Back to Top

Short Notes 2007   

 
1
CAHYADI, Kevin - CCA, 24.1.2007 - 168 A Crim R 41
Adams, Howie & Price JJ
Citation: Cahyadi v R [2007] NSWCCA 1
Sentence appeal.
1 x possess implement for making false instruments - s.302A Crimes Act (NSW); 1 x possess property reasonably suspected of being the proceeds of crime - s.400.9 Criminal Code (Cth); 1 x money laundering - s.400.5 Criminal Code (Cth); + Form 1 (3 x operate bank account contrary to Financial Transaction Reports Act 1988 (Cth)).
Total sentence of 4y with a NPP of 3y.
The 1st offence related to the possession of a compact disc specifically designed for the making of false passports. The 2nd offence was the possession of $155,600 reasonably suspected of being stolen. The 3rd offence related to the laundering of money ($89,100). This offence involved 9 criminal acts over a period of 2 months whereby the applicant sent money from an account to Indonesia. It was clear that the applicant was involved in a fraudulent scheme of obtaining money by the use of false identities & then transferring the money out of Australia.
Aged 32 at time of offending - Indonesian citizen - married with a son aged 3 - ongoing gambling problem - occasional illegal drug use - criminal record for dishonesty offences - previous short term of imprisonment.
Commonwealth & State offences - Commonwealth offences the most serious - whether NPP being 75% of total sentence appropriate in those circumstances - whether sentences should have been made concurrent.
Appeal allowed: resentenced to 4y with a NPP of 2y 8m.
2
VU, Phu Van - CCA, 24.1.2007
Adams, Howie & Price JJ
Citation: Vu v R [2007] NSWCCA 2
Sentence appeal.
Supply commercial quantity prohibited drug (heroin).
10y 8m with a NPP of 8y.
The applicant & his co-offender flew to Brisbane & met the informant. A recording was made of a conversation that took place. The informant gave evidence in the trial that the applicant had sat a short distance away & did not take much or any part in the conversation. The trial judge was satisfied that the applicant knew why the co-offender was at the informant's house & had the capacity to understand what was being discussed. The conversation related to the co-offender organising to supply the informant with 700 grams of heroin for $300,000. The informant arranged to send the money by bus to Sydney. The informant travelled to Sydney & went to the bus depot with the co-offender & collected a box said to contain the money & placed the box in the co-offender's vehicle. The co-offender drove off & was arrested shortly thereafter. Police stopped the applicant, who was in another vehicle in the area. During a search of the vehicle, a box containing white powder was found packed inside a rice cooker. Analysis revealed the powder to be heroin, gross weight 792.1 grams, purity between 56.5% & 57.5%.
Aged 36 at time of offending - born in Vietnam, came to Australia in 1998 after spending 7y in Hong Kong, 5 of those in a refugee camp - limited education, having completed equivalent of year 4 - no priors.
Parity - evaluation of roles - applicant's lesser role not reflected in sentence - justifiable sense of grievance.
Appeal allowed: resentenced to 8y with a NPP of 6y.
3
REED, Leisa - CCA, 22.1.2007
Adams, Howie & Price JJ
Citation: Reed v R [2007] NSWCCA 4
Sentence appeal.
Supply prohibited drug on 3 separate occasions (amphetamine).
2y with a NPP of 1y to be served by way of PD.
The applicant had been in custody for 91 days before being bailed. She had also spent 6 months in rehabilitation at Guthrie House, apart from 2 weekends per month. Whilst there, she met all expectations of Guthrie House, including participation in the group work programme & taking responsibility for recovery from alcohol & drug dependence.
Guilty plea - history of abusing amphetamines from age of 12.
Failure to give effect to pre-sentence custody & quasi custody - approach to sentencing - inappropriateness of compensating for leniency involved in PD by extending term of imprisonment to be served - R v Stephen [2003] NSWCCA 377; R v Wegener [1999] NSWCCA 405 - parity.
Appeal allowed: resentenced to 18m with a NPP of 6m to be served by way of PD.
4
TILYARD, Douglas Malcolm - CCA, 29.1.2007
Adams, Howie & Price JJ
Citation: Tilyard v R [2007] NSWCCA 7
Sentence appeal.
Robbery with dangerous weapon.
6y with a NPP of 4 y.
Armed with a loaded revolver, the applicant entered a chemist shop in the early evening & asked the owner whether he kept morphine. He was told the drug was not kept on the premises but had to be ordered. The applicant said he had a prescription for the drug. He then produced the revolver from behind his back, pointed it at the owner & demanded money. The owner took money from the till, but the applicant demanded more money. The owner told him it was kept in a time-delay safe, whereupon the applicant left the shop with the $30 from the till.
Aged 55 at time of offending - criminal record, including firearm offences - previous imprisonment.
Relevance of alcohol addiction - whether sentence manifestly excessive - whether error in failure to find special circumstances.
Appeal dismissed.
5
IFG - CCA, 22.1.2007
Adams, Howie & Price JJ
Citation: IFG v R [2007] NSWCCA 6
Sentence appeal.
2 x sexual intercourse with child under age of 16.
Total sentence of 8y with a NPP of 5y; + recommendations (that applicant undergo psychiatric & psychological treatment in custody & be supervised by Probation and Parole Service whilst on parole & accept directions regarding ongoing psychological & psychiatric conditions).
The complainant was the applicant's stepdaughter, who was aged 12 & 13 at the time of the offences.
Delay in prosecuting child sexual offences in NSW after applicant charged & sentenced in Queensland - whether insufficient account taken of delay & effect of it upon applicant - whether in light of delay partial accumulation of sentences warranted - technical defect in pronouncement of sentences - sentences not in accordance with s.44 Crimes (Sentencing Procedure) Act 1999 as it applied at the date of the commission of the offences - sentences erroneously pronounced in accordance with that section as it was at the time of sentence.
Appeal allowed for the purpose of correcting the pronouncement of the sentences: resentenced to a total of 8y with a NPP of 5y; recommendations continued.
6
GATTELLARI, Michael Joseph - CCA, 22.1.2007
McRAE, Peter Jade
Beazley JA, Buddin & Hislop JJ
Citation: Gattellari v R; McRae v R [2007] NSWCCA 5
Sentence appeal.
Cultivate large commercial quantity cannabis plants (2,742 plants).
Total sentence of 5y 9m with a NPP of 3y 2m.
The applicants were involved in a large-scale cultivation of cannabis on an isolated property. The plants numbered 2,742 in all & had a street value of $5.5m. Police arrested the applicants & 2 co-offenders. The sentencing judge found that the applicants were in charge of the cultivation & that their principal motivation was financial gain.
Assessment of value of guilty pleas - whether sentences manifestly excessive - parity.
Appeal dismissed.
7
MORGAN, Henri Robert - CCA, 24.1.2007
Beazley JA, Buddin & Hislop JJ
Citation: Morgan v R [2007] NSWCCA 8
Sentence appeal.
1 x attempt export native specimens (24 native birds' eggs) without permit: s.303 DD(1) Environment Protection and Biodiversity Conservation Act 1999 (Cth); 1 x hinder Commonwealth official in the performance of his functions: s.149.1 Criminal Code Act 1995 (Cth).
Total sentence of 2 y with a NPP of 1 y.
The 1st offence related to the applicant attempting to export 9 Major Mitchell Cockatoo eggs, 8 Sulphur Crested Cockatoo eggs & 7 Galah eggs.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 2y with a NPP of 1y.
8
DARRIGO, Richard John - CCA, 5.2.2007
Hodgson JA, Howie & Price JJ
Citation: Darrigo v R [2007] NSWCCA 9
Sentence appeal.
1 x aggravated indecent assault child under 10.
7y with a NPP of 5y.
The complainant, aged 4 years, was in a Salvation Army Shop with her mother & was sitting on the floor playing with toys. The applicant entered the shop & appeared to be browsing through clothing items. He picked up a doll from a display, walked towards the complainant & placed the doll on the complainant's lap. At the same time, he placed his other hand under her skirt, grabbing her around the vagina/buttock area. The applicant's hand remained there until the complainant moved away. The applicant left the store immediately. The complainant complained to her mother, who informed staff at the shop. Police were called & the applicant was identified from CCTV footage.
Aged 55 at time of offence - guilty plea - lengthy criminal record as a juvenile & adult - previous imprisonment.
Relevance of prior similar offending - undiscounted starting point of sentence - standard NPP - application of ss.21 & 44 Crimes (Sentencing Procedure) Act.
Appeal allowed: resentenced to 6y with a NPP of 4 y.
9
LEACH, Martin - HCA, 6.2.2007 - 230 CLR 1; 81 ALJR 598
Citation: Leach v The Queen [2007] HCA 3
On appeal from the Supreme Court of the Northern Territory.
2 x murder.
Mandatory sentence of life imprisonment with no NPP passed on each count.
The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("2003 Act") provided that life sentences for murder were taken to include a 25y NPP. Section 19(1) of the 2003 Act empowered the Supreme Court of the Northern Territory, on the application of the DPP, to revoke the statutory NPP and, in accordance with s.19(5), to refuse to fix a NPP.
Whether the discretion granted to the Supreme Court under s.19(5) of the 2003 Act required the Court to consider "ordinary sentencing principles", including questions of the prisoner's rehabilitation - meaning of the word "may" in s.19(5) - whether primary judge must be satisfied "beyond reasonable doubt" of the basis for the decision before making an order under s.19( 5).
Appeal dismissed.
10
EL-CHAAR, Joseph - CCA, 24.1.2007
Beazley JA, Buddin & Hislop JJ
Citation: El-Chaar v R [2007] NSWCCA 16
Sentence appeal.
12 x dishonestly obtain property by deception: s.134.1(1) Criminal Code Act 1995; 1 x attempt obtain property by deception: ss.11.1 & 134.1 of the Act.
Total of 8y with a NPP of 5y.
The 13 offences each related to false claims for GST refunds during a period of a little more than 11 months. During that period, the applicant lodged 13 Business Activity Statements in which GST refunds were claimed for which there was no entitlement to a refund.
The applicant pleaded guilty to the offences in June 2005, however, he had admitted his guilt in relation to the charges in a record of interview with officers from the ATO in June 2004.
Whether sentence manifestly excessive - differences in amounts involved in individual offences - whether insufficient weight given to motivation for offending - financial difficulties - duress.
Appeal dismissed.
11
ROSE, John - CCA, 22.1.2007
Adams, Howie & Price JJ
Citation: Rose v R [2007] NSWCCA 17
Application for leave to extend time to file a notice of appeal.
2 x cause danger with firearm: s.93G Crimes Act 1900; 1 x malicious wounding: s.35 of the Act.
Total of 6y with a NPP of 4y.
The applicant's sentence commenced in February 2001. He was released to parole in October 2006. The Registrar of the Court wrote to the applicant, asking him to advise the Registrar of his intentions but received no response. The applicant made no appearance at the hearing. The Court concluded that he no longer had an interest in the appeal.
Leave to extend time to file notice of appeal refused.
12
CURTIS, Luke Graham - CCA, 5.2.2007
McClellan CJ at CL, Simpson & Rothman JJ
Citation: Curtis v R [2007] NSWCCA 11
Sentence appeal.
1 x use offensive weapon (2 knives) with intent to prevent lawful apprehension; 1 x assault; 2 x intimidate with intent to cause fear of physical or mental harm; 1 x resist police officer in execution of his duty.
Total sentence of 11y 8m 6d with a NPP of 9y 4m 6d.
All charges arose as a result of a single episode of criminality that continued over several hours. It started by the applicant assaulting & intimidating his 1st victim at the victim's house. When the applicant returned to his own house, he intimidated his housemate. Police arrived & there was a stand-off. The applicant shouted abuse, threats & profanities at police. He eventually came out of the house, holding a 20cm-bladed carving knife in each hand. He refused demands from police to drop the knives, continued to abuse them & threatened to stab any police officer who approached him. Police fired a tazer shot at him, however, this was ineffective. A police dog was then released. When the dog lunged at the applicant & grabbed his wrist in his mouth, the applicant stabbed the dog. The stab wound proved fatal. After a violent struggle, police managed to subdue the applicant.
Whether sentence manifestly excessive - extent of accumulation of sentences - whether gratuitous cruelty in stabbing dog an aggravating factor - objective gravity - whether offence in worst category - subjective circumstances - mitigating features - rehabilitation.
Appeal allowed: resentenced to a total of 9y with a NPP of 6y.
13
NGUYEN, Thien Tho - CCA, 7.2.2007
Sully, Howie & Price JJ
Citation: Nguyen v R [2007] NSWCCA 14
Sentence appeal.
2 x aggravated sexual assault; 1 x armed robbery.
8y with a NPP of 6y imposed on each count (concurrent) commencing 9.5.2005.
At the time of sentence, the applicant was already serving a previous sentence. The above sentences were made fully accumulative with that previous sentence, resulting in an effective overall sentence of 12y with a NPP of 10y.
The armed robbery was a home invasion type offence where the applicant & a co-offender entered the house of a woman who was about to leave to pick up her husband from work. One of the offenders was armed with a long-bladed knife & pointed it towards the victim's face, the other offender had a large bag. The offenders placed tape over the victim's mouth then bound her hands & feet with rope. The offenders demanded the victim's car keys & pin number & took her watch & 2 bankcards. They then picked up the victim, placed her on a bed, searched her pockets then removed the rope around her feet, removed her jeans & underwear & set about raping her a number of times.
Failure to properly apply principle of totality in accumulating sentences with previous sentence imposed by another court - error in approach to s.44 Crimes (Sentencing Procedure) Act - failure to find accumulation constituted special circumstances.
Appeal allowed insofar as applicant resentenced in accordance with s.44 Crimes (Sentencing Procedure) Act: resentenced to 8y with a NPP of 6y on each count (concurrent) commencing 9.5.2005.
14
THORNE, Ronald - CCA, 7.2.2007
Sully, Howie & Hall JJ
Citation: Thorne v R [2007] NSWCCA 10
Conviction and sentence appeal.
1 x aggravated sexual assault (malicious infliction of ABH); 2 x sexual intercourse without consent.
Total sentence of 13y 4m with a NPP of 10y.
The offences were perpetrated by the appellant upon his wife. They had been living together (occupying separate bedrooms) several days a week, even though their marriage had effectively come to an end. The living arrangements were principally so that the appellant could care for their children when the complainant was absent on business. After committing the above offences, the appellant took some rope, went to a park & attempted to hang himself. Some men in the park saw what happened & supported the appellant's weight until police arrived & cut him down.
Directions on expert evidence - directions on question of fact - admissibility & relevance of medical evidence of injuries to complainant - whether corroboration - whether directions appropriate - whether summing-up unfair by reason of failure to summarise appellant's evidence - whether psychiatric report should be admitted as fresh evidence - relevance of mental condition - whether sentences should have been concurrent.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 11y with a NPP of 7 y.
15
ESPOSITO, Mark Anthony - NSW SC, Latham J, 20.12.2006
Citation: R v Esposito [2006] NSWSC 1454
Remarks on Sentence.
Manslaughter.
Joint criminal enterprise to assault.
No evidence of offender's participation in the assault.
Sentence: 6y 10m with a NPP of 4y.
16
LOGAN, Jay - CCA, 21.12.2006
James, Hidden & Hislop JJ
Citation: R v Logan [2006] NSWCCA 416
Crown appeal.
Unauthorised possession of a pistol; B&E with intent to commit serious indictable offence (intimidation).
2y suspended, 300 hours CSO.
Approach to standard NPP on firearm charge - whether sentence manifestly inadequate - exceptional case.
Appeal dismissed.
17
NGUYEN, Tri Van - CCA, 7.2.2007
Adams, Howie & Price JJ
Citation: Nguyen v R [2007] NSWCCA 15
Sentence appeal.
Supply commercial quantity heroin; + Form 1 matters (2 x goods in custody).
Total sentence of 10y with a NPP of 6y.
A police strike force was commissioned to investigate the distribution of heroin from premises at various locations. A number of persons of interest were the subject of the investigation. These persons were referred to as the 'family'The above offences came to light during the police operation. Police found that the applicant was the supplier of the drugs to the 'family'Telephone intercepts & police surveillance indicated that heroin was sold by the applicant to the 'family'at an agreed price of $250 per gram. Over the course of the operation, the 'family'purchased about 1kg of heroin from the applicant. A number of drivers were employed to drive members of the 'family'to various locations around the Central Coast to purchase heroin from the applicant as none of the 'family'members had a driver's licence. Once purchased, the heroin was returned to the 'family's' premises where it was weighed & divided, then distributed to members of the 'family'for the purpose of supply.
Aged 38 at time of offences - born in Saigon - father & mother died when applicant a baby - applicant & elder brother grew up in orphanage run by Buddhist practitioner - childhood marked by poverty/emotional deprivation - at age 14, orphanage was closed down - applicant refused to participate in relocation programme, tried to run away & was caught - as punishment, was sent to labour camp from which he escaped - elder brother escaped by boat but has not been heard of since - despite interrupted schooling, completed year 10 at age 17 - worked as farmer for 7 years until escaped from Vietnam by boat - arrived in Thailand & spent 2 years in refugee camp before migrating to Norway - migrated to Australia in 1992 - worked for Buddhist Association as a welfare officer & worked in a factory - wife in Vietnam unable to obtain visa to enter Australia - marriage broke up - applicant began to gamble & smoke heroin - no prior criminal record.
Whether error in finding applicant's role 'at the very top of the scale'- parity - whether justifiable sense of grievance.
Appeal dismissed.
18
VALENTINE, Darrin Patrick - CCA, 12.2.2007
McClellan CJ at CL, Simpson & Price JJ
Citation: Valentine v R [2007] NSWCCA 23
Sentence appeal.
3 x use false instrument with intent; + Form 1 matters (2 x use false instrument with intent).
Total sentence of 4y 9m with a NPP of 2y 9m.
The applicant was employed by the ANZ Bank providing financial advice & arranging loans for customers. On leaving the bank, he started his own finance business & took with him the portfolios of Mark & Lorraine Tonna, as well as his wife's uncle, Ron Strettles. Over a period of 2 years, the applicant fraudulent obtained a total of $924,454.99 from these three clients.
Voluntary disclosure of offences - imminence of discovery - degree of leniency - whether sentence manifestly excessive.
Appeal dismissed.
19
F, J.W. - CCA, 12.2.2007
Adams, Howie & Price JJ
Citation: F v R [2007] NSWCCA 20
Sentence appeal.
Ongoing supply of ecstasy; + 5 further offences on a Form 1.
Total sentence of 2 y with a NPP of 1y.
The offences occurred during a controlled police operation at & near a hotel in North Sydney. The quantities of drugs & amounts involved were small. The applicant pleaded guilty at arraignment.
Whether exceptional circumstances necessary before imposing less than full-time custody where substantial dealing - desirability of expressing extent of utilitarian discount - whether sentence manifestly excessive.
Appeal dismissed.
20
WARD, Clinton Rex - CCA, 12.2.2007 - 168 A Crim R 545
Adams, Howie & Price JJ
Citation: Ward v R [2007] NSWCCA 22
Sentence appeal.
1 x knowingly take part in supply of cannabis; 2 x knowingly take part in supply of methylamphetamine.
Total sentence of 4y with a NPP of 3y.
The 1st offence involved the supply of cannabis leaf (weight 1,381.5 grams, estimated street value $10,500). The 2nd offence involved the supply of 300 tablets of methylamphetamine (weight 75 grams, estimated street value $7,200). The 3rd offence involved the supply of 250 tablets of methylamphetamine (weight 90.5 grams, estimated street value $6,096).
Whether additional aggravating factor of disregarding public safety under s.25A(2)(i) Crimes (Sentencing Procedure) Act 1999 should be taken into account - whether disregarding public safety inherent feature of offence - whether sentence manifestly excessive.
Appeal allowed: Commencement dates adjusted for sentences on counts 2 & 3. Resentenced to a total of 4y with a NPP of 2 y.
21
McC - CCA, 14.2.2007
Spigelman CJ, Bell & Howie JJ
Citation: McC v R [2007] NSWCCA 25
Conviction appeal.
1 x maliciously inflict GBH with intent to do GBH; 1 x AOABH.
The offences were committed during the course of the same incident upon a 17 year old girl & her 14 year old female friend who were minding the 2 children of the appellant & his estranged wife at the wife's home. The 2 victims were attacked by a man who struck each around the head with a car jack. The 14 year old victim was hit outside the home. She fell to the ground & feigned unconsciousness. She saw the man force his way inside the house. The 17 year old victim was hit with the jack repeatedly in the head & face & suffered severe injuries. At trial, she had no recall of the assault. The 14 year old victim was not able to identify her attacker. It was common ground that the appellant had called at his wife's home at the time of the incident & had taken both the children away with him. Some hours later, he drove the children to Port Macquarie Police Station & they were returned to their mother's care. Police interviewed the appellant & he told them that he arrived at his wife's house to find one of the victim's lying unconscious at the front of the premises & that the other victim was already injured when he entered the house. He said he had panicked & his first thought was to remove his children for their safety. The appellant did not give evidence at trial, relying on the version given in his interview with police. Both children were interviewed & both said that the appellant was not the assailant. The Crown prosecutor at trial had asked defence counsel whether the defence required the Crown to call the children as witnesses. On the 3rd day of trial, the defence counsel informed the Crown prosecutor that he did not require the children to be called as witnesses.
Crown prosecutor's obligation to call children as witnesses - whether miscarriage of justice.
Appeal dismissed.
22
SZ - CCA, 14.2.2007 - 168 A Crim R 249
Simpson, Howie & Buddin JJ
Citation: SZ v R [2007] NSWCCA 19
Sentence appeal.
2 x ongoing supply amphetamine; 1 x deemed supply amphetamine; 1 x possess prohibited weapon; + Form 1 (13 x goods in custody; 3 x receiving). The applicant was also sentenced for an offence of conducting drug premises.
Total sentence of 4y 9m with a NPP of 3y.
The offences came to light during a police strike force investigation into the supply of amphetamine in the Wollongong area.
Appropriate discounts for guilty pleas & assistance to authorities - whether sentences manifestly excessive.
Appeal dismissed.
23
MURPHY, Kelly Ann - CCA, 9.2.2007
Beazley JA, Buddin & Hislop JJ
Citation: Murphy v R [2007] NSWCCA 18
Sentence appeal.
11 x dishonestly obtain gain from a Commonwealth entity (s.135(1) Criminal Code Act (Cth)).
Total sentence of 3y 3m with a NPP of 2y 3m.
The applicant was a Centrelink employee. Her duties involved the processing of requests by childcare providers for additional advances of childcare benefits. The applicant was sentenced on each of the charges upon the basis that in each instance she altered the nominated bank account details of the various childcare providers with the details of her own bank account. The offences occurred over an 18 month period. The total amount involved was $375,895.26.
Whether sentences manifestly excessive - NPP exceeding normal ratio - absence of reasons.
Appeal allowed in part: NPP reduced to 2y.
24
DB - CCA, 7.2.2007 - 168 A Crim R 393
DNN
McClellan CJ at CL, Adams & Latham JJ
Citation: DB v R; DNN v R [2007] NSWCCA 27
Sentence appeals.
DB: 3 x aggravated armed robbery; + 11 Form 1 offences - total sentence of 12y 7m with a NPP of 8y.
DNN: 4 x aggravated armed robbery; + 19 offences on a Form 1 - total sentence of 16y with a NPP of 10y.
Both applicants were part of a wider group of offenders who committed 6 aggravated armed robberies in all. DB was 16 years old at the time of the offences & was living in the home of DNN, his brother-in-law, who was aged 27 years at the time of offending. Only 1 count was common to both applicants. Both applicants entered pleas of guilty.
Failure to have regard to principles applicable to juvenile offenders - agreed statement of facts - parity - guilty pleas - whether sentences manifestly excessive.
Appeals allowed: DNN resentenced to a total of 12y with a NPP of 8y; DB resentenced to 10y with a NPP of 6y.
25
WOODLAND, Jarrod Bernard - CCA, 14.2.2007
Simpson, Howie & Buddin JJ
Citation: R v Woodland [2007] NSWCCA 29
Crown appeal.
Drive in manner dangerous causing GBH.
18m with a NPP of 9m to be served by way of PD.
After a night of partying & heavy drinking, the respondent & his friend were driven by a female friend to the respondent's home at about 1:30-2:00am. The respondent then wanted to return to the party, although the female friend urged him not to do so. The respondent took the keys to his mother's car. Despite the fact that this car was not registered & the respondent did not hold a driver's licence, he drove his mother's car, with his friend in the passenger seat. On a straight stretch of road, the respondent lost control of the vehicle, which collided with a tree. The friend sustained significant facial fractures & required reconstructive surgery. There were also indications that he may have suffered some mild traumatic brain injury, although this assessment was guarded as he was a heavy drinker & a had a history of being a boxer, which left the possibility open of a cumulative effect causing the apparent brain injury.
Aged 22 at time of offending - guilty plea - degree of moral culpability - gravity of injuries to victim - youth - no previous convictions - delay between offence & sentence - rehabilitation - discount for guilty plea.
Whether PD appropriate.
Appeal dismissed.
26
FAHS, Mario - CCA, 14.2.2007
Simpson, Howie & Buddin JJ
Citation: Fahs v R [2007] NSWCCA 26
Sentence appeal.
2 x ongoing supply of prohibited drugs (cocaine & amphetamine); 1 x supply large commercial quantity prohibited drug (ecstasy); supply commercial quantity prohibited drug (ecstasy).
Total sentence of 9 y with a NPP of 7y.
The above offences involved the supply of various drugs to undercover police officers.
Factors in aggravation - planned or organised criminal activity - accumulation of sentences - finding of special circumstances - whether lesser sentence warranted.
Appeal dismissed.
27
MUSGROVE, Darren - CCA, 12.2.2007 - 167 A Crim R 424
McClellan CJ at CL, Simpson & Price JJ
Citation: Musgrove v R [2007] NSWCCA 21
Sentence appeal.
1 x aggravated sexual assault.
10 y with a NPP of 8y.
The applicant, who was armed with a knife, committed the above offence upon an 18 year old female on a beach. After the attack, he told the victim to remain where she was for 5 minutes, threatening to stab her if she left any earlier. The victim immediately reported the attack & DNA samples were obtained. The attack occurred in March of 2004 & the applicant was not arrested until the end of August 2005. He initially denied his involvement in the offence.
Aged 34 at time of offence - guilty plea - disturbed childhood - prior criminal record - on GBB at time of offending.
Whether error in failure to find special circumstances - whether error in failure to impose parole period in statutory proportion to head sentence - changes in sentencing legislation - whether sentence manifestly excessive.
Appeal dismissed.
28
KT - NSW SC, Johnson J, 16.2.2007
Citation: R v KT [2007] NSWSC 83
Remarks on Sentence.
Manslaughter.
KT & 2 friends had been driving around Auburn, throwing eggs at strangers. The deceased, who came to Australia as a refugee with his family some months earlier, had thrown a drink bottle at the back of the car after KT threw an egg at him. KT then confronted the deceased, punching him in the jaw so hard the deceased fell to the ground, cracking his head on the pavement.
Aged 16 at time of offence - guilty plea - no priors.
Manslaughter by unlawful and dangerous act - juvenile offender.
Sentenced to 6y with a NPP of 4y.
29
TAUFAHEMA, John - CCA, 16.2.2007
McClellan CJ at CL, Simpson & Price JJ
Citation: Taufahema v R [2007] NSWCCA 33
Conviction appeal.
Murder.
There was an alternative count on the indictment, namely the use of an offensive weapon in company to avoid lawful apprehension, to which the applicant pleaded guilty. A co-accused was acquitted of murder but found guilty of the alternative count: see also Lagi [2004] NSWCCA 443; see also Penisini; Lagi; Taufahema [2003] NSWSC 892. The applicant was convicted for murder on the basis of joint criminal enterprise.
The charge of murder arose from the fatal shooting of Snr Const Glen McEnallay.
Use of firearm by a companion to avoid arrest - error in directions to jury on joint enterprise murder - contemplation of an intention to kill or inflict serious bodily harm - whether further oral directions can cure written directions - whether trial judge ought to have left alternate verdict of manslaughter to the jury.
Appeal allowed: conviction quashed, new trial ordered.
30
MASON, Brand - CCA, 16.2.2007
McClellan CJ at CL, Simpson & Howie JJ
Citation: Mason v R [2007] NSWCCA 32
Sentence appeal.
3 x receive stolen property.
Total of 2 y with a NPP of 1y 4m.
The applicant was a vehicle spray painter & had extensive experience in the smash repair industry. He owns premises consisting of a dwelling & 3 large sheds, 2 of which were used primarily for the storage of motor vehicles & parts, the 3rd shed being set up as a fully equipped mechanical workshop. When police searched the premises, they discovered motorcycles & motorcars in various stages of the 're-birthing'process. They also found numerous other vehicle parts, stamping tools, welding & mechanical equipment. Further investigations revealed that the vehicles in the above 3 counts were stolen. Alterations had been made to each of them to remove the original vehicle identification number & replace it with a false number. During the course of investigations the applicant submitted documents by which he attempted to establish that the chassis of one of the seized vehicles was that of a wrecked vehicle & that it had been fitted with an engine he had bought independently. Although he produced receipts relating to the alleged purchase of the engine, forensic analysis ultimately revealed that this was an impossibility & that the vehicle which the police located had its original chassis & engine but with altered numbers. Police also found that a false identification number had been stamped onto the frame of a motorcycle, consistent with having been made by a stamp that was found on the applicant's property & which he confirmed belonged to him.
The applicant entered pleas of guilty to the above 3 offences. The sentencing judge remarked that but for the guilty plea, he would have imposed a total term of 3 years.
Whether sentencing judge considered alternatives to full-time custody - whether PD available.
Appeal dismissed.
31
LY, Huy Hoang - CCA, 16.2.2007
Adams, Howie & Price JJ
Citation: Ly v R [2007] NSWCCA 28
Sentence appeal.
Applicant pleaded guilty to 55 offences: defraud Commonwealth (s.29D Crimes Act 1914); obtain financial advantage by deception (s.134.2 Criminal Code Act 1995); attempt defraud Commonwealth (ss.7 & 29D Crimes Act 1914); attempt obtain financial advantage by deception (ss.11.1 & 134.2 Criminal Code Act 1995).
Total of 6y with a NPP of 4 y.
The applicant was a tax agent who lodged false income tax returns on behalf of taxpayer clients who had left Australia & also for a company over which he had complete control. As a result, 49 tax refunds were paid to the applicant, totalling $328,692.27.
Aged 33 at time of 1st offence - no prior criminal record.
Proportion of NPP to overall sentence.
Appeal allowed in part: resentenced on counts 32, 33 & 34.
32
MARTIN, Shane Douglas - CCA, 20.2.2007
Adams, Howie & Price JJ
Citation: Martin v R [2007] NSWCCA 34 (judgment withdrawn from Caselaw site).
First indictment: guilty plea on 10.10.2005 to:4 x AOABH; 4 x sexual intercourse without consent: + offences on a Form 1 (4 x common assault) & 1 count on a s.166 certificate of contravene AVO.
Second indictment: guilty plea on 24.2.2006 to 1 x aggravated B&E and commit serious indictable offence (armed robbery) in circumstances of special aggravation; 2 x aggravated sexual intercourse without consent in company and with deprivation of liberty; 1 x maliciously inflict GBH with intent to do GBH.+ Form 1 offences (2 x intimidate police in execution of their duty).
Total sentence of 30y with a NPP of 25y.
For details of offences, see v R [2007] NSWCCA 34.
Aged 22 at time of first offence - physical abuse during childhood - lengthy juvenile record - previous imprisonment.
Whether error in failure to find special circumstances - whether sentence manifestly excessive.
Stated intention to depart from statutory ratio of NPP - need for adjustment in overall sentence - relationship between totality of criminality & totality of sentences.
Appeal allowed: resentenced to a total sentence of 30y with a NPP of 22 y.
33
MARSHALL, Matthew - CCA, 14.2.2007
McClellan CJ at CL, Simpson & Howie JJ
Citation: Marshall v R [2007] NSWCCA 24
Sentence appeal.
3 x aggravated BE&S; 2 x larceny; + Form 1 (take & drive MV; drive in manner dangerous to the public).
Total sentence of 6y 10m with a NPP of 5y.
For each larceny offence, the sentence imposed exceeded the prescribed maximum penalty.
The applicant broke into 3 residences. The occupants of the 1st home were asleep at the time & the applicant stole items valued in excess of $4,500. The applicant stole valuable electronic equipment from the 2nd house he broke into. The male occupant disturbed him & the applicant drove off in a stolen MV. The male occupant jumped onto the bonnet of the vehicle but as the applicant continued to drive, he fell off. The 3rd home the applicant broke into was that of a 56 year old woman. The applicant demanded money from her & took electronic equipment & other property worth more than $10,000. He forced the woman out of her home at knifepoint. She broke free & the applicant drove off in her car. The 1st larceny offence occurred when the applicant purchased a $2 item in a supermarket. When the shop assistant opened the cash register, the applicant grabbed money from the drawer ($1,430). The 2nd larceny offence occurred when the applicant went into a video store & dislodged a till from the counter. He grabbed two $50 notes & ran away.
Aged 23 at time of sentence - troubled childhood - heroin use from early age - lengthy criminal record.
Effect of sentences exceeding the maximum penalty for the offence - assessment of seriousness of offence of aggravated BE&S - whether offence above mid-range of seriousness - totality - whether sentences ought to have been concurrent - whether any lesser overall sentence warranted.
Appeal allowed in part, resentenced to a total of 6y 2m with a NPP of 5y.
34
FINNIE, Sydney Thomas - CCA, 22.2.2007
Sully, Simpson & Latham JJ
Citation: Finnie v R and R v Finnie [2007] NSWCCA 38
Application for extension of time;
Conviction and sentence appeal; and
Crown appeal against inadequacy of sentence.
1 x pervert the course of justice.
18m with a NPP of 9m.
The offender was found not guilty of 2 further offences of pervert the course of justice.
The offender was instrumental in calling a doctor as a witness in a bail application hearing knowing that his evidence was based on false information that had been given to him by the offender. The offender claimed to have been diagnosed with prostrate cancer when, in fact, he did not have prostrate cancer.
Offender's appeal: directions ambiguous, misleading - failure to direct regarding 'tendency'to pervert - inconsistent verdicts - error in not allowing evidence from committal proceedings.
Crown appeal: whether sentence manifestly inadequate.
Extension of time granted.
Conviction & sentence appeal dismissed.
Crown appeal against sentence dismissed.
35
FRIEND, Catherine Margaret - CCA, 22.2.2007
Spigelman CJ, Sully & Hislop JJ
Citation: Friend v R [2007] NSWCCA 41
Conviction appeal.
Murder.
The deceased was shot in the back of the head while he was sleeping. Forensic investigations established that a single gun-shot had been fired into the back of his head, at point blank range, killing him instantly. The appellant & a male co-accused were jointly tried for the murder of the deceased. The Crown case against the co-accused was that he had fired the shot that killed the deceased. The Crown case against the appellant was that she had been present in the premises & had aided & abetted the co-offender. The jury found the appellant guilty of murder but could not agree upon a verdict in respect of the co-accused. He was subsequently re-tried, however, the jury could not agree upon a verdict in the 2nd trial. There was no physical evidence capable of linking the appellant directly to the shooting.
At the time of the shooting, the appellant & the deceased had been living in a de facto relationship for about 4 years. They had 2children together, a son then aged about 3 & a daughter then aged about 12 months. Living in the house with them was the appellant's 6 year old son from a previous relationship.
Whether verdict unreasonable & inconsistent with the evidence.
Appeal dismissed.
36
CHARARA, Jamal - NSWSC, Associate Justice Malpass, 5.2.2007 - 168 A Crim R 89
Citation: Charara v The Commissioner of Police NSW [2007] NSWSC 26
Carrying out of forensic procedures on serious indictable offenders in a place of detention.
Officer requested offender to undergo forensic testing procedure - provided him with information sheet required by s.69 Crimes (Forensic Procedures) Act 2000 (NSW) after refusing to consent to procedure - officer made order under s.70 & took sample from offender's head - officer did not expressly mention s.68 of the Act to the offender - offender claimed officer not authorised to carry out procedure.
Application dismissed.
37
N ahle - CCA, 22.2.2007
McClellan CJ at CL, Sully & Howie JJ
Citation: R v Nahle [2007] NSWCCA 40
Crown appeal.
1 x kidnap; 1 x AOABH.
Total sentence of 3y with a NPP of 18m.
The complainant, aged 14, had run away from home & met up with respondent's co-offender & another man. At times, she was allowed to live in a spare room of a house in Greenacre, where the respondent's wife lived. The respondent lived with his parents. The complainant had taken up prostitution & was arrested by police. When asked for her address, she provided the address of the Greenacre house & police searched those premises. She was granted bail & ordered to live with her grandmother, but left those premises. By chance, she met the respondent, who took her to the Greenacre house, threatened her with a flick-knife & chained her up in the backyard. He produced a rifle, loaded it, gave it to his co-offender & told him to shoot her if she moved. When the respondent left to answer a mobile phone, the co-offender struck the complainant to a shin & one of her elbows with a baseball bat. The respondent returned, undid the chain & dragged the victim onto some grass where he kicked & stomped on her head. He took her into a toilet in the house & punched her in the face a few times. She was then placed in a bedroom & told to write down what she told the police. Eventually, she managed to escape & went to a neighbour's house from where police were called. Her injuries consisted of bruising to her right cheek, a black eye, tenderness over the nasal bridge, tenderness to the scalp, tenderness to her neck & bruising over her right tibia. The sentencing judge found she did not suffer substantial injuries. The AOABH occurred some months later while the respondent was on bail. He was the driver of a MV, the victim a passenger in another MV. The respondent's MV stopped across 2 lanes, impeding the other MV. The driver of that MV, the victim's wife, sounded her horn but the respondent failed to move his MV. The victim approached the front passenger door of the respondent's MV & asked for it to be moved. When there was no response, he opened the door. The respondent got out of his MV & struck the victim twice to the head with a hammer. He fell to the ground & the respondent continued to strike him. The respondent's wife drove the respondent's MV around the corner, where he entered it & they drove away. The victim suffered 2 lacerations to the scalp & a laceration to the forehead.
The respondent absconded whilst on bail, then returned to Australia & surrendered to police more than 6 years later. The sentencing judge stated the respondent's age at the time of the kidnap as being 18 when he was actually 21.
Whether too much weight given to rehabilitation - whether surrender constitutes assistance to authorities - whether assaults on victim part of facts of kidnapping - special circumstances to reduce NPP on basis of accumulation of sentences - whether sentence manifestly inadequate.
Appeal allowed: resentenced to a total of 4y 3m with a NPP of 3y 1m.
38
LODHI, Faheem Khalid - NSW SC, Whealy J, 7.2.2006 163 A Crim R 448
Citation: R v Lodhi [2006] NSWSC 571
Terrorism offences.
National Security Information (Criminal & Civil Proceedings) Act 2004 - Constitutional validity - Implied freedom of speech in political discussion.
39
LODHI, Faheem Khalid - NSW SC, Whealy J, 21.2.2006 163 A Crim R 475
Citation: R v Lodhi [2006] NSWSC 586
Terrorism offences.
National Security Information (Criminal and Civil Proceedings) Act 2004 - national security - Public Interest Immunity - appointment of Special Counsel to assist in assessment of claims.
40
LODHI, Faheem Khalid - NSW SC, Whealy J, 27.2.2006 163 A Crim R 488
Citation: R v Lodhi [2006] NSWSC 587
Terrorism offences.
Criminal Law: Audio visual links in terrorism cases - principles to be applied - s.15YV - Crimes Act (Commonwealth).
41
LODHI, Faheem Khalid - NSW SC, Whealy J, 15.3.2006 163 A Crim R 508
Citation: R v Lodhi [2006] NSWSC 596
Terrorism offences.
National Security Information (Criminal and Civil Proceedings) Act 2004: Protective orders - Imposition of orders to protect national security during a criminal trial - s.85B Crimes Act 1914 (Cth) - s.93.2 Criminal Code Act 1995 - principles of open justice - pseudonyms - screening orders - closed court orders - suppression of publication of evidence.
42
PM (DPP v) - CCA, 13.9.2006 164 A Crim R 151
Basten JA, Whealy & Latham JJ
Citation: Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297
s.5F appeal brought by the DPP against an order made by the DC remitting an indictment to the Children's Court.
The respondent was charged with 2 counts of non-consensual intercourse with a 14 year old girl. Two differing bases of aggravation were involved, the 1st being that the victim was aged under 16 years, the 2nd that the respondent did ABH at the time. The 2nd offence was a serious children's indictable offence. At the committal, the 1st count was withdrawn & dismissed but he was committed for trial on the 2nd count. An indictment was filed alleging the 2nd circumstance of aggravation (the infliction of ABH). However, a 2nd indictment was prepared alleging 3 offences capable of summary disposition & alleging the 1st aggravating circumstance (the age of the victim). After arraignment on the 2nd indictment, the judge discharged the jury & remitted it to the Children's Court for want of jurisdiction. The DPP appealed.
Criminal proceedings against a child - s.31 Children (Criminal Proceedings) Act 1987 (NSW) & s.8 Criminal Procedure Act 1986 (NSW) - whether the 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" - whether an appeal against a finding that an indictment was invalid should be made under s.5C or s.5F of the Criminal Appeal Act 1912 (NSW).
Appeal allowed: order of DCJ remitting matter to the Children's Court set aside.
43
SMITH, William Roger - CCA, 27.2.2007 - 169 A Crim R 265
Sully, Howie & Hall JJ
Citation: Smith v R [2007] NSWCCA 39
Application for leave to appeal against a limiting term of 3y.
1 x aggravated sexual assault.
Jury verdict on limited evidence pursuant to the Mental Health (Criminal Procedure) Act 1990 - whether power to impose a limiting term under the Crimes (Sentencing Procedure) Act 1999 - consequences of finding pursuant to the Mental Health (Criminal Procedure) Act - judge had the power & jurisdiction to impose a limiting term pursuant to the Mental Health (Criminal Procedure) Act - remarks on sentence did not translate to determination of the appropriate duration of the limiting term - whether sentence imposed manifestly excessive.
Appeal allowed: Limiting term of 3y set aside; in lieu a limiting term of 2y nominated pursuant to s.23(1)(b) Mental Health (Criminal Procedure) Act 1990 (NSW) to commence on 9.3.2005 & expire on 8.3.2007.
Applicant eligible for immediate release from detention on 8.3.2007.
44
WINN, Richard Peter - CCA, 27.2.2007
Adams, Howie & Price JJ
Citation: Winn v R [2007] NSWCCA 44
Sentence appeal.
1 x malicious infliction of GBH; 1 x AOABH (both offences committed on a police officer).
Total of 4y with a NPP of 3y.
The injuries to the police occurred while they were investigating a domestic dispute.
Whether difference between remorse & contrition - standard NPP - failure to consider - whether sentence excessive.
Total of 3 y with a NPP of 1 y.
45
VRAGOVIC, Ivan - CCA, 27.2.2007
Adams, Howie & Price JJ
Citation: Vragovic v R [2007] NSWCCA 46
Conviction and sentence appeal.
1 x maliciously inflict GBH with intent.
12y with a NPP of 8y.
This sentence was partially accumulated upon a sentence of 7y with a NPP of 4y for an offence of maliciously inflicting GBH with intent The effective overall sentence for both offences was 14y with a NPP of 10y.
The appellant & the victim had been married but were divorced. The victim's evidence was that at about 9.30pm she was speaking on the phone when it went dead. She said she saw the appellant at her window forcing entry. She tried to close the window but he prevented her. She ran outside the house into the backyard where the appellant caught up with her, pushed her to the ground & beat her with a piece of exhaust pipe & a shortened firearm, resulting in a number of serious injuries. The appellant fled when people from a nearby tennis court approached.
Aged 69 at time of offending.
False alibi - consciousness of guilt - failure to direct as to lies - application of Rule 4 - application of proviso to s.6(1) Criminal Appeal Act 1912 - whether miscarriage of justice - whether sentence excessive.
Appeal dismissed.
46
BAROUDI, Tarek - CCA, 27.2.2007
Sully, Howie & Price JJ
Citation: Baroudi v R [2007] NSWCCA 48
Sentence appeal.
3 x armed robbery; 3 x detain person in company with intent to obtain advantage.
Total sentence of 6y with a NPP of 4y.
Procedural fairness - relevance of guideline judgment - calculation of composite discounts - special circumstances - double counting - totality.
Appeal dismissed.
47
YANG, Zhong Ping - CCA, 20.2.2007
Sully, Bell & Hoeben JJ
Citation: Yang v R [2007] NSWCCA 37
Sentence appeal.
1 x possess a prohibited pistol; 1 x possess false instruments; 1 x possess material and equipment capable of making false instruments.
Total of 5y 3m with a NPP of 4y.
Police executed a search warrant at the applicant's residence. He told them that there was firearm in his bedroom. A loaded .32 revolver, wrapped in a towel, was found in a drawer in the bathroom. A counterfeit driver's licence in a false name but bearing the applicant's photo, a Visa card in a false name & a number of metal stamps & other items that could produce credit cards were found in the applicant's bedroom. In another room, police found an embossing machine & other material used to produce false credit cards. The sentencing judge was satisfied on the evidence that the applicant was part of an organisation engaged in the manufacture of forged credit cards & licences
Whether sentence manifestly excessive.
Appeal dismissed.
48
DOUGLAS, Paul Robert - CCA, 14.2.2007
McClellan CJ at CL, Bell & Howie JJ
Citation: R v Douglas [2007] NSWCCA 31
Crown appeal.
1 x malicious infliction of GBH - suspended sentence of 20m with a NPP of 12m; 1 x malicious wounding - suspended sentence of 15m with a NPP of 10m.
Offences occurred following a wake - animosity between victim & applicant - animosity between both families.
Aged 29 at time of offences - guilty plea - disrupted childhood - prior offences involving violence.
Aggravating factor - applicant subject to a CSO at time of offences - whether error in sentencing judge's favourable assessments of respondent's prospects of rehabilitation & unlikelihood of re-offending - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 20m with a NPP of 12m, to be served by way of PD.
49
HYMAN, Judy-Ann - CCA, 27.2.2007
Sully, Bell & Hoeben JJ
Citation: Hyman v R [2007] NSWCCA 47
Sentence appeal.
1st group of offences: 9 x make false instrument; 9 x use false instrument; + 50 matters on a Form 1.
2nd group of offences: 2 x obtain financial advantage by deception; + 5 offences on a Form 1.
Total sentence of 5y 3m with a NPP of 3y 9m.
The applicant was employed in the Sydney office of American Express International Incorporated (Amex) as the Executive Assistant to the Senior Vice President of the Global Corporate Services Department. It was during that time that the applicant perpetrated the above offences upon the company, misusing her Corporate Credit Card for personal expenses & forging the signature of the Vice President on travel expense vouchers. In civil proceedings brought against the applicant, Amex accepted that of the $498,327.34 claimed by the applicant on the fraudulent travel expense vouchers, it could not prove that $253,939.28 was not for business purposes. For the purpose of settlement, Amex accepted as valid, travel expense voucher entries which, by their description, appeared to be for business expenses but for which there were no receipts. The civil proceedings were settled by the applicant paying $220,000.
Guilty plea - special circumstances taken into account - professional help sought to deal with gambling addiction - prognosis good if continued.
Whether failure to properly consider objective & subjective circumstances of offences - whether error in application of finding of special circumstances - whether error in application of totality principle - whether error in taking account of Form 1 offences - application of s.21A Crimes (Sentencing Procedure) Act 1999 - requirement to apply Pearce (1998) 194 CLR 610 - whether sentences manifestly excessive.
Appeal dismissed.
50
BUADROMO, Baba - CCA, 27.2.2007
McClellan CJ at CL, Simpson & Buddin JJ
Citation: Buadromo v R [2007] NSWCCA 43
Sentence appeal.
2 x aggravated BE&S; 2 x aggravated steal & break out; 1 x attempt robbery in company; 1 x aggravated attempt carjacking; + 5 offences on a Form 1.
Total sentence of 11y 3m with a NPP of 8y 3m.
The first 4 offences were committed upon residential premises at night when the occupants were asleep. The 5th offence was committed when the applicant, in company with 3 other males, attempted to rob a bank. The attempted carjacking offence occurred in Glebe.
Aged 22 & 23 at time of offences - guilty plea - born in Fiji - violent, alcoholic father regularly beat applicant's mother - mother left & moved to Sydney - applicant remained in Fiji - joined mother at about age 8 - other children at boarding school, 1 child adopted out - at school in Sydney applicant teased, bullied & beaten because of having little English - worked in a number of unskilled jobs - heavy drug & alcohol abuse - prior criminal record.
Finding of special circumstances - moral culpability - accumulation of sentences - statutory proportions of sentences - purpose of finding of special circumstances - whether overall sentence manifestly excessive.
Appeal allowed in relation to count 5, resulting in a total sentence of 11y 3m with a NPP of 7 y.
51
WILMOT, Wayne Lindsay - CCA, 1.3.2007 - 169 A Crim R 280
Sully, Bell & Buddin JJ
Citation: Wilmot v R [2007] NSWCCA 30
Sentence appeal.
1 x detain with intent to hold for advantage; 3 x sexual intercourse without consent; + Form 1 (2 x indecent assault).
Total of 12y with a NPP of 9y (accumulated upon sentence) already being served).
All the above offences were committed upon the same complainant, a young woman aged 19 years who was employed as an assistance stationmaster at the Leightonfield Railway Station. Some 4 weeks after the assault upon this young woman, the applicant assaulted a young woman at another railway station.
Aged 32 at time of sentencing - deprived childhood - mother an alcoholic with succession of male partners, all of whom hated the applicant - behavioural problems from early childhood - made ward of the Minister at age 5 - in trouble with police from age 10 - detained in a number of institutions - drinking alcohol & smoking marijuana from age 11 - lengthy criminal history, including convictions for similar offences - sentenced in 1990 for offences arising out of the abduction & sexual assault of Janine Balding - released to parole in 1996 - assaulted a woman in a park in mid-1997 - a few weeks later robbed a woman walking alone at night on a public street.
Whether sentences manifestly excessive - NPP in excess of statutory proportion.
Appeal dismissed.
52
McDONALD, Clarrie Percy - CCA, 1.3.2007
SLATER, Adrian Joseph Frederick
Sully, Bell & Hoeben JJ
Citation: McDonald v R; Slater v R [2007] NSWCCA 50
Sentence appeals.
McDonald: 1 x aggravated B&E with intent to steal; 1 x AOABH in company - 7 y with NPP of 4 y.
Slater: 1 x aggravated B&E with intent to steal; 1 x AOABH in company - 6y 9m with NPP of 4y 1m.
The occupants were asleep when the applicants broke into their home in the early hours of the morning. The father woke up to go to the toilet & heard noises coming from somewhere in the house. He went into the living room to investigate & saw one of the applicants searching through the sideboard drawers. He approached the applicant, who was wearing a dark beanie, a dark sloppy joe & dark tracksuit pants. The applicant, armed with what the victim said appeared to be a rounded piece of wood, swung the piece of wood at the victim's head. Both applicants grappled with the victim & the victim suffered several blows. The victim called out to his sons, who came to his aid & the 3 of them managed to subdue the applicants. One of the sons used a digital camera to take close-up facial photographs of both offenders & police were called. When police arrived, the digital photographs were printed out & downloaded onto a disk. Police recovered a circular piece of timber about 90cms in length & a hollow metal pipe of about 80cms in length, as well as a dark wool balaclava & a dark sloppy joe. The victim suffered a number of injuries.
Guilty pleas - both applicants had significant criminal histories.
Whether sentences manifestly excessive.
Appeals dismissed.
53
VEATUFUNGA, Potesio Soane - CCA, 1.3.2007
Sully, Bell & Hoeben JJ
Citation: R v Veatufunga [2007] NSWCCA 54
Crown appeal.
1 x aggravated dangerous drive occasioning death; 4 x aggravated dangerous drive occasioning GBH; + fail to stop & assist after impact causing injury.
Total of 3y with NPP of 18m; disqualified from driving for 18m.
Respondent's car veered to the wrong side of the road & collided with an oncoming vehicle. The driver of that vehicle & her 4 passengers were trapped inside the wreckage. One of the passengers had suffered fatal injuries & died in the wreckage. The driver & the other passengers suffered severe injuries. Following the collision, the respondent alighted from his vehicle & fled. He was tracked down by a dog squad a short distance from the scene & was conveyed to hospital by ambulance, suffering internal injuries. At the time of the collision, the weather was fine & dry & the roadway was dry & appeared to be in good condition.
Guilty plea - under the influence of alcohol at the time.
Aggravated offences - sentencing principles - Pearce (1998) 194 CLR 610 - guideline judgment - R v Whyte & Ors (2002) 55 NSWLR 252- moral culpability - whether sentence manifestly inadequate.
Appeal allowed: resentenced to a total of 4y 9m with a NPP of 3y; disqualified from driving for 4y 9m.
54
PHAN, Hai Tu Truong - CCA, 27.2.2007 - 169 A Crim R 22
Simpson, Howie & Buddin JJ
Citation: Phan v R [2007] NSWCCA 42
Sentence appeal.
1 x supply heroin; 1 x possess prohibited firearm; 1 x carry firearm in manner likely to injure person or property.
Total sentence of 7y with a NPP of 5y.
The applicant's car was stopped by police & the applicant was subjected to a roadside breath test. A passenger threw a small box from the car. The box was later found to contain 3.77 grams of heroin. The 2nd & 3rd offences were committed 6 days later during the evening & in the early hours of the following day. The applicant was at home with 3 friends & was showing them a shortened double-barrelled shotgun. He posed with the gun while they took photographs with mobile phones. One friend walked to a doorway & a shot was discharged from the gun. The bullet penetrated the back of the friend's skull, causing severe injury. The applicant & his other friends drove the injured man to hospital. Police later found the shotgun, wrapped in a shirt & secreted at the rear of a garage at the applicant's home. The applicant claimed that the safety catch was on at the time of the shooting & that he did not mean to shoot his friend. The victim has been left with portion of his skull missing. Except for short distances, he requires aid in order to walk. He has left upper limb weakness & his left hand is useless. He also has cognitive deficits & suffers from depression.
Guilty pleas - on bail at time of commission of 2nd & 3rd offences.
Statutory proportion of sentences - purpose of finding of special circumstances - procedural fairness - accumulated or partially accumulated sentences - whether sentences manifestly excessive.
Appeal dismissed.
55
AJB - CCA, 5.3.2007 - 169 A Crim R 32
Adams, Howie & Price JJ
Citation: AJB v R [2007] NSWCCA 51
Sentence appeal.
5 x indecent assault upon child under 16; + 4 similar offences on a Form 1.
Total sentence of 4y with a NPP of 3y.
The applicant committed the offences over a period of 3 years from 1979 against his stepdaughter, who was aged between 6  years & 10 years at the time. The victim complained to her mother about the applicant's conduct in 1982 & the applicant sought treatment from a psychiatrist. The family remained together for another 10 years without any further misconduct by the applicant towards the victim. In 1993, the victim complained to a police hotline but there was no response. She then made a complaint in 2005 that resulted in the arrest of the applicant in July of that year. At first, the applicant denied the allegations, however, he pleaded guilty before the LC & was committed to the DC for sentencing. The applicant was given a 25% discount on sentence for the utilitarian benefit of the guilty pleas.
Whether sentence excessive according to sentencing practices in 1982 - whether availability of remissions relevant - special circumstances - relevance of practice in 1982 for fixing NPP.
Appeal allowed: resentenced to a total of 3y with a NPP of 18m.
56
JRD - CCA, 5.3.2007
McClellan CJ at CL, Bell & Howie JJ
Citation: R v JRD [2007] NSWCCA 55
Crown appeal.
1 x supply commercial quantity MDMA (ecstasy) - 2y with a NPP of 18m suspended;
1 x receiving; + 2 matters on a Form 1 - 2y with a NPP of 18m suspended.
1 x obtain credit by fraud 12m FT suspended.
The respondent was involved in the supply of ecstasy. The offence charged involved tablets weighing 250 grams, containing 125 grams MDMA. The respondent was paid $500 in commission for his part in the supply. The charge of receiving related to the respondent attempting to dispose of some crates of vodka that had been stolen by other offenders. The form 1 matters related to respondent's involvement with other stolen goods. The fraud matter concerned a false document used by the respondent to obtain a loan to purchase a motor vehicle.
Whether sentences manifestly inadequate - whether approach to sentencing erroneous - whether discount for assistance excessive.
Appeal allowed: respondent resentenced to a total of 3y 14d with a NPP of 2y 4m 14d.
57
NORMAN, Mark Edward - NSW SC, Hidden J, 5.3.2007
OLIVIERI, Tony
Citation: R v Norman; R v Olivieri [2007] NSWSC 142
Remarks on Sentence.
Norman: 1 x murder (accessory before the fact); 1 x cheat and defraud as a director.
Olivieri: 1 x murder.
The deceased was a solicitor practising from an office adjoining his home in Petersham. He was a client of an accountancy practice where Norman was a director. The deceased & Norman had known each other for approx 10 years & had been on friendly terms. In late 2003, the deceased drew a number of cheques on the account of his solicitor's practice made out to the Taxation Office in amounts totalling approx $83,500. These were delivered to Norman's office for the purpose of meeting outstanding tax liabilities. Norman, however, deposited them into a trust account from which he withdrew the funds over a period of a few weeks for his own use. None of the money was sent to the Taxation Office. By late 2004, the deceased had discovered Norman's fraud & had confronted him about it. Fear of exposure led Norman to have the deceased killed. Norman engaged Olivieri to kill the deceased. Norman planned the killing & arranged for the deceased to be in his office on the evening he was killed by making an appointment with him which he had no intention of keeping. Norman sought to distance himself from the killing by arranging a business meeting that same evening at Glenfield, well away from the Petersham area. During the evening of the killing, Olivieri entered the deceased's office & shot him 4 times, one bullet entering his head, the others entering his torso. The deceased's wife & children were home at the time. The wife heard the shots & ran to the office & saw a man running from the scene. The deceased died by the time ambulance officers arrived.
Sentences:
Norman: cheat & defraud - 3y; murder - 35y with a NPP of 29y; resulting in a total of 37y with a NPP of 31y.
Olivieri: murder - 33y with a NPP of 28y.
58
QING AN - CCA, 7.3.2007
Beazley JA, Hulme & Hislop JJ
Citation: Qing An v R [2007] NSWCCA 53
Conviction and sentence appeal.
8 x armed robbery.
Total sentence of 12y 3m with a NPP of 10y (count 1 - 6y with a NPP of 4 y; counts 2&5 - 7y with a NPP of 5y 3m; counts 6-8 - 8y with a NPP of 6y; counts 9&10 - 9y with a NPP of 6y 9m).
The offences were committed in the company of another offender who pleaded guilty & was sentenced to 11y with a NPP of 8y 3m. In 3 of the above offences, the appellant was armed with a knife (counts 1,2&5) & in the remaining 5 offences he was armed with an imitation pistol (counts 6-10). The appellant had been charged with a total of 10 offences. During the course of the trial, the trial judge directed verdicts of not guilty in respect of counts 3&4.
Conviction appeal: The appellant appealed against his conviction on the basis that an irregularity occurred during the course of the jury's deliberation when the jury found a syringe in the pocket of the appellant's jacket that was an exhibit in the case & that the trial judge erred in failing to discharge the jury.
Conviction appeal dismissed.
Sentence appeal: Failure to correctly apply Crimes (Sentencing Procedure) Act 1999 (NSW) - failure to impose individual sentences in respect of each offence - totality - parity - whether sentences manifestly excessive.
Appeal against sentences on counts 1,2&5 dismissed.
Appeal against sentences on counts 6-10 allowed; appellant resentenced as follows:
Count 6: 6y 8m with a NPP of 5y (commencing 25.10.2003);
Count 7: 6y 8m with a NPP of 5y (commencing 25.4.2004);
Count 8: 6y 8m with a NPP of 5y (commencing 25.10.2004);
Count 9: 6y 8m with a NPP of 5y (commencing 25.4.2005);
Count 10: 6 y with a NPP of 4y (commencing 25.4.2006).
This resulted in a new total sentence of 10y with a NPP of 7 y.
59
BWS - CCA, 9.3.2007
Sully, Bell & Hoeben JJ
Citation: R v BWS [2007] NSWCCA 59
Crown appeal.
2 x aggravated sexual assault - 10y with a NPP of 6y for each offence (concurrent); 1 x AOABH - 4m FT (concurrent).
Total sentence of 10y with a NPP of 6y.
The complainant had been living with the respondent (her uncle) & his wife since she was 18 months old. At the time of the above offences, the complainant was aged 16 years & was in year 10 at school. The Crown led relationship evidence to the effect that the sexual assaults had commenced when the complainant was 9 years of age & continued regularly while she was living with the respondent. The complainant ceased living there on the day of the incident giving rise to the AOABH.
Aged 57 at time of sentencing - poor health - prior offences, including one of assault female under 16 years of age with act of indecency.
Failure to apply correct sentencing principle established in Pearce (1998) 194 CLR 610 - requirements of standard NPP - ss.54A & 54B Crimes (Sentencing Procedure) Act - whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 10 y with a NPP of 7 y.
60
Roads & Traffic Authority (NSW) v Baldock - CCA 21.2.2007 - 168 A Crim R 566
Spigelman CJ, Bell & Howie JJ
Citation: Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35
Stated case.
On 12 June 2005 the Respondent was driving a vehicle which was recorded by a speed camera as travelling at 93 kph in an 80 kph zone. He was convicted of an offence under r20 of the Australian Road Rules in the Local Court but successfully appealed to the District Court. The appeal judge, his Honour Judge Nicholson SC, has stated a case for this Court.
Traffic offences - proof of speed - speed measuring devices - photographic evidence of speeding offence - accuracy - evidence to the contrary.
61
MO, Wai Hong - CCA, 9.3.2007 - 169 A Crim R 60
Sully, Barr & Adams JJ
Citation: R v MO [2007] NSWCCA 61
Crown appeal.
Attempt import commercial quantity heroin.
9y with a NPP of 6y.
The weight of the pure heroin was just over 76 kgs & the weight of the mixture including the heroin was almost 106 kgs. A conservative estimate of the wholesale value of the heroin at the time of seizure was approx $60 million.
Whether sentence manifestly inadequate - proper approach to expression of discounts in sentence.
Appeal allowed: respondent resentenced to 13y 2m with a NPP of 8y 8m.
62
MOUROUFAS, Jim - CCA, 9.3.2007
Sully, Bell & Hoeben JJ
Citation: Mouroufas v R [2007] NSWCCA 58
Conviction and sentence appeal.
Cultivate commercial quantity cannabis plants (250 plants).
4y with a NPP of 2y.
Police attended a property where they discovered a large cannabis plantation. The total weight of cannabis plants collected was approx 2,700 kgs. A number of people were arrested. The appellant was subsequently identified as a worker who had been on the property. He was from Adelaide & had returned there before the police raid. The Crown case against him relied upon the evidence of Mr Multari & Ms Loisos. Both were involved in the cultivation activity & both provided induced statements to police. Ms Loisos & Mr Multari entered a plea of guilty to knowingly take part in the cultivation of a commercial quantity of cannabis. Each was given a 60% discount for the guilty plea & assistance to authorities. Both signed an undertaking to give evidence against co-accused persons, including the appellant. Ms Loisos received a 2y suspended sentence & Mr Multari received 2y 9m with a NPP of 10m. Mr Multari took part in a photo identification process & identified photograph 14 as being 'Jim from Adelaide'Ms Loisos took part in a photo identification process & she also identified the person in photograph 14 as being on the property & said 'I think his name was Con from Adelaide'It was common ground that there was a person by the name of Con Spilotopoulos arrested on the property. In her evidence Ms Loisos admitted she did not tell the truth to police just after she was arrested because she was scared for her family & for other reasons.
Identification - whether direction required under ss.116 & 165 Evidence Act 1995 - appellant's counsel elicited evidence of the whole of appellant's criminal record - whether unfairness resulted - whether any rational or reasonable explanation for eliciting this evidence - whether miscarriage of justice - whether cultivation of not less than commercial quantity of plants requires actual handling of that number of plants by an offender for the element of the offence to be made out.
Appeal allowed: new trial ordered.
63
HIGGINS, Graham Patrick - CCA, 9.3.2007
Sully, Bell & Hoeben JJ
Citation: Higgins v R [2007] NSWCCA 56
Conviction appeal.
1 x fraudulently omit to account.
3y with a NPP of 1y 9m.
The appellant was a Commonwealth Bank manager. 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 appellant did not 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 appellant was charged with the above offence, the bank dismissed him.
The appellant entered a plea of not guilty in the DC. A voir dire took place as to the admissibility of 2 interviews relied upon by the Crown as admissions. The 1st was an interview between the appellant & Commonwealth Bank investigators, the 2nd was an interview between the appellant & police that in part adopted the bank interview. The trial judge ultimately ruled that both interviews were admissible & they were tendered at trial. Following the trial, the trial judge's summing up to the jury included a direction on circumstantial evidence. The jury returned a verdict of guilty.
A Crown appeal against sentence was dismissed in 2006: see R v Higgins [2006] NSWCCA 326.
Statement made to bank investigators - admissions - whether interview oppressive in terms of s.84 Evidence Act - whether unfairness under s.90 of the Act established - application of discretion under s.90 - summing up - whether jury adequately directed as to circumstantial evidence - redirection not asked for at trial.
Appeal dismissed.
64
WALLACE, Michael Anthony - CCA, 14.3.2007
Sully, Bell & Hoeben JJ
Citation: R v Wallace [2007] NSWCCA 63
Crown appeal.
Murder.
20y with a NPP of 14y.
The respondent shot a female friend in the back of the head then buried her body: see R v Wallace [2006] NSWSC 897.
Standard NPP - whether error in finding that respondent's crime was properly to be assessed as in the mid-range of objective seriousness - ss.54A & 54B Crimes (Sentencing Procedure) Act 1999 (NSW) - whether error in approach to application of s.21A of the Act.
Appeal dismissed.
65
BURRELL, Bruce Allan - CCA, 16.3.2007 Reported:190 A Crim R 148
McClellan CJ at CL, Sully & James JJ
Citation: Burrell v R [2007] NSWCCA 65
Conviction and sentence appeal.
Murder - life imprisonment; detain with intent to hold for advantage - 16y with a NPP of 12y.
Appellant kidnapped female friend for ransom - circumstances of death unknown - body never recovered - worst case. See also R v Burrell [2006] NSWSC 581.
Aged 53 at time of sentencing - not guilty plea - substantial planning - modest criminal record.
Burden of proof - assessment by jury - circumstantial evidence - whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn - unfavourable evidence - juror bias - whether conviction unreasonable - whether sentence manifestly excessive.
Appeal dismissed.
66
CASSANITI, Salvatore Peter - CCA, 16.3.2007
Sully, Howie & Latham JJ
Citation: Cassaniti v R [2007] NSWCCA 66
Conviction appeal (extension of time to appeal).
22 x defraud Commonwealth; 1 x attempt defraud Commonwealth.
Sentence not stated.
Central to the Crown case was that false taxation returns had been lodged as a means for appellant to recover significant sums of money owed to him by a client for outstanding accountancy fees & outstanding loans.
The appellant was found not guilty of a further charge of defrauding the Commonwealth.
Directions - consequences of company deregistration - consequences of company liquidation - bankruptcy of client.
Appeal dismissed.
67
T - CCA, 16.3.2007
Sully, Bell & Hoeben JJ
Citation: T v R [2007] NSWCCA 62
Sentence appeal.
Supply commercial quantity methylamphetamine; + 2 offences on a Form 1.
5y 9m with a NPP of 3y 9m.
The applicant was also sentenced for an offence of doing an act with intent to pervert course of justice & received a FT of 3m. He did not appeal against that FT.
The overall sentence imposed upon the applicant was 6y with a NPP of 4y.
The supply offence was a 'rolled up'count relating to discrete supplies of methylamphetamine. The applicant supplied an undercover police officer on 5 occasions with quantities of methylamphetamine, ranging in amounts of between 11.5 grams & 244.4 grams. In all, the 5 supplies involved 351.14 grams (estimated street value $70,228).
Whether error in using standard NPP as a starting point - whether error in not taking into account finding of special circumstances as a factor in setting the NPP.
Appeal dismissed.
68
LULAND, Bernard George - CCA, 16.3.2007
Sully, Bell & Hoeben JJ
Citation: Luland v R [2007] NSWCCA 64
Conviction appeal.
1 x aggravated BE&S; 1 x AOABH; 2 x armed robbery.
Sentence not stated.
Whether trial miscarried as a result of decision by trial judge to order, pursuant to s.22 of the Jury Act, that the appellant's trial would continue with a jury of 11.
Appeal dismissed.
69
ANDREWS, Ashley James - CCA, 16.3.2007
McClellan CJ at CL, Sully & Howie JJ
Citation: Andrews v R [2007] NSWCCA 68
Sentence appeal.
1 x malicious wounding.
2y 3m with a NPP of 20m.
The judge allowed a 25% discount for an early guilty plea but did not find special circumstances.
In a drunken state, the applicant attacked his ex- de facto & inflicted serious injuries upon her.
Aged 34 at time of offending - guilty plea - Aboriginal background - affected by alcohol & drugs.
Failure to find special circumstances - whether sentence manifestly excessive - whether less severe sentence warranted.
Appeal dismissed.
70
SHEEN, Alysha - CCA, 16.3.2007 - 170 A Crim R 533
Sully, Bell & Hoeben JJ
Citation: R v Sheen [2007] NSWCCA 45
Conviction appeal; and
Crown appeal against sentence.
1 x knowingly take part in the manufacture of methylamphetamine.
2y with a NPP of 18m.
Following surveillance, police executed a search warrant on premises leased by the appellant & her de facto. The appellant, her de facto & another man were in the house at the time. There was an acrid chemical smell inside the house. In the master bedroom, police found liquid being heated in a 5 litre reaction flask. This liquid was later analysed & found to be methylamphetamine. Police also found other glassware & chemicals associated with the manufacture of methylamphetamine in the room. The appellant's 2 young children were asleep in 2 other bedrooms at the time. The 2 men pleaded guilty to manufacturing a commercial quantity of methylamphetamine. The appellant said she had not played any part in the manufacture & denied any knowledge of the laboratory that had been set up. The appellant's de facto gave evidence in the Crown case. He said that the drug manufacture had commenced about an hour before police arrived & that the appellant had been asleep in the lounge room at the time & had not taken part in the manufacture of the drug.
Crown appeal: Whether sentence manifestly inadequate. Appeal dismissed.
Conviction appeal: Directions - 'suffering or permitting'premises to be used for manufacture of prohibited drugs - mere knowledge of manufacture insufficient - r4 Criminal Appeal Rules - proof required that appellant possessed power or capacity to prevent the manufacture - miscarriage of justice.
Conviction appeal allowed: new trial ordered.
71
BARNES, Stuart - CCA, 14.3.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Barnes v R [2007] NSWCCA 69
Sentence appeal.
1 x supply methylamphetamine (55.1 grams); 1 x supply MDMA (ecstasy - 4.6 grams).
Total sentence of 2 y with a NPP of 15m.
Each offence involved a deemed supply. The drugs were found in a vehicle stopped by police on its way from Sydney to the Central Coast. The applicant & others were in the vehicle at the time. The applicant admitted that the drugs were his. He was an addict & the sentencing judge accepted that at least half the drugs were for the applicant's own use, that some would have gone to the applicant's then partner, however, he felt unable to determine what would have happened to the balance.
Aged 43 - guilty plea - special circumstances - lengthy criminal record - previous imprisonment.
Objective gravity of offences - whether overall sentence manifestly excessive.
Appeal dismissed.
72
LU, Quang Hoang - CCA, 16.3.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Lu v R [2007] NSWCCA 74
Sentence appeal.
1 x supply heroin (deemed); + Form 1 (goods in custody).
4y 8m with a NPP of 3y 7m.
The applicant pleaded guilty & received a discount on sentence of 20%. The amount of heroin involved was 24.07 grams. Police found the heroin when they entered premises in which the applicant was living. In an ERISP, the applicant maintained the heroin was for his own use.
Aged 33 at time of sentence - long criminal record, including prior drug offences - previous imprisonment.
Whether starting point too high - whether sentence manifestly excessive.
Appeal dismissed.
73
CLARKSON, Mark Alfred - CCA, 22.3.2007 - 171 A Crim R 1
Beazley JA, Sully & Howie JJ
Citation: Clarkson v R [2007] NSWCCA 70
Conviction and sentence appeal.
Multiple offences against the Passports Act.
Whether error in ruling defence of duress & necessity unavailable - whether error in not allowing evidence of defence - elements of offence - whether error in directing in respect of elements of offence - whether error in failure to order separate trial - whether error in accumulating offences for overall sentence - sleep apnoea - unfitness to be tried
Appeal dismissed.
74
SPINKS, Ashley - CCA, 22.3.2007
Sully, Bell & Hoeben JJ
Citation: Spinks v R [2007] NSWCCA 52
Sentence appeal.
4 x aggravated armed robbery; + offences on 2 Form 1 documents.
Total sentence of 15y with a NPP of 8y 9m.
A number of the offences were committed jointly with a co-offender (2 x aggravated armed robbery; + offences on two Form 1 documents). The co-offender was sentenced to a total of 10y with a NPP of 6y.
Parity - Form 1 offences - whether justifiable sense of grievance - whether sentence manifestly excessive.
Appeal dismissed.
75
SWANSSON, David Anthony - CCA, 21.3.2007 - 69 NSWLR 406; 168 A Crim R 263
HENRY, Peter James
Spigelman CJ, McClellan CJ at CL, Sully, Simpson & Howie JJ
Citation: Swansson v R; Henry v R [2007] NSWCCA 67
Conviction appeals.
Henry: Conspire to import commercial quantity MDMA (ecstasy). The amount of MDMA involved was 31.95 kgs with a pure weight of 10.443 kgs. Henry was tried with 4 other accused & each accused was arraigned on a separate indictment.
Swansson: Aiding, abetting, counselling and procuring the commission of the above offence. Swansson was tried with 2 other accused & each was arraigned on a separate indictment. Swansson was further arraigned under a 2nd indictment of knowingly take part in the supply of a commercial quantity of MDMA.
The appellants submitted that the trials & convictions were a nullity as they proceeded on more than one indictment. The Crown accepted that the 'one indictment, one jury'principle is longstanding, but submitted that it is merely a rule of practice, rather than a rule of law. The Crown submitted that no coherent justification for the rule appears in the authorities and, accordingly, it contended that the rule plays no relevant role in the modern criminal justice system. Alternatively, the Crown submitted that contravention of the rule did not result in the proceedings being a nullity in the strict sense, asserting that the Court can invoke the proviso and that, on the facts of the case, there was no substantial miscarriage of justice.
The appellant Swansson asked the Court to proceed to hear other grounds of appeal.
Powers of appellate court to hear a matter - whether a null trial means the trial has no legal effect & is not subject to an appeal - whether 'convicted on indictment'in s.5(1) Criminal Appeal Act 1912 refers only to a valid conviction on a valid indictment - power to dismiss an appeal where no substantial miscarriage of justice has occurred.
Henry: Appeal allowed: new trial ordered.
Swansson: Leave to add additional ground of appeal granted.
76
CAMILLERI, Rodney James - CCA, 26.2.2007 - 68 NSWLR 720; 169 A Crim R 197
McClellan CJ at CL, Bell & Howie JJ
Citation: R v Camilleri [2007] NSWCCA 36
s.5F appeal by Crown against interlocutory rulings.
1 x dangerous driving occasioning death.
The Crown sought to tender evidence of the analysis of a sample of respondent's blood taken from him following the motor car accident. On 17.10.2006, the trial judge ruled that an analysis certificate, purportedly prepared pursuant to s.20 Road Transport (Safety and Traffic Management) Act 1999, which the Crown sought to tender in evidence, would be rejected. The issue was raised again at a pre-trial hearing on 8.2.2007 when his Honour ruled that, for the reasons he had previously given in relation to the certificate, he would not allow any evidence relating to the blood sample to be admitted.
Reliance on blood analysis evidence to establish blood alcohol level - evidence central to Crown case - whether Crown entitled to rely on the evidence - probative value of evidence - public policy considerations.
Appeal allowed: order rejecting evidence relating to the blood sample quashed.
77
TAUFAHEMA, Motekiai - HCA, 21.3.2007 - 228 CLR 232; 81 ALJR 800
Citation: The Queen v Taufahema [2007] HCA 11
Application by Crown for special leave to appeal against a verdict of acquittal entered by NSWCCA.
Murder (of Senior Constable Glenn McEnallay).
Joint criminal enterprise - extended common purpose - respondent alleged to be party to a joint criminal enterprise - respondent convicted of murder - appeal against conviction allowed on the ground of a wrong direction on a question of law - conviction quashed, verdict of acquittal entered: see  Taufahema v R[2006] NSWCCA 152.
Whether retrial can be ordered where classification of joint criminal enterprise differs from that presented at 1st trial - whether difference of classification constitutes new case not made at 1st trial - meaning of "new case" - whether retrial appropriate where case at trial adopted by prosecution for tactical reasons - whether granting retrial on a "new case" is consistent with even-handed disposition of criminal appeals.
1. Special leave to appeal granted.
2. Appeal allowed.
3. Set aside the order of the New South Wales Court of Criminal Appeal made on 8 May 2006 entering a verdict of acquittal and in its place order that there be a new trial.
78
HILLIER, Steven Wayne - HCA, 22.3.2007 - 228 CLR 618;81 ALJR 886
Citation: The Queen v Hillier [2007] HCA 13
On appeal from the SC of the Australian Capital Territory.
The respondent appealed to the Court of Appeal of the Australian Capital Territory against his conviction for murder. The Court of Appeal quashed the conviction & entered a verdict of acquittal.
Whether error in quashing the verdict of the jury - nature of appellate jurisdiction where no common form criminal appeal statute is enacted - extent of duties & powers given to the Court of Appeal under Pt 2A Supreme Court Act 1933 (ACT) - principles governing the exercise of those duties & powers - whether in this case it would have been unjust or unsafe for the Court of Appeal to allow the verdict to stand.
Orders:
Appeal allowed; set aside the orders of the Court of Appeal of the Australian Capital Territory made on 15 December 2005 and remit the matter to that Court for rehearing.
79
CORNWELL, Richard Bruce - HCA, 22.3.2007 - 231 CLR 260; 81 ALJR 840
Citation: Cornwell v The Queen [2007] HCA 12
On appeal from the SC of NSW.
The accused was convicted following a retrial for conspiracy to import cocaine. The accused gave evidence after indications that a certificate under s.128(6) would be granted. At the retrial, the Crown sought to tender cross-examination evidence from the 1st trial. That evidence was held to be admissible.
Construction of s.128(8) - whether s.128(8) precluded accused from relying on the certificate - privilege against self-incrimination - meaning of "fact in issue" under s.128(8) - distinction between "facts in issue" & "facts relevant to facts in issue" - whether evidence went to a "fact in issue" at the retrial - whether retrial was a "proceeding" to which s.128(7) applied.
Orders:
1. Appeal allowed.
2. Application for special leave to cross-appeal granted and cross-appeal allowed.
3. Matter remitted to the CCA for consideration of grounds 2, 3, 4 & 6, and reconsideration of ground 5, in the appellant's notice of appeal to that Court.
80
XY - CCA, 23.3.2007
McClellan CJ at CL, Sully & Howie JJ
Citation: XY v R [2007] NSWCCA 72
Sentence appeal.
Count 1: sexual intercourse with child under 10;
Count 2: maliciously inflict GBH with intent to do GBH;
Counts 3&4: AOABH.
Total sentence of 16 y with a NPP of 11 y.
The offences arose from a single incident when the applicant assaulted 3 of his girlfriend's children. Counts 1 & 2 related to a female child aged 2 years & counts 3 & 4 related to each of 2 young male children, aged 8 & 4 years. The 2 year old female child was left with numerous injuries as a result of the sexual intercourse & the infliction of GBH upon her. All 3 children were whipped with a length of plaited nylon rope. The boys suffered multiple longitudinal bruises across their backs & buttocks & the little girl was left with multiple lesions on her buttocks. Because of the pain she was in, the young female child was placed under general anaesthetic in the operating theatre in order to examine the extent of her injuries.
Abuse of trust - gratuitous cruelty - applicant aged 18 at time of offences.
Young offender - whether intoxication & prior good character mitigating factors - contrition - whether offence close to being worst case of kind - whether offence mid-range - whether error in determining NPP.
Appeal allowed: resentenced to a total of 8y with a NPP of 5y.
81
REABURN, Vance Matthew - CCA, 16.3.2007 - 169 A Crim R 337
Sully, Bell & Hoeben JJ
Citation: Reaburn v R [2007] NSWCCA 60
Sentence appeal.
1 x aggravated sexual intercourse without consent (threat to inflict bodily harm with knife); 1 x sexual intercourse without consent; + Form 1 offence (AOABH).
Total sentence of 14y 3m with a NPP of 11y.
The victim was a Japanese tourist who was sharing a flat with the applicant's girlfriend.
Use of standard NPP when plea of guilty - error in using standard NPP as starting point - failure to apply discount for early guilty plea - meaning of 'part of a planned or organised criminal activity'in s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: resentenced to a total of 10y 2m with a NPP of 7 y.
82
TEKELY, Alan John - CCA, 23.3.2007
NAGLE, Craig Michael
McClellan CJ at CL, Sully & Howie JJ
Citation: Tekely v R; Nagle v R [2007] NSWCCA 75
Tekely: Conviction & sentence appeal.
1 x manslaughter; 1 x unlawful imprisonment. Total of 6y with a NPP of 3y 9m.
Nagle: Conviction appeal.
1 x manslaughter; 1 x unlawful imprisonment. Total of 5y with a NPP of 2y 9m.
The deceased & the applicants, together with a number of other people, shared a house. On the day of the deceased's death, he displayed uncontrollable behaviour. He was placed in a chair with his hands handcuffed behind his back. The applicant Tekely then administered a number of blows of considerable force to the deceased's stomach & face. The applicant Nagle joined in the assault by striking him to the face or head at least twice. When the deceased lost colour & began to lose consciousness, the handcuffs were removed & he was taken outside. The applicants finally realised that the deceased was seriously ill & an ambulance was called. When ambulance officers arrived, the deceased was already dead.
Warnings - directions - summary of facts - expert evidence - whether sentences excessive.
Appeals dismissed.
83
EPACRIS PTY LTD v D-G, Dept of National Resources - CCA, 27.3.2007
Hunt AJA, Barr & Johnson JJ
Citation: Epacris Pty Limited v Director-General, Department of National Resources [2007] NSWCCA 76
Land and Environment Court - summons in summary prosecution names as the prosecutor one person in header & another in part of document - mistake not discovered until after limitation period expired - whether summons a nullity - whether summons may be amended - whether mistake as to name or identity of prosecutor - whether misleading or such as to cause reasonable doubt as to identity of prosecutor - whether test objective or subjective - whether, if subjective, evidentiary onus on defendant to show misled or had reasonable doubt - Criminal Procedure Act 1986, s.16(2).
Appeal dismissed.
84
STANFORD, Christopher Lee - CCA, 26.3.2007
McClellan CJ at CL, Hulme & Rothman JJ
Citation: Stanford v R [2007] NSWCCA 73
Sentence appeal.
1 x fire firearm with disregard for safety of others; 3 x malicious wounding; + Form 1 offence (use unauthorised prohibited firearm without licence or permit).
Total sentence of 5 y with a NPP of 3 y.
Agreed statement of facts tendered. Applicant pleaded guilty to the above offences.
Accumulation of sentences - totality - impact of theoretical possibility that offence could be dealt with at LC - effect of intoxication - quantification of discount for guilty plea - parity - child co-offender.
Appeal allowed: resentenced to a total of 3 y with a NPP of 2 y.
85
DFS - CCA, 27.3.2007
McClellan CJ at CL, Barr & Hoeben JJ
Citation: DFS c R [2007] NSWCCA 77
Sentence appeal.
Two indictments were presented containing multiple offences (steal MV; BE&S; steal from the person (bag snatching); assault with intent to steal MV (carjacking); 6 x assault law enforcement officer not being a police officer while in execution of officer's duty; destroy Foxtel dish & receiver; cause damage by means of fire; malicious damage).
Total sentence of 6y with a NPP of 4y.
Applicant entered guilty pleas in the Children's Court & the matter was remitted to the DC for sentencing.
Whether sentences excessive compared with those imposed on co-offenders.
Appeal dismissed.
86
BURRELL, Bruce Allan - CCA, 23.3.2007 - 175 A Crim R 21
McClellan CJ at CL, Sully & James JJ
Citation: Burrell v R [2007] NSWCCA 79
Application to re-open criminal appeal. See also  Burrell v R[2007] NSWCCA 65.
Murder.
Consideration of irrelevant evidence by CCA - misunderstanding of facts not in evidence - evidence not included at trial taken into account - whether application should be heard by a reconstituted bench to avoid any apprehension of bias - whether jurisdiction exists to reopen a matter after judgment has been delivered - power of courts to review perfected orders - functions of judges - implied power of courts to do justice to parties.
Order of the Court dismissing the appeal confirmed.
87
McCORMICK, Adam James - CCA, 28.3.2007
Hunt AJA, Johnson & Latham JJ
Citation: McCormick v R [2007] NSWCCA 78
Conviction and sentence appeal.
2 x corruptly agreeing to receive a benefit (bribery offences); 7 x give false evidence.
Total sentence of 5y with a NPP of 3y.
The Crown case was that the appellant, a councillor on Rockdale City Council, agreed to accept bribes to promote 2 development applications before the council. A number of telephone conversations & text messages between the appellant & Mr Smyrnis (another councillor) were lawfully intercepted by the ICAC. Mr Smyrnis agreed to pay the appellant $70,000 per development application on the basis that the appellant persuaded his fellow Labor Party councillors to support the applications & the applications were subsequently approved. When the appellant was called upon by the ICAC to explain the recorded telephone conversations & text messages, he gave false evidence denying his involvement in any corrupt conduct.
The appellant's appeal challenged the failure by the trial judge to discharge the jury on the application of appellant's counsel. The application was made following a communication from the only Crown witness to the Crown Prosecutor to the effect that the witness thought he knew a female member of the jury. It was submitted that his Honour applied the wrong test in refusing to discharge the jury, namely the absence of any indication from any member of the jury of prior knowledge of the Crown witness, rather than a consideration of whether a reasonable apprehension of bias on the part of that unidentified juror arose.
Apprehended bias of juror - Ebner test ( Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337) - parity.
Appeal dismissed.
88
ALMIROL, Alejandro (No.1) - NSWSC, Kirby J, 21.2.2007 - 168 A Crim R 423
Citation: R v Almirol [No 1] [2007] NSWSC 290
Judgment on admissibility of telephone intercepts.
Murder.
Accused overseas - police use friend to telephone - police agent - no warning - warrant granted in respect of telephone number in Australia - whether that number "likely to be used" by accused - whether evidence improperly obtained - or were "admissions" that it would be unfair to use - s.90(b) Evidence Act.
Decision: Telephone intercept evidence allowed.
89
KORGBARA, Ozone Emeka - CCA, 30.3.2007 - 71 NSWLR 187; 170 A Crim R 568
McColl JA, Grove & James JJ
Citation: Korgbara v R [2007] NSWCCA 84
Conviction and sentence appeal.
Knowingly concerned in the importation of cocaine (102.5 grams).
9y with a NPP of 5y 5m.
A box containing tools & a small circular gold-coloured object (a bearing) was despatched through 'FedEx'in San Paolo, Brazil, addressed to a 'Mrs C Gladys' at a mailbox address in Sydney. The appellant had leased this mailbox about 6 weeks before the parcel was mailed from Brazil. The box was processed through Memphis, Tennessee, where authorities examined it & found that the bearing contained cocaine. Arrangements were made with Australian authorities & the parcel was brought to Australia by an Australian Federal Police Officer as part of a controlled operation. Once in Australia, a controlled delivery took place.
Accused arrested before repeal of s.16G Crimes Act 1914 (Cth) but tried & sentenced after repeal.
Voice comparison - tape recording of accused speaking English - tape recordings of persons discussing crime in foreign language - foreign language accused's native tongue - accused gave evidence - whether jury could compare voice of accused with voices on tapes to determine if he was one of those speaking on the foreign language tapes - whether open to jury to compare a voice speaking a foreign language with a voice speaking English in the absence of expert evidence - whether sentence should reflect pre-repeal regime - whether trial judge gave any, or any adequate weight, to fact accused attacked in gaol & to delay in Crown bringing the matter to trial - whether sentence manifestly excessive.
Appeal dismissed.
90
FRIGIANI, Enzo - CCA, 30.3.2007
Simpson, Barr & Howie JJ
Citation: Frigiani v R [2007] NSWCCA 81
Sentence appeal.
Malicious wounding with intent to inflict GBH.
9y with a NPP of 5 y.
The victim was the estranged wife of the applicant. The assault upon her began with the applicant striking her to the head, placing his hand over her mouth & nose, thus restricting her breathing, & threatening to kill her young son. The applicant then grabbed the victim by the hair & pulled her to the kitchen, grabbed a knife & stabbed the victim 6-8 times to the upper body. He then dropped the knife & left. The victim was taken to hospital. Apart from the stab wounds, she suffered a collapsed lung.
Guilty plea - standard NPP - application of Way ([2004] 60 NSWLR 168) - taking into account prior offence dealt with under s.10 Crimes (Sentencing Procedure) Act.
Appeal dismissed.
91
LAWLER, David Kent - CCA, 30.3.2007 - 169 A Crim R 415
McClellan CJ at CL, Bell & Price JJ
Citation: Lawler v R [2007] NSWCCA 85
Sentence appeal.
1 x manslaughter by use of motor vehicle; 2 x dangerous drive occasioning GBH; + offences on a s.166 certificate (use unregistered vehicle; use uninsured vehicle; use unauthorised number plate on vehicle; goods in custody (registration plates); display misleading registration label; use unauthorised number plate on trailer).
Total sentence of 10y 8m with a NPP of 8y.
The applicant, driving a Volvo prime mover with a tri-axle flat bed trailer, was responsible for a horrendous crash on the Mooney Mooney Bridge, which claimed the life of a female driver & caused serious injury to 2 other drivers, as well as minor injuries to others & damage to a number of motor vehicles.
Pre-meditation - general deterrence - heavy vehicles.
Whether sentence manifestly excessive.
Appeal dismissed.
92
PAVITT, Steven John - CCA, 2.4.2007 - 169 A Crim R 452
McColl JA, Adams & Latham JJ
Citation: Pavitt v R [2007] NSWCCA 88
Conviction appeal.
4 x sexual intercourse without consent with person under age of 16; 1 x buggery; 2 x indecent assault.
Total sentence of 5y with a NPP of 3y.
The Crown case was that the appellant sexually assaulted the male complainant when the complainant was between 12 & 16 years of age. The appellant was approx 6 years older than the complainant. The complainant first complained to police about the matters in respect of which the appellant stood trial in 2002. After he did so, the police obtained a warrant to listen to a telephone call made on 3.3.2003 by the complainant to the appellant. At that time the appellant was a suspect; but police had not decided to charge him. He had not refused to be interviewed by police. The Crown relied upon the contents of the conversation as constituting admissions by the appellant. A tape of that conversation & a transcript were admitted over objection. Six witnesses were called who gave evidence that the complainant had complained about the appellant's conduct to them. Three of those witnesses were complainant's childhood friends. Each gave evidence of conversations with the complainant & 3 other witnesses gave evidence of complaints made to them by the complainant when he was an adult.
Whether error in admitting evidence - whether error in not including in summing up a summary of the evidence concerning matters at issue in the trial- whether verdicts unreasonable & inconsistent with the evidence.
Appeal dismissed.
93
HENRY, Dean Thomas - CCA, 2.4.2007
Simpson, Howie & Hislop JJ
Citation: R v Henry [2007] NSWCCA 90
Crown appeal.
1 x armed robbery with wounding.
4y with a NPP of 3y.
Whilst on parole, the respondent entered a jewellery store with a toy pistol visibly stuffed down the front of his pants. He approached the storeowner, demanded gold from the display cabinet & threatened to kill the owner if he did not comply. When the owner refused, the respondent produced a knife & stabbed him in the face, the knife completely penetrating his cheek. The respondent ran from the scene chased by a bystander. At one stage he stopped & threatened the pursuer with the knife. Police eventually arrested him. The knife & toy pistol were found in a backpack. When questioned, the respondent told police that the storeowner had threatened him with a gun during a dispute & he had picked up the knife from a workbench to defend himself. However, the incident was captured on a security camera & showed the respondent threatening the storeowner. The victim received a number of stitches to his cheek & mouth but fully recovered physically, although he was receiving psychological assistance to overcome stress caused by this & other later incidents at the shop.
Mental disorder - relationship of Henry guideline [1999] NSWCCA 111) with standard NPP - relevance of mental illness - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 6y 9m with a NPP of 4
94
THOMPSON, Hamish Edward - CCA, 30.3.2007
Simpson, Howie & Hislop JJ
Citation: Thompson v R [2007] NSWCCA 83
Sentence appeal.
Knowingly concerned in the importation of a commercial quantity of cocaine.
20 y with a NPP of 13y.
This appeal followed a retrial: see  R v Bartle & Ors [2003] NSWCCA 329 (reported in 181 FLR 1).. The retrial was fixed to commence on 5.7.2004. On that date, the applicant entered a plea of guilty to the above charge.
The applicant & others were involved in the importation of 380 kgs of pure cocaine. A vessel was bought, repaired & equipped in NZ & sailed to a rendezvous point in the Pacific Ocean. The cocaine had been brought to that place on board another vessel by arrangement with suppliers in Central America. The drug was transhipped & taken to Patonga where it was seized when the transporting vessel landed. The cocaine seizure was then the largest in Australian history.
Applicant born in New Zealand - 2 co-offenders of British origin - Convention on the Transfer of Sentenced Persons - whether transfer of co-offender a ground for parity - parity of sentencing - issue estoppel - criminality.
Appeal dismissed.
95
JOHNSON, Peter James - NSW SC, Whealy J, 29.3.2007
Citation: R v Johnson [2007] NSWSC 274
Remarks on Sentence.
2 x murder; 1 x stealing; 3 x attempt use bank accounts; 12 x dishonesty obtain monies from bank accounts.
The above offences relate to the killing of an elderly retired couple in South Maroota by their handyman.
Sentence: 2 x murder - life imprisonment; 1 x stealing - 12m FT; 3 x attempt use bank accounts - 12m FT (concurrent with above 12m); 12 x dishonestly obtain monies from bank accounts - 12m FT cumulative.
96
McKIBBEN, Carmel - CCA, 2.4.2007
Simpson, Howie & Hislop JJ
Citation: McKibben v R [2007] NSWCCA 89
Sentence appeal.
1 x knowingly take part in manufacture of methylamphetamine; 3 x supply methylamphetamine;
Total sentence of 10y with a NPP of 7 y.
The applicant was arrested following a controlled police operation.
Aged 58 - long history of drug dependency - on disability pension- priors - previous imprisonment.
Parity - totality - insufficient discount for early guilty plea - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 9y with a NPP of 6y 9m.
97
OSBORNE, Leonard - CCA, 2.4.2007
Simpson, Howie & Hislop JJ
Citation:Osborne v R [2007] NSW CCA 91
Sentence appeal.
1 x use offensive weapon with intent to commit indictable offence (assault); 1 x use offensive weapon to avoid apprehension; + 6 matters on a Form 1 (use offensive weapon with intent to commit indictable offence (assault); steal MV; drive in manner dangerous; resist police officer in execution of duty; possess implements capable of being used to enter/drive or enter & drive conveyance; drive whilst disqualified).
Total of 5y with a NPP of 3y; disqualified from holding a driver's licence for 2y to commence following already existing period of disqualification (sentencing judge erroneously thought was 2016). Further disqualified from holding driver's licence for 3y to commence from date of sentence (16.5.2006). Applicant had previously been disqualified from holding driver's licence & declared a habitual offender. Even without the disqualification in the instant case, he was disqualified from holding a driver's licence until 2023.
Agreed statement of facts - lengthy criminal history - subjective circumstances - drug use - mental illness.
No pre-sentence report - whether miscarriage of justice in absence of pre-sentence report - whether amphetamine use mitigating circumstance - whether sentence excessive.
Appeal dismissed.
98
MATZICK, Amber - CCA, 2.4.2007
Simpson, Howie & Hislop JJ
Citation: Matzick v R [2007] NSWCCA 92
Sentence appeal.
1 x malicious wounding with intent to inflict GBH.
5y 4m with a NPP of 2y 10m.
The applicant lived in a flat above a convenience store in Kings Cross. She was acquainted with the proprietor of the store, Mrs Kang, who had, on occasions, shown her kindness. On the day of the offence, the applicant walked into the store & Mrs Kang thought she looked unwell & perhaps hungry. She offered her some milk. The applicant asked for an ice cream, which she was given. The applicant walked behind the counter, produced a small knife & pointed the blade towards Mrs Kang. She spoke to Mrs Kang but Mrs Kang had limited English & did not understand. A struggle ensued. Mrs Kang tried to drag the applicant out of the shop & into the street in an attempt to attract the attention of police. The applicant stabbed Mrs Kang to the front left-hand side of the neck & again to the left rear of the neck. Both wounds bled profusely. Mrs Kang attempted to disarm the applicant, who herself was cut on the hand & arm. Mrs Kang thought the applicant was going to kill her. Police arrived & separated the women. They asked the applicant whether the knife was hers. She said it was, but claimed that Mrs Kang had grabbed the knife from her & that this was what caused the struggle. She was found to be in possession of a 2nd knife, secreted in the left leg of her pants. Mrs Kang was taken to hospital & underwent surgery. She remained in hospital for 4 days.
Special circumstances - drugs - rehabilitation - unprovoked attack, uncalled for & unjustified - psychiatric & psychological reports - personality disorder - drug-induced hallucinosis - no obvious mental disability.
Documents provided by applicant & her mother not tendered - whether miscarriage of justice.
Appeal dismissed.
99
SUTTON, Raymond Douglas - NSW SC, Barr J, 4.4.2007
SUTTON, Margaret Ellen
Citation: R v Raymond Douglas Sutton; R v Margaret Ellen Sutton [2007] NSWSC 295
Remarks on Sentence.
Manslaughter - guilty pleas.
Killing of severely handicapped son.
Sentence: Conditional 5y GBB.
100
HAIDAR, Nicholas - CCA, 5.4.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Haidar v R [2007] NSWCCA 95
Sentence appeal.
Fire firearm in manner likely to endanger safety of another.
2 y with a NPP of 18m.
The applicant was a security guard, licensed to possess weapons. One evening, he left his place of work for a time & went to the house of a female acquaintance where there was a party taking place. He told people inside the house to leave & an argument developed between the applicant & a Mr Vaughan, resulting in them pushing & throwing punches at each other. The fight moved outside, then stopped. Mr Vaughan backed away from the applicant who continued to try to advance towards him. There was a short lull & the applicant went back towards the house. Mr Vaughan ran off down the street. The applicant followed then stopped in the middle of the road & fired his .45 Glock semi-automatic pistol once in the direction of Mr Vaughan, who was at that time approx 70 metres away. The applicant said he did not intend hitting Mr Vaughan but intended to frighten him.
Objective seriousness of offence - reference by sentencing judge of applicant shooting 'at'the victim - exercise of sentencing discretion - whether error in assessment of circumstances of appellant's case - whether lesser sentence warranted.
Appeal dismissed.
101
NGUYEN, Huu Chien - CCA, 5.4.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Nguyen v R [2007] NSWCCA 94
Sentence appeal.
Cultivate commercial quantity cannabis plants (278 plants); + offence taken into account (supply 5,700 grams cannabis leaf).
2 y with a NPP of 15m.
When police executed a search warrant upon a house where the applicant was living as the sole occupant, they found cannabis plants in 5 rooms in the house & in the underneath area. All these areas had been converted into indoor growing areas equipped with lights, fans & ventilation systems. In the cargo tray of the applicant's vehicle, police found drums of liquid fertiliser. The cannabis plants found ranged in size from 15 to 40 cm with an estimated street value of $556,000.
Whether error in approach to fixing appropriate NPP & head sentence - whether error in failure to give due regard to applicant's reason for committing offences (gambling problem).
Appeal dismissed.
102
ROWE, Helena Jane - NSW SC, Howie J, 5.4.2007
Citation: R v Rowe [2007] NSWSC 300
Remarks on Sentence.
Manslaughter.
The offender was arraigned on a charge of murdering her 7 month old infant son who died as a result of the ingestion of methadone. The offender pleaded not guilty to murder & was subsequently convicted of manslaughter. The offender was a long-term drug addict & had been taking methadone for some time before conceiving the baby. The baby was born methadone-dependent & remained in hospital for 6 weeks, being treated for his drug dependency. A large amount of evidence was placed before the jury showing that, generally, the offender was coping well, although there were examples of insufficient concern for the baby's safety, including driving a motor vehicle with the baby lying unprotected in the well of the front passenger side of the vehicle, delaying having the child immunised, evidence of her leaving the child in the car of an acquaintance & not returning when expected. There was no evidence of the offender mistreating the child.
Unlawful and dangerous act.
Sentenced to 5 y with a NPP of 3y.
103
PERKINS, Graham David - CCA, 2.4.2007 - 169 A Crim R 516
McClellan CJ at CL, Barr & Hoeben JJ
Citation: Perkins v R [2007] NSWCCA 80
Sentence appeal.
Aggravated robbery (maliciously inflict ABH).
3 y with a NPP of 18m.
The applicant attacked a taxi driver, inflicting more than a dozen lacerations to his neck & head. The applicant had previously displayed erratic behaviour at a hotel before being forcibly removed.
Admission of fresh evidence - psychiatric report - whether fresh evidence could have been obtained by exercise of due diligence - whether fresh evidence was of such significance that sentencing judge may have regarded it as having a real bearing upon decision.
Leave to admit psychiatric report as fresh evidence refused.
Sentence appeal dismissed.
104
TAYLOR, Christopher Wayne - CCA, 4.4.2007
McClellan CJ at CL, Hoeben & Hall JJ
Citation: Taylor v R [2007] NSWCCA 99
Sentence appeal.
1 x malicious wounding; 2 x pervert course of justice.
Total sentence of 5 y with a NPP of 4 y.
Aged 27 - guilty plea - drug use.
Appeal dismissed.
105
ALMIROL, Alejandro (No.2) - NSWSC, Kirby J, 13.4.2007
Citation: R v Almirol [No 2] [2007] NSWSC 323
Remarks on Sentence.
Accessory after the fact to murder.
The deceased's throat was cut after being hit over the head with a metal chair.
The offender helped to cut up & dispose of the deceased's body.
Aged 42 - guilty plea - illegal immigrant - born in Philippines.
Sentence: 4y 3m with a NPP of 3y 2m.
106
SMITH, Thomas James - CCA, 12.4.2007
Simpson, Howie & Hislop JJ
Citation: R v Smith [2007] NSWCCA 100
Crown appeal.
1 x assault with intent to rob whilst in company; 5 x rob in company; + Form 1 offences (offensive language, custody of knife in public place, entering restricted area without possessing ticket, refuse or fail to comply with direction by police officer).
Total sentence of 3y 9m with a NPP of 2y 1m.
The offences were committed over a 6 week period. All offences involved the respondent, in company with one or more others, entering various business premises at night & demanding money from the attendant. On 4 occasions, the attendant on duty was assaulted, despite offering no resistance.
Aged 18 at time of offences - guilty pleas - alcohol & drug abuse - personality disorder - pre-psychotic phase of illness - 5 offences were committed whilst on bail.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced to a total of 5 y with a NPP of 3y 9m.
107
KENTWELL, Donovan Lee - CCA, 12.4.2007
Simpson, Howie & Hislop JJ
Citation: Kentwell v R [2007] NSWCCA 93
Sentence appeal.
Supply heroin (10-15 grams).
2 y with a NPP of 16m.
Police received information that a heroin distribution network was operating in the Kings Cross area. The principal organiser of that network employed a manager & 3 street level runners who distributed the heroin on the streets of Kings Cross. Investigation identified the applicant & 2 others as street runners. All 3 offenders pleaded guilty.
Parity - whether justifiable sense of grievance.
Appeal dismissed.
108
WIDDERS, Jamie Scott - CCA, 12.4.2007
Simpson, Howie & Hislop JJ
Citation: Widders v R [2007] NSWCCA 96
Sentence appeal.
Oount 1: malicious wounding - 3y FT;
Count 2: AOABH - 2y FT;
Count 3: AOABH - 2y with a NPP of 6m.
Total sentence of 6y with a NPP of 4 y.
The victim of the above offences was a 27 year old woman who, at the time of the 1st offence, had been living with the applicant for approx 12 months.
Whether sentences excessive - principles of totality in sentencing for multiple counts - ratio between total NPP & head sentence.
Appeal allowed for sentences on count 1 & 2, however, overall sentence remained unchanged.
109
DEZFOULI, Saeed Sayaf - CCA, 12.4.2007
McClellan CJ at CL, Bell & Price JJ
Citation: Dezfouli v R [2007] NSWCCA 86
Appeal against special verdicts returned by jury following a special hearing conducted pursuant to s.21 Mental Health (Criminal Procedure) Act 1990.
The jury found that the appellant was not guilty of manslaughter by reason of mental illness & not guilty of maliciously damaging property by fire by reason of mental illness.
Appellant appeared for himself.
Appeal dismissed.
110
BOULATTOUF, Anthony - CCA, 12.4.2007
Simpson, Barr & Howie JJ
Citation: Boulattouf v R [2007] NSWCCA 102
Conviction and sentence appeal.
1 x aggravated indecent assault.
28m with a NPP of 21m.
The complainant was a young girl aged 7  years. The above count was the 2nd of 3 counts on the indictment. The 1st, to which it was an alternative, was of sexual intercourse with a child under 10 years. The jury returned a verdict of not guilty on that count & proceeded to the 2nd, alternative, count. The 3rd count was of aggravated indecent assault. At the direction of the trial judge, the jury returned a verdict of not guilty to this count.
Whether a direction inviting jury to consider whether complainant had motive to lie & whether she & her mother had motive to conspire to lie was capable of correction - whether direction effectively corrected - whether verdicts inconsistent - whether sentence excessive.
Appeal dismissed.
111
LEE, Maria Jung-Hee - CCA, 21.3.2007 - 71 NSWLR 120; 170 A Crim R 287
Spigelman CJ, Sully, Bell, Howie & Buddin JJ
Citation: Lee v R [2007] NSWCCA 71
Conviction appeal.
12 x contravention of s.31(1) Financial Transaction Reports Act 1988 (Cth).
12m for each offence, order made releasing appellant upon 12m GBB.
The appellant made numerous cash deposits in various amounts just under $10,000. She attended the bank with friends, opened accounts in their names & made herself signatory on each account. She said she thought that the deposits would be reported whether or not individual deposits exceeded $10,000.'s
Appeal dismissed.
112
TRAN, Tan Tai - CCA, 5.2.2007
McClellan CJ at CL
Citation: Tran v R [2007] NSWCCA 110
Sentence appeal.
This appeal was brought pursuant to s.5AF Criminal Appeal Act 1912 in relation to sentences imposed in the Drug Court.
Appeal dismissed.
113
MacDONALD, David Gregory - CCA, 16.4.2007
McClellan CJ at CL, Howie & Hall JJ
Citation: MacDonald v R [2007] NSWCCA 105
Sentence appeal.
1 x attempted armed robbery; + Form 1 offence (armed with intent to commit an indictable offence).
5y with a NPP of 2y.
The above offences were committed whilst the applicant was armed with blood-filled syringes.
Aged 23 at time of offending - of Aboriginal descent - commenced using heroin at age 15 - a heroin user at time of offences - suffered from endocarditis in 2000 resulting in leaking heart vale & some form of organic brain damage leading to epilepsy - underwent heart surgery in 2000 - epilepsy difficult to control - has significant cerebral damage - prior offences - previous imprisonment.
Whether mental disorder a mitigating factor - lengthy & unexplained delay on part of prosecuting authorities - application of Henry (1999) 46 NSWLR 346 - whether sentence manifestly excessive.
Appeal dismissed.
114
RISTEVSKI, Saso - CCA, 2.4.2007
McClellan CJ at CL, Bell & Howie JJ
Citation: Ristevski v R [2007] NSWCCA 87
Conviction appeal.
Supply prohibited drug (cocaine).
9 y with a NPP of 6 y.
The offence came to light as a result of a police investigation into the drug trade in the Wollongong area.
Applicant ran away from police with drugs in order to escape arrest.
Failure to give directions on evidence of flight - whether flight consciousness of guilt.
Appeal dismissed.
115
AEL - CCA, 4.4.2007 - 170 A Crim R 355
McClellan CJ at CL, Barr & Hoeben JJ
Citation: AEL v R [2007] NSWCCA 97
Sentence appeal.
1 x sexual intercourse with child under age of 10; + Form 1 offences (3 x indecent assault upon child under age of 10).
5y with a NPP of 18m.
The applicant was aged approximately 12 years at the time of the offences. The victims were his siblings, his brother then aged about 8 years & his sister aged about 5 years. After the offences were originally discovered, the applicant was removed from his home & placed under the care of the Department of Community Services (DOCS). The applicant pleaded guilty & was placed on a 3y conditional GBB. There had been conflict between DOCS & the Department of Juvenile Justice in relation to the appropriate rehabilitation programme for the applicant. The sentencing judge determined that a condition of the 3y GBB should be that the applicant enter into the residential programme conducted at Mirvac House, however, he was unable to complete this programme before funding was withdrawn by DOCS. The sentencing judge found that the withdrawal of the funding was through no fault of the applicant. Thereafter, the applicant led 'a very chequered career'The conditions of bail were breached & the applicant was sentenced to a period of incarceration. By that time, he was aged 16.
Evidence of behavioural & psychological problems - whether sentence excessive.
Appeal allowed: resentenced to a NPP commencing 3.3.2006 & expiring 4.4.2007 with a further term expiring on 16.12.2008. Direction that applicant's release to parole be effected as soon as arrangements were made for his accommodation in the Youth off the Streets Program. Condition of parole that applicant accept direction & supervision of Department of Juvenile Justice until end of parole period.
116
QUINLAN, Yohan Joseph - CCA, 18.4.2007
McClellan CJ at CL, Hoeben & Hall JJ
Citation: Quinlan v R [2007] NSWCCA 109
Sentence appeal.
3 x sexual intercourse without consent; 1 x incite an act of indecency; 1 x robbery; 2 x BE&S; 2 x aggravated BE&S.
Total sentence of 11y with a NPP of 9y.
The offences occurred one night when the applicant embarked upon a drug-fuelled criminal rampage.
Sentence partially concurrent, partially cumulative - whether error arose from ratio between aggregate head sentence & aggregate NPP.
Appeal dismissed.
117
TAYLOR, Dennis James - CCA, 18.4.2007 - 169 A Crim R 543
James, Hidden & Hislop JJ
Citation: R v Taylor [2007] NSWCCA 104
S,5F appeal against ruling in the DC setting aside subpoenas.
The applicant is awaiting trial in the DC on a number of drug related charges. In preparation for his trial, subpoenas were issued to the Australian Crime Commission, the NSW Commissioner of Police & the Australian Customs Service to produce certain documents. The District Court judge set aside subpoenas to the Australian Crime Commission & the Australian Customs Service in their entirety & the subpoena to the Commissioner of Police in large part.
Appeal allowed in part: Ruling concerning subpoena to Australian Crime Commission vacated; matter remitted to the DC. Appeal otherwise dismissed.
118
SAAD, Ashley - CCA, 18.4.2007
McClellan CJ at CL, Hulme & Hoeben JJ
Citation: Saad v R [2007] NSWCCA 98
Sentence appeal.
1 x possess loaded firearm in public place; 1 x assault.
Total sentence of 4y with a NPP of 3y.
The applicant was to stand trial on an indictment containing 4 counts. Counts 2 & 4 were expressed to be in the alternative to counts 1 & 3. Before the trial commenced, the applicant entered pleas of guilty to the alternative counts, which was accepted by the Crown in full discharge of the indictment.
Discount - whether plea made at earliest opportunity - effect of finding special circumstances.
Appeal dismissed.
119
LEESE, Darrel Patrick - CCA, 18.4.2007
McClellan CJ at CL, Hoeben & Hall JJ
Citation: Leese v R [2007] NSWCCA 108
Application for leave to appeal against sentence.
1 x aggravated break enter & intimidate; + Form 1 offence (malicious damage).
2y with a NPP of 1y.
Following a complaint, officers from DOCS attended the applicant's home. They told him that the complaint had come from his sister-in-law. When the DOCS officers left, the applicant began drinking & was joined by his co-offender (the victim's half-brother). About an hour after the DOCS officers had left, the applicant & his co-offender went to the victim's home. Once inside the home, the co-offender threatened the victim's fianc . The applicant demanded to speak with the victim but was told by her older daughter that he could not do so. The applicant & the co-offender were repeatedly told to leave. When they did leave, the co-offender threw a vase at the TV, which broke the screen. He also threw a chair at the TV.
Use by sentencing judge of phrase 'the community would be horrified to think that anything other than a full time custodial sentence would be appropriate'- whether irrelevant - whether sentence excessive.
Co-offender not yet sentenced. Submitted that when sentenced, parity question may arise. If the Court was against the applicant's application, it was asked to refuse leave to appeal but not dismiss the appeal.
Leave to appeal refused.
120
MUNDENE, Keith Herbert - NSW SC, Howie J, 19.4.2007
Citation: R v Mundene [2007] NSWSC 355
Remarks on Sentence.
Manslaughter.
The offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. The basis of the charge was an unlawful & dangerous act. The offender shook a 7 month old baby, causing fatal injuries. The baby died in hospital the following day. Post mortem examination showed that he had suffered massive brain swelling, as well as fractures to a number of ribs & a fracture of the distal left femur. All of the injuries suffered by the baby were consistent with the offender's conduct as described by the baby's mother. There was no suggestion that the baby had injuries from any other assault upon him. The baby had generally been in good health & it was possible that he was teething at the time, causing him to be unsettled & crying. A week before the death of the baby, the baby's mother had remonstrated with the offender about being too rough with the baby & warning him against shaking the baby or handling him roughly as it could cause brain damage or death.
Aged a few days short of 20 at time of offence - Aboriginal - prior offences: assault police officer, resist arrest, goods in custody - placed on GBB conditional upon entering Youth Drug Court Program - later sentenced to term of imprisonment for offences of BE&S - on parole at time of death of baby.
Sentenced to 6y 9m with a NPP of 3y 9m.
121
SHAABAN, Adam - CCA, 18.4.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: Shaaban v R [2007] NSWCCA 115
Sentence appeal.
Ongoing supply of methylamphetamine and ecstasy; + Form 1 offences (supply ecstasy; possess cannabis; possess methylamphetamine; goods in custody; premises considered organised drug premises).
Total sentence of 4y with a NPP of 2y.
Guilty plea - subjective circumstances - assistance to authorities - whether sentence manifestly excessive.
Appeal dismissed.
122
CLAY, Leon Roderick - CCA, 18.4.2007
McClellan CJ at CL, Howie & Hall JJ
Citation: Clay v R [2007] NSWCCA 106
Applicant for leave to appeal against sentence.
1 x robbery in company; 1 x AOABH; + two offences on a Form 1 document.
Total sentence of 4 y with a NPP of 2y 3m.
The offences were committed upon 4 young men as they were walking from Lisarow railway station.
Relevance of mental illness - whether sentence excessive having regard to Henry guideline ((1999) 46 NSWLR 346).
Leave to appeal refused.
123
SAALFELD, Lisa Jane - NSW SC, Howie J, 20.4.2007
Citation: R v Saalfeld [2007] NSWSC 376
Remarks on Sentence.
Murder.
The offender intentionally stabbed the deceased with a knife after confronting her in an angry & aggressive mood. The deceased & the offender had known one another for some years & had been close personal friends. Both were involved in drugs & on occasions the offender supplied drugs to the deceased. The ill-feeling between them began when the deceased asked the offender to obtain $40 worth of drugs for her but did not have any money. The offender told the deceased to give her a silver chain that the deceased's daughter had given to the deceased for her birthday. The offender did not obtain the drugs & refused to return the silver chain. The dispute between the women escalated when the deceased accused the offender of stealing money from her purse. On the day of the killing, the offender & her boyfriend were having an argument in the street. The deceased happened to be walking along the same street but across the road. When the offender saw the deceased, she crossed the road, a fight developed & the offender stabbed the deceased. There was eyewitness evidence of the offender taking something out of her bag as she was crossing the road.
Whether standard NPP appropriate.
Sentenced to 22y with a NPP of 16 y.
124
HARDES, Troy Rodney - CCA, 28.3.2007
Simpson, Barr & Howie JJ
Citation: R v Hardes [2007] NSWCCA 82
Crown appeal.
Multiple counts of BE&S.
Total sentence of 3y 2m with a NPP of 2y 2m.
Details of offences not stated.
Aged 33 at time of sentencing - long history of offending - long history of drug abuse - drug-free since latest incarceration - on drug & alcohol programme - accepts may need to go into fulltime rehabilitation upon leaving prison.
Rehabilitation - totality - assessment of objective criminality - whether sentences manifestly inadequate.
Appeal allowed: resentenced to a total of 6y with a NPP of 3y.
125
ASP - NSW SC, Johnson J, 13.4.2007
Citation: ASP v R [2007] NSWSC 339
Application for redetermination of life sentence.
Murder of KS - life imprisonment.
Abduction with intent to carnally know KS; sexual intercourse without consent with KS; forcible abduction with intent to carnally know LB, administer stupefying drug to LB with intent to commit indictable offence; sexual intercourse without consent with LB; steal property of LB - total sentence of 20y, no NPP set.
The applicant abducted a 20 year old partially paralysed woman, drove to the Erskine Park area, took her into a paddock & raped her, then stabbed her to death. He then placed her partially naked body in a shallow pool of water & left her there. Her body was discovered by a young boy a couple of days later. The applicant had approached 4 other women in the area that day before abducting the disabled woman. A month earlier he had kidnapped a 17 year old girl at gunpoint, drugged her & raped her. He was on parole for other sexual offences at the time & his wife was pregnant with their first child. After being jailed for these offences, the applicant confessed to another sexual assault, which had taken place less than 3 weeks earlier. He & a co-offender had posed as police to abduct a 16 year old girl & her 18 year old boyfriend. Both men raped the girl as her boyfriend was threatened with a replica handgun.
In about 1993 the applicant sexually assaulted his 5 year old daughter during a prison visit.
Aged 27 at time of offending - guilty pleas - lenghty criminal history for sexual offences.
Whether "most serious case of murder" - totality principle where life sentence imposed together with lengthy determinate sentences - later incident of sexual assault in prison - relevance of later incident to redetermination application - safety of community - dangerous propensity to commit offences of abduction & sexual assault - assessment of prospects of rehabilitation & risk of reoffending - public interest.
Application refused; applicant directed not to reapply to Court for redetermination for a period of 7 years.
126
POLLOCK, Daniel Keith - NSW SC, Johnson J, 2.3.2007
Citation: Pollock v R [2007] NSWSC 148
Application for redetermination of life sentence.
Murder - life imprisonment.
The Crown case at trial was that the applicant had caused the victim to fall down a flight of stairs by punching him & that he had pursued the victim down the stairs & further violently assaulted him at the bottom of the stairs, as a result of which he had caused the victim's death. The applicant was unsuccessful in his appeal against conviction in 1992: see R v Pollock, unreported, NSWCCA, 13.4.1992. On 24.2.2005, after 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. The basis on which the applicant sought orders quashing his conviction was that fresh evidence existed that was not reasonably available at the time of the trial & that it was of sufficient cogency to cast doubt upon the guilty verdict. That appeal was also dismissed: see R v Pollock [2005] NSWCCA 316.
Redetermination of life sentence - objective seriousness of offence - totality.
Application allowed: resentenced to 24y with a NPP of 17y 9m.
127
TABER, Peter - CCA, 26.4.2007 - 170 A Crim R 427
STYMAN, Ian
Hodgson JA, Howie & Price JJ
Citation: Taber v R; Styman v R [2007] NSWCCA 116
Conviction and sentence appeals.
Manslaughter; aggravated B&E & commit serious indictable offence (robbery).
Each sentenced to a total of 18y with a NPP of 13 y.
The accused were originally convicted upon charges of murder & aggravated B&E & commit serious indictable offence (robbery), for which they each were sentenced to life imprisonment (see R v Taber; R v Styman; R v Styman [2003] NSWSC 93). They subsequently appealed against their convictions. The appeals were allowed in part, the verdicts of guilty of murder were quashed & an order was made for a new trial for both upon the charge of manslaughter (see R v Styman; R v Taber [2004] NSWCCA 245). The instant appeal followed the retrial: see R v Taber; R v Styman [2005] NSWSC 1292.
The deceased was a 71 year old woman living alone. The applicants bound & gagged her, then committed the robbery. When they left the premises, the woman was still bound & gagged. Ian Styman made a telephone call to the 000 emergency services number some 24 minutes later, however, the emergency services operator failed to relay the message to police. The deceased died from dehydration.
Plea in bar - autrefois convict - where elements of offence overlap - abuse of process - admission of hearsay evidence pursuant to s.65 Evidence Act 1995 - witness not available - evidence given in a proceeding - whether section limited to evidence given by prosecution witnesses - whether unfairly prejudicial - whether verdicts unreasonable - whether sentences manifestly excessive.
Appeals dismissed.
128
KALIYANDA, Madappa - NSW SC, Michael Grove J, 27.4.2007
Citation: R v Kaliyanda [2007] NSWSC 393
Remarks on Sentence.
Murder.
The offender was found guilty of the asphyxiation of the deceased, either by her being smothered or strangled with a soft ligature. On 9.9.1997, police entered her apartment & found her decomposed body, wrapped up in plastic bags & covered with a doona or quilt. The deceased had last been seen leaving her place of work on 22.8.1997.
After her death, the deceased's bank account was emptied of a little over $13,000 by a series of ATM transactions. It was the Crown case that the offender had killed the deceased.
Ten year delay between offence & trial.
Sentenced to 20y with a NPP of 14y.
129
YOUNG, Lap Tak - CCA, 26.4.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: Young v R [2007] NSWCCA 114
Sentence appeal.
Breach of GBB - 18m with a NPP of 9m (commencing 6.7.2006);
Supply prohibited drug (crystal methylamphetamine); + Form 1 offence (possess prohibited drug) - 3y with a NPP of 18m (commencing 5.1.2007).
Propensity for committing drug-related offences - steadfast disobedience of the law - retribution - deterrence - protection of society.
Whether sentences manifestly excessive - error in failure to take pre-sentence custody into account.
Appeal allowed in part: sentence backdated for supply prohibited drug offence.
130
TILLMAN, Kenneth Davidson - NSW SC, Hoeben J, 17.4.2007
Citation: Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356
Judgment.
Application - interim continuous detention order - interim extended supervision order - sex offender - legislative purpose - protection & rehabilitation - standard of proof - whether defendant requires supervision - procedural fairness - psychologist's evidence - actuarial risk assessment - sexual recidivism risk - participation in treatment programmes.
Decision: Defendant subjected to interim extended supervision for 28 days subject to conditions.
131
JOYCE, Bevan Phillip - NSW SC, James J, 23.3.2007
Citation: R v Joyce [2007] NSWSC 218
Remarks on Sentence.
Murder.
The offender strangled his estranged wife with a necktie. Once she was rendered unconscious, the offender then carried or dragged the victim to the backyard & put her into the pool.
At trial, the Crown relied on the act of strangling as being the act of the prisoner causing the victim's death, on the basis that the act of strangling had at least substantially or significantly contributed to the victim's death, in that, even if it did not of itself kill the victim, it rendered her unconscious & incapable of resisting being put into the pool or of rescuing herself or of surviving after she was put into the pool.
Sentence: 21y with a NPP of 16y.
132
SOUTH, Scott Phillip - CCA, 30.4.2007
Hunt AJA, Simpson & Whealy JJ
Citation: South v R [2007] NSWCCA 117
Conviction appeal.
1 x aggravated sexual intercourse without consent.
The complainant was gang-raped at a party.
Evidence supporting motive for complainant to lie - trial judge directs jury that there were a number of reasons it would not find that the complainant was lying, 'because why would she lie?'
Appeal allowed: new trial ordered.
133
DURANT, Michelle Lee - NSW SC, Hulme J, 20.4.2007
Citation: R v Durant [2007] NSWSC 428
Remarks on Sentence.
Murder.
The deceased, who lived in a one-bedroom flat, allowed the offender, her sister & 3 other young people to reside in his flat, bunking down in the living room area. At around 3:00am on 15.1.2005, the offender, her sister & 2 of the others returned to the flat. The offender had forgotten her key & woke the deceased in order to let them in. Once inside, the offender told the deceased to go back to bed, which he did & he went back to sleep. Some time later, the offender told the group to make a noise in order to wake the deceased. When this occurred, the deceased lifted his head & the offender struck him once behind his left ear with a medium-sized sledge hammer, resulting in a closed head injury from which the deceased died.
Offender sexually abused as a child - suffered parental neglect as a child - drug use - prior to turning 15, began living on the streets - at age 15 began a relationship with a man - 4 children born of that relationship - relationship later broke down - children living with the father - contact with children's father & offender since offender's arrest - liquor consumption & use of illegal drugs prior to committing offence - delusional belief that deceased was the person who abused her as a child.
Sentence: 17y 11m with a NPP of 13 y.
134
LEACH, Benjamin Anthony - NSW SC, Hulme J, 27.4.2007
Citation: R v Leach [2007] NSWSC 429
Remarks on Sentence.
Manslaughter.
The offender was found guilty of manslaughter, by an unlawful & dangerous act, of his 7 week old daughter. In the early hours of the morning, the baby woke up & began to cry. The parents took it in turns to attend to the baby & the offender got out of bed & took the baby to the lounge room & placed her on the couch. He bottle fed the baby & burped her. However, the baby did not settle & continued to cry. The offender's efforts at trying to get the baby to take a dummy were unsuccessful. The offender then sat on the baby & the crying stopped. This action caused the baby to stop breathing. The offender dialled 000 & an ambulance arrived some time later. In the meantime, he tried to revive the baby as instructed by the 000 operator. At the time of the ambulance officers first examining the deceased, she had no pulse, her pupils were fixed & there was no breathing. The offender gave different versions to police as to what had happened. He subsequently admitted to police that he had sat on the baby's body for a significant period.
There was evidence of earlier injuries suffered by the baby, which were caused by the offender. The offender asked that 2 further offences of assaulting the baby by striking her in the head area with an open hand causing ABH be taken into account. The offender was aware that his inability to control himself created a risk for a young & helpless baby. There was no evidence that he took any steps to address that risk. The post-mortem examination revealed bruises of various ages to the baby's face & both old & fresh fractures to a number of ribs, as well as internal haemorrhages in her head. The pathologist who conducted the post-mortem said those injuries formed a pattern consistent with an overall pattern of child abuse.
Aged 24 at time of death of baby - guilty plea - no priors - offender grew up in household marred by significant physical abuse by father towards mother - left school at Year 11 - prior employment in a number of jobs through specialist employment agency - suffered hypoxia & brain injury at time of birth resulting in intellectual disability & substantial short-term memory difficulties - teasing by school children resulted in becoming socially anxious & withdrawn - difficulty relating to peers - frequent truanting - intellectual functioning falls in extremely low range & at first percentile - meets criteria for 'mild intellectual disability'- one psychological test reveals coping skills at level of person aged 10 years 8 months.
Sentence: 7 y with a NPP of 4 y.
135
BALDOCK, David - CCA 21.2.2007
Spigelman CJ, Bell & Howie JJ
Citation: Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35
Stated Case.
Speeding offence.
Proof of speed - speed measuring devices - photographic evidence of speeding offence - accuracy - evidence to the contrary.
Nature of an appeal from the LC to the DC - not a 'hearing de novo'- r 20 Australian Road Rules - ss.46(2) & 47(3)(b) Road Transport (Safety and Traffic Management) Act 1999 - s.33 Interpretation Act 1987.
136
MG - CCA, 27.2.2007 - 69 NSWLR 20
McClellan CJ at CL, Bell & Hoeben JJ
Citation: MG v R [2007] NSWCCA 57
s.5F appeal against an order by the DC trial judge dismissing applicant's motion.
The applicant's motion in the DC sought the following orders:
1. A stay of the proceedings until further order of the court.
In the alternative:
2. That the Crown Prosecutor be restrained from further representing the Crown in these proceedings.
Role & duty of Crown prosecutor - public comment to media about the trial - expression of opinion - pre-trial publicity - speech to law students - republication in newspapers - published material attributable to Crown Prosecutor - conduct in breach of Bar Rules - breach of Director of Public Prosecution Guidelines - lack of detachment from case.
Whether applicant denied a fair trial by the prosecutor's conduct - whether stay should be granted- need to ensure proper administration of justice.
Orders:
1. Leave to appeal granted and the appeal upheld.
2. Order that the trial of the applicant be stayed until a Crown prosecutor other than Ms Cunneen is appointed to prosecute the trial.
137
A v State of New South Wales - HCA, 21.3.2007 - 230 CLR 500;81 ALJR 763
Citation: A v State of New South Wales [2007] HCA 10
On appeal from the SC of NSW.
Malicious prosecution - whether prosecutor acted without reasonable & probable cause - public rather than private prosecution - applicant acquitted of offence charged - prosecutor had no personal knowledge of the facts underlying the charge - whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis - whether prosecutor acted maliciously - whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law - absence of reasonable & probable cause.
1. Appeal allowed in part;
2. Vary paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 by adding the words "with costs" after "dismissed";
3. Set aside paragraphs 2 to 7 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 and, in their place, order that the cross-appeal be dismissed with costs; and
4. The respondents to pay the appellant's costs of the appeal to this Court.
138
KUTCHERA, Samuel - CCA, 4.5.2007
James, Rothman & Harrison JJ
Citation: Kutchera v R [2007] NSWCCA 121
Sentence appeal.
Obtain valuable thing by deception.
18m with a NPP of 9m.
The applicant & his co-offenders presented a stolen Commonwealth Bank cheque in order to obtain a motor vehicle (a $415,000 Lamborghini Gallardo). One of the co-offenders was granted immunity for giving evidence against the applicant for the above offence, as well as giving evidence in the prosecution of others relating to a scheme to defraud the Office of State Revenue. The applicant's intention was to obtain the motor vehicle, sell it & share the proceeds with his co-offenders.
Error of law to preclude capacity to suspend sentence - significant delay between charge & sentence - absence of damage to any person or property - significant subjective factors - rehabilitation.
Appeal allowed: sentence suspended until 5.6.2008, conditional upon applicant entering into a GBB which will expire on 5.6.2008.
139
DOUAR, Mohammad - CCA, 10.5.2007
James, Rothman & Harrison JJ
Citation: R v Douar [2007] NSWCCA 123
Crown appeal.
Supply methylamphetamine (8.12 grams).
12m with a NPP of 6m (special circumstances found).
Guilty plea - conviction for further offences.
Failure to fulfil undertaking to assist authorities - whether sentence manifestly inadequate.
Appeal dismissed.
140
QUINN, Peter Andrew (AG of NSW v) - NSW SC, Hall J, 9.5.2007
Citation: Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456
Application for interim detention order.
Crimes (Serious Sex Offenders) Act 2006 (NSW) - evidence required for an application for an interim order under the Act - standard of proof - nature of the standard - a predictive risk assessment as to the probability that a particular offender is "likely" to commit a further serious sex offence.
Requirements for making interim detention order satisfied - material sufficiently established risk of re-offending for purpose of interim order - no relevant delay in making application - If delay were shown, not such as to provide basis for refusing interim order.
Decision: (1) An order pursuant to s.16(1) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 13 May 2007. (2) An order pursuant to s.20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order (1). (3) Two qualified psychiatrists are to be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 1 June 2007. (4) The defendant is directed to attend those examinations.
141
LAL & PN - NSW SC, McClellan CJ at CL, 4.5.2007
Citation: LAL v R; PN v R NON PUBLICATION ORDER [2007] NSWSC 445
Remarks on Sentence.
Manslaughter; + Form 1 offences (larceny of mobile phone; larceny of motor vehicle).
The 14 year old offenders repeatedly beat a taxi driver & left him to die in a dark street early in the morning.
The offenders stole the taxi driver's mobile phone & taxi before dumping the taxi. The deceased, a 53 year old father of two who had recently returned to work following a stroke, suffered massive head injuries. The injuries triggered a heart attack & he died on the way to hospital.
The offenders were arrested by police at Strathfield station after being detained by CityRail transit officers. It was alleged that, armed with a knife, the offenders had tried to rob two people in Yennora before robbing another person of $50 in Strathfield. Police said it was during questioning about these crimes that evidence came to light about the offenders' involvement in the taxi driver's death.
Offenders affected by alcohol & drugs - need for rehabilitation - need for punishment & deterrence.
Sentence: Each offender sentenced to a total of 6y with a NPP of 3 y.
142
JAMIESON, Keith Royce - NSW SC, Hidden J, 11.5.2007
Citation: Attorney General v Jamieson [2007] NSWSC 465
Application for interim detention order (s.16 Crimes (Serious Sex Offenders) Act 2006) or interim supervision order (s.8 of the Act).
Order sought for 28 days.
Sufficiency of supporting documentation - defendant likely to be deported upon release - fresh charges.
Decision: Order made for interim detention for 7 days; direction made for matter to be listed before Hidden J on 17.5.2007 to review the situation & consider any further application.
143
BUNCE, Gareth John - NSW SC, Price J, 11.5.2007
Citation: R v Bunce [2007] NSWSC 469
Remarks on Sentence.
Murder.
The offender confessed on national TV to murdering his former sister-in-law during the making of a bondage video. The deceased had agreed to make a pornographic video with the offender at the deceased's home in the Blue Mountains in March 1997. The offender was originally charged with the murder in 1999. Due to a lack of evidence, he was released from prison just days before his committal hearing in 2000. In September 2005, during an interview with Channel 9's A Current Affair programme, the offender bragged about how he had killed the deceased. He was subsequently re-arrested & pleaded guilty to the murder. During his pre-sentence hearing he said he murdered the deceased, a 27 year old mother of 2, because she was trying to blackmail him. He said the deceased & other members of her family had been blackmailing him for years because he had made a sex video with the deceased in the 1980's when she was 15 years of age. He said that he strangled her using a technique that left no evidence of strangulation. He said he had learned about this technique whilst in prison on a previous occasion & he had also read about this method.
Guilty plea - aged 47 at time of sentence - lack of contrition - voluntary disclosure - utilitarian discount - sentencing practice as at date of commission of offence.
Total sentence of 24y with a NPP of 18y.
144
ROBINSON, Dalley Stuart - NSW SC, Hall J, 11.5.2007
Citation: R v Robinson [2007] NSWSC 460
Remarks on Sentence.
Murder.
The offender & the deceased had been living in a domestic relationship for 11-12 years & had 2 children, aged 6 & 10. The deceased had a 15 year old son from a previous relationship. A week before the murder, the offender was arrested & charged with 4 counts of assault upon the deceased & was served with an AVO. On the day of the killing, he went to the deceased's home, breaching the AVO, supposedly to ask questions "in relation to how come things went so sour the week prior". Whilst at the deceased's home, the offender stabbed her a number of times. A post-mortem examination found the deceased had suffered 11 stab wounds to the lungs, heart, major vessels & airway, consistent with a "determined and brutal attack".
Aged 32 at time of offence - guilty plea - on conditional liberty at time of offence - remorse - rehabilitation.
Intent - level of objective seriousness - intoxication - pre-meditation - aggravating factors - vulnerable victim - offence part of a planned criminal activity - standard NPP - deterrence.
Sentenced to a total of 21y with a NPP of 16y.
145
AB - CCA, 10.5.2007
Campbell JA, James J & Smart AJ
Citation: AB v R [2007] NSWCCA 129
Sentence appeal.
Discharge firearm in public place; affray.
Total sentence of 18m with a NPP of 6m.
Agreed statement of facts.
The victim was driving en route to his house when he was confronted by AB & a number of other offenders. AB had secreted a loaded rifle in his pants. Whilst standing about 10 to 15 metres away from the victim, AB discharged the gun to the right of the victim in the direction of some houses. AB then pointed the gun in the direction of the victim, who took evasive action. A number of other males, one carrying a baseball bat, a couple armed with knives & another holding a knife, converged on the victim, who tried to start his car & engage the gears. One of the co-offenders repeatedly stabbed the victim in the back & arm, inflicting 3 wounds. The victim drove his car for about 20 metres before collapsing & slumping over the wheel. The victim was hospitalised & his wounds closed in theatre. He was discharged the following day.
The co-offender who stabbed the victim received the same sentence as the applicant.
Parity - difficulties in applying parity principle where co-offenders dealt with on different charges.
Appeal dismissed.
146
DERBAS, Iyman - CCA, 30.4.2007
RUSTOM, Mohamed
McClellan CJ at CL, Simpson & Hidden JJ
Citation: Derbas v R; Rustom v R [2007] NSWCCA 118
Conviction appeals.
Murder; assault.
Each sentenced to a total of 24y with a NPP of 17y.
The deceased & his cousin had been arrested & remanded in custody without bail. Initially, they were placed in the Metropolitan Reception & Remand Centre at Silverwater. After becoming aware that they were at risk, they sought help from correctional officers to have arrangements made for their continued confinement at that Centre where they might be safe. Against their wishes, both men were transferred to Parklea Correctional Centre. They arrived at the Centre & were processed before being delivered into the care of wing officers on duty & were then escorted to wing 1B. Their arrival generated a lot of interest amongst some prisoners, whereupon the deceased & his cousin expressed some concern to the officer escorting them. The officer left them in order to consult with a senior officer & the deceased & his cousin went to an area where they thought they would be safe, however, a number of prisoners set upon them & assaulted them. It was during these assaults that the deceased was stabbed twice, resulting in his death.
See also: R v Derbas and Rustom [2005] NSWSC 244.
Reliability of evidence - unofficial questioning - whether s.165 warning required - video link evidence admitted - delay between receipt of image & spoken words - whether transmission imperfections resulted in miscarriage of justice - oral & written directions on accessorial liability - deficiency in written direction - whether correct oral direction sufficient to overcome deficiencies in 2nd oral & written direction - interference with juror - juror approached by person attempting to discuss trial.
Appeals dismissed.
147
HAMILTON, Richard Andrew - NSW SC, Adams J, 9.5.2007
SANDILANDS, Mark David Tobius
Citation: R v Hamilton; R v Sandilands [2007] NSWSC 452
Remarks on Sentence.
Hamilton: Manslaughter (by excessive self-defence).
Sandilands: Accessory after the fact to manslaughter.
Hamilton killed deceased, Sandilands helped to dispose of body - effect of lengthy custody on remand.
Sentences: Hamilton - NPP of 2 y (commencing 17.2.2005); balance of term 3y; Sandilands - NPP commencing 17.2.2005, ending 13.4.2007, balance of term commencing 14.4.2007 ending 16.2.2008, order for immediate release to parole.
148
SCICLUNA, Stephen Joseph - CCA, 30.4.2007
McClellan CJ at CL, Adams & Howie JJ
Citation: Scicluna v R [2007] NSWCCA 120
Conviction appeal.
Knowingly take part in manufacture of methylamphetamine; supply methylamphetamine; possession of precursor (hypo phosphorous acid); possession of prohibited weapon (stun gun).
Total sentence of 4y 5m with a NPP of 2y 11m.
Police executed a search at premises owned & occupied by the appellant. The appellant was in bed at the time with a woman. The woman's child was in the lounge room. There was a shed in the rear of the premises that had plainly been used to manufacture amphetamine. In the shed, police found a precursor used to manufacture methylamphetamine & in the appellant's bedroom they found 2 beakers containing methylamphetamine. A stun gun was found in a drawer in a bedside table.
Whether miscarriage of justice as a result of trial judge's failure to direct verdicts of not guilty on 2 counts - whether appropriate for trial judge to direct jury that it could take into account findings in respect of 1 charge when determining any other - whether verdicts unreasonable.
Appeal dismissed.
149
VORHAUER, Florence Amelia - CCA, 14.5.2007
McClellan CJ at CL, Hulme & Rothman JJ
Citation: Vorhauer v R [2007] NSWCCA 125
Conviction and sentence appeal.
1 x use of offensive weapon (Molotov cocktail) to prevent lawful apprehension; 2 x maliciously wound a police officer with intent to prevent lawful apprehension.
Total sentence of 4y with a NPP of 2y.
The appellant represented herself both at trial & on appeal. The appellant & her daughter lived at premises on a standard sized block in a suburb of Tamworth. The above offences were committed by the appellant when local council officers & police attempted to carry out a Land and Environment Court order requiring the number of chickens being kept on the property to be reduced from 300 to 15.
Aged 64 at time of sentence - appellant released to parole on 14.7.2005 following assessment of her mental health - full term of sentence to expire on 3.5.2007.
Whether self-defence considered by jury - whether orders of the council and Land and Environment Court were valid - whether police had authority to enter premises - whether sentence excessive.
Appeal dismissed.
150
TUIGAMALA, David - NSW SC, Studdert J, 15.5.2007
Citation: R v Tuigamala [2007] NSWSC 493
Judgment on fitness to plead.
Murder.
The above offence occurred at a hotel where the appellant had been drinking with some companions. The appellant hit the deceased on the chin, which caused him to fall down, unconscious. The appellant, who was wearing boots, then kicked the deceased to the head with considerable force. The deceased died within minutes as a result of broken facial bones & tissue injuries that caused obstruction to his airways. In 2004, the appellant was found guilty of murder & was sentenced to 26y with a NPP of 20y: see: R v Tuigamala [2004] NSWSC 1254. Following a successful appeal to the CCA, a new trial was ordered: see Tuigamala v R [2006] NSWCCA 380.
Significant intellectual disability.
Findings: Accused unfit to be tried for the crime charged; accused referred to the Mental Health Review Tribunal pursuant to s.14(a) Mental Health Criminal Procedure Act 1990; pending determination of the Tribunal under s.16 of the Act, proceedings adjourned; accused remanded in custody pending determination of the Tribunal & subsequent order of the Court.
151
COX, Benjamin - NSW SC, Simpson J, 14.5.2007 - 71 NSWLR 225
Citation: Cox v State of New South Wales [2007] NSWSC 471
Judgment.
TORT - NEGLIGENCE - personal injury - psychiatric/psychological harm - plaintiff bullied at primary school - reports of bullying to school authorities by plaintiff's mother - severe anxiety symptoms - reliability of mother's evidence - some discrepancies - no significance - duty of care - expert evidence - identification of psychiatric disability - causation - relevance of mother's own psychiatric condition - DAMAGES - non-economic loss - economic loss - superannuation - discount for vicissitudes - EVIDENCE - hearsay - exceptions to hearsay rule - whether person who made representation is competent to give evidence of asserted fact - no recollection of asserted fact.
Verdict for plaintiff; defendant to pay plaintiff's costs of proceedings; parties to bring in short minutes of order reflecting findings & conclusions.
152
FOLBIGG, Kathleen Megan - CCA, 16.5.2007
McClellan CJ at CL, Simpson & Bell JJ
Citation: Folbigg v R [2007] NSWCCA 128
Application to re-open appeal.
3 x murder; 1 x manslaughter; 1 x maliciously inflicting GBH.
Allegation of irregularity in appellant's trial after appeal judgment delivered - appeal against conviction dismissed - appeal against sentence allowed - juror at appellant's trial allegedly illegally researched appellant's background on the internet - jurisdiction of CCA to reopen appeal & consider a further ground of appeal - whether court orders had been entered - date upon which orders perfected - Prothonatory satisfied that orders not entered - assurance given to appellant that order would not be entered - orders subsequently perfected.
Application to re-open appeal allowed.
153
LIAO, Han - CCA, 2.4.2007
McClellan CJ at CL, Hulme & Hoeben JJ
Citation: Liao v R [2007] NSWCCA 132
Sentence appeal.
1 x armed robbery.
6y with a NPP of 2y 9m.
The applicant robbed his landlady, during which she was tied up & beaten. The applicant was armed with a knife & a rolling pin at the time.
Aged 25 at time of sentencing - guilty plea at earliest opportunity - born in China - only child of moderately wealthy parents - completed high school in China - in Australia to further education - began dependency upon crystal methylamphetamine - developed serious gambling problem - socially isolated - high level anxiety, traumatic stress - motivation for offence to purchase airline ticket to China - ashamed to seek further funding from parents - no priors.
Reference to 'gratuitous' violence - whether breach of De Simoni principle - whether error in finding breached degree of trust.
Appeal dismissed.
154
JOHNSTON, Allen William - CCA, 14.3.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Johnston v R [2007] NSWCCA 133
Conviction appeal.
Robbery inflicting GBH.
5y with a NPP of 2 y.
The victim lived in a unit above a shop owned by his parents. On the evening of the offence, he had been drinking with the appellant & others. He returned home at about 2:20am & went to bed. He was later awakened by a very loud noise at his front gate. He opened his door & saw it was the appellant. When he opened the gate, he was attacked by the appellant & 2 others. The victim suffered serious injury during the assault. A number of his possessions were stolen. The fundamental issue at trial was whether the victim correctly identified the appellant as one of his assailants.
Appellant did not give evidence at trial - no directions given about right to silence - omission not identified by prosecution or defence counsel - Azzopardi direction required.
Appeal allowed: new trial ordered.
155
PETROULIAS, Nikytas Nicholas - NSW SC, Johnson J, 10.5.2007
Citation: R v Petroulias (No.17) [2007] NSWSC 499
Judgment on applications arising from discovery that member of jury disqualified from serving as juror.
Trial by jury for offences against the law of the Commonwealth - trial commences with jury including a person disqualified from serving as a juror - discovery of this fact during trial - whether person may be discharged & trial continue with jury of 11 under s.22 Jury Act 1977 - held that power to discharge juror & continue trial under s.22 available & ought be exercised.
Decision: The juror described as the absent juror discharged under s.22(a) Jury Act 1977; Under s.22(a) of the Act the remaining 11 jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury; Until further order of the Court, an order made prohibiting publication of matters revealed in the course of the proceedings on 8, 9 & 10 May 2007 concerning the absent juror, the reasons for his absence from the trial & the reasons for the order discharging him under s.22(a) of the Act.
156
PETROULIAS, Nikytas Nicholas - CCA, 16.5.2007 - Reported:73 NSWLR 134
McClellan CJ at CL, Simpson & Hoeben JJ
Citation: Petroulias v R [2007] NSWCCA 134
Appeal against order made in the DC that a trial then in progress proceed with a jury of 11 members.
The trial taking place is a retrial. The jury at the present trail was selected on 26.3.2007 & the trial commenced. On 7.5.2007, a member of the jury failed to attend court & enquiries revealed that the juror had been arrested over the weekend of 5-6 May & charged with offences of resist police, driving recklessly, driving an unregistered MV, driving whilst disqualified & exceeding the speed limit. Following his arrest, bail was refused. When this information became available to the judge in the present trial, further enquiries were made & it was ascertained that the jury had been disqualified from driving by a court order for a period of 4 years on 12.4.2002 with further periods of disqualification being ordered by courts for other offences. The juror has been disqualified from driving until 24.4.2015. Section 6(a) of the Jury Act 1977 provides that a person is not qualified to serve as a juror if that person is presently disqualified. The absent juror was at all times a person disqualified and accordingly was not qualified to serve as a juror.
Appeal allowed: Judgment of 10.5.2007 vacated; Jury to be discharged.
157
ASSAF, Bakos - CCA, 16.5.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Assaf v R [2007] NSWCCA 122
Sentence appeal.
Count 1: attempt obtain money by deception - 12m GBB;
Count 2: AOABH (in company) - 1 y with a NPP of 9m PD.
The applicant was a concreting sub-contractor & had performed some work at a development site owned by the complainant & his business partner. The applicant was paid $9,000 by cheque for some of the work done. The applicant altered the cheque to read $19,000 & presented it at the bank for payment. The bank refused payment. Thereafter, the complainant agreed to pay the $9,000 in cash but only paid the applicant $1,500, agreeing to pay the balance in a couple of days at 12 noon. When that day & time came, the complainant told the applicant he was very busy & the applicant would have to wait. At about 12:30pm, the complainant went to the bank & withdrew sufficient money to meet the payment to the applicant & also to cover some other expenses. When the complainant returned to the development site in his car, he was attacked by the applicant & 4 other men. One of the men was armed with a baton & 2 of the men were armed with handguns. The complainant was dragged from his car & fell to the ground. Despite telling the men he had the money for the applicant, he was punched, kicked, struck with the baton & threatened with a handgun. When the complainant's business partner went to the aid of the complainant, the attackers left the scene in the applicant's car, with the applicant driving.
Applicant appealed against his sentence on the 2nd count on the grounds that the sentence was manifestly excessive & outside the appropriate range and that a sentence of PD is no longer appropriate.
Appeal based on events subsequent to sentence - review of sentence for executive government not court.
Appeal dismissed.
158
BALLIS, Francis Hetherington v RANDALL, Mark & Ors - NSW SC, 7.5.2007
Citation: Ballis v Randall [2007] NSWSC 422
Search warrants - validity. Whether warrants granted as covert warrants - whether statutory scheme under Search Warrants Act 1985 (NSW) authorised covert search warrants.
Warrants validly granted, but not as covert search warrants - covert execution of the warrants unlawful & had effect of negating procedural safeguards created by statute in favour of occupier - jurisdiction of SC where pending criminal trial in DC - principles that guide discretion in exercising jurisdiction.
Decision: Plaintiffs entitled to relief by way of declaratory relief.
159
TRINDALL, Wayne Anthony - CCA, 30.4.2007 - 171 A Crim R 87
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Trindall v R [2007] NSWCCA 119
Sentence appeal.
3 x detain for advantage & cause substantial injury (s.90A C rimes Act 1900, now repealed); 1 x aggravated detain for advantage & inflict ABH (s.86(2)); 1 x detain for advantage (s.86 1( b)); 6 x aggravated sexual assault (s.61J); 3 x sexual assault (s.61I); 1 x inflict ABH with intent to have sexual intercourse (s.61K(a)); 2 x robbery (s.94).
The offences were committed from 1995 to 2004. The17 charges involved 7 different victims.
The applicant was originally sentenced on 21.4.2006. Because of the large number of offences, the sentencing process was complicated & some 'slips' occurred. On 24.4.2006 the Court reconvened to correct a number of errors. The Crown asserted that some errors were not corrected. Although the sentencing judge identified a document that he said would comprise the written record of the corrected sentences, the Crown suggested that it also contained typographical errors. However, the intention the sentencing judge expressed in making the corrections on 24 April was to reduce the overall term & NPP he had originally imposed by 6m to provide a NPP of 21 y & an overall term of 23 y.
Sentencing - slip rule - correction to sentence - partly cumulative & partly concurrent sentences - whether special circumstances ought to have been found - whether parole & NPP imposed were appropriate - whether principles of totality properly applied.
Appeal dismissed. Order previously made suppressing names of victims continued.
160
PEKBILIMLI, Umit - CCA, 16.5.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Pekbilimli v R [2007] NSWCCA 101
Sentence appeal.
BE&S.
5y with a NPP of 2 y.
The applicant broke into the pre-school area of the Holy Trinity Church at Beacon Hill by forcing a lock. He then jemmied 2 internal locked doors & stole $1,468 that had been collected at a church service that day.
Applicant appeared for himself at appeal.
Backdate of sentence - on parole at time of offence.
Appeal dismissed.
161
NGUYEN, Hoang Minh - NSW SC, Whealy J, 24.4.2007
Citation: R v Nguyen [2007] NSWSC 389
Remarks on Sentence.
Murder (felony murder).
The offender stabbed the owner of a newsagency a number of times before witnesses managed to drag the offender off the deceased.
Aged 20 at time of offending - guilty plea - born in Australia of Vietnamese parents - tragic background - suffered violence from father as a young child - mother & father later separated - offender then lived with mother - unable to communicate effectively with her as she spoke no English & he spoke no Vietnamese - drug addiction - attempts to 'home detox'- on a cocktail of prescription drugs prescribed by GP at time of offence - stayed off heroin for 2 days - suffered marked withdrawal symptoms - took some heroin on day of offence - as a result of combination of drugs, possibly suffering effects of sedation, confusion, disorientation, disinhibition, agitation, aggression at time of offending - on parole at time of offence.
Sentenced to18y with a NPP of 13 y. Recommendation that whilst in prison, offender receive treatment & counselling for depression & drug addiction. Further recommendation that those treatments be extended to offender during time on parole.
162
SMITH, Geoffrey Paul - CCA, 14.5.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: Smith v R [2007] NSWCCA 135
Sentence appeal.
Common assault.
18m with a NPP of 13 m.
The applicant assaulted a disabled woman under his care.
Aged 37 at time of offence - guilty plea - history of depression - low intellectual functioning - no priors.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 14m with a NPP of 8m.
163
HUYNH, Trung Son - NSW SC, Buddin J, 24.4.2007
Citation: R v Huynh [2007] NSWSC 409
Remarks on Sentence.
Murder; demand money with menaces.
A 22 year old female student of the University of Technology was last seen alive as she drove her car out of a rented garage after having attended a lecture. Her body was discovered in the boot of her abandoned car some 4 days later. The cause of death was strangulation. There were no other signs of injury. The day before the discovery of the body, a friend of the deceased received 3 separate SMS messages from the offender to the effect that he had the deceased, he instructed the friend to tell the deceased's father he wanted $70,000 for her release by 7pm that day, he named the location where the money was to be taken & that once there to phone for instructions on where to drop off the money. He also gave a warning not to inform the police. According to a forensic pathologist called by the Crown, the decomposition of the deceased's body indicated she had been in the position in which she was found for a period of 36-48 hours, or possibly less. However, he conceded that it was possible the body had been there for a rather longer period, i.e. 90 hours. The actual time of death became a significant issue at trial.
Aged 26 at time of offending - grew up in Vietnam - came to Australia as a student at age 19 - at age 8 was made to watch an execution by his uncle - this had left an indelible mark on his memory - those memories revived after arrest - has since suffered from nightmares - fear of reprisals from Asian inmates - classed as a 'Special Protection Non-Association'inmate - suffers from chronic hepatitis B discovered on screening in 2005 - acute flare-up necessitated hospital admission & commencement of antiviral therapy - possible future flare-ups - liver may further deteriorate.
Whether standard NPP to be applied - application of principles of totality.
Sentenced to a total of 24y with a NPP of 18y.
164
ROBERTS, Brendan John - CCA, 20.4.2007
Barr, Adams & Rothman JJ
Citation: Roberts v R [2007] NSWCCA 112
Sentence appeal.
2 x aggravated detain for advantage (in company); 4 x robbery in company.
Total sentence of 6y 9m with a NPP of 4y 9m.
Special circumstances - whether error in calculation of sentence - parity - whether justifiable sense of grievance - impact of hardship on 3rd party.
Appeal allowed in part.
165
SABAN, Michael Nicholas - CCA, 16.5.2007
Price J, McClellan CJ at CL, Hidden J
Citation: Saban v R [2007] NSWCCA 139
Sentence appeal.
Aggravated robbery; + Form 1 offences (1 x common assault, 2 x demand property with menaces).
6y 9m with a NPP of 4y 9m.
The aggravated rob & a Form 1 offence involved the applicant taking the victim's mobile phone, pressing a knife to the victim's chest & threatening to stab him if he did not give his motorbike to the applicant. The Form 1 common assault offence took place when the applicant, waving a knife around, made jabbing motions towards a female victim's face. When her male friend intervened, the victim managed to run away, with the applicant following her, still holding the knife in his hand. The other offence on the Form 1 related to the applicant approaching the Returns Desk at K-Mart in Bathurst with an unknown male, demanding the staff give the other male a refund for goods he supposedly wanted to return. As there was no receipt, this was refused. The applicant then threatened staff. The police were called & the applicant was arrested.
Aged 31 at time of offending - extremely dysfunctional & fearful early life - parents of Croation background - 9 children in family - violent, alcoholic father abused all members of family - 2 daughters sexually abused - children often hungry - father on pension scavenged for food from bins - because of father's behaviour applicant an outcast at school - father committed suicide by burning down house with himself inside - applicant then attempted to overdose on tablets - expelled from school at beginning of year 9 - commenced using cannabis & alcohol at age 12 or 13 - lengthy criminal record - previous imprisonment - on parole at time of offending.
Whether insufficient weight given to prospects of rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
166
SG - NSW SC, Johnson J, 18.5.2007
Citation: R v SG [2007] NSWSC 511
Remarks on Sentence.
Accessory after the fact to AOABH.
The offender (aged 17y 9m) drove to Auburn where he collected KT (aged 16y 11m) & KT's younger brother. They then drove to McDonalds in Parramatta, after which they went to a cinema in Auburn. Later that evening, they drove around Auburn, throwing eggs at strangers. The deceased, who came to Australia as a refugee with his family some months earlier, threw a drink bottle at the back of the car after KT threw an egg at him. KT then confronted the deceased & punched him in the jaw so hard that the deceased fell to the ground, cracking his head on the pavement. Although the victim was taken to hospital & was operated upon, he died. KT pleaded guilty to manslaughter & was sentenced to 6y with a NPP of 4y: see R v KT [2007] NSWSC 83.
Guilty plea - parents immigrated to Australia from Turkey - offender & his 2 younger sisters born in Australia - offence has had a profound effect upon offender's family.
Sentenced to 3y GBB.
167
McKENNA, Eric Noel - CCA, 18.5.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: McKenna v R [2007] NSWCCA 113
Sentence appeal.
Maliciously inflict GBH in company; AOABH in company.
Total of 3y with a NPP of 20m.
Four men attacked a man while he was walking in a street in Maroubra. At the time, the man was carrying his 5 week old baby daughter in a baby harness strapped to his chest. It was a cold night & he had zipped her up inside his jacket. On the Crown case, the 4 accused had determined to seek out & assault a person who had assaulted the girlfriend of one of them earlier that evening. They picked JN for this purpose, even though the girlfriend had said that he was not the person who had assaulted her. They decided to attack him in any event. On the Crown case, the man was attacked, punched & kicked repeatedly to the head & chest after he fell to the ground. During the course of the attack, the baby was also injured. Her injuries were particularly bad. She received a depressed fracture to the skull & suffered an intracranial haemorrhage. Later she suffered from seizures for which she required medication. The Crown relied upon a joint criminal enterprise in relation to all 4 accused.
Parity - whether justifiable sense of grievance - whether sentence excessive.
Appeal allowed: resentenced to 2 y with a NPP of 15m.
168
SALVAGGIO, Anthony - CCA, 18.5.2007
Campbell JA, James J, Smart AJ
Citation: Salvaggio v R [2007] NSWCCA 136
Sentence appeal.
1 x aggravated detain for advantage; 2 x AOABH.
Total sentence of 4y with a NPP of 3 y.
The applicant & the victim had spent some time in the evening at a club consuming a quantity of alcohol. When they returned to the applicant's unit, the applicant accused the victim of acting like a whore because some men had been speaking to her at the club. She told him not to be stupid, that they were only talking to her, then she went to bed. The applicant then also went to bed. During the early hours of the morning, they started to argue. This escalated into abusive language. The applicant then attacked & kicked the victim. The victim looked inside her handbag for her car keys but they were not there. The applicant had taken them. The applicant attacked the victim again, kicking her, striking her with a piece of wood & burning her on the shoulder with his cigarette. Neighbours eventually summoned police when they heard the victim screaming. Police attended & the applicant was arrested. The applicant & the victim had been in a relationship for approx 4-5 months.
Aged 34 at time of offending - powerfully built man - separated from wife with whom he had 3 children - stable upbringing/family background - commenced using drugs in early teens - good trade qualifications.
Accumulation of sentences - special circumstance - whether sentence excessive.
Appeal dismissed.
169
MORRIS, Mark Anthony - CCA, 127
Giles JA, Hidden & Harrison JJ
Citation: Morris v R [2007] NSWCCA 127
Sentence appeal.
Malicious wounding.
7y with a NPP of 4 y.
The above sentence was made partially accumulative upon a sentence being served for another offence.
The applicant assaulted the victim who was walking past the premises where the applicant lived. The victim & some friends were returning from a club when the victim felt sick. He was bent over & was dry-retching when the applicant shouted at the men to get out of the area. The applicant told them he was sick of them. He then tackled the victim & they fell onto the footpath, with the applicant beneath the victim. A witness said that as they hit the ground he saw the applicant produce a large knife. The witness intervened & the applicant ran off with the knife. The victim received 5 wounds, 2 of which were stitched, 2 of which were puncture marks & the other a slice or graze. There was other evidence of 3 lacerations to the torso. The abdomen was not punctured & the wounds were sutured.
Whether error in taking into account as aggravating factor the vulnerability of the victim - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5y with a NPP of 3 y.
170
SMITH, Phillip Edward - CCA, 22.5.2007
Campbell JA, James J, Smart AJ
Citation: Smith v R [2007] NSWCCA 138
Sentence appeal.
1 x ongoing supply of amphetamine; 1 x supply cannabis; + Form 1 offences (supply cannabis, supply amphetamine, goods in custody, possess cannabis).
Total sentence of 4 y with a NPP of 2 y.
The arrest of the applicant followed police surveillance upon premises. When interviewed by police, the applicant identified other persons involved in the supply of cannabis & amphetamine & offered to give evidence for the Crown in the prosecution of 4 co-offenders. The investigating police considered the applicant's offer of assistance genuine, however, by the time the applicant was sentenced, all the co-offenders had pleaded guilty to various charges or were likely to plead guilty, which resulted in the applicant not having to give evidence. By the time the applicant was sentenced, 2 of his co-offenders had already been sentenced, each having been charged with different & less serious offences than the applicant. They were sentenced in the LC, whereas the applicant was sentenced in the DC.
Aged 24 at time of sentencing - guilty pleas at earliest opportunity - assistance - 50% discount allowed - started smoking cannabis at age 14 - started using amphetamine a year before above offences - contrition - reasonable prospects of rehabilitation - minor criminal record - on GBB at time of offences.
Maximum penalty of offence wrongly stated - element of offence taken into account as aggravating factor - sentence manifestly excessive.
Appeal allowed: resentenced to a total of 3y 4m with a NPP of 1y 10m.
171
SJRC - CCA, 22.5.2007
James, Rothman & Harrison JJ
Citation: R v SJRC [2007] NSWCCA 142
s.5F appeal by Crown against a ruling made in the DC that evidence of 2 telephone text messages sent by the respondent to the complainant would be inadmissible in a trial. After the ruling was made, the respondent's trial, fixed to commence that week, did not proceed.
The respondent is alleged to have committed a number of sexual offences against the complainant. Immediately following the alleged offences, the complainant complained to a friend that the respondent had 'pretty much forced me to have sex with him'Over the following few days, the respondent sent text messages to the complainant that seemed to refer to the incident. Just over 3 weeks after the last text message, the complainant went to the police & showed a detective the messages stored on her phone.
Relevance of evidence - probative value - whether appeal should be allowed.
Appeal allowed: ruling made in the DC set aside. No order was made by the CCA that evidence of the 2 text messages will be admissible at any trial of the respondent as there was no current trial in the DC & it is conceivable that some change in circumstances might occur before any trial takes place.
172
CTM - CCA, 24.5.2007 - 171 A Crim R 371
Hodgson JA, Howie & Price JJ
Citation: CTM v R [2007] NSWCCA 131
Conviction and sentence appeal.
Sexual intercourse with child aged between 14 & 16.
Suspended sentence (no other details given).
The Crown case was that the complainant, a schoolgirl aged 15, had been out drinking with some girlfriends & eventually ended up at the appellant's home. The complainant fell asleep & was taken to one of the bedrooms. She alleged that the appellant (then aged 17), a co-accused & another male then sexually assaulted her. The complainant accused the appellant of having had penile penetration. The appellant said that he knew the complainant from school. He said that at the beginning of the year, when they first met, she told him that she was aged 16 years. He said he just assumed that she was indeed 16 years old.
Whether defence by reason of mistake of age exists - criminal responsibility - whether repeal of statutory defence gave rise to common law defence - statutory Interpretation - whether legislature intended to exclude common law defence when creating new child sexual assault offences - whether verdicts unreasonable in light of acquittal of more serious alternatives - failure to comply with provisions of Children (Criminal Proceedings) Act.
Consequences of repeal in 2003 of s.77(2) Crimes Act 1900.
Conviction appeal dismissed.
Sentence appeal allowed: sentence quashed, matter remitted to DC.
173
CHUNG, Patrick - CCA, 22.5.2007
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Chung v R [2007] NSWCCA 146
Sentence appeal.
Maliciously inflict GBH with intent; B&E dwelling house.
Total sentence of 14 y with a NPP of 10 y.
The Crown case was that the applicant, knowing his ex-wife was at work, forcefully broke into his ex-wife's apartment to gain access to his 2 daughters. At the time of gaining entry, the applicant was aware that a male friend (the victim) of his ex-wife was staying there. In an uncontrollable rage, the applicant savagely assaulted the victim, which caused severe injury to the victim's right eye & enucleated his left eye, resulting in the victim enduring much pain & suffering & becoming totally blind. The applicant believed that his ex wife was having an affair with the victim. The ex-wife & the victim denied any improper or questionable conduct or any intimate relationship.
Whether sentence manifestly excessive.
Appeal dismissed.
174
KAFOVALU, Sunia James - CCA, 24.5.2007
James, Rothman & Harrison JJ
Citation: Kafovalu v R [2007] NSWCCA 141
Sentence appeal.
Robbery in company; affray; AOABH; assault police officer in execution of duty thereby occasioning ABH; resist police officers in execution of duty.
Total sentence of 6y with a NPP of 4y.
Objective seriousness of AOABH - continuing episode of criminality - offences committed over distinct & relatively short period - accumulation - whether error in taking into account fact that offender on parole at time of offence - whether miscarriage of sentencing discretion - whether sentences manifestly excessive.
Appeal dismissed.
175
NT - CCA, 24.5.2007
James, Rothman & Harrison JJ
Citation: NT v R [2007] NSWCCA 143
Sentence appeal.
5 x aggravated indecent assault; 2 x aggravated sexual assault; 1 x attempt aggravated sexual assault.
Total sentence of 9y 9m with a NPP of 5y 9m.
The applicant is the victim's stepfather. The victim was aged 10 & 11 years at the time of the offences. When the applicant met his wife, the victim was aged 3. The applicant & his wife married in June of 2000 & had 3 children together. When the offences came to light, the applicant made full & frank admissions.
Whether overall sentence manifestly excessive taking into account applicant's early guilty plea - whether sentencing outcome sufficiently reflective of finding of exceptional features identified by sentencing judge.
Appeal dismissed.
176
CAMPBELL, Neil Andrew Raymond - CCA, 24.5.2007
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Campbell v R [2007] NSWCCA 137
Sentence appeal.
6 x BE&S: 1 x receive/dispose of stolen property; + 18 offences on a Form 1.
Total sentence of 5 y with a NPP of 3 y.
The applicant pleaded guilty to the above offences. His method of operation was to promptly pawn the stolen goods & when doing so he produced evidence of his true identity & signed the pawn slips in his own name. The police obtained these pawn slips, thus the evidence available to them would have established at least the receiving & disposing of stolen goods offences. In the case of two of the BE&S offences, the applicant left his fingerprints at the site of the break-ins. With regard to the remaining offences, there was a very strong possibility that, even without the applicant's admissions, his guilt would have been established.
Whether insufficient weight given to voluntary disclosure of guilt as per Ellis (1986) 6 NSWLR 603 - whether sentence manifestly excessive.
Appeal dismissed.
177
MAJW - CCA, 24.5.2007 - 171 A Crim R 407
James, Rothman & Harrison JJ
Citation: R v MAJW [2007] NSWCCA 145
Question of law.
Sex offences.
Indictments - whether counts in indictment alleged essential factual ingredients of offences - amendment of indictment.
Question of law determined.
178
TILLMAN, Kenneth Davidson -NSWCA, 24.5.2007
Mason P, Santow JA, Tobias JA
Citation: Attorney General for New South Wales v Tillman [2007] NSWCA 119
Appeal against decision of Hoeben J on 17.4.2007: see Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356.
Probation, parole, release on licence & remissions - interim detention order - interim supervision order - where respondent has served sentence - where respondent has extensive criminal history for serious offences of rape & sexual assault - where evidence of high risk of recidivism - Act of parliament - interpretation - interference with discretion of court below - interference with judge's finding of fact - where trial judge held there was no history of attacks against random individuals - Crimes (Serious Sex Offenders) Act 2006.
ORDERS:
1. Grant leave to appeal.
2. Direct appellant to file and serve notice of appeal within 3 days.
3. Appeal upheld.
4. Set aside the order made in para 61(1) of the judgment of Hoeben J dated 17 April 2007.
5. In lieu, order pursuant to s16(1) of the Crimes (Serious Sex Offenders) Act 2006, that the respondent be detained at a correctional centre on an interim basis for a period of 28 days from today.
6. Order pursuant to s20(1) of the Act that a warrant be issued for the committal of the respondent to a correctional centre for the period specified in order 5.
7. No order as to costs.
8. Direct that these orders be entered forthwith and an appropriate warrant issued.
179
TILLMAN, Kenneth Davidson - NSW SC, Bell J, 29.5.2007
Citation: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 528
Judgment.
Renewal of interim detention order.
ORDERS:
1. Pursuant to s.16(3) of the Crimes (Serious Sex Offenders) Act 2006 renew the interim detention order to take effect on and from Wednesday 30 May 2007 for a period of 28 days or until the determination of the plaintiff's claim for final orders whichever is the shorter period;
2. Pursuant to s.20(1) of the Crimes (Serious Sex Offenders) Act 2006 a warrant issue for the committal of Kenneth Davison Tillman to a correctional centre for the period specified in the order.
180
CHOI, Hyeon Joon - CCA, 1.6.2007
Beazley JA, Hulme & Hislop JJ
Citation: Choi v R [2007] NSWCCA 150
Conviction and sentence appeal.
1 x knowingly concerned in the importation of a commercial quantity of MDMA (ecstasy).
20y with a NPP of 13y.
Customs officers in Brisbane searched a container that had been shipped from Antwerp. Inside the container they found component parts of a deep freezer unit & included within those parts were 48 plastic columns containing 408,000 tablets of MDMA. A controlled delivery then took place. The amount of pure MDMA was 34.4 kgs. There was evidence that the appellant was a major player in the importation.
Telephone intercepts - cross-examination of appellant - invitation by Crown for jury to use evidence of intercepted phone conversations not involving appellant - whether trial judge misdirected jury as to use they could make of those conversations - directions - warnings - whether sentence excessive.
Appeal dismissed.
181
HARRIS, William Mohi - CCA, 14.5.2007 - 171 A Crim R 267
McClellan CJ at CL, Hulme & Hislop JJ
Citation: R v Harris [2007] NSWCCA 130
Crown appeal.
2 x aggravated BE&S (in company); 1 x take & drive conveyance without consent.
Total sentence of 1y 10m with a NPP of 1y.
The 2 aggravated BE&S offences were committed upon dwelling houses. Various items were stolen from these premises, including cameras, watches, jewellery & a laptop computer. The respondent was driving a stolen vehicle when he was stopped by police.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 4y with a NPP of 2y.
182
OKAFOR, Emmanuel Nnamdi - CCA, 30.5.2007
McClellan CJ at CL, Howie & Hall JJ
Citation: Okafor v R [2007] NSWCCA 147
Conviction and sentence appeal.
Attempt possess commercial quantity heroin.
6y with a NPP of 4y.
Appellant appeared for himself in the CCA.
The appellant was arrested following months of police surveillance.
Aged 20 - Nigerian national - no priors.
Whether verdict unreasonable - whether listening device warrant invalid as a general warrant - whether sentence excessive.
Appeal dismissed.
183
SULTANA, William - CCA, 22.5.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: Sultana v R [2007] NSWCCA 107
Sentence appeal.
1 x BE&S: + Form 1 offences (BE&S; B&E with intent to steal).
2 y with a NPP of 16m.
The offences were unrelated & were committed over a 10 month period. The applicant broke into premises at Macquarie Park & stole 28 notebook computers (value $126,000). When police attended the premises, they found a poster with blood on it. Subsequent analysis revealed a match with the applicant's DNA to the DNA from the blood located at the scene. The BE&S on the Form 1 was committed at premises in Baulkham Hills. Computers & office equipment were stolen (value $46,000). DNA taken from the scene matched that of the applicant. The B&E with intent to steal was committed upon a BP service station in Girraween. No property was stolen, however, there was extensive damage to the premises. DNA taken from the scene matched that of the applicant.
Aged 28 at time of sentence - no priors until aged 24 - commenced offending in order to feed drug addiction.
Period of pre-sentence custody attributable to Form 1 offences - whether sentence should be backdated.
Appeal allowed: sentence backdated.
184
STEVENS, Colin Brian - CCA, 8.6.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: Stevens v R [2007] NSWCCA 152
Sentence appeal.
1 x affray.
18m with a NPP of 12m.
Co-offender's conduct - aggravating factors - gratuitous cruelty to animals - offence in company.
Whether sentence manifestly excessive.
Appeal dismissed.
185
KEIR, Thomas Andrew - CCA, 6.6.2007
Hunt AJA, Johnson & Latham JJ
Citation: Keir v R [2007] NSWCCA 149
Conviction appeal.
Murder.
22y with a NPP of 16y.
This was a circumstantial case: see R v Keir [2004] NSWSC 964 and R v Keir [2004] NSWSC 1194. The appellant's first wife disappeared in 1988. In 1991, human bones were discovered buried in grounds of the matrimonial home. The Crown contended that, on the basis of DNA evidence, the bones were those of the appellant's wife.
The appellant appeared for himself in the CCA.
Whether verdict unreasonable & not supported by evidence - alleged sightings of wife after disappearance - alleged deficiencies in DNA evidence - claim that Crown & trial judge fell into "prosecutor's fallacy" - claim trial judge fell into factual error in findings concerning excavation of site where human bones discovered - claim that not open to trial judge to find wife was dead & that appellant caused her death - whether miscarriage of justice.
Appeal dismissed.
186
EL HASSAN, Borhan - CCA, 6.6.2007
Hunt AJA, Johnson & Latham JJ
Citation: El Hassan v R [2007] NSWCCA 148
Conviction and sentence appeal.
Conspire to dispose of stolen property.
6y with a NPP of 4y.
The appellant & his brother conspired over a period of 12 months to dispose of stolen property, knowing that the property was stolen. Three shipping containers packed with goods, a substantial quantity of which had been stolen (including motor vehicles & parts, motor cycles, a boat & a Bobcat), were shipped to Lebanon. The Crown relied on the part played by the appellant in organising, disassembling, packing & shipping the stolen property, including organising & paying for shipping containers when his brother was overseas. The appellant argued that he made no profit from this enterprise for himself, that the whole criminal enterprise was the work of his brother & he was an innocent party to the arrangements he made on behalf of his brother. On the evening of the 1st day of the trial, a programme dealing with the re-birthing of motor vehicles was aired on TV. The producer of the programme had been supplied with film taken by police of various aspects of their investigation into this case. The film included a very short extract showing a blurred but recognisable view of the interior of the workshop in the premises associated with the appellant & the outside of the premises where his brother stored the stolen vehicles. Mention was made in the telecast of Bankstown, where the appellant's premises were located.
Whether jury should have been discharged because of TV programme - directions - circumstantial evidence - whether verdict unreasonable - special circumstances - whether sentence excessive.
Conviction appeal dismissed. Sentence appeal allowed: resentenced to 5y with a NPP of 3y 4m.
187
DIAB, Ali - NSW SC, Studdert J, 7.6.2007
Citation: R v Diab [2007] NSWSC 577
Remarks on Sentence.
Manslaughter.
The offender shot the deceased 5 times during an argument. The offender was originally charged with murder, but pleaded guilty to manslaughter on the grounds of self-defence. The offender & his victim had both been involved in the supply of illegal drugs & had clashed over their rival enterprises. An argument had broken out on the day of the fatal shooting & the deceased had drawn a handgun. There was no evidence that the handgun was loaded. The offender then shot the deceased in the chest, arms & leg.
Sentenced to 10y 3m with a NPP of 7y 9m.
188
ABDULRAHMAN, Rabih - NSW SC, Studdert J, 7.6.2007 - 171 A Crim R 419
Citation: R v Abdulrahman [2007] NSWSC 578
Remarks on Sentence.
Accessory after the fact to manslaughter.
The offender was present when the deceased was fatally shot. The offender then helped the killer in his attempts to avoid arrest: see also R v Diab [2007] NSWSC 577.
Sentenced to 2 y with a NPP of 2y to be served by way of PD.
189
CAVANOUGH, Sandra Dorothy - NSW SC, Whealy J, 7.6.2007
Citation: R v Cavanough [2007] NSWSC 561
Remarks on Sentence.
Manslaughter.
The offender fatally stabbed her boyfriend at a caravan park. Both had been drinking alcohol & smoking cannabis. The offender & the deceased went to a local club where the deceased intended buying them some food. The offender was minding some cash for the offender. At the club, the offender demanded that the deceased return her money to her, but he ignored her. When they returned to the caravan park, the offender again demanded the return of her money, which the deceased again ignored. Eventually, the offender stabbed the deceased once in the back.
Sad & difficult background - deprived & traumatic family history - left school at 13 - abused alcohol & cannabis since aged of 12 - intellectual functioning 'borderline'- on disability pension since aged 18.
Sentenced to 8y 2m with a NPP of 5y.
190
HAMIED, Mohamad Issam - CCA, 8.6.2007
Tobias JA, Latham & Fullerton JJ
Citation: R v Hamied [2007] NSWCCA 151
Crown appeal.
Assault with intent to rob whilst armed with dangerous weapon.
3y with a NPP of 18m.
The respondent drove his 4 co-offenders to Botany, where the co-offenders entered a hotel wearing disguises. Three of the men were armed, one with a replica pistol, one with a screwdriver & one with a baseball bat. Patrons & employees of the hotel were told to get down on the floor. All complied, except an 82 year old man who grabbed a stool to protect himself. One co-offender struck the stool with the baseball bat & another kicked the elderly man, who fell to the floor. One of the patrons then realised that the gun was a replica & called out that it was not a real gun, whereupon all 4 co-offenders ran off, pursued by the hotel security guard & a patron. They ran towards the offender's car, jumped in & the offender drove off.
Aged 48 at sentence - guilty plea - born & raised in Syria - violent & alcoholic father - respondent has depressive illness - past alcohol dependence - psychiatric hospital admissions - on medication.
Henry guideline - whether sentence manifestly inadequate.
Appeal dismissed.
191
TARRANT, Donna Clare - CCA, 8.6.2007 - 171 A Crim R 425
Citation: Tarrant v R [2007] NSWCCA 124
Sentence appeal.
Murder.
16y with a NPP of 12y
This appeal followed a retrial: see R v Smit, Smit & Tarrant [2005] NSWSC 1277.
Police received a number of anonymous phone calls & went to the deceased's flat to investigate. They found the naked body of the deceased wrapped in 2 blankets & within the blankets were 2 bloodstained jumpers & a cricket bat. There were large amounts of blood & blood staining throughout the flat. On a lounge chair, police found 3 knives. Another knife was found under a chair & yet another on a bed. Some of the knives & other items within the flat were stained with blood, identified as that of the deceased. The pathologist who performed the post mortem testified that death was principally caused by a blow to the throat, which fractured the larynx & caused swelling, thus depriving the victim of oxygen. There were 12 stab wounds, 2 of which could have contributed to death, one having penetrated the lung. The body also displayed numerous signs of trauma with 14 areas of bruising, 58 abrasions, 10 lacerations & 8 scratches. In all, there were in excess of 100 injuries, ranging from minor to very serious.
Aged 29 - lengthy record, including assaults - long-term drug abuse.
Joint criminal enterprise - heavier sentence than sentence passed at first trial - different finding by second judge about applicant's role.
Whether sentence excessive.
Appeal dismissed.
192
WATTS, Aubrey - CCA, 14.6.2007
Giles JA, Hidden & Harrison JJ
Citation: Watts v R [2007] NSWCCA 153
Sentence appeal (extension of time).
11 x BE&S; 3 x B&E with intent to steal;1 x malicious damage.
Total sentence of 11y with a NPP of 7y.
The above offences were committed over a 4 month period.
Aged 23 at time of offences - guilty pleas - born in NZ - raised in a violent neighbourhood - upbringing marked by abandonment by significant adults - offences committed to fund drug habit - low average range of intellectual functioning - suffers depression, anxiety - wishes to return to NZ upon release - support from grandmother - long history of offending, starting when a juvenile - previous imprisonment.
Whether overall sentence manifestly excessive taking into account applicant's age & subjective circumstances.
Appeal allowed in part: sentence on Count 2 reduced, resulting in a total sentence of 8y with a NPP of 6y.
193
NORVENSKA, Peter Klause - CCA, 14.6.2007
Basten JA, Grove & Howie JJ
Citation: Norvenska v DPP (Cth) [2007] NSWCCA 158
s.5F appeal against refusal by trial judge to grant leave to withdraw guilty plea.
The applicant was the manager of a medical practice in Sydney. Between 1.1.1997 & 28.2.1998, he altered Medicare forms in order to claim higher benefits from the Health Insurance Commission. He was charged with defrauding a public authority under the Commonwealth, pursuant to s.29D Crimes Act 1914 (Cth). At the commencement of the trial, the applicant was represented & pleaded not guilty. Two days later the proceedings were adjourned due to the service of additional material by the prosecution. An additional witness statement was subsequently served on the applicant in support of the prosecution case. On the morning that the proceedings were to recommence, the applicant had a meeting with his legal counsel, after which he changed his plea to guilty. Prior to the hearing on sentence, he indicated to his counsel that he wished to change his plea. The applicant's counsel withdrew. On 4 August, a notice of motion was filed seeking leave to withdraw the plea of guilty. On 20.10.2006 the motion was heard by Finnane DCJ, who refused the application.
The central issue on appeal was whether the applicant had received inadequate legal advice as to the element of intention in the offence, with the result that his plea of guilty had been entered on the basis of a misunderstanding of the offence.
Appeal dismissed.
194
POYNDER, Michael John - CCA, 14.6.2007 - 171 A Crim R 544
James, Rothman & Harrison JJ
Citation: R (Cth) v Poynder [2007] NSWCCA 157
Crown appeal.
2 x using a carriage service to procure persons under 16 years of age (s.474.26 of the Criminal Code Act 1995 (Cth)); + offences taken into account (2 x using a carriage service to menace, harass or cause offence - s.474.17 of the Criminal Code).
3y sentence; order made for release at expiration of 1y 3m, upon entering into conditional 3y recognizance.
Police conducted an investigation of the respondent over a 2 month period. The 1st charge related to a phone call made to a chat service, in which the respondent spoke with a male who told him on 2 occasions that he was 15 years old. The respondent obtained the male's phone number, which was subsequently found to be disconnected. The 2nd charge related to another call made to the chat service. In this call, the respondent spoke with a female undercover police operative who stated she was 15 years old. The respondent gave her a false name & arranged to pay for sex with her at her home when her mother was out at work. When the respondent arrived at the given address, he was arrested. Upon arrest, he had on him a condom, lubricant, $236 & the address written on a piece of paper. Charge 3 related to a call made by an informant to the respondent in which they discussed tying up a woman & raping her young daughter. Charge 4 related to 540 calls made between 29.5.2006 & 15.6.2006 largely to the chat service. These calls involved the respondent describing sexual acts, including acts with his 'daughter' & a 'dog'. He said that he was 'into taboo things' including incest, rape & sex with children & animals. The respondent does not have a daughter or a dog.
Aged 50 at time of offences - guilty plea - divorced - was a solicitor & special counsel with a law firm at time of offences - loss of profession - loss of reputation - humiliation - financial ruin - in protective custody since arrest.
Whether sentence manifestly inadequate.
Appeal dismissed.
195
AJS - HCA, 13.6.2007 - 235 CLR 505; 81 ALJR 1208
Citation: AJS v The Queen [2007] HCA 27
Verdicts - statutory alternative verdicts - appellant convicted by jury of one count of incest - because of verdict on count of incest jury was not required to consider statutory alternative verdict of indecent act with a child aged under 16 - Court of Appeal quashed the conviction for insufficient evidence and ordered a new trial without specifying what charge or charges were to be tried.
Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest - whether the Court of Appeal's jurisdiction pursuant to s.568(2) of the Crimes Act 1958(Vic) either to enter a verdict of acquittal or order a new trial should be read with the provisions of ss.421 and 425 regulating alternative verdicts - whether entry of verdict of acquittal and order for new trial on lesser alternative count engage principles of estoppel or preclusion - whether, following an acquittal and order for a new trial on a lesser alternative count, the jury in the new trial should be informed about that earlier acquittal.
Orders:
1. Appeal allowed.
2. Set aside paragraph 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 7 December 2005 and in its place order that:
(a) judgment and verdict of acquittal be entered in respect of the charge of incest contrary to s.44(1) of the Crimes Act 1958 (Vic);
(b) there be a new trial limited to the offence of taking part in an indecent act contrary to s.47(1) of the Crimes Act 1958 (Vic) with the person named in the presentment filed on 3 February 2004.
196
SMITH, James Duncan - CCA, 14.6.2007
Basten JA, Grove & Hidden JJ
Citation: Smith v R [2007] NSWCCA 156
Conviction appeal.
1 x indecent assault upon child aged 11 years.
2y with a NPP of 12m.
The appellant was found guilty of the above offence (2nd count), which was in the alternative to a charge of aggravated sexual intercourse without consent (1st count). The Crown case was dependent upon the testimony of the complainant, whose evidence in chief was given by the playing of 2 video recorded interviews with police. The complainant was a friend of the daughter of the appellant & was sleeping over at the appellant's house when the offence was alleged to have occurred. The complainant said that the appellant came into the room where she was sleeping, pulled down her pants & touched her. She said that the following morning he told her she would be in trouble if she told her parents or anyone else about what had happened. Both on the police video interviews & in cross-examination, the complainant spoke of the appellant 'touching'her vagina & his fingers being 'inside'The sexual intercourse charged on the 1st count was based upon an allegation of digital penetration. The Crown prosecutor, in his address to the jury, stated that they needed to be satisfied that there had been penetration in order to sustain the charge on the 1st count. The trial judge erroneously directed the jury to similar effect in relation to that element of proof.
Whether miscarriage of justice - whether verdict unreasonable & not supported by evidence.
Appeal dismissed.
197
ROLFE, Mark Alfred - CCA, 14.6.2007 - 173 A Crim R168
Giles JA, James & Harrison JJ
Citation: Rolfe v R [2007] NSWCCA 155
Conviction and sentence appeal.
7 x aggravated indecent assault upon child; 2 x sexual intercourse with person under 10; 1 x aggravated indecency.
Total sentence of 8y with a NPP of 6y.
The above offences were committed upon one child who was aged from 5  years to 8 years at the time of the offences. The appellant was the complainant's stepfather.
Whether evidence inadmissible under s.293 Criminal Procedure Act because relating to complainant's sexual experience - whether exception in s.293(6) available - admissions by accused of sexual misconduct towards complainant, not specifically of misconduct charged - whether relationship evidence - confession - silence - corroboration - lies - motives of mother - influence of pornography - whether miscarriage of justice - whether sentence manifestly excessive.
Appeal dismissed.
198
TILLMAN, Kenneth Davidson - NSW SC, Bell J, 18.6.2007
Citation: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
Judgment.
Continuing detention order.
Risk of re-offending - standard of proof of high probability - likely to commit further serious sex offence - treatment programmes - adequacy of extended supervision order.
ORDERS
1. Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006 Kenneth Davidson Tillman is to be detained in a correctional centre for one year from today;
2. Pursuant to s.20(1) of the Act issue a warrant for the committal of Kenneth Davidson Tillman to a correctional centre for the duration of the continuing detention order referred to in order 1 above.
199
JASKIERSKI, Joseph - CCA, 19.6.2007
Hodgson JA, Grove & Simpson JJ
Citation: Jaskierski v R [2007] NSWCCA 168
Sentence appeal.
Supply heroin.
5 y with a NPP of 3 y.
Joint criminal enterprise - parity.
Appeal dismissed.
200
WILLS, Russell Clement - CCA, 19.6.2007 - 173 A Crim R208
Beazley JA, James & Hidden JJ
Citation: Wills v R [2007] NSWCCA 160
Conviction and sentence appeal.
Murder.
18y with a NPP of 14y.
A 60 year old man who was living in a public housing block was found dead in his unit. He had been severely battered & sustained injuries to his face, head & body, suggestive of having been kicked or stomped on, in addition to being attacked with pots & pans. The Crown relied upon a number of specific circumstantial factors in support of the appellant having murdered the deceased: the association between the appellant & the deceased; no forced entry into the unit; evidence of appellant being present in the vicinity during the period in which the deceased was killed; appellant's bag found in the unit; appellant's obvious limp as observed by a number of people; deceased's blood on appellant's clothing. Following his arrest, the appellant was seen by psychiatrists on a number of occasions whilst awaiting trial at the Metropolitan Remand Centre. He had been diagnosed as suffering from schizophrenia & prescribed anti-psychotic medication but had stopped taking the medication. The appellant was subsequently assessed by a psychiatrist as being fit for trial. Evidence as to the appellant's mental state & the fact that he did not understand the nature of his illness & thus may not have been able to make a proper defence to the charge was first adduced at the sentencing hearing.
Evidence to be considered in totality - not permissible to consider piecemeal - whether jury's verdict unreasonable - unfitness to be tried.
Conviction appeal allowed: new trial ordered.
201
WHITE, Anne Margaret - HCA, 19.6.2007
Citation: White v Director of Military Prosecutions [2007] HCA 29
The plaintiff, a Chief Petty Officer in the Royal Australian Navy, has been charged with 7 offences under the  Defence Force Discipline Act 1982 (Cth). The alleged offences are said to have occurred in Victoria. They involve complaints of acts of indecency, or assault, upon 5 other female members of the Australian Defence Force, all of lower rank. The trial has not yet occurred, but it will be either by court martial or a Defence Force magistrate. The plaintiff challenges the validity of the provisions of the Act creating the offences with which she has been charged & providing for trial & punishment of such offences. In order to sustain that challenge, the plaintiff invited the Court to overrule its previous decisions in Re Tracey; Ex parte Ryan 166 CLR 518, Re Nolan; Ex parte Young 172 CLR 460, and Re Tyler; Ex parte Foley 181 CLR 18. The Defence Force Discipline Act 1982 (Cth) created a range of offences based on offences against the laws of the Australian Capital Territory & provided for trial & punishment of these offences exclusively by service tribunals.
Whether trials for these offences require an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution - whether service tribunals can validly exercise jurisdiction over service offences.
Application dismissed with costs.
202
LIBKE, Justin Patrick - HCA, 20.6.2007 - 230 CLR 559; 81 ALJR 1309
Citation: Libke v The Queen [2007] HCA 30
On appeal from the SC of Qld.
The appellant was indicted in the DC of Qld on 3 counts of rape, one count of indecent dealing with an intellectually impaired person & one count of sodomy of an intellectually impaired person. The 1st count of rape was alleged to arise out of an incident that had occurred in a park where the complainant & the appellant had each been walking a dog; the other counts concerned events occurring some days later at the complainant's home. The appellant denied any anal penetration. The principal issues at trial were issues about consent & whether the appellant reasonably believed the complainant was not intellectually impaired. At trial, the appellant was convicted of the 1st count of rape. He was acquitted of the other 2 counts of rape, the count of sodomy & the count alleging indecent dealing, but the jury returned verdicts of guilty to 3 alternative, lesser, offences: 2 offences of unlawful carnal knowledge with an intellectually impaired person & an offence of exposing such a person to an indecent act. The appellant appealed to the CA of the SC of Qld against his convictions & against the sentences imposed by the trial judge. His appeal against conviction was dismissed; his appeal against sentence was allowed. By special leave, he appealed to the HCA against the dismissal of his appeal against conviction.
Whether "miscarriage of justice" under s 668E(1) of Criminal Code (Q) by reason of manner in which prosecutor conducted cross-examination of appellant - role of trial judge during cross-examination - application of the "proviso" in the circumstances - requirements of Weiss v The Queen (2005) 224 CLR 300 - whether adequate directions on issue of consent as it related to cognitive capacity & intellectual impairment - whether adequate directions on defence provided by s.216(4) of Criminal Code (Q) that accused had belief on reasonable grounds that person was not intellectually impaired.
Appeal dismissed.
203
STRICKE, Max Sheldon - CCA, 25.6.2007
Simpson, Howie & Hislop JJ
Citation: R v Stricke [2007] NSWCCA 179
Crown appeal.
Count 1: supply large commercial quantity MDMA (ecstasy);
Count 2: supply large commercial quantity MDMA;
Count 3: supply cocaine.
Respondent was also convicted on a charge of goods in custody.
Total sentence of 9y with a NPP of 6y.
From late 2005 into March 2006, the Drug Squad carried out an investigation of the respondent & a Mr Maule, during which a number of the respondent's phone & other conversations were lawfully monitored. The respondent spoke almost daily to Mr Maule during this period in relation to the supply of prohibited drugs. A controlled operation was set up, resulting in the respondent supplying 5,000 ecstasy tablets (1.2 kgs) to a police undercover operative for $75,000 cash. The cash was never recovered. A sample of the tablets to be supplied & given to the undercover operator prior to the supply being effected had a purity of 30.5%. The respondent supplied a further 18,000 ecstasy tablets (4.217 kgs) to the police undercover operative, being a part-supply of 25,000 tablets which the respondent had agreed to supply. The respondent was then arrested. A sample of the tablets given to the undercover operative before the supply had been effected had a purity of 22.5%. Following his arrest, the respondent's premises were searched, during which police found 32.55 grams of cocaine. Upon arrest, the respondent had been searched & $8,460 was found on him. He admitted that the money had been unlawfully obtained.
Standard NPP - plea - objective seriousness - accumulation of sentences.
Whether sentences manifestly inadequate.
Appeal allowed against inadequacy of sentences for counts 1&2: respondent resentenced for those counts, resulting in a total sentence of 14y with a NPP of 9y.
204
CLEVERLY, Richard - CCA, 25.6.2007
Hodgson JA, Grove & Simpson JJ
Citation: Cleverly v R [2007] NSWCCA 169
Conviction appeal.
Murder; + 2 offences taken into account.
24y with a NPP of 18y.
The appellant was found guilty of the murder of his aunt by strangulation (see also R v Cleverly [2004] NSWSC 1279).
Aged 18 at time of offence - uneventful childhood - no psychiatric disorder - no remorse.
Circumstantial evidence - appeal based on points not taken at trial - Rule 4 Criminal Appeal Rules.
Whether miscarriage of justice.
Appeal dismissed.
205
JIONE, Steven - CCA, 21.6.2007
Hodgson JA, Grove & Simpson JJ
Citation: R v Jione [2007] NSWCCA 170
Crown appeal.
Maliciously inflict GBH with intent.
8y with a NPP of 5y.
The respondent inflicted a number of brutal beatings upon the victim. The victim was reduced to a vegetative state without any prospect of recovery.
Assessment made by sentencing judge that the offence was in the middle range of seriousness.
Whether assessment manifestly wrong - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 12y with a NPP of 8y.
206
TRAN, Ty - CCA, 22.5.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: Tran v R [2007] NSWCCA 140
Sentence appeal.
Supply heroin on 5 separate occasions; deemed supply of heroin.
Total sentence of 4 y with a NPP of 3y.
There was evidence that on 4 separate occasions the applicant supplied heroin in packages weighing approx 5 grams. On the 5th occasion, he sold 56 grams of heroin. On that day, the applicant was found to be in possession of a further 75 grams of heroin, which gave rise to the 2nd charge. The sentencing judge found that the applicant was involved in a commercial business operating 'above the street level of sales'.
Partly concurrent sentences - principle of totality - whether overall sentence excessive.
Appeal dismissed.
207
WITCHARD, Kevin Allan - CCA, 19.6.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: R v Witchard [2007] NSWCCA 167
Crown appeal.
Robbery in company; assault with intent to rob with wounding; + 3 matters on a s.166 certificate (common assault, assault officer in execution of his duty, resist officer in execution of his duty).
Total sentence of 3 y with a NPP of 1 y.
The respondent & his co-offender committed the above offences on 3 men who were waiting for a train on a platform at Kingswood railway station. One of the victims eventually managed to activate the emergency help point button. Police arrived at the station & approached the respondent to place him under arrest, whereupon he attempted to assault them. The respondent was tackled to the ground, restrained & arrested. His co-offender was arrested a short distance away without incident. At the time of the offences, the respondent was on bail for an assault of his girlfriend. He was subsequently sentenced for this assault to a term of 7m with a NPP of 4m.
Aged 18 at time of offences - Aboriginal - educated to Year 8 - left school at age 15 - employed in various labouring positions - has 2 children from 2 separate relationships - problems with drugs & alcohol - has not sought treatment - failed a urine test since being in custody where he has used cannabis.
Sentencing for multiple offences - whether Fernando principles relevant - whether failure to consider Henry guideline - approach in relation to offences with standard NPP.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 5y with a NPP of 3y.
208
SCICLUNA, Stephen Joseph (No.2) - CCA, 21.6.2007
McClellan CJ at CL, Adams & Howie JJ
Citation: Scicluna v R (No.2) [2007] NSWCCA 172
Re-opening of conviction appeal.
Failure by majority to deal with all grounds of appeal.
Knowingly take part in manufacture of methylamphetamine; supply methylamphetamine; possession of precursor (hypo phosphorous acid); possession of prohibited weapon (stun gun).
Total sentence of 4y 5m with a NPP of 2y 11m.
Judgment in this matter was given on 30.4.2007: see Scicluna v R [2007] NSWCCA 120. By majority, the appeal was dismissed, Adams J dissenting. After judgment was delivered, the justices became aware that they had omitted to deal with one ground of appeal in relation to one of the counts. The parties were advised that the Court intended to reopen the matter to deal with the remaining ground of appeal but that it did not require further submissions.
Conviction appeal on all counts dismissed.
209
NEWMAN, Haydon John - CCA, 18.4.2007 - 173 A Crim R1
Spigelman CJ at CL, Bell & Price JJ
Citation: Newman v R [2007] NSWCCA 103
Challenge to jurisdiction of NSW CCA - instituted as a precautionary measure.
3 x assault; 1 x malicious wounding.
Mental health - statutory interpretation of s.10(4) Mental Health (Criminal Procedure) Act 1990 - purpose of scheme established by Mental Health (Criminal Procedure) Act 1990 - discretions available to trial judge - 'inappropriate to inflict any punishment'- meaning of 'any punishment'- applicability of sentencing principles - s.5F(3)(b) Criminal Appeal Act 1912 - whether order pursuant to s.10(4) of the Mental Health (Criminal Procedure) Act 1990 an interlocutory order for purposes of s.5F(3)(b) Criminal Appeal Act 1912.
Proceedings instituted as a precautionary measure by reason of challenge to jurisdiction of CCA - challenge to jurisdiction rejected - precautionary proceedings proven to be unnecessary.
Proceedings dismissed with no order as to costs.
210
SHEPHERD, Michael - CCA, 19.6.2007
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Shepherd v R [2007] NSWCCA 166
Sentence appeal.
2 x BE&S from dwelling.
Total sentence of 3y with a NPP of 2y 3m.
Failure by legal representatives to provide sentencing judge with evidence - evidence now available confirming applicant's mental health problems - whether matter should be remitted to DC.
Appeal allowed: resentenced to a total of 3y with a NPP of 2y.
211
WARBY, Kevin William - CCA, 21.6.2007 - 171 A Crim R 575
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Warby v R [2007] NSWCCA 173
Sentence appeal.
Act with intent to persuade person to be called as a witness in a judicial proceeding to give false evidence.
2y with a NPP of 1 y.
On 17.9.2004 the applicant was arrested & charged with 2 counts of larceny. During their investigations, police obtained a statement from Rebecca Clarke who was then aged 16. That statement was served as part of the brief of evidence. On 4.3.2005 Ms Clarke was served with a subpoena to give evidence at the summary hearing, listed for 18.3.2005. On 9.3.2005 the applicant phoned Ms Clarke & about 15 minutes later he arrived at her house. He started to talk to her about his court matter & told her to tell police that he was not involved. He also told her that when she went to court to 'just tell them I wasn't involved'Ms Clarke felt scared & uneasy following this conversation & 3 days later informed police about it. On 17.3.2005 the applicant attended the police station & was advised of the allegation made by Ms Clarke. He declined to be interviewed & was then charged. On 18.3.2005 the applicant entered pleas of guilty to the larceny charges. On 3.8.2006 his solicitor advised the DPP that the applicant would enter a plea of guilty to the charge of influencing a witness on 7.8.2006, the day the matter was listed for trial.
The applicant was sentenced for an aggravated form of the offence although he had pleaded guilty to the non-aggravated form - whether sentence manifestly excessive.
Appeal allowed: resentenced to 16m with a NPP of 12m.
212
CARRION, Jeffrey - CCA, 21.6.2007
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Carrion v R [2007] NSWCCA 174
Sentence appeal.
Supply MDMA (ecstasy).
2y 3m with a NPP of 12m.
Police received information that a male bearing the applicant's description was involved in supplying drugs at the Beverly Hills Hotel. When they arrived at the hotel, police spoke to the applicant who told them he had walked there, however, they noticed his car parked nearby. A search of the interior of the car using a drug detection dog indicated the presence of drugs. Police then searched the vehicle by hand & found a pack of Tic Tacs, inside of which were 62 small white ecstasy tablets (12.7 grams, with a purity of 38%).
Aged 45 at time of offence - guilty plea - caring father - sole carer of daughter aged 21 & sons aged 13 & 14 - minor criminal history - prospects of rehabilitation - IQ of 75 - no previous imprisonment.
Failure in finding applicant's mental capacity of no relevance - general deterrence - whether sentence manifestly excessive.
Appeal dismissed.
213
CAN, Vural - CCA, 27.6.2007
Giles JA, James & Harrison JJ
Citation: Can v R [2007] NSWCCA 176
Conviction and sentence appeal.
1 x robbery in company with wounding.
8 y with a NPP of 5 y.
Applicant represented himself on appeal.
There had been an earlier trial on the above charge in March 2005 which was aborted after the appellant discharged his counsel at that trial.
The Crown case at trial was that the appellant & a co-offender robbed a firm of a quantity of diamonds. They also robbed a man of 2 mobile phones & wounded that man, who became the principal Crown witness.
Identification evidence - photographic identification - com-fit photos - whether verdict unreasonable - whether sentence excessive.
Appeal dismissed.
214
WINTERS, Christopher Paul - NSW SC, Bell J, 13.6.2007
Citation: Attorney General for the State of NSW v Winters [2007] NSWSC 611
Judgment.
Application for interim detention order.
Serious sex offender - child victims - multiple offences - defendant in 'high risk'category for reoffending - employed methods of increased sophistication in enticing children into defendant's home.
Order: Defendant to be detained at a correctional centre on an interim basis for a period of 28 days.
Other orders made.
215
SASTERAWAN, Wahya - CCA, 28.6.2007 - 174 A Crim R 514
Basten JA, Grove & Hidden JJ
Citation: Sasterawan v Morris [2007] NSWCCA 185
Stated case.
Mr Sasterawan was a licensed taxi driver. On 29.3.2005, he was convicted at Parramatta Local Court of 3 offences against s.178BB Crimes Act 1900 (NSW) . Each charge related to claiming moneys by fraudulently altering Cabcharge dockets. A $300 fine was imposed for each charge & orders made as to costs. The court attendance notices for the hearing had been issued by an officer of the Ministry of Transport (Judith Morris).
The defendant appealed to the DC. As in the LC, the charge before the DC was brought under s.178BB Crimes Act. However, while the charge in the LC was that the defendant 'made or published'or 'concurred in making or publishing'Cabcharge dockets, the charges in the DC proceedings were circumscribed to 'the publishing of a statement'On 7.9.2005, Nicholson DCJ dismissed the appeal & upheld the magistrate's orders as to penalty & costs. After erroneously seeking to institute appeal proceedings in the Court of Appeal, the defendant obtained a form of case stated from Nicholson DCJ. The stated case was sought & submitted out of time & the defendant sought an extension of time from the CCA pursuant to s.5B(2) Criminal Appeal Act 1912.
Whether an officer of the Ministry of Transport had authority to commence the proceedings in the LC - whether the DC had jurisdiction to rehear the prosecution instituted by an officer of the Ministry of Transport - whether the DC erred in proceeding to deal with the appeal before it by reference to charges which differed from those before the LC.
Held: Legal errors sought to be raised lacked merit.
Questions answered and orders made.
216
ABREU, Jeffrey Antonio - CCA, 21.6.2007
Beazley JA, Grove & Simpson JJ
Citation: Abreu v DPP [2007] NSWCCA 183
Stated case.
Hearing in DC on appeal from LC - findings of fact - limited nature of procedure affirmed - whether issues raised should have been considered - affirmative answer.
Questions answered.
Matter remitted to DC.
217
DOMINEY, Darren John - CCA, 21.6.2007
Beazley JA, Grove & Simpson JJ
Citation: Dominey v R [2007] NSWCCA 182
Sentence appeal.
BE&S; robbery; + Form 1 offence (assault police officer).
Total sentence of 6y with a NPP of 4y.
The applicant broke into a home unit & stole a large number of items, including jewellery & electrical items, the estimated value of which was $17,870. The robbery offence took place on another occasion when the applicant stole a mobile phone from a man in the street. After police arrested the applicant, he was taken to hospital to be treated for some unrelated injuries. Whilst there, he started using loud & vulgar language, despite requests by police & hospital staff to stop. When a police officer tried to calm him down, the applicant spat in his face.
Guilty plea - drug & alcohol use - drug-induced psychosis.
Whether error in not taking into account previous sentence for larceny - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5 y with a NPP of 3 y.
218
OLOITOA, Fitu - CCA, 4.4.2007
McClellan CJ at CL, Hoeben & Hall JJ
Citation: R v Oloitoa [2007] NSWCCA 177
Crown appeal.
Aggravated entry (in company) with intent to commit serious indictable offence (armed robbery); aggravated sexual intercourse without consent (threat to inflict ABH with knife).
Sentenced to a total of 12 y with a NPP of 6 y.
The respondent was one of 3 men who forced their way into the house of a 32 year old woman & raped her. Four children, all under the age of 15, were in the home at the time.
Aged 24 at time of offending - guilty plea - born in Samoa - came to Australia at age 14 - alcohol & gambling problems - multiple prior offences, including offences of violence - offending started when still a juvenile - poor intellectual ability - moderate risk of sexual recidivism - high risk of violent recidivism - heavily entrenched in anti-social lifestyle - need for intensive case management & supervision by Probation and Parole Service.
Whether sentences manifestly inadequate.
Appeal allowed: resentenced to a total of 13 y with a NPP of 9y 9m.
219


ASSAFIRI, Wassim Saad - CCA, 19.6.2007
Basten JA, Grove & Howie JJ
Citation: Assafiri v R [2007] NSWCCA 159
Sentence appeal.
3 x make false statement (s.29(4)(b) Financial Transactions Reports Act 1988 (Cth) - 'money laundering'); 1 x possess property reasonable suspected of being proceeds of crime (s.400.9(1) Criminal Code (Cth) - 'goods in custody); + 19 offences of money laundering taken into account; + schedule of 'related offences'.
Total sentence of 3y 9m with a NPP of 1y 11m 23d.
The applicant was involved in the laundering of money to be sent overseas. He used 2 false identities in which he purchased 2 companies & opened 5 bank accounts, one in the name of one of his false identities & 2 in the name of each of the companies. In total, he transferred $465,942 to banks in Lebanon & Indonesia. He intended transferring a further $200,000 to a bank account in Lebanon. The sums of money involved were generally in the amount of $9,500 in order to avoid the compulsory notification limit under s.15 Financial Transactions Reports Act 1988 (Cth).
When sentencing the applicant, the sentencing judge intended imposing an overall sentence of 3y & ordered his release on recognizance after serving 1y 11m & 23d. The judge actually sentenced the applicant to 2y on the first count, 3y on counts 2 & 3 (those sentences all to be concurrent) with a sentence of 9m for count 4 (cumulative upon the sentences on the first 3 counts). For all the related offences he sentenced the applicant to 6m except for 2 matters in respect of which the applicant was sentenced to 2m on one & 9m on the other. Those sentences were all concurrent between themselves & with the sentences for the first 3 counts on the indictment. The result was an overall sentence of 3y 9m. Although the sentencing judge purported to discount the sentence by 20%, this was not reflected in the overall sentence. Another difficulty with the sentences was that it appeared the judge took into account the matters on the form prescribed pursuant to s.16BA when sentencing for all offences. Although he does not say that, he also did not indicate on which of the offences the matters were taken into account.
No priors - generally of good character - good prospects of rehabilitation.
Application of s.16BA Crimes Act (Cth) - assistance to authorities - whether sentence excessive.
Appeal allowed: resentenced to 2y 5m with a NPP of 1y 5m.

See also:  Assafiri v R (No.2) [2007] NSWCCA 356 - Re-opening of proceedings to correct errors in sentencing.

220
GIBBS, Jasmynd - CCA, 21.6.2007
Hodgson JA, Grove & Simpson JJ
Citation: Gibbs v R [2007] NSWCCA 171
Sentence appeal.
BE&S (aggravated, in company): Form 1 offence (BE&S).
Total sentence of 2y 3m with a NPP of 15m.
All offences involved residential premises where various items were stolen. The Form 1 offence was committed by the applicant acting alone. Following arrest, the applicant was granted conditional bail.
Aged 18  at time of offending - guilty plea - of Aboriginal descent - mother accepted responsibility for applicant's behavioural difficulties, condemning her own mothering skills - applicant taking appropriate steps to deal with his alcohol consumption - prospects of rehabilitation - special circumstances - departure from statutory ratio - priors - subject to a bond at time of offending.
Guilty plea - pre-sentence residential rehabilitation - parity - whether sentence excessive.
Appeal allowed: resentenced to 2 y with a NPP of 12m.
221
TAN, Yonky - NSW SC, Price J, 29.6.2007
Citation: R v Tan [2007] NSWSC 684
Remarks on Sentence.
Murder.
The deceased's brother-in-law owed the prisoner (a drug dealer) several hundred thousand dollars. The prisoner contracted a man to splash acid on the deceased's face to scare the brother-in-law out of hiding, but the man refused. Instead, the man recruited 2 other hitmen. The hitmen ultimately went to the deceased'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.
Joint criminal enterprise to inflict GBH - contract attack - extreme culpability - worst category of offence of murder.
Sentenced to life imprisonment.
222
ARNOLD, Robyn Gay - CCA, 29.6.2007
Campbell JA, Hidden J, Smart AJ
Citation: Arnold v R [2007] NSWCCA 188
Sentence appeal (application for leave).
3 x BE&S.
Total sentence of 5y with a NPP of 3y.
All offences were committed at residential premises.
Born in 1969 - guilty plea - deprived childhood - drug abuse since age 14 - extensive criminal history starting at age 12 - on 2y GBB at time of first 2 offences - on bail for those offences when 3rd offence committed.
Medical condition - special circumstances - discount - whether sentence excessive.
Leave to appeal refused.
223
FLEMING, David Graham - NSW SC, Studdert J, 29.6.2007
Citation: R v Fleming [2007] NSWSC 673
Remarks on Sentence.
Murder.
The prisoner was found guilty of the murder of a young woman, which took place more than 20 years ago. Recent advances in DNA technology prompted detectives from the NSW unsolved homicide team to reopen the case. Police arrested the prisoner following the matching of his DNA profile to samples taken from the deceased's body after it was found at Spains Lookout at Neutral Bay.
Crime of a predator - vulnerable & unsuspecting victim - crime motivated by desire for sexual gratification - high degree of violence.
Aged 30 at time of offence - now aged 54 - married - no priors in NSW - convicted of rape in Qld - personality disorder - depressive illness - intelligent & articulate - pre-trial psychiatric evidence that fit to be tried - no psychiatric defence.
Sentenced to 21y with a NPP of 16y.
224
KJR - CCA, 29.6.2007 - 173 A Crim R226
McClellan CJ at CL, Simpson & Rothman JJ
Citation: KJR v R [2007] NSWCCA 165
Conviction and sentence appeal.
4 x carnal knowledge; 1 x indecent assault; 1 x AOABH.
12y with a NPP of 9y.
The victim in each of the above offences was the appellant's daughter, whose age at the time of the offences was between 9 & 13 years. A further charge was preferred alleging that the appellant committed an act of indecency on his younger daughter, however, he was not convicted of that offence.
Whether inadequate directions on tendency evidence - failure to give appropriate warning concerning delay - whether error in not considering special circumstances - whether sentences manifestly excessive.
Appeal dismissed.
225
WRAY, Garry John - CCA, 21.6.2007 - 171 A Crim R 583
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Wray v R [2007] NSWCCA 162
Sentence appeal.
Count 3: AOABH - 4m FT;
Count 4: AOABH - 6m FT;
Count 5: AOABH - 6m FT;
Count 6: sexual intercourse with child aged 15 - 3y FT;
Count 7: assault - 1m FT;
Count 8: sexual intercourse without consent - 7y with 5y 3m NPP.
All sentences were concurrent, commencing on 15.8.2001.
All offences were perpetrated upon one complainant, who was aged 15 years at the time.
Not guilty verdicts were entered on counts 1&2.
Protective custody - exclusion from programmes - effect of administrative decisions on sentence - fresh evidence - totality - application of Pearce 194 CLR 610.
Appeal allowed in relation to sentence on count 8: resentenced on that count to 6y with a NPP of 4y 3m.
226
STEPHENSON, Darren Robert - NSW SC, Hidden J, 29.6.2007
Citation: R v Stephenson [2007] NSWSC 672
Remarks on Sentence.
Manslaughter.
The 27 year old victim had been in a relationship with the 43 year old offender for approx 8 years prior to the victim's death. The relationship was a volatile one. The victim won $10,000 in a competition run by a radio station. From about 5:00pm that day, she & the offender were at the offender's home, celebrating the win. Throughout the evening they consumed alcohol & drugs. In the early hours of the following morning, an argument developed, during which the offender punched the victim several times to the head with a closed fist. The victim lost consciousness. The offender dialled 000 & was given directions on how to perform CPR but was not able to restart the victim's breathing. Ambulance officers attended & notified the police. The victim died in hospital in the afternoon of the same day. A post-mortem examination revealed that the direct cause of death was a traumatic basal subarachnoid haemorrhage.
Sentenced to 6y with a NPP of 3 y.
227
CORNWALL, Raymond Barry - NSW SC, Price J, 2.7.2007
Citation: Attorney General for the State of NSW v Cornwall [2007] NSWSC 716
Judgment.
Application for interim detention order.
Serious sex offences - high risk category for reoffending.
ORDERS:
1. Pursuant to s.16(1) of the Crimes (Serious Sex Offenders) Act 2006, the defendant Raymond Barry Cornwall be detained in a correctional centre on an interim basis for a period of twenty-eight days from 7 July 2007.
2. Order pursuant to s 20(1) of the Act that a warrant issue for the committal of Raymond Barry Cornwall to a correctional centre for the period specified in order 1 above.
3. Order that two qualified psychiatrists conduct separate psychiatric examinations of Raymond Barry Cornwall and that those two psychiatrists furnish reports to the Supreme Court of the results of those examinations on or before 4pm on Friday, 20 July 2007. I direct the defendant is to attend those examinations.
228
LEONARD, Geoffrey William - CCA, 3.7.2007
Spigelman CJ, James & Hislop JJ
Citation: Leonard v R [2007] NSWCCA 197
s.5F appeal against refusal to grant permanent stay of proceedings.
Use carriage service (Internet) to make available child abuse material.
The Crown alleges that on the website the applicant published a 124 page article entitled 'Punished for Love'Within this article there was an edited police fact sheet & edited police statements of 2 males & of their father, concerning sexual acts committed on the 2 males (brothers then aged 13 years & 16 years) by the applicant during 1989. It is the edited police fact sheet & edited police witness statements which are alleged to constitute child abuse material, the subject of the charge.
Operation & effect of Commonwealth Constitution - restrictions on Commonwealth & State legislation - rights & freedoms implied in the Commonwealth Constitution - freedom of political communication - whether s.474.22 Criminal Code places an impermissible burden on the freedom of communication. - offences against decency & morality - publication of child abuse material on the Internet - interpretation of s.474.22 Criminal Code - exercise of discretion - whether error in refusal to grant permanent stay.
Leave to appeal refused.
229
NAJI, Ibrahim - CCA, 29.6.2007
Spigelman CJ, James & Hislop JJ
Citation: R v Naji [2007] NSWCCA 198
Crown appeal.
2 x robbery whilst armed with offensive weapon.
2y suspended sentence.
In the early hours of the morning, the respondent entered a day/night convenience store holding a pair of scissors & held up a 26 year old sales assistant who was stocking the shelves. He punched the victim in the stomach & said 'Take out all your money or I'll kill you'He removed approximately $250 from the cash drawer, punched the victim in the stomach with a closed fist & demanded that he not call the police or 'I'll kill you'Ten minutes later on the same morning he entered a 7-Eleven convenience store, again armed with the same pair of scissors. He held up a 24 year old console operator who was seated behind the counter. He pressed the scissors against the kidney area of this victim while pulling him off the chair by the collar of his shirt & demanded that he open the till. He stole approximately $500, holding the blades of the scissors at the victim's neck. Again he demanded that he not call the police or 'I'll kill you'.
Aged 24 at time of offending - substantial drug problem - previous conviction for steal from person - on a 12 month bond for that offence at time of above offences.
Whether sentence manifestly inadequate - Henry sentencing principles.
Appeal allowed: respondent resentenced to 4y with a NPP of 2y.
230
BURNES, Ryan Barry - NSW SC, Fullerton J, 29.6.2007
Citation: R v Burnes [2007] NSWSC 298
Remarks on Sentence.
Murder.
The offender shot the deceased in cold blood on the orders of a man who was involved in the drug trade.
Guilty plea - assistance to authorities - history of drug abuse - history of mental disorders - agreed statement of facts contradicted by supplementary material - remorse.
Sentence: 18y with a NPP of 13 y.
231
TAYLOR, Nathan Andrew - CCA, 4.7.2007
Basten JA, Grove & Howie JJ
Citation: Taylor v R [2007] NSWCCA 191
Sentence appeal.
1 x ongoing supply of methylamphetamine; 1 x supply methylamphetamine; 1 x supply cannabis; 1 x act with intent to pervert course of justice.
Total sentence of 4 y with a NPP of 3y.
A police task force was formed to investigate the large-scale drug distribution & supply network involving the appellant & his brother. In December 2004, an undercover police operative attended the appellant's home & purchased some amphetamine & cannabis. The drugs were then analysed. In February 2005, similar supplies were made by the appellant.
Whether sentences manifestly excessive - whether error in not finding special circumstances.
Appeal dismissed.
232
THORNTON, Ronald James - CCA, 21.6.2007
Tobias JA, Latham & Fullerton JJ
Citation: Thornton v R [2007] NSWCCA 164
Conviction and sentence appeal.
1 x enter dwelling with intent; 10 x sexual intercourse without consent; 1 x attempt sexual intercourse without consent; 1 x indecent assault; 1 x attempt to choke.
Total sentence of 12 y with a NPP of 10y.
Whether inconsistent findings on charges relating to simultaneous acts are unreasonable or unsupportable - where 'something additional'to complainant's evidence available for one charge but not the other - special circumstances - principle of totality - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed in part, resulting in a total sentence of 12 y with a NPP of 9y.
233
BIKHIT, Samuel - CCA, 13.7.2007
Beazley JA, Grove & Simpson JJ
Citation: Bekhit v R [2007] NSWCCA 202
Sentence appeal.
2 x accessory after the fact to fraud.
Total sentence of 1 y with a NPP of 1y.
Guilty pleas - parity - objective criminality - no loss to alleged victim demonstrated on prosecution case attributable to applicant's conduct - inability of Crown to identify applicant's criminality - special circumstances - application of s.10A Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: sentence quashed; applicant resentenced under s.6(3) Criminal (Sentencing Procedure) Act 1999 to the effect that proceedings be disposed of on the basis that no other penalty be imposed; order made for applicant's immediate release.
234
SHEPHERD, Robert Raymond - CCA, 13.7.2007
Beazley JA, Grove & Simpson JJ
Citation: Shepherd v R [2007] NSWCCA 203
Conviction appeal.
1 x aggravated sexual intercourse without consent; 1 x aggravated indecent assault.
The complainant was allegedly gang-raped at a party.
Inadequate directions on mistaken belief that complainant was consenting - failure to direct on impact of complainant's intoxication on proof of lack of consent - error in summing up to jury on basis that Crown case invited jury to consider 'why would the complainant lie?'- successful appeal by alleged co-offender: see South v R [2007] NSWCCA 117.
Appeal allowed: new trial ordered.
235
LEWINS, Scott Andrew - CCA, 4.7.20007 - 175 A Crim R 40
Basten JA, Grove & Howie JJ
Citation: Lewins v R [2007] NSWCCA 189
Sentence appeal.
4 x BE&S.
Total sentence of 10y with a NPP of 7y.
The applicant & his co-offender were professional thieves who, in 2002 & 2004, embarked upon a course of stealing from commercial premises in the Hunter region whenever the opportunity arose. The reason for their being crime-free in 2003 was that both were serving prison terms in that year. The only ground argued in support of the applicant's appeal against sentence was the alleged disparity between the sentences imposed upon the applicant & those imposed upon his co-offender. The same judge sentenced both the applicant & the co-offender, but on different occasions. The co-offender received sentences totalling 3y with a NPP of 18m, despite the fact that he was before the court for more offences than the applicant, had matters of significant aggravation not present in the applicant's case & had a worse record.
Ellis discount misapplied - whether disparity so gross as to invite intervention.
Appeal allowed: resentenced to a total of 8y with a NPP of 5 y.
236
KLEIN, Gaby Michael - CCA, 13,7,2007 - 172 A Crim R 290
Beazley JA, Grove & Simpson JJ
Citation: Klein v Regina [2007] NSWCCA 206
Leave to appeal against conviction.
Murder.
24y with a NPP of 18y.
The appellant was convicted of the murder of the deceased, who was shot dead in his business premises, a mobile phone retail shop on Victoria Road, Gladesville: see  R v Klein[2005] NSWSC 1222. The appellant was in the vicinity of the shop around the time of the shooting. Shortly afterwards he went to the home of a friend, Jacob Compagnon, in Gladesville, from where he phoned Jacob Compagnon. Jacob Compagnon returned home & agreed to drive the appellant to Danny Kalischer's home at Kenthurst. In an induced statement given to the NSW Crime Commission, Jacob Compagnon said that the appellant had confessed to the murder of the deceased. However, at trial he said that that statement was a lie. Thereafter, the Crown cross-examined Jacob Compagnon pursuant to s.38 Evidence Act 1995 (NSW) during the course of which the Crown read to Jacob Compagnon earlier statements he had made & his evidence at the committal in which he said that the appellant said that he had killed the deceased. The Crown & counsel for the appellant agreed with the trial judge that the prior inconsistent statements could only be used in relation to the credit of Jacob Compagnon. However, the trial judge directed the jury that if they were satisfied beyond a reasonable doubt that Jacob Compagnon's account of the appellant's confession was truthful & if they were satisfied beyond a reasonable doubt that the confession was the truth, then not only would they find the appellant guilty, but had a duty to do so.
Misdirection as to confession to 3rd party - hearsay evidence - admissibility of witness' prior inconsistent statements - whether error in directing jury as to use to be made of witness' prior inconsistent statements.
Conviction appeal allowed: new trial ordered.
237
KAMM, William - CCA, 9.7.2007
Hodgson JA, Grove & Simpson JJ
Citation: Kamm v R [2007] NSWCCA 201
Conviction and sentence appeal.
Counts 1,2,3&5: aggravated act of indecency on child under 16;
Count 4: aggravated sexual intercourse with child under 16.
Total sentence of 5y with a NPP of 3 y.
All offences were alleged to have taken place in 1993 when the complainant was aged 15. On the 9th day of the trial, it was noted that the appellant (also known as 'The Little Pebble') had been charged on the 4th count under s.66C(4) Crimes Act 1900, which did not exist in 1993. What did exist in 1993 was a similar offence under ss.66(1) & 66(2), the difference being that the range of ages under those provisions was 10 to 16 rather than 14 to 16. Over objection by the appellant's counsel, an amended charge was read out to the appellant & the appellant was required to enter a plea.
Amendment to charge during trial - whether necessary for jury to be resworn - note from jury asserting observation of coaching of one defence witness by another - direction to jury to disregard observation - whether jury should have been discharged - whether sentence excessive.
Appeal dismissed.
238
TO, Si Thanh - CCA, 5.7.2007 - 172 A Crim R 121
Handley AJA, Hulme & Hall JJ
Citation: R v To [2007] NSWCCA 200
Crown appeal.
Aid, abet, counsel or procure the importation of a commercial quantity of methylamphetamine.
17y with a NPP of 10 y.
The respondent & others were involved in the large-scale importation of methylamphetamine. There was no evidence that the respondent knew the precise quantity or value of the drugs but he knew that they were hidden in a speedboat that had been shipped in a 40ft container & that the drugs were secreted in 3 different places on the speedboat. The drugs were contained in 46 plastic bags (gross weight 45.83kgs; 34.8kgs pure methylamphetamine; wholesale value at least $5million). The sentencing judge found that the respondent had a managerial role in the importation, requiring him to be sentenced as a principal.
Whether sentence manifestly inadequate - assessment of respondent's role - discount for admissions at trial - starting point.
Appeal allowed: respondent resentenced to 25y with a NPP of 15y.
239
MIH - CCA, 5.7.2007
Campbell JA, Hidden J, Smart AJ
Citation: MIH v R [2007] NSWCCA 199
Conviction appeal.
1 x manslaughter of infant son; 1 x maliciously inflicting GBH upon the infant.
The above offences were committed upon the applicant's 3 month old son. An autopsy report indicated multiple injuries, both old & new.
Admissions - judicial discretion to include or exclude evidence - whether alternative hypothesis concerning how injuries inflicted created reasonable doubt.
Appeal dismissed.
240
HVN - CCA, 17.7.2007
Tobias JA, Latham J, Mathews AJ
Citation: HVN v R [2007] NSWCCA 207
Sentence appeal.
1 x cultivate commercial quantity cannabis.
2y with a NPP of 1y.
Police executed a search warrant on the applicant's premises where they found 131 mature cannabis plants with an average length of 100cm in a downstairs garage area, as well as 217 cannabis plants of about 20cm in length in the upstairs rooms of the house. There were 28 large lampshades, 2 large air filters & 22 transformers in various locations throughout the house. Technicians from Integral Energy identified the diversion of a little over $10,000 worth of electricity from the main supply. Various chemicals, fertilisers, pots & other equipment such as a surveillance camera & monitor were located during the search. The value of the drugs found was estimated to be not less than $696,000. Police also seized 31 grams of cannabis contained in a resealable bag. A co-offender, who had been recruited by the applicant to water the plants, pleaded guilty & offered to give evidence against the applicant. The applicant entered a plea of guilty 3 days before his trial.
Guilty plea - discount - whether sentence excessive.
Appeal dismissed.
241
JMV - CCA, 9.7.2007
Giles JA, Hidden & Harrison JJ
Citation: JMW v R [2007] NSWCCA 187
Conviction and sentence appeal.
1 x assault with intent to rape child under 16; 1 x act of indecency child under 16; 1 x assault with act of indecency child under 16; 2 x carnal knowledge child under 16.
Total of 9y with a NPP of 5y.
The complainant was aged 14 at the time of all offences.
Whether miscarriage of justice due to evidence not produced by appellant's legal representatives - failure of legal representatives to act on instructions or directions - false or misleading evidence allegedly given by police - media influence - fresh evidence - age - ill-health - whether sentence excessive.
Appeal dismissed.
242
COURTNEY, Lisa Michelle - CCA, 4.7.2007 - 172 A Crim R 371
Basten JA, Grove & Howie JJ
Citation: Courtney v R [2007] NSWCCA 195
Sentence appeal (extension of time).
1 x assault with intent to rob whilst armed with offensive weapon (knife); 1 x robbery whilst armed with offensive weapon (knife).
Concurrent limiting terms of 5y.
In each case, the victim was a woman who was alone in a public place. The appellant was arrested, a current order for parole was revoked & she commenced to serve the balance of that parole. The appellant was subsequently found unfit to be tried for the above offences & a special hearing took place. Following findings of proof of the commission of the offences on the limited evidence, concurrent limiting terms of 5y were imposed to commence at the expiry of the balance of parole. The appellant has been reviewed from time to time by the Mental Health Review Tribunal. The Tribunal found that she posed a severe risk of self-harm & harm to others. The appellant has remained in prison detention, it being found by the Tribunal that there is no hospital capable of accommodating her because of her ongoing problems of violence.
Whether discretion of sentencing judge in setting limiting terms miscarried.
Appeal dismissed.
243
JW - NSW SC, Simpson J, 24.7.2007 - 172 A Crim R 483
Citation: JW v Blackley & Anor [2007] NSWSC 799
Interim order for forensic procedures - plaintiff a patient in psychiatric unit - another patient in psychiatric unit reports assault & rape by plaintiff - plaintiff incapable person by reason of psychiatric condition - plaintiff unable to consent to forensic procedures - purposes of forensic procedures - purposes of interim orders - statutory limit on use to be made of material obtained from forensic procedures carried out after interim order - no requirement that order specify time, place, or impose time limit on carrying out of forensic procedures - absence of interview friend or legal representative - premature application to Supreme Court.
Decision: Summons dismissed with costs.
244
SCOWEN, Marnie Krystal - NSW SC, Michael Grove J, 20.7.2007
Citation: R v Scowen [2007] NSWSC 792
Remarks on Sentence.
Accessory after the fact to murder.
At the sentencing hearing, the Crown prosecutor sought to have read victim impact statements prepared by members of the family of the deceased, however, the sentencing judge rejected those statements.
Guilty plea - scope of responsibility - assistance to principal for 2 days until surrender to police - relatives of deceased not victims of accessory crime for purpose of making victim impact statements - assessment of culpability.
Sentence: 16m less 3 days with a NPP of 12m less 3 days.
245
ZARO, Jalal - NSW SC, Howie J, 13.7.2007
Citation: R v Zaro [2007] NSWSC 756
Remarks on Sentence.
Murder.
This was a senseless killing. The offender & the deceased were friends. Both were aged 18 at the time of the murder. On the night of the murder, the offender, the deceased & some friends had been at the deceased's home playing computer games & drinking. The offender began punching & choking the deceased, then obtained a knife from the kitchen & stabbed him 7 times in the chest. Upon arrest, the offender claimed to have had no recollection of the events of the night in question.
The principal issue at trial was whether the offender was mentally ill at the time of the stabbing.
Sentence: 22y with a NPP of 16 y.
246
PARKER, Michael John - NSW SC, Kirby J, 12.7.2007
Citation: Parker [2007] NSWSC 753
Application for an inquiry under s.474D Crimes Act 1900.
Special Hearing "conviction" for manslaughter 1988 - appeal to CCA refused - earlier application under s.474D dismissed - whether grounds already determined at trial, or appeal or in reasons for refusing previous application - whether DNA tests now available - whether grounds raise a question of doubt as to guilt.
Application dismissed.
247
PHILLIPS, William Garrett - CCA, 13.7.2007
Giles JA, Latham J, Mathews AJ
Citation: Phillips v R [2007] NSWCCA 211
Conviction and sentence appeal (extension of time).
Supply heroin (84.61 grams).
5y with a NPP of 3y 9m.
Police stopped the appellant's motor vehicle when they observed it driving erratically. There was a female passenger in the front passenger seat. Both the appellant & the female appeared to be affected by drugs. Upon a search of the vehicle, police found a bag on the back seat of the vehicle, which the appellant identified as being his. Police removed some men's clothing & toiletries from the bag & found some plastic bags containing heroin under a false bottom. The appellant denied that the heroin belonged to him. The female passenger denied any knowledge of the heroin. The appellant did not give evidence at his trial & the female passenger died prior to the trial. The ultimate issue at trial was whether the accused knew that the heroin was in the bag.
Whether accused knew drug was in bag - circumstantial evidence - whether deficiency in directions - whether sentence within available range.
Appeal dismissed.
248
GAT - CCA, 17.7.2007
Adams, Howie & Price JJ
Citation: GAT v R [2007] NSWCCA 208
Sentence appeal.
Multiple sexual offences committed upon applicant's daughter & 2 grandsons.
Total sentence of 13y with a NPP of 9 y.
Multiple offences - need to ensure utilitarian discount is reflected in overall sentence - nature of abstract case for consideration of standard minimum NPP.
Appeal allowed: resentenced to a total of 10 y with a NPP of 7y.
249
PUCHALSKI, Benjamin Joshua - CCA, 23.7.2007
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Puchalski v R [2007] NSWCCA 220
Conviction appeal.
Malicious shooting with intent to do GBH; maliciously discharge loaded arms with intent to do GBH.
Sentence not stated.
The victim had stopped in the left-hand lane at traffic lights, despite wanting to turn right. When the left traffic light turned green, his vehicle remained stationary, which annoyed the driver of a 4-wheel drive vehicle immediately behind him. An altercation took place & at various times each alighted from his vehicle, abused the other & returned to his vehicle. When the victim's vehicle turned right with the lights, it was chased by the 4-wheel drive vehicle. The victim said that after turning the corner, he noticed the driver of the 4-wheel drive vehicle leaning across towards the passenger's side window holding a silver pistol. Two shots were fired. The victim moved his vehicle forward into the centre lane of the highway & the appellant fired further shots, one hitting the boot of the victim's car. The victim sped off & a little later turned left into a side street & immediately rang 000. He had noted the number plate of the 4-wheel drive vehicle. It was the Crown case that the appellant was the driver of the 4-wheel drive vehicle, despite him not being the owner.
Circumstantial case - whether jury entitled to be satisfied beyond reasonable doubt of guilt - whether necessity for Shepherd direction - committal deposition of subpoenaed witness who went overseas very shortly before trial without notifying Crown or police admitted pursuant to s.65 Evidence Act - 'not available to give evidence'- reasonable steps'- exercise of discretion under s.192 - refusal of adjournment of trial.
Appeal dismissed.
250
PATTISON, Nathan John - CCA, 29.6.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: Pattison v R [2007] NSWCCA 186
Sentence appeal.
1 x B&E; 1 x B&E dwelling house & commit serious indictable offence (larceny); 2 x receive stolen property; 1 x use false instrument; 1 x dishonestly obtain valuable thing; 1 x drive conveyance without consent; 1 x BE&S; 1 x larceny; + 4 matters on a Form 1.
Total sentence of 10y with a NPP of 7y.
Appellant broke into a dwelling house & stole property. He twice received property stolen in break & enters. He used the driver's licence of third party to hire a vehicle & failed to return the vehicle by the agreed time. He requested that the lease be extended, but was refused. He then drove away in the vehicle. The appellant broke, entered & stole from a storage tool shed. He also stole a tool-box from an open carport.
Aged 31 - guilty plea - drug abuse - suffers from ADD, dyslexia - extensive criminal history - on bail at time of offending - no remorse.
Whether sentence manifestly excessive - accumulation - totality.
Appeal allowed in part, resulting in a new total sentence of 8 y with a NPP of 6y.
251
TAN, Ken - CCA, 19.7.2007
Spigelman CJ, Kirby & Latham JJ
Citation: Tan v R [2007] NSWCCA 223
Conviction appeal.
Possess firearms; possess prohibited weapons.
A juror who was meant to attend court for jury duty in October 2006 attended in September by mistake. This was compounded by the fact that the juror who attended by mistake had the last 3 numbers of the call number shared with another juror who was called up for September, but did not in fact attend. This coincidence caused a series of events that led to the juror, who was not meant to attend for court duty on that day, to be selected on the jury that ultimately convicted the appellant.
Trial a nullity because juror became part of the jury contrary to the provisions of the Jury Act 1977 (NSW).
Appeal allowed: new trial ordered.
252
CJG - CCA, 4.7.2007
Hodgson JA, Grove & Simpson JJ
Citation: CJG v R [2007] NSWCCA 190
Conviction appeal.
3 x aggravated indecent assault of child under 10.
The appellant was found guilty of 3 out of 11 counts of sexual offences. The complainant was aged 9 years at the time of the offences. The appellant, who is the cousin of the complainant's mother, shared a house with the complainant & her family. All offences were said to have occurred in 2003. The bulk of the complainant's evidence in chief was presented to the jury by the playing of a video interview of her by an officer of DOCS made on 26 June 2003. The challenge in the CCA was against conviction only, the sentences having already expired.
Whether conviction unreasonable - whether supported by evidence - delay - whether complaint evidence plausible.
Appeal dismissed.
253
CALDERWOOD, David - CCA, 27.6.2007 - 172 A Crim R 208
McClellan CJ at CL, Hulme & Hislop JJ
Citation: Calderwood v R [2007] NSWCCA 180
Conviction and sentence appeal.
Import trafficable quantity MDMA (ecstasy).
6y 5m with a NPP of 4y.
Customs intercepted a 14kg package from Hong Kong. Inside the package, amongst other things, there were 1,000 ecstasy tablets wrapped in carbon paper & concealed inside DVD cases. The Crown case was that the appellant & another man were involved in the importation of the drugs. The quantity of drugs imported was 258.1 grams containing 99.1 grams pure MDMA. This is 180 times the trafficable quantity.
Circumstantial case - whether Crown had proved elements of offence - irrelevant parts of ROI blanked out - whether entire interview should have been excluded - whether Crown's final address & trial judge's summing up distorted & prejudicial - whether sentence manifestly excessive.
Appeal dismissed.
254
PAGE, Joseph Nathan - CCA, 21.6.2007
McClellan CJ at CL, Howie & Hall JJ
Citation: Page v R [2007] NSWCCA 175
Conviction and sentence appeal.
Conspire to cheat and defraud.
5y less 5 days with a NPP of 2 y less 5 days.
The offence involved the appellant conspiring with an unknown person or persons to cheat & defraud a women of large sums of money.
Conspiracy to defraud spanning 5 years - identification evidence - elderly victim living alone - whether indictment flawed for latent duplicity - whether prosecution failed to distinguish between primary conspiracy & consequential conspiracies - whether directions on elements of offence adequate - whether jury verdict unreasonable - whether error in failing to exclude alternate basis for conviction prior to determining culpability - whether error in taking into account overt acts of conspiracy.
Appeal dismissed.
255
COETZEE, Frans Johannes - CCA, 5.2.2007
McClellan CJ at CL, Simpson & Hall JJ
Citation: Coetzee v R [2007] NSWCCA 12
Sentence appeal.
Supply commercial quantity cocaine.
9y 3m with a NPP of 6y 9m.
Police found 24.4kgs of cocaine in a self-storage facility in Sydney. This sparked a major investigation by NSW & Federal police officers. The applicant was arrested in Tamworth.
Aged 46 - guilty plea - South African national living in Tamworth - working as a pilot - lack of remorse - no assistance to authorities - motivated by greed - previously unblemished record.
Whether error in finding applicant played a major role - whether applicant acted out of fear - whether sentence manifestly excessive - whether discount given for early plea sufficient - special circumstances justifying variation of standard NPP - impact of delay in sentencing - additional days spent in custody.
Appeal allowed insofar as sentence backdated by 9 days.
256
NELSON, David George - CCA, 25.7.2007
Tobias JA, Latham J, Mathews AJ
Citation: Nelson v R [2007] NSWCCA 221
Sentence appeal.
1 x indecent assault female (pursuant to repealed s.76 Crimes Act 1900).
14m with a NPP of 8m.
The offence was committed in 1972. The applicant pleaded guilty to the offence on 27.11.2006 & was sentenced on 30.3.2007. At the time of the offence, the complainant was aged 16 & was a resident of a Baptist children's home. She had been in that home from the age of one. Between the ages of one & 5, she was cared for by a woman who was an employee of the home. This woman later became the applicant's wife. A strong emotional bond developed between the woman & the child. Even when she no longer worked there, the woman maintained a close relationship with the child. That relationship continued, even after the woman's marriage to the applicant. The above offence was alleged to have occurred when the child spent the 1972 Easter holidays with the applicant & his wife. When she returned to the Baptist children's home, she made a detailed disclosure to a religious minister. An internal investigation took place, during which the accused denied any wrongdoing.
Sentenced on basis that other offences were committed - no evidence of other offences - range of conduct proscribed by s.76 Crimes Act 1900 not taken into account - offence not in mid-range.
Appeal allowed: resentenced to 4m FT.
257
KHAZAAL, Belal Saadallah - NSW SC, Whealy J, 13.12.2006 167 A Crim R 565
Citation: R v Khazaal [2006] NSWSC 1353
Judgment on application to restrain counsel & solicitor.
Terrorism allegations - injunction to restrain lawyers from acting - preserving integrity of judicial process - equitable principles - undertakings to protect confidential information - duty of practitioners in relation to national security information - criminal trial - right of accused to legal representation of his choice.
1. Order that the Notice of Motion herein be dismissed. I publish my reasons. 2. In relation to the Closed Court hearing, I publish a Confidential judgment. It may be distributed to the parties, other than to the NSW Bar Association and Law Society. It is not to be further disclosed or published without an order by me or another Supreme Court Judge. 3. Stand over the balance of proceedings so that undertakings, in terms agreed between the parties, be given to the Court. 4. I direct that Short Minutes be prepared for this purpose. 5. The proceedings be listed for further mention at 9.30am on Thursday 1 February 2007. 6. Costs of this and the previous motion be reserved for argument. 7. Confidential Exhibits "E", "G", "M" and 8 are to be returned to the tendering parties.
258
COOKE, Glen - CCA, 9.7.2007
Tobias JA, Latham & Fullerton JJ
Citation: R v Cooke; Cooke v R [2007] NSWCCA 184
Crown appeal; and
Leave to appeal against order revoking bonds and the imposition of periodic detention.
1 x malicious wounding in company.
Suspended sentence of 18m.
Revocation of GBB's - imposition of PD - whether breach trivial - suspended sentence & PD - deterrence.
Crown appeal dismissed.
Leave to appeal against order revoking bonds & imposition of PD granted - appeal dismissed.
259
GRAVETT, Hugh William James - CCA, 13.7.2007
Giles JA, Latham J, Mathews AJ
Citation: Gravett v R [2007] NSWCCA 210
Conviction appeal (extension of time).
Conspiracy to import commercial quantity MDMA (ecstasy).
Sentence not stated.
The appellant & 4 other accused were tried together, including Henry. Separate indictments were presented for each of them. The jury returned verdicts of guilty for 3 of the accused, including the appellant & Henry. Henry subsequently appealed against his conviction, his grounds of appeal included that the trial & conviction were nullities as the trial proceeded on more than one indictment. That appeal was upheld: see  R v Swansson; R v Henry [2007] NSWCCA 67. The Crown conceded that the appellant's appeal should be upheld.
Multiple accused - separate indictments - infringement of 'one trial one jury'rule - trial contrary to law - appellant's position not distinguishable from that of Henry.
Appeal allowed: new trial ordered.
260
WALSH, Richard James - CCA, 15.12.2006 168 A Crim R 237
LITTLE, Todd Douglas
Citation: Walsh v R; Little v R [2006] NSWCCA 406
Sentence appeal.
Walsh: Supply large commercial quantity methylamphetamine; 3 x firearm offences; aggravated break & enter with intent; steal MV; + 39 offences taken into account.
32y with a NPP of 24y.
Cut & sold 45kgs methylamphetamine over 4 years. Sophisticated & extensive operation. Large amount of weaponry in storage units. Attempted to steal ATM. Stole equipment, motor vehicles & prime mover. Involved in insurance fraud. Guilty plea - no prior convictions - member of bikie gang - drug user.
Little: Manufacture large commercial quantity methylamphetamine; supply large commercial quantity methylamphetamine; possess unlicensed firearm; possess shortened firearm; possess prohibited weapon; + 26 firearm offences taken into account.
22y with a NPP of 16 y.
Little supplied methylamphetamine to Walsh over a period of 2 years (19kgs high purity). Guilty plea.
Whether error in using life sentence as starting point - whether impermissible use of 2 tier system of sentencing - whether error in assessment of criminality of Little - whether error in finding criminality of manufacture offence greater than criminality for supply.
Appeals dismissed.
261
CLARK, Peter Frederick - NSW SC, Johnson J, 30.6.2006 66 NSWLR 640
Citation: Clark v State of New South Wales [2006] NSWSC 673
Notice of Motion filed by the defendant seeking orders that proceedings be stayed or dismissed pursuant to Part 13 r 5 Supreme Court Rules.
The plaintiff, Peter Frederick Clark, commenced proceedings against the defendant, the State of NSW, seeking damages for false imprisonment, false arrest, malicious prosecution & abuse of process regarding alleged acts or omissions of members of the NSW Police. On 11.10.2004, the proceedings were called on for hearing before Wood CJ at CL. The hearing did not commence. Senior counsel for the plaintiff informed the Court that the plaintiff possessed a cassette-tape said to contain a record of a conversation between the plaintiff & a police officer in which the police officer solicited a bribe from the plaintiff. The tape was said to be of great significance to the proceedings. The case was adjourned to allow technical analysis of the tape for use at a future hearing of the matter & the Court gave directions for this purpose. Soon after, the plaintiff destroyed the tape. The defendant sought that the proceedings be stayed or dismissed, alleging that the plaintiff's conduct constituted an abuse of process.
Practice and procedure - abuse of process - destruction of evidence - fair trial.
Held: Application granted. Destruction of cassette abuse of process. Real and substantial risk of unfair trial even with inferences favourable to defendant.
262
SAGE, Peter - CCA, 27.7.2007
Giles JA, Latham J, Mathews AJ
Citation: Sage v R [2007] NSWCCA 224
Sentence appeal.
5 x sexual intercourse with person under 16 whilst outside Australia (s.50BA(1) Crimes Act 1914); 2 x commit act of indecency on person under 16 whilst outside Australia (s.50BC(1)(a) Crimes Act 1914); + a further 5 charges under s.50BC(1)(a) taken into account pursuant to s.16BA Crimes Act 1914 .
Total sentence of 7 y with a NPP of 4 y.
Upon applicant's return to Sydney following a trip to the Philippines, the Australian Customs Service conducted a search of his luggage & photocopied numerous documents found in his possession. The documents included diary notebooks, photos of young Asian males & a hand-drawn map of the Philippines. Recorded in the notebook were a large number of male names, phone numbers & personal details, including references to sexual performance & physical appearance. Recorded in the diary were daily events with some further reference to male names & ages & translations of sexual terms from English to a Filipino language. The diary indicated that the applicant engaged in a number of sexual encounters with men & teenage boys. From an examination of the coded entries in the notebook it was evident that some of these encounters were with males aged under the age of 16 years. Several of the diary entries related to 14 & 15 year old boys. Four moths after his return to Sydney, the applicant voluntarily participated in 2 taped records of interview at the Australian Federal Police Sydney office. During those interviews, he detailed some matters but was not fully forthcoming at first as to his involvement in the criminal activity.
Whether undue weight placed on principle of specific deterrence - whether sentence manifestly excessive.
Appeal dismissed.
263
SCHOULTZ, Juanita Leslie - NSW SC, Barr J, 27.7.2007
Citation: R v Schoultz [2007] NSWSC 809
Remarks on Sentence.
Manslaughter.
The offender pleaded guilty to the manslaughter of her 9 month old baby girl.
The baby was taken to hospital 3 times during the first few months of her life due to bruising injuries. DOCS became concerned about the offender's ability to care for the baby & placed the baby into foster care. During that time, the offender had access to the baby. On some of those occasions of access, the baby's forehead & arms became bruised. During all this time, the offender continued to receive assistance of officers of her local mental health service. Proceedings in the Children's Court then followed. The Children's Court saw fit to order the baby to be returned into the care of the offender. The death of the baby occurred not long after. A post-mortem examination revealed a number of bruises & other marks over the trunk & head, one of which was on the baby's forehead. A rib was broken, there were 2 significant fractures of the skull & associated subdural haemorrhage. The severity of the fractures to the skull were exemplified by their length & by the fact that one ran through thick occipital bone, as well as by the separation of the associated lambdoid suture. The evidence showed that the baby died by having her head struck with great force, probably more than once, by or against some hard object.
Aged almost 24 at time of offence - guilty plea - regular cannabis user - predisposed towards anger, impulsivity, fluctuating moods.
Sentence: 7y with a NPP of 3 y.
264
TOWNSEND, DoreenFlorence - CCA, 14.5.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: R v Townsend [2007] NSWCCA 215
Crown appeal.
7 x defraud Commonwealth (Social Security fraud).
3y suspended sentence.
The offences involved the respondent obtaining either widows pension benefits or aged pension benefits over a period of some 30 years.
Whether sentence manifestly inadequate.
Appeal dismissed.
265
NGUYEN, Dinh Minh - CCA, 30.7.2007
Giles JA, Latham J, Mathews AJ
Citation: Nguyen v R [2007] NSWCCA 226
Sentence appeal.
1 x knowing concerned in importation of trafficable quantity heroin (38.1 grams); 1 x knowingly concerned in the importation of a trafficable quantity of methylamphetamine (10.4 grams); 1 x knowingly concerned in the importation of trafficable quantity heroin (477.8 grams); 1 x knowingly take part in supply of large commercial quantity MDMA (ecstasy, 150.478 kgs).
Total of 24y with a NPP of 18y.
The applicant was a member of a drug syndicate & was a major player in the importation of drugs. The importations in the 1st & 2nd offences were by post. The heroin was brought into Australia in a Baileys Irish Cream bottle. The MDMA was concealed in a container of marble tiles imported from Malaysia.
Various offenders - disparity in sentencing - justifiable sense of grievance - uncharged & unproven acts of criminal conduct taken into account - whether sentence manifestly excessive.
Appeal dismissed.
266
MARLIN, David John - CCA, 20.3.2007
McClellan CJ at CL, Barr & Hoeben JJ
Citation: Marlin v R [2007] NSWCCA 222
Sentence appeal.
1 x aggravated sexual intercourse without consent.
5y with a NPP of 3y.
No details of offence provided.
Applicant self-represented.
Guilty plea - 20% discount - contrition - special circumstances - 1st time in custody - age - numerous physical & psychological problems - depression - need for supervision & psychological intervention.
Inability to complete CUPIT Sex Offenders Program - whether health problems warranted intervention.
Appeal dismissed.
267
McDONALD, William Andrew - NSW SC, Price J, 27.7.2007
Citation: R v McDonald [2007] NSWSC 813
Remarks on Sentence.
Murder.
This was a stabbing murder. The offender had armed himself with a knife prior to visiting the deceased. He said that he wanted to have an altercation with the deceased. The offender claimed to have gone into a frenzy at the time of the stabbing. He further said, 'When I hit him first with it, I realised I'd done something bad. He was gargling his blood, trying to talk. I thought I'd gone that far, I may as well keep going'The offender was intoxicated when he went to the deceased's home. He then smoked some marijuana.
Aged 40 at time of murder - guilty plea - history of alcohol & substance abuse - intelligence in lower part of normal range - subject to 3 GBB's at time of murder.
Sentence: 24y with a NPP of 18y.
268
HUNTINGDON, Adam Kevin - CCA, 5.7.2007
Giles JA, James & Hislop JJ
Citation: Huntingdon v R [2007] NSWCCA 196
Sentence appeal.
1 x assault - 80d FT; 1 x assault and commit act of indecency - 20m with a NPP of 15m.
The sentences were backdated to commence on the same day.
Leave was sought to appeal against the sentence in respect of the 2nd offence.
The applicant, or the applicant & his co-offender, grabbed the victim by the throat & pushed her down onto a chair. The applicant then grabbed the victim's arms. The victim was at that stage partially clothed & covered with a blanket. The applicant removed the blanket & removed the victim's underwear, then urged a youth to look at the victim's breasts & genitalia. The victim grabbed the blanket & ran off. She suffered no physical injury.
Aged 20 - guilty plea - suffers from ADHD - drug use - extensive criminal record - on bail at time of offences.
Pre-sentence custody - aggravating factors - De Simoni principle - special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
269
TS - CCA, 5.7.2007
Giles JA, James & Hislop JJ
Citation: TS v R [2007] NSWCCA 194
Sentence appeal.
5 x armed robbery; + further 9 offences on a Form 1.
Total sentence of 7 y with a NPP of 4y.
The applicant was armed with a knife at the time of the offences. Some of the offences were committed with co-offenders.
Aged just under 16 at time of Form 1 offences & aged 16 at time of remaining offences - guilty plea - poor criminal record - on bail at time of offending - under the influence of alcohol - special circumstances - prospects of rehabilitation.
Appeal allowed: resentenced to a total of 5y with a NPP of 3 y.
270
JOHNSSON, Anne Greta - CCA, 13.7.2007
Beazley JA, Grove & Simpson JJ
Citation: Johnsson v R [2007] NSWCCA 192
Sentence appeal.
Social Security fraud: 2 x dishonestly obtain gain from Commonwealth; 2 x defraud Commonwealth public authority.
3y PD, to be released after 2y 3m & placed on 2y GBB.
The offending occurred over a period of 8 years, during which time the appellant lodged claims with Centrelink for the supporting parent's pension. When she commenced casual employment, she made false statements to Centrelink. She expressly stated that she had not worked. The total amount of overpayment the appellant received was $61,772.85.
Guilty plea - care & support of daughter - general deterrence.
Whether error in imposing PD - whether error in failure to consider s.44 Crimes (Sentencing Procedure) Act 1999 (NSW) - whether error in applying s.4K Crimes Act 1914 (Cth) - whether sentence manifestly excessive.
Appeal dismissed.
271
RICH, Lynda Ann - CCA, 5.7.2007
Giles JA, James & Hislop JJ
Citation: Rich v R [2007] NSWCCA 193
Sentence appeal.
2 x BE&S; 1 x obtain benefit by deception; + a further 7 offences on a Form 1.
Total sentence of 13y with a NPP of 5y.
The applicant broke into premises & stole various items, including a credit card, which she subsequently used. The total value of property stolen or unlawfully obtained was approx $18,000.
Aged 27 - guilty plea - has 2 children - lengthy criminal history - on parole at time of offending - drug abuse - progress towards rehabilitation - no contrition.
Whether errors in sentencing concerning planned or organised criminal activity, regard to fact applicant had children & treatment of offences on Form 1 - whether sentences manifestly excessive.
Appeal dismissed.
272
MORABITO, Gimmi - CCA, 20.4.2007
Mason P, Hidden & Rothman JJ
Citation: Morabito v R [2007] NSWCCA 126
Conviction and sentence appeal.
3 x dangerous driving causing death; 1 x dangerous driving causing GBH.
3y 3m with a NPP of 1y 3m.
The appellant was driving a prime mover towing a trailer laden with steel pipes on the Pacific Highway when the prime mover collided with a vehicle directly ahead of it. The appellant lost control of the prime mover & It then collided with 2 other vehicles. Three people in one of those vehicles died instantly on impact & the car they were travelling in burst into flames. One person in the other vehicle sustained permanent & serious injuries. The weather was fine on the day of the collision & there was good visibility. The prime mover was travelling at about 90kph at the time. The collision was put down to momentary inattention.
Aged 67 at time of collision - a truck driver with 44 years' experience - drove from Brisbane on the day of the collision & had made regular rest stops - no evidence of having consumed drugs or alcohol.
Whether verdict 'unsafe or unsatisfactory'- role of appellate court - whether verdict open to jury acting reasonably - whether sentence manifestly excessive - whether trial judge based sentence on correct level of culpability.
Appeal dismissed.
273
WILSON-WINSHIP, Justin - CCA, 27.7.2007 - 172 A Crim R 505
James, Rothman & Harrison JJ
Citation: R v Wilson-Winship [2007] NSWCCA 163
Crown appeal.
1 x armed robbery.
3y 9m with a NPP of 2y 3m.
At the time of sentence, the respondent was already serving a prison sentence for earlier offences.
The respondent, armed with a sledgehammer, robbed staff at the Commonwealth Bank in Surry Hills. He stole a total of $60,577.73.
Aged 23 at time of offence - guilty plea - was subject to parole orders for 2 BE&S offences at time of offending.
Non-applicability of Henry guideline - double counting of discount on guilty plea - assessment of objective criminality/subjective case - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6y with a NPP of 3y.
274
CORBETT, James John - HCA, 1.8.2007 - 230 CLR 606; 81 ALJR 1368
Citation: NSW v Corbett [2007] HCA 32
On appeal from the SC of NSW.
Appeal from a decision of the CA of NSW remitting a matter to the DC of NSW following a finding that a search warrant obtained pursuant to the provisions of the Search Warrants Act 1985 (NSW) was invalid.
Search made of respondent's property pursuant to search warrant - warrant authorised search for firearms - pro forma warrant referred to offence of possession of firearms with reference to repealed Firearms Act 1989 - CA found reference to repealed Act meant warrant invalid.
Whether CA erred in finding reference to repealed act made warrant invalid.
Appeal allowed.
275
DAVIES, Shane Joshua - CCA, 29.6.2007
Tobias JA, Latham & Fullerton JJ
Citation: R v Davies [2007] NSWCCA 178
Crown appeal.
1 x malicious wounding.
10m suspended sentence.
The respondent stepped between a friend & the victim who were arguing. The respondent subsequently joined in the argument. At the time, he was holding a glass of beer. The respondent struck the victim with the glass of beer. The respondent then left & the victim & another man followed him. All three of the men went to the police station where the respondent made admissions to police.
Aged 28 - guilty plea - moderately to well affected by alcohol - lower end of objective seriousness - on GBB at time of offending.
Whether sentence manifestly inadequate - whether approach to sentencing erroneous - intoxication.
Appeal dismissed.
276
BURNS, Adam - CCA, 23.7.2007
Spigelman CJ, Simpson & Harrison JJ
Citation: R v Burns [2007] NSWCCA 228
Crown appeal.
1 x supply ecstasy (MDMA) on three separate occasions - 2y suspended sentence conditional upon entering into a 2y GBB;
1 x knowingly take part in supply of ecstasy; + Form 1 (1 x supply ecstasy - fine of $10,000.
The respondent was arrested & charged following an undercover police operation targeting people selling drugs at a nightclub in Orange.
Aged 23 at time of sentencing - early guilty plea - previous good character - unlikelihood of re-offending - contrition - voluntary cessation of criminal activity & confession to offences not otherwise likely to have been detected.
Whether sentence manifestly inadequate - whether suspension of full-time custodial sentence in absence of special circumstances appropriate for offences involving supply - whether subjective features amounted to special circumstances warranting imposition of some other sentence.
Appeal dismissed.
277
CHOW, Marvyn Man Wah - CCA, 2.8.2007 - 172 A Crim R 582
Tobias JA, Latham J, Mathews AJ
Citation: Chow v R [2007] NSWCCA 225
Conviction and sentence appeal.
1 x knowingly supply commercial quantity heroin.
11y with a NPP of 8y 3m.
The Crown case against the appellant was primarily based upon intercepted & recorded mobile phone conversations between the appellant, who was in Hong Kong, & a man by the name of Micalizzi, who was in Sydney. It was alleged that during the course of these conversations, the appellant, on behalf of an unknown principal or principals, negotiated with Micalizzi the quantity & price of the heroin & caused arrangements to be set up for its supply & for the transfer of at least part payment to certain bank accounts. The phone conversations were allegedly in code & the Crown relied on expert evidence as to the possible meaning of the conversations.
Whether verdict unreasonable - use of opinion evidence regarding meaning of allegedly coded language in conversations - nature of role of appellant in drug transaction relative to that of co-offender - whether sentence manifestly excessive.
Appeal dismissed.
278
DBW - CCA 27.7.2007
Spigelman CJ, Simpson & Harrison JJ
Citation: DBW v R [2007] NSWCCA 236
Sentence appeal.
3 x sexual assault offences committed against 3 infant children.
6 y with a NPP of 3 y.
The applicant committed the offences upon his infant son & daughter & his neighbour's infant daughter.
The applicant pleaded guilty to all charges.
Whether sentence excessive - consideration of guilty plea - remarks by sentencing judge in course of submissions - consideration of aggravating circumstances.
Appeal dismissed.
279
MARCUS, Samer - CCA, 2.8.2007
Mason P, Kirby & Latham JJ
Citation: Marcus v R [2007] NSWCCA 229
Sentence appeal.
1 x demand money with menaces with intent to steal.
3 y with a NPP of 2y.
The applicant made threats to a Mr Abdallah, accusing him of owing the applicant $40,000. Abdallah protested & the applicant threatened that if he did not obtain a motor vehicle belonging to a Mr Silarsah, something bad was going to happen to Abdallah's house. Abdallah visited Silarsah & took him to see the applicant. The applicant told Silarsah to sign over his vehicle to Abdallah immediately or he would hurt Silarsah & his family. Silarsah complied. He knew of the applicant as a member of a local group engaged in extortion. In sentencing, the sentencing judge declined to quantify the amount of discount given for the guilty plea, relying upon  Markarian [2005] HCA 25.
Aged 31 at time of sentencing - guilty plea - has a 5 year old daughter from a failed marriage - prior convictions for violence & property offences - no previous imprisonment.
Failure to quantify discount for guilty plea - whether sentence manifestly excessive.
Appeal dismissed.
280
POSTLEWAIGHT, Jeremy George - CCA, 2.8.2007
Tobias JA, Latham J, Mathews AJ
Citation: Postlewaight v R [2007] NSWCCA 230
Sentence appeal.
Knowingly concerned in the supply of cocaine; + Form 1.
4y with a NPP of 3y.
A Mr Ball started to purchase quantities of cocaine, generally in one oz lots, from Kazzi. Ball said the cocaine was partly for his own use & partly for resale. The usual pattern was for the transaction to take place at Kazzi's apartment. On 3 occasions Kazzi arranged for Ball to drive his car to a particular place at a specified time. On each of these occasions the applicant went to Ball's car & placed in it the quantity of cocaine, which Ball had previously arranged to purchase from Kazzi. There was no conversation between them except, on the 1st occasion, when the applicant asked 'You Sax?'& Ball responded 'Yep'On the 3rd occasion, the amount delivered was 85.2 grams (3 ozs) of cocaine. It was this transaction that constituted the offence to which the applicant pleaded guilty. The 2 earlier transactions, which involved the delivery of 28.4 grams (1 oz) of cocaine were taken into account on a Form 1. On none of these occasions did Ball give the applicant any money.
Whether sentence manifestly excessive - sentence above normal range - role in offences overestimated - objective criminality - subjective features - special circumstances.
Appeal allowed: resentenced to 3y with a NPP of 1y.
281
RJS - CCA, 8.8.2007 - 173 A Crim R100
Spigelman CJ, Simpson & Harrison JJ
Citation: RJS v R [2007] NSWCCA 241
Conviction appeal.
Indecently assault person under age of 10.
12m with a NPP of 6m (suspended).
The appellant was found guilty by majority verdict. The offence was alleged to have been committed during the course of giving the 9 year old complainant a piggyback ride. It was alleged that the appellant placed his hand under the child's top & down her swimmer bottoms on a single occasion.
The fact that the suspended NPP had already expired & the full sentence would soon expire was a matter relevant to the determination of whether the Court should order a new trial.
Unanimous & majority verdicts - preconditions for application of s.55F Jury Act where a jury cannot agree - appropriate directions - child witnesses - cross-examination of child complainant - inconsistencies.
Appeal allowed: new trial ordered.
282
CHUNG, Francisco - CCA, 2.8.2007 - 175 A Crim R 579
Spigelman CJ, Hislop & Harrison JJ
Citation: Chung v R [2007] NSWCCA 231
Appellant convicted of conspiracy to cheat & defraud - not convicted of substantive offence - guilty plea - whether offence nonexistent because statute has overridden common law - effect of Corporations Act 2001 (Cth) s.184(2) & Criminal Code Act 1995 (Cth) Div 11.5 - no intention to displace common law - powers of prosecution - discretion to select appropriate charge - principle of non interference by courts.
Appeal dismissed.
283
NORRIS, Stephen Maxwell - CCA, 6.8.2007 - 176 A Crim R 42
McClellan CJ at CL (dissenting), Howie & Hall JJ
Citation: Norris v R [2007] NSWCCA 235
Conviction appeal.
Indecent assault; unlawful carnal knowledge of female under 16 years.
The appellant was found guilty of the above offences & was acquitted of 2 further offences (indecent assault & carnal knowledge female under 16).
Guilty verdicts on first 2 counts & acquittals on remaining 2 counts - unsafe & unsatisfactory verdict principles - test for determining unreasonableness of jury's verdict - significance of acquittals when considering unreasonableness of guilty verdicts - prosecution relying on direct evidence of complainant - making or failing to make complaint going to credibility of complainant - delay.
Appeal allowed: convictions on counts 1 & 2 set aside.
284
QUINN, Peter Andrew (AG of NSW v) - NSW SC, Hall J, 10.8.2007
Citation: Attorney General for the State of New South Wales v Quinn [2007] NSWSC 873
Application for continuing detention order.
Crimes (Serious Sex Offenders) Act 2006 (NSW) - nature of statutory standard prescribed as to the probability that a particular offender is 'likely'to commit a further serious sex offence - s.17(3) of the Act - construction of s.17(3) & the nature of the test under that provision - judgment of the Court (Bell J in Attorney-General of NSW v Tillman [2007] NSWSC 605 in relation to the construction of s.17(3) followed & applied - recommendations made for the administration of appropriate therapeutic & other assistance to assist the defendant's rehabilitation, that being one of the objects of the Act & for the development of a management plan for the future release of the defendant.
Decision: '(1) Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, the defendant is to be detained in a correctional centre for one year from the date of this order (10 August 2007). (2) Pursuant to s.20(1) of that Act, I issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in (1)'.
285
PETERSON, Stephen John - CCA, 2.8.2007
Mason P, Kirby & Latham JJ
Citation: Peterson v R [2007] NSWCCA 227
Application for extension of time to appeal against findings & orders made at the conclusion of trial.
Applicant arraigned on a charge of wound with intent to murder.
Not guilty plea due to mental illness successfully raised at trial - s.39 Mental Health (Criminal) Procedure Act 1990 - jurisdiction of court - where statute confers right to appeal against conviction - where no conviction by reason of mental illness - court has no jurisdiction - Criminal Appeal Act 1912, s.5.
Application for extension of time to bring appeal dismissed.
286
ROWNEY, Douglas William - CCA, 27.2.2007 168 A Crim R 580
McClellan CJ at CL, Simpson & Rothman JJ
Citation: ROWNEY v R [2007] NSWCCA 49
Conviction appeal.
3 x sexual intercourse with a person above 10 years and under the age of 16 years (s.66C(1) Crimes Act 1900); 1 x indecent assault with a person above the age of ten years and under the age of sixteen years (s.61E(2) Crimes Act 1900).
Sentence not stated.
The appellant faced trial on 6 counts of sexual intercourse & one count of indecent assault. At the close of the Crown case, the trial judge directed verdicts of acquittal in relation to 3 counts of sexual intercourse. The jury returned verdicts of guilty in relation to the remainder of the sexual intercourse counts & the indecent assault count. Each offence related to the one complainant.
At trial, the appellant unsuccessfully sought to tender evidence of a note found by the complainant's mother referring to sexual activity between the complainant & an unnamed male adult. The complainant subsequently told her mother that the note referred to the appellant.
13 year delay in complaint - whether error in rejecting relationship evidence - whether verdicts unreasonable, unsupported by evidence - inconsistencies between complainant's evidence & Crown opening.
Appeal dismissed.
287
COOKE & Anor (DPP (NSW) v) - NSW CA 7.2.2007 168 A Crim R 379
Sully, Howie & Price JJ
Citation: Director of Public Prosecutions (NSW) v Cooke and Another [2007] NSWCA 2
Courts and Tribunals - proceedings in nature of Certiori - failure by judge to revoke bonds under s.12 Criminal Procedure Act - whether error of law in reasons given - proper approach to s.98(3)(b) - Criminal Law - breach proceedings for s.12 bonds - whether error in law in failing to revoke bonds - relevant consideration in determining proceedings under s.98.
Decision: 1. The record of the District Court sitting in its criminal jurisdiction at Campbelltown in the proceedings before his Honour Acting Judge Mahoney QC on 28 September 2006 of Regina v Glen Cooke 06/21/3111 being proceedings for breach of five bonds entered pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 5 September 2005 with the Liverpool Local Court be called up into this Court; 2. The determination by Mahoney ADCJ in those proceedings to take no action on the breach of the five bonds under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is quashed; 3. The proceedings for the breach of the five bonds be remitted to the District Court for determination according to law.
288
KHANNA, Ajan - NSW SC, Brereton J, 30.1.2007 168 A Crim R 530
Citation: Khanna v Commissioner of Police NSW [2007] NSWSC 17
Registration of child sex offenders - where plaintiff convicted & sentenced in Victoria to imprisonment wholly suspended - whether plaintiff is a 'registrable person'for the purposes of the NSW Registration Act - whether Victorian suspended sentence of imprisonment is a sentence which includes a term of imprisonment for purposes of (NSW) Child Protection (Offenders Registration) Act 2000, s.3A - whether suspended sentence of imprisonment is a sentence which includes a requirement that offender be under supervision - whether relief should be refused on discretionary grounds arising from recent retrospective amendment to Victorian legislation - Child Protection (Offenders Registration) Act 2000, s 3, 3A, 3C.
Decision: Declare that upon proper construction of (NSW) Child Protection (Offenders Registration) Act 2000 and in events which have happened, plaintiff is not a 'registrable person'for purposes of that Act. Order that defendant be restrained from making any entry in the Child Protection Register kept under s.19 of that Act in respect of plaintiff. Order that defendant pay plaintiff's costs.
289
LEGGE, Ashley Ronald - CCA, 27.7.2007
Spigelman CJ, Simpson & Harrison JJ
Citation: Legge v R [2007] NSWCCA 244
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon (knife).
2y 7m with a NPP of 1y 4m.
The applicant approached a male at an ATM in a Castle Hill shopping centre, placed an arm around his shoulder & demanded that he be given the money the male had just withdrawn from the ATM. The applicant said that he had a knife. The male, who was a plainclothes police officer on duty in the shopping centre at the time, took hold of the applicant & pushed him against a wall. Another police officer then prevented the applicant from gaining access to his knife, which was in the front pocket of his clothing. Another male unsuccessfully tried to secure the applicant's release before making his escape.
Aged 18 at time of offence - guilty plea - no priors - somewhat troubled childhood & adolescence - diagnosed as suffering from ADHD, Tourette's syndrome, obsessive compulsive disorder - history of mental illness on both sides of applicant's family - need for applicant to receive ongoing psychiatric/psychological care - alcohol abuse since age 10 - drug abuse since age 15.
Whether Henry incorrectly applied by trial judge - whether necessary to establish exceptional circumstances in order to depart from guideline sentence - whether sentence manifestly excessive taking into account applicant's age & subjective circumstances.
Appeal allowed insofar as NPP reduced to 10m.
290
DENG, Deng Mading - CCA, 2.8.2007 - 176 A Crim R 1
Mason P, James & Hislop JJ
Citation: R v Deng [2007] NSWCCA 216
Crown appeal.
Malicious wounding with intent to do GBH.
3y with a NPP of 2y PD.
The respondent inflicted 4 stab wounds upon the victim. This was an unprovoked attack. There were 2 eyewitnesses who saw the stabbing & both notified police.
Whether sentence manifestly inadequate.
Appeal dismissed.
291
WATERS, Phillip Mark - CCA, 2.8.2007
Giles JA, James & Hislop JJ
Citation: Waters v R [2007] NSWCCA 219
Sentence appeal.
1 x B&E and commit AOABH - 4y 3m 2w with a NPP of 2 y;
1 x assault (common) - concurrent FT of 11m.
The offences were committed when the applicant broke into the home of the 2 victims, a young man aged 20 & his sister aged 16.
Aged 32 at time of offending - Aboriginal - guilty plea - heavily intoxicated at time of offences - Fernando considerations ((1992) 76 A Crim R 58) - 25% discount allowed - priors - previous imprisonment.
Whether sentences manifestly excessive.
Appeal allowed in part: resentenced for offence of B&E and commit AOABH to 3y 4m with a NPP of 2y.
292
STOJKOV, Mile - CCA, 2.8.2007
Tobias JA, Latham J, Mathews AJ
Citation: Stojkov v R [2007] NSWCCA 205
Sentence appeal.
Supply large commercial quantity heroin.
7y with a NPP of 5y 3m.
The offence involved the supply of 1.789 kgs of heroin (1.08 kgs pure heroin).
Applicant unrepresented on appeal.
Sentence imposed identical to that previously imposed on co-offender - co-offender later resentenced to a lower term - whether disparity.
Appeal dismissed.
293
GUNES, Ozcan - CCA, 10.8.2007
McClellan CJ at CL, Howie & Harrison JJ
Citation: Gunes v R [2007] NSWCCA 242
Sentence appeal.
Malicious damage to property by fire; + Form 1 (malicious damage).
4y with a NPP of 2 y.
The applicant went with his father-in-law who purportedly wanted to pick up some money from his restaurant. When they arrived at the restaurant, the father-in-law went inside while the applicant remained in the car. After 15 minutes, the applicant became worried & went into the restaurant to see what had happened to his father-in-law. There was a strong smell of petrol in the restaurant & the applicant saw the father-in-law splashing petrol about from a jerry can. The applicant asked him what he was doing, whereupon the father-in-law told him to 'shut up'The applicant replied, 'Okay, what do you want me to do?'The father-in-law then handed a jerry can to the applicant. The applicant placed the jerry can next to 2 others. He then removed the jerry cans from the bar so as to keep them away from the ignition point, went outside & waited there while the father-in-law ignited the fire.
Aged 26 at time of offending - guilty plea.
Objective gravity - whether sentencing judge had proper regard to limited degree of participation in offence - whether sentence manifestly excessive.
Appeal allowed: resentenced to FT of 10 m.
294
BAXTER, Allan John - CCA, 10.8.2007 - 173 A Crim R284
Spigelman CJ, Kirby & Latham JJ
Citation: Baxter v R [2007] NSWCCA 237
Sentence appeal.
Count 1: ongoing supply of methylamphetamine; + Form 1 offences (2 x ongoing supply amphetamine; 1 x supply methylamphetamine) - FT of 3y;
Count 2: possess prohibited firearm (replica Smith & Wesson pistol); + Form 1 offences (2 x sell firearm; 1 x possess firearm) - 6y with a NPP of 4y 1m.
Total sentence of 7 y with a NPP of 5y 7m (due to partial accumulation).
The offences came to light as a result of a police operation in Wagga Wagga targeting the distribution of drugs. Both the applicant & his partner were heavy drug users, mainly using amphetamines.
Whether sentences excessive - misstatement of maximum penalty - whether material error - whether fresh evidence then admissible - whether some other sentence warranted - suggested inconsistency in decisions of the CCA - admissibility of evidence.
Appeal allowed only for sentence on count 1 & its Form 1 matters: respondent resentenced for those offences to 6y with a NPP of 3y. Sentence confirmed in respect of count 2 & its Form 1 matters.
295
CICEKDAG, Ersen - CCA, 2.8.2007
Giles JA, James & Hislop JJ
Citation: Cicekdag v R [2007] NSWCCA 218
Sentence appeal.
2 x receive stolen property; 6 x obtain benefit by deception; 1 x drive conveyance without consent - guilty plea.
Also sentenced for 1 x aggravated dangerous drive occasioning GBH; 1 x drive without licence.
Total sentence of 6 y with a NPP of 5y.
Accumulation of sentences - special circumstances - whether sentences manifestly excessive.
Appeal allowed in part: total NPP reduced to 4 y.
296
JULES, Stephane - CCA, 10.8.2007
Giles JA, Latham J, Mathews AJ
Citation: Jules v R [2007] NSWCCA 243
Sentence appeal.
Import trafficable quantity cocaine.
7y with a NPP of 4y 4m.
The applicant & 4 co-offenders brought the cocaine into Australia secreted in their digestive tracts. The amount of cocaine that the applicant brought in weighed 520.1 grams (396.3 grams pure cocaine). Two co-offenders had separately appealed against their sentences & had them reduced on grounds of disparity.
Whether disparity.
Appeal dismissed.
297
MIRZA, David Ghous - CCA, 14.8.2007
McClellan CJ at CL, Howie & Harrison JJ
Citation: Mirza v R [2007] NSWCCA 248
Sentence appeal.
Ongoing supply of cocaine.
6y with a NPP of 3 y.
The applicant was arrested following a police undercover operation during which he supplied cocaine on 3 occasions. The 1st supply involved 29.8 grams (purity 49%), the 2nd involved 28.7 grams (purity 47%) & the 3rd involved 28.4 grams (purity 27%).
Aged 47 at time of offending - guilty plea - born in Pakistan - suffers from depression as a result of death of son in 2001 - not a drug user - no previous criminal record.
Whether sentence manifestly excessive.
Appeal dismissed.
298
MA, Eric - CCA, 8.8.2007
PHAM, Quang Sang
McClellan CJ at CL, Hulme & Hoeben JJ
Citation: Ma and Pham v R [2007] NSWCCA 240
Sentence appeals.
Knowingly take part in the supply of a commercial quantity of heroin.
Ma: 10 y with a NPP of 7y.
Pham: 9y with a NPP of 5 y.
The appellants were participants in a joint criminal enterprise, actively involved in the distribution of heroin in the Liverpool area. Pham's role was that of a street level supplier & runner, in return for which he received money, heroin & accommodation. Ma was a highly active & organised manager who made arrangements for the purchase of larger amounts of heroin for on-supply.
Ma: Parity - whether sentence manifestly excessive.
Pham: Objective seriousness of offence - subjective circumstances - parity - whether sentence manifestly excessive.
Appeals dismissed.
299
ANSARI, Abdul Azees Mohamed - CCA, 14.8.2007 - 173 A Crim R 112
ANSARI, Hajamideen Mohamed
Simpson, Howie & Hislop JJ
Citation: A Ansari v R; H Ansari v R [2007] NSWCCA 204
Conviction appeal; and
Crown appeal.
2 x money laundering: Criminal Code (Cth).
Each sentenced to a total of 4y with a NPP of 2y 9m.
The offenders are brothers who were directors of a money exchange business in Sydney. The 1st count related to them dealing with over $2 million in cash that had been delivered to them by a co-offender named Z. The brothers then arranged for an associate to deposit this money into various bank accounts. Over a 7 month period, a total of $1,952,107 was deposited. The 2nd count related to arrangements being made for the delivery by Z to the brothers of between $2 million & $3 million, however, Z & the brothers were arrested before Z could obtain the money, which was to come from the sale of drugs. See also  R v Z[2006] NSWCCA 342.
Conviction appeal:
Conspiracy under the Criminal Code (Cth) - offence the subject of the conspiracy had recklessness as one of its fault elements - whether such a conspiracy bad at law - whether under the Code a person can agree with another to commit an offence with a fault element of recklessness - relationship between offence of conspiracy under the Code and at Common Law.
Conviction appeal dismissed.
Crown appeal:
Whether sentences manifestly inadequate - relevant considerations in sentencing for a conspiracy to launder money - relevance of knowledge of provenance of money dealt with.
Crown appeal allowed: Each offender resentenced to a total of 9y with a NPP of 5y 5m.
300
MB - CCA, 14.8.2007
Giles JA, Hidden & Harrison JJ
Citation: MB v R [2007] NSWCCA 245
Sentence appeal.
1 x aggravated car-jacking (guilty verdict following trial) - 7 y with a NPP of 5y.
Later pleaded guilty to an unrelated charge of malicious wounding - 4y with a NPP of 2 y.
Total sentence of 7 y with a NPP of 6y.
Two police officers drove to a hotel where there was a confrontation between them & a number of young men. The applicant threw a beer bottle at the police car, which smashed the driver's window & struck the female police officer in the face, as a result of which the officer required 3 surgical procedures. The car-jacking offence occurred when the owner of the car was standing immediately outside his car, running the engine to warm it, when he was punched & the car driven off by the applicant & another offender. The burnt out car was found later that day.
Aged 17 at time of malicious wound offence & 18 at time of car-jacking - troubled childhood - long history of substance abuse - started using cannabis at age 11 - dealt with in Children's Court on a number of occasions - spent significant periods in detention centres.
Pre-sentence custody - principles governing sentencing of young offenders - totality.
Appeal allowed: resentenced to a total of 6y with a NPP of 4y.
301
NIKOLIC, Gojko - CCA, 8.8.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: R v Nikolic [2007] NSWCCA 232
Crown appeal.
Knowingly take part in supply of large commercial quantity ecstasy (MDMA).
9y with a NPP of 6y.
The respondent pleaded guilty to the above offence. The sentencing judge had earlier passed sentence upon a co-offender. That sentence was the subject of a successful Crown appeal: see  R v Stankovic[2006] NSWCCA 229. The judgment in that appeal was delivered before the sentencing judge sentenced the present respondent.
The respondent & Stankovic were involved in the production of ecstasy at a house in Dee Why. Their activities came under police surveillance & police subsequently searched their premises & arrested both offenders. A quantity of ecstasy & equipment used for its production in tablet form were found. The amount of the drug was almost 44kgs.
Aged 45 at time of offending - born in Serbia - no priors.
Whether sentence manifestly inadequate - whether 'bottom-up'approach to sentencing appropriate.
Appeal allowed: resentenced to 12y 9m with a NPP of 8 y.
302
LEE, Kong Jimmy - CCA, 3.8.2007
McClellan CJ at CL, Howie & Hall JJ
Citation: R v Lee [2007] NSWCCA 234
Crown appeal.
Import commercial quantity heroin.
17y 5m with a NPP of 10y 5m.
The respondent played a significant role in the importation of 76.3kgs of pure heroin, which was concealed in shipping containers. The wholesale value of the heroin was estimated to be $28,458,000 & the street value, after 'cutting'was estimated to be $266,000,000.
Whether sentence manifestly inadequate - significant role played by respondent - lesser role played by co-offender - relevance of weight of drugs in sentencing - whether error in finding respondent had middle level of responsibility.
Appeal allowed: respondent resentenced to 27y 5m with a NP of 18y 11m.
303
NGUYEN, Quang Duc - CCA, 22.8.2007 - 173 A Crim R557
Spigelman CJ, James & Hislop JJ
Citation: Nguyen v R [2007] NSWCCA 249
Conviction appeal: 1 x supply commercial quantity heroin - 12y with a NPP of 8y (commencing 14.10.2003).
No appeal was brought for the offence of conspire to import trafficable quantity cocaine - 12y with a NPP of 8y (commencing 14.10.2005).
Total sentence of 14y with a NPP of 10y.
The appellant & his co-offenders came to the notice of police in relation to an attempt to import a quantity of cocaine into Australia. Extensive telephone intercept material was gathered, mostly spoken in Vietnamese. Some telephone conversations were clearly in code & clearly related to drug supplies other than the cocaine conspiracy. Evidence given by Sgt Luc Nguyen was critical to the Crown case on the supply count & was given over objection. It was subject to further objection during its course. Sgt Nguyen purported to be able to translate the code. Objection was made that all he was doing was giving his interpretation based upon matters which could not be properly established, that he took a number of steps beyond what was permissible & that he supplanted the jury's role by telling them his translation established that each intercepted telephone conversation related to the sale of heroin of a specific quantity. An attack was also made on some tables that were tendered on the basis that given their provenance & multiple meanings they could not profitably be treated by the jury as a code-breaking device.
Drug code evidence - whether error in admitting opinion evidence from Sgt Luc Nguyen - failure of trial judge to direct or warn jury on caution when evaluating evidence relating to the separate counts on the indictment.
Conviction appeal on 1st count allowed: verdict of guilty quashed, new trial ordered.
Further orders made following upon quashing of conviction on 1st count.
Further orders: sentence imposed with respect to each count quashed; applicant resentenced with respect to 2nd count to 12y with a NPP of 8y to commence 14.10.2003; these further orders stayed for a period of 14 days from date of judgment or until further order.
304
RICKARD, Matthew James - CCA, 8.8.2007
Spigelman CJ, Hislop & Harrison JJ
Citation: Rickard v R [2007] NSWCCA 238
Sentence appeal.
1 x intimidate with intent to cause victim to fear mental harm (s.562AB Crimes Act 1900) - 2y with a NPP of 18m PD;
1 x steal (s.117) - FT of 6m PD (concurrent).
The respondent entered his ex-girlfriend's home uninvited. While there, he picked up a leather jacket belonging to his ex-girlfriend's new boyfriend & left the house, taking the jacket with him. He returned the jacket the following day.
Aged 34 - guilty plea - depression - priors.
Whether error in making findings of fact not supported by evidence or inconsistent with evidence - whether error in failure to consider special circumstances - whether sentences manifestly excessive.
Appeal allowed in part: sentence confirmed for offence under s.562AB Crimes Act 1900; sentence quashed for offence under s.117 & in lieu thereof the charge dismissed under s.10 Crimes (Sentencing Procedure) Act 1999.
305
BARTON, James Harry - NSW SC, Buddin J, 29.6.2007
Citation: R v Barton [2007] NSWSC 651
Remarks on Sentence.
Murder; attempted murder; manslaughter.
The offender shot & killed a man who had been blackmailing him for years. He then gave methadone to the dead man's children, a 3 year old girl & a 5 year old boy, before setting their house on fire in order to cover his tracks. The blaze killed the 3 year old girl & caused long-term psychological trauma to the boy, who was rescued by the offender.
Sentenced as follows:
Manslaughter: FT of 5y; Attempted murder: FT of 13y; Murder: 37y with a NPP of 30y.
Total sentence of 42y with a NPP of 35y.
306
FAP - NSW SC, Howie J, 17.8.2007
Citation: R v FAP [2007] NSWSC 905
Remarks on Sentence.
Murder.
The offender pleaded guilty to the murder of his 15 month old son. The offender stated that he had been abusing the child for about a week before he died, saying that his intention had been to hurt him but not kill him. He said he had never abused the child in front of the child's mother & that the thought had occurred to him that if he kept abusing the child he might kill him.
Aged 24 - Aboriginal - deprived background - low intellect.
Sentence: 19 y with a NPP of 14 y.
307
THOMPSON, Luke Edward - CCA, 3.8.2007
Handley AJA, Hulme & Hall JJ
Citation: R v Thompson [2007] NSWCCA 233
Crown appeal.
Robbery; robbery with wounding; car-jacking; + offences taken into account (assault an officer in the execution of duty, 2 x resist officer in execution of duty, escape from lawful custody).
5 y with a NPP of 3y.
The respondent & a co-offender were involved in the robbery of a service station, during which the male attendant was punched in the face. The respondent was arrested a week later. While at the police station, after being charged, he managed to escape. Police chased after him & a number of further offences were committed. The car-jacking offence occurred when the respondent entered a MV, pushing the driver out, in his attempt to escape. He was unable to start the vehicle & was arrested by police.
Whether sentence manifestly inadequate - whether appeal should be dismissed in view of 2 month delay - whether delay caused prejudice to respondent.
Appeal allowed: respondent resentenced to 7y with a NPP of 5y 3m.
308
TYLER, Phillip Gordon - CCA, 15.8.2007 - 173 A Crim R458
CHALMERS, Ian Robert
Spigelman CJ, Simpson & Harrison JJ
Citation: Tyler v R; R v Chalmers [2007] NSWCCA 247
Police surveillance led to a major drug syndicate bust involving the importation of drugs from South America. Evidence disclosed that Tyler, Chalmers & a number of other offenders were involved in the importation & also exposed the existence of several corrupt baggage handlers.
Tyler:
Sentence appeal.
Conspiracy to import commercial quantity cocaine.
9y with a NPP of 5 y.
Whether sentence manifestly excessive - parity.
Appeal allowed: resentenced to 7 y with a NPP of 4 y.
Chalmers:
Crown appeal.
Conspiracy to import commercial quantity cocaine.
5 y with a NPP of 3 y.
The respondent was also convicted on a charge of supply ecstasy (20 tablets) for which he was sentenced to a FT of 12m. The Crown appeal related only to the offence involving the importation of cocaine.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 12y with a NPP of 8y.
309
FUNG, Ka Chung - CCA, 21.8.2007 - 174 A Crim R 169
Spigelman CJ, Kirby & Latham JJ
Citation: Fung v R [2007] NSWCCA 250
Conviction appeal.
1 x supply commercial quantity heroin; 1 x supply large commercial quantity heroin.
Sentence not stated.
The Crown case relied upon evidence resulting from police surveillance of the appellant in the company of 3 co-offenders, transcripts & recordings, & the evidence of a co-offender who had offered to give assistance to police.
Omission from summing-up of direction on element of offence - Rule 4 and application of proviso - whether direction on accused's good character inadequate - whether miscarriage of justice.
Appeal dismissed.
310
HARVEY, Jonathan Nathaniel - NSW SC, Howie J, 10.8.2007
Citation: R v Harvey [2007] NSWSC 871
Remarks on Sentence.
Murder.
Plea of guilty - offender aged 18 at time of murder - severe mental illness - relevance of standard NPP in such a case.
Sentenced to 16y with a NPP of 10y.
311
VAOVASA, Benjamin Teliu - CCA, 28.8.2007 - 174 A Crim R 116
McClellan CJ at CL, Howie & Harrison JJ
Citation: Vaovasa v R [2007] NSWCCA 253
Sentence appeal.
3 x robbery in company.
Total sentence of 5y with a NPP of 3y 9m.
In the early hours of the morning, the applicant & 5 other men attacked 4 people crossing the Pyrmont Bridge. The offenders stole 3 mobile phones & $200 in cash. Evidence at trial consisted of CCTV footage.
Finding of fact made by judge - whether erroneous - parity - whether justifiable sense of grievance.
Appeal dismissed. The sentences were unduly lenient for all offenders.
312
STEVENS, Anthony Bernard - CCA, 28.8.2007
McClellan CJ at CL, Hoeben & Hall JJ
Citation: Stevens v R [2007] NSWCCA 252
Sentence appeal.
Supply large commercial quantity cocaine - guilty plea.
Sentenced to 11y with a NPP of 7y.
Strong circumstantial evidence. The applicant was involved in a criminal enterprise that incorporated 2 individual acts of supplying cocaine, which could be identified as part of the same criminal enterprise. He was sentenced on the basis that he had supplied just less than 2 kgs of cocaine.
Tendency & coincidence evidence - principles to apply - whether sentence excessive.
Appeal dismissed.
313
MERRIN, Christopher Gary - CCA, 28.8.2007 - 174 A Crim R 100
Giles JA, Howie & Fullerton JJ
Citation: R v Merrin [2007] NSWCCA 255
Crown appeal.
16 x BE&S (some aggravated).
Sentenced to a total of 4 y with a NPP of 1y 9m.
The offences were committed upon domestic premises over a 2 year period. A number of offences were aggravated by the fact that people were present in the premises at the time & that the respondent was in company. Some offences were also aggravated in that the respondent was on parole at the time for similar offences.
Concurrent sentences - whether appropriate for multiple repeat offending - standard NPP - failure to take into account - whether sentences manifestly inadequate.
Appeal allowed: resentenced to a total of 7y with a NPP of 4y.
314
NIKOLAIDIS, Leon - CCA, 20.8.2007
Santow JA, Hidden & Howie JJ
Citation: Nikolaidis v R [2007] NSWCCA 254
Application for leave to appeal against interlocutory judgment refusing an application for a permanent stay.
Make false instrument.
Trial proceeding - prior applications abandoned - whether leave should be refused.
Application for leave to appeal refused.
315
TOFILAU, MARKS, HILL & CLARKE - HCA, 30.8.2007 - 231 CLR 396; 81 ALJR 1688
Citation: Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen [2007] HCA 39
On appeal from the SC of Victoria.
The appellants were suspected of having committed serious & violent crimes (murder) & were tricked by undercover police officers, posing as criminals, into confessing. They were subsequently tried & convicted. Their confessions were received in evidence. The issue in the HC was whether the evidence of the confessions should have been excluded.
Confessions & admissions - whether confessions admissible - "inducement rule" - history of "inducement" requirement - whether promises made were "inducements" - whether undercover police officers posing as gang members were "persons in authority" - whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a "person in authority" - whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a "person in authority" - voluntariness - unfairness - prejudice - reliability - oppression - right to silence.
Appeals dismissed.
316
HUGHES, Craig Andrew - CCA, 30.8.2007 - 181 A Crim R 344
McClellan CJ at CL, Howie & Harrison JJ
Citation: Hughes v R [2007] NSWCCA 256
Sentence appeal.
Accessory after the fact to aggravated BE&S.
2y with a NPP of 18m.
The applicant & 2 co-offenders entered a house belonging to a father & son. Neither occupant was home at the time of the offence. The co-offenders removed property from the house & loaded it into a vehicle, then drove off. They returned a short time later & removed more goods, including a safe. Their actions were captured on 2 digital security video surveillance cameras. The applicant was filmed helping the co-offenders load the safe into the back of the vehicle. All 3 men then drove away in the vehicle, with the applicant sitting in the back holding the safe.
Long criminal history - previous imprisonment.
Whether judge misunderstood appellant's role in offences - whether error in finding offence part of planned & organised criminal activity - whether sentence excessive.
Appeal dismissed.
317
FERGUSON, Michael David - NSW SC, Michael Grove J, 27.8.2007
Citation: R v Ferguson [2007] NSWSC 949
Remarks on Sentence.
Manslaughter - guilty plea.
The offender & the deceased were in a de facto relationship for 18 years. For a number of days the couple had been arguing over the deceased's abuse of prescription medicine. These arguments became physical & on a few occasions, the deceased was pushed, fell & hit her head. On the last day of their arguing, the deceased did not get up after falling down. A post mortem revealed that the deceased had suffered a traumatic head injury & an underlying heart condition may have contributed to her death.
Sentenced to 5y 3m with a NPP of 4y.
318
TAUFAHEMA, Motekiai - NSW SC, Michael Grove J, 31.8.2007
Citation: R v Taufahema [2007] NSWSC 959
Remarks on Sentence.
Manslaughter - guilty plea.
New trial following a decision by the High Court of Australia: see R v Taufahema [2007] HCA 11, reported (2007) 234 ALR 1, 81 ALJR 800; Taufahema v R [2006] NSWCCA 152, reported 162 A Crim R 152.
This offence involved the fatal shooting of Snr Const Glen McEnallay.
Sentenced to 11y with a NPP of 7y.
319
MIRZA, Husman Akhtar Baig - CCA, 30.8.2007
McClellan CJ at CL, Howie & Harrison JJ
Citation: Mirza v R [2007] NSWCCA 257
Sentence appeal.
Import trafficable quantity heroin.
9y with a NPP of 5y.
The appellant is an Australian citizen of Pakistani origin. He left Australia for the purpose of importing drugs. Upon his return to Australia, he was subjected to a random search at the airport, which revealed packages of heroin strapped to his feet.
Aged 37 - guilty plea - unemployed - under financial pressure - gambling problems - major depressive disorder - shame & remorse.
Whether sentence manifestly excessive.
Appeal dismissed.
320
MG - CCA, 28.8.2007
Basten JA, Latham & Rothman JJ
Citation: MG v Director of Public Prosecutions [2007] NSWCCA 260
Sentencing - s.25 Children (Criminal Proceedings) Act 1987 (NSW) s 25 - background report - further report ordered - Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 distinguished.
Decision:
(1) Order that the Director take steps to have a further background report prepared with respect to the offences for which the applicant stands convicted.
(2) Stand the matter over to Registrar Drennan's list at 9.00am on 30 August 2007 to fix a date for hearing.
321
MJL - CCA, 4.9.2007
Campbell JA, Hidden J, Smart AJ
Citation: MJL v R [2007] NSWCCA 261
Sentence appeal.
Multiple sexual offences committed against daughter & granddaughter (indecent assault, sexual intercourse, digital penetration, carnal knowledge).
Sentences:
Offences against granddaughter - 2y 8m with a NPP of 2y
Offences against daughter - 10 y with a NPP of 7 y.
Total sentence 12y with a NPP of 9y.
The appeal related only to the sentences for the offences against the applicant's daughter.
Aged 59 at time of sentence - guilty pleas - utilitarian value - voluntary disclosure of offences which may not have come to light but for the disclosure - no priors - protective custody - health problems - willingness to undertake educational courses & counselling.
Whether judge increased appropriate sentences utilising uncharged sexual conduct evidence - special circumstances - practice of setting NPPs at time offences committed - whether sentences manifestly excessive.
Appeal allowed: resentenced for offences against daughter to 9y with a NPP of 6y, resulting in a total sentence of 10 y with a NPP of 7 y.
322
MAUCERI, Antonio - CCA, 4.9.2007
McClellan CJ at CL, Harrison & Fullerton JJ
Citation: Mauceri v R [2007] NSWCCA 262
Sentence appeal.
Conspiracy to import commercial quantity MDMA (ecstasy).
8y with a NPP of 5y.
The applicant operated a furniture business. He dealt with a supplier from overseas & arranged for the importation of a shipping container of furniture. Drugs were found concealed in the container. The applicant made all associated payments & even travelled overseas with others involved in the venture.
Elderly - 50% discount for guilty plea & assistance to authorities - poor health - motivated by gain.
Starting point of sentence - whether error regarding sentence starting point before discounting - whether discounts for guilty plea & co-operation insufficient - parity.
Appeal dismissed.
323
PISCIUNERI, Natale Domenico - CCA, 5.9.2007
Spigelman CJ, Hislop & Harrison JJ
Citation: R v Pisciuneri; Pisciuneri v R [2007] NSWCCA 265
Conviction appeal; and
Crown appeal against sentence.
Drive in manner dangerous occasioning death (s.52A(1)(c) Crimes Act).
1y 4m with a NPP of 8m.
The appellant's car was approaching a bend in the road, when the left-hand wheels of the car left the road & went onto the gravel shoulder. The appellant then over-corrected, whereupon the other rear wheel left the road & his car veered in a clockwise direction across the road, connecting with an oncoming car. After hitting that car, the appellant's car spun in a clockwise direction up the hill, narrowly missing another car. The appellant gave evidence that as he commenced to negotiate the bend in the road, he saw the oncoming car coming towards him, about half-a-metre on his side of the road. He said that he veered off to his left in order to avoid that car & that the left-hand wheels moved onto the gravel shoulder & his car went out of control.
Aged 56 - depression - sleep apnoea - successful businessman - good character - no priors.
Conviction appeal:
Whether verdict unreasonable & not supported by evidence - failure by jury to give proper consideration to conflicting expert evidence of a highly technical matter (understanding of the methodology of traffic accident reconstruction).
Appeal dismissed.
Crown appeal:
Whether sentence manifestly inadequate - approach to fact-finding after guilty verdict - objective gravity.
Appeal dismissed.
324
CESAN, Rafael Luis - CCA, 5.9.2007 - 174 A Crim R 385
MAS RIVADAVIA, Ruben
Basten JA, Grove & Howie JJ
Citation: Cesan v DPP (Cth); Mas Rivadavia v DPP (Cth) [2007] NSWCCA 273
Conviction and sentence appeals.
Cesan: Conspire to import commercial quantity MDMA (ecstasy) - 13 y with a NPP of 9y.
Mas Rivadavia: Conspire to import commercial quantity MDMA (ecstasy); + separate offence of conspire to import heroin - total sentence of15y with a NPP of 10y.
The trial judge was asleep for prolonged periods during the appellants' trial.
Essential element of trial by jury - whether court properly constituted if judge is sleeping.
Whether miscarriage of justice occasioned as a result of trial judge being asleep for parts of the trial - whether trial judge erred in failing to sum up elements of offence of conspiracy as prescribed by the Commonwealth Criminal Code - whether error in directions on lies - whether justifiable sense of grievance by virtue of disparity between sentences imposed upon appellants & those upon co-offenders.
Appeals dismissed.
325
SUA, Jack Siaki - CCA, 4.9.2007
Santow JA, Hidden & Howie JJ
Citation: Sua v R [2007] NSWCCA 271
Sentence appeal.
5 x robbery whilst armed with dangerous weapon; 1 x possess loaded firearm so as to endanger life; 1 x possess shortened firearm.
Total sentence of 13y with a NPP of 10y.
The 1st armed robbery took place at a mixed business, the 2nd at a pharmacy. On both occasions, the applicant threatened victims with a loaded sawn-off shotgun. The remainder of the armed rob offences occurred when the applicant entered a brothel & threatened 3 persons with a sawn-off shotgun. He forced the group to the kitchen & demanded that the safe be opened. He forced the manageress to accompany him & to pack the proceeds into a bag.
Aged 26 - guilty plea - discount of 15% - offences committed whilst on conditional liberty - history of offences of similar kind - drug addiction - committed armed rob at age 16 to finance addiction - some family support - expression of remorse - undertook drug rehabilitation programme in the past.
Whether sentence manifestly excessive - whether discount sufficient - whether error in imposing totally cumulative FT's in respect of each of the armed rob offences - whether sentence failed to reflect finding of special circumstances.
Appeal dismissed.
326
TESTALAMUTA, Sammy - CCA, 4.9.2007
McClellan CJ at CL, Hidden & Rothman JJ
Citation: Testalamuta v R [2007] NSWCCA 258
Sentence appeal.
Specially aggravated B&E; maliciously inflict GBH; + Form 1 offence (carry firearm in manner likely to endanger safety of another person).
Total sentence of 15y with a NPP of 10 y.
The applicant's partner had previously been in a de facto relationship with the victim. She & the victim had 2 children during that relationship. The children lived with the victim. During an argument over access to the children, the applicant assaulted the victim while the victim was holding one of the children. A condition of bail in connection with this assault was that the applicant was not to approach the victim's premises. In breach of his bail, the applicant went to the victim's home, forced his way inside & shot the victim in front of one of the children. The victim hit the applicant with a chair & the applicant fled in a car. A witness noted the licence place. When the applicant saw the witness looking at him, he pointed the gun at the witness but did not fire it.
Aged 29 - guilty plea - substance abuse - suffers from dysthymia & elevated anxiety levels - remorse - family support - priors.
Whether sentence manifestly excessive - assessment of objective gravity - relationship of sentences to standard NPP's.
Appeal dismissed.
327
O'CONNOR, Anthony Ross - CCA, 10.9.2007
Mason P, James & Hislop JJ
Citation: O'Connor v R [2007] NSWCCA 266
Conviction appeal (out of time).
Malicious wounding with intent to do GBH.
Appellant appeared for himself on appeal.
Practice & procedure - appeal against conviction out of time - extension of time to file notice of appeal sought - where appeal against sentence heard & determined 2 years before application for appeal against conviction: see R v O'Connor [2005] NSWCCA 5 - application unopposed - duplication of legal & judicial resources - practice deprecated.
Appeal dismissed.
328
PAPADOPOULOS, Christovalantis - CCA, 12.9.2007
TOPCU, Bulent
McClellan CJ at CL, Hulme & Hoeben JJ
Citation: Papadopoulos v R; Topcu v R [2007] NSWCCA 274
Conviction and sentence appeals.
Papadopoulos: sexual intercourse without consent in company.
7y 7m with NPP of 5y 9m.
Directions - duress - joint criminal enterprise.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 4y with a NPP of 2y 9m.
Topcu: sexual intercourse without consent in company; maliciously inflict ABH at time of sexual intercourse.
10y with NPP of 7y.
Directions - elements of offence - duress - miscarriage of justice - submission that malicious infliction of ABH left to jury on basis not run at trial.
Conviction appeal allowed: convictions quashed; convicted with having sexual intercourse without consent in company.
Sentence at first instance quashed: resentenced to 3 y with a NPP of 2y 3m.
329
EAST, Malcolm Gordon - NSW SC, Barr J, 21.9.2007
Citation: R v East [2007] NSWSC 1051
Remarks on Sentence.
Murder; assault; fire firearm with disregard to safety; unauthorised possession of firearms; malicious damage by fire.
Found to be suffering a mental illness at time of offending.
Sentence: total of 18y with a NPP of 13 y.
330
STRATFORD, Barry - CCA, 18.9.2007
McClellan CJ at CL, Harrison & Fullerton JJ
Citation: Stratford v R [2007] NSWCCA 279
Sentence appeal.
15 x fraud by an officer (s.176(A) Crimes Act 1900 (NSW); + Form 1 offence.
Total sentence of 3 y with a NPP of 2y.
The offences occurred over a period of just over 3 years, during which the applicant was the financial controller & company secretary of a company. He had been employed by that company since 1993. He was appointed financial controller In 1994 & company secretary in 1997 & was authorised to make payments from the company's business accounts. Between October 1999 & October 2002, he made a number of withdrawals from company accounts, transferring money to bank accounts under his own control. A total of $114,170 was illegally taken from one account, involving 34 withdrawals, & total of $46,267 was taken from another account, involving 10 withdrawals.
Aged 64 at time of last offence - guilty pleas - significant financial stress as a result of son's drug addiction - work-related stress - treated for depression - remorse - made full reparation for money stolen.
Whether error in taking matters on Form 1 into account on wrong principal offence - whether failure to properly take into account restitution - whether error in finding as an aggravating factor that offences involved multiple criminal acts - whether sentence manifestly excessive.
Appeal dismissed.
331
SUTTLE, Maria Katrina - CCA, 14.9.2007
Basten JA, Latham & Rothman JJ
Citation: Suttle v R [2007] NSWCCA 264
Sentence appeal.
Robbery in company.
2 y with a NPP of 1y 3m.
The applicant & her female co-offender attacked a young woman travelling on a train & punched her a number of times in the face & on top of her head. The victim's mobile phone was taken out of her hand. The victim's hair was pulled hard & she was dragged onto the floor. The victim saw the applicant walk away further up the aisle of the carriage. The co-offender then kicked the victim on her knee & on her back. She grabbed the victim's handbag & tried to take it from her. Still holding onto her bag, the victim was dragged down the aisle by the co-offender. She cried out & eventually 3 male passengers came to her assistance by pulling the co-offender off her.
Whether sentence manifestly excessive - whether failure to give consideration to applicant's mental health condition.
Appeal dismissed.
332
STUDMAN, Michael Simon - CCA, 10.9.2007 - 175 A Crim R 143
Basten JA, Grove & Hidden JJ
Citation: Studman v R [2007] NSWCCA 263
Sentence appeal.
11 x fraudulently misappropriate Commonwealth property (s.71(1) Crimes Act, Cth); 2 x defraud Commonwealth public authority (s.29D Crimes Act, Cth); 2 x obtain money by deception (s.178BA Crimes Act, NSW); 3 x fraudulent misappropriation (s.178A Crimes Act, NSW).
Total sentence of 4 y with a NPP of 3 y.
Approach to setting NPP - whether sentence excessive.
Appeal dismissed.
333
KWOK, James - CCA, 24.9.2007 - 175 A Crim R 278
Santow JA, Hidden & Howie JJ
Citation: Kwok v R [2007] NSWCCA 281
Conviction and sentence appeal.
2 x dishonest use of position as a director of a company with intention of gaining advantage for 2 other companies with which appellant was associated (s.184(2)(a) Corporations Act 2001, Cth).
2y with NPP of 14m, to be served by way of PD.
Element of dishonesty - whether directions incorrect - deterrence - totality - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 15m; appellant to be released on a recognizance release order after serving 3m of that sentence.
334
WINTERS, Christopher Paul - NSW SC, McClellan CJ at CL, 26.9.2007 - 176 A Crim R 249
Citation: Attorney General for the State of NSW v Winters [2007] NSWSC 1071
Judgment.
Application for detention order.
Serious sex offender - Custody Based Intensive Treatment programme not completed by offender - application for extended supervision order or continuing detention order - meaning of 'likely'- standard of proof - high degree of probability - whether offender likely to commit further serious sex offence - whether adequate supervision would be provided by an extended supervision order - expert evidence - whether possible to predict risk of re-offending - actuarial assessment - dynamic risk factors - whether proposed management plan adequate - availability of funding to implement management plan - abuse of process - motion to stay proceedings until funding available for treatment - whether the Court's discretionary option was frustrated - whether defendant received a fair hearing.
Decision: 1. Notice of Motion filed by the defendant on 14 September 2007 is dismissed; 2. I order that Christopher Paul Winters be detained in a correctional centre for one year from today (26.9.2007); 3. Pursuant to s.21 of the Act, I issue a warrant for the committal of Christopher Paul Winters to a correctional centre for the duration of the continuing detention order in order 2 above.
335
EM, Sophear - HCA, 4.10.2007 - 232 CLR 67; 81 ALJR 1896
Citation:  Em v The Queen [2007] HCA 46
On appeal from the NSWCCA.
Confessions & admissions - discretionary grounds for exclusion - unfairness discretion - police covertly recorded conversation with appellant in a park - appellant made certain admissions - was not aware that he was being recorded - under mistaken belief admissions to police could only be used against him in criminal proceedings if recorded electronically - police deliberately omitted 2nd part of standard caution, namely that anything said or done by the appellant could be recorded & used as evidence in court - interpretation of s.90 of the Evidence Act 1995 (NSW) - whether admitting evidence of admissions in these circumstances unfair - reliability of admissions - whether right to silence impugned - whether jury should have been warned by trial judge that an admission made in these circumstances may be unreliable.
Appeal dismissed.
336
MULLINS v LILLYMAN - NSW SC, Buddin J, 2.5.2007 - 169 A Crim R 571
Citation: Mullins v Lillyman [2007] NSWSC 407
Judgment.
The plaintiff by summons sought orders setting aside an order of a magistrate that he attend an alleged crime scene with police for the purpose of taking photographs of his left arm and a tattoo on it to compare with security footage.
Forensic procedure -- applicant ordered to attend scene of crime to undertake forensic procedure -- "non intimate forensic procedure" -- "taking photograph of part of the body" - review of magistrate's decision -- purpose of legislation -- Crimes (Forensic Procedures) Act 2000(NSW) -- Crimes (Local Courts Appeal and Review) Act 2001(NSW).
Order set aside in part.
337
KNAGGS, Douglas - NSW CA, 11.4.2007
Mason P, Tobias & Campbell JJA
Citation: Knaggs v DPP (NSW) & Anor [2007] NSWCA 83
Judgment.
Application seeking orders.
The claimant was served with a Court Attendance Notice (CAN) that included several boxes setting out the required information. One box, headed "Details of offence/s", included the particulars of an offence of AOABH contrary to s.59(1) Crimes Act 1900 NSW. The claimant was convicted in the LC. His subsequent appeal to the DC against his conviction was unsuccessful. He then filed a summons in the Common Law Division of the SC, seeking orders in the nature of certiorari & prohibition, & declarations that the conviction was invalid, raising for the first time that the CAN was defective & invalid & that it did not comply with s.175(3)(b) Criminal Procedure Act 1986 NSW in that it failed to briefly state the particulars of the alleged offence. He also claimed that the decision of the DC was invalid & vitiated on the basis of apprehended bias. An order was made pursuant to s.51 Supreme Court Act 1970 NSW, removing the summons to the Court of Appeal. The court assumed, without deciding, that the CAN did not "briefly state the particulars of the alleged offence" and thus contravened s.175(3)(b).
Whether particulars in CAN can be amended - power of LC to require further particulars - nature of appeal from LC to DC - bias of courts & judges - whether reasonable apprehension of bias.
Summons dismissed.
338
NASR, Nakhl - NSW CA, Beazley, Hodgson & Campbell JJA
NASR, George
Citation: Nasr v NSW; Nasr v NSW [2007] NSWCA 101
Judgment.
The appellants (father & son) were arrested by police, taken to a police station & charged with various offences. A total of 9 people arrested during the same incident were taken to the same police station. The appellants were held for approx 6  hours before being released on bail. During that time, their solicitor attended the police station & stayed for about 2 hours, speaking to the appellants, members of their family & the police. All charges against the appellants were ultimately withdrawn & they brought an action against the State of NSW seeking damages for assault, false imprisonment & negligence alleged to have been committed by police officers at the time of their arrest & subsequent detention. They argued that the period of time they were detained prior to being released on bail was unreasonable & that even if they were initially detained lawfully, that detention became unlawful by reason of the delay. The judge at 1st instance found against the appellants & they appealed that decision, arguing that the judge was in error by not posing the test of reasonableness in respect of each of the appellants separately, but rather "assessing the situation globally".
Bail - unlawful detention - whether delay in releasing persons on bail unreasonable - whether delay should be assessed in relation to each arrested person - whether permissible to "assess situation globally" - whether detention became unlawful - "reasonably practicable" - where police station has influx of prisoners - factors to be considered when determining whether delay unreasonable - s.18 Bail Act 1978 (NSW).
Appeal dismissed.
339
JS - CCA, 10.9.2007
Spigelman CJ, Mason P, McClellan CJ at CL, Hidden & Howie JJ
Citation: R v JS [2007] NSWCCA 272
Crown appeal against acquittal.
The respondent was tried for 2 offences under the Crimes Act 1914 (Cth) which alleged the intentional destruction of computer data that may have been required in evidence in a judicial proceeding. At the end of the trial, the trial judge directed the jury to return a verdict of acquittal. In so doing, the trial judge accepted the respondent's submissions that s,39 of the Crimes Act requires the prosecution to prove an accused knew that the proceedings in which the evidence may be required were federal proceedings. This finding turned on the definition of 'judicial proceeding'in s.31 Crimes Act, read in the light of the provisions of the Criminal Code. As the Crown's case contained no evidence that would satisfy that requirement, a directed acquittal was ordered.
Right of Crown to appeal from acquittal of criminal charge in certain circumstances, including a directed acquittal, created by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006, which inserted s.107 into the Crimes (Appeal and Review) Act 2001.
The respondent raised a number of jurisdictional issues, challenging the capacity of the NSW CCA to hear the appeal.
Appeal dismissed.
340
SHARPE, David Dimitrios - CCA, 22.5.2007
McClellan CJ at CL, Hislop J, Smart AJ
Citation: Sharpe v R [2007] NSWCCA 217
Sentence appeal.
B&E with intent to steal; + Form 1 offences (2 x maliciously destroy/damage property; 1 x possess housebreaking implement).
3 y with a NPP of 2y.
The applicant was seen loitering near the entrance to garages in Darling Point. He appeared to be with another man. Residents reported the matter to police & when they attended they found 3 damaged garage doors, the locks having been interfered with. The applicant was seen emerging from one of the garages. He tried to flee but was arrested. It was apparent that, prior to being apprehended the applicant had gathered up a number of stolen items with the intention of taking them away. The applicant was found to be in possession of a plastic handled spike implement, suitable for gaining entry by forcing locks.
Aged 25 at time of sentencing - guilty plea - 25% discount allowed - lengthy criminal history - entrenched history of drug abuse - unfortunate & disadvantaged background - ward of the state since aged 14 months - undertaken education courses & trade qualifications whilst in custody - remorse - rehabilitation.
Whether error in finding that applicant offended whilst in company as an aggravating factor - whether sentence manifestly excessive.
Appeal dismissed.
341
WILMOT, Mark - CCA, 28.9.2007
Santow JA, Hidden & Howie JJ
Citation: Wilmot v R [2007] NSWCCA 278
Sentence appeal.
Malicious wounding with intent to do GBH; use offensive weapon with intent to prevent lawful apprehension.
Total sentence of 11 y with a NPP of 7 y.
Mental illness.
The applicant stabbed the victim several times. When followed by police, the applicant got out of his car brandishing a tomahawk.
Aged 37 - guilty plea - no priors - diagnosed with paranoid psychosis, paranoid personality disorder & schizophrenia following arrest - remorse - subject to AVO taken out by complainant at time of offence.
Whether sentencing judge erred in considering mental illness played no role in offending.
Appeal dismissed.
342
RA - CCA, 21.8.2007 - 175 A Crim R 221
McClellan CJ at CL, Howie & Harrison JJ
Citation: RA v R [2007] NSWCCA 251
Judgment on admissibility of complainant's interview by means of a sound recording; competence of complainant.
Sexual intercourse with child under age of 10.
Sound recording of interview with complainant admitted by trial judge.
Appellant submitted record of interview inadmissible because complainant not competent to give evidence.
Statutory presumption every person competent to give evidence.
Whether trial judge erred in admitting the recording.
Appeal dismissed.
343
TAISENI, Etuate - NSW SC, Latham J, 21.9.2007
MOTUAPUAKA, Taniela Taufa
LEOTA, Joseph
TUIFUA, Aminiasi
Citation: R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090
Remarks on Sentence.
Manslaughter; maliciously inflict GBH in company.
The deceased, a publican, was the innocent victim in a pub brawl during which he was struck on the head with a bar stool. The injuries he sustained caused his death.
Sentences:Taiseni: 4y 2m with a NPP of 3y; Motuapuaka: 7y 7m with a NPP of 5y; Leota: 8y 4m with a NPP of 5 y; Tuifua: 4y 7m with a NPP of 3y 2m.
344
HUANG, Bin - CCA, 4.9.2007 - 174 A Crim R 370
SIU, See Hon
Simpson, Howie & Hislop JJ
Citation: R v Huang; R v Siu [2007] NSWCCA 259
Crown appeal.
Money laundering.
Huang: 3y; to be released after 1y 9m upon entering into recognizance to be of good behaviour for 3y.
Huang conducted 335 banking transactions over a 10m period on behalf of principal. These transactions were conducted to evade tax. Over $3m was banked.
Aged 35-36 - guilty plea - minor criminal record - gambling addiction - contrition - valuable assistance.
Siu: 2y 11m; to be released after 1y upon entering into recognizance to be of good behaviour for 3y.
Siu conducted 59 banking transactions over a 2m period on behalf of principal. He believed the money was obtained illegally. $556,400 was banked.
Aged 64 - guilty plea - prior criminal record - limited assistance - delay - poor health.
Whether sentences manifestly inadequate.
Crown appeal allowed:
Huang: resentenced to 5 y with a NPP of 3y 4m.
Siu: resentenced to 5y with a NPP of 2 y.
345
EL-KHEIR, Nedol - CCA, 10.9.2007
Mason P, Adams J, Smart AJ
Citation: El-Kheir v R [2007] NSWCCA 280
Sentence appeal.
Attempt prevent course of justice.
1y 4m with a NPP of 8m.
The applicant arranged for his cousin to pay money to a 3rd person with intent to pervert the course of justice. However, no money was ever paid.
The sentencing judge considered a suspended sentence but determined that it did not appropriately reflect the subjective gravity of the offence.
Aged 31 - guilty plea - difficult & traumatic upbringing - dependent children - motivated by drug habit.
Whether sentence excessive - parity.
Appeal dismissed.
346
LYNCH, David Brian - CCA, 4.9.2007
McClellan CJ at CL, Howie & Harrison JJ
Citation: Lynch v R [2007] NSWCCA 268
Sentence appeal.
Assault; malicious damage to property; use offensive instrument (MV); + Form 1 (breach of AVO).
2 y with a NPP of 1y 3m.
The applicant had been separated from his wife for approx 5 years. He wanted to see his daughter & give her a gift as it was her 17th birthday. He met his daughter near the residence of his ex-wife & her new partner as he was prevented from entering the residence due to an AVO. When he asked his daughter what plans had been made for her birthday, she told him that her mother & her mothers partner were taking her & the other children out to dinner. This seemed to agitate the applicant. He drove to the residence & exited the car holding a large knife. The ex-wife-s partner opened the front door. The applicant tried to provoke a fight. When the ex-wife's partner did not respond, the applicant returned to his car & drove directly towards him, then drove into the front of the house, causing damage to the house. He reversed his car when the ex-wife's partner exited the house & drove towards him.
Guilty plea - cognitive impairment due to brain injury - depression due to marriage break-up - deterrence.
Whether sentence excessive - application made for tender of medical evidence not before sentencing court.
Appeal dismissed.
347
GAC - CCA, 10.10.2007 - 178 A Crim R 1
WC
Spigelman CJ, Simpson & Harrison JJ
Citation: GAC v R; WC v R [2007] NSWCCA 287
Conviction and sentence appeals.
GAC: 2 x assault & commit act of indecency upon person under 16 (namely 5); 1 x aggravated assault & commit act of indecency upon person under 16 (namely 10). Total sentence of 5 y with a NPP of 4y.
WC: 3 x assault & commit act of indecency upon person under 16 (namely 5); 2 x aggravated assault & commit act of indecency upon person under 16 (namely 10 & 11); sexual intercourse with person under 16 (namely 12) & under authority; sexual intercourse without consent. Total sentence of 8 y with a NPP of 7y.
The above offences relate to multiple sexual offences committed upon a child over many years by the child's mother (GAC) & the child's stepfather (WC). The Crown alleged that WC committed a very large number of sexual offences against the complainant, some of which were the subject of specific counts in the indictment & many others were referred to in relationship or context evidence. These offences occurred over many years, dating back to when the child was only 5 years of age. GAC also committed sexual offences against the complainant. These were on a less frequent basis, but occurred approximately once or twice per month over many years from when the complainant was about 5 years of age until she was about 14 years of age.
GAC: Admission of evidence of meeting between complainant & police in 1995 - Crown prosecutor's address - whether verdict unreasonable - whether sentence excessive.
Conviction and sentence appeal dismissed.
WC: Aboriginal - blind - no previous imprisonment. Admission of evidence of meeting between complainant & police in 1995 - Crown prosecutor's address - whether trial miscarried - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 6 y with a NPP of 5y.
348
SYMONDS, Brendon Lee - CCA, 24.9.2007
Mason P, Adams J, Smart AJ
Citation: Symonds v R [2007] NSWCCA 282
Sentence appeal.
Multiple offences (drive conveyance taken without consent of owner; exceed speed limit; drive unlicensed; use unregistered vehicle on road; use uninsured motor vehicle; never licensed person drive vehicle on road; BE&S; resist or hinder police in execution of duty; use offensive language; goods in custody).
3y 2m with a NPP of 2y 4m.
Guilty plea - drug addiction - non-compliance wit h Drug Court treatment plan - Drug Court programme terminated - on bail at time of some of the offences - traumatic childhood.
Whether sentence excessive - accumulation - statutory ratio - subjective features.
Appeal dismissed.
349
RICKABY, Peter - CCA, 10.10.2007
Giles JA, Hulme & Hislop JJ
Citation: Rickaby v R [2007] NSWCCA 288
Sentence appeal (extension of time).
Fire firearm in public place; possess unregistered firearm in circumstances of aggravation.
Total sentence of 4 y with a NPP of 3y 4m.
In the early hours of the morning, the applicant & 2 other men went to the Dragonfly Nightclub in Kings Cross where they were refused entry by security officers because they did not have membership passes. They then became aggressive with the security officers. They walked a short distance away then turned around & continued to yell abuse at the security officers. The applicant took a handgun from his jeans, raised it & fired 3 times into the air. He & the other men then began walking towards the security guards with the applicant still holding the handgun in his hand. Police officers a short distance away heard the shots & drove to the nightclub. The security officers pointed the applicant out to them. The applicant tried to hide the handgun & get away, but was apprehended.
Whether sentence excessive - concurrency & accumulation - totality.
Appeal dismissed.
350
HAYTER, Warren Graeme (AG of NSW v) - NSW SC, Price J, 30.8.2007
Citation: Attorney General for the State of NSW v Hayter [2007] NSWSC 983
Ex Tempore Judgment.
Application for preliminary orders for psychiatric examination.
Aggravated indecent assault of person under 16 years.
The Attorney General for the State of New South Wales sought orders pursuant to s.15(4) Crimes (Serious Sex Offenders) Act 2006 or further or alternatively s.7(4) of the Act: (a) appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the defendant to attend those examinations.
Respondent did not oppose orders sought - psychological assessment - high risk of re-offending - random search of cell uncovered inappropriate material - history of sexual offences - previously committed offences whilst on bail.
Decision:
'1.Order that two qualified psychiatrists conduct separate psychiatric examinations of Warren Graeme Hayter and that those two psychiatrists furnish reports to the Supreme Court of the results of those examinations on or before 4pm 20 September 2007. 2. I direct the defendant is to attend those examinations. 3. List summons for hearing on 25 September 2007. I note the estimate of four days. 4. I direct that the plaintiff is to serve any evidence upon which the plaintiff relies no later than 4pm Monday 24 September 2007. 5. The parties have liberty to apply to the list judge on one day's notice'.
351
HAYTER, Warren Graeme (AG of NSW v) - NSW SC, Hislop J, 16.10.2007
Citation: Attorney General for the State of NSW v Hayter [2007] NSWSC 1146
Judgment.
Application seeking detention order.
Crimes (Serious Sex Offenders) Act 2006.
Decision:
'(1) I order that Warren Graeme Hayter be detained in a correctional centre for six months from today. (2) Pursuant to s 20(1) of the Act, I issue a warrant for the committal of Warren Graeme Hayter to a correctional centre for the duration of the continuing detention order in order 1 above'.
352
CORNWALL, Raymond Barry - NSW SC, Hall J, 28.9.2007
Citation: Attorney General for the State of NSW v Cornwall [2007] NSWSC 1082
Judgment.
Application for extended supervision order or continuing detention order.
Serious sex offender - Crimes (Serious Sex Offenders) Act 2006 (NSW) - Custody Based Intensive Treatment programme not completed - legislative scheme - construction of s.17(3) & nature of test under that provision - meaning of 'likely'- standard of proof - high degree of probability - whether likely to commit further serious sex offence - whether adequate supervision would be provided by extended supervision order - psychiatric & psychological assessment - whether possible to predict risk of re-offending - actuarial assessment - dynamic risk factors - whether proposed risk management plan adequate - defence barriers.
Orders:
'1. Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007). 2. Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Raymond Barry Cornwall to a correctional centre for the duration of the continuing detention order referred to in order [1] above'.
353
ABREU, Nelio - CCA, 4.9.2007
McClellan CJ at CL, Howie & Harrison JJ
Citation: Abreu v R [2007] NSWCCA 267
Sentence appeal.
1 x BE&S; 1 x use offensive weapon to prevent lawful apprehension; 5 x larceny; breach of bond; + a number of matters on 2 Form 1 documents.
Total sentence of 7 y with a NPP of 5y.
The applicant stole various items from stores & motor vehicles. The stolen items included rare wine, laptop computers, nail guns, an LCD projector, money, sunglasses & currency.
Guilty plea - offended to support drug habit - voluntarily attended drug & alcohol rehabilitation courses in prison - good prospects of rehabilitation - some remorse - long history of offending - general deterrence.
Whether sentences excessive.
Leave to appeal refused.
354
ETIENNE, Robert John - NSW SC, Bell J, 5.10.2007
Citation: R v Etienne [2007] NSWSC 1114
Judgment.
Murder.
Judge alone trial.
The accused was charged with the murder of his father. The accused had a long-standing history of paranoid & persecutory schizophrenia & was unstable without medication. He was not taking his medication at the time of the offence & claimed to have no memory of the events leading to his father's death.
Whether defence of mental illness available.
Verdict: Not guilty by reason of mental illness.
Order: To be detained in a correctional centre or such other facility as the Mental Health Review Tribunal may determine until released by due process of law.
355
MATHESON, Scott Paul - CCA, 4.10.2007 - 176 A Crim R 466
Hodgson JA, Hislop & Latham JJ
Citation: Matheson v R [2007] NSWCCA 285
Sentence appeal.
Larceny - FT of 2y; armed robbery - 4y with a NPP of 2y 3m
Total sentence of 5 y with a NPP of 3y 9m.
The applicant's role in both offences was as the driver of a getaway car.
The 1st offence involved the applicant's co-offender stealing approx 90 boxes of Codral & Sudafed tablets from a pharmacy. Another co-offender committed the armed robbery offence. Wearing a balaclava & carrying a sawn-off shotgun, he entered a loan office, struck a person on the head with the shotgun & stole a tray of jewellery valued at $1,000.
Guilty plea - on 18m GBB at time of both offences - on bail for earlier offence at time of armed rob - remorse - assistance - rehabilitation.
Lack of reasons for not setting NPP for larceny - accumulation of sentences - whether error in sentencing judge's consideration of intent to manufacture illegal drugs - whether sentence manifestly excessive.
Appeal dismissed.
356
LU, Hoang Quang - NSW SC, Price J, 16.7.2007
PHAM, Dinh Khoung
Citation: R v Lu; R v Pham [2007] NSWSC 1141
Judgment on applications for separate trials.
Lu: murder.
Pham: murder; assault.
Real risk of positive injustice in joint trial.
Order that Lu and Pham be tried separately.
357
KING, Anthony William - NSW SC, Fullerton J, 12.10.2007
Citation: R v King [2007] NSWSC 1134
Remarks on Sentence.
Manslaughter.
Excessive self-defence - low end objective seriousness - aged 18 at time of offending - outstanding prospects of rehabilitation.
Sentenced to 4y with a NPP of 1y 10m.
358
HANSELL, Shayne William - NSW SC, Latham J, 12.10.2007
Citation: R v Hansell [2007] NSWSC 1136
Remarks on Sentence.
Manslaughter.
Excessive self-defence - significant degree of recklessness.
Sentenced to 3y 4m with a NPP of 2y.
359
KNIGHT, Joy Lorraine - CCA 24.9.2007 - 176 A Crim R 338
BIUVANUA, Viliame
McClellan CJ at CL, Hidden & Howie JJ
Citation: R v Knight; R v Biuvanua [2007] NSWCCA 283
Crown appeals.
Knight: supply large commercial quantity ecstasy; + 4 x supply prohibited drug on Form 1 (methylamphetamine, ketamine, cocaine, cannabis leaf).
10y with a NPP of 6y.
Knight was the head of a drug syndicate that involved a number of men who acted as runners.
Aged 34 at time of sentence - guilty plea - disturbing upbringing - sexually assaulted at age 8 - involved with drugs since age 11 having been introduced to supplying drugs by her mother - consumption of alcohol since age 12 & amphetamine since age 17 - married to Biuvanua for 15 years - 2 daughters from the marriage aged 12 & 14 - had used ecstasy & cocaine "recreationally" since age 26.
Biuvanua: knowingly take part in supply of large commercial quantity ecstasy.
3 y with a NPP of 2y.
Aged 34 - guilty plea - came to Australia from Fiji at age 19 - psychologist described him as being emotional, unassertive, inclined to dependency - assisted Knight in the packaging of drugs.
Departure from standard NPP - parity - objective criminality - whether sentences manifestly inadequate.
Knight: Crown appeal allowed - respondent resentenced to 14y 4m with a NPP of 10y.
Biuvanua: Crown appeal dismissed.
360
HAMIEH, Andrew Pierre - CCA, 21.9.2007
James, Rothman & Harrison JJ
Citation: Hamieh v R [2007] NSWCCA 277
Sentence appeal.
Supply large commercial quantity methylamphetamine: + offence on Form 1.
11y with a NPP of 7y.
The applicant pleaded guilty to the supply of just over 2kgs of methylamphetamine to his co-offender.
Applicant's co-offender was sentenced by another judge to 7y 9m with a NPP of 5y.
Whether sentence manifestly excessive - discrepancy between co-offenders - categorisation of role in drug supply - insufficient consideration of subjective circumstances - whether justifiable sentence of grievance.
Appeal allowed: resentenced to 7y 9m with a NPP of 5y 2m.
361
FEPULEAI, David - CCA, 4.10.2007
Hodgson JA, Hislop & Latham JJ
Citation: R v Fepuleai [2007] NSWCCA 286
Crown appeal on sentencing.
Evidence sought to be led by respondent - whether fresh evidence - interests of justice.
Application refused.
362
CARR, Michael John - HCA, 23.10.2007
Citation: Carr v The State of Western Australia [2007] HCA 47
On appeal from the SC of WA.
Following the conclusion of a video recorded interview with police, the appellant was taken to the 'lock-up' section of the police station where he made admissions to police about the offence for which he had earlier been interviewed. The appellant was not aware that there was also an audio-visual recording device in the 'lock-up'.
Whether admissions inadmissible under s.570D Criminal Code (WA) - whether conversation amounted to interview within s.570D.
Appeal dismissed.
363
MATTHEWS, Michael James - CCA, 18.10.2007
McClellan CJ at CL, Barr & Bergin JJ
Citation: R v Matthews [2007] NSWCCA 294
Crown appeal.
1 x aggravated robbery (with corporal violence); 1 x aggravated assault with intent to take & drive conveyance (in company).
Total sentence of 15 m with a NPP of 12m to be served by way of PD.
The victim of the offences was a taxi driver.
Whether sentence manifestly inadequate.
Appeal dismissed.
364
MW - CCA, 16.10.2007
McClellan CJ at CL, Barr & Bergin JJ
Citation: R v MW [2007] NSWCCA 291
Crown appeal.
Aggravated sexual intercourse without consent (inflict ABH); attempt choke with intent to commit indictable offence (to have sexual intercourse without consent); + Form 1 offence of commit act of indecency.
Total sentence of 8y with a NPP of 5 y.
The above offences were committed against the respondent's 17 year old stepdaughter.
Affected by drugs - concurrent sentences imposed - objective seriousness - standard NPP's - principles of Crown appeals - subjective circumstances.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 12y with a NPP of 9y.
365
ANTAKY, John - NSW SC, Hulme J, 14.9.2007
Citation: R v Antaky [2007] NSWSC 1047
Remarks on Sentence.
Manslaughter.
The accused fatally shot his brother-in-law after being told that he had harmed relatives. The accused walked straight up to the deceased & fired 5 shots into him. Gunpowder residue showed that one of the shots had been fired from no more than 4cm away.
Sentenced to 8y with a NPP of 6y.
366
ROBERTS, Melayna Suzette - NSW SC, Fullerton J, 19.10.2007
Citation: R v Roberts [2007] NSWSC 1170
Judgment.
Murder.
The accused prayed with her 5 year old son before drowning him on the anniversary of her own mother's suicide. Three doctors gave evidence that the accused was suffering from a recurrent major depressive illness at the time of the drowning.
Verdict: Not guilty by reason of mental illness.
367
MITCHELL, Grant - CCA, 22.10.2007 - 177 A Crim R 94
GALLAGHER, Nathan
Giles JA, Howie & Fullerton JJ
Citation: R v Mitchell; R v Gallagher [2007] NSWCCA 296
Crown appeal.
Maliciously inflict GBH with intent to do GBH - guilty pleas.
Mitchell: 8y with a NPP of 4y.
Gallagher: 5y 2m with a NPP of 2 y.
Mitchell (aged 21) & Gallagher (aged 20) assaulted the victim (aged 25), as a result of which the victim suffered extensive brain injury. The victim is confined to a wheelchair, has very limited speech & very severe cognitive problems from which he will never recover. His condition has been described as being in a 'vegetative state'& 'like a living death'.
Whether sentences manifestly inadequate.
Crown appeal allowed: Mitchell resentenced to 12y with a 7y NPP; Gallagher resentenced to 9y 4m with a 5y NPP.
368
BATES, Philip - CCA, 23.10.2007
Hodgson JA, Hislop & Latham JJ
Citation: R v Bates [2007] NSWCCA 297
Stated case.
Double jeopardy - whether CCA can quash an acquittal - whether it should do so - failure to furnish an approved form when & as required - written notice requiring taxation returns by specified date - extension of time requested & not responded to - question of fact as to what was required by the Commissioner - whether offence proved.
Questions answered in the affirmative.
369
SPRINGER, Patrick - CCA, 16.10.2007 - 177 A Crim R 13
McClellan CJ at CL, Barr & Bergin JJ
Citation: Springer v R [2007] NSWCCA 289
Sentence appeal.
Import marketable quantity border controlled drug (heroin) - s.307.2 Commonwealth Criminal Code.
6y.
Upon arrival in Sydney on a flight from Vietnam, the applicant was detained & taken to hospital for a scan which revealed foreign objects found to contain 96.4 grams of heroin (71.8 grams pure). He immediately co-operated with Federal Police, made full admissions & gave details identifying those who had recruited him in Germany & facilitated his travel to Vietnam, as well as the identity of those in Vietnam who had supplied him with the heroin. He pleaded guilty in the LC & was committed to the DC for sentence. Before being sentenced, he supplied the Australian Crime Commission with information & a photograph by which he identified 2 persons involved in the importation. Other evidence provided on appeal showed that an examination of telephone intercepts & previously intercepted SMS communications caused investigators to reassess the value of the information & assistance given by the applicant. They were thereby able to identify others concerned in the importation. It is expected that the criminal trial of one man will shortly commence & proceedings against others may follow. The prosecution will depend on the co-operation & assistance of the applicant in giving evidence. Whereas at the time of sentence his assistance was believed to be of limited value with no expected prosecutions, it was now seen to be of much greater value.
Whether fresh evidence - whether sentence excessive.
Appeal allowed: resentenced to 4 y with a NPP of 2y 9m.
370
KALIYANDA, Madappa - CCA, 25.10.2007
McClellan CJ at CL, Hulme & Harrison JJ
Citation: Kaliyanda v R [2007] NSWCCA 300
Conviction and Crown appeal.
Murder.
20y with a NPP of 14y.
The appellant was found guilty of the asphyxiation of the deceased, either by smothering or strangling her: see also R v Kaliyanda [2007] NSWSC 393.
Whether error in directions on circumstantial evidence - whether open to jury to be satisfied beyond reasonable doubt - whether insufficient weight given to depression & delay between offence & trial - whether sentence manifestly excessive.
Appeal dismissed.
371
PRITCHARD, Brett Ronald - CCA, 24.10.2007
Handley AJA, Howie & Price JJ
Citation: Pritchard v R [2007] NSWCCA 305
Sentence appeal.
Malicious wounding.
5y 3m with a NPP of 3y.
The applicant gave evidence of being attacked by the victim who punched him in the head & told him he was just getting started. The applicant said that he found a kitchen knife, held it up so the victim could see it, a struggle ensued & the victim was stabbed 3 times. The applicant claimed to be in fear for his life. Crown witnesses gave various accounts of what had occurred at the time of the stabbing.
Use of excessive self-defence.
Finding of facts on sentence after jury verdict.
Appeal allowed: sentence quashed, matter remitted to the sentencing judge to hear & determine the sentence proceedings according to law.
372
CHARMAN, Nathanial David - NSW SC, Hulme J, 12.10.2007
Citation: R v Charman [2007] NSWSC 1177
Remarks on Sentence.
Manslaughter.
The offender pleaded guilty to the above offence, following the killing of an intellectually disabled charity worker during a bungled home invasion. The offender admitted to travelling to the deceased's house with 2 other men but said he did not go inside with them. He said the other 2 had killed the deceased while trying to "knock him out" with a heavy torch & that he had acted as the getaway driver. The deceased's body was discovered on the floor of his bedroom 3 days after the botched burglary, when concerned neighbours contacted police. The offender was aged 20 at the time of the offence.
Unlawful & dangerous act.
Sentenced to 6y with a NPP of 4y.
373
ROBERTSON, John Thomas - CCA, 26.10.2007 - 177 A Crim R 121
Basten JA, Latham & Rothman JJ
Citation: Robertson v R [2007] NSWCCA 270
Sentence appeal.
Defraud Commonwealth by making false claims to the Australian Taxation Office for GST refunds.
Total sentence of 5 y with a NPP of 3 y.
With the assistance of his 16-year-old son, the applicant made false claims to the ATO for GST refunds. On one occasion, he falsely claimed that companies with which he was associated purchased computer equipment to the value of over $8 million. He received a rebate from the ATO of $322,934. On another occasion, he falsely claimed acquisitions costing $4,807,654 & supplies costing $1,297,807. If that Business Activity Statement return had been accepted by the ATO, it would have resulted in a GST refund of $319,077. A verification officer with the ATO became suspicious & sought verification of the claims, which was not forthcoming. The second refund was never paid.
Plea of guilty - delay in prosecution - whether sentence manifestly excessive - Incorrectly reciting the intended concluding dates of the sentences.
Appeal allowed in part: applicant resentenced to correct administrative or clerical error.
374
THOMPSON, Robert - CCA, 24.10.2007
Hodgson JA, Hislop & Latham JJ
Citation: Thompson v R [2007] NSWCCA 299
Sentence appeal.
2 x aggravated dangerous drive occasioning death.
Total sentence of 10 y with a NPP of 7 y.
The applicant was driving a utility that was designed to carry the driver & one passenger. There were 2 passengers in the vehicle. When the applicant failed to stop at a stop sign at a railway crossing, the vehicle became airborne & struck a tree. The applicant had travelled on the road many times & knew there was a stop sign at the railway crossing. The applicant's vehicle travelled through the stop sign at 120kph. The speed limit was 60kph. The applicant crawled across the passengers' bodies in order to exit the vehicle, then left the scene. He failed to make an emergency call & only contacted police 7 hours after the collision. The applicant was affected by alcohol at the time of the collision.
Aged 31 - guilty plea - no priors - remorse.
Appeal dismissed.
375
HARE, Gregory Jordy - CCA, 25.10.2007
McClellan CJ at CL, Adams & Harrison JJ
Citation: R v Hare [2007] NSWCCA 303
Crown appeal.
14 x obtain financial benefit by deception; + Form 1 (12 x obtain financial benefit by deception).
Total sentence of 5y with a NPP of 3y 9m.
Share trading scheme - fraudulent representations made to induce victims to invest money - matter relisted for magistrate to put into effect finding of special circumstances - evidence of respondent's son's negative reaction to respondent being in custody.
Whether sentence manifestly inadequate.
Appeal dismissed.
376
CHANTHABOURY, Vong Phet - CCA, 16.10.2007 - 176 A Crim R 438
McClellan CJ at CL, Barr & Bergin JJ
Citation: Chanthaboury v R [2007] NSWCCA 290
Conviction and sentence appeal.
Accessory after the fact to armed robbery; accessory after the fact to attempted armed robbery.
Total sentence of 4y with a NPP of 2 y.
Appellant's co-offender entered a newsagency, produced a kitchen knife & threatened the victim who was standing behind the counter. The victim swung a metal pole at the co-offender. The co-offender ran out of the newsagency, got into a vehicle & was driven away by the appellant. Minutes later, the vehicle arrived at a supermarket. The co-offender entered the supermarket, raised a kitchen knife towards the victim & demanded money. The victim was afraid & told the co-offender to take the money. The co-offender removed approx $600 from the cash register, ran from the store, got into the vehicle & was driven away by the appellant. Police intercepted the vehicle a short time later.
Aged 28 at time of offending - born in Laos - came to Australia as a child with mother's parents who raised him as their own - finished school - studied hospitality at TAFE but did not complete course - started drinking & using marijuana at age 16 - heroin use at age 18 - significant poly substance abuse - placed within MERIT programme in LC - relapsed - removed from programme.
Court Attendance Notice omitted word 'attempt'- whether error in convicting & sentencing appellant in relation to offence of accessory after the fact to attempted armed robbery - failure to take into account correct maximum penalty for offence of accessory after fact to attempted armed robbery - failure to reflect differences in penalties - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: new total sentence of 3 y with a NPP of 2y.
377
WASHER, Raymond James - HCA, 8.11.2007
Citation: Washer v The State of Western Australia [2007] HCA 48
On appeal from the SC of WA.
The appellant was convicted of conspiracy to possess a prohibited drug with intent to sell or supply it to another. The trial judge admitted evidence tending to show the appellant was a drug dealer. That evidence had been adduced in an earlier trial in which the appellant was acquitted. The trial judge directed the jury not to use the drug dealing evidence from the earlier trial to infer that a person who dealt in drugs on one occasion was more likely to do so subsequently.
Whether drug dealing evidence relevant to offence of which appellant was convicted - whether evidence that appellant had been acquitted of the previous charge relevant & admissible.
Appeal dismissed.
378
HUDSON, Imraaz - CCA, 5.11.2007
Mason P, Hidden & Harrison JJ
Citation: Hudson v R [2007] NSWCCA 302
Sentence appeal.
4 x armed robbery.
Total sentence of 6y 9m with a NPP of 3y 9m.
All charges arose from the same incident, during which 4 young people were robbed. The offences were committed with a co-offender who pleaded guilty to the same 4 charges & was dealt with prior to the applicant. The co-offender was sentenced to 4 y with a NPP of 2y 9m. He had a significant criminal record, including offences of violence & was subject to a GBB & a CSO at the time of the armed robberies.
Applicant aged 23 at time of offending - minor criminal history comprising only of driving offences - reasonable prospects of rehabilitation - special circumstances found.
Failure to determine sentence for each offence individually - disparity.
Appeal allowed: resentenced to total of 5y 9m with a NPP of 3y 3m.
379
PALMER, Matthew John - CCA, 30.10.2007
Handley AJA, Hidden & Hoeben JJ
Citation: Palmer v R [2007] NSWCCA 308
Sentence appeal.
Robbery in company.
4 y with a NPP of 3y.
No details of offence given, except that one co-offender produced a knife. As soon as this occurred, another co-offender left the scene & waited outside, while the applicant remained at the scene.
Guilty plea - significant criminal history - on bond & conditional liberty at time of above offence.
Whether sentence excessive - parity - error in treating findings of planning as an aggravating factor.
Appeal dismissed.
380
ELLIOTT, Matthew James - HCA, 8.11.2007 - 82 ALJR 82; 234 CLR 38
BLESSINGTON, Bronson Matthew
Citation: Elliott v The Queen; Blessington v The Queen [2007] HCA 51
On appeal from the SC of NSW.
Murder (Janine Balding murder).
During his remarks on sentence, the judge imposed life sentences on both appellants & recommended that they never be released. At the time, the non-release recommendation had no legal effect. Subsequent legislation gave effect to a non-release recommendation so that appellants would almost certainly never be released. Appellants sought to appeal sentence to overturn the non-release recommendation.
Whether an inappropriate exercise of judicial power to give leave to reopen an appeal against sentence when subsequent legislation has attached legal consequences to the non-release recommendation.
Whether non-release recommendation a "sentence" or "order" for purposes of an appeal pursuant to s 5 Criminal Appeal Act 1912 (NSW) - whether CCA has jurisdiction to review non-release recommendation - whether the non-release recommendation was not an 'order of the court of trial'for the purpose of the Criminal Appeal Act 1912 (NSW) because it did not have any legal effect at the time it was made.
Courts - judgments - circumstances in which judgments may be reopened - earlier order not perfected - relevance of subsequent legislative changes - whether CCA erred in refusing leave to reopen judgment.
Constitutional law - exercise of judicial power.
In each matter, appeal dismissed.
381
DN - NSW SC, Hidden J, 9.11.2007
Citation: R v DN [2007] NSWSC 1252
Remarks on Sentence.
1 x murder; 1 x GBH.
The offender stabbed his partner a number of times & killed her 11 year old son. An autopsy revealed that the child had suffered multiple stab wounds to the neck & head. The offender's partner suffered multiple facial & head lacerations, together with a laceration on the right side of her tongue & lip.
Aged 24 - early guilty pleas - longstanding pattern of marijuana & alcohol abuse, including many amnestic episodes or 'blackouts'- claims not to remember committing above offences - no criminal history.
Total sentence of 25y with a NPP of 20y.
382
PM - HCA, 8.11.2007 - Reported: 232 CLR 370; 82 ALJR 57
Citation: PM v The Queen [2007] HCA 49
On appeal from the SC of NSW
Sexual offences against a child under the age of 16 (aged 14).
Appellant was aged 16 at the time of the offences, He was alleged to have had non-consensual sexual intercourse with the female complainant. The appellant was initially charged with an offence which was not a 'serious children's indictable offence'That initial charge was withdrawn & dismissed & he was charged with an offence which was a 'serious children's indictable offence'Following committal proceedings in the Children's Court, he was committed to stand trial. At trial in the DC, the major charge on the indictment was the charge initially preferred against the appellant. The DC judge ordered the matter to be remitted to the Children's Court. A subsequent appeal by the Crown to the CCA was successful & the order was set aside.
Whether charge on indictment in DC, not being a 'serious children's indictable offence', was required to be dealt with summarily in the Children's Court of NSW - s.8 Criminal Procedure Act 1986 (NSW) - s.31 Children (Criminal Proceedings) Act 1987 (NSW) - whether the DC had jurisdiction to deal with charges against a child not involving a "serious children's indictable offence".
Criminal procedure - crimes & offences by children - powers of the NSW DPP with respect to filing an indictment against a child.
Appeal dismissed.
383
WATERSON, Darren Arthur - CCA, 16.10.2007
Hodgson JA, Hislop & Latham JJ
Citation: Waterson v R [2007] NSWCCA 284
Sentence appeal.
2 x armed robbery.
Total sentence of 6y with a NPP of 3 y.
The offences involved assaults upon taxi drivers in Wagga Wagga on the same day. The applicant & his co-offender both carried knives, which they had stolen from Woolworths. They threatened each of the taxi drivers with those knives.
Aged 27 at time of offences - on GBB at time of offences - co-offender aged 30 - both offenders pleaded guilty - both had a criminal history associated with long-term cannabis & amphetamine abuse - both came from a disturbed family background marked by alcohol abuse & domestic violence - both failed to respond to supervision in the past - both recently expressed willingness to undergo rehabilitation programmes.
Co-offender given discount for assistance.
Parity.
Appeal dismissed.
384
HALL, Jason Daniel - CCA, 13.11.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: Hall v R [2007] NSWCCA 301
Sentence appeal.
12 x steal from the person; 6 x robbery; 4 x take & drive conveyance (deemed larceny); 4 x obtain benefit by deception; 1 x BE&S; + Form 1 offences (5 x steal from the person; 1 x take & drive conveyance; 5 x larceny; 3 x receive or dispose of stolen property; 2 x make or furnish false statement; 49 x obtain or attempt obtain benefit by deception).
Total sentence of 10y 9m with a NPP of 8y.
The appellant drove stolen cars around shopping centre car parks, snatching handbags from his victims as he drove past. The BE&S occurred when the appellant used keys he obtained from one of the handbags to gain access to the car park of a block of units from where he stole a car. The obtain benefit by deception offences involved him using his victims' ATM cards to withdraw money from their accounts or to attempt to do so. The offences on the Form 1 included the pawning of items of jewellery stolen from his victims, representing them as being his own, or stealing petrol from a service station by filling a stolen car & leaving without paying for it.
Aged 36 at time of offences - guilty pleas - 25% discount - drug abuse - priors - previous imprisonment.
Sustained episode of criminality - deterrence.
Assertion of factual errors - totality - whether sentence excessive.
Appeal dismissed.
385
LE, Phan Thi - HCA, 14.11.2007
Citation: Director of Public Prosecutions for Victoria v Le [2007] HCA 52
Confiscation of property - exclusion order - husband was sole registered proprietor of an that was the matrimonial home - husband charged with trafficking in drug of dependence - husband subsequently transferred the property to himself & his wife as joint registered proprietors for consideration of "natural love and affection" - DPP for Victoria obtained a restraining order over the property pursuant to the Confiscation Act 1997 (Vic) for the purpose of automatic forfeiture upon conviction - husband convicted - respondent applied, pursuant to s.51, for exclusion of the property from automatic forfeiture.
Whether whole of property, or only respondent's joint interest in the property, could be excluded from forfeiture on satisfaction of certain conditions - whether respondent satisfied condition in s.52(1)(a)(iii) that the circumstances in which she acquired her interest in property were "such as not to arouse a reasonable suspicion that the property was tainted property" - whether "reasonable suspicion" to be tested objectively - whether "natural love and affection" constituted "sufficient consideration" within meaning of s.52(1)(a)(v).
Orders
(1) Appeal allowed in respect of grounds (1)-(3) and dismissed in relation to grounds (4)-(7).
(2) Order 1 of the Court of Appeal of 15 February 2007 be set aside, appeal to the Court of Appeal be allowed and order 1 of the orders made by the primary judge on 31 March 2006 be varied as follows:
(i) Order that the interest as joint proprietor of Phan Thi Le in the property situated at 10/28-30 Ridley Street, Sunshine and more particularly described in Certificate of Title Volume 9604 Folio 908 be excluded from the automatic forfeiture pursuant to s.52(1)(a) of the Confiscation Act 1997 (Vic).
(ii) Declare that the nature of the interest of Phan Thi Le in the property is that of tenant in common as to a one-half share.
(3) Order that the DPP pay the costs of Phan Thi Le of the appeal to this Court.
386
WHEATLEY, Craig William - NSW SC, Bell J, 30.10.2007
Citation: R v Wheatley [2007] NSWSC 1182
Remarks on Sentence.
Manslaughter (unlawful & dangerous act).
Agreed statement of facts.
The fatal injuries suffered by the deceased were caused when he was pushed & fell to the ground. He may have struck his head on the gutter before a car driven by a woman came into contact with his head as he lay beside the road.
Aged 45 at time of offence - guilty plea - chronic schizophrenic illness - not causally related to offence.
Sentenced to 3y 9m with a NPP of 2y.
387
SSA - NSW SC, Hidden J, 2.11.2007
SIOSE, John Phillip
Citation: R v SSA & Siose [2007] NSWSC 1202
Remarks on Sentence.
SSA: Murder.
Siose: Manslaughter.
The offenders entered an amusement parlour. They were carrying knives at the time, which they claimed was for their own protection. The offenders did not know the deceased. They were watching him playing on a machine when an altercation took place, during which SSA stabbed the deceased once to the chest, penetrating the left lung & the heart.
SSA: Aged 17 at time of offence - spontaneous act - youth - remorse - rehabilitation prospects - counselling & training - good behaviour in prison - family support.
Sentenced to 18y with a NPP of 13y.
Siose: Aged 18 at time of offence - guilty plea - education - family support - rehabilitation prospects.
Sentenced to 6y 9m with a NPP of 3y 9m.
388
MERRIN, Christopher Gary (No.2) - CCA, 5.11.2007
Giles JA, Howie & Fullerton JJ
Citation: R v Merrin (No.2) [2007] NSWCCA 310
Judgment.
Sentence corrected.
See also: R v Merrin [2007] NSWCCA 255.
Sentence imposed by CCA on 26.8.2007 contrary to intended result & fixed term sentences imposed in breach of s.45(1). Crimes (Sentencing Procedure) Act 1999 (NSW).
389
UL-HAQUE, Izhar - NSW SC, Adams J, 5.11.2007 - 177 A Crim R 348
Citation: R v Ul-Haque [2007] NSWSC 1251
Judgment.
Application for ruling on admissibility of evidence.
The applicant is accused of receiving training from a terrorist organisation. The Crown sought to rely on the applicant's alleged admissions to the Australian Federal Pollice. ASIO officers attended the applicant's home with a search warrant, which authorised the search of the premises for certain purposes & contained no justification for detention. Three ASIO officers approached the applicant. He was told that he was required to be honest & was required to give full co-operation. ASIO officers took the applicant to a public park for a conversation. The applicant claimed that he did not believe that he had a choice as to whether to answer ASIO's questions or not. The applicant & the ASIO officers returned to the applicant's home. The applicant was told that a formal interview was required & he was taken to his parents' bedroom & participated in an interview starting at 12:05am & concluding at 3:45am, including breaks. An AFP officer was present during the interview taking notes. The applicant attended a formal interview with the AFP conducted by this officer & another AFP officer. This second AFP officer cautioned the applicant. Two days later, the applicant participated in a 2nd interview with the AFP. The Crown claimed that the cautions should have made it clear to the applicant that the AFP interviews were very different from that with ASIO. The applicant claimed that the second AFP officer attended his home & sought to enlist him as a spy for the AFP. This claim was corroborated by the applicant's brother . The applicant participated in a 3rd interview with the AFP.
Admissibility of interviews with AFP - prior improper conduct by ASIO - whether ASIO conduct criminal - false imprisonment - kidnapping - meaning of 'oppressive'- onus of proof.
Conclusion: The records of interview of 7 & 12.11.2003 & 9.1.2004 ruled inadmissible.
390
DAVIES, Marie Ann - CCA, 16.11.2007
Mason P, James & Howie JJ
Citation: Davies v R [2007] NSWCCA 316
Conviction appeal.
Supply heroin.
Police obtained a warrant to search a home unit at North Gosford. During the search they found a box containing 9.4grams of heroin, $9,875.50 in cash, two cheques in favour of the appellant, four receipts from a jeweller in the appellant's name, as well as other items (including jewellery) that could not be sourced to anyone's ownership or possession. The sole occupier of the unit was the appellant's aunt. Others, including the appellant, went to the unit at various times. It was not shown whether they did so other than being invited there by the aunt.
Circumstantial case - presumption of supply - whether verdict unreasonable - lack of positive evidence on possession of drugs - whether jury should have had reasonable doubt.
Appeal dismissed.
391
McCALL, Jason Clive - NSW SC, Barr J, 16.11.2007
Citation: R v McCall [2007] NSWSC 1269
Remarks on Sentence.
Murder.
The principal Crown witness in the trial was McCall's co-accused, who had been given indemnity from prosecution for the murder & kidnapping of the deceased, as well as for arson & selling drugs. He & McCall were involved in a plot to kidnap the deceased in order to extort money from him. The witness said they had planned the deceased's abduction as payback for his own kidnapping some years earlier, for which he believed the deceased was responsible. He said he & McCall set up a meeting with the deceased under the pretence of needing a quote on a Ferrari repair. He accused McCall of throwing the deceased off the cliff at the Gap in Sydney "like a football".
Sentenced to 29y 4m with a NPP of 22y.
392
JONES, Adam Samuel - NSW SC, Buddin J, 16.11.2007
JONES, Adam
JONES, Samuel
JONES, Elizabeth Jean
JONES, Lydia
Citation: R v Jones & Ors (No.10) [2007] NSWSC 1161
Judgment on application to discharge jury.
Adam Samuel Jones, Adam Jones, Samuel Jones & Elizabeth Jones each charged with murder of William Smith (the deceased). They are also each charged with having wounded Noah Henry Smith with the intention of killing him & in the alternative with having wounded him with the intention of doing GBH to him. Upon being arraigned, Adam Samuel Jones & Adam Jones each pleaded guilty to the manslaughter of William Smith & to the malicious wounding of Noah Smith. The pleas were not accepted by the Crown. Lydia Jones charged with being an accessory after the fact to the murder of William Smith by her husband Adam Samuel Jones. Adam Jones is also charged with assaulting Mary Rose Smith.
Applications for discharge of jury made whilst jury deliberating - lengthy period of deliberations - various interruptions to deliberation process because of illness amongst jurors.
Application refused.
393
WILLS, Russell Clement - NSW SC, McClellan CJ at CL, 23.10.2007
Citation: R v Wills [2007] NSWSC 1319
Judgment on fitness to be tried.
The accused was convicted by a jury of murder & was sentenced to 18y with a NPP of 14y: see  R v Wills [2005] NSWSC 368. At the time he was sentenced there was evidence before the sentencing judge of a psychiatric illness. The accused appealed to the CCA against his conviction & sentence, submitting that there was a question as to whether or not he was fit to be tried at the time of his trial. He was successful in his appeal. The CCA quashed his conviction & ordered a new trial, subject to an order that a fitness hearing be conducted: see Wills v R [2007] NSWCCA 160.
Further psychiatric assessment - re-introduction of medication - positive outcome - need for continued access to medication - tests in Presser (1958) VR 45; Kesavarajah (1994) 181 CLR 230.
Fitness hearing - psychiatric illness - whether able to make proper defence & give instructions - whether fit to be tried under medication.
Decision: Fit to pleadx.
394
GAC - CCA, 21.11.2007 - 178 A Crim R 408
Giles JA, Hulme & Hislop JJ
Citation: R v GAC [2007] NSWCCA 315
Crown appeal against ruling on evidence.
Sex offences.
Tendency evidence comprised of admissions of guilt to other offences committed on 2 other young girls
Exclusion of evidence must substantially weaken prosecution's case - jurisdictional requirement - whether that can be found when no current trial - what constitutes prosecution's case when trial is a future matter - court does not consider credibility or reliability of evidence in prosecution's case - whether there can be substantial weakening if evidence apart from excluded evidence, if accepted, would establish commission of offence - would be substantial weakening - tendency evidence - whether error in holding probative value does not substantially outweigh prejudicial effect - involves exercise of discretion or evaluative judgment - no error shown.
Appeal dismissed.
395
TORTELL, Shannon - CCA, 15.11.2007
TSEGAY, Sami
McClellan CJ at CL, Adams & Harrison JJ
Citation: R v Tortell; R v Tsegay [2007] NSWCCA 313
Crown appeal.
Aggravated robbery; + Form 1 offence (knowingly being carried in stolen conveyance).
300 hours CSO.
Sentence already commenced.
The victim was a self-employed private mail contractor who provided a banking service for his clients. He was on his way to deposit cash & cheques to the value of $51,482.19 on behalf of a client into an account at a branch of Westpac Bank. The cash & cheques were in his backpack. Prior to the robbery, a number of phone calls were made from a client of the victim to each respondent. Both knew an employee of that client. As the victim approached the bank, Tortell attempted to take the backpack from him. There was a struggle, during which the victim resisted & took hold of Tortell. Tsegay ran off with the bag containing the cash & cheques. A passer-by ran after Tsegay who, with another offender, got into a car that they had stolen that afternoon. They then drove off. Tortell was hit in the mouth during the struggle between him & the victim, which caused Tortell's mouth to bleed. He was held until police arrived, then was taken into custody. Tsegay & the other offender were arrested later.
The circumstance of aggravation, as conceded by the respondents, was the use of corporal violence.
Whether error in assessing objective seriousness of offence - whether non-custodial sentence for offence of robbery inappropriate in circumstances of aggravation - whether sentence manifestly inadequate.
Appeal dismissed.
396
McMULLEN, Chase Andrew - CCA, 7.11.2007
Handley AJA, Howie & Price JJ
Citation: McMullen v R [2007] NSWCCA 306
Conviction appeal.
Armed robbery in company.
Wearing balaclavas, the appellant & 2 others robbed a club of $32,900. One of the robbers (appellant's co-accused) was armed with a pistol. They made their getaway in a stolen silver coloured Nissan Skyline. One of the robbers gave evidence against McMullen & his co-accused. That evidence was corroborated by other evidence. Some weeks after the robbery, police attended some premises & observed a silver coloured Nissan Skyline with no registration plate at the rear of the vehicle in a carport under a cover. A search warrant was obtained & executed that afternoon. A video recording taken during the execution of the warrant was played to the jury. During the search, police located a number of items belonging to the appellant, including a wallet that contained identification in his name. The video showed a police officer removing items from the wallet, which he displayed to the camera & described what they were. One of the items was the appellant's periodic detention card, which was visible to the jury for about 4 seconds.
The video & transcript were not available to the jury during deliberations. The Crown & the trial judge directed the jury that inferences to time spent in gaol were irrelevant to the case.
Video of periodic detention card shown to jury for 4 seconds - whether prejudicial - whether miscarriage of justice.
Appeal dismissed.
397
RAAD, Ahmed - CCA, 13.11.2007
Handley AJA, Hidden & Hoeben JJ
Citation: Raad v R [2007] NSWCCA 311
Conviction appeal.
Robbery armed with offensive weapon.
4y with a NPP of 2 y.
The victim had just entered the building where he lived when the appellant threatened him with a knife and robbed him of his mobile phone, watch & $300 in cash. Most of the Crown case was not in dispute. The only issue was that of identification. The complainant's evidence was that he had seen the appellant on 3 occasions: before, during & after the robbery. The appellant's evidence was that he did not fit the habits & description of the robber. The appellant relied on alibi evidence from his sister & his fianc .
Identification evidence - assessment of evidence - identification by victim - description - inconsistencies - effect of alibi evidence - whether verdict unreasonable or unsupported.
Appeal dismissed.
398
KRISHNA, Rakesh - CCA, 23.11.2007 - 178 A Crim R 220
Basten JA, Latham & Rothman JJ
Citation: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Conviction and sentence appeal.
Robbery with wounding.
9y 4m with a NPP of 7y.
The appellant & his co-accused robbed the victim of a sum of money whilst armed with a knife & in company.
Whether failure to call witness constituted miscarriage of justice - failure by prosecution to produce weapon - whether issue in prosecution case unsupported by evidence - whether offence fell within mid-range of objective seriousness - whether sentence excessive.
Appeal dismissed.
399
ALRAMADAN, Rafid Ghani - CCA, 23.11.2007
Basten JA, Latham & Rothman JJ
Citation: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
Conviction appeal.
Administer stupefying drug; aggravated act of indecency; aggravated sexual intercourse without consent.
12y with a NPP of 10y.
The appellant was a medical practitioner in a general practice in central NSW. The 50 year old female complainant was a patient who claimed that when she visited the appellant's surgery in December of 2005, the appellant administered a stupefying drug (diazepam) & had non-consensual intercourse with her.
Rejection in advance of evidence from 2 expert witnesses - whether evidence sought to be adduced was admissible - whether trial judge entitled to reject evidence - whether miscarriage of justice - whether leave should be granted - application of proviso in s.6(1) Criminal Appeal Act 1912 (NSW).
Appeal dismissed.
400
BALDINI, Paul - CCA, 21.11.2007
McClellan CJ at CL, Hall & Price JJ
Citation: Baldini v R [2007] NSWCCA 327
Sentence appeal.
3 x accessory after the fact to fraud (s.347 Crimes Act 1900); + Form 1 (2 x s.347 offences).
Total sentence of 2­­y with a NPP of 2y.
Guilty pleas - assessment of objective seriousness - parity - assistance to authorities - special circumstances - no loss attributable to applicant's conduct - application of s.10A Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: Sentences imposed for counts 1,2&3 quashed; applicant resentenced under s.6(3) Criminal Appeal Act 1912 making an order under s.10A Crimes (Sentencing Procedure) Act 1999 on each count to the effect that the proceedings be disposed of on the basis that no other penalty be imposed; applicant's immediate release ordered.
401
PHAM, Huy - NSW SC, James J, 12.11.2007
Citation: R v Pham [2007] NSWSC 1312
Judgment.
Fitness hearing.
Shoot with intent to murder; threaten use offensive weapon (pistol) with intent to commit indictable offence; malicious damage by fire; use firearm without being authorised; possess firearm without being authorised.
Decision: Accused fit to be tried.
402
PHAM, Huy - NSW SC, James J, 15.11.2007
Citation: R v Pham [2007] NSWSC 1313
Judgment.
Judge alone trial.
Shoot with intent to murder; threaten use offensive weapon (pistol) with intent to commit indictable offence; malicious damage by fire; use firearm without being authorised; possess firearm without being authorised.
Mentall illness - M'Naghten rule - accused not knowing what he was doing was morally wrong.
Decision: Not guilty by reason of mental illness.
403
GONZALES, Sef - CCA, 27.11.2007 - 178 A Crim R 232
Giles JA, Howie & Fullerton JJ
Citation: Gonzales v R [2007] NSWCCA 321
Conviction and sentence appeal.
3 x murder.
Life imprisonment for each of the 3 offences.
The appellant was convicted of the murder of his father, mother & sister at the family home in North Ryde. Each had repeatedly been stabbed & the sister was subjected to strangling & bashing with a blunt instrument: see  Regina v Gonzales [2004] NSWSC 822.
Admissions - false alibi - not recorded - whether made inadmissible by s.281 Criminal Procedure Act - whether inadmissible in absence of objection - whether evidence available at trial admissible on appeal to establish inadmissibility - whether a suspect when admissions made - relevance of some evidence.
Conduct of Crown Prosecutor - whether departure from standards of fairness in cross-examination & address to jury - whether error in putting in cross-examination that accused said Crown witnesses were wrong - whether miscarriage - whether sentence excessive.
Appeal dismissed.
404
TILLMAN, Kenneth Davidson - NSW CA, 26.11.2007 - 70 NSWLR 448; 178 A Crim R 133
Mason P, Giles JA & Ipp JA
Citation: Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327
Judgment.
Crimes (Serious Sex Offenders) Act 2006 (NSW) - continuing detention orders under s.17(3) - construction of the term 'likely'- whether, in the light of the standard of proof in s.17(3) & the common law presumption against the infringement of personal liberty, the term 'likely' is used in s.17(3) as meaning 'more probable than not'- principle of comity - whether an intermediate appellate court of one Australian jurisdiction should, on grounds of comity, follow a decision of an intermediate appellate court of another Australian jurisdiction where the issue under consideration involves the interpretation of legislative provisions that are identical or substantially similar.
Appeal dismissed.
405
DUNN, Darren Brian - CCA, 13.11.2007
Handley AJA, Hoeben J, Smart AJ
Citation: Dunn v R [2007] NSWCCA 312
Sentence appeal.
Maliciously damage by fire; maliciously destroy by fire; + Form 1 (possess cannabis).
7 y with a NPP of 6y.
Believing that the occupant of a neighbouring unit was a paedophile, the applicant lit a fire on the front porch of the unit. Some 2 months later, he destroyed the unit by fire.
Aged 36 - dysfunctional upbringing - alcohol & drug problem - anti-social personality disorder - lengthy criminal record for serious offences - on parole for 2 offences of armed robbery at time of offending.
Whether sentence excessive - whether error in treating applicant's belief that complainant a paedophile as an aggravating factor - whether NPP disproportionately long.
Appeal allowed: resentenced to 7 y with a NPP of 5y 8m.
406
JS - CCA, 19.11.2007
Spigelman CJ, Mason P, McClellan CJ at CL, Hidden & Howie JJ
Citation: R v JS (No.2) [2007] NSWCCA 309
Judgment.
Application for costs.
Acquittal by directed verdict made in applicant's favour.
The Crown's application for leave to appeal was dismissed & leave was reserved to applicant to seek costs: see R v JS [2007] NSWCCA 272. The applicant claimed that the Court had power to award costs where no jurisdiction to entertain appeal & power to award costs at large. The Crown claimed costs not awarded in criminal proceedings. The applicant claimed that the matter was not a proceeding 'sunder this Act's therefore prohibition of costs awards in criminal matters pursuant to s.17 Criminal Appeal Act 1912 (NSW) was inapplicable; claimed restricted scope of matter to relevant issues to limit costs; claimed costs compensatory as distinct from punitive.
Whether matter not a proceeding - whether appropriate to award costs.
Application dismissed. Applicant unable to find relevant statutory provision providing express or implied power to award costs & traditional common law position was costs unavailable in criminal proceedings therefore inappropriate to award costs to either party.
407
MARKHAM, Simon Colin - CCA, 13.11.2007
McClellan CJ at CL, Hidden & Price JJ
Citation: Markham v R [2007] NSWCCA 295
Sentence appeal.
Dangerous drive occasioning death.
6y with a NPP of 3y.
The applicant was a truck driver. He was driving his truck at an estimated speed of between 50 & 60 kph when it went through an intersection against the red light & struck a car. The driver of that car was killed.
Aged 28 - guilty plea - record for speeding offences - subsequent speeding offence 8 months after dangerous drive offence - prospects of rehabilitation - need for extended period of supervision.
Approach to guideline in Whyte - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2y 3m.
408
BASHFORD, Sesoni - NSW SC, Rothman J, 30.11.2007
Citation: R v Bashford [2007] NSWSC 1380
Remarks on Sentence.
Manslaughter (unlawful & dangerous act).
The accused punched a man once to the left side of his face, whereupon the man fell & hit his head on the concrete pavement. He died 2 days later.
Guilty plea - lower range of culpability.
Sentence: 5y 3m with a NPP of 3 y.
409
SMALE, Garry Anthony - CCA, 29.11.2007
Mason P, James & Howie JJ
Citation: Smale v R [2007] NSWCCA 328
Conviction and sentence appeal.
Murder - 18y with a NPP of 13 y;
Armed robbery in company - 13y with a NPP of 9y 9m (concurrent).
The Crown case was that the appellant & man named Wigney robbed a hotel. At the time, Wigney was armed with a loaded revolver. During a struggle with a bar manager, Wigney fired 2 shots, one of which struck & killed the bar manager. Wigney eventually pleaded guilty to murder & agreed to give evidence against he appellant. It was Wigney's evidence that the appellant knew before the robbery that the revolver was loaded because he had wiped the weapon & bullets in order to destroy any fingerprints. Wigney also maintained that during the robbery, the appellant had been armed with a knife.
Summing up on case not relied upon by Crown - application of proviso - whether address by Crown prosecutor unduly prejudicial - whether evidence of other offences inadmissible or unduly prejudicial - sentencing - double punishment.
Conviction appeal dismissed.
Appeal against sentence for murder dismissed.
Appeal against sentence for armed robbery allowed: resentenced to 8 y with a NPP of 6y 4m (concurrent).
Total sentence remains unchanged.
410
GILHAM, Jeffrey - CCA, 26.11.2007 - 178 A Crim R 72
Spigelman CJ; McClellan CJ at CL, Hulme, Hidden & Latham JJ
Citation: Gilham v R [2007] NSWCCA 323
s.5F appeal against interlocutory judgment of Howie J refusing an application for a stay of an ex-officio indictment charging the applicant with the murder of his parents.
Applicant's parents & brother were stabbed to death. The applicant was charged with the murder of his brother. He pleaded guilty to a charge of manslaughter, which was accepted in full discharge of the indictment on the basis that he killed his brother due to provocation resulting from the fact that his brother had killed their parents. After 2 inquests, the Coroner concluded that the applicant should stand trial for the murder of his parents. The DPP declined to prosecute him on the basis that there was no reasonable prospect of a conviction. A subsequent review of the investigations into the killings was undertaken. A brief of evidence was sent to the DPP & an ex officio indictment was filed charging the applicant with the murder of his parents. The principal issue on appeal arose from the inconsistency between the new indictment on charges that the applicant killed both his parents & the basis of the plea of guilty to the charge of manslaughter of his brother. The applicant also sought leave to appeal from the judgment of Howie J with respect to the effects of delay & the loss of evidence & on the basis of oppression.
Principle of incontrovertibility - double jeopardy - delay - jury warnings - whether sentencing judge found agreed facts true - whether prosecution constituted abuse of process.
Appeal dismissed.
411
AOUN, Gabriel - CCA, 16.10.2007
Hodgson JA, Hislop & Latham JJ
Citation: Aoun v R [2007] NSWCCA 292
Sentence appeal.
Accessory before the fact to murder.
17y 3m with a NPP of 13y.
The offender moved a car from a driveway in order to access a stolen vehicle. He broke & removed the steering column & ignition barrel to move the car & replaced the parts with substitutes. He then wiped down the interior with 3 cans of WD40 & advised his co-offender to wait until dark. The co-offender drove past the deceased's house & fired shots, killing the deceased.
Aged 28 - good work ethic - no priors.
Whether error in finding substantial culpability - whether error in finding applicant significant operative - failure to find applicant otherwise of good character - whether sentence manifestly excessive.
Appeal dismissed.
412
DREW, Craig John - CCA, 3.12.2007
Mason P, Hidden & Harrison JJ
Citation: R v Drew [2007] NSWCCA 331
Crown appeal.
4 x robbery whilst armed with offensive weapon (knife); 1 x robbery whilst armed with offensive weapon (knife) with wounding
Total sentence of 8y with a NPP of 5 y.
The offences were committed over a period of one week. Four offences involved the robbery of bus drivers. The remaining offence involved the respondent robbing a young female working at a florist. Each of the victims was threatened with a knife & one of the bus drivers was stabbed in the arm.
Totality - whether similar offences committed over short period of time should attract totally concurrent sentences - whether accumulation of sentences adequately reflect seriousness of crimes - whether miscarriage of sentencing discretion - whether sentences manifestly inadequate.
Appeal dismissed.
413
SENG, Piseth - CCA, 7.12.2007
Giles JA, Grove & Harrison JJ
Citation: Seng v R [2007] NSWCCA 335
Sentence appeal.
Import marketable quantity heroin.
5 y with a NPP of 3y.
The applicant & his co-offender each pleaded guilty to the above offence. Both offenders arrived in Australia on a flight from Cambodia, each carrying heroin concealed internally.
Parity - whether sentence excessive.
Appeal allowed: resentenced to 5y with a NPP of 2 y.
414
FEPULEAI, David - CCA,27.11.2007
Hodgson JA, Hislop & Latham JJ
Citation: R v Fepuleai [2007] NSWCCA 325
Crown appeal.
Assault with intent to rob whilst armed with dangerous weapon.
Suspended sentence of 2y with a NPP of 1y.
Aged 18 at time of offending - a follower, not a leader - some health problems - limited criminal history.
Whether sentence manifestly inadequate - effective disregard of Henry guideline - error in findings - 'double counting'in finding of special circumstances - significant discount for guilty plea when plea not entered at earliest opportunity - failure to have regard to relevant aggravating factors - no true parity with juvenile co-offender - significance of medical condition to sentencing discretion.
Appeal allowed: respondent sentenced to a custodial sentence of 3y with a NPP of 1 y.
415
KAISER, Brian Andrew - NSW SC, Barr J, 29.11.2007
HUNT, Jeremy Michael
Citation: R v Kaiser; R v Hunt [2007] NSWSC 1362
Remarks on Sentence.
Kaiser: Manslaughter; supply amphetamines - guilty pleas.
Hunt: Manslaughter - guilty plea.
Kaiser (age 33) had been in a sexual relationship with the deceased & supplied her with amphetamines. The deceased decided to end the relationship but Kaiser wanted it to continue. The situation became awkward & the deceased took out an AVO. Two court proceedings followed in which it was said that Kaiser had breached the conditions of the order. Kaiser became resentful & enlisted Hunt (age 19) to go with him to the house where the deceased was living. They tried to jemmy open a security door but only succeeded in damaging the metal door & a wooden door. The deceased reported the matter & Kaiser was arrested & charged with trespass & malicious damage. Kaiser wanted revenge & asked Hunt to go to the house & deal with the deceased. Hunt went there with a female co-offender. Their car came to a stop opposite the deceased's house, whereupon Hunt got out of the car with a .22 rifle. The deceased heard the car, went to the window & began to part the blinds to look out. Hunt fired 3 shots at the house. The 1st shot struck the deceased in the neck & travelled to a lung. She died shortly thereafter. The 2nd & 3rd shots hit the house. Hunt then got back into the female co-offender's car & they drove off.
Kaiser sentenced to 10y 11m with a NPP of 8y 2m.
Hunt sentenced to 9y with a NPP of 6y 9m.
416
ROCCO, Michelle Rowena - NCW SC, Barr J, 29.11.2007
Citation: R v Rocco [2007] NSWSC 1361
Remarks on Sentence.
Rocco was the female driver of the car that drove the shooter to & from the deceased's house: see  R v Kaiser; R v Hunt [2007] NSWSC 1362 for details.
Sentence: 5y conditional GBB.
417
GATELY, Grahame James - HCA, 6.12.2007 - 232 CLR 208; 82 ALJR149
Kirby, Hayne, Heydon & Crennan JJ
Citation: Gately v The Queen [2007] HCA 55
On appeal from the SC of Queensland.
The appellant was tried on an indictment alleging 12 counts of sexual offences against a complainant who was aged 14 at the time.
Video evidence of the complainant - jury shown a videotape of the complainant's evidence in chief & cross-examination given at a preliminary hearing.
Whether videotape itself was admissible into evidence as an exhibit - whether permitting jury to replay complainant's pre-recorded video evidence during deliberations & in the absence of judge & counsel constituted miscarriage of justice - whether complainant's written statement to police admissible despite tender of pre-recorded video evidence - whether direction that jury not give undue weight to complainant's pre-recorded video evidence or written statement to police required - application of proviso - nature of inquiry - order of consideration of statutory criteria.
Appeal dismissed.
418
DIESING, Martin - CCA, 27.11.2007
CZERWINSKI, Rudolph Paul
ACKLAND, Terrence John
PALIN, Luke
HAMILTON, Peter
Hoeben, Latham & Harrison JJ
Citation: Diesing & Ors v R [2007] NSWCCA 326
Sentence appeals.
Miscellaneous drug offences (supply indictable quantity methylamphetamine; supply commercial quantity methylamphetamine; conspiracy to manufacture indictable quantity methylamphetamine; conspiracy to manufacture commercial quantity methylamphetamine).
Diesing: 10 y with a NPP of 7y 8m.
Czerwinski: 13y with a NPP of 10 y.
Ackland: 10y with a NPP of 7y.
Palin: 4 y with a NPP of 3y.
Hamilton: 16y with a NPP of 12y.
Error in judge incorrectly believing that standard NPP applied to offence of conspiracy to manufacture commercial quantity methylamphetamine - operation of proviso - evaluation by judge of psychological reports where basis of opinions not disclosed - importance of identifying role of participants in conspiracy - failure to give effect to finding of special circumstances - parity.
Appeals allowed, applicants resentenced as follows:-
Diesing: 8y 9m with a NPP of 6 y.
Czerwinski: 11y 5m with a NPP of 8y.
Ackland: 8y 5m with a NPP of 6y.
Palin: 3y with a NPP of 2y.
Hamilton: 15y with a NPP of 11y.
419
RICKARD, Angela Doreen - CCA, 4.12.2007
Handley AJA, Hoeben J, Smart AJ
Citation: Rickard v R [2007] NSWCCA 332
Sentence appeal.
Manslaughter.
2y with a NPP of 12m suspended upon entering 2y GBB under s.12 Crimes (Sentencing Procedure) Act 1999.
The applicant pleaded guilty to the manslaughter by neglect of her infant daughter (age 13 months) who drowned in a bath when left unattended. The applicant was then sentenced. Her bond was subsequently revoked after the commencement of the amendments to the Act, which took effect in November of 2006. The original sentence had not been formally entered & the judge held that he had no power to reopen the NPP that had already been set & ordered that the sentence take effect. The applicant sought leave to appeal against the original sentence & the later order, following revocation of the bond, that it take effect.
Whether error in judge's decision that he had no power to reconsider the NPP, said to be manifestly excessive.
Appeal dismissed.
420
ABDUL-KADER, Mostafa - CCA, 29.11.2007 - 178 A Crim R 281
Beazley JA, Hulme & Latham JJ
Citation: Abdul-Kader v R [2007] NSWCCA 329
Conviction and sentence appeal.
Murder; robbery in company.
Total sentence of 21y with a NPP of 15y 9m.
Appellant's co-offender received a total sentence of 21y with a NPP of 18y.
Exception to credibility rule - re-establishing credit - prior consistent statement - question of admissibility of prior consistent statement to support or establish credit - trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion - whether trial judge erred in refusing tender of statement - parity - appellant's criminality of a lower objective seriousness - co-accused 3 years younger & of limited intellect - whether trial judge erred in imposing sentence - date of commencement of sentence - pre-sentence custody - custody not exclusively referable to sentence being passed - appellant serving sentence for other offences - whether trial judge failed to give credit for time in custody.
Appeal dismissed.
421
LE, William - CCA, 23.11.2007
McClellan CJ at CL, Hall & Price JJ
Citation: Le v R [2007] NSWCCA 330
Sentence appeal.
1 x specially aggravated kidnapping; 3 x robbery in company.
Total sentence of 5y with a NPP of 2 y.
Procedural fairness - duress - evidence of co-offender taken in the absence of applicant & his legal representatives - whether miscarriage of justice.
Appeal allowed: sentences quashed; matter remitted to the DC; sentencing proceedings to be commenced again before another judge of the DC.
422
PICKEN, Leighton Mark - CCA, 26.11.2007
Mason P, Hidden & Harrison JJ
Citation: Picken v R; R v Picken [2007] NSWCCA 319
Conviction appeal; and
Crown appeal against sentence.
2 x aggravated sexual intercourse without consent (person under 16); 1 x aggravated indecent assault (person under 16).
Concurrent terms of 2y suspended upon entering into GBB.
The appellant (age 20) was a dance instructor at a studio owned by his mother at which the 13 year old complainant took dancing lessons. Each of the offences arose from an event during a party at the home of the complainant's uncle. After dinner, the adults mostly stayed inside the house while the children & the appellant went outside. They were in & out of a swimming pool & spa during the rest of the night. The complainant stated that she was sitting next to the appellant in the spa & that he grabbed her hand, stroked her leg, lowered her bikini bottom, rubbed the region of her vagina & digitally penetrated her. He then forced her hand onto the outside of his board shorts to press his erect penis. The complainant moved away, but the appellant again put his hand down her swimmers & digitally penetrated her vagina. Following this, the complainant moved away from the appellant, who got out of the spa & went to get a beer. The complainant told her friend what had happened. The complainant, her friend & cousin then left the spa. The complainant went upstairs, had a shower & changed. She went back downstairs & told her mother. She repeated the complaint to the appellant's mother & other adults. The complainant's mother took her to the police where she repeated the allegations. When questioned by police, the appellant denied the allegations.
Conviction appeal: Objection & points not raised in court below - mis-directions & non-directions - whether amounting to an absence of a fair trial.
Crown appeal: Whether sentence manifestly inadequate - alleged undervaluing of degree of criminality - whether too much weight given to appellant's medical condition.
Appeal dismissed.
423
MAXWELL, Dallas Aaron - CCA, 30.10.2007 - 177 A Crim R 498
Handley AJA, Howie & Price JJ
Citation: Maxwell v R [2007] NSWCCA 304
Sentence appeal.
1 x aggravated BE&S (maliciously inflicting ABH); + Form 1 (1 x assault).
4y with a NPP of 3y 4m.
Aged 33 at time of offending - lengthy criminal history, including offences of violence - previous imprisonment.
Guilty plea - application of standard NPP - whether used as starting point rather than reference point - relevance of criminal record - whether sentence excessive.
Appeal allowed: applicant resentenced to 4y with a NPP of 2 y.
424
MICHEL, Kelvin William - CCA, 5.12.2007
Handley AJA, Hoeben J, Smart AJ
Citation: Michel v R [2007] NSWCCA 337
Sentence appeal.
Conspiracy to import trafficable quantity cocaine; knowingly concerned in the importation of trafficable quantity cocaine (s.233B(1)(b) Customs Act 1900 (Cth); cultivate cannabis plants; supply cannabis leaf; goods in custody - guilty pleas - sentenced to14y with a NPP of 8y 9m.
The applicant had previously been convicted of being knowingly concerned in the importation of a trafficable quantity of cocaine & sentenced to 3y with a NPP of 1y 3m for that offence.
Whether sentence excessive.
Appeal dismissed.
425
SEVER, Zoran - CCA, 6.12.2007
Grove, Hulme, Simpson JJ
Citation: Sever v R [2007] NSWCCA 339
Conviction appeal.
1 x destroy property by fire with view to making a gain (arson).
Trial commenced on 19.3.2007. The verdict was returned on 2.4.2007 & appellant was placed in custody. On 22.6.2007, the judge ordered his release on conditional bail. Sentence has not yet been passed.
The Crown case was that business premises owned by a company, of which the appellant was the sole director, were destroyed by fire. There was evidence of the presence of accelerant having been used & also that shortly before the fire the appellant had substantially increased the insurance cover on the building. There was evidence of his financial situation & his need for funds & the closing of the premises & departure on the evening prior to the fire. The Crown also relied upon lies asserted to have been told by the appellant as evidence of consciousness of guilt.
Failure to caution jury concerning election of accused not to give evidence - no request by counsel - direction required in circumstances - evidence of sample selection following pointing to locations by trained dog - whether error in admission of evidence - whether warning required.
Appeal allowed: new trial ordered.
426
HIRON, Timothy Paul - CCA, 7.12.2007
McClelland CJ at CL, Hall & Price JJ
Citation: Hiron v R [2007] NSWCCA 336
Sentence appeal.
4 x AOABH; 1 x false imprisonment; 2 x resist police in execution of duty.
Total sentence of 6y with a NPP of 4y.
Following the applicant's release from prison, he found out that his de facto (the victim) had been in a number of relationships during his time in prison, including one with a serving prison officer. This became a source of tension & dispute between them, as did the fact that she was 23 weeks pregnant. On the day of the 1st offence, the victim sent an SMS text message to the applicant saying that she was leaving him. This resulted in him demanding that she tell him about the details of a previous relationship, which she declined to do. The applicant flicked the victim's eye with his finger & punched her on the head. He drove with her on the M2 motorway, stopped the car & took the victim down an embankment. He forced her to her hands & knees & nudged her on the head with a tyre lever, whereupon she urinated. The applicant then drove the victim to a vacant lot, twisted her arm behind her back & held the tyre lever above her head. He demanded that she start talking. When a stranger walked nearby, the applicant stopped his threats & drove away. About 5 weeks later, he began questioning the victim about 2 of the men with whom she had had a relationship. He kicked the victim in the chest & squeezed her around the throat. He stopped when their young daughter entered the bedroom. The applicant phoned his mother, who took the child home with her. The applicant continued questioning the victim over the next few hours, punching her with a series of boxing jabs around the hairline & threatening her. The following afternoon, he recommenced questioning the victim about the 2 men, made her lie down, then kicked her on the upper legs & buttocks & punched her on the head a number of times. The applicant forced the victim to sit in the lounge room while he questioned her & prevented her from gaining access to phones. When the applicant eventually fell asleep in the early hours of the morning, the victim ran to a neighbour's house & asked them to call the police. When police officers arrived a short time later, they observed that the victim had extensive injuries. They entered the house & placed the applicant under arrest. As they attempted to handcuff him, he resisted by throwing his arms & body around. The police officers took approx 2 to 3 minutes to subdue him.
Aged 38 - guilty plea - long criminal history - previous imprisonment.
Discount applied to total sentence instead of fixing appropriate sentences for each offence before considering whether total sentence reflected criminality - totality - whether sentences manifestly excessive.
Appeal allowed in part, resulting in the total sentence remaining at 6y with a NPP of 4y.
427
HARDT, Bernard - CCA, 12.12.2007
Giles JA, Grove & Harrison JJ
Citation: Hardt v Environment Protection Authority [2007] NSWCCA 338
Conviction and sentence appeal.
Offence against s.144(1) Protection of the Environment Operations Act 1997 (permitting land to be used as a waste facility).
Fined $12,000; order to pay respondent's legal costs of $105,000; order to take action to remediate deposited waste.
On appeal from the Land and Environment Court.
Appeal dismissed.
428
PEARMAN, Troy Edward - CCA, 10.12.2007
Grove, Simpson & Barr JJ
Citation: Pearman v R [2007] NSWCCA 342
Sentence appeal.
Supply methylamphetamine.
2y with a NPP of 14m.
The applicant assisted in the delivery of the drug from the home of his partner to her brother. His involvement in the supply was incidental. There was no evidence or suggestion of any commercial or other interest on his part.
Guilty plea - low level of criminality - parity - justifiable sense of grievance.
Appeal allowed: resentenced to 14m with a NPP of 10m.
429
WGC - HCA, 12.12.2007 - 233 CLR 66; 82 ALJR220
Citation: WGC v The Queen [2007] HCA 58
On appeal from the SC of South Australia.
Appellant was convicted of having unlawful sexual intercourse with person of or above the age of 12 years and below the age of 17 years.
Section 49(4) of the Criminal Law Consolidation Act 1935 (SA) provided a defence to the offence when the complainant was of or above the age of 16 years & the accused believed on reasonable grounds that the complainant was of or above the age of 17 years. The Particulars of Offence alleged that the appellant had sexual intercourse with the complainant when she was aged 13. The appellant alleged that sexual intercourse occurred when the complainant was aged 16 & that he believed on reasonable grounds that she was of or above the age of 17 years. The jury convicted the appellant.
Whether the date of the offence was a material particular that had to be proved beyond reasonable doubt - relevance of the conduct of the trial to whether the date was a material particular - relevance that the elements of the offence were admitted - whether the prosecution should have amended the Particulars of Offence to allege alternative dates - whether the defence in s.49(4) was available to the offence as alleged in the Particulars of Offence - whether the verdicts were uncertain because it cannot be known whether the jury convicted the appellant for an offence committed when the complainant was aged 13 or 16 - whether the verdicts were uncertain because different jurors may have reached the verdict by different processes of reasoning - whether the trial judge misdirected the jury.
430
CUMMINGS, Christine Gale - CCA, 4.12.2007
Grove, Hulme & Simpson JJ
Citation: Cummings v R [2007] NSWCCA 347
Sentence appeal.
Supply methylamphetamine.
6y with a NPP of 4y.
Police conducted a search of the applicant's premises where they found 19.28 grams of methylamphetamine, some of which was found in resealable plastic bags. Also found was a handbag with $2,365 in cash.
Prior drug offences - whether error in sentencing judge taking into account as aggravating factor - whether error in not making any direct finding as to whether appellant a user or dealer - clinical depression - whether error in not making reference to clinical findings - special circumstances.
Appeal allowed: resentenced to 5y 5m with a NPP of 4y.
431
EKEN, Canan - CCA, 13.12.2007
Handley AJA, Hidden & Hoeben JJ
Citation: Eken v R [2007] NSWCCA 320
Sentence appeal.
2 x aggravated sexual assault; 1 x aggravated sexual assault in company; 1 x common assault.
Total sentence of 15y 9m 12d with a NPP of 11y 9m 12d.
The applicant pleaded guilty to the above offences which were committed during the course of an episode of physical & sexual abuse of a young woman at a home unit.
Whether applicant affected by mental illness at relevant time - hardship to disabled brother & other family members - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 14y 3m with a NPP of 10y 3m.
432
BRYAN, Gregory Mark - CCA, 14.12.2007
Grove, Hulme & Simpson JJ
Citation: Bryan v R [2007] NSWCCA 351
Conviction appeal.
2 x sexual intercourse with child aged between 10 & 16; 2 x homosexual intercourse with male aged between 10 & 18; 2 x aggravated indecent assault.
Total sentence of 5y with a NPP of 3y.
The complainant was a school pupil & the appellant was a youth pastor at the Blue Mountains City Church. It was the Crown case that the offences occurred over a period of approximately 6 weeks.
Inconsistencies in the version of events given by the complainant.
Whether verdict unreasonable.
Appeal dismissed.
433
FRAZER, Owen Henry - NSW SC, Howie J, 11.12.2007
SPENCER, William Wayne
Citation: R v Frazer; R v Spencer [2007] NSWSC 1449
Remarks on Sentence.
Manslaughter.
The Crown case was that the deceased was intentionally shot during the course of an armed robbery committed by Frazer & Wilson at the instigation of Spencer. The defence case was that the deceased was accidentally shot during a drug supply transaction between Wilson & the deceased organised by Spencer. Each of the offenders gave evidence in support of that defence. The jury, however, rejected their accounts & convicted Wilson of murder & Frazer & Spencer of manslaughter. Frazer went to great lengths to ensure that the deceased's partner was not at home when the 3 offenders went to the deceased's home.
Frazer: sentenced to 11y with a NPP of 7 y.
Spencer: sentenced to 13y with a NPP of 9 y.
434
EVANS, Graham John - HCA, 13.12.2007 - 235 CLR 521; 82 ALJR250
Citation: Evans v The Queen [2007] HCA 59
On appeal from the SC of NSW.
2 x armed robbery.
Security cameras photographed an armed man robbing people of money. The offender was wearing overalls, sunglasses & a balaclava that covered his face except for his eyes & mouth. After the robbery, a baseball cap & a tissue were found on the floor near where the robber had stood. The security photographs show where these items were found. The photographs tendered in evidence were not very clear. In some of them something that could be a cap can be seen on the floor; in other earlier photographs it cannot be seen. Nearly 2 years after the robbery, police went to the appellant's house. They found a red full-faced balaclava in his bedroom & a pair of blue overalls in the laundry. There was also a box of similar balaclavas kept in the basement. The appellant provided a DNA sample, the profile of which was the same as the profile of DNA recovered from the cap found at the scene of the robbery. During his trial, the appellant was required to wear overalls & a balaclava found at his residence & sunglasses that were not in evidence, as well as walk before the jury & say words attributed to the robber.
Whether in-court demonstration relevant - whether demonstration unfairly prejudicial - relevance of distinction between demonstrations, experiments, inspections, reconstructions & views - whether s.53 of the Evidence Act 1995 (NSW) applied to in-court demonstrations - whether requiring appellant to perform in-court demonstration permitted either by s.53 of the Act or at common law - application of proviso - whether trial judge's error in not admitting alibi evidence which appellant proposed to call denied application of proviso - whether failure of trial judge to give adequate reasons for rulings made during trial a miscarriage of justice - whether judicial warnings to jury adequate - whether in-court demonstration so prejudicial as to deny application of proviso - whether trial so departed from fundamental assumptions underpinning a fair trial that proviso could not or should not be engaged
Appeal allowed: new trial ordered.
435
HARRIS, Peter - NSW SC, Bell J, 13.12.2007
Citation: R v Harris [2007] NSWSC 1417
Remarks on Sentence.
Manslaughter.
Unlawful & dangerous act. Stabbing in domestic context.
Sentenced to 7y with a NPP of 4y.
436
MAWSON, Philip - NSW SC, Adams J, 14.12.2007
Citation: R v Mawson [2007] NSWSC 1473
Remarks on Sentence.
Manslaughter.
Mental illness - diminished responsibility.
Sentenced to 11 y with a NPP of 7y.
437
DARCY, Ian Thomas - NSW SC, Berman AJ, 14.12.2007
Citation: R v Darcy [2007] NSWSC 1392
Remarks on Sentence.
Murder.
The offender stabbed his de facto in the neck, killing her. At the time of the offence, the offender was drunk. He had a severe problem with alcohol & he knew that when he drank too much, he became angry.
Relevance of epileptic seizures to moral culpability.
Sentenced to 20y with a NPP of 15y.
438
RAJU, Kaniappa - NSW SC, Bell J, 14.12.2007
Citation: R v Raju [2007] NSWSC 1418
Remarks on Sentence.
Murder.
The offender was found guilty of the murder of his de facto wife. The manner by which the deceased was killed is not known & the body has not been found. The Crown case at trial depended substantially on circumstantial evidence.
Domestic killing - intent to kill.
Sentenced to 21y with a NPP of 16y.
439
HEWITT, John Patrick - CCA, 17.12.2007 - 180 A Crim R 306
McClellan CJ at CL, Hall & Price JJ
Citation: Hewitt v R [2007] NSWCCA 353
Sentence appeal.
1 x supply cannabis leaf; 1 x supply cannabis resin; 1 x supply cannabis plants.
Total sentence of 2y 3m with a NPP of 1y 3m.
Applicant's arrest followed a joint investigation conducted by police in the Northern Rivers area.
Whether planned or organised criminal activity - whether quality of cannabis properly taken into account - whether cannabis for personal use - whether sentences manifestly excessive.
Appeal dismissed.
440
YORK, Alexander Christian - NSW SC, Adams J, 14.12.2007
Citation: R v York [2007] NSWSC 1470
Remarks on Sentence.
Manslaughter.
The offender, an English backpacker, killed a Scottish tourist at a NSW caravan park after a row over creationism versus evolution.
Guilty plea - discount of 20%.
Sentenced to 5y with a NPP of 3y.
441
SIMPSON, Danielle - CCA, 14.12.2007
Giles JA, Hulme & Hislop JJ
Citation: Simpson v R [2007] NSWCCA 348
Sentence appeal.
Armed robbery.
6y with a NPP of 4y.
Whilst armed with a knife, the applicant robbed the victim of a digital camera.
Aged 28 at time of offence - long-term drug abuse - has 3 surviving children, all in foster care as a result of applicant's & partner's continued drug use & episodes of domestic violence.
Whether sentence excessive - Henry guideline - rehabilitation considerations.
Appeal allowed: resentenced to 4 y with a NPP of 3y.
442
TAUFAHEMA, John - NSW SC, Michael Grove J, 13.12.2007
Citation: R v Taufahema [2007] NSWCCA 1460
Remarks on Sentence.
Manslaughter.
Retrial following a successful appeal against conviction for the murder of Snr Const Glen McEnallay: see Taufahema v R [2007] NSWCCA 33. The sentence is the same as that handed down to his brother Montekiai: see  R v Taufahema [2007] NSWSC 959. Snr Const Glenn McEnallay was shot while pursuing a stolen car. Ub all, four men were convicted following the killing, including Penisini who is serving 36y after pleading guilty to pulling the trigger & Lagi who was acquitted of murder but convicted & sentenced for 10y for firearms offences: see Regina v Penisini; Regina v Lagi; Regina v John Taufahema [2003] NSWSC 892.
Guilty plea - joint criminal enterprise.
Sentenced to 11y with a NPP of 7y.
443
LAWRENCE, Craig Andrew - CCA, 6.12.2007
Grove, Hulme & Simpson JJ
Citation: Lawrence v R [2007] NSWCCA 349
Sentence appeal.
Aggravated dangerous drive occasioning death; high range prescribe concentration of alcohol.
Total sentence of 6y with a NPP of 4y.
At about 2.45am, the applicant was driving north along the F3 at a speed near the speed limit of 110kph. The section of the road was straight & level. The applicant's vehicle collided with the rear of another vehicle, causing that vehicle to be propelled onto the western railing with the result that it overturned & travelled some distance before coming to rest on its roof. A passenger of that vehicle was killed. At the time of the collision, the road surface was dry & in good condition & the weather was clear.
Guilty plea at earliest opportunity - blood alcohol concentration within range of 0.170 to 0.185 grams per 100mls at time of collision.
Appeal allowed: resentenced to a total of 5y with a NPP of 3y.
444
MONEY, Gregory Samuel - CCA, 19.11.2007
Giles JA, Hislop & Price JJ
Citation: Money v R [2007] NSWCCA 317
Sentence appeal.
Drive in manner dangerous occasioning GBH.
4y 3m with a NPP of 2y 9m.
After a long period of erratic & dangerous driving on a busy highway, the applicant's vehicle crossed into the path of oncoming traffic, causing a collision between 2 cars & a truck.
Aged 55 - guilty plea - under influence of drugs at the time - prior record for speeding & drink driving offences - history of drug & alcohol problems.
Whether sentence manifestly excessive - whether error in finding applicant's abandonment of responsibility worst of its kind.
Appeal dismissed.
445
RHB - NSW SC, Hall J, 17.12.2007 - 180 A Crim R 320
Citation: R v RHB [2007] NSWSC 1466
Remarks on Sentence.
Murder; manslaughter.
The offender killed a 14 month old baby boy, for which he was found guilty of manslaughter. The murder conviction arose out of the killing of a 2 year old male toddler. The offences were committed 11 years apart. The infants were the children of twin sisters with whom the offender was in a relationship some years apart. Both infants died from massive head injuries sustained whilst in the care of the offender.
Relevant principles concerning application of s.61(1) Crimes (Sentencing Procedure Act) 1999 - whether sentence of life imprisonment should be imposed - whether offence within worst category - level of culpability of offender - potential for dangerousness.
Sentenced to a total of 34 y with a NPP of 24 y.
446
GAO, Peng - CCA, 14.12.2007
Basten JA, Latham & Rothman JJ
Citation: R v Gao; R v Lim; Lim v R [2007] NSWCCA 343
Gao: Crown appeal.
Supply large commercial quantity ecstasy; 1 x supply commercial quantity ecstasy; + 3 offences on Form 1.
Total sentence of 12y with a NPP of 8y.
Lim: Crown appeal; and Sentence appeal.
Supply large commercial quantity ecstasy.
8y with a NPP of 5y.
The supply of the drugs was to an undercover police officer.
Objective gravity of agreement to supply - delay in lodging Crown appeal - whether sentence excessive.
Gao: Crown appeal dismissed.
Lim: Sentence appeal dismissed. Crown appeal allowed: resentenced to 9y 10m with a NPP of 6y.
447
CAN, Vural - CCA, 14.12.2007
Giles JA, Grove & Harrison JJ
Citation: Can v R [2007] NSWCCA 346
Conviction appeal (extension of time).
Import trafficable quantity cocaine.
The appellant represented himself on appeal.
The appellant arrived in Sydney on a flight from Dubai. When Customs officers searched his luggage, they found a shampoo bottle that seemed a bit hard. A subsequent examination & analysis of the contents of the bottle revealed 415 grams of cocaine with a purity of 72.4%, amounting to a total of 300.4 grams of pure cocaine. The wholesale value was estimated at $30,000 with a street value of $120,000.
The appellant alleged on appeal that a miscarriage of justice had occurred due to the failure of the Crown to call crucial & relevant witnesses who could vouch for the appellant's innocence.
Crown's obligation to call witnesses - allegation of miscarriage of justice - evidence of consciousness of guilt - whether properly admitted by trial judge.
Application for extension of time to appeal refused.
448
ALCHIKH, Mohamad Raghid - CCA, 14.12.2007
Handley AJA, Hulme & Hall JJ
Citation: Alchikh v R [2007] NSWCCA 345
Sentence appeal.
Conspiracy to import commercial quantity ecstasy tablets.
12y with a NPP of 7y 3m.
The importation involved 164,462 tablets weighing 31.95 kilograms containing 10.44kgs of pure ecstasy, which was 20 times the minimum commercial quantity. The tablets had a potential retail value of up to $11.4 million. The tablets were hidden in the insulation of 6 refrigerators in a consignment of 54 in a container that left the UK by sea. The container was unloaded in Melbourne & transferred to a warehouse. Customs, who had been alerted to the shipment, removed the drugs & replaced them with harmless tablets before allowing the importation to proceed. The container was taken by road to Sydney & delivered to a warehouse in Botany. The applicant's associates were removing the supposed drugs from the refrigerators when the Federal Police arrested them. The applicant was then arrested. The principal in the importation was a Mr King who lived in the UK. His deputy in Sydney, Mr Henry, was arrested a short time later.
The principal argument in support of the applicant's application for leave to appeal was that he was given an inadequate discount for his assistance to the authorities. The sentencing judge found that his assistance was significant but not major & he was not likely to give further assistance in the future. These findings were based on the Crown's decision that his evidence at committal exculpating 2 of his co-accused was not reliable & he would not be called to give evidence in the Crown case against them. The applicant argued that his evidence exculpating 2 of his co-accused was reliable & that the Court should delay giving judgment until the result of the appeal against conviction of one of the co-accused had been determined.
Guilty plea - assistance to authorities - whether inadequate discount - whether sentence excessive.
Appeal dismissed.
449
CORNWALL, Paul Godfrey (DPP v) - CCA, 19.12.2007
Basten JA, Latham & Rothman JJ
Citation: Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359
Crown appeal.
Specially aggravated detain for advantage; aggravated BE&S; obtain financial advantage by deception; cultivate prohibited drug; + offences on a Form 1, including armed rob.
Total sentence of 7y 10m with a NPP of 5 y.
Whether sentence manifestly inadequate - whether failure to reflect objective gravity of offences - whether error in imposing concurrent sentences - totality.
Appeal allowed: respondent resentenced 14y with a NPP of 10y.
450
KARIBIAN, Guy - CCA, 7.12.2007
McClellan CJ at CL, Hall & Price JJ
Citation: R v Karibian [2007] NSWCCA 334
Crown appeal.
4 x malicious damage to property.
3y 3m With a NPP of 1y 9m.
The offences involved explosive devices.
Aged 50 at time of sentencing - born in France - migrated to Australia at age 9 - degree in Civil Engineering - at time of offence working as consultant project manager in building industry - supportive family - criminal history includes maliciously destroy property - on conditional liberty at time of commission of above offences.
Whether sentence manifestly inadequate.
Appeal dismissed.
451
KRL - CCA, 18.12.2007
Mason P, Barr & Bell JJ
Citation: KRL v R [2007] NSWCCA 354
Conviction appeal.
2 x assault & commit act of indecency; 2 x buggery; 2 x carnal knowledge.
3y with a NPP of 9m.
The offences were committed against the appellant's daughter when she was aged 10 or 11 years. At the date of the trial, the daughter was aged 51 years. The first 3 offences were alleged to have occurred in the course of the one episode of offending which took place on the morning after the funeral of KRL's father. The remaining 3 counts were also said to have occurred in the course of one episode & took place on the morning after a school concert in which the complainant performed.
Aged 74 at time of sentencing.
Whether conviction unreasonable & not support by evidence.
Appeal dismissed.
452
TIMBERY, Joseph - CCA, 18.12.2007 - 180 A Crim R 232
Mason P, Adams J, Smart AJ
Citation: Timbery v R [2007] NSWCCA 355
Conviction appeal.
2 x malicious wounding; 1 x sexual intercourse without consent; 1 x AOABH; 7 x aggravated sexual intercourse without consent (involving maliciously inflict ABH); 1 x maliciously inflict GBH.
Total sentence of 33y with a NPP of 24y.
The complainant was the appellant's former girlfriend. In all, the appellant was charged with 23 offences. He was found not guilty of 11 charges. All offences were alleged to have occurred over an 8 month period. There was supporting evidence for all but one of the offences for which the appellant was convicted.
Substantial factual disputes on all counts - major issues as to complainant's credibility - judge incorrectly withdrawing issue as to sexual intercourse occurring in circumstances alleged & limiting issue to one of consent - faulty directions as to corroboration & supporting evidence - directions as to desirability of reaching agreement exceeding what is permissible - Murray direction incorrectly limited - conduct by Crown prosecutor - whether miscarriage of justice.
Appeal allowed: new trial ordered.
453
STAVROPOULOS, Paul - CCA, 7.12.2007
McClellan CJ at CL, Hall & Price JJ
Citation: R v Stavropoulos [2007] NSWCCA 333
Crown appeal.
Aggravated kidnapping.
Sentenced to 2y with a NPP of 10m suspended upon entering into 2y GBB.
The respondent had a son who died at the age of 19 years from a fatal drug overdose. The respondent claimed that his son's death had not been properly investigated & he wanted some answers from Abkarian who he understood was with his son at the time he died. He said he wanted to know how his son had died. A plan was made by the respondent with Moefili & Montinez whereby Moefili undertook to find Abkarian for a payment of $10,000. Abkarian was ultimately taken to a street in the Blacktown region. According to the respondent, when Abkarian alighted from the car, he 'attempted' to run away but was caught by Moefili who brought him back & made him kneel in front of the respondent. At trial, the respondent departed from the account in his statement to the extent that he said Abkarian 'pretended' to run away. This potentially carried significance for, if accepted, it suggested that Abkarian had not, in truth, been captured & restrained by the respondent's co-offenders.
Whether sentence manifestly inadequate - reduction of sentence for assistance to authorities - whether or not undertaking to give evidence was given - no record made of an undertaking.
Appeal dismissed.
454
GERMAKIAN, Mendoza - CCA, 18.12.2007 - 70 NSWLR 467
Giles JA, Hulme & Hislop JJ
Citation: Germakian v R [2007] NSWCCA 373
Conviction appeal.
Import commercial quantity cocaine.
The appellant flew into Sydney from Jamaica & was stopped by Customs whilst carrying a suit bag containing 2 packages of cocaine sewn into its lining. The appellant made various admissions. The only real issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant knew that his baggage contained the cocaine & therefore intended to import the drug. The packag3es were sent to the AFP for analysis. The gross weight of the cocaine was 3.2259kgs, with a purity of between 69.7% and 73.4%. The weight of pure cocaine was approx 2.3310kgs. The wholesale value of this amount of cocaine was estimated to be about $548,250.
Evidence - opinion evidence - r 4.
Appeal dismissed.
455
KELLY, Robert - CCA, 18.12.2007
Basten JA, Barr & Adams JJ
Citation: Kelly v R [2007] NSWCCA 357
Sentence appeal.
1 x whilst armed with rifle B&E dwelling & commit serious indictable offence of intimidation; 1 x malicious damage to property.
Total sentence of 4y with a NPP of 2y.
Armed with a rifle, the applicant went to the home of his ex-wife. He broke all the windows of a car outside the house. He smashed the glass of a sliding window to the house & pushed the barrel of the rifle through, pointing it at his 20 year old son. The son called out to him not to shoot, whereupon the applicant moved the barrel away from him but continued to search the immediate area of the room with the rifle. All inside the house, except for the applicant's ex-wife, managed to get out through a back door & go to the neighbouring house. The applicant returned to the front door of his ex-wife's house & smashed the glass panel at the side of it, reached in & unlocked it. He went through to the kitchen where his ex-wife was on the phone & pointed the rifle at her face. On 2 occasions, she managed to push the barrel away from her face. The applicant then ripped the phone from the wall & walked towards the rear sliding door. The ex-wife managed to get away & ran to the next door neighbour's house & hid. The applicant then went to those premises. The owner of the house met him at the front door & told him not to touch anything on his house. The applicant said he had no problem with the neighbour & after being told to leave, he went back to his ex-wife's house for a short time & then drove away. About 5 minutes later he drove past the house again, then drove away.
Whether sentence manifestly excessive - principle of parsimony - exercise of discretion in sentencing.
Appeal dismissed.
456
LODHI, Faheem Khalid - CCA, 20.12.2007 - 179 A Crim R 470
Spigelman CJ, Barr & Price JJ
Citation: Lodhi v R [2007] NSWCCA 360
Conviction and sentence appeal.
1 x collect documents connected with preparation for terrorist act; 1 x do act in preparation for terrorist act;
1 x possess document connected with preparation for terrorist act.
Total sentence of 20y with a NPP of 15y: see R v Lodhi [2006] NSWSC 691.
Indictment - particulars - whether lacked particularity - whether indictment duplicitous.
National security information - orders prohibiting disclosure - risk of prejudice to national security - whether test for risk of prejudice usurps judicial power - whether test unconstitutional.
Admissibility of evidence - evidence of association of accused person & trained terrorist - whether evidence had probative value - whether inference of intent available from association - whether risk of unfair prejudice outweighed probative value.
Admissibility of evidence of identification by photograph of a person not the accused - fairness of identification procedure - whether risk of unfair prejudice outweighed probative value.
Evidence adduced on appeal - whether fresh - whether cogent.
Collecting documents - whether Crown must prove that at time of collection, the action or the possession, the accused has determined when, how, where or by whom the terrorist act might be carried out.
Culpability for preparatory acts short of attempt - protection of community - whether assessment of objective seriousness of offence flawed - whether sufficient weight given to custodial conditions - whether head sentence should have been reduced - whether sentence manifestly excessive.
Appeal dismissed.
457
CARVAHLO, Andre - CCA, 14.12.2007
McClellan CJ at CL, Hall & Price JJ
Citation: Carvahlo v R [2007] NSWCCA 344
Sentence appeal.
1 x sexual intercourse without consent.
8y with a NPP of 5y 4m.
The applicant had met the victim, a 19 year old English tourist, in the Darlington Hotel. He & a companion had been drinking with her for about 20 to 30 minutes when the victim went into the ladies toilet near where they were sitting. She was in a locked toilet cubicle when the applicant knocked on the door. When she opened the door, the applicant was standing in front of her & said words to the effect 'I want you now, I want you tonight'. The victim said 'No'& tried to get out of the toilet. The applicant started pulling at her skirt, which came down, and at her underwear. The victim was upset & screaming & the applicant told her to shut up or she would be killed. After pushing & hitting her, he pushed her flat on the toilet seat. He then had penile intercourse with her without consent.
Evidence of frontal lobe damage - rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
458
WILDE, John Alan (AG for State of NSW v) - NSW SC, Price J, 20.12.2007
Citation: Attorney General for the State of NSW v Wilde [2007] NSWSC 1490
Application for continuing detention order for a period of 25 months.
3 x aggravated sexual intercourse without consent; 1 x B&E with intent to commit felony; 1 x malicious wounding.
Total sentence of 16y with a NPP of 12y.
All offences were committed on the one occasion and all involved the same victim.
Upon serving his NPP, the defendant was not released to parole. He completed serving his full sentence on 5.1.2007.
Serious sex offences - long history of sex offences - likely to commit further serious sex offence - no onus to establish that offender of very worst case - application not an abuse of process - lack of consideration of potential conditions of release under supervision.
Decision: Defendant to be detained on an interim basis for a period of 28 days.
459
TRINH, Vu Minh - NSW SC, Rothman J, 21.12.2007
Citation: R v Trinh [2007] NSWSC 1495
Remarks on Sentence.
Murder.
Intent to cause GBH - stab wounds caused death - objective & subjective circumstances - lower range of culpability.
Sentenced to 20y with a NPP of 15y.
460
CHALMERS, Ian Robert (R (Cth) v)- CCA, 12.12.2007
Spigelman CJ, Simpson & Harrison JJ
Citation: R (Cth) v Chalmers (No.2) [2007] NSWCCA 340
Application to reopen appeal pursuant to s.43 Crimes (Sentencing Procedure) Act 1999.
Conspire to import commercial quantity cocaine.
See also Tyler v R; R v Chalmers [2007] NSWCCA 247.
Whether resentencing contrary to law - whether entitled to discount for assistance - whether consideration given to assistance - examination of reasons for judgment - benefit of discount for assistance.
Application dismissed.
461
YIN, John Shaopeng - CCA, 18.12.2007
Mason P, Barr & Bell JJ
Citation: Yin v R [2007] NSWCCA 350
Sentence appeal.
Armed robbery; aggravated robbery.
Total of 11y with a NPP of 8y 3m.
The appellant & his co-offender robbed massage parlours. They tied up & threatened the occupants with knives & a replica gun & stole cash, jewellery & mobile phones; The appellant robbed a hot bread shop independently & threatened to kill 2 people with the replica gun. He stole a wallet & cash. The appellant entered pleas of guilty to the above offences.
Parity - whether justifiable sense of grievance.
Appeal dismissed.
462
DERLEY, Trevor Alfred - CCA, 21.12.2007
Handley AJA, Hoeben J, Smart AJ
Citation: Derley v R [2007] NSWCCA 361
Conviction and sentence appeal.
1 x supply commercial quantity MDMA (ecstasy); 3 x BE&S; 1 x aggravated larceny.
Total sentence of 7y 2m with a NPP of 6 y.
Regard not had to accumulation of cancelled bond & consequent sentence with sentences for supply of MDMA & 3 serious BE&S type offences - whether lesser sentences warranted.
Appeal dismissed.
463
GRAY, Lee Homer - CCA, 21.12.2007
McClellan CJ at CL, Adams & Harrison JJ
Citation: Gray v R [2007] NSWCCA 366
Sentence appeal.
Robbery; armed robbery; aggravated BE&S; + Form 1 offence (BE&S).
Total sentence of 20y with a NPP of 14y.
The robbery & armed robbery were committed at the same store some 3 months apart. The aggravated BE&S was committed more than a year later when the applicant broke into a dwelling & used corporal violence upon the victim.
Almost aged 36 at time of sentence - long criminal record - started offending at age 19 - only time not offending was when in gaol.
Excessive use of force but no injury - accumulation of sentences - utilitarian value of guilty pleas - discount - need to ensure reflected in overall sentence.
Appeal allowed in part: new total sentence of 10 y with a NPP of 7y.
464
FOLBIGG, Kathleen Megan - CCA, 21.12.2007
McClellan CJ at CL, Simpson & Bell JJ
Citation: Folbigg v R [2007] NSWCCA 371
Conviction appeal.
3 x murder; 1 x manslaughter; 1 x maliciously inflicting GBH.
Material irregularity - jury irregularities - test in Marsland (unreported, CCA NSW, No.60263 of 1990, 17.7.1991) - juror misconduct - juror inquiries - internet research - discussing trial with persons other than fellow jurors - prejudicial material - departure from rules of evidence & procedure - directions & warnings - proviso - whether substantial miscarriage of justice.
Appeal dismissed.
465
LIN, Song - CCA, 21.12.2007
Basten JA, Barr & Adams JJ
Citation: Lin v R [2007] NSWCCA 368
Sentence appeal.
Knowingly take part in manufacture of commercial quantity methylamphetamine; + Form 1 offence taken into account (possess 0.26 grams cocaine).
8y with a NPP of 6y.
There were 2 others involved in the manufacturing enterprise, Lau & Lo. Lau was charged with the manufacture of a large commercial quantity of methylamphetamine (8.8 kilograms). He pleaded guilty & was sentenced to 12y with a NPP of 9 years. Lo pleaded guilty to aiding & abetting Lau in the manufacture of a large commercial quantity of methylamphetamine & was sentenced to 6y with a NPP of 4 years.
Whether sentence manifestly excessive - parity.
Appeal allowed: resentenced to 6y with a NPP of 4y.
466
NGUYEN, Duong Hai - CCA, 21.12.2007 - 180 A Crim R 267
ATCN
NGUYEN, Khanh Hoang
HUYNH, Minh Thy
Mason P, Adams J, Smart AJ
Citation: Nguyen & Ors [2007] NSWCCA 363
Conviction and sentence appeals.
Murder; maliciously inflict GBH.
Nguyen, Duong - total of 33y with a NPP of 25y.
Nguyen, Khanh - total of 33y with a NPP of 25y.
Huynh, Minh - 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.
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.
Directions as to extended joint enterprise for murder & manslaughter - whether deficient - challenges to admission of identification evidence rejected - whether prejudicial - overlooking of jury note & not answering request for further directions or telling parties of note.
Nguyen, Duong - Conviction appeal dismissed. Sentence appeal allowed: resentenced to 27y 4m with a NPP of 20y.
Nguyen, Khanh, Huynh, Minh, ATCN - Conviction appeals allowed: new trials ordered.
467
STANFORD, Andrew James - CCA, 20.12.2007 - 70 NSWLR 474; 179 A Crim R 541
Grove, Hulme & Simpson JJ
Citation: Stanford v R [2007] NSWCCA 370
Conviction appeal.
Specially aggravated B&E and commit serious indictable offence
The appellant & his co-offender agreed to unlawfully enter a club & steal money. The co-offender entered the club through a window. The co-offender was armed with a crowbar. The co-offender entered the bar area & noticed that the cleaner had placed his wallet on the bar. The co-offender took $30 from the wallet. The cleaner walked past & the co-offender swung the crowbar at him. The injuries sustained by the victim resulted in the loss of an eye. The co-offender then left the club & joined the appellant, who had remained outside. The Crown did not allege that the appellant was the actual perpetrator of the offence or the infliction of GBH upon the victim. Nor did it allege that he was armed with an offensive weapon. The Crown relied upon the principle of joint criminal enterprise.
Meaning of 'break'- no evidence appellant opened window - no evidence of breaking - whether verdict unreasonable.
Appeal allowed: conviction quashed, verdict of acquittal entered.