grabbed the complainant by the shoulders, spun her around & pulled down her pyjama pants. He then had sexual intercourse with her.
Longman direction - whether effective overall sentence misjudges actual level of criminality involved.
Appeal dismissed.

 

149


CHAABAN, Nazmi - CCA, 7.4.2006
Hunt AJA, Simpson & Rothman JJ
Citation: R v Chaaban [2006] NSWCCA 107
Crown appeal.
Specially aggravated BE&S; maliciously inflict GBH with intent.
Total sentence of 4 y with a NPP of 3y.
The respondent was one of 6 persons who, early in the morning, broke into a family residence. The occupants, David & Jodie Wormleaton, & their 2 children were asleep at the time. One of the children was a 13 year old boy who had cerebral palsy. Also in the house was a family friend, an 18 year old boy, who was partly immobile, recovering from an operation in which a lung was removed. The 2 boys were ushered into a room & held there through threat but not with any physical violence. The two adults were detained in their room with handcuffs. The 16 year old daughter was then brought in & tied up. Two offenders cut off the clothing of the females & digitally penetrated the vagina of each female. Each was also vaginally penetrated by an unknown object, resulting in physical damage. At some point, David Wormleaton broke through a bathroom window to the garden, but was caught & a struggle ensued, during which his hands were cut. He again ran, was caught & was severely wounded on his arm with a machete. The offenders then returned to their vehicle & drove away. The respondent was paid $1,000 & some days later given some cannabis plants. The respondent said that he only learnt later that the females had been sexually assaulted. When he asked his co-accused about it, he said that they threatened him. His co-accused disposed of his clothing because it was stained with blood which the respondent claimed got onto his clothes when he ran into David Wormleaton's hands during the garden chase. Prior to the planning & implementation of the offence, the respondent had spent the day with 2 of the co-offenders, smoking ice, cannabis & taking ecstasy.
Guilty plea, contrition, remorse, assistance - 50% discount - subjective factors - horrendous childhood.
Standard NPP - relative criminality - objective criminality - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 6y with a NPP of 3 y.

 

150


STERNBECK, Gary John - CCA, 18.5.2006
Hodgson JA, James & Hoeben JJ
Citation: Sternbeck v R [2006] NSWCCA 132
Sentence appeal.
Count 1: armed robbery with offensive weapon causing GBH (s.98 Crimes Act 1900); + Form 1 (2 x aggravated robbery - s.95 Crimes Act): 9y with a NPP of 6y.
Count 2: armed robbery with offensive weapon (s.97); + Form 1 (1 x robbery with offensive weapon - s.97): 6 y with a NPP of 3y (partially concurrent).
Total sentence of 11y with a NPP of 7 y.
Count 1 involved a robbery upon a liquor store, during which a young woman who was working alone was assaulted. She suffered 3 fractures to her facial bones & later required surgery to insert surgical plates. The applicant, having tied up the victim, left the store with $290, the store security video cassette recorder & the victim's handbag, including its contents. The victim managed to free herself, then ran from the store & raised the alarm. The applicant was identified by DNA evidence left at the scene. The offences on the Form 1 related to robberies of 2 other businesses.
In relation to count 2, the applicant approached a young woman working alone at a Video-Ezy store & demanded money. He threatened to kill her if she did not hand over the money & raised his hand, revealing a black handgun. At this point, a female customer & her 7 year old son entered the store. The victim tried to warn them, however, the applicant approached the woman & her son & ordered them to lie on the floor. Both complied. The applicant stole the customer's handbag & its contents & took money from the cash register & ran from the store. The total amount of money stolen from the store was $290. The total amount stolen from the customer was $80 & some personal papers. The applicant was identified by DNA evidence located at the scene of the crime. It was the robbery of the customer at the Video-Ezy store that comprised the Form 1 matter.
Aged 37 at time of sentence - extensive history of substance abuse - prior offences - previous varying sentences not involving fulltime custody - nothing in applicant's history showing offences as serious as instant offences & nothing involving violence.
Whether sentence manifestly excessive - totality.
Appeal dismissed.

 

151


TRUONG, Dung - CCA, 30.3.2006
Beazley JA, Adams & Howie JJ
Citation: Truong v R [2006] NSWCCA 71
Sentence appeal.
3 x armed robbery; 1 x assault with intent to rob & inflict GBH; 1 x armed robbery with wounding; + Form 1.
Total sentence of 8y 9m with a NPP of 5y 9m.
The above offences related to a number of attacks upon taxi drivers.
Aged 21 at time of offences - guilty pleas - assistance to authorities - born in Malaysia to Vietnamese parents - family came to Australia as 'boat people'- caring family environment - completed HSC - started TAFE course in IT - some work experience - drug use - successful attempts to get off drugs - later commenced using heroin again - became severely dependent on the drug & discontinued TAFE course - minor record - no previous imprisonment.
Parity - justifiable sense of grievance - assistance - time served in protection - whether sentence excessive.
Appeal allowed in part, resulting in a total sentence of 8y 3m with a NPP of 5y 3m.

 

152


McCABE, Shane Anthony - CCA, 22.5.2006 - 162 A Crim R 166
Beazley JA
Citation: McCabe v R [2006] NSWCCA 160
Sentence appeal.
Multiple BE&S offences; + summary offences (resist police; escape police; drive whilst disqualified; BE&S; malicious damage).
6 y with a NPP of 5y.
Sentences imposed by Drug Court following termination of Drug Court programme - appeal against severity - aggravating factors - whether multiple offences of BE&S in one block of units constituted a series of criminal acts with multiple victims - single criminal act & single victim for each offence - not an aggravating factor - prior like offences - prior convictions.
Orders:
'1. Appeal allowed.
2. Confirm the sentences imposed on the appellant on 8 March 2005'.

 

153


NGATIKAURA, Josephine - CCA, 22.5.2006 - 161 A Crim R 329
Beazley JA, Simpson & Rothman JJ
Citation: R v Ngatikaura [2006] NSWCCA 161
Crown appeal against a ruling - s.5F Criminal Appeal Act (1912) NSW.
1 x supply heroin (deemed).
Police searched the respondent's home & found a quantity of heroin (5.74 grams) as well as other drug paraphernalia. The respondent pleaded not guilty. The respondent's husband, who is being tried separately with the same offence, also occupied the house. The anticipated defence of the respondent is that the drugs were in her husband's exclusive possession & that their presence within the home was not within her knowledge. The Crown sought to adduce evidence of 2 prior offences of supply heroin to which she had pleaded guilty. These offences were committed at a different address, the packaging of the drugs was different & each involved an actual supply to an undercover agent as opposed to deemed supply. The Crown sought to adduce evidence of the prior offences in order to demonstrate that the accused was a drug dealer by occupation & to rebut the respondent's likely defence of her innocent association with the drugs. The trial judge held that the evidence was admissible but nonetheless rejected it on the basis that its prejudicial effect outweighed its probative value. In making the ruling he referred to the 'balancing exercise' spoken of in Harriman v The Queen (1989) 167 CLR 590.
Prior criminal conduct - whether tendency - evidence of prior drug supply - tendency evidence - no operation of general exclusionary provisions where tendency provisions apply - jurisdiction - s.5F(3A) Criminal Appeal Act 1912 (NSW) - whether decision of trial judge to exclude evidence substantially weakens prosecution case - appeal may be made against an interlocutory decision regardless of whether or not a jury has been empanelled.
Appeal allowed: decision to reject the evidence vacated & the matter remitted to the DC to be determined in accordance with published reasons.

 

154


ELSOBKY, Hesham - CCA, 26.5.2006
James, Hidden & Hoeben JJ
Citation: Elsobky v R [2006] NSWCCA 168
Sentence appeal.
Accessory after the fact to armed robbery.
2 y with a NPP of 1y 3m.
The victim of the armed robbery was the applicant's wife & the perpetrator of the robbery was a young woman named Cassandra Collins. Although still living with his wife at the time, the applicant was in an intimate relationship with Ms Collins. During the early evening of 18.1.2003, outside a church in Liverpool, Ms Collins threatened the victim with a knife & seized her handbag. The victim struggled & received some lacerations to her left forearm & hand before being pushed to the ground by Ms Collins. Ms Collins then ran to a car parked in a nearby street in which the applicant was waiting. He drove her from the scene. Later that night he was arrested & a search of the car revealed some of the items from the victim's handbag concealed under the lining in the boot. The applicant was originally charged with complicity in the armed robbery & was to face trial jointly with Ms Collins. He entered a late plea of guilty to the charge of accessory after the fact & received a 15% discount. See also: Collins v R [2006] NSWCCA 162.
Whether appropriate weight given to guilty plea - hardship to family - whether sentence manifestly excessive.
Appeal dismissed.

 

155


MAMMONE, Giuseppe - CCA, 24.4.2006
McClellan CJ at CL, James & Hall JJ
Citation: R v Mammone [2006] NSWCCA 138
Crown appeal.
Knowingly take part in cultivation of large commercial quantity cannabis plants.
Sentenced to 5y 2m 12d, with a NPP of 2 y.
Respondent was involved in the large-scale production of cannabis plants.
Aged 73 at sentence - late guilty plea - born in Italy - Ill-health - priors - on bond at time of offence.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 5y 8m with a NPP of 3 y.

 

156


WATERS, Glenn Allan - NSW SC, Hislop J, 26.5.2006
Citation: R v Waters [2006] NSWSC 502
Remarks on Sentence.
Murder.
At the time of his death, the 29 year old deceased was living in a derelict fire-damaged house in Parramatta. The offender, a female & others had shared that accommodation but moved to another house shortly before the deceased's death. The offender & the female claimed the deceased owed them some money. They went to the premises where the deceased was living with another woman. The offender was armed with a metal pipe. When they arrived at the premises, the deceased was asleep in his bed. The offender then attacked the deceased with the metal pipe, inflicting multiple injuries. The deceased's death was caused by blunt trauma to the head.
Aged 29 at time of offence - guilty plea -happy stable family - educated to end of Year 10 - average scholar - poor relationship with teachers - suspended from school a few times - commenced but did not complete apprenticeship as a plasterer - some previous employment - drug addiction - binge drinker - homeless person on social security - 8 year old child from a previous relationship - has a current partner.
Sentenced to 20y with a NPP of 15y.

 

157


MAJZOUB, Mohammed - CCA, 21.4.2006
Hodgson JA, James & Hoeben JJ
Citation: Majzoub v R [2006] NSWCCA 128
Sentence appeal.
Supply amphetamine (ongoing).
4y with a NPP of 2y.
The applicant was arrested & charged following a police undercover operation.
Aged 25 at time of sentence - came to Australia from Lebanon at age of one with parents & sisters - left school at age 15 - poor numeracy & literacy skills - held a number of short-term jobs - employment interrupted by periods of substance abuse - unemployed at time of offence - desire to rehabilitate himself - successfully completed a number of courses relating to substance abuse whilst in custody.
Whether sentence manifestly excessive - parity.
Appeal dismissed.

 

158


MAKRYNIKOS, Zafririos - CCA, 30.5.2006
McClellan CJ at CL, Hislop & Rothman JJ
Citation: Makrynikos v R [2006] NSWCCA 170
Conviction and sentence appeal.
Accessory before the fact to BE&S.
10y with a NPP of 5 y.
The Australian Government Analytical Laboratories were broken into & a safe & other items were stolen. The safe contained drugs, including heroin, cocaine, amphetamines & steroids with a value in excess of $2,000,000. The appellant was employed at the laboratories as a technical officer. The Crown case was that he voluntarily provided information about the location of & the contents of the laboratory, as well as security & alarm systems. He also provided a map of the layout of the relevant areas in return for the payment of $10,000. The appellant did not dispute his involvement but raised duress as a defence. He gave evidence that he had provided the information under threats of harm to himself & his family.
Guilty plea - directions on duress - directions on evidence, lies, distress, good character - rejection of duress in sentencing proceedings - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 7y with a NPP of 4 y.

 

159


BROWN, Gregory Brian - CCA, 22.3.2006
BARWICK, Kevin James
BROWN, Neville John
McClellan CJ at CL, Hulme & Rothman JJ
Citation: Brown, Barwick, Brown v R [2006] NSWCCA 69
Brown, G & Brown, N: Conviction and sentence appeals.
Maliciously inflict GBH with intent to do GBH - each sentenced to 12y with a NPP of 9y 10m, although commencement dates differed.
Barwick: Conviction appeal.
Maliciously inflict GBH (statutory alternative) - 3 y with a NPP of 1y 9m.
The victim suffered brain damage as a result of a vicious attack upon him. When he was taken to hospital, the victim spoke to a number of people & told them that each of the appellants had assaulted him. By the time the matter went to trial, he had no memory of the relevant events. The Crown proposed to call evidence from those who the victim had spoken to about the appellants being the attackers. The trial judge admitted the evidence on the basis that the witness was unavailable to give evidence & therefore s.65 Evidence Act applied.
On appeal, each of the appellants challenged the trial judge's ruling to admit the evidence.
Out-of-court statements - hearsay statements - whether error in admitting.
Appeals allowed: new trial ordered.

 

160


CAO, Chi Thanh - CCA, 30.3.2006 - 65 NSWLR 552; 172 A Crim R 1
Spigelman CJ, Barr & Howie JJ
Citation: Cao v R [2006] NSWCCA 89
Conviction appeal.
Attempt possess commercial quantity heroin.
14y 1m with a NPP of 8y 1m.
A refrigerated container containing 832 cartons of frozen seafood arrived in Sydney from Cambodia. According to shipping documentation, there were cartons of frozen fish paste, prawn meat & squid. Each of the cartons in the shipment was x-rayed by Customs & 10 of the cartons containing fish paste were found to have 'internal anomalies'. Each of these cartons had a small red texta marking on it. The marked cartons were seized & examined by Australian Federal Police, who found 70 blocks of heroin concealed within the fish paste. The heroin was removed & the cartons reconstructed & repacked into the container. The container was then delivered. The appellant was present when the container was unloaded. Police then followed the appellant as he drove to various premises. They eventually stopped his van & found a number of cartons, including 3 of those marked with the red texta. These boxes appeared not to have been opened. The other 7 marked cartons were found in the warehouse. There was no dispute at trial that the appellant was physically in possession of the drugs. The real issue was whether the mental element had been satisfied.
Directions on intent to possess narcotic goods - whether inadequate.
Appeal dismissed.

 

161


CUNNINGHAM, Barrie Patrick - CCA, 5.6.2006
Grove, Simpson & Bell JJ
Citation: R v Cunningham [2006] NSWCCA 176
Sentence appeal.
10 x aggravated indecent assault on person under 10 years; 4 x commit act of indecency upon person under 10; 3 x incite person under age of 10 to commit act of indecency; 1 x attempt sexual intercourse with person under 10.
Total sentence of 15 y with a NPP of 9 y (special circumstances found).
The offences were committed against 4 girls, each aged under 10 years. The offences took place over a period of 15 months. The applicant was in a position of trust on each occasion. One complainant was the child of his de facto partner & the other 3 were children who had come to his home to be tutored in maths or English.
Aged 61 at time of appeal - paedophile who is attracted to pre-pubescent female children - suffered serious assault whilst on remand - previous convictions for sexual offences involving children - on GBB at time of offences
Whether error in finding that emotional harm caused by the offences was substantial - whether sentence manifestly excessive.
Sentence appeal allowed in part: new total sentence of 12y 9m with a NPP of 7y 9m.

 

162


O'MEARA, Kenneth Ian - CCA, 21.4.2006
Hodgson JA, James & Hoeben JJ
Citation: O'Meara v R [2006] NSWCCA 127
Application to quash indictment.
No jurisdiction in State court to review committal proceedings brought by Commonwealth - source of Commonwealth DPP's power to prosecute federal offences in State courts.
Appeal dismissed.

 

163


TV - CCA, 5.6.2006
Hodgson JA, Grove & Adams JJ
Citation: TV v R [2006] NSWCCA 174
Conviction appeal and application for leave to appeal against sentences.
Sexual intercourse without consent; aggravated sexual intercourse without consent (inflict ABH);
Total sentence of 6y with a NPP of 4y.
The above offences were committed by the appellant upon his wife.
Weight of evidence - whether verdicts 'unsafe and unsatisfactory'.
Conviction appeal dismissed.
Leave to appeal against sentences refused.

 

164


MISKI, Salim - CCA, 5.6.2006
McClellan CJ at CL, Hall & Latham JJ
Citation: R v Miski [2006] NSWCCA 178
Crown appeal.
1 x robbery in company; 2 x robbery armed with offensive weapon (black pistol); 1 x robbery armed with offensive weapon (knife); + Form 1 offences (being carried in conveyance without consent).
Total sentence of 4y 5m with a NPP of 3y.
The robbery offences were committed upon a service station in Blakehurst, a service station in Carlton & a motel in Edgecliff. During the robberies at the service stations, the respondent produced a firearm & during the robbery at the motel he produced a 30cm knife.
Aged 24 at time of sentencing - guilty pleas - offences committed whilst on parole - left home at age 16 - heroin addiction - lengthy criminal record - previous imprisonment.
Post-offending conduct - whether overall sentence adequately reflects criminality - appropriate sentence for multiple offences - distinguished from Henry guideline - offences on Form 1 - whether temporal and causal connection between offences - delay in bringing Crown appeal - specific and general deterrence.
Appeal allowed: respondent resentenced to a total of 7y with a NPP of 5y 3m.

 

165


CHAHINE, Shadi - CCA, 7.6.2006
McClellan CJ at CL, Hoeben & Johnson JJ
Citation: Chahine v R [2006] NSWCCA 179
Conviction appeal.
Aggravated robbery.
4y with a NPP of 2y 10m.
The appellant stood trial upon an indictment alleging that he robbed the victim of surveillance tapes & a safe containing a quantity of Australian currency & that at the time of robbery he used corporal violence on the victim. It was not disputed at trial that 2 men had robbed the victim. The issue was whether the appellant was one of the 2 robbers. The co-accused pleaded guilty to the charge & was sentenced to 3y 3m with a NPP of 1y 10m. The co-accused did not give evidence at the appellant's trial.
Circumstantial evidence - appellant's fingerprints at crime scene & on getaway car - victim identified another person & excluded appellant in photographic identification - erroneous direction concerning factual findings favourable to appellant - whether miscarriage of justice - whether verdict unreasonable.
Appeal dismissed.

 

166


KANAAN, Michael - NSW SC, Latham J, 31.5.2006
Citation: R v Kanaan [2006] NSWSC 539
Remarks on Sentence.
2 x maliciously discharge firearm with intent to cause GBH; 1 x discharge firearm with intent to prevent lawful apprehension.
The offences arose out of an encounter between the offender & 2 police officers, during which the offender shot one of the police officers in the right thigh and right wrist.
Total sentence: 12y with a NPP of 7y.

 

167


KIRKWOOD, Jarrad - CCA, 7.6.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Kirkwood v R [2006] NSWCCA 181
Conviction appeal.
1 x assault with intent to rob whilst armed with offensive weapon.
3y with a NPP of 1y.
No details of actual offence.
Appellant suffers from Asperger's Syndrome & has been diagnosed, from time to time, over a number of years as suffering from a range of psychiatric disorders. In 2000 & 2001, he was found unfit to be tried with respect to other criminal proceedings in the DC. He has, on occasions, been dealt with under s.32 Mental Health (Criminal Procedure) Act 1990 in the LC with respect to other criminal proceedings. Despite that background, until the instant appeal, there was no psychiatric evidence directly reflecting upon his fitness to be tried when a plea of guilty was entered for the above offence in 2005.
Fitness to be tried - test in R v RTI (2003) 58 NSWLR 438 satisfied.
Appeal allowed: new trial ordered.

 

168


P - CCA, 17.2.2006
McClellan CJ at CL, Hislop & Rothman JJ
Citation: P v R [2006] NSWCCA 27
Conviction and sentence appeal.
Solicit to murder.
After a relationship with his partner deteriorated & legal proceedings to gain custody failed, the appellant abducted & brought his daughter to Australia from the UK. He was arrested & held at various detention centres. A friend became aware of a plan he had arranged before leaving the UK involving the hiring of a hit-man to kill his ex-partner's boyfriend. Later, the plan developed to include his former partner. An undercover police operation was initiated after the appellant's friend passed on information to a friend in the Cth Police. The appellant was recorded trying to recruit the undercover operative to have both his ex-partner & her boyfriend murdered.
Alleged entrapment - lawfully obtained telephone intercepts - appropriate warnings to jury regarding use of transcripts of recorded conversations - trial judge's discretion to admit evidence - whether error on the face of the indictment - whether trial judge's summing-up fair & adequate - whether miscarriage of justice - whether sentence excessive.
Appeal dismissed.

 

169


BAKER, Colin James - CCA, 16.5.2006
Simpson, Adams & Hoeben JJ
Citation: R v Baker [2006] NSWCCA 135
Sentence appeal.
Aggravated sexual intercourse without consent.
6 y with a NPP of 4y.
The applicant & the victim had met at a local club & had consensual intercourse. There was no further contact until 18 months later when they saw each other at a local club & had a drink together. The victim went home alone. The applicant went to her house at about midnight with a carton of beer. The victim let him in & they talked & had a drink. The applicant became increasingly aggressive as he continued drinking & refused to leave. The victim went to bed. The applicant went into her bedroom, removed the victim's nightclothes & underwear & raped her. He also grabbed the victim around the throat, banged her head against the bed & punched her in the face & eye. He did not leave until the morning. The victim reported the assault to a lodger & neighbour,. She was distraught & had red marks on her throat & arm.
Aged 56 at time of offence - poor health - extensive criminal record - previous imprisonment.
Delay of 10 years in prosecution - aged 67 years when sentenced, will be 71 when eligible for parole.
Because delay caused by applicant absconding, inappropriate to adjust sentence.
Appeal dismissed.

 

170


Island Maritime Limited v Filipowski; Kulkarni v Filipowski - HCA, 15.6.2006
Citation: Island Maritime Limited v Filipowski; Kulkarni v Filipowski [2006] HCA 30
On appeal from the SC of NSW.
Discharge of oil into Botany Bay - criminal law - double jeopardy - autrefois acquit - successive charges arising out of same facts - charge brought against appellants under s.27(1) of the Marine Pollution Act 1987 (NSW) - charge dismissed on basis that s.27(1) did not apply where a charge was available under s.8 - charge subsequently brought against appellants under s.8 - where s.27(1) offence included all elements of s.8 offence together with additional element - whether 2nd charge barred by principles of autrefois acquit - whether appellants stood in jeopardy on first charge - whether plea of autrefois acquit available if all elements of offence first charged not included in elements of offence charged second.
Criminal law - abuse of process - delay - where 1st prosecution brought more than 2 years after the relevant events - where 2nd prosecution brought 8 months after 1st defective prosecution dismissed.
Appeal dismissed.

 

171


HARRISON, James Glenn - CCA, 19.6.2006
McClellan CJ at CL, Hall & Latham JJ
Citation: Harrison v R [2006] NSWCCA 185
Sentence appeal.
Assault inflicting ABH with intent to have sexual intercourse; knowingly have non-consensual sexual intercourse in circumstances of aggravation (deprivation of liberty).
11y with NPP of 9y.
The offences involved 2 different women. Both the applicant & his co-offender pleaded guilty.
Whether trial judge considered both delay & hardship as constituting special circumstances - whether failure to expressly refer to & consider individual matters going to hardship constitutes error - accumulation of sentences - time spent in custody - whether sentences manifestly excessive.
Appeal allowed in part - sentences backdated.

 

172


HOURIGAN, Shon - CCA, 5.6.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Hourigan v R [2006] NSWCCA 183
Conviction and sentence appeal.
4 x supply heroin.
Total sentence of 3y with a NPP of 1y 9m.
Appellant was one of 9 persons arrested during the course of an investigation into the distribution of heroin in the Newcastle area. He pleaded guilty to the 4 counts of supplying heroin following plea discussions between his counsel & the Crown. Prior to that, the appellant had been charged with ongoing supply. Three of the above offences were carried out with a co-offender, who was living in a de facto relationship with the appellant & their 7 year old son. Heroin was supplied on 4 occasions to an undercover police officer. Relevant conversations were captured by means of telephone intercepts or listening device recordings.
Appellant unrepresented at appeal. He did not appear himself, relying on his written submissions only.
Integrity of pleas of guilty - whether sentence manifestly excessive - parity.
Appeal dismissed.

 

173


DES ROSIERS, Henry Edgar - CCA, 10.2.2006 - 159 A Crim R 549
McClellan CJ at CL, Howie & Latham JJ
Citation: Des Rosiers v R [2006] NSWCCA 16
Sentence appeal.
1 x supply large commercial quantity LSD; 1 x supply indictable quantity MDMA (ecstasy); 1 x supply trafficable quantity cannabis; 1 x supply LSD; + Form 1 (possess LSD, cultivate cannabis, goods in custody, possess prohibited drug18y with a NPP of 12y.
Following the execution of a search warrant on applicant's premises, police seized 19 vials of LSD in liquid form with a total weight of 196 grams (98 times the large commercial quantity); 101 sheets of blotting paper containing 1,000 heart-shaped logos printed on each sheet; 90.6 grams of ecstasy (72 times indictable quantity). The Form 1 offences related to 3 cannabis plants, 10 pieces of blotting paper impregnated with LSD, 6 white capsules containing Nexus; $2,340 in cash. The applicant admitted possession of these items. Later that same day, members of the Federal Police executed a search warrant at another residence. The drugs police found there were alleged by the occupant to have been produced on the instructions of the applicant.
Aged 54 - early guilty plea - prior good character - good prospects of rehabilitation.
Imposition of sentence in excess of maximum penalty - failure to comply with Pearce - relevance of standard NPP.
Appeal allowed to reduce sentences for lesser offences; overall sentence remains unchanged.

 

174


ROBINSON, Harry - CCA, 22.6.2006 - 162 A Crim R 88
Spigelman CJ, Simpson & Johnson JJ
Citation: Robinson v R [2006] NSWCCA 192
Conviction appeal.
Murder.
The deceased was a sentenced prisoner detained at the Junee Correctional Centre. He had been sentenced to a term of imprisonment for child sexual assault offences. On the evening of 17.9.1998, he was severely beaten in his cell & died within minutes as a result of injuries sustained in the beating.
The appellant, who was a prisoner detained in the Centre, was charged with the murder of the deceased. Following a trial before Barr J & a jury, he was convicted of murder on 20.4.2000 & sentenced to imprisonment for a term of 22y with a NPP of 15y: see R v Robinson [2000] NSWSC 541. This trial followed an earlier trial that culminated in the jury being discharged.
The appellant was successful in his appeal to the CCA & his conviction was quashed & a new trial was ordered: see R v Robinson [2003] NSWCCA 188. Following a trial before Greg James J & a jury, the appellant was convicted of murder on 12.3.2004 & sentenced to 22y with a NPP of 14y: see R v Robinson [2004] NSWSC 465. That sentence commenced on 12.12.1999.
The instant appeal was against that conviction for murder.
Function & duty of trial judge in summing up to jury - trial judge leaves factual basis for conviction to jury which had not been advanced by Crown - whether unfairness to appellant giving rise to miscarriage of justice - adequacy of directions concerning evidence of prisoner witnesses called by Crown - whether "dangerous to convict" direction was required - whether verdict of guilty unreasonable.
Conviction appeal allowed: new trial ordered.

 

175


SEGAL, George - NSW SC, Hidden J
Citation: R v Segal [2006] NSWSC 621
Remarks on Sentence.
s.31 Financial Transaction Reports Act offences - further matters on s.16BA form.
Between 20.3.2000 & 27.6.2000, using his own name or that of a trust associated with him, the offender made 20 cash transfers in amounts of less than $10,000 to overseas bank accounts. These were undertaken by way of international fund transfers through banks in Sydney. Customer copies of the bank documentation were located in the offender's study during the execution of a search warrant at his residential premises. Between 10.4.2000 & 1.6.2000, a woman carried out transfers of cash in amounts of less than $10,000 to overseas bank accounts on behalf of the offender. The woman used her own name, as well as a false name. Telephone calls between the offender & the woman were lawfully intercepted, in which the offender sought the woman's availability to conduct the transfers & arrangements were made. Other intercepted calls revealed that the woman was receiving payments from the offender for making the transfers on his behalf. The offender's fingerprints were identified on 3 bank transfer documents held by the bank.
Guilty pleas - assistance to authorities.
Sentenced to concurrent terms of 2y.

 

176


DARKAN, DEEMAL-HALL & McIVOR - HCA, 22.6.2006 - 227 CLR 373; 80 ALJR 1250
Citation: Darkan v The Queen; Deemal-Hall v The Queen; McIvor v The Queen [2006] HCA 34
On appeal from the SC of Qld.
Common intention to prosecute unlawful purpose - aiding the commission of an offence - counselling the commission of an offence - assault causing death - appellants tried together & convicted of murder - where Crown case relied on ss.7, 8 & 9 Criminal Code (Qld) - jury directed by trial judge that for the purpose of ss.8 & 9 Criminal Code (Qld) "a probable consequence" was one which was "a real possibility or a substantial chance or a real chance" - meaning of "a probable consequence" - whether "probable" connotes something more than "possibility" or "real possibility" or "real chance" - whether jury misdirected - application of proviso under s.668E(1A) Criminal Code (Qld) - whether "substantial miscarriage of justice" has actually occurred - whether trial fundamentally flawed - relevance of unknown mode of jury reasoning - relevance of fact that misdirection concerned elements offences charged - proviso not considered by CCA - whether High Court should consider proviso in the circumstances - role of CCA - role of High Court.
Appeal dismissed.

 

177


OSMAN, Abass - CCA, 22.6.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Osman v R [2006] NSWCCA 196
s.5F application against refusal to order separate trial; refusal to separate indictment.
Series of murders.
There are several co-accused. The applicant is alleged to have been the driver during one of the shootings.
Whether offences were part of a series of offences of same or similar character - whether matters ought to be heard & determined separately in the interests of justice - whether cross-admissibility determinative of whether there was a series of offences - whether risk of guilt by association - whether directions can confine use of evidence.
Appeal dismissed.

 

178


MORRIS, Leon Glen - CCA, 23.6.2006
Giles JA, Grove & Hidden JJ
Citation: Morris v R [2006] NSWCCA 199
Sentence appeal (extension of time).
Malicious wounding.
3y with a NPP of 1y 8m.
The applicant & the victim were living in premises rented in the name of the victim. The applicant was just into his 40's & the victim was aged 34. One evening, the applicant's dog went into the victim's bedroom & urinated on his bed. The victim was angry & the following day told the applicant to keep his dog outside until it was toilet trained. The same day, the victim was in his bedroom when he heard the dog inside. He screamed out to the applicant to get his dog out of the house. The applicant then entered the victim's bedroom with a large kitchen knife & stabbed the victim. The victim suffered wounds to his hands, forearms & one leg. The wounds were significant but not deep, 3 being fairly superficial with 2 being more serious. The victim recovered from his wounds, received counselling for some time & did not appear to have any permanent emotional problem.
Offence out of character - failure to express remorse in any real sense - psychological detachment.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 2y 3m with a NPP of 1y 2m.

 

179


MIZZI, Skye Amber - CCA, 23.6.2006
Grove, Hidden & Kirby JJ
Citation: Mizzi v R [2006] NSWCCA 194
Sentence appeal.
Ongoing supply of heroin: + Form 1 matter.
3y with a NPP of 18m to be served by way of PD.
The offences occurred during the course of an undercover police operation directed at the applicant's partner & members of his family. An undercover officer arranged to buy heroin by contacting the number of a mobile phone to which both the applicant & her partner had access. The 3 transactions constituting the offence of ongoing supply took place on 15, 17 and 28 September 2004. The form 1 offence was committed on 22 September.
Aged 20 at time of offences - no priors - strong subjective features.
Whether sentence manifestly excessive.
Appeal dismissed.

 

180


BARBARO, Guiseppe - CCA, 3.5.2006
McClellan CJ at CL, Hall & Latham JJ
Citation: Barbaro v R [2006] NSWCCA 180
Sentence appeal.
Supply methylamphetamine; + Form 1 offence (supply methylamphetamine).
6y with a NPP of 4 y.
Guilty plea. The applicant rang his son & asked him to supply the applicant with 300 methylamphetamine tablets. The son told the applicant he could get 1,000 at a time & after some negotiations the applicant agreed to pay him for 1,000 tablets. Before he was arrested, the applicant managed to distribute 300 of the tablets. The rest were recovered. The weight of the 1,000 tablets was close to 250 grams ($10 to $12 per tablet). In relation to the matter on the Form 1 involved the applicant arranging to supply his son with methylamphetamine in powder form consisting of a total weight of approx 7ozs. The applicant arranged for another person to take the drugs to his son. That person was arrested at Sydney airport with 188 grams (approx 7ozs) of methylamphetamine secreted on his person.
Whether correct application of s.21A - whether error in taking criminal history into account as aggravating feature - parity - whether matter on Form 1 correctly taken into account - whether insufficient weight given to family hardship - whether sentence manifestly excessive.
Appeal dismissed.

 

181


KJH - CCA, 22.6.2006
McClellan CJ at CL, James & Hall JJ
Citation: KJH v R [2006] NSWCCA 189
Sentence appeal.
2 x incite act of indecency with person under 10; 2 x sexual intercourse with person under 10; 2 x aggravated indecent assault upon person under 10; 1 x commit act of indecency upon person under 10.
Total sentence of 12y with a NPP of 8y.
The applicant was charged with 8 counts of sexual misconduct upon his natural daughter during a period of a little more than a year. He pleaded not guilty. The jury returned verdicts of guilty on 7 counts & a verdict of not guilty on the remaining count. The complainant was aged 7 & 8 at the time of the offences.
Aged 40 at time of sentencing - minor criminal history - no previous imprisonment.
Whether error in determining maximum penalty applicable under s.66A - whether mis-statement, later explicitly corrected, indicates that judge fell into error & applied wrong maximum penalty - good prospects of rehabilitation - special circumstances - whether sentence manifestly excessive.
Appeal allowed: new total sentence of 10y with a NPP of 6y.

 

182


CANTARAKIS, Daniel Robert - CCA, 19.6.2006
McClellan CJ at CL, Hall & Latham JJ
Citation: Cantarakis v R [2006] NSWCCA 184
Sentence appeal
2 x supply cannabis.
Total sentence of 22m with a NPP of 18m.
The applicant pleaded guilty to the above offences. The trial judge directed a verdict of not guilty in relation to an additional charge (possess pseudoephedrine).
Aged 30 at time of sentence - gambling problem - no priors.
Guilty pleas - whether error in trial judge characterising applicant as principal organiser - whether error in determining role of applicant compared with another co-accused - whether error in partial accumulation of sentences - whether sentences excessive.
Appeal dismissed.

 

183


ADAMS, Haik Aramice - CCA, 27.4.2006
McClellan CJ at CL, James & Hall JJ
Citation: Adams v R [2006] NSWCCA 150
Sentence appeal.
1 x knowingly take part in manufacture of commercial quantity methylamphetamine; 1 x supply methylamphetamine.
Total sentence of 4y with a NPP of 2y.
The applicant was charged & sentenced with 2 co-offenders.
Parity - degree of involvement - personal circumstances - guilty plea - backdating of term of imprisonment - influence of prior convictions - whether sentence manifestly excessive.
Appeal dismissed.

 

184


KANG, James - CCA, 16.6.2006
YUN, Chi Yeong
McClellan CJ at CL, Hall & Latham JJ
Citation: Kang and Yun v R [2006] NSWCCA 187
Sentence appeals.
Kang: AOABH - 9m FT; malicious destruction of property - 3m (accumulated).
Yun: AOABH - 12m FT.
Kang, who was a family friend, lured the 19 year old victim to Bobbin Head where he, Yun & a man by the name of Lee assaulted her. Yun dragged the victim from the car, kicked her, hit her & repeatedly tripped her to the ground. Kang hit her on the head with his knuckles & Lee slapped her face, hit her & kicked her shin. Yun told her: "You are not like a human, you are like an animal" & made her lie face down on the ground while he berated her. The teenager suffered severe bruising to much of her body. Two nights later, the 3 assailants went to the victim's home, where Kang smashed her CD player because he thought she was not changing her ways quickly enough. Yun told police he had been trying to help the victim's parents exert some authority over her, in view of her "unacceptable behaviour". Yun admitted recruiting both Kang & Lee.
Importance of general deterrence where offence committed in order to reinforce cultural mores within discrete community.
Kang: Appeal dismissed.
Yun: Appeal allowed; resentenced to 12m.

 

185


KAIFOTO, Paea Teaupu (aka John Teaupa) - CCA, 19.6.2006
Grove, James & Simpson JJ
Citation: Kaifoto aka Teaupa v R [2006] NSWCCA 186
Conviction and sentence appeal.
Following a ruling by the presiding judge Dodd DCJ concerning intended use of evidence on the basis of tendency or coincidence, the appellant was tried successively before his Honour & juries on 2 indictments involving different female victims.
1st indictment: 2 x AOABH; 1 x common assault; 4 x aggravated sexual assault.
2nd indictment: 1 x sexual intercourse without consent; 1 x AOABH; 1 x detain for advantage.
For both groups of offences, the overall effective sentence amounted to 12y with a NPP of 9y.
Relationship evidence admitted - whether breach of requirements concerning tendency or coincidence evidence - delay in prosecution - previous acts of violence against complainant - adequacy of directions - whether sentence excessive - intention stated by sentencing judge.
Conviction appeal dismissed.
Sentence appeal allowed. Sentencing orders varied to achieve intention stated by sentencing judge - new overall effective sentence of 10 y with a NPP of 7 y.

 

186


VU, Tien Hung - CCA, 22.6.2006
James, Buddin & Hall JJ
Citation: Vu v R [2006] NSWCCA 188
Sentence appeal.
1 x offer to supply large commercial quantity heroin; 1 x supply commercial quantity heroin; + Form 1 (1 x supply commercial quantity heroin).
Total sentence of 14y with a NPP of 11y.
Standard NPP's where plea of guilty - approach to be taken - offences assessed by sentencing judge in the middle range of objective seriousness - relevant matters in assessment - whether gambling & drug addiction relevant and, if so, assessed - whether offer to supply heroin to be treated in the assessment as objectively serious as an actual supply of heroin - in assessment of objective seriousness whether error in taking into account other offences - mitigating factors - whether taken into account - special circumstances - finding warranted.
Appeal upheld in relation to the total NPP: NPP reduced by a period of 2y.

 

187


MSK - NSW SC, Hidden J, 5.4.2006
MAK
MMK
Citation: R v MSK; R v MAK; R v MMK [2006] NSWSC 237
Remarks on Sentence.
Sexual offences upon young teenage girls.

 

188


TALEB, Tarek - CCA, 13.4.2006
Grove, Simpson & Howie JJ
Citation: Taleb v R [2006] NSWCCA 119
Conviction appeal.
Malicious shooting with intent to cause GBH.
Whether summing-up lacked balance & whether unfair - function of trial judge in directing jury - permissible limits of judge's comment on facts - undermining of defence case in summing-up - substantial miscarriage of justice.
Appeal allowed: new trial ordered.

 

189


GARDINER, Steven - CCA, 21.6.2006 - 162 A Crim R 233
McClellan CJ at CL, James & Simpson JJ
Citation: Gardiner v R [2006] NSWCCA 190
Conviction appeal.
1 X unauthorised possession of 5 firearms; 4 X unauthorised possession of various prohibited weapons.
Total of 5y with a NPP of 3 y.
The firearms & weapons were found during a search of a storage unit.
Whether verdicts inconsistent - subpoenas - identity of police informers - whether legitimate forensic purpose - public interest immunity - whether defence could show that desired evidence would help demonstrate innocence - whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location - whether admission of evidence led to substantial miscarriage of justice - whether directions complied with ss.116 & 165 Evidence Act.
Appeal allowed: new trial ordered.

 

190


VUNI, Paonga - CCA, 1.6.2006
Tobias JA, James & Hoeben JJ
Citation: Vuni v R [2006] NSWCCA 171
Sentence appeal.
1 x manslaughter.
10y with a NPP of 7 y.
The applicant faced trial on an indictment containing 2 counts: aggravated BE&S, and murder.
The jury found him not guilty of those counts but guilty of manslaughter in relation to the 2nd count.
The deceased died from a gunshot to the head. There was no issue at trial as to whether or not the applicant shot the deceased. He admitted that he had done so & admitted that he fired the shot with intent to kill & that he aimed the gun at the deceased's head. There was evidence from an independent witness sitting in his car in the carpark. He said he had a full view of the deceased standing at the doorway of the premises. He gave evidence of not witnessing any provocation on the part of the deceased. He said that while he was watching the deceased, the deceased had his one hand on the door and the other on the handle of a baby's pram.
Whether sentence manifestly excessive - limited value of statistics & sentences in other cases for this kind of offence - wide discretion of sentencing judge - whether error demonstrated.
Appeal dismissed.

 

191


RONEN, Ida - CCA, 19.4.2006 - 161 A Crim R 300
RONEN, Nitzan
RONEN, Izhar
Spigelman CJ, Kirby & Howie JJ
Citation: R v Ida Ronen, Nitzan Ronen, Izhar Ronen [2006] NSWCCA 123
Sentence appeal; and
Crown appeal.
Ida Ronen: conspiracy to defraud Commonwealth - 8 y with a NPP of 4 y.
Nitzan Ronen & Izhar Ronen: conspiracy to defraud Commonwealth - 8 y with a NPP of 5 y.
Tax fraud. The applicants engaged in premeditated & complex methods devised for the commission of the offences. A substantial amount of cash income was concealed from the Commonwealth.
There was a change to statutory provisions after the offences but before the committal. The new provisions carried a reduced penalty.
Seriousness of offences - previously unblemished characters - extensive philanthropy - remorse.
Whether change to provisions should be taken into account in sentencing - whether trial judge erred in imposing partially cumulative sentences - whether sentences manifestly excessive.
Crown appeal dismissed.
Sentence appeal dismissed.

 

192


McARTHUR, Scott Alexander - CCA, 23.6.2006
Giles JA, Grove & Hidden JJ
Citation: McArthur v R [2006] NSWCCA 200
Sentence appeal.
Armed robbery causing GBH.
12y with a NPP of 9y.
The victim, a 26 year old British male in Australia on a working holiday, was waiting to use the public phone at Petersham Railway Station on a Sunday evening in order to phone his parents in Britain. While waiting, he used his mobile phone to contact his girlfriend in Sydney. Armed with an iron bar, the applicant came up behind him & struck him on the head and face, stole the victim's mobile phone & fled. The victim was taken by ambulance to hospital. He was found to have a large fracture from the right orbit through the nasal bones to the left side of his skull & underwent surgery. Four plates were inserted across the fracture from left to right skull. A little less than 2 hours after the offence was committed, police spoke to the applicant at Lewisham Railway Station where they found him to be aggressive & appearing to be intoxicated. They were at that stage unaware of what had occurred at Petersham. The applicant was identified through video surveillance tapes from cameras at Petersham Railway Station. A search warrant was executed & he was arrested & taken into custody. Substantial residual damage to victim.
Aged 27 - on parole at time of offending - not employed for 3 or 4 years, excuse being he had been drinking excessive amounts of alcohol with episodes of aggression - previous attempts at rehabilitation unsuccessful - substantial prior record but nothing approaching seriousness of above offence.
Whether sentence manifestly excessive.
Appeal dismissed.

 

193


JIN, Ming - CCA, 28.6.2006
Grove, Hidden & Kirby JJ
Citation: Jin v R [2006] NSWCCA 198
Conviction appeal.
2 x obtain money by deception.
3y with a NPP of 1y 9m.
The Crown case was that the victim was a married woman living in Australia with her 2 children & that her husband was a wealthy man who supported her but who was living in Hong Kong. The victim met the appellant at the Migrant Centre in Surry Hills & formed a relationship with him. The appellant asked the victim to loan some money to him to help him out in a business venture & she gave him $80,000 in cash. He later asked her to loan him #390,0000 in order to complete a contract with a medical manufacturing company. He said if he did not pay the money he would lose his $1.3 million deposit. The victim gave him $390,000. The appellant promised to return all the money he owed her once he returned from a short trip to China. Later the same day she gave him the $390,000 she saw the appellant at the Star City Casino & he told her he had sent the money to the manufacturer & that he would repay her on the Monday. The next time the victim heard from him was when he phoned her from overseas to say he had been arrested at Beijing airport & his assets had been frozen. She never heard from him nor saw him again. She realised she had been cheated by the appellant & called her husband who advised that she should report the matter to police. The appellant had in fact gone to Shanghai, not Beijing. He subsequently returned from China almost 4 years later & was arrested at the casino 2 days after that after he was seen there by the victim's friend. The appellant's case was that the money given to him by the victim was for some paintings.
Although the appellant was represented at trial, he was unrepresented at the appeal.
Complaints about conduct of trial - criticisms of evidence - no question of principle.
Appeal dismissed.

 

194


LODHI, Faheem Khalid - CCA, 13.4.2006
Spigelman CJ, McClellan CJ at CL, Sully J
Citation: Lodhi v R [2006] NSWCCA 121
Application for leave to appeal from refusal to quash charges of terrorism.
Terrorism offences.
The applicant was charged with collecting documents & seeking information in preparation for bombing. The applicant unsuccessfully challenged the validity of the charges.
Retrospectivity - statute establishing criminal offence - whether retrospective changes to offence provision apply to criminal proceedings already commenced - clear statement principle - s.8 Acts Interpretation Act 1901. Indictments - duplicity - Anti-Terrorist Legislation - preparatory acts - whether necessary to specify 'terrorist act'- whether necessary to specify the harm contemplated - failure to identify essential element of offence - whether indictment cured by statute - ss.101.4, 101.5, 101.6 Criminal Code - s.11 Criminal Procedure Act 1986.
Indictment quashed; matter remitted to Supreme Court.

 

195


STEER, Brian James - NSW SC, Whealy J, 22.6.2006
Citation: R v Steer [2006] NSWSC 642
Application to sever counts on the indictment; application for separate trials.
Murder; armed robbery.
The affidavit submitted in support of the application was that the deceased was found by Fire Brigade officers at premises they attended in the early hours of the morning of 14.2.2005. The post-mortem examination concluded that the cause of death related to wounds to the deceased's throat, including the severing of his carotid artery & trachea. Paragraph 4 of the affidavit then refers to the fact that on 18.2.2005 an armed robbery was committed on the ANZ bank & repeats the Crown allegation that it was the accused who committed that robbery & that the Crown case relies on surveillance footage within the bank to identify the accused as the offender. Paragraph 7 of the affidavit states that the defence will argue, inter alia, that the evidence of the robbery is not admissible in the trial for murder; alternatively, the defence will argue that if it is admissible, it should be excluded pursuant to the exercise of the Court's discretion: ss.135 & 137 Evidence Act).
Application to sever the 2 counts on the indictment refused; application for separate trials refused.

 

196


JUNG, Myoung Il - NSW SC, Hull J, 29.6.2006
Citation: R v Jung [2006] NSWSC 658
Judgment on admissibility of expert opinion evidence.
2 x murder.
Senior Counsel for the accused challenged the admissibility of expert evidence which the Crown had indicated it proposed to rely upon to establish the identity of the accused as the alleged offender. The Crown had served upon the accused's solicitors 2 reports of Dr Meiya Sutisno, consultant forensic anatomist. Dr Sutisno had undertaken a technique that has become known as 'face and body mapping'. That technique involved, in particular, a 'morphological analysis' by Dr. Sutisno which was said to be directed to determining visual similarities or differences in facial features on photographic images taken from a CCTV camera located at an ATM in Queensland in 1997 & still photographic images of the accused derived from forensic photographs taken by police on 8.11.2004. The issue was whether the opinion evidence of Dr. Sutisno was admissible under s.79 of the Evidence Act 1995 (NSW).
Quality of ATM images - distortion - poor resolution - lack of fine detail - motion blur - poor focus - police photographs - absence of information on view, distance, lighting.
Held: Opinion evidence of Dr Sutisno is admissible.

 

197


JUNG, Myoung Il - NSW SC, Hull J, 29.6.2006
Citation: R v Jung [2006] NSWSC 660
Judgment on admissibility of forensic photographic evidence.
2 x murder.
Senior Counsel for the accused informed the Court that there was a necessity for a ruling upon the admissibility of certain forensic photographs taken by police on 8.11.2004.
The issue of the admissibility of the photographic evidence involved a consideration of the Crimes (Forensic Procedures) Act 2000.
Matter referred to in s.103 Crimes (Forensic Procedures) Act 2000 - burden of proof - reasonable grounds for believing or suspecting - reliance placed by defence counsel upon provisions of ss.72 & 82 of the Act & regulations made under that Act.
Held: Forensic photographic evidence is admissible.

 

198


JUNG, Myoung Il - NSW SC, Hull J, 29.6.2006
Citation: R v Jung [2006] NSWSC 661
Judgment on admissibility of ERISP.
2 x murder.
Accused has no knowledge of & cannot speak English & was provided with an interpreter during the ERISP. Defence counsel contended that the Crown had not established that the accused had in fact understood what had been said to him during the ERISP & drew attention to particular aspects.
Truthfulness & reliability of admissions - impact of circumstances in which admission made on the actual reliability of the admission - vulnerabilities to be taken into account - discretion to exclude admissions - ss.85, 90 Evidence Act.
The Queen v Swaffield (1987) 192 CLR 1569 - R v Nikau, unreported NSWCCA, 14.10.1997 - R v Esposito (1998) 105 A Crim R 27 - R v Moffatt (2001) 112 A Crim R 201.
Held: The ERISP is admissible.

 

199


RAHME, Mouawad - CCA, 13.4.2006
Grove, Adams & Hislop JJ
Citation: Rahme v R [2006] NSWCCA 96
Sentence appeal.
Maliciously damage property by fire.
4y with a NPP of 1y 3m.
The applicant, suffering from a severe mental disorder & possibly the effects of an earlier suicide attempt, set fire to the family home, which he partly owned. The sentencing judge accepted that he had caused the fire due to his heightened emotional state, rather than for gain or revenge. At the time of the offence, the applicant was the subject of a telephone interim AVO prohibiting him from approaching the family home.
Aged 58 at time of offending - guilty plea - mental health & anger problems - family problems - good character -unlikely to re-offend - priors not stated.
Early guilty plea - utilitarian value - failure to specify discount.
Appeal allowed: resentenced to 3y with a NPP of 1y 3m.

 

200


LODHI, Faheem Khalid - NSW SC, Whealy J, 24.4.2006
Citation: R v Lodhi [2006] NSWSC 638
Judgment on application by Crown for an order requiring that a witness give evidence at trial.
Terrorism offences.
s.128(5) Evidence Act (NSW) - interests of justice: do they require witness to give evidence? Anti-Terrorism Act 1997 (Pakistan) - unfairness to person accused of terrorism offence in pending trial.
Order made that the witness is not required to give evidence in the trial.

 

201


LODHI, Faheem Khalid - NSW SC, Whealy J, 24.4.2006
Citation: R v Lodhi [2006] NSWSC 639
Judgment on application re indictment.
Terrorism offences.
In 2005, the accused pleaded not guilty to an indictment alleging the commission of a number of offences, including offences against ss.101.5 & 101.6 Criminal Code Act 1995. Counsel for the accused argued that the indictment was bad for duplicity in relation to counts 2, 3 & 4. The trial judge subsequently made a pre-trial ruling that the indictment did not contain overt or latent duplicities & that, accordingly, the prosecutor was not required to elect to narrow the scope of the charges. In January 2006, the Crown presented a fresh indictment & the accused pleaded not guilty to each of the 4 charges on the new indictment. Counsel for the accused then applied to quash the new indictment on the ground that they failed to specify all essential factual elements. The Crown sought leave to make a number of alterations to the indictment with a view to providing clearer particulars of the matters alleged. The trial judge ruled in favour of the Crown & against the arguments advanced by Counsel for the accused. An appeal against that ruling was taken to the CCA. The CCA ruled that the indictment was not bad for duplicity, however, it determined that the indictment failed to specify the necessary factual elements of the offence in relation to each charge & the indictment was quashed: see Lodhi v R[2006] NSWCCA 121. On 18.4.2006, the Crown presented a new indictment. The charge, in its new form, endeavoured to include the factual elements that the CCA had found to be lacking in the earlier indictment. Counsel for the accused immediately made a fresh application pursuant to s.17 Criminal Procedure Act 1986 to quash the new indictment.
Duplicity - essential factual ingredients - alteration in the essential nature of the Crown case.
Order refused: indictment to stand in its presently amended form.

 

202


LODHI, Faheem Khalid - NSW SC, Whealy J, 27.4.2006
Citation: R v Lodhi [2006] NSWSC 641
Judgment on application to exclude 'Brigitte'evidence.
Terrorism offences.
Counsel for the accused made an application that certain categories of evidence not be admitted at the trial, the essential nature of the application being that the evidence was not relevant within the meaning of s.55 Evidence Act (NSW) 1995. Counsel for the accused argued that, even if the evidence were relevant & otherwise admissible, it should be excluded under s.137 Evidence Act.
Risk of unfair prejudice - prejudice occasioned by intense media scrutiny.
Application to exclude 'Brigitte'evidence declined.

 

203


LODHI, Faheem Khalid - NSW SC, Whealy J, 11.5.2006 - 163 A Crim R526
Citation: R v Lodhi [2006] NSWSC 648
Judgment on application to exclude admissions made by accused to Messrs Ahmad and Altaf.
This application related to evidence given on 22.3.2006 by 2 witnesses during earlier pre-trial applications. The evidence had been given without objection at that time. Counsel for the accused indicated shortly before empanelment of the jury that he wished to object to the evidence being led at trial.
Admissions by accused - s.81 Evidence Act (NSW) 1995 - exception to hearsay rule (ss.65(1) & 65(2)(c) Evidence Act) - availability of witness - evidence admissible for non-hearsay purpose - s.136 Evidence Act - limitation order.
No basis under ss.135 or 137 Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name 'Faheem'.

 

204


LODHI, Faheem Khalid - NSW SC, Whealy J, 12.5.2006
Citation: R v Lodhi [2006] NSWSC 666
Judgment on application re evidence via video-link with Pakistan.
Terrorism offences. The basis of the application emerges from the proposition advanced on behalf of the accused that it is necessary and in the interests of justice that the evidence be taken in Pakistan & that it is as a consequence in the interests of justice for the Attorney-General to make an application for mutual assistance to the Pakistani authorities.
Consideration of s.39A Mutual Assistance in Criminal Matters Act 1987.
Audio-visual link evidence - Mutual Assistance in Criminal Matters Act 1987 - Certificate where evidence to be taken overseas - principles applicable.
Certified that it is in the interests of justice for the Attorney-General to make a request to Pakistan under part 2 of the Mutual Assistance in Criminal Matters Act 1987 that evidence be taken in Pakistan and broadcast to Australia via video-link from Sameer Khan Lodhi, Khalid Khan Lodhi, Arif Amanullah, Majed Khan and Athar Saeed.

 

205


LODHI, Faheem Khalid - NSW SC, Whealy J, 17.5.2006
Citation: R v Lodhi [2006] NSWSC 667
Judgment on application by accused for verdicts by direction.
Terrorism offences. Counsel for the accused submitted that in respect of counts 1, 3 & 4, the Crown was unable to prove that the acts allegedly committed by the accused were connected with preparation for a terrorist act; in relation to count 2, the Crown failed to prove that the act allegedly committed by the accused was in preparation for a terrorist act; and in respect of counts 1 & 3, the Crown failed to establish mens rea concurrent with the actus reus.
Application for directed verdicts refused.

 

206


LODHI, Faheem Khalid - NSW SC, Whealy J, 19.5.2006
Citation: R v Lodhi [2006] NSWSC 670
Judgment on cross-examination of accused in relation to asserted deliberately misleading material in exhibit 'VV'.
Terrorism offences. A contentious issue arose between the Crown & the defence in relation to an area of questioning raised in the cross-examination of the accused. The Crown sought to question the accused on the accuracy of a job application in which he had stated that he had been in full-time employment with Ausko World Constructions during a period of approx 2 years here in Australia when, in fact, for about 13 months of that time, the accused worked in Pakistan. The issue raised required an examination of the credibility rule & the exception to it in s.103 Evidence Act.
Lies - extent of credibility rule - meaning of substantial probative value.
Question allowed.

 

207


LODHI, Faheem Khalid - NSW SC, Whealy J, 31.5.2006
Citation: R v Lodhi [2006] NSWSC 672
Judgment on written directions to go to the jury and Crown's right to rely on lies as consciousness of guilt.
Terrorism offences.
Form of written directions - reference to 'a threat of action'- reference to various governments & foreign countries mentioned in relevant element in each count - reference to 'poison or poisons' in relation to count 4.
Lies as consciousness of guilt - circularity - need for independent or separate evidence to point to untruthfulness - lies confined to credibility issue.
Decision: Decline application to allow lies to be used as evidence of consciousness of guilt.

 

208


BP - CCA, 1.6.2006
SW
Hodgson JA, Adams & Johnson JJ
Citation: BP v R; SW v R [2006] NSWCCA 172
Conviction appeal.
Aggravated sexual intercourse without consent (in company).
SW: 2y suspended sentence.
BP: 3y GBB on count involving digital penetration; 3y with a NPP of 12m on count involving penile penetration.
The Crown case relied upon evidence from the complainant (16 years old at time of offences), her 11 year old cousin, her 14 year old second-cousin, her aunt, a medical practitioner & police officers.
Appellants aged 11 & 12 at time of offences - doli incapax - need for prosecution to prove beyond reasonable doubt that child between 10 & 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - whether directions adequate - whether jury's verdict reasonable.
Appeals dismissed.

 

209


JALATY, Margaret - NSW SC, Michael Grove J, 30.6.2006
Citation: R v Jalaty [2006] NSWSC 675
Remarks on Sentence.
Murder; maliciously administer a noxious thing so as to endanger life.
The accused administered a fatal dose of methadone to her four year old daughter in order to make her sleep while the accused entertained a male friend she had met on the internet. Some months previously, the accused had administered methadone to her young daughter, who was then aged 3 years and 10 months. On that occasion, the child was admitted to hospital suffering cardiac respiratory arrest. It was explained to the accused on that occasion that it was dangerous to give methadone to her young daughter and that it could cause death.
Sentence: total of 20y with a NPP of 15y.

 

210


WILLIAMS, Bryan Charles - CCA, 23.2.2006
SAUNDERS, Geoffrey Allen
Basten JA, Howie & Hall JJ
Citation: Williams v R; Saunders v R [2006] NSWCCA 33
Sentence appeal.
Williams & Saunders: 1 x aggravated kidnapping (in company) - not guilty pleas entered.
Applicant Saunders pleaded guilty to one count of cultivate cannabis (26 plants); + Form 1 (deemed supply of cannabis leaf - 753.6 grams).
Each applicant sentenced to 4y with a NPP of 2y.
The 14 year old male victim broke into Saunders' garage to steal a motorcycle that belonged to Williams. Saunders chased the victim but was unable to catch him. A neighbour called the police. When police arrived, they discovered cannabis plants being hydroponically grown in the garage. Saunders was charged with cultivation & deemed supply of cannabis & released to bail. Two days later, he & his wife encountered the victim & drove him back to their house. Saunders contacted Williams, who arrived at about 4pm. The 2 men detained the victim until shortly after 6pm in an attempt to discover the victim's accomplices in the break-in. During that time, the victim was driven to a forest & forced to dig a hole. Saunders told him it was to be his bed for the night. Although the sentencing judge was satisfied that the victim would have been frightened & intimidated, he found that the applicants had no intention of harming the victim.
Offer of applicant Williams to plead guilty - same sentence imposed on Williams & co-offender - Williams argued there should not have been a parity of sentences.
Williams: Appeal allowed - resentenced to 2 y with a NPP of 1 y.
Saunders: Appeal dismissed.

 

211


BARRETT, Stephen - CCA, 14.7.2006
Hunt AJA, Adams & Latham JJ
Citation: Barrett v DPP [2006] NSWCCA 210
Stated case.
BE&S - guilty plea.
12m suspended sentence.
Revocation of s.12 bond where sentence originally imposed contrary to law - whether magistrate exercising power under s.43 Crimes (Sentencing Procedure) Act 1999 when imposing different sentence after revocation - whether revocation appealable under s.11 Crimes (Local Courts Appeal and Review) Act 2001.

 

212


TENNANT, Donna Maree - CCA, 10.7.2006
McClellan CJ at CL, James & Hoeben JJ
Citation: Tennant v R [2006] NSWCCA 208
Conviction appeal.
Knowingly take part in supply of large commercial quantity of methylamphetamine.
The Crown case at trial was that the appellant had knowingly taken part in the supply of a large commercial quantity of methylamphetamine by knowingly taking part in acquisitions of quantities of the drug, totalling more than the large commercial quantity of one kilogram, by her de facto husband Brett Harrison from a man named Richard Walsh & Walsh's de facto wife Melinda Love, which were then used by Harrison in making supplies to his customers. An alternative Crown case, in the event of the Crown being unable to prove that the appellant had knowingly taken part in the supply of not less than a large commercial quantity of the drug, was that the appellant had knowingly taken part in the supply of some lesser quantity of the drug. The principal Crown witness at the trial was Melinda Love, who had been granted immunity from prosecution by the Attorney-General.
Order of Counsels' addresses - defence counsel addressing first - separation of jury during retirement - whether miscarriage of justice.
Appeal dismissed.

 

 

213



 

ALCORN, Brian Dean - CCA, 10.7.2006
McClellan CJ at CL, James & Hall JJ
Citation: Alcorn v R [2006] 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.

 

214


AHMAD, Walid Mohamad - CCA, 5.6.2006
McClellan CJ at CL, Hislop & Johnson JJ
Citation: Ahmad v R [2006] NSWCCA 177
Sentence appeal.
Indictment 1: 1 x manslaughter
Indictment 2: 1 x maliciously inflict GBH; 1 x malicious wounding; 1 x AOABH (in company).
Total sentence of 10y 4m with a NPP of 7y.
The offender shot the deceased. The deceased suffered 6 gunshot wounds to the chest. He was on the ground at the time the shots were fired.
Aged 30 - guilty plea at earliest opportunity - 25% discount - born in Lebanon - IQ falls in bottom 2% of population - head injury when a child - possible impairment of frontal lobe function - difficulty in thought planning - tendency to act on spur of the moment - one prior conviction.
Excessive self-defence - agreed statement of facts - plea agreement - agreed NPP - agreed discount for guilty plea - whether judge should have sentenced consistently with plea agreement - whether judge made finding contrary to agreed statement of facts - whether sentence appropriate having regard to objective criminality & subjective circumstances - whether sentences manifestly excessive - whether Crown on appeal bound by position of Crown at first instance.
Appeal dismissed.

 

215


SEYMOUR, Michael Peter - CCA, 18.7.2006 - 162 A Crim R 576
Hunt AJA, Simpson & Rothman JJ
Citation: Seymour v R [2006] NSWCCA 206
Conviction appeal.
Detain female for advantage (to assault); armed with instrument with intent to commit indictable offence (assault).
Total sentence of 5y with a NPP of 3y 9m.
The appellant & his co-accused were charged with the above offences. The complainant, a prostitute, had sexual intercourse with the appellant, who then refused to let her leave his apartment & told her that he was going to cut off her toes with a bolt cutter. When she pleaded with him to let her go, he said 'I just got out of gaol five days ago, you'll dog me to the cops'. This evidence was not objected to by appellant's counsel, who cross-examined the police officer in charge of the investigation to elicit evidence that the appellant's criminal record involved 'a fair amount of reading', was 'fairly extensive', involved 'a whole lot of street offences'& the appellant was 'a failed crim', but that, so far as the officer knew, it did not include any offences for violence against women. At the end of the Crown case, on the application of both accused, the judge gave a Prasad direction, informing the jury of their right to bring in a verdict of not guilty at that stage without hearing more. The jury returned a verdict of not guilty for the co-accused on both charges but indicated that they would like the case against the appellant to continue. The appellant did not give evidence or call evidence on his behalf. When addressing the jury, counsel for the appellant referred to the appellant's record as being 'a very long document'& to the appellant being a 'property crim'.
Manner in which defence conducted - assertion that trial unfair - miscarriage of justice - verdicts unreasonable.
Appeal allowed: new trial ordered.

 

216


DONNELLY, Timothy Michael - CCA, 18.7.2006
Handley JA, Hulme & Kirby JJ
Citation: Donnelly v R [2006] NSWCCA 212
Sentence appeal.
Possess trafficable quantity MDMA (ecstasy); possess trafficable quantity cocaine.
Total sentence of 6y 9m with a NPP of 4y.
The applicant arrived in Sydney on a flight from London via Singapore. After clearing Customs, he went to a flat in Neutral Bay. Two days later, he attended the Royal North Shore Hospital, complaining of severe abdominal pain. He told medical staff that before leaving London he had swallowed a number of pellets containing ecstasy. He said he had already regurgitated a small number of the pellets. An x-ray revealed a large number of objects in the applicant's stomach & intestines. Police were notified & the applicant underwent surgery to remove the pellets. The operation was witnessed by the police, who took possession of the 65 pellets that were removed. Later that evening, police searched the applicant's flat where they found 12 pellets that he had regurgitated. Each of the 77 pellets weighed about 5mgs. One pellet contained 4.7 grams of cocaine & the remaining 76 contained ecstasy in powder form. The applicant pleaded guilty, however, he claimed that the drugs were for his own personal use.
Failure of sentencing judge to give reasons for not finding that drugs imported for applicant's own personal use - whether sentence imposed exceeded available statutory maximum - whether sentence excessive.
Appeal dismissed.

 

217


SABA, Ronnie - CCA, 12.7.2006
Handley JA, Kirby & Hoeben JJ
Citation: R v Saba [2006] NSWCCA 214
Crown appeal.
2 x supply MDMA (ecstasy); 1 x supply cocaine; 1 x supply cannabis; 1 x supply ketamine; + 5 further charges on a Form 1.
Total sentence of 18m with a NPP of 12m to be served by way of PD.
The respondent was involved in the wholesale supply of substantial quantities of various drugs throughout a number of Sydney suburbs. In his remarks on sentence, the judge noted that the respondent had promptly submitted himself to rehabilitation & this had been successful. He further noted that he had taken the Form 1 matters into consideration on the 1st count. The respondent had spent 9m in full-time custody whilst on remand. The rehabilitation relied on was substantially undertaken during the period of full-time custody, so there was a potential for some element of double-counting.
Rehabilitation by itself not an exceptional circumstance: R v Thompson (NSWCCA 4.4.1991, unreported).
Whether sentence manifestly inadequate - seriousness of offences - need for full-time custody - failure to sentence in accordance with principles in Pearce v The Queen (1998) 194 CLR 610.
Appeal allowed: sentenced to a total of 3y with a NPP of 18m to be served by way of full-time imprisonment.

 

218


MENCARIOUS, Ashraf - NSW SC, Michael Grove J, 17.7.2006
Citation: R v Mencarious [2006] NSWSC 719
Remarks on Sentence.
Murder.
The prisoner beat his wife over the head with a bottle a number of times, rendering her helpless, and then suffocated her.
Born in Egypt - came to Australia as a child - first marriage failed - 2 children from that marriage - marriage to 2nd wife (deceased) 'arranged' by parents - baby boy from that marriage - no sign of remorse or contrition following killing of wife.
Sentenced to 26y 8m with a NPP of 20y.

 

219


IMNETU, Jousef Tecle - CCA, 30.6.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Imnetu v R [2006] NSWCCA 203
Conviction appeal.
Murder.
26 y with a NPP of 20y.
The appellant & a man named Basheeruddin Mohamed force-fed the deceased with heroin, struck him over the head with a baseball bat, then strangled him & dumped his body in a wheelie bin. Basheeruddin Mohamed allegedly owed the deceased $20,000 loaned to him for a bridging visa. Before his involvement in the deceased's murder became known, Basheeruddin Mohamed was deported for being in breach of his student visa.
Joint criminal enterprise - directions on inferences & circumstantial evidence - directions given by way of example - Crown's comments on good character - whether miscarriage of justice.
Appeal dismissed.

 

220


LAB - CCA, 30.6.2006 - 162 A Crim R 517
McClellan CJ at CL, Hoeben & Johnson JJ
Citation: LAB v R [2006] NSWCCA 202
Conviction and sentence appeal.
1 x assault; 5 x aggravated sexual assault.
The appellant perpetrated the above offences upon his adopted daughter over a 4 year period, starting when the complainant was aged a few months short of 14 years. The Crown case rested upon the evidence of the complainant. Her evidence in respect of the last sexual assault count was corroborated by DNA evidence. The complainant was aged 20 when she gave evidence.
Admission of evidence - whether DOCS documents admissible - whether Crown should have been permitted to split its case - application of the proviso - whether directions sufficiently corrected submissions regarding corroboration & motive to lie - whether directions failed to warn against reasoning towards guilt from findings on individual counts - whether sentence manifestly excessive.
Appeal dismissed.

 

221


KNP - CCA, 20.7.2006 - 67 NSWLR 227
McClellan CJ at CL, James & Hall JJ
Citation: KNP v R [2006] NSWCCA 213
Conviction appeal.
4 x indecent assault; 3 x homosexual intercourse; 2 x act of gross indecency.
The above offences were committed by the appellant upon his brother's stepson, starting when the complainant was aged 9 years.
Whether evidence of contemporaneous complaint admissible as prior consistent statement - evidence admitted as a response to prior inconstant statement damaging to complainant's credit - Inconsistency inferred from conduct - Crown Prosecutor's address - whether inappropriate comments caused miscarriage of justice - comments seeking to confine impact of warnings given to jury in summing up - invitation to speculate in absence of evidence - personal opinion - breach of obligations to present Crown case in impartial & fair manner - impact of closing address by defence counsel & trial judge's summing up - directions on caution regarding complainant's evidence because of delay & lack of corroboration - whether trial judge's words diminished significance of warnings given.
Appeal dismissed.

 

222


BOUNDS, Matthew David - HCA, 20.7.2006 - 80 ALJR 1380
Citation: Bounds v The Queen [2006] HCA 39
On appeal from the SC of WA.
Appeal against conviction.
Appellant faced trial on an indictment charging 2 offences. The 1st count, possession of child pornography, alleged an indictable offence & the 2nd count, possession of indecent or obscene articles, was a simple offence only & was wrongly joined in the indictment. No objection was taken at trial.
Whether substantial miscarriage of justice because of wrongful joinder of 2nd count - whether conviction on 1st count should be quashed because the jury had before it evidence on 2nd count which, but for the wrongful joinder of 2nd count, would not have been admissible - whether the whole indictment was a nullity.
Appeal dismissed.

 

223


MANSFIELD, Nigel Cunningham - HCA, 20.7.2006 - 226 CLR 486;80 ALJR 1366
Citation: Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38
On appeal from the SC of WA.
Confiscation of property - freezing order - where DPP (WA) may apply ex parte for a freezing order pursuant to s.41 Criminal Property Confiscation Act 2000 (WA) - where Court "may" make freezing orders pursuant to s.43 - where no express statutory restrictions imposed upon the permissive power to grant freezing orders under s.43 - whether relevant that proceedings under the Act are "civil proceedings" by reason of s.102 - whether DPP is able to give an undertaking as to damages - whether limitation of liability provision in s.137 would render futile the provision of an undertaking as to damages by the DPP - whether Court has power to require the DPP to provide an undertaking as to damages when exercising the statutory power under s.43 of the Act to make a freezing order.
Variation of freezing order - where power to vary freezing orders derived by implication from ss.45 & 48 Interpretation Act 1984 (WA) - where legal expenses not referred to in s.45 which provides that the Court may provide for meeting "reasonable living and business expenses" in a freezing order - whether Court has power to vary a freezing order to allow for the payment of reasonable legal costs.
Jurisdiction of courts - relationship between general law powers of court & jurisdiction conferred by the statute - where s.43 expressed in permissive terms without express statutory restrictions - whether equitable principles applicable to granting discretionary remedies at general law may be imported into exercise of jurisdiction under s.43 of the Act.
Statutory construction - whether appropriate in legislation to draw negative implications from prior legislation on the same subject matter - whether appropriate in construing statutory provisions to draw negative implications from other provisions in the Act - whether s.137 of the Act limits the power conferred by s.43 to make freezing orders - whether express words of s.45 limit the power to vary freezing orders.
Appeal allowed with costs.

 

224


BOLUS, James Herbert - CCA, 15.6.2006
McClellan CJ at CL, Hulme & Adams JJ
Citation: Bolus v R [2006] NSWCCA 182
Conviction appeal.
Conspiracy to import commercial quantity cocaine (120kgs). See also Cornwell v R; R v Cornwell [2006] NSWCCA 116.
10y with a NPP of 6y.
Appellant & 4 others stood trial for the above offence. The jury returned verdicts of guilty in relation to the appellant & a man named Cornwell but were unable to agree on verdicts in relation to the remaining men. This was the 2nd trial the appellant & the 4 men faced for this offence. In the 1st trial there were 9 accused & the jury returned guilty verdicts in relation to 2 accused, not guilty verdicts in relation to 2 other accused & were unable to reach verdicts regarding the remaining 5 accused. The instant appeal was heard together with the appeal in the matter of Cornwell. The Crown case at trial alleged that the accused were involved in a conspiracy to import cocaine from Columbia on a boat called the 'Flaning'. The Australian arm of the venture was alleged to have been organised by Cornwell & a man named Lawrence. It was alleged that the present appellant had been enlisted by Lawrence to assist in the purchase of a motor vehicle capable of towing a boat, described as a 'Zodiac craft'. It was alleged that the purpose of enlisting the appellant was to ensure that there was no discernible association between Lawrence & the purchase of the boat & MV.
Whether trial judge failed to direct jury as to consciousness of guilt - whether relevance of ROI was merely to strengthen an otherwise strong Crown case - application of Rule 4 - whether tactical reasons for not requesting a direction on consciousness of guilt - conscious & informed decision not to seek a redirection - whether verdict unreasonable - meaning of hypothesis consistent with innocence - whether on the whole of the evidence it was open to the jury to conclude that the appellant knew of the planned importation - evidence of recorded conversations - whether an inference available on the knowledge of the accused.
Appeal dismissed.

 

225

 

HARRISON, Phillip Dale - NSW SC, Michael Grove J, 21.7.2006
Citation: R v Harrison [2006] 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.

 

226


ABBRUZZESE, Phillip = CCA, 6.7.2006
Grove, Hidden & Kirby JJ
Citation: R v Abbruzzese [2006] NSWCCA 207
Interlocutory appeal by Crown.
Make false representation in order to obtain Commonwealth benefit; obtain financial advantage by deception.
Plea of guilty - offender indicates intention to traverse plea of guilty to sentencing judge - leave to withdraw plea of guilty - order made in absence of evidence - Crown entitlement to procedural regularity.
Appeal allowed: matter remitted to DC to be dealt with according to law.

 

227


OLDFIELD, Daniel Gerard - CCA, 25.7.2006 - 163 A Crim R 242
Giles JA, Grove & Hidden JJ
Citation: Oldfield v R [2006] NSWCCA 219
Conviction appeal.
Sexual intercourse without consent (aggravated, maliciously inflicting ABH).
10y with a NPP of 6y.
The appellant faced trial on four counts of aggravated sexual assault under s.60J(1) Crimes Act1900. The jury found him guilty on counts 1 & 3 and not guilty on counts 2 & 4.
One episode of sexual activity - whether verdicts inconsistent - whether logical & reasonable explanation for differentiation - whether direction required that if reasonable doubt in relation to one or more counts that must be taken into account in assessing complainant's truthfulness & reliability generally - failure by accused's counsel to put instructions on certain matters to complainant - Crown Prosecutor's cross-examination of accused included questions about not putting the matters - implicit that accused's evidence of those matters was made up - whether cross-examination permissible - whether warning required that may be explanation for failure to put instructions which did not reflect upon accused's credibility - whether miscarriage.
Appeal allowed: new trial ordered.

 

228


DI NATALE, Salvatore v KELLY Andrew - CCA, 30.6.2006
DI NATALE, Phillip v KELLY, Andrew
Grove & Hall JJ, Smart AJ
Citation: Di Natale & Anor v Kelly (an officer of the RSPCS, NSW) [2006] NSWCCA 201
Stated Case.
Service of summons by post.
• Whether the time prescribed for the service of a summons prescribed by the provisions of s.63(2) of the Justices Act 1902 is a mandatory requirement.
• Whether service of a summons by posting it less than 28 days constitutes a contravention of s.63(2) of the Justices Act 1902 which has the effect of invalidating service of a summons served by post.
• Whether the requirements of s.63(2) may be waived by a person to whom a summons is directed.
• If such a waiver is permitted as a matter of law, whether the appellants, in fact, waived their right to object to non-compliance with respect to the summonses served upon them.
Questions of law answered 'yes'. Orders made remitted the matter to the DC for further hearing; costs by way of case stated awarded in favour of the appellants against the respondent.

 

229


TAUSZIK, Anthony v Gosford City Council - CCA, 5.7.2006
Tobias JA, James & Hoeben JJ
Citation: Tauszik v Gosford City Council [2006] NSWCCA 193
Local Government Law - development consent - environmental planning instrument - offence created by Clause 44 Gosford Planning Scheme Ordinance - tree preservation order.
Limitation period - whether proceedings statute barred - whether offences proven beyond reasonable doubt - whether offence validly created - offence under s.125(1) of the Environmental Planning and Assessment Act 1979 - source of prohibition - construction of s.125(1) - whether proceedings statute barred under s.127 - whether offence was created 'by or under' the Act - whether offence was created by a council under the authority of the Act.
Appeal allowed; Conviction quashed and orders made imposing a fine & other consequential orders including an order for costs set aside; summons dismissed; respondent to pay appellant's costs of the summons in the Land and Environment Court.

 

230


RUSSELL, Cherie - NSW SC, Newman AJ, 21.7.2006
Citation: R v Russell [2006] NSWSC 722
Remarks on Sentence.
Manslaughter.
The offender stabbed her de facto husband during a domestic confrontation. The offender was indicted on a charge of murder. She entered a plea of guilty, which was accepted by the Crown in full satisfaction of the indictment. The basis of accepting the offender's plea was that the Crown could not negate that the offender had been provoked. It was contended on behalf of the offender that the deceased had died as a result of the offender's unlawful & dangerous act.
Provocation - domestic violence - relationship between offender & de facto characterised by violence & abuse.
Sentenced to 6y with a NPP of 3y.

 

231


RUMBLE, David Paul - CCA, 18.7.2006
Handley JA, Kirby & Hoeben JJ
Citation: Rumble v R [2006] NSWCCA 211
Sentence appeal.
Count 1: assault with intent to rob whilst armed (knife) - 6y with a NPP of 4y.
Count 2: assault with intent to rob whilst armed (blood-filled syringe) - 8y with a NPP of 5y.
Count 3: robbery whilst armed (blood-filled syringe) - 8y with a NPP of 5y.
Form 1 offences (assault with intent to rob whilst armed (knife); rob whilst armed (knife); rob whilst armed (blood-filled syringe).
The offences on counts 1-3 were committed over a 5 day period. On each occasion the applicant threatened an attendant in a store with either a knife or a blood-filled syringe & demanded money. The applicant was recorded on CCTV whilst committing 2 of the offences. His movements after leaving another store were also captured on CCTV. The applicant's DNA was found on a mobile phone he dropped as he left one of the stores. The Form 1 offences were committed during the same period & in similar circumstances.
Total sentence of 8y with a NPP of 5y.
Incorrect use of Form 1 offences by sentencing judge - whether sentences manifestly excessive - applicability of guideline judgment in Henry.
Appeal allowed only with respect to count 2, however, the overall sentence remained unchanged.

 

232


BREE, Shannon James - CCA, 13.4.2006
McClellan CJ at CL, Rothman J, Smart AJ
Citation: Bree v R [2006] NSWCCA 124
Sentence appeal.
1 x supply commercial quantity MDMA (ecstasy); 1 x supply commercial quantity methylamphetamine; 1 x supply commercial quantity cannabis.
4y 8m with a NPP of 3 y.
The applicant was a member of a syndicate.
Levels of criminality - disparity with one of 9 co-accused - whether justifiable sense of grievance.
Appeal dismissed.

 

233


STANKOVIC, Nenad - CCA, 1.8.2006
Giles JA, Grove & Hidden JJ
Citation: R v Stankovic [2006] NSWCCA 229
Crown appeal.
Supply large commercial quantity MDMA (ecstasy); + Form 1 offences (cultivate cannabis plants; possess MDMA; possess Stanazol; unlawfully obtain goods).
7y 9m with a NPP of 5y 2m.
Police executed a search warrant at premises near Wollongong & detained the respondent after he was seen trying to leave through a rear door. Police entered through that door & found cannabis plants linked to an elaborate hydroponic set-up. Further search led to the location of other items, which, together with the cannabis, constituted the offences on the Form 1. After being arrested & charged, the respondent was released on bail. Following electronic & physical surveillance, police uncovered one of NSW's largest ever pill-pressing operations in a house at Dee Why. They became aware that the respondent had injured his hand operating a press used in drug manufacture & had attended the Royal Prince Alfred Hospital, where he gave a false name. A warrant was subsequently executed at the Dee Why premises. The respondent & a co-offender were arrested. Almost 44 kgs of manufactured MDMA were seized (nearly 88 times the amount of drug constituting a large commercial quantity).
Engaged as 'labourer' in illicit factory - unsupervised - claim of duress.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 11y 8m with a NPP of 8y 9m.

 

234


HERON, Cecil Arnold - CCA, 26.7.2006
Mason P, Kirby & Hoeben JJ
Citation: Heron v R [2006] NSWCCA 215
Sentence appeal.
Maliciously inflict GBH with intent to do GBH.
7 y with a NPP of 5 y.
The applicant, who was a rugby league player, was at a social gathering at a hotel in McLean. Large amounts of liquor were consumed by those present. The victim started an argument with the applicant about the applicant's on-field behaviour towards the victim's son in a recent game of rugby league. The 2 men wrestled & tried to strike blows at each other. At some point, the applicant struck the victim with a glass which caused the victim to fall to the floor with a gaping wound to his facial area & under his throat, requiring stitches. The judge found that the offence occurred on the spur of the moment after provocation.
Finding of special circumstances & ratio between head sentence & NPP - whether offence was in mid-range of seriousness for offences of that kind for purposes of standard NPP - aggravating features - s.21A(2)(d) & (g) Crimes (Sentencing Procedure) Act.
Appeal allowed: resentenced to 7y with a NPP of 4y.

 

235


HUANG, Stephen - CCA, 2.6.2006
Grove, Adams & Hislop JJ
Citation: R v Huang [2006] NSWCCA 173
Crown appeal.
Armed robbery; robbery in company.
Total sentence of 7 y with a NPP of 5y.
Wearing disguises & armed with a pistol & baseball bat & using a stolen sedan & truck, the respondent & a number of co-offenders robbed a warehouse of goods to the wholesale value of $1.2 million. During the course of the robbery they threatened the warehouse gatekeeper & 4 truck drivers with a pistol. One of the drivers had his arm broken by a blow from the baseball bat. The following month, the respondent & a co-offender, dressed as Telstra employees, followed the employees of a bank inside the bank & threatened them with Taser guns & ordered them to lie on the floor, where they were bound with cable ties. When a female bank employee denied knowing the access codes to the safe, she was kicked in the buttocks & on the legs. Following more threats by the offenders, a telephone call was made & some safes were opened & money was tipped into a bag. As the offenders made to leave the bank, police outside the bank arrested one offender. The respondent & the other co-offender fled the scene. The bag containing the money, which had been abandoned at the bank, contained about $70,000 in various currencies.
Highly planned & organized crimes - accumulation of sentences specified by judge not implemented in orders - objective gravity of offences - failure of total sentence to reflect total criminality.
Appeal allowed: respondent resentenced to a total of 9y with a NPP of 6y.

 

236


RIGBY, Michael Craig - CCA, 20.7.2006
Studdert, Kirby & Johnson JJ
Citation: Rigby v R [2006] NSWCCA 205
Sentence appeal.
4 x sexual intercourse without consent.
Total of 8y with a NPP of 5y.
Early one morning, a 19 year old female fell asleep on a train. As the train pulled into a station, she woke up. The applicant misled her by telling her it was the station where she wanted to get off. When the victim left the train, the applicant followed her. He put his arm around the victim's neck & she cried & screamed as he dragged her to a nearby bench. He then sexually assaulted her a number of times. The victim feared for her life & did not resist.
A psychiatric report obtained by the defence prior to sentence indicated that the psychiatrist was unable to identify any psychiatric or psychological condition present at the time of the offences. The report was not tendered at sentence. In a later report, the applicant was diagnosed as suffering from schizophrenia at the time of the offence. He sought leave to appeal his sentence on the basis of this fresh evidence.
Aged 23 & on parole at time of offending - priors - previous imprisonment.
Fresh evidence - mentally ill at time of offences - relevance of mental illness to sentence - issue of dangerousness - special circumstances - whether sentence manifestly excessive.
Appeal allowed in part: NPP reduced to 4y.

 

237


WALKER, Allan John - CCA, 1.8.2006
McClellan CJ at CL, Kirby & Hoeben JJ
Citation: Walker v R [2006] NSWCCA 228
Conviction appeal; and application for leave to appeal against sentence.
3 x sexual intercourse without consent.
6 y with a NPP of 4 y.
The applicant & 3 other men drove to the victim's house to pick up items left there when the applicant moved out after his relationship with the victim ended. During the drive & at the victim's house the applicant & the other men consumed alcohol. The applicant went into the victim's bedroom where she was looking for some photos & stood behind her, touching her on the breasts & lower body. The victim asked him to stop. The applicant then slammed the door, locked it & threw the victim onto the bed. He removed her underpants & forcibly had sexual intercourse with her. During the assault, the victim cried, screamed & struggled to get away from the applicant.
Aged 50 at time of offences - priors - previous imprisonment.
Extension of time for filing Notice of Appeal - objections to evidence - whether trial unfair.
Conviction appeal dismissed.
Application for leave to appeal against sentence refused.

 

238


NGUYEN, Khanh Hoang - NSW SC, Hulme J, 11.8.2006
HUYNH, Minh Thy
NGUYEN, Duong
ATCN
Citation: R v Nguyen & Ors [2006] NSWSC 850
Remarks on Sentence.
Murder; maliciously inflict GBH.
The offenders, armed with a gun & a Samurai sword, entered a billiard hall, went through to the courtyard where a birthday celebration was taking place & shot an 18 year old woman & a 19 year old male. The young woman later died in hospital.
Sentences:
Duong Nguyen - total of 33y with a NPP of 25y.
Khanh Nguyen - total of 33y with a NPP of 25y.
Minh Huynh - total of 30y with a NPP of 23y.
ATCN - total of 22y with a NPP of 17y, to be detained in a juvenile detention centre until age 21.

 

239


SILVANO, Oliver - NSW SC, Hulme J, 15.8.2006
Citation : R v Silvano [2006] NSWSC 832
Remarks on Sentence.
Murder; assault with intent to rob armed with dangerous weapon; malicious shooting with intent to do GBH.
The offender shot dead his girlfriend in a bungled robbery of the victim of the assault & malicious shooting charges, who was shot in the shoulder as he ran away.
Sentence: total of 22y 4m with a NPP of 17y.

 

240


SHEPHERD, Glenn Kenneth - NSW SC, Hoeben J, 11.8.2006
Citation: R v Shepherd [2006] NSWSC 799
Remarks on Sentence.
Murder.
The offender murdered his partner after a night of drinking.
Application of standard NPP - aggravating & mitigating factors.
Sentence: 20y with a NPP of 15y.

 

241


COLB, Grant John - NSW SC, Latham J, 11.8.2006
Citation: R v Colb [2006] NSWSC 811
Remarks on Sentence.
Murder.
The offender pleaded guilty to the murder of a 68 year old male who suffered a number of stab wounds to the head, the most significant of which was a stab wound to the left upper eyelid which penetrated to the base of the skull & through to the brain.
Role of Post Traumatic Stress Disorder in commission of offence - past sexual assaults on offender.
Sentence: 18y with a NPP of 14y.

 

242


NAM, Timothy John - NSW SC, Adams J, 2.8.2006
Citation: R v Nam [2006] NSWSC 802
Remarks on Sentence.
1 x manslaughter; 2 x maliciously inflict GBH
The offender pleaded guilty to having shot dead a standover man after a frightening 2 day campaign to illegally evict him from his rented home. He & his family had been subjected to assaults, death threats & abuse. The shooting dead of the deceased with a .22 calibre semi-automatic rifle was a direct result of unlawful violence by the deceased & his gang. Police were called to the farm on 4 occasions during the dispute but failed to take any action.
Sentence:
1 x maliciously inflict GBH - 18m FT commencing 8.12.2004; 1 x maliciously inflict GBH - 18m FT commencing 3.2.2005; 1 x manslaughter - 4 y with a NPP of 2y commencing on 3.8.2004. Offender eligible for parole from date sentence pronounced.

 

243


CLARE, William Thomas - NSW SC, Michael Grove J, 11.8.2006
Citation: R v Clare [2006] NSWSC 812
Remarks on Sentence.
Manslaughter; aggravated sexual assault upon a child under the age of 10.
The victim in both offences was a little boy aged 3y 10 months. Seeing a mother with her 2 children (the deceased & his 6 year old sister) at a Sydney railway station, the offender told the mother that she looked "worn out" & offered to babysit. She took him up on the offer & paid him $30 a day to look after her children. On 13.9.2003, after the offender raped the little boy, the child vomited & stopped breathing. The offender said he applied a 240-volt current to the boy 's chest "like a heart-starter" in an effort to revive him. But this attempt to "jump-start" the boy 's heart could have killed him, the jury heard. The offender had pleaded guilty to sexually assaulting the little boy but denied murdering him.
Sentence: total of 25y with a NPP of 18y 9m. The sentences were ordered to commence on 17.10.2015, which is the offender's earliest release date for the rape of the deceased's 6 year old sister.

 

244


NORRIE, Andrew Mark - NCS SC, Bell J, 22.8.2006
Citation: R v Norrie [2006] NSWSC 830
Application for redetermination of life sentence.
Murder.
The applicant shot the deceased (a 46-year-old fisherman) seven times in what the sentencing judge described as a "planned campaign of indiscriminate murderous violence", during a road trip from Queensland to Victoria.
At Ballina, he fired shots at a van carrying a couple & 2 infant children. The day after shooting the fisherman, he murdered a hitchhiker in East Gippsland. The applicant, who also tried to cut the throat of a fellow prisoner with a steak knife, has been diagnosed as a psychopath. After his arrest, he told police: "I just enjoy killing people".
Heinous offence - considerations of dangerousness.
Application declined; applicant directed not to re-apply to the Court for a period of 20 years.

 

245


AOUN, Gabriel - NSW SC, Hulme J, 7.8.2006
Citation: R v Aoun [2006] NSWSC 800
Remarks on Sentence.
Accessory before the fact to murder.
The deceased was murdered in retribution for a road rage incident involving his son. The offender was charged with inciting, procuring, moving, aiding, counselling, hiring & commanding an unknown person to commit the murder.
Sentence: 17y 3m with a NPP of 13y.

 

246


Attorney General (NSW) v NSW State Parole Authority & Anor - NSW SC, McClellan CJ at CL, 25.8.2006
Citation: Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865
ADMINISTRATIVE LAW - JUDICIAL REVIEW.
Ms Maddison Hall, then known as Mr Noel Compton Hall, was convicted of murder & sentenced to life imprisonment on 10.12.1990. On 29.11.2001 the sentence was redetermined & a term of 22y with a NPP of 16 y was imposed. The first date Ms Hall was eligible for release on parole was 31.1.2006. On 18.7.2006 the Parole Authority granted Ms Hall parole. That decision was challenged in the instant matter by the Attorney-General who submitted that it was vitiated by legal error.
Error of law on face of record - jurisdictional error - mandamus - certiorari - statutory relief - Parole Authority determination to release on parole - exercise of power under Crimes (Administration of Sentences) Act 1999 - legislation amended in 2004 - interpretation of transitional provisions - whether legislation applied as amended - meaning of 'pending', 'commenced consideration'- process for considering release on parole by Parole Authority - steps taken & reports received in administrative process - reasons stated for determination - whether all relevant matters considered - community safety - need to maintain public confidence in administration of justice - meaning of 'public confidence'- nature & circumstances of offence - likely effect on victim's family of offender being released on parole - whether Authority considered relevant recommendations, observations & comments made by sentencing court - meaning of 'sentencing court' where a life sentence was redetermined - timing of reconsideration of decision not to grant parole - whether timing complied with statutory scheme - power to reconsider parole if circumstances of manifest injustice - whether Authority considered false or misleading information.
Decision: Summons dismissed; plaintiff to pay second defendant's costs.

 

247


MACKEY, Ryan Joseph - CCA, 25.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: Mackey v R [2006] NSWCCA 254
Sentence appeal.
Malicious wounding with intent to do GBH.
10y 8m with a NPP of 8y.
The victim was at a hotel with friends. As he walked through the main bar area towards the men's toilet he accidentally bumped into the applicant who was holding a schooner glass of beer in each hand. Some of the beer spilt. The applicant became aggressive towards the victim & stood very close to him, whereupon the victim put his hand on the applicant's chest & pushed him in an attempt to create some space between himself & the applicant. Still holding the schooners of beer, the applicant then swung his right hand at the left side of the victim's face. The glass & the applicant's right hand impacted with the left cheek & left eye area of the victim, causing severe lacerations that bled profusely. In reaction to being hit in the face, the victim punched the applicant to the face. Security personnel then intervened & the applicant was escorted from the premises. The victim received approx 40 stitches to his left cheek, left eyebrow & left eyelid & has been left with residual scarring, described as 'substantial and prominent'.
Standard NPP - delay - extra-curial punishment - whether sentence manifestly excessive.
Appeal dismissed.

 

248


EPA v Barnes, Phillip Gregory - CCA, 17.8.2006
Mason P, Kirby & Hoeben JJ
Citation: EPA v Barnes [2006] NSWCCA 246
Crown appeal against decision of Land and Environment Court of NSW.
Two offences of dumping septic waste - pleas of guilty - fine plus costs total $20,000 - whether manifestly inadequate - deterrence - totality - matter could be prosecuted in LC - limited means to pay - owned house subject to large mortgage.
Appeal dismissed.

 

249


IGLESIAS, Isidro - CCA, 20.7.2006
McClellan CJ at CL, Hulme & Hall JJ
Citation: Iglesias v R [2006] NSWCCA 261
Application for leave to appeal against sentence.
Murder.
15y with a NPP of 11y.
The deceased died as a result of the applicant stabbing him. The stabbing was witnessed by a man, who summoned help. By the time police & ambulance officers arrived it was too late. The applicant was arrested the following day. On a previous occasion, the applicant & the deceased had had an argument, during which the deceased punched the applicant. See also R v Iglesias [2004] NSWSC 944.
Undiagnosed cancer - symptoms evident at time of sentencing - whether to allow fresh evidence of medical condition - re-sentencing in light of fresh evidence - whether imprisonment more onerous - risks of recurrence of cancer - whether lesser sentence warranted in law.
Leave to appeal against sentence refused.

 

250


NGUYEN, Dinh Them - CCA, 25.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: Nguyen v R [2006] NSWCCA 253
Sentence appeal.
Cultivate large commercial quantity cannabis plants.
12y with a NPP of 9y.
Late in 2003 an organisation acquired the lease of a property at Mendooran, NSW. A large number of cannabis plants were then planted, raised & cultivated on the property. Members of the Vietnamese community were hired to work on the property as farm labourers. The farm labourers were each to be paid in the order of $100,000 for their efforts. The applicant was employed as a labourer. The total number of cannabis plants cultivated was 30,051.
Six co-offenders were sentenced prior to the applicant being sentenced. Those co-offenders received much lower sentences than the applicant.
Parity.
Appeal allowed: resentenced to 9y with a NPP of 6y 9m.

 

251


McNAUGHTON, Darrell Terry - CCA, 11.8.2006 - 66 NSWLR 566; 163 A Crim R 381
Spigelman CJ, McClellan CJ at CL, Grove, Barr & Bell JJ
Citation: R v McNaughton [2006] NSWCCA 242
Sentence appeal.
Enter building with intent to commit indictable offence; AOABH.
Total sentence of 4y with a NPP of 2 y.
The applicant attempted to steal a number of coins from an amusement machine at a resort in Coffs Harbour. When the manager tried to stop him, he threw an empty coffee tin at the manager, striking him above one eye causing a deep laceration. The applicant escaped & was arrested about 7 weeks later. Initially, he denied his involvement in the crime but ultimately pleaded guilty to the above offences.
In his remarks on sentence, the sentencing judge made reference to the applicant's criminal history being an aggravating factor that was required to be taken into account.
Aged 34 at time of offences - extensive criminal record.
Whether error in treating criminal history as an aggravating factor - whether error in considering the matters that included the strength of the Crown case when calculating the reduction otherwise due as recognition of utility in the plea - whether error in not taking into consideration the fact that the offences were of a kind that could have been dealt with in the LC - whether sentences manifestly excessive.
Appeal dismissed.

 

252


JAH - CCA, 17.8.2006
Sully & Adams JJ
Citation: JAH v R [2006] NSWCCA 250
Sentence appeal.
Indecent assault on a child under 10 (aged 9); sexual intercourse with child under 10 (aged 9); sexual intercourse with child between ages of 10 & 16 (11 or 12); + Form 1 (aggravated indecent assault upon child aged 11).
Total sentence of 11y with a NPP of 8y.
The victim in each offence was the applicant's natural daughter.
Whether overall sentence manifestly excessive.
Appeal allowed in part, resulting in a new total sentence of 8y 3m with a NPP of 5y 9m.

 

253


COHEN, Phillip Barry - CCA, 15.8.2006
Grove, Adams & Hislop JJ
Citation: Cohen v R [2006] NSWCCA 247
Conviction appeal and application for leave to appeal against sentence.
4 x obtain valuable thing by deception; 3 x money laundering.
Total of 4 y with a NPP of 3y 5m.
Ross Allan Lameri & his accountant (the appellant) had conspired to obtain more than $1.1 million from Colonial State Bank & Capital Finance. The financiers were led to believe the money would be used to buy new equipment for a company, Lameri Industries. Fake company invoices were printed in the office of the finance broker. Lameri had endorsed the cheques made out to the supposed supplier of the equipment & paid the money into company accounts. He paid commissions to the finance broker & Cohen & kept a large amount of money for himself. The fraud was discovered when Lameri 's bank, Westpac, refused to pay the 4th endorsed cheque into his company 's account.
Prosecution tendered financial accounts - no evidence suggesting inaccurate or false - allegation made for first time in prosecution address - unfair to defence - should have given timely notice - matter for evidence not submission - jury should have been directed to disregard submission - miscarriage of justice.
Conviction appeal allowed: new trial ordered.

 

254


VLISMAS, Shaun Joseph - CCA, 2.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: Vlismas v R [2006] NSWCCA 270
Sentence appeal.
2 x cultivate commercial quantity cannabis plants; 2 x supply cannabis leaf.
Total of 8y with a NPP of 4y (special circumstances found).
The charges related to a joint criminal enterprise with 2 other persons (Langdon & Walsh). Langdon was charged with the same offences as was the applicant, however, he was separately charged with an additional offence of cultivating prohibited plants. Walsh was found to be a lesser player in the joint criminal enterprise & was charged with 2 offences of knowingly take part in the cultivation of prohibited plants. When sentencing, the sentencing judge imposed the same sentences on Langdon in respect of the common counts. For the separate charge of cultivating prohibited plants, the sentencing judge imposed a concurrent FT of 18m, resulting in a total sentence of 8y with a NPP of 4y. The applicant complained that the sentencing judge erred in the sentencing process by finding that the roles played by the applicant & Langdon were 'on par', contending that this was not correct in the sense that Langdon had committed an additional & separate serious offence, but had ended up with the same total sentence.
Whether sentence manifestly excessive - error in not separately considering additional offence committed by co-offender - regard to be had to questions of parity in determining sentences.
Appeal dismissed.

 

255


VAN DE HAAR, Dean Allan - CCA, 17.8.2006
Sully & Adams JJ
Citation: R v Van De Haar [2006] NSWCCA 251
Sentence appeal.
Counts 1-3: B&E with intent to steal;
Counts 4-7: BE&S;
Count 8: Threaten to use offensive weapon (syringe) to prevent lawful apprehension;
+ Form 1 offences (resist police officer; assault police officer, possess methylamphetamine).
Total sentence of 5y 6m 25d, with a NPP of 4y 25d.
Pre-sentence custody wrongly calculated - failure to give effect to finding of special circumstances - failure to have regard to sentence being served in protective custody - whether sentence manifestly excessive.
Appeal allowed in part: commencement date for sentence on count 8 varied; appeal otherwise dismissed.

 

256


ZEGURA, Anto - CCA, 3.8.2006
McClellan CJ at CL, Kirby & Hoeben JJ
Citation: R v Zegura [2006] NSWCCA 230
Crown appeal.
Malicious wounding with intent to murder; malicious destruction of property by fire.
Total sentence of 9y with a NPP of 6y.
Whether sentence manifestly inadequate - departure from standard NPP - discretion of sentencing judge in determining what is a mid-range offence - inadequate accumulation.
Appeal allowed: respondent resentenced to a total of 9 y with a NPP of 7 y.

 

257


KELLER, Matthew Glen - CCA, 26.7.2006
Studdert, Hall & Latham JJ
Citation: Keller v R [2006] NSWCCA 204
Conviction appeal.
Supply commercial quantity cocaine.
8 y with a NPP of 5y 4m.
The Crown case relied mainly on telephone intercept evidence & called evidence from an officer with the AFP. During the voir dire, the officer's evidence was that some words used on the intercept material were consistent with being references to drugs & drug transactions. When the evidence was given before the jury, the officer stated that his opinion was that the conversation concerned drugs.
Expert evidence - whether such evidence should have been admitted - sufficiency of summing up.
Appeal allowed: new trial ordered.

 

258


VOS, Daniel Robert - CCA, 3.8.2006
Spigelman CJ, Hoeben & Rothman JJ
Citation: Vos v R [2006] NSWCCA 234
Sentence appeal.
Assault with intent to rob; possess offensive weapon with intent to prevent lawful apprehension; + Form 1 (steal from the person).
Total of 6y with a NPP of 3y.
The 1st victim & 2 British tourists were waiting for a bus at a bus stop. When the victim opened his wallet to remove his bus ticket, the applicant grabbed his left wrist in an attempt to steal the wallet. The victim grabbed the wallet with his right hand & a struggle ensued, during which the applicant tried to punch the victim. The applicant slipped to one knee, giving the victim the opportunity of securing his wallet. The victim then tried to hold the applicant down & was assisted by one of the tourists, however, the applicant kicked out & broke free. The applicant then took out a knife & lunged at the victim but the victim managed to back away unharmed. The applicant then walked away. Some 10 minutes later, the applicant approached an 80 year old man in Kings Cross & stole his prescription reading glasses & their case. Shortly thereafter, the police arrived. Following descriptions provided by the 1st victim & the British tourists, they managed to apprehend the applicant in the vestibule of the Kings Cross Railway Station.
Aged 38 at time of offences - violent upbringing - long-term heroin & alcohol addiction - long criminal history - previous imprisonment.
Five months later, the sentencing judge sent a report to the Registrar of the CCA in which he stated that on reflection he believed he had made certain errors & that the sentences were too long.
Whether sentence manifestly excessive - concurrency & accumulation - proper treatment of Form 1 matters.
Appeal allowed: resentenced to 4 y with a NPP of 2 y.

 

259


ILIOSKI, Peter - CCA, 10.7.2006
Hunt AJA, Adams & Latham JJ
Citation: Ilioski v R [2006] NSWCCA 164
Conviction appeal; and application for leave to appeal against sentence.
Malicious wounding.
4 y with a NPP of 2 y.
The appellant was involved in a major altercation involving a number of confrontations with as many as 35 people, mainly men. The 1st confrontation occurred following an alleged threatening gesture made to the victim's twin brother. The appellant was attacked & punched & kicked in the head, shoulder, back & legs. During the 2nd confrontation, the victim was slashed with a knife & suffered a serious neck wound requiring urgent cardiothoracic surgery, stab wounds to the right upper abdominal wall & the left forearm. During the 3rd confrontation, the appellant was attacked & beaten.
The principal issue at trial was identification.
Whether verdict unreasonable - whether directions on issue of identification adequate - trial judge 's obligation under s.116 Evidence Act 1995 to inform jury of special need for caution both generally & in circumstances of particular case - reliability of identification evidence - need for identification parade, s.114 Evidence Act - negative identification evidence - compromised verdict - whether miscarriage of justice based on accumulation of conduct by appellant 's counsel at trial.
Conviction appeal dismissed; application for leave to appeal against sentence refused.

 

260


OLIVIERI, Tony - NSW SC, Hidden J, 4.9.2006
NORMAN, Mark Edward
Citation: R v Olivieri; R v Norman [2006] NSWSC 882
Judgment on admissibility of telephone intercepts.
Murder trial.
Controlled operation - misleading police media release - admissibility of telephone intercepts - whether recorded conversations capable of amounting to admissions - whether media release improper - whether admission of the evidence unfair to accused - whether public policy required rejection of the evidence.
Decision: Evidence admitted.

 

261


LAI, Neil Ravindra - CCA, 26.6.2006
Studdert, Kirby & Johnson JJ
Citation: Lai v R [2006] NSWCCA 197
Sentence appeal.
Supply prohibited drug (ecstasy); + 2 offences on a Form 1.
2 y with a NPP of 1 y.
The supply ecstasy offence involved 10 tablets weighing in aggregate an estimated 2.88 grams. The weight was estimated because the evidence did not disclose the passing of possession of any tablets. The prosecution case, based upon an intercepted telephone conversation in which the applicant participated, was one of an agreement to supply. The applicant was on bail for the 1st of the Form 1 offences at the time. The 1st offence on the Form 1 was of knowingly taking part in a cannabis deal in which cannabis contained in a resealable plastic bag was exchanged for a $20 note. This offence took place 2 days prior to the supply ecstasy charge. The 2nd matter on the Form 1 was of knowingly taking part in the supply of cannabis (half an ounce).
Aged 26 at time of offending - guilty plea - born in Fiji - came to Australia as a child with parents - strong family support - efforts at rehabilitation.
Appeal allowed: NPP reduced to 12m.

 

262


LEONARD, Lance William - CCA, 31.8.2006 - 57 NSWLR 545; 164 A Crim R 374
Hodgson JA, Grove & Adams JJ
Citation: Leonard v R [2006] NSWCCA 267
Conviction appeal.
3 x commit act of indecency upon person under age of 16; 1 x incite person under 16 to commit act of indecency; 2 x attempt sexual intercourse with person under age of 16.
Total of 9y with a NPP of 6y.
The applicant was found guilty of the above offences. Verdicts by direction of not guilty were given in respect of 2 other counts. All the offences were committed against the applicant's step-daughter. The 1st of the offences took place when the child was 7 years old.
Evidence of conduct of sexual nature against complainant which was not the subject of a charge - corroboration of that incident by complainant's mother - admitted as relationship evidence - no objection taken at trial - trial judge's directions against use as tendency evidence.
Whether evidence was in substance used as tendency evidence - whether error shown in admission of evidence or directions - application of rule 4.
Appeal dismissed.

 

263


WSP - CCA, 3.8.2006
Spigelman CJ, Hoeben & Rothman JJ
Citation: WSP v R [2006] NSWCCA 240
Application seeking adjustment of sentences imposed in the DC.
3 x sexual intercourse; 3 x aggravated indecent assault.
Total sentence of 8y with a NPP of 5y.
There were 2 complainants (CJ & MK). On appeal to the CCA, convictions & sentences in respect to matters concerning CJ were set aside & orders with respect to MK were affirmed. On remittal to the DC, the applicant pleaded guilty to some of the offences concerning complainant CJ & had other offences taken into account on a Form 1.The applicant was then sentenced. Those sentences were less than those originally imposed, resulting in a 4 month gap between the expiration of those sentences & the commencement of the original sentences imposed with respect to the complainant MK.
Appropriate to backdate sentences imposed with respect to complainant MK in order to remove gap - backdating of original sentence by consent.
Orders of Latham DJC (as she then was) set aside & new orders backdating sentences with respect to complainant MK substituted.

 

264


LIN, Yi Guo - CCA, 25.8.2006
Grove, Kirby & Hislop JJ
Citation: Lin v R [2006] NSWCCA 258
Sentence appeal.
Aggravated detain for advantage.
5y 4m with a NPP of 3y 9m.
The victim was a student at a language school in Sydney. He was detained by the applicant & a number of other young men for some period of time, during which he was kicked & punched & threatened with a knife.
Parity - relevance of bare percentage calculation of NPP.
Appeal allowed: resentenced to 5y 4m with a NPP of 3y 3m.

 

265


MLP - CCA, 6.9.2006 - 164 A Crim R93
Grove, Kirby & Hislop JJ
Citation: MLP v R [2006] NSWCCA 271
Sentence appeal.
Sexual intercourse with person under the age of 10 years.
16y with a NPP of 12y.
The applicant was separated from his wife. He arranged to have access to his 3 children to take them on a camping holiday. The complainant was then 9 years old. She had a sister aged 7 & a brother aged 5. The applicant had a Kombi van, the back of which had been set up as a bed. The applicant parked the van in a remote area. At bedtime, the children got into their pyjamas & went to bed & the applicant got into bed with them. Before they went to sleep, the applicant cuddled each child, beginning with the youngest. When it was the complainant's turn, he pulled down her pyjama pants & her underpants, then pulled her on top of him & inserted his penis into her vagina for about 10 seconds. The complainant's younger sister was awake & asked what he was doing. He said: "Nothing". The sister gave evidence that she saw her father naked under the blanket with the complainant & that the complainant was struggling to hold back tears. The next day the applicant told the complainant not to tell her mother. She told her mother some months later.
Isolated act - whether fact that child 9 years old & that it was an isolated act took it out of mid-range - issues when standard NPP - whether error in approach.
Appeal allowed: NPP reduced to 11y.

 

266


CTC - CCA, 6.9.2006
Grove, Kirby & Hislop JJ
Citation: CTC v R [2006] NSWCCA 263
Sentence appeal.
Supply large commercial quantity heroin (2.032 kgs).
8 y with a NPP of 5 y.
The applicant had previously served 2 lengthy prison sentences for similar offences.
Discount for guilty plea - insufficient weight given - insufficient weight given to assistance to authorities - negotiations with Crown - fresh indictment - whether error in finding applicant a principal contrary to agreed facts - relevance of sentences of co-offenders where no parity - insufficient weight given to subjective issues - whether sentence manifestly excessive.
Appeal dismissed.

 

267


WHITNEY, Shayne Nathan - CCA, 14.8.2006
Hodgson JA, Grove & Adams JJ
Citation: Whitney v R [2006] NSWCCA 243
Conviction appeal.
Robbery.
2 y with a NPP of 1 y.
The Crown case was that the appellant entered a service station & told the console operator that he was holding him up, claiming to have a knife down his pants, although the knife never materialised. The console operator pulled out the till drawer & put it on the counter, whereupon the applicant grabbed the money. He then asked the console operator for some cigarettes. The console operator threw 2 packets of cigarettes to him. The applicant then left. The console operator pushed the alarm & called police.
Identification from photographs - jury able to compare photographs with person before them.
Whether error in manner in which trial judge directed jury to analyse identification evidence - whether verdict of guilty unreasonable.
Appellant does not attend Court on appeal - whether possible to say jury could not reasonably be satisfied, beyond reasonable doubt, of identity of offender.
Appeal dismissed.

 

268


GARRETT, Stephen v FREEMAN, Geoffrey Noel - CCA, 6.9.2006
McColl JA, Grove & James JJ
Citation: Garrett v Freeman [2006] NSWCCA 278
Stated case pursuant to s.5AE Criminal Appeal Act 1912.
Prosecutions pursuant to ss.118D & 175B National Parks and Wildlife Act 1974 - whether proceedings taken by person authorised in that behalf - defect in substance or form - whether capable of cure by s.16(2) Criminal Procedure Act 1986 - statutory protection to employee of council if acts in good faith - s.731 Local Government Act 1993 - whether s.731 applies to criminal prosecutions.

 

269


SPURLING, Travis Leigh - CCA, 11.8.2006
EVERUSS, Michael John
McClellan CJ at CL, Johnson & Latham JJ
Citation: Spurling v R; Everuss v R [2006] NSWCCA 245
Sentence appeals.
Robbery in company.
Spurling: 4y with a NPP of 2 y.
Everuss: 3y with a NPP of 18m.
Everuss was identified as the principal in the commission of the offence.
Detention after arrest - interviewing a vulnerable person - whether accused was a vulnerable person by reason of mental impairment - duties of custody managers - lies - consciousness of guilt - admissibility & use against co-accused - parity - where co-accused receives heavier sentence than principal due to prior criminal record - whether sentences for each offender manifestly excessive.
Appeals dismissed.

 

270


MMK - CCA, 5.9.2006 - 164 A Crim R 481
Spigelman CJ, Whealy & Howie JJ
Citation: R v MMK [2006] NSWCCA 272
Crown appeal.
Intercourse with child between age of 10 & 16 years; + Form 1 offences (aggravated indecent assault; common assault).
FT of 1y.
The respondent pleaded guilty to the above offences. At the time of sentencing, the respondent was already serving a term of imprisonment for 9 counts of aggravated sexual assault in company & was subject to a sentence amounting to a total term of 22y with a NPP of 13y. The 1y FT was totally concurrent with & subsumed within that sentence.
Whether too much weight placed on subjective circumstances - failure to take into account prior convictions - vulnerability of victim - s.21A(2)(1) Crimes (Sentencing Procedure) Act. - whether fully concurrent sentence inadequate - relationship between s.3A Crimes (Sentencing Procedure) Act & principle of totality.
Appeal dismissed.

 

271


EVANS, Graham John - CCA, 7.9.2006 - 164 A Crim R 489
James, Hidden & Hoeben JJ
Citation: Evans v R [2006] NSWCCA 277
Conviction appeal.
2 x armed robbery; 1 x assault with intent to rob.
All offences were committed on the same day in the chambers of the Strathfield Municipal Council. There was no dispute at trial that a man had entered the Council chambers & had committed the 3 offences. The man was wearing overalls & a balaclava at the time. The issue at trial was whether the Crown could prove that the appellant was the offender. There were 3 surveillance cameras in operation in the Council chambers at the time of the offences. Nine still photographs obtained from the surveillance tapes were admitted into evidence. A cap found at the scene was tested for DNA. The DNA obtained from the cap matched that of the appellant's DNA. DNA obtained from other items was too low to enable accurate profiling. It was not possible to determine whether any DNA was present on the balaclava.
Whether items of clothing similar to those worn by robber found at accused's home admissible - whether permissible for prosecutor to show witnesses items of clothing & ask them to comment upon them - whether permissible to have accused put on item of clothing & repeat words of robber - rejection of alibi evidence because of absence of motive - failure of trial judge to give any or adequate reasons for rulings during trial - application of proviso.
Appeal dismissed.

 

272


CHARARA, Jamal - CCA, 23.8.2006 - 164 A Crim R 39
Mason P, Kirby & Hoeben JJ
Citation: Charara v R [2006] NSWCCA 244
Stated Case
Appeal and new trial - appeals from magistrates - appeal against conviction - rehearing on transcript of evidence - fresh evidence - calling of witnesses - where judge ordered full de novo appeal - no consideration of special or substantial reasons - witnesses to be individually considered in light of special or substantial reasons - ss.18 & 19 Crimes (Local Courts Appeal and Review) Act 2001.
Answer to the stated case in the affirmative. Orders made by DC quashed. Proceedings remitted to the DC.

 

273


OUDOMVILAY, Mimi - CCA, 7.9.2006
Giles JA, Grove & Hidden JJ
Citation: Oudomvilay v R [2006] NSWCCA 275
Sentence appeal.
2 x fraudulent misappropriation; 4 x fraudulently omit to account; + Form 1(1 x fraudulently omit to account).
Total sentence of 6y 9m with a NPP of 4y.
The applicant was a practising solicitor. She was also the president of the Lao Community Advancement Co-operative. Many of the clients of her practice were from the Lao & general Asian communities. Because of their poor English skills, these clients placed a high degree of trust in the applicant. The offences occurred over a period of 10 months & involved the applicant's misuse of money in her trust account.
Whether sufficient weight given to loss of professional standing - whether sentence manifestly excessive.
Appeal dismissed.

 

274


FV - CCA, 17.8.2006
McClellan CJ at CL, Kirby & Hoeben JJ
Citation: FV v R [2006] NSWCCA 237
Sentence appeal.
1 x aggravated indecent assault upon person under 16 (12); 2 x aggravated attempted sexual intercourse upon person under 16 (15).
Total sentence of 8y 3m with a NPP of 5 y.
The applicant pleaded guilty to each count. All offences were committed upon applicant's daughter.
Whether judge able to go outside agreed statement - whether sentence excessive.
Appeal allowed: resentenced to a total of 8y with a NPP of 5y.

 

275


DAC - CCA, 30.8.2006
Tobias JA, Howie & Rothman JJ
Citation: DAC v R [2006] NSWCCA 265
Sentence appeal.
Aggravated robbery (maliciously inflict ABH); aggravated B&E with intent to commit serious indictable offence (larceny); aggravated attempt to have sexual intercourse without consent.
Total sentence of 8y with a NPP of 5y.
The 78 year old female victim was working in her garden when the applicant entered her house through the closed but unlocked back door. When the elderly victim entered the house & saw the applicant, the applicant asked for money & forced the victim into a room. He pushed her onto the bed, fondled her & attempted to kiss her. He stopped when the victim offered to get some money for him. She gave him $100. The applicant then threw her to the floor, pulled off her underwear, lay on top of her & 'interfered' with her vagina. When he left the house, he took a further $50 note.
Aged 14 at time of offending - disrupted childhood - cannabis use since age 12 - moderately intellectually impaired - priors - no previous imprisonment.
Sentence appeal allowed on the aggravated attempt to have sexual intercourse count: sentence reduced on that count. All other sentences confirmed. New total sentence of 7y with a NPP of 4y.

 

276


STINSON, David Sherwood - CCA, 22.6.2006
Grove, Hidden & Kirby JJ
Citation: Stinson v R [2006] NSWCCA 191
Conviction appeal.
3 x sexual intercourse without consent.
The appellant was acquitted on 2 further counts of sexual intercourse without consent.
Whether verdicts inconsistent - whether verdicts unreasonable.
Appeal dismissed.

 

277


MAH - CCA, 27.7.2006
Grove, Hidden & Kirby JJ
Citation: MAH v R; R v MAH [2006] NSWCCA 226
Conviction appeal; and Crown appeal against sentence; application for leave to appeal against sentence.
Murder.
The offender & the victim were both aged 17 years.
22y with a NPP of 16y.
Directions on motive - motive not relied on as proof of guilt but in support of testimony of accomplice - leave to cross-examine witness not making genuine attempt to give evidence - finding by trial judge - directions on lies.
Conviction appeal dismissed.
Crown appeal dismissed.
Application for leave to appeal against sentence dismissed.

 

278


SHARPE, Peter John - CCA, 23.8.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Sharpe v R [2006] NSWCCA 255
Sentence appeal.
Aggravated BE&S (in company); aggravated use of offensive weapon to prevent lawful apprehension (in company).
Total sentence of 5y with a NPP of 3y 3m.
Whether use of offensive weapon erroneously taken into account as aggravating factor under s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 - whether prior criminal record erroneously taken into account as aggravating factor under s.21A(2)(d) - whether failure to make due allowance for assistance to authorities - whether failure to take account of extra curial punishment (gunshot wound to leg sustained during commission of offence) - significance of general deterrence in sentencing for s.33B offence - whether verdict supported by evidence.
Appeal dismissed.

 

279


SORBELLO, Frank - CCA, 28.7.2006
Tobias JA, McClellan CJ at CL, Hoeben J
Citation: Sorbello v R [2006] NSWCCA 225
Sentence appeal.
1 x supply commercial quantity MDMA (ecstasy); + 2 matters on a Form 1 (possess methylamphetamine, possess cocaine).
8y with a NPP of 5y.
Aged almost 39 at time of offending - guilty plea - 20% discount allowed - raised in a loving & supportive environment - suffers from psoriasis - prior good character - remorse/shame - good prospects of rehabilitation.
Parity.
Appeal allowed: resentenced to 6y with a NPP of 4y.

 

280


HOLMAN, Michael Patrick - CCA, 28.7.2006
McClellan CJ at CL, Kirby & Hoeben JJ
Citation: Holman v R [2006] NSWCCA 227
Sentence appeal.
Multiple offences (BE&S; enter building with intent to commit indictable offence; enter enclosed lands).
Total of 5 y with a NPP of 3 y.
All offences were committed in Chatswood & North Rocks.
Applicant represented himself on appeal.
Aged 33 at time of offending - early guilty plea - 25% discount - extensive criminal record - drug addiction - unsuccessful participation in Drug Court programme - suffered sexual & physical assaults whilst previously in prison, effect of which suffered from depression.
Submissions not put in accordance with instructions - rehabilitation - use of previous criminal record - complaint that sentence not backdated to date of arrest.
Appeal dismissed.

 

281


AN - CCA, 24.7.2006 - 66 NSWLR 523; 163 A Crim R 133
James, Simpson & Rothman JJ
Citation: R v AN (No.2) [2006] NSWCCA 218
Application for leave to appeal against limiting terms.
See also R v AN [2005] NSWCCA 239.
Decision: Order pursuant to s.24(1)(b) Mental Health (Criminal Procedure) Act effective from 6.7.2005 & until further order that applicant be detained in the Frank Baxter Juvenile Justice Detention Centre. Order pursuant to s.27(b) of the Act that the applicant be henceforth detained during the limiting terms in a Juvenile Justice Detention Centre. The Court recommends that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.

 

282


MULATO, Alexander - CCA, 11.9.2006
Spigelman CJ, Simpson & Adams JJ
Citation: Mulato v R [2006] NSWCCA 282
Sentence appeal.
Supply commercial quantity methylamphetamine; + Form 1 (supply ecstasy).
Total sentence of 9y 7m 5d with a NPP of 6y.
Police uncovered the drugs following a tip-off from staff of a resort near Penrith. The quantity of methylamphetamine was 520.1 grams & the quantity of ecstasy in the Form 1 offence was 23.24 grams.
Significance of standard NPP - significance of time spent on remand.
Whether sentence excessive.
Appeal allowed: resentenced to 8y with a NPP of 5y.

 

283


SANCHET, Ricardo - CCA, 11.9.2006
Basten JA, Whealy & Howie JJ
Citation: Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291
Sentence appeal.
61 x fraudulently obtain Social Security benefits.
Total sentence of 6y with a NPP of 4y.
The Social Security benefits were obtained by providing 22 false identities over a period of 4 years. The degree of planning & sophistication put the offences 'at the highest category of offending'.
Whether sentence reflected overall criminality - whether sentence excessive - manner in which factors identified in s.16A(2) Crimes Act 1914 (Cth) should be applied - whether failure to give appropriate weight to provision of assistance to Federal authorities - whether failure to give sufficient reasons for sentence.
Appeal dismissed.

 

284


SHEEHAN, Ronald John - CCA, 16.8.2006 - 163 A Crim R 397
Handley JA, Kirby & Hoeben JJ
Citation: Sheehan v R [2006] NSWCCA 233
Conviction appeal.
Multiple sexual offences against a child under the age of 16 (fellatio, vaginal intercourse).
The appellant faced trial on 10 counts of sexual assault. The jury returned a verdict of guilty on counts 1-7 & 10 and verdicts of not guilty on counts 8&9.
The complainant was the appellant's stepdaughter. The offences first occurred when she was aged 6 & continued to when she was aged 11. The complainant was aged 30 at the time of the trial.
Failure to adequately warn the jury in accordance with Longman v The Queen (1989) 168 CLR 79.
Conviction appeal allowed in respect of counts 1-7: new trial ordered on those counts.
Conviction appeal in relation to count 10 dismissed, conviction confirmed.
Crown and appellant granted leave to make further submissions in writing concerning sentence.

 

285


McCABE, Shane Anthony - CCA, 24.7.2006 - 164 A Crim R344
Beazley JA, Simpson & Rothman JJ
Citation: McCabe v R [2006] NSWCCA 220
Sentence appeal.
Multiple BE&S offences.
Aggravating factors - whether multiple victims across range of offending - multiple offences but not multiple victims in relation to each offence - prior convictions - whether an aggravating factor - calculation of NPP - pre-sentence custody - error in deducting pre-sentence custody from sentence imposed - whether trial judge ought properly to have backdated commencement date of sentence - whether other sentence warranted.
Appeal allowed in part: NPP varied.
286
VICKOVIC, Tommy - CCA, 3.8.2006
Giles JA, Grove & Hidden JJ
Citation: R v Vickovic [2006] NSWCCA 231
Crown appeal.
1 x having a machine & materials adapted for making false driver's licences with the intention of having them accepted as genuine; 3 x make false driver's licences in specified names with similar intent; 2 x use false instrument with intent to pervert course of justice.
This was a Crown appeal against a final sentence imposed in the Drug Court.
'Gold medal' graduate from Drug Court Programme - non-custodial impositions - not mandatory but no miscarriage of sentencing discretion in so ordering - discussion concerning appeals from Drug Court.
Appeal dismissed.

 

287


GORRICK, Christopher Charles - CCA, 3.8.2006
Grove, Simpson & Bell JJ
Citation: Gorrick v R [2006] NSWCCA 232
Conviction and sentence appeal.
Counts 3-9: sexual intercourse with person above 10 years & under 16 years under authority (s.66C(2) Crimes Act - now repealed).
The appellant was found guilty on the above counts. The jury returned verdicts of not guilty on counts 1&2 (indecent assault upon person aged under 16 years under authority). The trial took place in July 2004. Following the convictions, the trial judge became unavailable & sentences were imposed by Williams DCJ in November 2004. On that occasion the appellant was also sentenced for an offence of indecent assault contrary to s.61L of the Crimes Act. This offence involved a different victim.
The overall effective sentence imposed was 6y with a NPP of 4 y.
Allegation of incompetent representation & failure to carry out instructions at trial - evidence heard on appeal - allegations
Appeal dismissed.

 

288


WILSON, Peter James - CCA, 2.8.2006
Handley JA, Adams & Latham JJ
Citation: Wilson v R [2006] NSWCCA 217
Conviction appeal.
1 x sexual intercourse with child under 10 years; 1 x aggravated act of indecency towards same child.
The above offences were counts 1&3 on an indictment containing 7 counts to which the appellant pleaded not guilty. At the conclusion of the trial, there was a verdict by direction on count 2 & acquittals by the jury on counts 4-7.
Inconsistent verdicts - Crown address raising motive to lie & lies told by appellant as consciousness of guilt - admission of videotaped interview with complainant - refreshing memory from document.
Appeal dismissed.

 

289


ST ALDER, Kevin Leslie - CCA, 5.9.2006
Giles JA, Sully & Latham JJ
Citation: St Alder v R [2006] NSWCCA 287
Sentence appeal.
1 x maliciously destroy property by fire; + Form 1 (maliciously damage property).
4y with a NPP of 2y.
The applicant & his partner were in a de facto relationship for a number of years. There were 4 children from the relationship. The relationship ended in May 2002 & the applicant & his former partner were involved in contested Family Law proceedings. Their relationship had deteriorated quite significantly. At about 12:50am on the morning of 9.2.2003 the applicant entered premises at Edgecliff through a window by breaking the glass, then lit a fire in the top floor bedroom. The premises were owned by an aunt of the former partner. The former partner & the children had spent some time at the premises. The premises were significantly damaged. The offence on the Form 1 was damage to a pane of glass on another occasion. The appellant appeared for himself on appeal.
Whether sentenced contrary to indication of likely sentence prior to plea - whether sentence manifestly excessive.
Appeal dismissed.

 

290


MUSCAT, Christopher Paul - CCA, 14.7.2006
Mason P, Kirby & Hoeben JJ
Citation: R v Muscat [2006] NSWCCA 259
Crown appeal.
1 x robbery. 18m with a NPP of 9m (to be served by way of PD).
The respondent was charged as a principal in the second degree on the basis of a joint criminal enterprise.
Whether sentence manifestly inadequate.
Parity - principles not applicable because co-offender had greater involvement, extensive criminal record, Form 1 matter & was on bail - sentence unduly lenient but not greatly outside discretionary range.
Appeal dismissed.

 

291


TRAN, Minh - CCA, 30.8.2006
Beazley JA, Adams & Howie JJ
Citation: Tran v R [2006] NSWCCA 266
Sentence appeal.
1 x supply commercial quantity heroin; + 24 matters taken into account on a Form 1.
8y with a NPP of 5y.
Early plea of guilty. The quantity of heroin involved was 834.9 grams. Two of the Form 1 matters were for money ($355,000, $2,007.05 & $2,300) discovered in his flat; the other offences were for the possession of small amounts of different drugs conceded to have been for the applicant's own use.
Parity.
Appeal allowed: resentenced to 7y with a NPP of 4y 3m.

 

292


RICHARDS, Corey Edward - CCA, 23.8.2006
McColl JA, Adams & Latham JJ
Citation: Richards v R [2006] NSWCCA 262
Sentence appeal.
1 x dangerous driving occasioning death; 3 x dangerous driving occasioning GBH; 1 x make accusation intending another person to be the subject of an investigation, knowing that person to be innocent.
Total sentence of 5y with a NPP of 4y.
There were 2 indictments, although all the offences arose from a fatal car crash in which one person was killed & three others were gravely injured. The applicant pleaded guilty to all offences.
Whether error in sentencing on basis of facts which gave rise to a more serious offence - whether error in failing to take into account utilitarian value of guilty plea - objective criminality - whether lesser sentence warranted where failure to accumulate sentences on dangerous drive counts - failure of judge formally to impose sentence - obligation of Crown prosecutor to assist Court to avoid appealable error.

 

293


QUINLAN, Ralph Reynold - CCA, 11.9.2006 - 164 A Crim R106
Tobias JA, McClellan CJ at CL, Hoeben J
Citation: Quinlan v R [2006] NSWCCA 284
Conviction appeal.
Armed robbery. 10y with a NPP of 7 y.
The appellant & an alleged co-offender were jointly charged with the offence of robbing the South West Rocks County Club Ltd of $53,678.85 whilst armed with a firearm. The appellant was tried & convicted. The alleged co-offender was discharged at the end of the Crown case. The Crown case was circumstantial.
Flight - consciousness of guilt - whether error in admitting evidence - whether error in characterising evidence as flight - whether other explanations prejudicial - whether evidence ought to have been led in a modified form - whether jury properly directed as to use of evidence - whether verdict unreasonable - direction in relation to circumstantial evidence - nature of circumstantial evidence available.
Appeal dismissed.

 

294


SCANLAN, Lynn Doreen - CCA, 9.8.2006
Spigelman CJ, Hoeben & Rothman JJ
Citation: Scanlan v R [2006] NSWCCA 238
Conviction and sentence appeal.
4 x obtain money by deception. Total of 4y with a NPP of 3y.
Direction on lies - bias in summing up - bias in evidentiary rulings - onus of proof - alleged incompetence of trial counsel - totality & accumulation of sentence.
Appeal dismissed.

 

295


HEFFERNAN, William Patrick - CCA, 11.9.2006
Spigelman CJ, McClellan CJ at CL, Sully J
Citation: Heffernan v R [2006] NSWCCA 293
Application for leave to appeal against conviction.
Murder.
14y with a NPP of 10y
The appellant killed the deceased by repeatedly striking him on the head with a piece of wood during a fight. Both the deceased & the appellant were intoxicated at the time. There was eyewitness evidence that the deceased was on his knees when the appellant struck him with the piece of wood.
Directions on provocation - provocation not addressed by counsel - provocation raised on Crown case - onus of proof - whether directions on provocation reversed onus of proof.
Leave to appeal refused.

 

296


MILANE, Thomas Leslie - CCA, 5.9.2006
Giles JA, Sully & Latham JJ
Citation: Milane v R [2006] NSWCCA 281
Sentence appeal.
Aggravated BE&S (home invasion).
6y 10m with a NPP of 4y 4m.
This was a 'home invasion' type offence perpetrated by the applicant & his co-offender. They gained entry to a unit by bashing down the door. One of the occupants managed to leave the unit over the balcony & ran to a nearby police station. The other occupant was caught by the offenders before managing to escape. They told him they were from the Drug Squad. The co-offender punched him in the face & hit him over the head with a pistol, demanding to know where the money 'and the drugs' were. The applicant kicked the victim in the head. They left the unit when police arrived but were apprehended elsewhere in the building. The applicant was found to have a mobile phone & other items belonging to the other occupant, while the co-offender was found to have cash & the victim's credit card & driver's licence. The pistol, which was a replica, was found hidden on a landing in the building.
Whether disparity in culpability not adequately reflected in sentence - whether insufficient weight given to subjective factor of applicant's judgment being clouded by use of illegal drugs.
Appeal dismissed.

 

297


JJT - CCA, 11.9.2006 - 67 NSWLR 152
McClellan CJ at CL, James & Simpson JJ
Citation: JJT v R [2006] NSWCCA 283
Conviction appeal.
1 x indecent assault.
The appellant faced 4 counts of indecently assaulting his niece. He was convicted of the 2nd count but acquitted of the other counts. The complainant was aged 15 at the time. The appellant's 12 year old daughter was present in the room when some of the offences in the indictment were alleged to have occurred & gave evidence at trial. In some respects, her evidence supported the complainant in relation to counts 2 & 3. The appellant's daughter since stated that the evidence she gave was false & that she did not observe the alleged assaults. Following an application under s.474B Crimes Act 1900, the matter was referred to the CCA to be dealt with as an appeal against conviction under the Criminal Appeal Act 1912.
Fresh evidence - whether miscarriage of justice in light of fresh evidence - whether verdict unreasonable in light of fresh evidence - credit of witness - credit of complainant - directions on use of complaint - inconsistencies in evidence - whether jury misdirected as to right to silence - direction appropriate in law at time of trial - direction subsequently ruled inappropriate - whether Court could consider this ground - application of principles in Mallard (2005) 80 ALJR 160.
Appeal dismissed.

 

298


WELLS, Stephen Lawrence - CCA, 7.9.2006
McClellan CJ at CL, James & Hall JJ
Citation: R v Wells [2006] NSWCCA 279
Crown appeal.
1 x armed robbery; 1 x BE&S; 1 x use offensive weapon to prevent lawful apprehension.
Total sentence of 3y 3m with a NPP of 2y 2m.
Whether sentences manifestly inadequate. The allegation of leniency arose by reason of both the leniency of the sentence imposed for the armed robbery & of the concurrency of sentences. The commencement date of all sentences precluded punishment beyond the punishment imposed for the 1st offence.
Appeal allowed: respondent resentenced to a total of 4y with a NPP of 2y 8m.

 

299


LEA-CATON, Stuart Wayne - CCA, 5.9.2006
Giles JA, Sully & Latham JJ
Citation: Lea-Caton v R [2006] NSWCCA 285
Sentence appeal.
2 x robbery whilst armed with a dangerous weapon; + 3 Form 1 documents.
Total sentence of 10y with a NPP of 6y.
The sentences were dated so as to commence immediately after the expiration of the NPP component of sentences that had earlier been passed upon the applicant in the Drug Court, which ultimately exposed the applicant to a head sentence of slightly more than 12y with a corresponding increase in the total effective NPP.
No details of offences stated in judgment.
Whether sentences manifestly excessive.
Appeal dismissed.

 

300


BROWN, Mark Isaac Shane - CCA, 17.8.2006
Spigelman CJ, Howie & Rothman JJ
Citation: R v Brown [2006] NSWCCA 249
Sentence appeal (extension of time).
1 x possess more than 3 unregistered firearms without being licensed (s.52D(2) Firearms Act 1996); + Form 1 offences (4 x drug offences, 2 x possess ammunition & handcuffs).
8y with a NPP of 5y.
The applicant was the warehouser of a large number of prohibited weapons that he bought & sold to criminals. Included in the cache of weapons in a storage unit were sixteen .32 automatic calibre double-barrel keyring pistols & an automatic self-loading rifle. Police carried out surveillance of the applicant & legally intercepted a number of phone calls. In the course of one of those calls, the applicant was heard to say that he was to make $10,000 on the sale of the keyring pistols alone. The applicant's account is that he owed between $30,000 & $40,000 to various criminal associates arising out of drug deals on behalf of himself & his wife. His enterprise in weapon sales was an attempt to pay back some or all of this money.
The applicant has an extensive prior criminal record, but no offences relating to firearms.
In the Crown's submissions, it was noted that the principal offence was committed after 1.2.2003 & therefore s.44 Crimes (Sentencing Procedure) Act 1999 applied when the applicant was sentenced.
Whether sentence manifestly excessive.
Leave to appeal granted.
Appeal allowed only insofar as to correct a technical error. Applicant resentenced in accordance with s.44 Crimes (Sentencing Procedure) Act 1999, resulting in the same effective sentence.

 

302


GULER, Cemil - NSW SC, Michael Grove J, 11.8.2006
Citation: R v Guler [2006] NSWSC 966
Judgment.
Murder.
Trial by judge alone.
The accused killed his wife by stabbing her.
During the trial, mental illness was raised, which was supported by the evidence.
Verdict and judgment of not guilty by reason of mental illness.

 

303


ITAOUI, Ahmed - CCA, 7.9.2006
Spigelman CJ, Whealy & Howie JJ
Citation: Itaoui v R [2006] NSWCCA 273
Sentence appeal.
9 x obtain financial advantage by deception; + 10 similar offences & an offence of attempt obtain benefit by deception on a Form 1 document.
Total sentence of 3 y with a NPP of 2y.
The applicant was employed as a legal clerk at a firm of solicitors. He had been studying law part-time when he was engaged. As time passed by, the applicant was given greater responsibilities & was involved in conveyancing matters up to completion. It was during this period that he misappropriated monies from the trust account. He would falsely represent that he was raising a trust account cheque for the benefit of a client. He then used the funds for his own purpose, including making deposits into his own bank account or for the purchase of a car. The total amount of trust monies taken was $424,198.52.
Guilty plea - psychiatric condition - adjustment disorder with depressive mood.
Whether psychiatric condition sufficient to diminish principles of general & specific deterrence - delay in sentencing - whether sentence manifestly excessive.
Appeal dismissed.

 

304


PM - CCA, 13.9.2006 - 67 NSWLR 46
Basten JA, Whealy & Latham JJ
Citation: Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297
Crown appeal against an order remitting matter to the Children's Court.
Sexual offences against a child under the age of 16 (aged 14).
The respondent is alleged to have had non-consensual sexual intercourse with a girl, then aged 14. Initially there were 2 charges of aggravated sexual assault laid against him in the Children's Court with 2 different circumstances of aggravation; the 1st was that the alleged victim was under the age of 16 years & the 2nd was that at the time of the offence he 'did occasion actual bodily harm' to the alleged victim which appeared to be intended to identify the circumstance in s.61J(2)(a) Crimes Act 1900 (NSW). The 2nd charge alleged a 'serious children's indictable offence' under s.3 (1) Children (Criminal Proceedings) Act 1987 (NSW). At the hearing in the Children's Court, the DPP withdrew & the magistrate discharged the respondent in relation to the 1st charge & committed him for trial on the 2nd charge. The 1st indictment filed in the DC alleged as a circumstance of aggravation that the respondent 'did inflict actual bodily harm' on the victim. However, a 2nd indictment was prepared which contained 3 charges, each of was capable of summary disposition if he had been charged before the Children's Court. One alleged as a circumstance of aggravation that the alleged victim was under 16. After the respondent was arraigned on the 2nd indictment & the trial commenced, the trial judge discharged the jury & ordered, pursuant to s.44 Crimes Act, the matter to be remitted to the Children's Court as the 2nd indictment failed for want of jurisdiction.
Criminal proceedings against a child - s.31 Children (Criminal Proceedings) Act 1987 (NSW) & s.8 Criminal Procedure Act 1986 (NSW) - whether DPP can bring proceedings in the DC against a child by an ex officio indictment for an offence which is not a 'serious children's indictable offence'- jurisdiction - whether an appeal against a finding that an indictment was invalid should be made under s.5C or s.5F Criminal Appeal Act 1912 (NSW).
Appeal allowed: order remitting matter to the Children's Court set aside.

 

305


LJG - CCA, 20.7.2006
McClellan CJ at CL, Hulme & Hall JJ
Citation: LJG v R [2006] NSWCCA 216
Sentence appeal.
1 x aggravated indecent assault upon a child under 10. 3y 9m with a NPP of 1y 9m.
The applicant pleaded guilty to the above offence involving a 7 year old female child.
Whether error in standard NPP - whether any lesser sentence warranted in law.
Appeal dismissed.

 

306


JCS - CCA, 26.7.2006 - 164 A Crim R1
JMS
McClellan CJ at CL, James & Hoeben JJ
Citation: JCS v R; JMS v R; R v JCS; R v JMS [2006] NSWCCA 221
Conviction appeals; and
Crown appeals against sentences.
JCS: Unlawful imprisonment - 15m with a NPP of 5m (to be served by way of PD).
JMS: Unlawful imprisonment - 21m with a NPP of 9m (to be served by way of PD).
The complainant lived with her mother & step-father (the appellants) & her younger sister. The complainant suffered from ectodermal dysplasia, resulting in significant facial disfigurement which affected her skin, ears, teeth & hair & she had no breast tissue or nipples. The complainant inherited this condition from her mother, who suffers from it to a lesser degree. Shortly after the complainant's 16th birthday, the appellants confined her to her room, which was kept dark. She was only permitted to leave the room to use the toilet, was provided with few changes of clothes & one meal a day. She was given Phenergan to make her sleep for long periods. After 22 months of confinement, the complainant managed to escape from the room & went to the local Police Station where she reported her incarceration. She was treated at Sydney Children's Hospital, Campbelltown for severe malnourishment & anaemia. Medical evidence showed that her mental state, dentition & hygiene were poor. The complainant's eyes were abnormally sensitive to light & her ankles would not readily flex, consistent with long periods spent lying down.
Validity of indictment - inconsistencies in complainant's evidence - whether open to jury to accept her evidence - meaning of constraining & restraining - directions on element of intent - relevance of complainant's state of mind - whether direction on drawing of inferences necessary - whether directions correctly addressed actions of an individual not part of the joint criminal enterprise - whether document, not adopted by complainant, ought to have been admitted - re-examination of complainant.
Crown appeal against sentence - objective gravity - general deterrence - whether mitigating factors 'double-counted' - special circumstances - parental difficulties as mitigating factors - complainant's age & condition as aggravating factors - impact of periodic detention.
Conviction appeals dismissed. Crown appeals dismissed.

 

307


DGM - CCA, 15.9.2006
McColl JA, Adams & Latham JJ
Citation: DGM v R [2006] NSWCCA 296
Sentence appeal.
Robbery armed with dangerous weapon: + Form 1 offence (malicious damage by fire).
6y with a NPP of 4 y.
The applicant & his 3 co-offenders committed an armed robbery of a private home in Manly. Before the robbery took place, the applicant & his co-offenders undertook sophisticated & meticulous planning, including surveillance of the targeted property. They also obtained information as to the location of safes, the likely amount of money kept in the house & the fact that the male occupant would be overseas. They knew that there were young children with the adult female victim in the house. One co-offender, who was the first to be arrested, gave evidence against the others.
Aged 26 at time of offending - chronic post-traumatic stress disorder resulting from a motor vehicle accident - illicit drug use to cope with pain - priors.
Parity - effect of totality reduction on sentence of co-offender.
Appeal allowed insofar as sentence backdated to take into account pre-sentence custody.

 

308


HAMID, Azzam Abdul - CCA, 20.9.2006 - 164 A Crim R179
Hunt AJA, Johnson & Latham JJ
Citation: R v Hamid [2006] NSWCCA 302
Crown appeal.
Multiple serious domestic violence offences.
Total sentence of 4 y with a NPP of 2 y.
The sentencing judge made an order pursuant to s.562BE Crimes Act 1900 that, in relation to each of the victims, the respondent must not engage in conduct that intimidates the victim ( 'the protected person') or any person having a domestic relationship with the protected person. A further order was made that the respondent must not assault, molest, harass, threaten or otherwise interfere with the protected persons. His Honour directed that these orders operate for a period of 10 years from 5.5.2006.
Pleas of guilty to multiple offences committed against 3 victims over an 8 year period - record for offences of violence - principles applicable in sentencing repeat domestic violence offenders - importance of specific and general deterrence - relevance of mental illness - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 6 y with a NPP of 4y 3m. Orders made under s.562BE Crimes Act 1900 confirmed.

 

309


PHAM, The Danh - CCA, 21.9.2006
Grove, Kirby & Hislop JJ
Citation: R v Pham [2006] NSWCCA 288
Crown appeal.
Count 1: Supply cannabis leaf (21.89 kgs) - FT of 1y 8m to commence on 20.6.05.
Count 2: Knowing take part in cultivation of commercial quantity cannabis plants (309 plants) - 2y 3m with a NPP of 8m to commence on 20.6.06.
Total sentence of 3y 3m with a NPP of 1y 8m.
The respondent was on bail for the Count 1 offence when he was charged with the Count 2 offence.
Discount allowed for guilty plea & assistance to authorities.
Assistance - relevance to 2nd charge - whether sentence inadequate.
Appeal allowed only against sentence on Count 1: resentenced on that count to 4y with a NPP of 2y, resulting in a total sentence of 5y with a NPP of 3y.

 

310


E - CCA, 22.9.2006 - 164 A Crim R 208
B
Spigelman CJ, Kirby & Howie JJ
Citation: R v E; R v B [2006] NSWCCA 305
Sentence appeal (application seeking leave to appeal out of time); alternatively, that an earlier appeal should be reopened.
Murder.
Life sentences.
Janine Balding murder.
The applicants sought leave to appeal out of time against life sentences imposed upon them by Newman J on 18.9.1990. Those sentences have already been the subject of an appeal to this Court: R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 (the 'First Appeal'). Due to amendments to the legislative regime relating to life sentences that have occurred subsequent to the First Appeal, the applicants asserted that there now exists a sentence against which they have not yet appealed & from which an appeal to the CCA lies. Alternatively, they submitted that the earlier appeal could be & should be reopened.
At the time of sentencing the applicants, Newman J made the following remark:
'So grave is the nature of this case that I recommend that none of the prisoners in this matter should ever be released'.
When this recommendation was made, it had no legal effect. As a result of subsequent legislation, contained in Sch 1 Crimes (Sentencing Procedure) Act 1999, the recommendation carries the effect that it is much less likely that the applicants will ever be released from prison than would have been the case had the recommendation not been made. The applicants sought to appeal both the life sentence & the sentencing judge's recommendation.
Leave to appeal out of time refused. Leave to reopen the original appeal refused.

 

311


BURRELL, Bruce Allan - NSW SC, Barr J, 9.8.2006
Citation: R v Burrell [2006] NSWSC 581
Remarks on Sentence.
Murder; detain for advantage.
Prisoner kidnapped female friend for ransom - circumstances of death unknown - body never recovered - worst case.
Aged 53 at time of sentencing - not guilty plea - substantial planning - modest criminal record.
Sentence: Murder - life imprisonment;
Detain for advantage - 16y with a NPP of 12y.

 

312


DPN - CCA, 23.8.2006
Grove, Kirby & Hislop JJ
Citation: DPN v R [2006] NSWCCA 301
Sentence appeal.
Aggravated sexual assault in company; robbery whilst armed with offensive weapon.
Sentence not stated.
Details of offences not stated.
The applicant was aged 16 at the time of the commission of the offences - mandatory for provisions of Children (Criminal Proceedings) Act 1987 to be brought into play - unclear as to whether sentencing judge was alive to that circumstance.
Appeal allowed: sentence quashed; matter remitted to the DC for resentence.

 

313


KNIGHT, Katherine Mary - CCA, 11.9.2006 - 164 A Crim R126
McClellan CJ at CL, Adams & Latham JJ
Citation: Knight v R [2006] NSWCCA 292
Sentence appeal.
Murder.
Life imprisonment.
Stabbing death of de facto. Post mortem examination revealed deceased was stabbed at least 37 times, some wounds being deep & extending into vital organs. Applicant then skinned deceased & hung the pelt on a meat-hook where it remained until later removed by investigating police. Deceased was then decapitated & his head cooked in a pot, together with some vegetables. Pieces of deceased's buttocks & some vegetables were baked in the oven. This was later arranged on plates & left as meals for the son & daughter of the deceased, accompanied by vindictive notes to each in the applicant's handwriting. A 3rd piece of baked buttock was thrown on the back lawn. The remainder of the skinned body was arranged with the left arm draped over an empty soft drink bottle & the legs crossed.
Principles relevant to imposing natural life sentences - whether offence in worst class of case - premeditation - whether mutilation of deceased's body following murder was relevant to objective seriousness of offence - degree of violence - degree of danger to community - risk of re-offending - no real prospects of rehabilitation - personality disorder - psychiatric evidence of personality/mental stability - likely future personality - not guilty plea on arraignment, later changed plea to guilty - no discount given for guilty plea - no prior convictions - whether sentence manifestly excessive - protection of community.
Appeal dismissed.

 

314


MARINELLIS, Nick - CCA, 22.9.2006
McColl JA, Adams & Latham JJ
Citation: Marinellis v R [2006] NSWCCA 307
Sentence appeal.
Counts 1-4: conspire to cheat & defraud;
Counts 5, 8 & 9: make false statement with intent to obtain money;
Counts 6 & 11: obtain money by deception;
Count 7: fraudulent personation with intent to fraudulently obtain property;
Count 10: doing an act with intent to pervert course of justice;
+ Form 1 (make false instrument, namely creating a false internet website; and doing an act with intent to pervert the course of justice).
Sentences: Counts 1-9 &11 - 2 y, NPP of 1y 10m 15d; Count 10 - 3y 8m, NPP of 2y 9m.
Total sentence of 5y 3m with a NPP of 4y 4m.
The Crown case was that the applicant received $1.46 million from victims of one of the oldest internet scams (the Nigerian 419 scam). The 419 refers to the section of the Nigerian Criminal Code which the fraud violates. When the applicant was arrested at his Nyngan holiday house, his fax machine was receiving Nigerian-style monetary letters for his company, NM Finance Network. In his car outside were 2 suitcases full of Nigerian letters, faxes & monetary files on his various victims.
Aged 40 - on disability pension at time of offending.
Very high level of criminality - sophisticated modus operandi.
Importance of objective circumstances.
Sentence appeal allowed in part: appeal in relation to counts 1-9 & 11 dismissed; NPP in relation to count 10 reduced to 2y 4m 1w.

 

315


SKAF, Bilal - NSW SC, Mathews AJ, 28.7.2006
SKAF, Mohammed
Citation: R v Bilal Skaf; R v Mohammed Skaf [2006] NSWSC 394
Remarks on Sentence.
Bilal Skaf: 2 x aggravated sexual assault.
Aged18 - not guilty plea - leader & organiser of offences - protective custody - health.
Mohammed Skaf: 1 x accessory before the fact to aggravated sexual assault.
Aged 17 - not guilty plea - serious illness.
Mohammed Skaf picked up a female friend & met a group of males at a park. The complainant was sexually assaulted by Bilal Skaf & another male.
Sentences:
Bilal Skaf: 21y with a NPP of 15y (sentence partially concurrent with existing sentence for similar offences).
Mohammed Skaf: 15y with a NPP of 7 y (sentence accumulated on existing sentence).

 

316


DYER, Eric John - CCA, 20.9.2006
Hunt AJA, Simpson & Whealy JJ
Citation: Dyer v R [2006] NSWCCA 274
Sentence appeal.
Robbery in company.
3y 5m 3d with a NPP of 1y 11m 3d.
At about 9.30 in the evening, the applicant & 2 co-offenders boarded a westbound train at St Marys & robbed a male passenger. One of the co-offenders punched the victim in the face & ultimately took the victim's bum-bag. The other co-offender had at one point grabbed the victim & held him for a while. Immediately after his bum-bag was taken, the victim managed to escape & ran along the train & pressed a security alert button. When the train stopped at Werrington, the 3 offenders left the train & walked away. When the train got to Penrith, the victim contacted police. The sentencing judge found that although the applicant's part in the robbery was less than the other offenders, it was still an integral part of it.
Aged 20 at time of offending - guilty plea on 1st day of trial - 15% discount allowed - was on a bond at the time of subject offence - extensive criminal history - served time under a control order as a juvenile, had been on probation, had received CSO's & had served a term of imprisonment as an adult, as well as PD as an adult.
Erroneous finding in relation to facts of co-offender's sentence - vulnerability of victim - age & mental functioning level of applicant - totality principle - whether sentence manifestly excessive.
Appeal dismissed.

 

317


SAMADI, Mohammad Gul - CCA, 22.9.2006
Mason P; Sully & Latham JJ
Citation: R v Samadi [2006] NSWCCA 308
Crown appeal.
Dangerous driving occasioning death.
2y with a NPP of 6m.
The respondent was a learner driver & had clocked up only 17 hours of driving experience. At about 7:30pm, he was driving a white Corolla sedan when he turned left in order to park in front of some shops. Three motor vehicles were already parked but there was still room for another car. A number of young people were on the footpath, including the 7 year old deceased who was riding his scooter. The Corolla navigated the left-hand turn & headed to the vacant spot, mounted the footpath, headed directly towards the shops, scraped the front of a wall of one of the shops, struck the deceased who was fleeing on his scooter close to the wall, careered past 2 cars & struck the 3rd car with such force that it drove the rear end of that car onto the road & the front end ended up mounted on the footpath facing towards the front of the shops. The other young people on the footpath were able to flee in time. Onlookers heard the respondent's car engine revving loudly & excessively. One witness saw the driver leaning over towards the passenger side just below the dashboard as though he was expecting to collide with the wall. The respondent told police he had not driven the car previously. He had no qualified driver supervising his driving at the time.
Duration of dangerous driving in circumstances where respondent was inexperienced & unsupervised learner driver - finding of low moral culpability not reasonably open - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 2 y with a NPP of 12m.

 

318


UPTON, Paul - CCA, 23.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: Upton v R [2006] NSWCCA 256
Conviction and sentence appeal.
2 x aggravated sexual assault in company; 2 x aggravated sexual assault; 1 x kidnapping.
7y with a NPP of 4y.
The appellant & his co-offender kidnapped & sexually assaulted the complainant, during which the co-offender punched the complainant in the face. The co-offender had also tied the complainant's hands behind her back with nylon rope. Both the appellant & the co-offender sexually assaulted the complainant a number of times. The co-offender plugged an industrial drill into the wall & threatened to inflict ABH upon the complainant when he held it up to her head, turned it on & told her he was going to put it through her skull. The co-offender also placed a noose around the complainant's neck & tied the end of the rope to a pole hanging out of the wall. Whilst the noose was around the complainant's neck, the appellant forced her to perform oral sex on him. The co-offender also cut up the complainant's jacket with a 30cm long knife. He threatened to chop her up, wrap her in plastic & dump her in the Blue Mountains. During all the time that the co-offender was either assaulting or threatening the complainant, the appellant said & did nothing.
Directions - lies - consciousness of guilt - extended joint criminal enterprise.
Appeal dismissed.

 

319


CAGE, Dean - CCA, 22.9.2006
Hunt AJA, Johnson & Latham JJ
Citation: R v Cage [2006] NSWCCA 304
Crown appeal.
1 x demand money with menaces; 1 x demand money with menaces in company; 1 x common assault; + Form 1 (malicious damage; common assault).
Total sentence of 2y with a NPP of 15m.
Failure to assess objective gravity of offences - undue emphasis on theoretical availability of summary disposition - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 3y with a NPP of 2y.

 

320


CHRISTOV, Ivan - NSW SC, Kirby J, 22.9.2006
Citation: R v Christov [2006] NSWSC 972
Judgment on Verdict.
Murder.
It was alleged that the accused had strangled the victim, thereby causing her death.
Accused & victim in previous relationship - victim tried to defend herself with a knife.
Aged in his 50's - born in Czechoslovakia - large build - morbid jealousy - history of drug abuse - extensive criminal history.
Verdict: Guilty of murder; conviction recorded.

 

321


O'NEIL (ABC v) - HCA, 28.9.2006 - 80 ALJR 1672
Gummow, Kirby, Hayne, Heydon and Crennan JJ
Citation: Australian Broadcasting Corporation v O'Neil [2006] HCA 46
In 2005, the Tasmanian Supreme Court issued an injunction that prevented the ABC from broadcasting a TV documentary about James O'Neill, a convicted child killer, ruling that the programme was defamatory & not in the public interest as it included allegations that O'Neill had committed other murders. The Tasmanian SC said that allegations of criminality should only be made after charges & convictions.
Appeal allowed: The High Court ruled that the judgment did not properly consider public interest in free communication.

 

322


LANGHAM, Terence John - CCA, 22.9.2006
Mason P, Sully & Latham JJ
Citation: Langham v R [2006] NSWCCA 306
Sentence appeal.
1 x manufacture methylamphetamine; 1 x supply methylamphetamine; + Form 1 (incite another to be in possession of Telfast Decongestant tablets intending them to be used in the manufacture of methylamphetamine).
4y with a NPP of 3 y.
Subjective factors/special circumstances - post-traumatic stress/depression - accumulation.
Appeal dismissed.

 

323


HILLSLEY, Jeffrey John - CCA, 28.9.2006 - 164 A Crim R252
Hodgson JA, Adams & Johnson JJ
Citation: R v Hillsley [2006] NSWCCA 312
Crown appeal.
1 x murder; 4 x aggravated sexual assault of child aged 10; 1 x kidnap.
30y with NPP of 25y.
The respondent attacked the deceased & inflicted a number of blows to the deceased's head with a hammer. This was a sustained & ferocious attack. The respondent claimed that the attack was 'pay-back' because the deceased had not paid him for some work he had done. The respondent then kidnapped the deceased's 10 year old step-daughter & sexually assaulted her a number of times. He had sexually assaulted the child on a previous occasion when he was staying at the deceased's home for a few days over Christmas. He said that the kidnapping & sexual assaults upon the child were also committed as 'pay-back'. He said he did this because he knew that the deceased was very fond of his step-daughter.
Aged 53 at time of sentence - guilty plea - paedophile - history of sexually assaulting young female children, as well as kidnapping young female children & then sexually assaulting them.
Whether totality of offences & dangerousness of offender justified imposition of life imprisonment.
Appeal allowed on the count of murder: resentenced to life imprisonment on that count.
Appeal on remaining counts dismissed.

 

324


LM - CCA, 10.10.2006
Tobias JA, Howie & Rothman JJ
Citation: LM v R [2006] NSWCCA 322
Sentence appeal.
3 x sexual intercourse without consent.
5y with a NPP of 3y.
The applicant & the victim were minors at the time of the offences.
Discretion to treat as an adult - discretion to treat as a child under Children (Criminal Proceedings) Act.
Whether sentence manifestly excessive.
Appeal dismissed.

 

325


REED, Peter John - CCA, 10.10.2006
Spigelman CJ, McClellan CJ at CL, Sully J
Citation: Reed v R [2006] NSWCCA 314
Conviction appeal.
1 x sexual intercourse with person under 16 under authority.
The appellant committed digital penetration upon the complainant, who was aged 10. The appellant was the father of the complainant's friend & the complainant was sleeping over at her friend's house at the time.
Jurisdiction, practice & procedure - powers & duties of prosecution - delay in disclosure to defence of evidence in possession of Crown - evidentiary matters relating to witnesses & accused - significance of surrounding detail to reliability of memory of assault.
Whether miscarriage of justice.
Appeal dismissed.

 

326


MALCOLM, Ricky - CCA, 10.10.2006
Tobias JA, Howie & Rothman JJ
Citation: Malcolm v R [2006] NSWCCA 323
Sentence appeal.
Aggravated robbery.
3y 4m with a NPP of 2y.
The applicant, who was with 2 friends at the time, assaulted the victim on a Saturday evening outside Central railway station & stole the victim's mobile phone. The assault was unprovoked & involved stalking, threatening, terrifying & assaulting the victim before robbing him. The applicant was arrested shortly after committing the offence & was found to be in possession of the mobile phone. He initially denied committing the offence, but later pleaded guilty.
Borderline range of intelligence - balance between general deterrence & rehabilitation where applicant suffers from intellectual disability - whether sentence manifestly excessive.
Appeal dismissed.

 

327


LOVELL, Peter David - CCA, 28.7.2006
DOMINEY, Aaron John
McClellan CJ at CL, Johnson & Latham JJ
Citation: Lovell v R; Dominey v R [2006] NSWCCA 222
Sentence appeals.
1 x aggravated B&E and commit serious indictable offence (in company, malicious damage); malicious damage.
Lovell: 5y with a NPP of 2y.
Dominey: 7y with a NPP of 4y.
After drinking alcohol with the victim, the applicants had an altercation with him, alleging that he had been making improper advances to their 15 year old sister & a former girlfriend of one of the applicants. The victim subsequently damaged the car of one of the applicants & they went to the home of the victim's mother where the victim lived. After forcing entry through the front door, they confronted the victim's mother. They smashed property, including the front door, TV, stereo equipment & cabinet, a large mirror & the front window, causing damage estimated at $4,000. One of the applicants used a fire extinguisher to damage property. One of the applicants raised his hand towards the victim's mother, who in turn raised her fist. The applicants smashed the windscreen & rear side windows of her car as they left.
Offences below middle of range of objective seriousness.
Whether sentences manifestly excessive.
Appeals allowed, resentenced as follows:
Lovell: 2y 9m with a NPP of 1y 9m.
Dominey: 3y 9m with a NPP of 2y 3m.

 

328


WISE, Jeremy Wilton - CCA, 5.9.2006
Spigelman CJ, Howie & Rothman JJ
Citation: Wise v R [2006] NSWCCA 264
Sentence appeal.
2 x BE&S; 1 x receiving.
The applicant's DNA was matched to three offences: the BE&S offences which were committed on a pharmacy & an offence of receiving a laptop & a watch. The applicant pleaded guilty & was sentenced to a CSO for one offence & a 3y GBB pursuant to s.9 Crimes (Sentencing Procedure) Act for another. For the 3rd offence, he was sentenced to 15m imprisonment suspended pursuant to s.12. The judge said he did not fix a NPP because the applicant would be the subject of another bond. The applicant did not perform any of the community service & breached the bonds by committing further offences. He then came before another judge who sentenced him to imprisonment for the community service & bond matters. In relation to the suspended sentence, he revoked the s.12 bond but then purported to vary the sentence by fixing a NPP of 9m & a parole period of 6m. The applicant appealed against the severity of each of the sentences imposed by the second judge. A question arose as to the validity of that judge varying the terms of the sentence previously suspended.
Jurisdiction to resentence on revocation of s.12 Bond - capacity to appeal - error of law - compliance with ss.44 & 45 Crimes (Sentencing Procedure) Act - exchanges during sentences - relevance of summary disposal - whether sentence manifestly excessive.
Sentence appeal allowed in relation to count 1: resentenced on that count to 15m with a NPP of 9m. Appeal otherwise dismissed.

 

329


LY, Hoan Tuyet - CCA, 4.10.2006
Sully, Adams & Howie JJ
Citation: Ly v R [2006] NSWCCA 324
Sentence appeal.
Cultivate cannabis.
2y with a NPP of 12m.
Police went to the house the applicant & her husband were renting. In the garage they found peat moss, plastic pots, fertiliser, etc. Inside the house was an elaborate lighting & ventilation system powered by an illegal bypass of the metered electricity supply. Police seized 183 cannabis plants at 3 distinct stages of maturity & 10kgs of dried cannabis. Although the applicant was charged with the deemed supply of this cannabis, the jury were unable to agree on a verdict. The applicant's defence at trial was that she was unaware that the plants were cannabis.
Whether sentence excessive.
Appeal dismissed.

 

330


ASSI, Joseph - CCA, 24.8.2006
Tobias JA, Howie & Rothman JJ
Citation: Assi v R [2006] NSWCCA 257
Sentence appeal.
2 X fraudulent misappropriation; 2 X obtain money by deception; + Form 1 (3 x fraudulent misappropriate; 4 x obtain money by deception).
7 y with a NPP of 4y 9m.
The applicant was on bail & parole for similar offences at the time of offending.
Relevance of pathological gambling addiction - whether sentences manifestly excessive.
Appeal allowed in order to address discrepancy in the period of the overall NPP and date given for expiry of the NPP.

 

331


VALENSISE, Gino - CCA, 10.10.2006
Grove, Kirby & Hislop JJ
Citation: R v Valensise [2006] NSWCCA 315
Crown appeal.
Knowingly take part in the cultivation of a large commercial quantity of cannabis; + 3 offences on a Form 1 (deemed supply of cannabis leaf, ecstasy, methylamphetamine).
3y 4m with a NPP of 18m 30d.
Crop cultivation - large commercial quantity - role of participant - separate matters on Form 1 - major criminal enterprise.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 3y 4m with a NPP of 2y.

 

332


HIGGINS, Graham Patrick - CCA, 10.10.2006
Tobias JA, Grove & Bell JJ
Citation: R v Higgins [2006] 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 [2005] 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 [2006] NSWCCA 43)

Appeal dismissed.

 

333


CHISARO, Steven Fernando - CCA, 12.10.2006
Grove, Kirby & Hislop JJ
Citation: Chisari v R [2006] NSWCCA 325
Conviction appeal.
Maliciously inflict GBH with intent.
5y with a NPP of 2 y (This sentence was imposed following a successful Crown appeal: see R v Chisari [2006] NSWCCA 19).
The victim was a police officer investigating a complaint from the proprietor of a service station about a vehicle that had been left unattended & parked across the service station entrance, blocking access. The vehicle was registered to the respondent's brother. At some earlier stage, an infringement notice had been attached to the windscreen of the vehicle. The police officer placed a 2nd infringement notice on the vehicle, then made arrangements for a tow-truck to remove the vehicle. The tow-truck arrived & the operator began hooking the vehicle to the tow-truck so that it could be removed. At that point, the respondent & his brother arrived. The brother became agitated & abusive. The respondent unhooked the vehicle from the tow-truck & started it. He locked the door from inside while his brother continued behaving abusively & threateningly, shouldering the police officer away from the vehicle, whereupon the police officer pointed a can of capsicum spray at him. The respondent reversed the vehicle & then drove forward in the direction of where the police officer was standing. The police officer had no escape route & jumped onto the bonnet of the vehicle, attempting to hold onto the windscreen. The respondent accelerated the vehicle & the police officer rolled off the bonnet & fell to the ground. The respondent drove off, on the footpath & on to Parramatta Road. The vehicle's headlights were not on & he drove at high speed, swerving in & out of traffic. Two days later, in company with legal advisers, the respondent presented himself at a police station & handed in a statement in which he claimed the police officer, with his gun drawn, ran to the car, jumped on the bonnet & smashed the windscreen, resulting in the police officer being injured. The respondent denied that the injury had been his fault or that he had any intention of harming the police officer.
Trial process - discharge of ill juror - rulings by trial judge - no matter of particular principle.
Appeal dismissed.

 

334


AS - CCA, 22.9.2006 - 165 A Crim R 100
Mason P, Sully & Latham JJ
Citation: R v AS [2006] NSWCCA 309
Crown appeal.
1 x assault (armed with knife) and inflict GBH; 1 x robbery from the person; + 13 offences taken into account on a Form 1 (conspire to commit armed robbery; robbery with wounding; robbery from the person; assault; AOABH; robbery in company; resist arrest; intimidate police officer in execution of duty; offensive language; drive MV while unlicensed; malicious wounding; 2 x assault police officer).
Total sentence of 4y 3m with a NPP of 2y 9m.
Aged just over 14 years 5 months at time of 1st offence - within 16 days of 15th birthday at time of last offence.
Whether sentence manifestly inadequate - excessive weight given to 'mental deficits'- insufficient regard to future dangerousness - mental deficiencies not sufficient to completely downgrade need for general deterrence - insufficient weight given to injuries suffered by victim in Count 1 in assessing gravity of that criminal act.
Appeal allowed: resentenced to a total of 4y 9m with a NPP of 3y 9m (to be served in a juvenile institution).

 

335


D'AMICO, Phillip - CCA, 10.10.2006
Grove, Kirby & Hislop JJ
Citation: D'Amico v R [2006] NSWCCA 316
Sentence appeal.
3 x aggravated sexual assault upon person under 16; 1 x aggravated act of indecency towards person under 16 (in company); 1 x aggravated indecent assault upon person under 16; + Form 1 (aggravated act of indecency).
Total of 8y 3m with a NPP of 6 y.
Utilitarian value of guilty pleas - discount of 10% inadequate - whether sentence manifestly excessive.
Appeal allowed: resentenced to 7y 3m with a NPP of 5y 4m.

 

336


KOCER, Ali - CCA, 22.9.2006
McClellan CJ at CL, Buddin & Rothman JJ
Citation: Kocer v R [2006] NSWCCA 328
s.5F appeal against a determination of a DC judge.
Admissibility of evidence - ruling on evidence not an interlocutory order.
Appeal and stated case dismissed.

 

337


McNALLY, Martin Joseph - CCA, 2.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: McNally v R [2006] NSWCCA 248
Sentence appeal.
5 x BE&S.
3 y with a NPP of 2y 3m.
General/personal deterrence - protection of the community - priors - previous imprisonment.
Custodial sentence to be served in protective custody - no evidence as to future custodial circumstances - commencement date of sentence where delay in sentencing process - whether commencement date should be date of arrest or charge - totality - whether other sentence warranted in law.
Appeal dismissed.

 

338


LIVERMORE, Dean John - CCA, 20.10.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Livermore v R [2006] NSWCCA 334
Conviction appeal.
3 x sexual intercourse without consent; 1 x assault with act of indecency.
Grounds of appeal arose out of Crown Prosecutor's closing address, in particular, remarks about a Crown witness (complainant's boyfriend) in a manner that was alleged to have caused a miscarriage of justice. There were no issues relating to the admissibility of the evidence at trial nor the directions of the trial judge, other than those touching directly upon that portion of the Crown's address.
Whether miscarriage of justice - extravagant & improper submissions in Crown 's closing address - error in failure to discharge jury; error in failure to give appropriate directions - role & duties of prosecutor - need for compliance with professional ethical rules & statutory guidelines concerning duties of prosecutor.
Appeal allowed: new trial ordered.

 

339


CASSANITI, Salvatore Peter - CCA, 19.10.2006
Basten JA, Bell & Johnson JJ
Citation: Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335
BAIL - Power of Court of Criminal Appeal to review decision of single judge - power to grant bail where no valid notice of appeal - referral of review to a judge of the Supreme Court
Held: (1) Pursuant to r 3A(2) of the Criminal Appeal Rules, the period during which the notice of intention to appeal filed by the Respondent on 7 November 2005 has effect is extended up to and including 22 September 2006; (2) Pursuant to rule 76, the Court directs that such of the documents as should have accompanied the notice of appeal, but which have been filed subsequently, be accepted as properly filed on the date or dates on which they were filed; (3) The Court being satisfied that it has no jurisdiction to conduct a review of the bail determination made by Hidden J on 22 September 2006, refers the review of that decision to Basten JA, to conduct the review under s 45 of the Bail Act, as a judge of the Supreme Court sitting in the Common Law Division.

 

340


ABBAS, Danny - CCA, 19.10.2006
Spigelman CJ, Hoeben & Rothman JJ
Citation: R v Abbas [2006] NSWCCA 331
Conviction appeal.
2 x malicious shooting with intent to do GBH.
The shootings occurred at a New Year's celebration involving 200 to 300 patrons at a restaurant in Punchbowl. Significant quantities of alcohol had been consumed by some of those patrons, which explained the considerable discrepancy in eyewitness accounts as to the events. The 2 victims were shot within seconds of each other. Shortly before the shootings, 2 fights had occurred. The 1st involved some women & the 2nd involved a wider group of patrons. There were a number of witnesses to the shootings. The movement of individuals within the restaurant was recorded by security cameras, however, there was no camera either in or just outside the kitchen area where the shootings occurred, although a CCTV camera did record across the area in front of the kitchen entrance from the bar area. The Crown case was largely circumstantial & there were a number of discrepancies between the accounts of the respective witnesses. The defence case at trial was that the Crown case did not establish that the appellant was the shooter to the requisite standard.
Absence of blood on appellant's face in video evidence - contradictions between witness descriptions of the gunman & the actual appearance of the appellant - witness statements that the gunman left through the main reception, contrary to the accepted departure point for the appellant through the kitchen - absence of evidence to support Crown contention that security camera showed appellant carrying a gun - witness evidence that was contrary to the Crown case that the appellant was the gunman - verdict cannot be supported having regard to the evidence.
Appeal allowed: new trial ordered.

 

341


SALVAGGIO, Jacob - CCA, 12.10.2006
Grove, Kirby & Hislop JJ
Citation: Salvaggio v R [2006] NSWCCA 327
Sentence appeal.
2 x armed robbery; 1 x robbery in company; + Form 1 offences.
Total of 7y with a NPP of 4 y.
Counts 1 & 2 and the 2nd offence on the Form 1 involved the applicant phoning a person who had advertised his motor vehicle for sale & arranging to inspect the vehicle. Later he & another male inspected the vehicle & asked to test drive it. On each occasion, he & the other male got into the car with the owner & after driving the vehicle a short distance the applicant pointed a pistol at the owner & ordered him from the vehicle which was then driven off. In the case of counts 1 & 2, the owner's mobile phone was also taken. In the case of the 2nd offence on the Form 1, the owner's bank cards were taken & used to withdraw $1,900. The 1st offence on the Form 1 involved the same method of operation except that a pistol was not used. The cars (other than the car involved in the 1st Form 1 offence) were not recovered & were valued in the range of $30,000 to $40,000 each. The 3rd count involved the hold-up of an attendant in a service station shop in the early morning. Entry to the shop was via automatic doors that, at that time of the morning, were operated by the attendant pressing a button behind the counter. A customer arrived at the doors, the attendant opened them to admit him & whilst the doors were slowly closing 3 male persons, one of whom was the applicant, entered the shop. One of the persons (not the applicant) was carrying a gun with which he threatened the attendant & customer. Between $300 & $400 in cash & cigarettes worth approx $4,000 were stolen.
Aged 23 at time of offending - early guilty plea - close-knit/supportive family - remorse - no priors.
Whether sentence manifestly excessive - whether insufficient weight given to duress.
Appeal dismissed.

 

342


WHITE, Leslie - CCA, 20.10.2006
Hidden, Bell & Johnson JJ
Citation: White v R [2006] NSWCCA 340
Sentence appeal (extension of time).
Import trafficable quantity MDMA (ecstasy).
10y with a NPP of 6y.
The applicant left Sydney by air on a journey to Japan, Amsterdam & Bangkok, before returning 15 days later. On the day following her arrival back in Sydney, she went to the Australian Customs Building at Mascot to collect a pair of snow skis she had sent by air-freight from Bangkok to Sydney. Examination revealed that each of the skis had a hollowed section & that each hollowed section contained a quantity of tablets. There were approximately 1,300 tablets in all, weighing 463.4 grams. Analysis revealed that they contained MDMA (101.4 grams pure MDMA). The tablets were said to have a wholesale value of $19,500.00 ($15.00 per tablet) & a street value of $65,000.00 ($50.00 per tablet). Upon further investigation, it was discovered that the applicant possessed a router, a receipt for the purchase of the router & pots of glue & ski parts in her home.
Aged 61 at time of offending - guilty plea - applicant a male-to-female transsexual - long history of gender-identity issues - prior criminal history - previous drug importation - previous imprisonment.
Whether sentence manifestly excessive - whether insufficient weight given to mitigating circumstances - failure of defence counsel to act within directions issued by applicant.
Appeal dismissed.

 

343


OLIVE, Jarrod Michael - CCA, 12.10.2006
Tobias JA, Grove & Bell JJ
Citation: Olive v R [2006] NSWCCA 329
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon.
2y 3m with a NPP of 15m.
The applicant went into a video store & told the female owner 'I've got a syringe. I've got HIV, open the till, give me the money'. The woman could see that he had a syringe with red liquid in it & she jumped back. The applicant leapt up over the counter, grabbed her by both hands & told her to open the till, while squeezing hard on her fingers. The woman thought that he still had the syringe in his hand & called out to her husband who had come towards her at this point. When the applicant saw the male owner coming towards him, he jumped over the counter, over an ice cream dispenser & ran out of the store. The male owner chased him, but the applicant escaped. He was arrested following the examination of fingerprints taken from the ice cream dispenser & the counter. There was also video footage available. The applicant was not wearing a mask or any other disguise.
Whether sentence manifestly excessive - hearsay issues - pre-sentence report by Adult Probation & Parole Service - whether sufficient weight given to subjective matters - whether failure of appellant's solicitor to give proper & adequate advice to appellant throughout proceedings.
Appeal dismissed.

 

344


SINGH, Vikramdeep - CCA, 18.10.2006 - 164 A Crim R284
Basten JA, Whealy & Latham JJ
Citation: Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333
Conviction and sentence appeal.
Maliciously inflict GBH in company; steal; assault with intent to rob; malicious damage to property.
9y 4m with a NPP of 7 y.
The offences arose out of a fight involving the appellant, his co-accused, an unidentified male & 2 victims.
Whether conduct of case run at trial by counsel for co-accused was inflammatory as against the appellant, to the extent of it being improper or unfair to appellant by portraying co-accused as 'peacemaker'& appellant as 'villain'- whether trial judge erred in refusing to allow appellant's counsel to cross-examine co-accused as to certain matters of credit; whether error in not giving warning to jury as to risks of relying on co-accused's evidence against appellant; whether error in failing to give specific directions with respect to evidence of flight, evincing a consciousness of guilt; whether error in finding there were no 'special circumstances' for purposes of s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW) - whether miscarriage of justice - whether sentence excessive.
Appeal dismissed.

 

345


JUKES, Lacy Lee - NSW SC, Hoeben J, 13.10.2006
Citation: R v Jukes [2006] NSWSC 1065
Remarks on Sentence.
Manslaughter.
The prisoner stabbed the deceased once during a domestic situation.
Unlawful & dangerous act - guilty plea - special circumstances.
Sentenced to 12m suspended for a period of 2y.

 

346


THOMAS, Natasha Jade - CCA, 6.10.2006
Sully, Barr & Adams JJ
Citation: Thomas v R (Cth) [2006] NSWCCA 313
Sentence appeal.
2 x Social Security fraud.
2 y with a NPP of 12m.
The applicant received various benefits using 2 different names. In some applications, she falsified her birth date & the birth date of the man with whom she was then living.
Whether sentence excessive.
Appeal dismissed.

 

347


TRUONG, Vinh Hai - CCA, 6.10.2006
Tobias JA, Howie & Rothman JJ
Citation: Truong v R [2006] NSWCCA 318
Sentence appeal.
Knowingly take part in supply of heroin.
2 y with a NPP of 1y 10m.
The applicant's involvement in the supply of heroin was discovered following ongoing investigation by undercover police operatives.
Aged 28 at time of offending - long criminal record - first sentenced in Children's Court for drug offences - previous imprisonment.
Relevance of amount of drug supplied - whether sentence excessive.
Appeal dismissed.

 

348


BURGESS, Robert James - CCA, 6.10.2006
Sully, Adams & Howie JJ
Citation: R v Burgess [2006] NSWCCA 319
Crown appeal.
1 x supply commercial quantity methylamphetamine; 1 x supply cannabis; + Form 1 (goods in custody).
4y with a NPP of 3y.
An agreed statement of facts was tendered. The respondent's involvement was uncovered following an ongoing investigation by police into the supply of methylamphetamine. Initially, the target of this operation was the respondent's father-in-law, Kevin White, who was a street supplier of the drug. Between December 2004 & April 2005, undercover police operatives purchased methylamphetamine from White on 10 occasions. During that operation, the respondent was identified as being White's supplier.
Relevance of standard NPP after plea of guilty - failure to identify level of offending - failure to give reasons for departing from standard NPP - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 8y with a NPP of 5 y.

 

349


ALAMEDDINE, Abdel Hamid - CCA, 10.10.2006
Grove, Kirby & Hislop JJ
Citation: Alameddine v R [2006] NSWCCA 317
Sentence appeal.
1 x manufacture methylamphetamine; 1 x possess precursor (pseudoephedrine) intended for use in manufacture of methylamphetamine.
Total sentence of 4y with a NPP of 18m.
The appellant, who was a drug addict, allowed his premises to be used for the manufacture of amphetamine. When his arrest was imminent, the applicant accidentally caused the laboratory to explode & suffered serious burn injuries with long-term consequences.
Extra curial punishment - mitigation - whether sentence excessive.
Appeal allowed: resentenced to a total of 3y with a NPP of 18m.

 

350


GHAZI, Mohammed - CCA, 10.10.2006
Tobias JA, Howie & Rothman JJ
Citation: Ghazi v R [2006] NSWCCA 320
Sentence appeal.
Malicious wounding with intent to do GBH.
10 y with a NPP of 6y.
The offence occurred following an incident at a gymnasium.
Error in application of s.44 Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Appeal allowed: resentenced to 9y 7m with a NPP of 5y.

 

351


WARD, Trevor Alan - CCA, 10.10.2006 - 166 A Crim R 273
Tobias JA, Howie & Rothman JJ
Citation: Ward v R [2006] NSWCCA 321
Conviction appeal.
Manslaughter.
The appellant stabbed his male neighbour in the throat - the deceased had kicked the appellant with steel capped boots & had punched him in the head - penknife used to open letters - not reasonable response to assault - history of poor relationship between neighbours
s.418(2) & s.421 Crimes Act 1900 - whether judge's repeated references to alternative verdict led jury to believe that a complete acquittal was not reasonably open to it.
Appeal dismissed.

 

352


NAIM, Fares - CCA, 5.9.2006
Giles JA, Sully & Latham JJ
Citation: Naim v R [2006] NSWCCA 289
Sentence appeal.
1 x supply methylamphetamine; 1 x supply large commercial quantity methylamphetamine; + Form 1 offence (supply ketamine).
Total of 9y with a NPP of 6y.
The offences were committed upon 2 separate days. The applicant was on a bond at the time of the offences.
Operation of standard NPP.
Appeal dismissed.

 

353


JPW - CCA, 1 September 2006
Spigelman CJ, McClellan CJ at CL, Sully J
Citation: R v JPW [2006] NSWCCA 294
Crown appeal.
Maliciously inflict GBH with intent to prevent lawful apprehension of a friend..
3y GBB.
The respondent & his young friend were at a shopping centre in Orange. When the friend was caught in the act of stealing goods from one of the shops, a uniformed security guard tried to apprehend him, whereupon a fracas broke out. The respondent was standing nearby at the time. Closed circuit TV coverage suggested that the respondent had watched for a period of about 13 seconds & had then entered the fray to help his friend. In doing so, the respondent kicked the uniformed security guard to the head. The security guard suffered severe facial & cranial injuries & was hospitalised for 3 days in Orange, then flown to Sydney & hospitalised for 2 days in the intensive care unit at Baulkham Hills Hospital & for a further 8 days in the ordinary wards of that hospital. He was prescribed medication & may have to use medication for the rest of his life. Ever since his discharge from hospital, he has suffered from a number of serious post-traumatic disorders, including stress, anxiety, disturbed sleep patterns, some short term memory loss, recurring headaches, a sharply reduced capacity for sustained physical exertion & a deterioration in his temperament & in his capacity to deal normally with his family responsibilities & with his general social contacts & relationships.
Aged 15  at time of offending - prior good character - rehabilitation - general deterrence.
Whether sentence manifestly inadequate.
Appeal dismissed.

 

354


HATCH, Matthew - CCA, 12.10.2006
Tobias JA, Grove & Bell JJ
Citation: R v Hatch [2006] NSWCCA 330
Crown appeal.
Specially aggravated entry into house with intent to commit indictable offence (AOABH).
12m suspended sentence.
Failure to control anger arising out of partner's conduct with former associate.
Whether sentence manifestly inadequate.
Appeal dismissed.

 

355


HEILPERN, Jesse Daniel - CCA, 22.9.2006
McClellan CJ at CL, Buddin & Rothman JJ
Citation: Heilpern v R [2006] NSWCCA 311
Sentence appeal.
2 x supply ecstasy (33.9 grams & 67 grams).
Total of 3y with a NPP of 18m.
In 2004, the Richmond Local Area Command Drug Unit commenced an investigation into the distribution of ecstasy & cannabis in the Northern Rivers region of NSW. As a result, the applicant & his younger brother were identified as being the source of the supply of ecstasy to a man named Peter Massie.
Aged 20 at time of offending - drug dependence - spent total of 103 days in custody following arrest - released on bail on condition he enter the drug rehabilitation programme conducted by Odyssey House - at time of sentence had spent in excess of 9m in that programme - sentencing judge adjourned proceedings to enable applicant to complete programme.
Significance of time spent in Odyssey House - significance of Form 1 matters - whether guilty pleas taken into account - whether necessary to have regard to finding of 'special circumstances'in respect of both sentences - whether applicant in fact on a bond.
Appeal allowed: resentenced to a total of 3y with a NPP of 1y 3m. The effect of the orders was that the applicant be released immediately.

 

356


WNB - CCA, 5.9.2006
Basten JA, Whealy & Howie JJ
Citation: WNB v R [2006] NSWCCA 269
Sentence appeal.
Take child from lawful control of Minister of Department of Community Services (s.87(1) Crimes Act 1900).
18m with a NPP of 9m.
DOCS placed the applicant's young female child into the care of foster parents. The placement into care had nothing to do with the behaviour of the applicant. Arrangements were made for members of the applicant's family to have access to the child & a date was arranged. On the morning of that day, the child & her carer were met by a large number of the applicant's family at a public park. Shortly thereafter, the applicant came over to the group & played with his daughter. After a brief time, he picked up the child & ran off, disappearing down an alleyway & into a car. The applicant took the child to Queensland where the child's natural mother & the couple's other children were living. No harm came to the child during this time & the family relationship seemed to have been quite normal while living in Queensland.
Guilty plea - significant criminal history - steps taken to gain control of life - visited children every day whilst out on bail - helped with older children's schooling.
Existence of special circumstances - sentencing remarks unclear whether facts taken into account were circumstances of aggravation & warranted court 's interference - whether sentence excessive.
Appeal allowed: resentenced to 12m with a NPP of 6m.

 

357


SGARDELIS, John - CCA, 24.10.2006
Sully, Adams & Howie JJ
Citation: Sgardelis v R [2006] NSWCCA 338
Conviction appeal.
5 x sexual intercourse without consent; 3 x attempt sexual intercourse without consent; 1 x detain with intention of obtaining sexual gratification.
Total sentence of 5y with a NPP of 2 y.
The appellant stood trial on 13 counts in all. He was acquitted on 4 counts & found guilty on 9 counts.
The appellant challenged the 9 convictions upon the ground that the verdicts of guilty were 'unreasonable'. The substance of that challenge was that there was such an inconsistency between the 4 verdicts of not guilty & the 9 verdicts of guilty that the latter ought not to be allowed to stand.
Appeal allowed: judgment of acquittal entered.

 

358


VANN, Mao - CCA, 25.8.2006
Beazley JA, Hulme & Hislop JJ
Citation: R v Vann [2006] NSWCCA 260
Crown appeal.
Murder; armed robbery (home invasion); supply heroin; + Form 1 offences.
The home invasion was carried out with 2 other persons. The respondent shot & killed a person in a cinema. When police searched his premises, they found 2.7g of heroin, as well as supply equipment
Aged 20 at time of offences - guilty pleas - previous convictions.
Whether NPP failed to reflect seriousness of robbery offence - whether judge failed to fix discrete NPP for robbery offence - whether degree of concurrence for sentences too high - whether judge fixed term that had already expired for drug offence.
Appeal allowed: respondent resentenced.

 

359


VINCENT, Jamieson - CCA, 28.8.2006
Spigelman CJ, Whealy & Howie JJ
Citation: R v Vincent [2006] NSWCCA 276
Crown appeal.
2 x supply commercial quantity MDMA (ecstasy): + Form 1 (supply 275 grams ecstasy, deemed supply of 80.7 grams cocaine, possess 0.48 grams amphetamine, possess knuckle duster).
Total sentence of 5y 6m with a NPP of 3 y.
The respondent twice supplied drugs to undercover police operatives. He was arrested & a search warrant was executed, during which 80.7 grams of cocaine (street value $18,000), 48 grams of amphetamine (street value $200) & a set of knuckle-dusters were located.
Dominant role in substantial, planned operation - reasonable prospects of rehabilitation - general & personal deterrence - prior convictions.
Whether sentence manifestly inadequate - circumstances in which moral culpability of offender involved in actual offence is greater than accessory.
Appeal allowed: resentenced to a total of 8y with a NPP of 5y
360
PULINGGAM, Jesengar - CCA, 10.5.2006 - 162 A Crim R 78
McClellan CJ at CL, James & Hall JJ
Citation: Pulinggam v R (Cth) [2006] NSWCCA 145
Conviction appeal.
Import prohibited goods (counterfeit credit cards) - s.233BAB Customs Act (Cth).
6y with a NPP of 3y 8m.
The appellant imported credit cards that were cut but not embossed & were incapable of being read. Employees from Visa & MasterCard gave conflicting evidence as to whether the cards were complete & whether, in their opinion, they were counterfeit. The trial judge refused to direct a verdict of not guilty.
Whether open to jury to conclude credit cards were counterfeit.
Appeal allowed: verdict of acquittal entered. Imported cards were incomplete and therefore not capable of being found to be counterfeit.

 

361


GRACE, Rebecca - CCA 28.9.2006
Giles JA, Grove & Hidden JJ
Citation:  Grace v R [2006] NSW CCA 286
Sentence appeal.
BE&S.
3y with a NPP of 18m.
The applicant committed the above offence with a co-offender. The offence took place late at night in the IT section of St Vincent's Hospital. An alarm was activated by the offenders. Two security guards attended & found a broken glass door. The co-offender, who was carrying a computer bag, was confronted by the guards. One of the guards took hold of his wrist but the co-offender broke free & produced a screwdriver from his pocket & waved it at the guard. When the guard insisted that the screwdriver be put down, the co-offender threatened to stab him. One of the security guards hit the co-offender on the arm with his baton & he dropped the screwdriver & ran away. When he was caught & arrested, he was found to be in possession of a lap-top computer & other items from the IT section. When another security guard inspected the IT area, he found the applicant crouched behind a desk. In her bag she had a pager & a remote control taken from the IT area.
Applicant sentenced to same term as co-offender - relativity of sentences - whether applicant entitled to be dealt with more leniently than co-offender - whether justifiable sense of grievance.
Appeal allowed: resentenced to 2 y with a NPP of 1y 3 m.

 

362


GALLANT, Peter John - CCA, 26.10.2006
McClellan CJ at CL, Adams & Howie JJ
Citation: Gallant v R [2006] NSWCCA 339
Conviction and sentence appeal.
2 x sexual assault.
5y with a NPP of 3y 9m.
Omission by defence counsel to lead character evidence - whether miscarriage of justice resulted - whether directions on consent erroneous or misleading - sentence - relevance of character evidence - failure of judge to refer to special circumstances in setting NPP.
Appeal dismissed.

 

363


DPW - CCA, 20.9.2006 - 164 A Crim R 583
Hunt AJA, Barr & Johnson JJ
Citation: DPW v R [2006] NSWCCA 295
Conviction appeal.
Sexual intercourse without consent with child under 16.
The appellant was convicted of having committed the above offence, which occurred in October of 2000. He was only made aware of the allegation made against him by the complainant in September of 2004.
Effect of delay in complaint on appellant's ability to mount a defence - whether direction adequate.
Appeal dismissed.

 

364


DEAN, Phillip John - CCA, 26.10.2006 - 166 A Crim R 341
Tobias JA, Grove & Bell JJ
Citation: Dean v R [2006] NSWCCA 341
Conviction and sentence appeal.
Sexual intercourse without consent.
10y with a NPP of 7y.
At trial, the appellant claimed that the sexual intercourse was consensual. The complainant maintained that it was not consensual as she was asleep at the time.
Summing up - issue of consent - directions - whether misdirection - onus of proof - whether onus reversed - standard of proof - meaning of proof beyond reasonable doubt - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed in part: resentenced to 9y 4m with a NPP of 7y.

 

365


WALLACE, Michael Anthony - NSW SC, James J, 8.9.2006
Citation: R v Wallace [2006] NSWSC 897
Remarks on Sentence.
Murder.
The prisoner shot a female friend in the back of the head then buried her body.
Aged 55 - not guilty plea - prior criminal record for drug offence - breached parole - onerous custodial conditions - brain damage caused by prison assault.
Sentence: 20y with a NPP of 14y.

 

366


RAG (DPP v) - CCA, 26.10.2006
McClellan CJ at CL, Johnson & Latham JJ
Citation: Director of Public Prosecutions v RAG [2006] NSWCCA 343
s.5F appeal by the Crown.
The appeal followed a ruling in the DC that the complainant was not competent to give unsworn evidence, according to the criteria required by s.13(2) Evidence Act 1995 concerning alleged sexual assaults committed upon her by the respondent. It was submitted by SC for the respondent that an appeal did not lie against the decision, either under s.5F(2) or s.5F(3A). The jurisdictional issue assumed some prominence in the respondent's argument because it was recognised that the merits of the trial judge 's decision were difficult to defend in the light of the unusual background to the proceedings. The complainant had come before the DC to give evidence in the respondent's trial for the 5th time, there being 4 previous inconclusive trials where the complainant's competency to give unsworn evidence had been established.
Complainant aged 6 at time of alleged offences & 7 years 10 months at time of giving evidence.
Whether error in the trial judge finding that the complainant was not competent to give unsworn evidence.
Appeal allowed: decision of the DC trial judge set aside.

 

367


TIWARY, Ram Puneet - NSW SC, Adams J, 6.11.2006
Citation: R v Tiwary [2006] NSWSC 1156
Remarks on Sentence.
2 x murder.
The offender murdered his 2 flatmates. Each died as a result of massive blunt force head injuries. Motive unknown.
Sentenced to life imprisonment.

 

368


DRE - CCA, 7.9.2006 - 164 A Crim R400
Spigelman CJ, Simpson & Adams JJ
Citation: DRE v R [2006] NSWCCA 280
Conviction appeal.
1 x common assault; 1 x aggravated indecent assault; 2 x sexual intercourse with child under 10; 1 x attempt aggravated indecent assault.
This appeal followed a retrial.
All offences involved the same male child when aged between 6 & 9 years. Appellant was his stepfather.
Significance of delay in complaint - Longman direction - whether adequate.
Appeal dismissed.

 

369


SHEEHAN, Ronald John - CCA, 3.11.2006
Handley JA, Kirby & Hoeben JJ
Citation: Sheehan [No.2] v R [2006] NSWCCA 332
Sentence appeal
Sexual intercourse with child under 16 (complainant then aged 11).
7 y with a NPP of 5y.
This appeal against sentence followed an appeal against conviction where the appeal was allowed on some counts & a new trial was ordered on those counts: see Sheehan v R [2006] NSWCCA 233. The conviction on the remaining count (count 10) was confirmed.
Whether sentence on remaining count anomalous & excessive.
Appeal allowed: resentenced on count 10 to 6y with a NPP of 4y.

 

370


EVANS, Greg - CCA, 3.11.2006
Tobias JA, Grove & Bell JJ
Citation: Evans v R [2006] NSWCCA 349
Conviction and sentence appeal.
2 x fraudulent receipt of Commonwealth benefits.
Total of 28m with a NPP of 12m.
The offences involved the appellant fraudulently receiving various benefits from the Commonwealth in the name of Greg Evans to which he was not entitled as he was also in receipt of benefits in the name of Gregory Evangelatos.
Whether verdict unsafe - whether sentence excessive.
Appeal dismissed.

 

371


LENARD, Michael - CCA, 1.11.2006
FAIL, Michael
Beazley JA, Sully & Hislop JJ
Citation: R v Lenard; R v Fail [2006] NSWCCA 345
Crown appeals.
1 x demand money with menaces; 1 x do an act with intent to influence witness.
Leonard: total sentence of 3y 2m with a NPP of 1y 7m.
Fail: total sentence of 3 y with a NPP of 1y 9m.
Money demanded in exchange for return of witness' property. Threats made to procure change of witness' statement.
Integrity of criminal justice system - importance of general deterrence - whether sentences manifestly inadequate.
Appeals allowed, respondents resentenced as follows:-
Lenard: total sentence of 4 y with a NPP of 2y 1m.
Fail: total sentence of 4 y with a NPP of 2y 3m.

 

372


WALKER, John - CCA, 1.11.2006
Spigelman CJ, Sully & Hislop JJ
Citation: Walker v R [2006] NSWCCA 347
Sentence appeal.
Maliciously attempt to wound with intent to do GBH.
3y with a NPP of 18m (including 37 days of pre-sentence custody).
The above offence was perpetrated by the applicant upon his wife.
Aged 41 - married for 15 years - had 2 teenage children - exemplary employment record - prior good character - no priors.
Whether sentence manifestly excessive.
Appeal dismissed.

 

373


DRINAN, Anthony Stewart - CCA, 22.9.2006
Spigelman CJ, Hoeben & Rothman JJ
Citation: Drinan v R [2006] NSWCCA 303
Sentence appeal.
1 x malicious damage - s.9 bond;
1 x assault - s.9 bond;
1 x aggravated BE& commit serious indictable offence - 6y with a NPP of 2 y.
The victim, who has a mild mental disability, was violently assaulted in his home by the applicant & his co-offender. When the offenders eventually left, they did not call any assistance for the victim. The victim was severely injured & it was only on the following day that he could summon help. He was taken to hospital where he was found to be suffering from a badly broken jaw & severe bruising to the left side of his body. He underwent surgery & the insertion of plates. The applicant entered a plea of guilty soon after his arrest.
Whether use of standard NPP was inappropriate - parity - whether sentences manifestly excessive.
Appeal dismissed.

 

374


POTTER, Anthony Shane - NSW SC, Johnson J, 3.11.2006
Citation: R v Potter [2006] NSWSC 1174
Judgment on application that life sentence redetermination application be heard by way of audio-visual link.
Following discussion in Court between the Crown, the applicant (via audio-visual link to Junee Correctional Centre) & the presiding judge, it became apparent that the applicant proposed to give evidence that would involve cross-examination. After discussion with respect to the practicalities of the matter proceeding by audio-visual link, the Crown indicated that it did not consent to the matter proceeding in that way & therefore s.5BB(2) of the Evidence (Audio and Audio Visual Links) Act 1998 no longer had application.
Application adjourned for hearing in Sydney.

 

375


WEBSTER, Michael Paul - CCA, 8.11.2006
Beazley JA, Sully & Hislop JJ
Citation: Webster v R [2006] NSWCCA 346
Sentence appeal.
1 x armed robbery (knife); assault & commit an act of indecency; 1 x threaten to inflict ABH with intent to have sexual intercourse.
Total sentence of 11y with a NPP of 9y.
The applicant followed the victim off a train late at night attacked her in the street.
Whether sentences manifestly excessive - parole order & certain parole conditions.
Appeal allowed only to set aside parole order & conditions attached. Otherwise, appeal dismissed.

 

376


DOOLAN, Rachel Beryl - CCA, 8.11.2006
McClellan CJ at CL, Hidden & Hall JJ
Citation: Doolan v R [2006] NSWCCA 344
Sentence appeal.
Robbery in company. 4 y with a NPP of 2 y.
The applicant & her co-offender robbed a young woman at Waterloo in the early afternoon.
Aged 31 at time of offence - guilty plea - Aboriginal - tragic history - psychiatric condition - history of schizophrenia since early teens - alcohol & illicit drug abuse - has 2 children to different fathers - criminal record for relatively minor matters - no previous imprisonment.
Whether adequate weight given to mental illness.
Appeal dismissed.

 

377


MUNRO, Raymond John - CCA, 8.11.2006
Beazley JA, Sully & Hislop JJ
Citation: Munro v R [2006] NSWCCA 350
Sentence appeal.
1 x maliciously inflict GBH with intent to cause GBH: + Form 1 (AOABH).
10y 2m 10d with a NPP of 5y 6m.
The applicant was at a nightclub, after having attended a party. He had consumed alcohol at the party & at the nightclub. An incident occurred at the nightclub in which the applicant punched Jay Tobin, who responded by punching the applicant. A scuffle ensued. The applicant was then escorted from the premises. Shortly thereafter, Tobin & Michael Smit left the nightclub & were walking to catch a taxi. Smit heard the applicant yelling & he decided to go & talk to him. A verbal dispute broke out & the applicant hit Smit on his head with such force that Smit fell backwards onto the ground. He remained motionless, whereupon the applicant kicked him to the head & stomped on his head twice. Smit was seriously injured & was taken to Manly hospital in a critical condition. His injuries included a basal skull fracture with acute extradural haemorrhage on the right with mass effect, fractures of the medial walls & floor of the orbits, fractures of the frontal & ethmoidal sinuses, a fracture of the right temporal bone extending into the facial nerve canal, dislocation of the right middle ear ossicles & a subdural haematoma. He also suffered damage to the cartilage in his right knee. He has ongoing serious disabilities, including a significant hearing loss to his right ear & partial paralysis to the right side of his face. His memory & concentration have been adversely affected & he suffers depression, believed to have been caused by scarring to the brain.
Guilty plea - Aboriginal - subjective circumstances - significantly disadvantaged background.
Applicant represented at trial by counsel instructed by ALS - trial judge noted inadequacy of evidence - evidence adduced to minimise objective criminality was in hearsay form.
Whether incompetent counsel or tactical decision - whether sentencing process miscarried due to incompetent representation by counsel.
Appeal allowed: sentence quashed, matter remitted to the DC for re-sentence.

 

378


DARWICHE, Abdul - NSW SC, Bell J, 14.2.2006
Citation: R v Darwiche [2006] NSWSC 922
Application by Crown to substitute indictment.
Leave granted to Crown to substitute an indictment charging accused in the alternative with a count of discharging a loaded firearm with intent to do GBH.

 

379


DARWICHE, Abdul - NSW SC, Bell J, 14.2.2006
Citation: R v Darwiche [2006] NSWSC 878
Application for costs.
Certificate declined.

 

380


DARWICHE, Abdul - NSW SC, Bell J, 8.3.2006
Citation: R v Darwiche [2006] NSWSC 848
Judgment on Prasad direction. ( Prasad (1979) 23 SASR 161)
Shoot with intent to murder; in the alternative, maliciously discharge a loaded firearm with intent to do GBH.
Verdict: not guilty on both counts.

 

381


DARWICHE, Adnan - NSW SC, Bell J, 31.3.2006
Citation: R v Darwiche [2006] NSWSC 923
Motion sought for separate trial.
Accused's motion dismissed. Leave granted to Crown to substitute indictment in the form of draft handed up on 29.3.2006

 

382


DARWICHE, Adnan - NSW SC, Bell J, 19.4.2006 - 166 A Crim R 28
Citation: R v Darwiche & Ors [2006] NSWSC 924
Judgment on picture identification and com-fit images.
Held: Picture identification evidence, evidence concerning creation of com-fit image & the image admitted.

 

383


DARWICHE, Adnan - NSW SC, Bell J, 19.4.2006
Citation: R v Darwiche & Ors [2006] NSWSC 926
Application for evidence to be taken by audiovisual link.
Evidence of Mr W & Mr X to be taken by audio-visual link.

 

384


DARWICHE, Adnan - NSW SC, Bell J, 19.4.2006
EL-ZEYAT, Nasaem
AOUAD, Ramzi
OSMAN, Abass
Citation: R v Darwiche & Ors [2006] NSWSC 927
Application for discharge of jury.
Pre-trial publicity - broadcast prejudicial to the accused
Applications for discharge of jury refused.

 

385


DARWICHE, Adnan - NSW SC, Bell J, 30.5.2006
EL-ZEYAT, Nasaem
AOUAD, Ramzi
OSMAN, Abass
Citation: R v Darwiche & Ors [2006] NSWSC 929
Application by Crown for leave to substitute an indictment joining additional counts that were preferred ex-officio against the accused Adnan Darwiche, together with applications made by each accused for the separate trial of certain of the counts.
Motions filed by Darwiche, El-Zayet, Osman & Aouad dismissed.
Leave granted to Crown to substitute proposed indictment for indictment upon which each accused was previously arraigned.

 

386


DARWICHE, Adnan - NSW SC, Bell J, 18.7.2006
EL-ZEYAT, Nasaem
AOUAD, Ramzi
OSMAN, Abass
Citation: R v Darwiche & Ors [2006] NSWSC 928
Witness with speech impediment.
Evidence of witness to be taken by audio-visual link.

 

387


DARWICHE, Adnan - NSW SC, Bell J, 10.11.2006
EL-ZEYAT, Nasaem
AOUAD, Ramzi
OSMAN, Abass
Citation: R v Darwiche & Ors [2006] NSWSC 1167
Remarks on Sentence.
Darwiche: maliciously discharge loaded firearm with intent to do GBH; shoot with intent to murder; 2 x murder.
El-Zeyat, Aouad, Osman: 2 x murder.
El-Zeyat & Aouad were convicted at an earlier trial of the murder of another person. The sentence hearing was stood over until the conclusion of the second trial.
The above offences related to the murder of 2 people who died when a home was peppered with more than 50 bullets. The killings were part of a long-running feud between the Darwiche & Razzak families which was re-ignited when Adnan Darwiche carried out a drive-by shooting at the Razzak 's family home. Osman drove the offenders to the scene.
Sentences:
Darwiche: Life imprisonment.
El-Zeyat: Life imprisonment.
Aouad: Life imprisonment.
Osman: 27y with a NPP of 22y.

 

388


SMITH, Michael Robert - CCA, 10.11.2006
Hidden, Bell & Johnson JJ
Citation:R v Smith [2006] NSWCCA 353
Sentence appeal.
6 x sexual offences; + 3 further charges on a Form 1.
Total sentence of 6y with a NPP of 3y 3m.
Five offences were committed when complainant was aged between 8 & 12 years. The final one occurred when the complainant was aged 17. The respondent was the friend of the complainant's stepfather.
Guilty pleas entered in the LC - depression, anxiety & adjustment disorder - receiving counselling - ashamed of behaviour - family life ruined as a result of offences.
Appeal allowed in part: resentenced on count 6; sentence on count 1 confirmed; commencement dates for sentences on counts 2-5 varied.
Total new sentence of 7y 9m with a NPP of 5y.

 

389


CHAABAN, Nazmi - CCA, 14.11.2006 - 166 A Crim R 406
Baston JA, Hidden & Bell JJ
Citation: R v Chaaban [2006] NSWCCA 352
Crown appeal against sentences imposed by the CCA (s.5DA Criminal Appeal Act): see R v Chaaban [2006] NSWCCA 107.
The instant appeal followed an earlier Crown appeal.
Respondent's failure to fulfil undertaking to give evidence against co-offender - respondent threatened & assaulted - Court's discretion not to intervene.
Appeal allowed: resentenced to a total of 6y 8m with a NPP of 3y 10m.

 

390


RLT - CCA, 10.11.2006
Sully, Adams & Hall JJ
Citation: RLT [2006] NSWCCA 357
Conviction appeal.
Malicious wounding with intent to do GBH (s.33 Crimes Act 1900 (NSW)); malicious wounding (s.35(1)(a)).
10y with a NPP of 6y.
The 4 year old victim suffered a 4cm cut to his penis which he claimed had been inflicted by the applicant. The victim said that the applicant cut his penis because he kept wetting his bed.
Possibility that victim's mother caused the injury - trial judge's criticism of defence counsel - error in trial judge's approach to the rule in Browne v Dunn & in his application of the authority in Birks - misunderstanding of role of defence counsel & defence case - failure to discharge jury - delay in complaint - failure to direct as to forensic disadvantage - error in making comments in summing-up calculated to undermine impact of any warnings relating to delay - impermissible cross-examination of witness - failure to properly & adequately direct on malice, intent, GBH - rejection of DOCS assessment report - incompetent representation - miscarriage - verdict unreasonable.
Appeal allowed: new trial ordered.

 

391


PERRY, Stefon - CCA, 8.11.2006 - 166 A Crim R 383
Spigelman CJ, Howie & Rothman JJ
Citation: Perry v R [2006] NSWCCA 351
Sentence appeal.
1 x murder - 25y,NPP 8y 9m; 2 x aggravated indecent assault (child under 10) - 6y, NPP 4y 3m.
Total sentence: 25y with a NPP of 20y 9m.
The applicant pleaded guilty to the murder of Karen Newby & 2 counts of aggravated indecent assault on the deceased's 7 year old child on the same evening.
The manner of setting the sentence was contrary to the provisions of s.44 Crimes (Sentencing Procedure) Act 1999.
Use of statutory NPP as more than a guideline - use of statutory NPP as starting point for calculation of sentences - misuse of standard NPP - objective seriousness - inappropriate reduction of discount for earliest plea of guilty based on other than utilitarian value of plea.
Appeal allowed: applicant resentenced, resulting in a total sentence of 25y with a NPP of 19y 9m.

 

392


SCIBERRAS, Carmel - CCA, 5.9.2006
Beazley JA, Hulme & Hislop JJ
Citation: R v Sciberras [2006] NSWCCA 268
Crown appeal.
1 x ongoing supply of methylamphetamine & MDMA (ecstasy); 1 x supply commercial quantity methylamphetamine; 1 x supply cannabis; 1 x supply commercial quantity MDMA (ecstasy).
All sentences were made concurrent, resulting in a total of 6 y with a NPP of 4y.
In response to information received, police undertook an undercover operation & monitored 2 phone numbers used by the respondent over some 5  months. Information gathered proved that the respondent was trafficking in more than one drug. There was evidence that he used the profits to fund his & his partner's drug habits.
Whether error in treating limited admissions made by respondent as assistance to authorities - whether error in finding respondent committed offences solely to fund drug habit - whether sentences manifestly inadequate - whether error in failing to partly accumulate sentences.
Appeal allowed: respondent resentenced to a total of 10y with a NPP of 7y.
Note: Some cautionary comments were made by Hulme J on the use & misuse of statistics at [55]. See also Bloomfield (1998) 44 NSWLR 734; Le (2002) 54 NSWLR 474; AEM Snr; KEM; MM [2002] NSWCCA 58; Derbas [2003] NSWCCA 44.

 

393


KEAR, Martin (DPP v) - NSW SC, Howie J, 9.10.2006
Citation: Director of Public Prosecutions v Kear [2006] NSWSC 1145
Judgment.
A magistrate dismissed a charge alleging that the defendant had child pornography in his possession (s.578B(2) Crimes Act 1900, repealed). The DPP, pursuant to s.59(2) Crimes (Local Courts Appeal and Review) Act 2001, sought to have the order of the magistrate set aside & asked the Court to grant relief in the nature of declarations that the magistrate erred in law in finding that the offence was not proved.
Images on computer hard drive - whether appeal on ground involving question of law alone - nature of 'film' under s.578B(2) - whether includes viewing image on computer monitor.
Viewing of images on internet insufficient to establish possession.
Summons dismissed with costs.

 

394


KANENGELE-YONDJO, Stanislas - CCA, 16.11.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Kanengele-Yondjo v R [2006] NSWCCA 354
Sentence appeal.
2 x maliciously inflict GBH.
12y with a NPP of 9y.
Four years after the applicant was diagnosed as being HIV positive, he had unprotected sexual intercourse with 2 women. Both women have since been diagnosed as being HIV positive.
Born in 1963 in Democratic Republic of Congo - educated to matriculation level - completed 2 years of degree in Industry Sociology - has 5 children from 4 relationships - came to Australia in 1993 - employed in various occupations - priors - on bail at time of offences - previous imprisonment.
Whether error in finding that case in worst category - whether insufficient discount for guilty plea - subjective circumstances - totality - whether sentence manifestly excessive.
Appeal dismissed.

 

396


WHITFIELD, Carole - CCA, 16.11.2006
McClellan CJ at CL, Adams & Latham JJ
Citation: Whitfield v R [2006] NSWCCA 362
Sentence appeal.
2 x possess prohibited firearm (s.7(1) & s.36(1) Firearms Act 1996).
Total sentence of 4y with a NPP of 3y.
Applicant's arrest followed police executing a search warrant on her property. The applicant rented the property from her daughter & lived there with her grandson.
The issue at trial was whether the applicant was aware of the presence of the weapon.
Aged 62 at time of sentencing - dysthymic depressive disorder - prior unrelated offences - on bail for an offence of supply prohibited drug at time of above offences - good prospects for rehabilitation.
Whether error in not considering special circumstances - alteration of statutory ratio - whether psychologist's report considered - whether sentence excessive.
Appeal allowed in part: NPP reduced to 2y 3m.

 

397


FRENCH, Barrie James - CCA, 16.11.2006
McClellan CJ at CL, Adams & Latham JJ
Citation: French v R [2006] NSWCCA 361
Conviction appeal (following pleas of guilty); application for leave to appeal against sentence.
15 x sexual offences (administer stupefying drug with intent to have sexual intercourse without consent; sexual intercourse without consent; common assault; AOABH).
Total sentence of 14y with a NPP of 10y.
Police executed a search warrant at appellant's home & seized 2 videotapes depicting appellant performing sexual acts upon the victim, many of them unusual. The offences were committed on 2 occasions at 2 different locations over an 18 month period. During the commission of almost all of the offences, the victim appears to be either unconscious or semi-conscious. Appellant gave notice of appeal in respect to the pleas of guilty to counts 1 & 8-15 upon the ground that they were not attributable to a genuine consciousness of guilt & the convictions on those counts were accordingly a miscarriage of justice. In the alternative, he sought leave to appeal against the overall sentence imposed upon the ground that it was manifestly excessive. When the appeal came on for hearing, it appeared that the argument pressed on appellant's behalf might, if correct, also apply to other counts to which he pleaded guilty. Appellant's senior counsel amended the appeal to cover all pleas of guilty.
Whether free & voluntary consent - whether fit to plead - whether sentence manifestly excessive.
Appeal dismissed.

 

398


BARRETT, Luke Nathan - CCA, 6.11.2006
McClellan CJ at AL, Hulme & Hull JJ
Citation: R v Barrett [2006] NSWCCA 348
Crown appeal.
Count 1: B&E dwelling & commit larceny & maliciously inflict ABH - 2 y with a NPP of 1y 3m
Counts 2,3&4: AOABH - 8m with a NPP of 6m (partially concurrent).
Total sentence of 2y 10m with a NPP of 1y 7m.
The respondent broke into a home & set off the burglar alarm. The occupants, who were nearby watching fireworks, heard the alarm & returned to the home. The respondent attacked the 15 year old son of the occupants, the mother & the father. The respondent then managed to escape. Some neighbours arrived & the respondent was subsequently restrained. Throughout, the respondent was very violent & inflicted a number of injuries. Police arrived & arrested the respondent & took him to the police station. There he displayed signs of being under the influence of a drug & shortly thereafter appeared to be unconscious. He was taken to hospital & treated. When he became violent, he was taken back to the police station & remained in custody until admitted to bail on 4.8.2005.
Aged a little under 22 years at time of offending - tragic background - history of emotional, sexual & physical abuse as a child - ran away from home at 12 - stole in order to feed himself & his brother - spent 2  years with 'Youth off the Streets'- said it was the best time of his life - alcohol & drug abuse - all his family members now dead - diagnosed with severe personality disorder with antisocial & borderline features from poly-substance abuse - prognosis guarded - intellectual functioning at 1st percentile - minimal functional literacy - in need of intensive psychological treatment.
Whether sentences manifestly inadequate - failure to take into account standard NPP for count 1 - failure to give sufficient weight to objective seriousness of offences.
Appeal allowed in part: resentenced on count 1 to 4y 3m with a NPP of 15m. Appeal dismissed on all other counts.

 

399


FATTAL, Toufic - CCA, 17.11.2006
McClellan CJ at CL, Sully & Hislop JJ
Citation: Fattal v R [2006] NSWCCA 359
Conviction appeal.
Supply MDMA (ecstasy).
Appellant's arrested followed police investigating an interstate supply of ecstasy.
Whether error in manner in which trial judge summed up on alleged joint criminal enterprise - error in extending the alleged joint enterprise to include appellant's conduct after the actual supply was completed - latent duplicity.
Appeal dismissed.

 

400


ASLETT, Dudley Mark - CCA 16.11.2006
McClellan CJ at CL, James & Hoeben JJ
Citation: Aslett v R [2006] NSWCCA 360
Sentence appeal.
Multiple counts: murder; aggravated sexual assault; armed robbery; aggravated kidnapping; aggravated car jacking; obtain benefit by deception; larceny of a MV; + Form 1 offences.
Life imprisonment for the murder. Other offences: total of 30y with a NPP of 22 y.
All offences, including those on the Form 1 documents, were committed between 3.5.2003 and 20.8.2003.
The charge of murder arose as a result of the fatal shooting of the proprietor of a pharmacy: see R v Aslett[2004] NSWSC 1228.
See also: Aslett v R [2006] NSWCCA 49.
Criminal history - application of Veen (No.2) - degree of criminality - felony murder - whether ongoing danger to community - totality - s.21A aggravating factors - whether sentence manifestly excessive.
Appeal allowed in part: resentenced to 28y with a NPP of 22y for the murder (commencing 22.8.2022);
appeal otherwise dismissed.
Applicant will be aged 73 years when eligible for parole.

 

401


CHRISTOV, Ivan - NSW SC, Kirby J, 17.11.2006
Citation: R v Christov [No.2] [2006] NSWSC 1179
Remarks on Sentence.
Murder; + Form 1 matters (steal MV belonging to deceased; drive MV in manner dangerous to public).
The prisoner was charged with the murder of the deceased, who had been strangled. The prisoner pleaded not guilty to murder but guilty to manslaughter, which the Crown refused to accept. The prisoner elected to be tried by a judge sitting alone & was subsequently found guilty of the murder.
The prisoner & the deceased had been in a relationship. When the deceased broke off the relationship, the prisoner began stalking her. An AVO was taken out against him, however, this did not deter him. On the day of the killing, he gained entry to the deceased's home & lay in wait for her. When she arrived home from work, he tried to convince her to resume their relationship. When she refused, he slapped her face, tried to throttle her manually, then tied a shoelace around her neck. He took hold of a leather dog lead & tied it tightly around the deceased's neck. The prisoner then left the house, taking the deceased's car. Almost 30 hours later, police saw him driving the car on the Hume Highway towards Wagga Wagga. A high-speed pursuit followed. Spikes were then placed on the road, which deflated the tyres of the vehicle the prisoner was driving, however, he kept driving on the rims at high speed for a further 4 kms. The vehicle ultimately left the road & crashed. The prisoner was injured & was taken to hospital.
Aged almost 54 at time of offending - born in Czechoslovakia - tall, heavy build - worked as a truck driver - extensive criminal history, including 3 counts of sexual assault, numerous assault charges, 7 previous domestic matters that involved threatening & stalking behaviour.
Sentence: 23y with a NPP of 17y.

 

402


MB - NSW SC, Howie J, 10.11.2006
Citation: R v MB No.2 [2006] NSWSC 1163
Judgment on application for an order authorising publication or broadcasting of offender's name.
The offender was aged 16 at the time of the offence: see R v MB [2006] NSWSC 1164.
Children - publication of name of offender on sentencing - whether in interests of justice.
Application refused.

 

403


MB - NSW SC, Howie J, 10.11.2006
Citation: R v MB [2006] NSWSC 1164
Remarks on Sentence.
Murder.
The prisoner stabbed the deceased in the neck with a broken bottle following a fight.
Strong case - eyewitnesses - DNA.
Aged 16 at time of offence - born in Papua New Guinea - from family within middle to upper class in PNG - family presently in Australia on visas valid until end of 2006 - uneventful upbringing - strong supportive extended family in PNG - average student - suspended in Year 7 for fighting - claims this was in response to racial taunts - continued education whilst in custody & attained Year 10 certificate - motivated to continue with studies & self-improvement courses - good behaviour whilst in prison - stable mental state.
Sentenced to 22y with a NPP of 15 y.

 

404


AIS - CCA, 20.11.2006
Beazley JA, Sully & Hislop JJ
Citation: AIS v R [2006] NSWCCA 355
Sentence appeal.
Indecent assault of female child under age of 16.
2y 9m 2w 4d with a NPP of 9m.
The applicant was the complainant's swimming coach.
The complainant was aged 13 years at the time of the offence & the applicant was aged 19 years.
Whether error in sentencing judge using inappropriate comparable cases to determine range of sentence - whether error in sentencing judge regarding herself as bound to impose sentence of imprisonment - whether sentence manifestly excessive.
Appeal dismissed.

 

405


FAIRBAIRN, Stephen David - CCA, 3.11.2006 - 165 A Crim R 434
Basten JA, Hidden & Bell JJ
Citation: Fairbairn v R [2006] NSWCCA 337
Sentence appeal.
2 x assault with intent to rob whilst armed with an offensive weapon (knife); + Form 1 (demand money with intent to steal; 2 x offences relating to possession of knives in a public