Short Notes 2008

 
 
1

WILDE, John Alan (AG for NSW v) - NSW SC, Price J, 24.1.2008
Citation:Attorney General for the State of New South Wales v Wilde [2008] NSWSC 14
Ex Tempore Judgment, to be read in conjunction with judgment of 20.12.2007: Attorney General for the State of NSW v Wilde [2007] NSWSC 1490.
Application for continuing detention order for a period of 25 months.
Serious sex offences - long history of committing serious sex offences - likelihood of committing further serious sex offences.
Need for suitable accommodation upon release - need for psychiatric/psychological treatment - need for medication - continues to deny serious sex offending - limitations in electronic monitoring of offenders upon release - risk management plan.
Decision: Defendant to be detained on an interim basis for a period of 8 months.
 
2

MAHMOOD, Dlshad Hamad - HCA, 30.1.2008
Citation:Mahmood v State of Western Australia [2008] HCA 1
Murder.
Evidence - portions of "walk through" video tendered by defence at trial - prosecution objected to tender of whole video - in closing prosecutor invited jury to draw adverse inferences from portions played - trial judge refused to allow defence to re-open case to tender whole of video - whether re-opening ought to have been allowed - whether direction to jury required to overcome prejudicial effects of prosecutor's invitation.
Duty of prosecutor to tender all inculpatory statements - whether prosecutor obliged to tender "walk through" video in whole or in part. Evidence of blood stains in pocket - whether accused had opportunity to respond to blood-stain allegation - whether judge's direction to jury on this point sufficient. Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing - whether judge required to give a Jones v Dunkel direction. Directions to jury - distinction between directions & comments - whether trial judge's statements in summing up amounted to a direction.
Appeal allowed: Matter remitted to CA of SC of WA for further hearing & disposition.
 
3

DAVIE, Jeffrey Wayne - CCA, 29.1.2008
Grove, Simpson & Barr JJ
Citation:Davie v R [2008] NSWCCA 2
Conviction appeal.
Sexual offences upon child under 10 (fellatio, indecent assault, act of indecency).
The offences were committed against a 9 year old boy in a toilet. The complainant told his mother & family friends immediately after the incident.
Objections not taken at trial - evidence of complaint - DNA evidence - jury making finding of guilt on one or more counts when considering any other count - whether miscarriage.
Appeal dismissed.
 
4

TORO-MARTINEZ, Alejandro Arturo - NSW SC, Hall J, 1.2.2008
Citation:Application of Toro-Martinez [2008] NSWSC 34
Application for inquiry or referral under s.78 Crimes (Appeal and Review) Act 2001 concerning sentence - applicant pleaded guilty to being knowingly concerned in the importation of not less than a trafficable quantity of cocaine contrary to s.233B(1)(d) Customs Act 1901 (Cth) - unsuccessful appeal against sentence to CCA - statutory scheme for review - perjury & investigative illegality alleged by applicant.
Application refused.
 
5

STRUCZEWSKI, Patrick Michael - CCA, 1.2.2008
Hodgson JA, Kirby & Buddin JJ
Citation:Struczewski v R [2008] NSWCCA 8
Sentence appeal.
3 x BE&S; 2 x take & drive conveyance; + Form 1 offences.
Total sentence of 5*y with a NPP of 4y.
The applicant broke into 3 residences & stole various items, including cash. After committing the 3rd offence, he removed 2 motor vehicles from the premises. Following his arrest, the applicant's property was searched & the keys to both vehicles were found.
Whether error in making finding that offences were planned - partial accumulation of sentences - whether overall sentence manifestly excessive.
Appeal dismissed.
 
6

HANDLEY, Scott Wallace - CCA, 30.1.2008
Hodgson JA, Kirby & Buddin JJ
Citation:Handley v R [2008] NSWCCA 5
Sentence appeal.
2 x B&E; 1 x demand property with menaces; + Form 1 matters.
Total sentence of 5y with a NPP of 3y.
The applicant was unrepresented & his appearance in the CCA was via video-link. The B&E offences were committed upon private residences. The 1st offence involved the him taking some electrical equipment. He was busy removing a plasma TV during the the 2nd offence when he was disturbed by the owner of the premises returning home. The applicant's fingerprints were found at both residences. He had used a stolen vehicle to commit the offences. The victim of the demand property with menaces offence was the applicant's aging mother. The incident took place in a club & was captured on CCTV. When arrested, the applicant declined to speak to police about the offences.
Pre-sentence report ordered but not obtained - accumulation - whether overall sentence excessive.
Appeal dismissed.
 
7

DANIAL, Fawzieh Nona - CCA, 31.1.2008
McClellan CJ at CL, James & Barr JJ
Citation:Danial v R [2008] NSWCCA 15
Sentence appeal (extension of time).
Import marketable quantity heroin.
6y with a NPP of 4y.
The applicant arrived at Sydney Kingsford Smith Airport on a flight from Vietnam. Customs officers conducted a frisk search of her person, which indicated some solid objects near her groin area. The applicant later agreed to an external body search & was found to have 4 packages concealed within her underwear. The packages were found to contain 239 grams of heroin with a pure weight of 94.4 grams. The applicant entered a guilty plea. She claimed that she had been approached to carry the packages into Australia for which she would be paid $25,000. She said she only agreed in order to make some money because her husband was a pensioner.
Pre-sentence custody - willingness to facilitate course of justice - whether sentence excessive.
Appeal dismissed.
 
8

NGATI, John Walsh - CCA, 31.1.2008 - Reported:180 A Crim R384
Tobias JA, Hidden & Barr JJ
Citation:Ngati v R [2008] NSWCCA 3
Conviction and sentence appeal.
B&E dwelling & commit serious indictable offence (AOABH, in company).
3y 8m with a NPP of 2y.
The appellant, his wife & children went to the victim's house & banged on the windows. They smashed a window, entered the house & assaulted the victim. The victim suffered minor injuries. There was no evidence that the appellant landed any blow to the victim. The Crown claimed that he was present at the time & had encouraged or assisted his family in assaulting the victim, based upon evidence of the victim & her son. The appellant claimed that he did not enter the house. The jury was instructed to convict the appellant if satisfied that the appellant had entered the victim's house.
Majority verdict - Black direction given - whether error in directions - whether appropriate to disclose voting figures - whether verdict unreasonable - whether sentence excessive.
Appeal dismissed.
 
9

JOVANOVSKI, Tony - CCA, 30.1.2008 - Reported:181 A Crim R 372
Hodgson JA, Kirby & Buddin JJ
Citation:Jovanovski v R [2008] NSWCCA 9
Application for leave to appeal against decision by the NSW DC to deny access to certain documents.
Detain without consent with intent to obtain advantage occasioning ABH, stealing MV & intimidate with intent to cause fear of physical harm.
The appellant sought access to documents from a counselling centre relating to the complainant. The NSW DC granted access to 2 paragraphs of one note of counselling session but refused access to the remainder of the documents from 1st & 2nd counselling sessions. The complainant claimed there was no legitimate forensic purpose for access to those documents. The appellant claimed that information in the documents went to the complainant's credit.
Whether incorrect test was applied in withholding access to documents.
Application for leave to appeal refused.
 
10

BOU-ANTOUN, Chaoki - CCA, 1.2.2008
Grove, Simpson & Barr JJ
Citation:Bou-Antoun v R [2008] NSWCCA 1
Sentence appeal.
1 x solicit to murder.
14y with a NPP of 10y.
The applicant's son was arrested & charged with various offences, including aggravated sexual assault upon a 16 year old girl. He was detained in custody on remand & while there, spoke to his cellmate about having the victim killed so that she could not give evidence against him. He asked whether the cellmate knew anyone who might perform the killing. The cellmate said that he would make enquiries, however he reported the matter to authorities. Thereafter, in cooperation with police he posed as a go-between with an undercover police officer who pretended to be willing to kill the victim for a fee of $23,000. The applicant's involvement arose when he paid a deposit of $3,000 to the undercover officer. The applicant claimed to have been a reluctant participant & said he had no intention of making any further payment.
Findings - threatened use of violence an aggravating feature - offence part of organised criminal activity - entrapment - failure to give discount for guilty plea - whether sentence manifestly excessive.
Appeal dismissed.
 
11

RUTKOWSKYJ, Jason - CCA, 8.2.2008
McClellan CJ at CL, James & Barr JJ
Citation:Rutkowskyj v R [2008] NSWCCA 10
Sentence appeal.
Ongoing supply of MDMA (ecstasy); + 2 related offences on a Form 1.
3y with a NPP of 18m.
On 3 separate occasions at a dance party, the applicant sold ecstasy tablets to undercover police. He was arrested after the 3rd sale & was charged with the ongoing supply of ecstasy. He had $1,454, being the proceeds from sales conducted during the night. He made immediate admissions to police & told them something about his selling activities, including an account of how he had replenished his stocks during the night. The applicant refused to name his supplier. He pleaded guilty at the earliest opportunity.
Aged 19 - early frank admissions & guilty plea - remorse - drug use since early teens - no priors.
Whether sentence manifestly excessive.
Appeal dismissed.
 
12

HUYNH, Thi Thu Trang - CCA, 8.2.2008 - Reported:180 A Crim R517
McClellan CJ at CL, Grove & Fullerton JJ
Citation:R v Huynh [2008] NSWCCA 16
Crown appeal.
Import marketable quantity heroin.
4y with a NPP of 2y.
The respondent arrived at Sydney Kingsford Smith Airport on a flight from Vietnam. She was approached by Customs officers & consented to undergo an internal search. Federal Police officers took her to hospital where a CT scan revealed 4 foreign objects in her lower intestine. Over the following hours she passed these objects, which were found to contain a white powder. Subsequent analysis revealed 141.30 grams of heroin with a pure content of 108 grams. The estimated wholesale value of the heroin was $49,840 with a street value of $90,00 to $270,000. Offence committed to reduce gambling debts.
Whether sentence manifestly inadequate - conduct undertaken for reward in order to reduce gaming debts - erroneous finding of duress - overestimation of mitigatory factors.
Appeal allowed: resentenced to 6y with a NPP of 4y.
 
13

PELLEGRINO, Michael Angelo - CCA, 11.2.2008 - Reported:180 A Crim R533
Basten JA, Hidden & Barr JJ
Citation:Pellegrino v DPP (Cth) [2008] NSWCCA 17
s.5F appeal against judgment dismissing permanent stay.
Count 1: Dishonestly obtain property belonging to a Commonwealth entity; Count 2: stealing.
The appellant & 2 others appropriated property belonging to the Australian Customs Service. A container had been unloaded at a wharf at Port Botany & was moved from the wharf without the permission of Customs. It was subsequently seized by police. The container had been reported to Customs to contain PVC electrical tape, however, upon being searched it was found to contain 750 boxes of cigarettes. No import declaration had been made & no duty had been paid for those goods. Pellegrino filed a notice of motion in the DC seeking a permanent stay in relation to Count 1. This motion was dismissed.
Appeal dismissed.
 
14

BURRELL, Bruce Allan - NSW SC, Kirby J, 8.2.2008
Citation:R v Burrell [No.3] [2008] NSWSC 30
Remarks on Sentence.
Murder.
The prisoner was found guilty of the murder of an elderly widow. The prisoner had borrowed money from the deceased and when she asked him to repay it, the Crown alleged that he murdered her. The body of the deceased has never been found.
See also: R v Burrell [2006] NSWSC 581.
Sentenced to 28y with a NPP of 21y.
 
15

AYTON, Darren Lee - CCA, 13.2.2008 - Reported:180 A Crim R578
Hodgson JA, Kirby & Buddin JJ
Citation:Ayton v R [2008] NSWCCA 13
Sentence appeal (extension of time).
Maliciously inflict GBH whilst in company.
3y with a NPP of 2y 3m.
The Crown case was that the appellant & 6 others (4 of whom were juveniles) assaulted the victim, rendering him unconscious & suffering grievous injuries.
Whether sentence excessive - mental illness - general deterrence - special circumstances - parity.
Appeal dismissed.
 
16

ALLEN, Sam David - CCA, 8.2.2008 - Reported:180 A Crim R 428
Giles JA, Grove & Harrison JJ
Citation:Allen v R [2008] NSWCCA 11
Sentence appeal.
1 x assault; 1 x indecent assault; 2 x sexual intercourse without consent; 1 x act with intent to pervert the course of justice.
Total sentence of 12*y with a NPP of 9y.
All offences involved the same victim.
Accumulation of sentences - whether total sentence excessive.
Appeal allowed: resentenced to a total of 5*y with a NPP of 4y.
 
17

NGUYEN, Cuu - CCA, 14.2.2008 - Reported:181 A Crim R72
Hodgson JA, Kirby & Buddin JJ
Citation:Nguyen v R [2008] NSWCCA 22
Conviction appeal.
Cultivate large commercial quantity cannabis.
12y with a NPP of 8y.
The appellant & a number of other Vietnamese were employed as farm labourers at a large-scale marijuana plantation. The principal organiser of the plantation was an Italian male who was assisted by a Vietnamese female associate. The appellant claimed that at first he did not know that it was marijuana that was being cultivated. He said that when he found out & expressed a desire not to work there any more, he was threatened. The trial judge refused to leave duress to the jury.
Duress - whether threat directed towards procuring commission of offence - whether threat sufficiently imminent - whether appellant voluntarily joined illegal enterprise - whether miscarriage of justice.
Appeal allowed: new trial ordered.
 
18

SHERIDAN, Geoffrey Gordon - CCA, 5.2.2008
Beazley JA, James & Kirby JJ
Citation:Sheridan v R [2008] NSWCCA 14
Sentence appeal.
Armed robbery; + Form 1 (goods in custody).
8y with a NPP of 6y.
The applicant drove to a newsagency & entered carrying a shortened firearm & a backpack. He pointed the weapon at the proprietor & signalled for the proprietor to put money into the backpack. He left with $800.
Aged 35 - guilty plea - significant planning - drug use - extensive record - on parole at time of offending.
Whether sentence manifestly excessive - whether undue weight given to goods in custody offence - Judicial Commission statistics - comparative sentences for similar offences.
Appeal dismissed.
 
19

SCICLUNA, Stephen Joseph - CCA, 19.2.2008 - Reported:181 A Crim R133
Basten JA, Barr & Adams JJ
Citation:Scicluna v R [2008] NSWCCA 24
Sentence appeal.
Aggravated BE&S (in company); supply prohibited drug (methylamphetamine).
Total sentence of 4*y with a NPP of 2*y.
Commercial premises occupied in part by a bank were broken into. The ATM in the bank was cut open from the back & about $24,000 removed. Masking had been used to cover the lens of a security camera & wires to an alarm sensor had been cut. There were 2 other security cameras in other positions, but neither had a view of the ATM. These cameras captured images of the offenders in the premises & enabled them to eventually be identified. A broken jemmy, welding gloves, a disposable lighter, welding goggles & ski goggles were found at the scene. The applicant was identified by the manager of the Cobham Juvenile Justice Centre as an employee working at the Centre & as such he had access to oxy-acetylene equipment.
Parity - co-offender's sentence suspended to enter Drug Court programme - whether relevant comparison.
Appeal dismissed.
 
20

IRWIN, Scott Anthony - CCA, 19.2.2008 - Reported:181 A Crim R123
McClellan CJ at CL, James & Barr JJ
Citation:Irwin v R [2008] NSWCCA 7
Sentence appeal.
9 x BE&S; 4 x obtain money by false statement; 4 x dispose of stolen property; + 85 offences on a Form 1, including 14 x BE&S.
Total sentence of 8*y with a NPP of 6y.
Most of the offences involved the applicant breaking into home units when the occupants were absent & stealing TV sets, laptop computers, mobile phones, cameras, disc players & jewellery, He would then sell the goods to a second-hand dealer where he would make a statement claiming to be the owner of the goods. These offences were committed in various suburbs of Sydney over a period of 2 months. After committing the last of these offences the applicant went to Queensland where he committed a number of similar offences. He was arrested in Queensland, released on bail & then re-arrested. He was in custody in Queensland on a continuous basis for almost 1y 9m.
Whether sentence excessive - totality - discount for acknowledging previously unknown guilt.
Appeal allowed in part: sentenced to a total of 7*y with a NPP of 5y 3m.
21

HAINES, Lloyd - CCA, 21.2.2008
Basten JA, Barr & Adams JJ
Citation:Haines v R [2008] NSWCCA 12
Sentence appeal.
1 x BE&S; 1 x aggravated BE&S; + Form 1 offences (goods in custody, assault police, resist police).
Total sentence of 3y 11m with a NPP of 3y.
The 1st offence involved the applicant & his co-accused entering an apartment through a security door & stealing a number of items, including a laptop computer, wallets & keys. The 2nd offence was committed at a house. The occupants of the house were awoken in the early hours of the morning by their dog barking. They discovered that the window of the front room was open, the blinds opened & the window bars bent & a number of items stolen. A CCTV camera at the front of the house showed the applicant committing this offence with another offender. It was shortly after this that the Form 1 offences were committed.
Whether sentence excessive - special circumstances - accumulation - totality.
Appeal allowed insofar as correction made to expiry date of NPP.
22

PAGE, Patrick John - CCA, 19.2.2008
McClellan CJ at CL, Hall & Price JJ
Citation:Page v R [2008] NSWCCA 26
Sentence appeal.
Aggravated drive causing death; drive whilst disqualified.
5y 4m with a NPP of 4y.
The applicant, while driving a stolen vehicle, was being chased by a police officer on a motorcycle when the stolen vehicle slammed into the side of a car, killing the front passenger. The stolen vehicle had been travelling at 65kph in a 50kph zone. A blood sample taken from the applicant revealed a reading of morphine & cocaine.
Contributory negligence - onus of proof - whether sentence manifestly excessive.
Appeal dismissed.
23

SC -CCA, 21.2.2008
McClellan CJ at CL, Hall & Price JJ
Citation:R v SC [2008] NSWCCA 29
Crown appeal.
Attempt possess trafficable quantity prohibited import (cocaine).
3*y with a NPP of 2y.
Two packages were intercepted by Customs officers at the Qantas mail-handling depot in Sydney & the Federal Police were contacted. A controlled delivery was subsequently conducted. Although the respondent took delivery, there was no direct evidence that he was aware of the weight of the drugs. He acknowledged that he knew or believed in advance that the packages contained drugs & with that knowledge had agreed to take possession of the packages. The respondent operated between the supplier & the end-purchaser of the drug, who was likely to have been a significant dealer in Australia. The respondent's role protected the identity of the end-dealer. Despite the respondent's co-operation, the end-dealer had not been identified & prosecuted. The pure amount of cocaine was 183.9 grams with an estimated wholesale value of $65,760.00 & a street value of $106,085.00 to $128,730.00.
Whether sentence manifestly inadequate - combined reduction of 50% for guilty plea & assistance.
Appeal dismissed.
24

DELFINO, Raymond Joseph - CCA, 25.2.2008
McClellan CJ at CL, James & Simpson JJ
Citation:Delfino v R [2008] NSWCCA 18
Sentence appeal.
Knowingly take part in cultivation of commercial quantity cannabis plants (guilty plea).
4y with a NPP of 2y.
In 2003, the applicant knowingly took part in the cultivation of cannabis plants on a property. A number of other persons participated in that cultivation, some of whom took part in a much larger cultivation of cannabis plants on the same property during 2004 The applicant did not take part in the 2004 cultivation.
Whether sentence excessive - parity.
Appeal dismissed.
25

FIELD, Norman Steven - NSW SC, Howie J, 22.2.2008
Citation:R v Field [2008] NSWSC 85
Judgment.
Field was charged with the murder of his mother. He is 46 years old & suffers from chronic paranoid schizophrenia. Following a trial by judge alone, he was found not guilty of murder on the grounds of mental illness. The killing occurred at a time when Field was undergoing an episode of his mental illness, during which time he had a delusional belief that his mother was trying to poison him. A report by a psychiatrist noted that his illness was 'generally treatment resistant'. The psychiatrist went on to state: 'I would not recommend that Mr Field be provided with any type of conditional release if that involves him being released into the community. He requires long term psychiatric support and supervision. ..'.
Defence of mental illness - consequential orders where accused acquitted on grounds of mental illness.
26

VERA, Claudio - CCA, 25.2.2008
McClellan CJ at CL, Grove & Fullerton JJ
Citation:R v Vera [2008] NSWCCA 33
Crown appeal.
Supply methylamphetamine.
2y with a NPP of 6m (special circumstances found).
The quantity of methylamphetamine found by police at the respondent's home following the execution of a search warrant was 19.5 grams. The Crown case relied upon the deeming provision (s.29 Drug Misuse and Trafficking Act 1985). The defence case was that the respondent had purchased a quantity of the drug a few days before his arrest strictly for his own use over a 3 week period & that he had used some of the drug & that he had no intention of supplying any of the remaining drug to others. There was uncontroversial evidence that the respondent had been a heavy drug user for many years. The Crown case was that the quantity of drug was inconsistent with being in the respondent's possession solely for his own use & that the quality of the drug, analysed at 71% purity, was consistent with it being at least susceptible to being cut with a cutting agent for supply to others. It was also common ground that nothing was found during the search of the respondent's premises pointing to his involvement in the actual supply of the drug. There were no scales, bags, capsules or cutting agents & the drug was not packaged.
Whether sentence manifestly inadequate - latent & patent error - whether special circumstances justified.
Appeal dismissed.
27

AYLES, Raymond Frederick - HCA, 28.2.2008 - Reported:232 CLR 410;82 ALJR 502
Citation:Ayles v The Queen [2008] HCA 6
On appeal from the SC of South Australia.
For more than 15 months in the 1970s, the appellant, a parish priest, sexually abused a 15 year old boy. The boy's parents reported the appellant to church authorities in 1975 after they intercepted a sexually explicit letter he sent to their home. The parents were told by 2 church officials, including an archdeacon, that the church would take care of the matter & they should not report it to police. The appellant left for Queensland & did not return to Adelaide until the 1990s, when he was arrested for unrelated sex offences.
The appellant pleaded guilty to 2 charges of indecent assault occurring at a later time than what was particularised & not guilty to all other charges. The charges were heard by a judge, sitting without a jury. The date marking the conclusion of the period within which the offences were alleged to have occurred was amended during the course of the trial. Following the hearing & before verdict, the judge ordered that the information be amended so as to refer to another, later, date & to the statutory provision which replaced s,70(1)(c). The appellant was sentenced to 4y with a NPP of 2y.
Admission to an offence outside the dates stated - whether trial judge has power to amend statutory provision without application by parties - s.281(2)Criminal Law Consolidation Act 1935 (SA) -distinct functions of judge & prosecutor - whether amendment conformed to prosecutor's intention - whether without opportunity for accused to make submissions.
Appeal dismissed.
28

BROOKES, Alexandria - NSW SC, Fullerton J, 19.2.2008
Citation:State of New South Wales v Brookes [2008] NSWSC 150
Judgment.
Application for interim detention order for a period of 28 days.
On 20.1.2008, the Attorney General for the State of NSW, brought an application under the Crimes (Serious Sex Offenders) Act 2006 by summons seeking final relief in respect of the defendant in the form of a continuing detention order for a period of 5 years pursuant to Part 3 of the Act or, in the alternative, an extended supervision order for the same length of time pursuant to Part 2 of the Act.
Serious sex offences - imminent release - 12m sentence for failing to comply with reporting obligations under Child Protection (Offenders Registration) Act 2000 to expire on 21.2.2008 - need for interim detention order.
Orders made.
29

COWEN, Darlene Eleanor - NSW SC, Buddin J, 22.2.2008
Citation:R v Cowen [2008] NSWSC 104
Remarks on Sentence.
Accessory after the fact to murder; concealing a serious offence.
Rural fire officers found the bodies of a couple in burnt-out fuel drums near Nowra.
Pleas of guilty & other favourable subjective features.
Sentenced to 9m PD & placed on a GBB for 18m.
30

VEALE, John David - CCA, 19.2.2008 - Reported:181 A Crim R 149
Giles JA, Hulme & Hislop JJ
Citation:Veale v R [2008] NSWCCA 23
Sentence appeal.
1 x robbery whilst armed with offensive weapon.
10y with a NPP of 7*y.
The offensive weapon was a piece of PVC tubing.
As the victim was walking adjacent to a car-park, the applicant drove into the car-park & then quickly towards her. He got out of the car with a balaclava covering his face, ran after the victim & grabbed a bag she was carrying. He then returned to the vehicle & drove off. The victim & her husband ran a service station. The bag she was carrying contained $20,000 in cash, which she was taking to the bank. The bag also contained a purse, a mobile phone & some personal papers. The car that the applicant used had been stolen the previous evening & was abandoned after the robbery.
Special circumstances - finding that criminal record an aggravating feature - guilty plea - whether error in discount - finding that victim vulnerable - applicant's medical condition - protective custody - whether sentence excessive.
Appeal allowed: resentenced to 8y with a NPP of 6y.
31

STARMER, David - CCA, 15.2.2008
McClellan CJ at CL, Grove & Simpson JJ
Citation:Starmer v R [2008] NSWCCA 27
Sentence appeal.
Conspire to import trafficable quantity cocaine.
3y with a NPP of 18m.
Pre-sentence custody - practice of backdating sentence.
Appeal dismissed.
32

HADSON, Neville Francis - NSW SC, Fullerton J, 26.2.2008
Citation:Attorney General for the State of NSW v Hadson [2008] NSWSC 140
Judgment.
Application for extended supervision order.
Serious sex offender.
Order made that defendant be subject to an extended supervision order for a period of 5 years.
33

IVIMY, James Percy - CCA, 19.2.2008
McClellan CJ at CL, Hall & Price JJ
Citation:Ivimy v R [2008] NSWCCA 25
Sentence appeal.
13 x aggravated indecent assault (8 counts contrary to s.61M(2) Crimes Act 1900, 4 counts contrary to s.61M(1) & one count contrary to s.61L).
Total sentence of 11y with a NPP of 8y 3m.
The applicant pleaded guilty to the above offences. He commenced a relationship with the complainant's mother when the complainant was aged 7 years & repeatedly indecently assaulted the complainant over a period of 10 years.
Whether sentences manifestly excessive - whether double counting - health issues.
Appeal dismissed.
34

AJO -CCA, 21.2.2008
McClellan CJ at CL, Grove & Simpson JJ
Citation:AJO v R [2008] NSWCCA 28
Conviction and sentence appeal.
Multiple sex offences, some with person under 16 (indecent assault, carnal knowledge, sexual intercourse without consent).
Total sentence of 9y 3m with a NPP of 5y 3m.
Four separate victims - multiple offences extending over 20 years.
Time limitation for prosecution pursuant to now repealed s.78 Crimes Act.
Appeal allowed in part: conviction & sentence on count 4 quashed & verdict & judgment of acquittal entered on that count. Total sentence of 9y 3m with a NPP of 5y 3m remains unchanged.
35

KENNEDY, James Anthony - CCA, 22.2.2008 - Reported:181 A Crim R 185
Beazley JA, James & Kirby JJ
Citation:Kennedy v R [2008] NSWCCA 21
Sentence appeal.
Assault; maliciously inflict GBH with intent.
7y with a NPP of 4y.
The applicant violently assaulted his de facto partner. As a result of the attack, the victim suffered severe physical injuries. The applicant suffered from schizophrenia. Three weeks prior to the assault, the de facto left him & took his medication with her. Without his medication, the applicant began experiencing auditory hallucinations. This eventually culminated in him assaulting the de facto. The applicant gave various reasons why he had not obtained replacement medicine. The sentencing judge found that the applicant's state of mind was induced by his failure to take his medication, such that his 'psychological status was of his own default'.
Aged 17 years 9 months at time of offence - disadvantaged background - suffered physical & sexual abuse as a child - offence at lower end of mid-range seriousness - encouraging prospects of rehabilitation - special circumstances - prior criminal record - subject to AVO at time of offending.
Findings - psychological condition - sentencing discretion - whether sentence excessive.
Appeal allowed: resentenced to 6y with a NPP of 3y.
36

GHANEM, Mohammed - CCA, 8.2.2008 - Reported:180 A Crim R440
McClellan CJ at CL, Hall & Price JJ
Citation:Ghanem v R [2008] NSWCCA 4
Sentence appeal.
2 x detain for advantage; 2 x assault; 6 x aggravated sexual intercourse without consent.
23y with a NPP of 15y.
Parity.
Appeal allowed: resentenced to a total of 17y with a NPP of 12y.
37

DO, Van Nghiem - CCA, 28.2.2008
McClellan CJ at CL, Grove & Simpson JJ
Citation:DO v R [2008] NSWCCA 34
Sentence appeal.
Supply commercial quantity methylamphetamine.
7y with a NPP of 4y.
Parity.
Appeal allowed: resentenced to 6*y with a NPP of 3*y.
38

LANGBEIN, Mark - CCA, 28.2.2008 - Reported:181 A Crim R 378
McClellan CJ at CL, Hall & Price JJ
Citation:Langbein v R [2008] NSWCCA 38
Conviction and sentence appeal.
Continued sexual abuse of a child (2 x sexual intercourse; assault & commit act of indecency; attempt have sexual intercourse in circumstances of aggravation).
10y with a NPP of 7*y.
The applicant sexually abused his stepdaughter over many years, starting when the child was either 6 or 7. When the child was about 11, while living with her natural father & his wife, she made complaint to her teacher & then to her stepmother. Police were contacted & they interviewed the complainant on 3 separate occasions. During these interviews, 4 occasions of abuse were identified (1st time, 2nd time, worst time & last time).
Directions — whether summing up lacked balance & objectivity — whether trial judge unfairly bolstered child complainant's evidence & Crown case — whether error in admitting evidence of complaint — "fresh in the memory" requirement — re-establishing creditability — whether error in direction on Markuleski principle (reported (2001) 52 NSWLR 82) — whether applicant being held in custody with more onerous conditions constitutes special circumstances — rehabilitation of sexual offenders — whether sentence manifestly excessive.
Appeal dismissed.
39

B, E E - CCA, 29.2.2008 - Reported:72 NSWLR 85; 181 A Crim R 281
Giles JA, Hislop & Price JJ
Citation: B v R [2008] NSWCCA 35
Conviction appeal (extension of time).
Supply commercial quantity heroin.
In May 1987, the appellant was arrested & charged under s.25(1) of the NSW Drug Misuse and Trafficking Act 1985. He was released on bail. He did not appear to answer bail & went overseas for some years. He was arrested in February 2005. The Act was amended in 1988 by the Drug Misuse and Trafficking (Amendment) Act 1988 which reduced the commercial quantity of heroin from 1kg to 250g. The Crown altered the indictment to charge the appellant with a s.25(2) offence. At trial, the jury was directed that a commercial quantity of heroin was anything more than 250g & the appellant was convicted of an offence under s.25(2), thus being convicted of supplying a commercial quantity of heroin at a time when the quantity alleged did not exceed the commercial quantity specified in the Drug Misuse and Trafficking Act.
On appeal, the appellant submitted that the indictment was invalid & therefore the conviction could not stand. The Crown accepted that the indictment was defective but argued that it was not invalid as it disclosed an offence known to law on an alternative bases & submitted that reference to 279g on the indictment was 'sa mere particular's.
Appeal allowed: conviction quashed, matter remitted to DC for sentencing.
40

KLUSKA, Martin Ludwig - NSW SC, Michael Grove J, 6.3.2008
Citation:In the matter of an Application by Martin Ludwig Kluska pursuant to Schedule 4 of the Crimes (Sentencing Procedure) Act 1999 [2008] NSWSC 171
Application for redetermination of life sentence.
Murder
Life sentence for offence committed in 1988 prior to legislation altering effect of such imposition.
Decision: Application for determinate sentence refused but non parole period fixed at 22y.
41

CLARE, William Thomas - CCA, 28.2.2008 - Reported:181 A Crim R 450
McClellan CJ at CL, Hall & Price JJ
Citation:Clare v R [2008] NSWCCA 30
Sentence appeal.
Count 1: aggravated sexual assault upon a child under the age of 10 years;
Count 2: manslaughter.
Total sentence of 25y with a NPP of 18y 9m.
The victim in both offences was a little boy aged 3y 10 months. Upon coming across a mother with her 2 children (the deceased & his 6 year old sister) at a Sydney railway station, the offender told the mother that she looked "worn out" & offered to babysit. She took him up on the offer & paid him $30 a day to look after her children. On 13.9.2003, after the offender raped the little boy, the child vomited & stopped breathing. The offender said he applied a 240-volt current to the boy's chest "like a heart-starter" in an effort to revive him. But this attempt to "jump-start" the boy's heart could have killed him, the jury heard.
Totality - setting of NPP - special circumstances - whether total sentence manifestly excessive - whether should be concurrent with previous sentence imposed for related offence.
Appeal allowed in part: NPP on count 2 reduced. New NPP on count 2 set at 15y 9m.
42

CLARKE, Allan Clifford - CCA, 27.2.2008
Grove, Hulme & Simpson JJ
Citation:Clarke v R [2008] NSWCCA 36
Sentence appeal (extension of time).
Manslaughter.
8y with a NPP of 6y.
The applicant was tried on a charge of murder. The jury returned a verdict of not guilty of murder but guilty of manslaughter.
The applicant, his daughter & the deceased lived separately in adjacent streets & were known to each other. The applicant's daughter had a heated discussion with the deceased, after which she went to her father's home. She made a complaint to him, after which the applicant armed himself with a hunting knife & confronted the deceased on the grass verge in front of his home. An exchange of words & a physical encounter followed. The applicant killed the deceased with a single thrust of the knife to his chest.
Provocation - whether sentence excessive.
Appeal dismissed.
43

SPRUILL, Richard - CCA, 29.2.2008
Hodgson JA, Kirby & Buddin JJ
Citation:Spruill v R [2008] NSWCCA 39
Conviction appeal.
Malicious wounding with intent to do GBH.
10y with a NPP of 6y.
Armed with a knife, the appellant broke into the flat of his ex-wife & attacked her while their 18 month old child cried nearby. He put the victim in a headlock & told her that if he could not have her no-one could. The victim had phoned 000 when the appellant began to threaten her but had dropped the receiver to the floor. Much of what happened was recorded on tape. The victim suffered a 4cm stab wound to her left breast & a cut up her throat to her left ear.
Whether presumptive evidence of blood stains should have been admitted - whether direction on unreliability under s.165(1) Evidence Act should have been given - whether guilty verdict unreasonable.
Appeal dismissed.
44

MOHAMED, Elyas - CCA, 5.3.2008
McClellan CJ at CL, Grove & Simpson JJ
Citation:Mohamed v R [2008] NSWCCA 45
Conviction appeal.
Aggravated kidnapping; robbery in company.
Joint indictment of 3 co-accused. - co-accused found not guilty.
Whether verdict for robbery in company charge unreasonable - whether jury should have been directed in relation to alternative non-aggravated count - whether trial judge required to summarise all evidence for jury in summing-up.
Appeal dismissed.
45

ZIHA, Gabor - NSW SC, Barr J, 29.2.2008
Citation:R v Ziha [2008] NSWSC 145
Remarks on Sentence.
Murder; malicious wounding.
The offender stabbed his estranged wife's new lover to death & chopped off his penis to teach his estranged wife "a lesson for her adultery". The deceased was asleep when the offender attacked him. The offender also wounded his ex-wife during the attack.
Partial defence - substantial impairment by an abnormality of mind arising from an underlying condition.
Sentenced to a total of 24y with a NPP of 18y.
46

DAVIS, Jason Russell - NSW SC, Mathews AJ, 14.2.2008
Citation:R v Davis [2008] NSWSC 55
Remarks on Sentence.
Murder.
The 73 year old deceased was stabbed 3 times when he interrupted the offender during a burglary of his flat. The deceased was taken to hospital & appeared to be making a good recovery from his injuries when, 3 days later, he suffered a fatal heart attack. A post mortem revealed that for some time the deceased had been suffering from chronic heart disease. This had evidently been symptomless & the deceased had presented as a very fit man who had never complained of any coronary episodes.
Aged 26 - 'appalling'record, including crimes of violence.
Sentenced to 24y with a NPP of 18y.
47

LANG, Jason Craig - CCA, 4.3.2008
Grove, Simpson & Barr JJ
Citation:R v Lang [2008] NSWCCA 41
Crown appeal under s.5F Criminal Appeal Act 1912 against stay of proceedings on alternative charge on indictment.
Whether doctrine of double jeopardy attaches to formulation of charges in the alternative - elements & facts of each count not identical.
Appeal allowed: Order staying prosecution on alternative count quashed.
48

HUGHES, James Allan - CCA, 10.3.2008 - Reported:185 A Crim R 155
McClellan CJ at CL, Grove & Simpson JJ
Citation:Hughes v R [2008] NSWCCA 48
Sentence appeal.
Dangerous drive causing death.
4*y with a NPP of 3y.
It was night & the applicant was driving a prime mover attached to a flat-top trailer laden with sheet metal on the New England Highway. He was accompanied by his 18 year old partner who was 3 months pregnant. As the vehicle came to a sweeping right-hand bend, it encroached onto the wrong side of the road, collided with a crash barrier & only came to rest 87 metres from the point of impact. The applicant climbed out of the vehicle, which then became engulfed in flames. He tried unsuccessfully to pull his partner from the vehicle. She died of burns & the foetus did not survive. Analysis of a blood sample taken from the applicant at a hospital revealed that at the time, the applicant was under the influence of cannabis to the extent that his driving ability would have been impaired. The concentrations were such that pharmacological opinion was that the usage of cannabis had been 'recent'.
Aged 32 - guilty plea - remorse - prospects of rehabilitation - whether sentence excessive.
Appeal allowed: resentenced to 3y with a NPP of 2y.
49

WIGGINS, Sandra Elsie - CCA, 15.2.2008
McClellan CJ at CL, James & Barr JJ
Citation:Wiggins v R [2008] NSWCCA 19
Sentence appeal.
Armed robbery; detain for advantage.
Total sentence of 6y with a NPP of 3y.
The applicant stood by the roadside, pretending to offer sexual services. The victim, who was driving a van, stopped & spoke to her. The applicant then got into the van & directed him to a house where she knew her co-offender was waiting. At the house, the co-offender brandished a blood-filled syringe & told the victim that they wanted his money. The victim handed over $50. Both offenders told him that they did not wish to hurt him, just to take his money. They demanded his bankcard but he persuaded them not to take it. They made him drive them to an ATM to withdraw cash. On the way, the victim said that something had fallen off the van. He stopped & got out, saying that he was going to recover whatever it was. He ran away & got help. When the applicant realised that the victim had escaped, she drove the van with the co-offender in it to a place where they abandoned it, after removing tools & other items. They sold some & others they threw away. The co-offender left a fingerprint on the van.
Whether sentence manifestly excessive - whether objective and/or subjective circumstances justified a sentence less than range in guideline judgment in R v Henry & Ors [1999] NSWCCA 111 - -whether sentence outside range of sentencing discretion - whether disparity in sentences.
Appeal dismissed.
50

TODOROVIC, Aleksandra - CCA, 10.3.2008
Grove, Hulme & Simpson JJ
Citation:R v Todorovic [2008] NSWCCA 49
Crown appeal.
8 x dishonestly obtain money by deception; + 56 offences on a Form 1.
Total sentence of 2y with a NPP of 1y to be served by way of PD.
The respondent was the accounts manager in a small company. Her duties included the transfer of funds out of the company's bank account at the National Australia Bank by use of on-line internet facilities. The money was to be for trade creditors & staff salaries. The respondent used the on-line facilities to transfer funds from the company's account into her own personal bank account. Between 6.11.2002 & 30.9.2004 she made 64 unauthorized transfers into her own account at either the Commonwealth Bank or the St George Bank. She committed the 1st offence less than 4 weeks after commencing employment with the company. The total amount of money dishonestly obtained was $171,536.58.
Whether sentence manifestly inadequate - 20% discount for utilitarian value of guilty pleas - whether miscarriage of discretion - little mitigation in gambling addiction - material since sentence including illnesses of respondent.
Appeal dismissed.
51

MATTHEWS, Shaun Harvey - CCA, 10.3.2008
Mason P, Mathews AJA, Latham J
Citation:R v Matthews [2008] NSWCCA 54
Crown appeal.
Aggravated BE and commit serious indictable offence (armed robbery, in company).
3y 9m with a NPP of 1*y.
This was a 'home invasion'type offence.
Joint criminal enterprise - guilty plea.
Whether sentence manifestly inadequate.
Appeal allowed: sentence set aside, matter remitted to the DC for determination by a different judge.
52

MACIUK, Luke - NSW SC, Barr J, 12.3.2008
Citation:R v Maciuk [2008] NSWSC 210
Remarks on Sentence.
Murder.
The accused killed his father by slitting his throat.
Psychotic delusions - heavy cannabis use.
Decision: Not guilty by reason of mental illness.
53

WELLS, Angela - NSW SC, Michael Grove J, 12.3.2008
Citation:R v Wells [2008] NSWSC 206
Remarks on Sentence.
Accessory after the fact to murder.
The offender entered a plea of guilty to the above charge, admitting that she drove her de facto to the deceased's house on the night she died & made numerous phonecalls to the deceased. The deceased was a friend of the offender.
Sentenced to 3y with a NPP of 1*y.
54

COMPTON, Christopher Leigh - NSW SC, Studdert AJ, 7.3.2008
Citation:R v Compton [2008] NSWSC 204
Remarks on Sentence.
Manslaughter.
The offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter. The deceased was a 17 month old baby girl. A post-mortem examination revealed evidence of multiple external & internal injuries, including bruising to the head & body, frontal skull damage, haemorrhage in the right eye, heavy extensive internal bruising to the abdomen & central upper abdominal injuries. The most significant injury was a recent blunt head trauma, occasioned by an impact to the right side of the forehead, where there were 2 fresh external bruises, beneath which there was a fresh large subdural haemorrhage consisting of liquid blood & clot (52 grams), with right sided brain swelling & other associated damage. It was concluded that this injury was the direct cause of death. The offender was in a de facto relationship with the deceased's mother at the time of the baby's death. The deceased's mother had 2 other children from previous partners.
Amphetamine addiction - drug-related paranoid psychosis.
Sentenced to 9y with a NPP of 6y 9m.
55

WINTERS, Christopher Paul - NSW CA, 18.3.2008
Mason P, Giles JA, Hodgson JA
Citation:Winters v Attorney General of NSW [2008] NSWCA 33
Application for continuing detention order.
Serious sex offender - Requirements of s.17(3) Crimes (Serious Sex Offenders) Act 2006 (NSW) - whether primary judge erred in finding that adequate supervision could not be provided - supervision required individual counselling sessions - whether evidence that the State would not fund these sessions was admissible - whether primary judge erred in finding that the State would not fund these sessions - whether the proceedings were an abuse of process.
Appeal dismissed.
56

CRAMP, John Robert - CCA, 4.3.2008
Grove, Hulme & Simpson JJ
Citation:Cramp v R [2008] NSWCCA 40
Sentence appeal.
Count 1: unauthorised use of prohibited pistol;
Count 2: possess unregistered firearm;
+ Form 1 offences.
2y GBB.
The offences were uncovered following a police audit. The applicant, who is the proprietor of a security business, applied for licences permitting the possession & use of 18 firearms for use in his security business. Approval was granted for the use of only 12 firearms & the applicant was required to surrender the remaining 6 firearms. He then provided the 12 firearms to the NSW Police ballistics section for test firing. The applicant was in possession of a further 2 pistols used in his security business, neither of which was identified in his application. It was the use of these 2 pistols that constituted the offences the subject of the 1st count in the indictment & the 1st offence on the Form 1. The 3 weapons the subject of the offence in count 2 & the remaining offences on the Form 1 were antique weapons, which were in working order.
Aged 59 - guilty plea - no priors.
Whether conviction carries extra-curial punishment - whether s.10 bond should be substituted for s.9 bond & conviction set aside.
Appeal dismissed.
57

BLUNDELL, Paul John - CCA, 25.3.2008 - Reported:70 NSWLR 660
Grove, Hulme & Simpson JJ
Citation:Blundell v R (Cth) [2008] NSWCCA 63
Sentence appeal.
3 x fraudulent misappropriation.
Total sentence of 18m with a NPP of 9m.
All offences were committed over a period of a few months. The applicant & his brother operated an insurance brokerage business & represented to clients that a particular kind of insurance would be or had been arranged for them. They obtained funds from those clients for the payment of premiums but failed to remit the funds to the insurance company, rather, diverting the funds into a business or personal account. Clients who believed that they had insurance cover were in fact uninsured. The applicant's brother was charged with 4 similar offences as those charged against the applicant & asked that a further 5 offences be taken into account. The amount of money involved in the brother's offending was $16,920.39. The brother was sentenced to 18m with a NPP of 6m. On appeal, the brother's sentences were quashed & he was directed to perform 100h community service work. The offences committed by the applicant involved an amount of $146,000.
Aged 38 at time of offending - guilty pleas - minor criminal history involving driving offences.
Principle of parsimony - whether sentences excessive.
Appeal dismissed.
58

TMTW -CCA, 10.3.2008
McClellan CJ at CL, James & Simpson JJ
Citation:TMTW v R [2006] NSWCCA 50
Sentence appeal.
Counts 1&2: common assault;
Counts 3,6,7&8: AOABH;
Count 4: aggravated indecent assault;
Count 5: malicious wounding.
Total sentence of 6y with a NPP of 4y.
The applicant discovered that the complainant (his 10 year-old nephew) & the complainant's 15 year old brother had sexually interfered with the applicant's 6 year-old daughter & that they had used drugs to put the applicant's daughter to sleep in order for them to be able to further assault her. On the day of the offences committed by the applicant, the complainant had been left in the care of the applicant; The applicant forced a marker pen to the complainant's throat, struck him in the face with the back of his hand, hit him across the face 10 to 15 times, poured salt & pepper into his mouth in an attempt to make him thirsty & forced him to talk which caused the complainant to regurgitate. The complainant was also struck to the chest & stomach with a stick or piece of timber. The applicant used pliers to squeeze the complainant's penis from outside his clothing & forcibly twisted the complainant's genitals with pliers.
Aged 41 - guilty plea - prior good character - remorse & contrition.
Whether error in assessment of culpability for aggravated indecent assault & malicious wounding.
Appeal allowed in part, resulting in a new total sentence of 5*y with a NPP of 3*y.
59

RODDEN, Mathew James - CCA, 20.3.2008
Beazley JA, Hall & Fullerton JJ
Citation:Rodden v R [2008] NSWCCA 53
Conviction appeal.
2 x aggravated sexual intercourse with child aged between 10 & 14 years; 2 x aggravated sexual intercourse with child aged between 14 & 17 years; 1 x aggravated indecent assault with child under age of 16 years.
Total sentence of 8y with a NPP of 5y.
The complainant is the daughter of the applicant's de facto.
Aged 40 at time of appeal.
Delay in complaint - tendency evidence - relationship evidence - admissibility - inadequacy of directions - whether miscarriage of justice.
Appeal allowed: new trial ordered.
60

MUNDINE, Keenan - CCA, 18.3.2008 - Reported:182 A Crim R 302
McClellan CJ at CL, Grove & Simpson JJ
Citation:R v Mundine [2008] NSWCCA 55
s.5F appeal by Crown against judgment by Solomon DCJ to exclude evidence.
Exclusion such as to eliminate or substantially weaken Crown case - identification evidence - whether risk of unfair prejudice outweighed probative value - credibility & reliability not relevant to determination of probative value - evidence to be considered on the assumption that it is accepted by the jury - weight of evidence to be taken into account when assessing unfair prejudice.
Appeal allowed: judgment of Solomon DCJ set aside.
61

PEREZ, Jorge - CCA, 6.3.2008
Beazley JA, James & Kirby JJ
Citation:Perez v R [2008] NSWCCA 46
Sentence appeal.
1 x aggravated indecent assault against child aged 10 years; 1 x aggravated indecent assault against child aged 11; 1 x sexual intercourse with child aged 11; 1 x sexual intercourse with child aged about 12.
Total sentence of 7y with a NPP of 5*y.
The applicant committed the offences upon the young daughter of family friends.
Longman direction - delay up to 4 years - relevance of length of delay to content of warning - Markuleski direction -Rule 4 - whether inconsistent verdicts - whether error on sentence 'statutory ratio.
Appeal allowed: Sentences restructured, resulting in a total sentence of 7y with a NPP of 5y 3m.
62

CARRUTHERS, Harold Leslie - CCA, 19.3.2008 - Reported:182 A Crim R 481
McClellan CJ at CL, James & Simpson JJ
Citation:R v Carruthers [2008] NSWCCA 59
Crown appeal.
Aggravated dangerous drive occasioning GBH.
Sentenced to 2y 2m 29d with a NPP of 1y 8m 7d to be served by way of PD.
The respondent's vehicle collided with a motorcycle.
Prescribed concentration of alcohol significantly above threshold - whether appropriate for sentence to be served by way of PD - whether trial judge erred by failing to fix an appropriate sentence & then considering alternatives to full-time custody - steps in sentencing process - need for sentence to reflect general & specific deterrence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y 2m with a NPP of 1y 8m.
63

OKUMU, Bernard Laboke - NSW SC, Barr J, 20.3.2008
Citation:R v Okumu [2008] NSWSC 242
Judgment.
Murder.
The accused killed his wife by striking her to the head with a hammer.
Defence of mental illness.
Verdict: Not guilty by reason of mental illness.
64

WOODROFFE-HILL, Matthew James - NSW SC, Barr J, 17.3.2008
Citation:R v Woodroffe-Hill [2008] NSWSC 221
Judgment.
Murder.
Accused killed his step-grandfather by stabbing him with a bayonet. He then decapitated the body.
Delusions - bizarre behaviour. Defence of mental illness.
Verdict: Not guilty by reason of mental illness.
65

FROST, Peter - NSW SC, Barr J, 17.3.2008
Citation:R v Frost [2008] NSWSC 220
Remarks on Sentence.
Manslaughter.
The offender strangled his wife after she proposed taking their 9 year old daughter to the Philippines in order to sell her into prostitution.
Guilty plea - provocation.
Sentence: 6y with a NPP of 3*y.
66

ALRAMADAN, Rafid Ghani - CCA, 27.3.2008
Basten JA, Latham & Rothman JJ
Citation:Alramadan v Director of Public Prosecutions (NSW) (No.2) [2008] NSWCCA 69
Application to reopen appeal & set aside order made by the Court on 23.11.2007 dismissing the appeal: see Alramadan v DPP (NSW) [2007] NSWCCA 322 .
Application to set aside or vary order within 14 days of entry of judgment - Criminal Appeal Rules r 50C(2) - power of Court to reopen appeal "as if the order had not been entered" - reopening where orders not entered - criteria to be satisfied to justify reopening - misapprehension of fact or law materially affecting judgment in the appeal - further evidence - proposed reopening appeal to remedy deficiency in material presented at hearing.
Application dismissed.
67

AK -HCA, 26.3.2008
Citation:AK v The State of Western Australia [2008] HCA 8
On appeal from the SC of WA.
Identification evidence - complainant indecently dealt with by one of 2 males with whom she & her sister were sharing a bed - complainant unable to identify the perpetrator by visual/aural means - adamant that appellant was responsible - whether identification warning needed - whether finding of guilt unreasonable or not supported by evidence. Application of the proviso - statutory requirement that reasons for judgment include the principles of law applied & the findings of fact relied upon - failure to give reasons meeting statutory requirements in respect of central issue at trial - failure to comply with statutory requirements an error of law - appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred - whether no substantial miscarriage of justice had occurred.
Appeal allowed: new trial ordered.
68

CRIBB, John Ernest - NSW SC, Adams J, 7.3.2008
Citation:Cribb v R [2008] NSWSC 265
Application for redetermination of life sentence.
3 x murder - mandatory life sentences; 1 x rape - 12y.
The offences were committed whilst the applicant was on parole for armed robberies.
Application withdrawn.
69

SWANSSON, David Anthony - CCA, 13.2.2008
McClellan CJ at CL, Grove & Simpson JJ
Citation:Swansson v R (Cth) [2008] NSWCCA 56
Conviction appeal.
1 x accessory to an attempt to import commercial quantity MDMA (ecstasy).
Deficiency of evidence as to requisite guilty mind - whether verdict of guilty unreasonable.
Appeal allowed: matter to be re-listed for purpose of making formal orders in relation to proposed amendment.
70

AE -CCA, 20.3.2008
Bell JA, Hulme & Latham JJ
Citation:AE v R [2008] NSWCCA 52
Conviction appeal.
Sexual offences against daughter & stepdaughter.
Inconsistent verdicts - tendency and/or coincidence evidence - whether probative value substantially outweighed prejudicial effect - whether miscarriage of justice.
Appeal allowed: Verdict of acquittal on count 11; direct new trial on counts 14&15.
71

CORBETT, Andrew Charles - CCA, 4.3.2008 - Reported:181 A Crim R 522
McClellan CJ at CL, Hulme & Harrison JJ
Citation:R v Corbett [2008] NSWCCA 42
Crown appeal.
2 x attempt import commercial quantity gammabutyrolactone (GBL). Guilty plea.
Total sentence: 360 hour CSO.
Statutory regime distinguishing between drugs in prescribing threshold of trafficable/commercial quantities.
Whether sentence manifestly inadequate.
Appeal dismissed.
72

CHIDGEY, Dylan - CCA, 28.3.2008 - Reported:182 A Crim R 536
Beazley JA, James & Kirby JJ
Citation:Attorney General for NSW v Chidgey [2008] NSWCCA 65
s.5F appeal by Crown against interlocutory judgment or orders.
5 x supply MDMA (ecstasy); 1 x ongoing supply of MDMA.
During committal proceedings, the respondent issued to the Commissioner of Police a subpoena for the production of documents, including documents that were completed by Police in accordance with the Controlled Operations Act & Regulations, including but not limited to the applications made for the approval of the Controlled Operation. The Commissioner of Police sought an order that this part of the subpoena be set aside as an abuse of process, on the ground that there was no legitimate forensic purpose in seeking access to those documents. The respondent submitted that the legitimate forensic purpose for production was that the documents contained information that would assist the defence. The magistrate rejected that there was a legitimate forensic purpose in the terms identified by the respondent, but determined that there was another legitimate forensic purpose in allowing the respondent to ' check that there has been compliance with form'in the issuing of the Controlled Operations Authorities.
Statutory right of appeal of AG & DPP against interlocutory judgment or orders - subpoena for production - legitimate forensic purpose.
Appeal allowed: order made to strike out para 3 of the subpoena.
73

HORTON, Garry Edward - CCA, 27.3.2008
McClellan CJ at CL, Simpson & Price JJ
Citation:Horton v R [2008] NSWCCA 72
Conviction and sentence appeal.
1 x aggravated indecent assault.
2y 9m with a NPP of 1y.
The appellant pleaded guilty to the above charge, which appeared as an alternative count on the indictment. The Crown accepted the plea in full satisfaction of the indictment & the appellant was duly convicted. However, after conviction, but prior to sentence, the complainant retracted his allegations against the appellant to the extent that he had originally asserted that the sexual activity between them was non-consensual.
Whether conviction on basis of guilty plea ought to be quashed.
Appeal allowed: new trial ordered.
74

TRUDGETT, Michael Beverley - CCA, 25.3.2008 - Reported:70 NSWLR 696
Spigelman CJ, Hulme & Latham JJ
Citation:Trudgett v R [2008] NSWCCA 62
Conviction appeal.
1 x sexual intercourse without consent.
The complainant attended a party hosted by the appellant in the backyard of his residence. A mutual friend introduced the appellant to her as 'Adam'.  The appellant & the complainant entered the house & after a while, the complainant emerged, distressed & crying. She reported to police that she had been sexually assaulted by 'Adam'.  Police arrested & charged the appellant with one count of sexual intercourse without consent. The complainant was never asked to identify the person who committed the offence either by photograph or an identification parade or in court. At trial, there was no dispute that the complainant had been sexually assaulted. The only matter in dispute was whether the appellant was the offender.
Identification & recognition evidence - whether direction to jury required - whether miscarriage.
Appeal dismissed.
75

ALI, Ashiq - CCA, 14.3.2008
Bell JA, Adams & Latham JJ
Citation:Ali v R [2008] NSWCCA 60
Sentence appeal.
Knowingly deal with proceeds of crime; knowingly possess false travel document; possess instruments for making false instruments; possess false instruments with intent to use; attempt obtain credit by fraud; + 10 offences on a Form 1 (possess false instrument with intent to use; knowingly possess false travel document; make or possess implement for making false instrument).
Total sentence of 6y with a NPP of 3*y.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
76

SMITH, Nathan Paul - NSW SC, Hulme J, 7.3.2008
Citation:R v Smith [2008] NSWSC 201
Remarks on Sentence.
Manslaughter.
Guilty plea.
The offender punched the victim, who fell over & struck his head heavily on the concrete footpath. The victim regained consciousness & was taken to hospital but died 2 days later from a subdural haemorrhage. A post mortem examination revealed a fracture to the back of his skull. The attack was unprovoked.
Sentenced to 3y 9m with a NPP of 2*y.
77

SHAW, Jason Robert - CCA, 14.3.2008
McClellan CJ at CL, Grove & Fullerton JJ
Citation:Shaw v R [2008] NSWCCA 58
Sentence appeal.
Aggravated B,E & commit serious indictable offence (inflict ABH); malicious damage to property.
6y with a NPP of 4y.
The applicant & the victim had been in a domestic relationship for a number of years until shortly before the offending. While intoxicated, the applicant went to the house where the victim was staying. He said his intention was to see his son. He used a small hammer or pick that he found on the premises to smash a hole through the front door & 2 adjacent windows. He then went to the rear of the house, smashed a window & damaged a flyscreen before striking open the rear door. He entered the house, grabbed the victim by her hair & punched her on her left shoulder. He then struck her with a clenched fist to the area above her left eye. In all, he punched the victim 3 or 4 times in the head. As the applicant tried to leave with his son, the victim was knocked to the ground & kicked in the head. She suffered swelling, bruising & abrasions to her body, as well as a laceration above her left eye.
Domestic violence offences - specific & general deterrence - protection of community - relevance of victim's expression of forgiveness - assessment of objective seriousness of offence - approach to proper allowance for guilty plea - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2*y.
78

LENATI, Christopher John - CCA, 27.3.2008
Bell JA, Simpson & Adams JJ
Citation:R v Lenati [2008[ NSWCCA 67
Crown appeal against sentence.
2 x B,E & commit serious indictable offence; 1 x aggravated detention for advantage (in company); 1 x maliciously inflict GBH with intent; 1 x robbery in company.
Total sentence of 6*y with a NPP of 2*y.
Discount for undertaking to give assistance to authorities - failure to fulfil undertaking - whether sentence manifestly inadequate.
Appeal dismissed.
79

STAVROPOULOS, Paul - CCA, 1.4.2008
McClellan CJ at CL, Hall & Price JJ
Citation:R v Stavropoulos [2008] NSWCCA 68
Application for costs by respondent following the unsuccessful Crown appeal of 7.12.2007: see R v Stavropoulos [2007] NSWCCA 333 .
Failed appeal - whether s.17 Criminal Appeal Act applies to preclude an order for costs.
Application by respondent for costs dismissed.
80

KT -CCA, 1.4.2008 - Reported:182 A Crim R 571
McClellan CJ at CL, Hall & Price JJ
Citation:KT v R [2008] NSWCCA 51
Sentence appeal.
Manslaughter.
6y with NPP of 4y.
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 & dangerous act - juvenile offender - principles relevant to sentencing young offenders. Whether sufficient regard to KT's youth & immaturity - whether acted as an 'adult'- considerations of punishment/general deterrence/rehabilitation - whether sentence manifestly excessive.
Appeal dismissed.
81

KERR, Lewis Arthur - CCA, 6.3.2008
Hodgson JA, Kirby & Buddin JJ
Citation:Kerr v R [2008] NSWCCA 44
Sentence appeal.
1 x cultivate commercial quantity cannabis plant; 1 x supply commercial quantity cannabis; 1 x deal with proceeds of crime; + Form 1 matter.
5y with a NPP of 3y.
The applicant was a farmer with a number of properties. Police executed a warrant on one of these properties. In the main bedroom of the house, they found $5,700 cash (Form 1 offence). Adjacent to the house was a locked shed, inside of which was a coolroom used as a "sophisticated hydroponic setup" where a number of cannabis plants were growing. Outside the coolroom, they found cannabis seedlings covered with black plastic & growing under a lighting system. Police searched what was described as a "chicken shed" where they found blue & yellow drums & a number of hydroponic troughs, as well as multiple pairs of scissors. There was also a large gas powered lamp. Suspended from the ceiling were lengths of bailing wire. Outside the chicken shed, police noticed black polypipe running from the creek. They followed the pipe which led to a pump & a large crop site which consisted of 3 separate plots, each fenced with a 6 foot high chicken wire fence. Polypipe drip lines fed water to each plot. The area was covered with bird netting. Altogether 366 cannabis plants were found during the search (count 1). While looking for buried items on the property, police found 16 grey 200-litre plastic drums with screw top lids. Within 4 of the drums there were 166 sealed bags containing what was later found to be cannabis heads. The combined weight of the cannabis was 44.86 kgs (count 2). Police continued the search for buried items the next day & found a drum, inside of which were bags containing $79,700 in cash (count 3).
Whether sentence manifestly excessive.
Appeal dismissed.
82

PHILOPOS, Raouf Maurice - CCA, 1.4.2008
McClellan CJ at CL, James & Barr JJ
Citation:Philopos v R [2008] NSWCCA 66
Conviction and sentence appeal.
4 x indecent assault; 2 x sexual intercourse without consent.
Total sentence of 12y with a NPP of 8y.
During the evening, the appellant took his young son, who was suffering a severe asthma attack, to the emergency ward at Westmead Children's Hospital. In the early hours of the following morning, the boy was transferred to a room with 2 beds. The appellant arranged for a chair-bed for himself so that he could stay the night beside his son. A woman occupied the other bed, which was divided off by a drawn curtain. After some time, the appellant sexually assaulted the woman.
Whether fit to be tried - no application made by defence counsel - legal representation - conflicting instructions from appellant - application by defence counsel for leave to withdraw - whether trial judge erred by refusing to grant adjournment for appellant to obtain other legal representation - whether lack of legal representation resulted in miscarriage of justice.
Appeal dismissed.
83

LEACH, Benjamin Anthony - CCA, 1.4.2008 - Reported:183 A Crim R 1
Basten JA, Hidden & Barr JJ
Citation:Leach v R [2008] NSWCCA 73
Sentence appeal.
Manslaughter; + Form 1.
7*y with a NPP of 4*.
The applicant was woken by his 7 week-old daughter crying. She did not stop crying after being fed. The applicant sat on her, which caused her to stop breathing. He then woke his partner & an ambulance was called. In the meantime he performed CPR on the baby. In sentencing, 2 prior assaults on the baby were taken into account.
Aged 23 - guilty plea - no priors - previous good character - remorse - excellent prospects of rehabilitation - applicant suffered hypoxia & brain damage at birth leading to intellectual disability & short term memory deficits - mild depressive disorder - coping skills at level of person aged 10 years 8 months - special circumstances.
Intellectual impairment - inconsistency between sentencing judge's acknowledgment of intellectual impairment & criticism for failing to seek help after assaulting victim — sentencing judge's remarks on need for substantial weight to be given to retribution without reference to moral culpability reflected desire for vengeance.
Appeal allowed: resentenced to 6y with a NPP of 3*y.
84

FORREST, Mark Allan - NSW SC, Studdert AJ, 4.4.2008
Citation:R v Forrest [2008] NSWSC 301
Remarks on Sentence.
Manslaughter.
After a bit of an altercation, the offender stabbed the deceased a number of times. The fatal wound was that inflicted to the abdomen.
Sentence: 7*y with a NPP of 5y 9m.
85

APT -NSW SC, Studdert AJ, 4.4.2008
Citation:R v APT [2008] NSWSC 302
Remarks on Sentence.
Manslaughter.
Following a trial in which the offender was charged with murder, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
The deceased was the victim of a savage attack that took place on the footpath beside Wyong Road, Killarney Vale early in the morning. He was taken to hospital by ambulance but was pronounced dead on arrival. The Crown case was that the offender was one of 3 participants in the attack upon the deceased, one of whom was Wade John Willmot who pleaded guilty to murder for his participation in the attack. Willmot was sentenced to14y with a NPP of 10y, having given an undertaking to give evidence at the trial of the offender & a 3rd male. The jury acquitted the 3rd male.
Aged 19 at time of sentencing - special circumstances.
Sentence: 8y 4*m with a NPP of 5y 10*m, to be served in a juvenile detention centre until the age of 21.
86

NAJEM, Mark Dean - CCA, 6.3.2008
Beazley JA, Hulme & Latham JJ
Citation:R v Najem [2008] NSWCCA 32
Crown appeal.
Count 1: maliciously inflict GBH with intent to do GBH - 5y with a NPP of 2y;
Count 2: unauthorised possession of prohibited pistol - 3y with a NPP of 2y;
Count 3: resist police officer in execution of duty - 6m FT.
Effective total sentence of 6y with a NPP of 3y (sentence partially accumulated).
Police were aware that certain business premises were to be targeted by the owner of another company. Two police officers were posing as employees when the respondent & 2 co-offenders attended the premises. Armed with a fully loaded semi-automatic pistol, the respondent entered a rooftop carpark above the premises, while one co-offender remained in his vehicle. The other co-offender knocked on the front door & shortly afterwards discharged a shot from a shortened rifle, just missing the knee of the police officer. The respondent ran away & was apprehended a short time later. The respondent was to receive some benefit from a sum of $10,000, although the exact amount was not known.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 8y with a NPP of 5y.
87

ELZAKHEM, Gabriel - CCA, 6.3.2008
Beazley JA, Hulme & Latham JJ
Citation:R v Elzakhem [2008] NSWCCA 31
Crown appeal.
5 x malicious damage by fire; 2 x conspiracy to cause malicious damage by fire.
Total sentence of 18y 7m with a NPP of 9y 1m.
The respondent was the owner of a company selling hairdressing products. Between February 1997 & December 2004 he arranged for a series of arson attacks upon various properties. Most properties were owned by competitors who posed a threat to his business & on each occasion the respondent requested a relative, Vincent Awit, to organise the attack. In late 2004, the respondent agreed to pay $10,000 to Awit to arrange for the premises of 'Beautopia' to be burnt down & for the director of the business to be 'roughed up a bit'. During the attack a shot was fired at an undercover police officer posing as an employee. The total amount of damage involved in the offences was estimated to be about $24.8 million.
Aged 46 - guilty plea - born in Lebanon - diagnosed with major depressive disorder & Crohn's disease - no significant evidence of remorse or contrition - no previous convictions.
Appeal allowed: resentenced to a total of 20y with a NPP of 15y.
88

WILSON, Kirrlie Shane - NSW SC, Howie J, 4.4.2008
Citation:R v Wilson [2008] NSWSC 238
Remarks on Sentence.
Murder.
Killing during the course of armed robbery.
Sentence: 26*y with a NPP of 20y.
89

THOMPSON, John Frederick - NSW SC, Hoeben J, 14.3.2008
Citation:R v Thompson [2008] NSWSC 109
Remarks on Sentence.
Murder.
Guilty plea.
Murder of partner after night of drinking.
Application of standard NPP - aggravating & mitigating factors.
Sentence: 20y with a NPP of 15y.
90

MITCHELL, Beau-Steven - NSW SC, Howie J, 18.4.2008
Citation:R v Mitchell [2008] NSWSC 320
Remarks on Sentence.
Manslaughter; arson.
The 73 year old deceased died as a result of being bashed to the head with a hammer. His unit was then set on fire. The offender said that he attacked the deceased after waking from an intoxicated sleep to find himself in a state of undress with the deceased giving him unwanted oral sex.
Guilty plea - provocation.
Sentence: total of 9y with a NPP of 5y 3m.
91

JUKES, Lacy Lee - NSW SC, Hoeben J, 29.2.2008
Citation:R v Jukes [2008] NSWSC 126
Remarks on Sentence.
Appeal against order for cancellation of suspended sentence.
Manslaughter.
2y with a NPP of 1y suspended upon entering into a 2y GBB. The offender was also required to report to the Probation and Parole Service & obey all reasonable directions from them for a period of 2y.
The offender pleaded guilty to stabbing her mother's partner during an argument & received the above sentence: see R v Jukes[2006] NSWSC 1065. Two months after being sentenced for the manslaughter, the offender & her then partner broke into her grandmother's house & stole jewellery. She also breached her GBB by failing to comply with directions from the Probation and Parole Service for counselling.
Aged 25 - committed the BE&S to finance amphetamine habit - has 5 children, 3 of whom live with her aunt, the youngest 2 children being in offender's care - currently 4* months pregnant.
Suspended sentence revoked: resentenced to 2y with a NPP of 1y.
92

IE -CCA, 21.4.2008 - Reported:183 A Crim R 150
Spigelman CJ, Hulme & Latham JJ
Citation:IE v R [2008] NSWCCA 70
Sentence appeal.
1 x aggravated indecent assault (in company); 3 x aggravated sexual intercourse without consent (in company); 1 x attempted aggravated sexual intercourse without consent (in company).
Sentenced to a total of10y with a NPP of 5y, with a recommendation that parole not be granted unless applicant completed a sex offender programme.
The offences occurred in the Westfield shopping centre at Hurstville. The complainant was a 15 year old student who had a part-time job within the centre. Much of what happened to the complainant was captured on CCTV, which shows that the complainant was dragged by the applicant & his co-offender to a lift & shows them on the roof car park, with the co-offender holding her firmly & the applicant gesturing towards the exit to a fire escape. The offences occurred within the fire escape. The co-offender threatened to throw the complainant down the stairwell if she did not comply with his demands.
The applicant was aged 16 years 5 months at time of offences. He still refuses to admit his guilt in the offences & therefore has not taken part in any sex offender programme.
Consideration of sentencing principles applicable to juveniles - whether youth constituted an objective feature of the offences - whether sentence manifestly excessive.
Appeal dismissed.
93

SZETO, Gordon Francis Chang - NSW SC, Howie J, 23.4.2008
Citation:R v Szeto [2008] NSWSC 368
Judgment.
Murder.
Trial by judge alone.
The accused stabbed his former employer 12 times in the neck, shoulder & arm after ambushing him in the kitchen of his restaurant. After his arrest, the accused told police he believed the deceased had been operating a brothel & had been forcing his girlfriend to perform sexual acts for money. The accused also had delusions of being under the surveillance of authorities. The accused was subsequently diagnosed with acute paranoid schizophrenia.
Defence of mental illness - acute psychotic illness - severe delusional state of mind.
Verdict: Not guilty by reason of mental illness. Subject to provisions of Mental Health Act2007, accused to be detained in a correctional centre until released by due process of law.
94

ADAMS, Steven - HCA, 23.4.2008 - Reported:234 CLR 143; 82 ALJR 718
Citation:Adams v The Queen [2008] HCA 15
On appeal from the SC of Victoria.
Appeal against severity of sentence.
Import commercial quantity MDMA (ecstasy).
9y with a NPP of 7y.
The appellant, a United States citizen, was charged with the above offence following the interception by authorities of containers shipped to Australia from overseas. The prohibited imports consisted of 19.927kgs of a mixture that contained 8.916kgs of MDMA. For his part in the importation, the appellant was to receive a free holiday.
Whether appellant should have been sentenced on the basis that MDMA was less harmful to users & society than heroin.
Appeal dismissed.
95

WC -CCA, 1.4.2008
McClellan CJ at CL, James & Hoeben JJ
Citation:WC v R [2008] NSWCCA 75
Sentence appeal.
Multiple counts of sexual assault upon a child.
2*y with NPP of 1y.
No factual details of offences stated, except that child was aged 8.
The commencement of the sentences provided for partial accumulation on sentences previously imposed for similar offences. Prior sentences were the subject of a successful appeal & the appellant was re-sentenced.
Need to adjust commencement date for above sentences having regard to successful appeal in other sentence proceedings.
Appeal allowed: commencement date for sentences adjusted.
96

ZAMMIT, Edward David - NSW SC, Howie J, 9.4.2008
Citation:R v Zammit [2008] NSWSC 317
Remarks on Sentence.
Manslaughter (death by unlawful & dangerous act).
The offender pleaded guilty to the above charge. The deceased was the offender's de facto partner. The offender, the deceased & the offender's ex-partner had been out drinking prior to returning to the offender's home where they consumed more alcohol. Some time later, the offender began arguing with the deceased, accusing her of sleeping with other men & using heroin. She admitted that these accusations were true. The offender's ex-partner then asked the deceased whether the accused ever hit her & the deceased said that he did. The offender told the ex-partner to leave. After the ex-partner left, the offender became angry & grabbed the deceased & threw her forcefully into the refrigerator. This resulted in the deceased falling into a bench top, hitting her ribs. The following morning the offender again assaulted the deceased. The deceased had great difficulty in breathing. Some hours later, an ambulance was summoned & she was taken to hospital. She died from her injuries a few days later.
Aged 55 - heavily addicted to alcohol - long history of offending - priors include offences of violence - previous imprisonment.
Sentence: 6y 3m with a NPP of 4y.
97

McGUINESS, Cheryl Christine - CCA, 11.4.2008
Bell JA, Simpson & Rothman JJ
Citation:McGuiness v R [2008] NSWCCA 80
Sentence appeal.
7 x Social Security fraud.
2y with a NPP of 10m with recognizance release order.
The applicant pleaded guilty to the above offences, each relating to her having been in receipt of the 'partner allowance' without disclosing that she was in part-time employment. She received overpayments of $55,132.98 over a 6 year period, which was spent on household expenses. The offender's husband was sentenced for failing to declare the offender's income.
Aged 60 - suffered from hypothyroidism, osteoarthritis & depression - no priors - full repayment - assessed as eligible but unsuitable for PD as PD centre too distant - exceptional circumstances - previously unblemished character.
Whether sentence excessive.
Appeal allowed: resentenced to 1y with a NPP of 4m with a recognizance release order.
98

SYED, Samiul - CCA, 4.3.2008
ISLAM, Naimul
MAHMOOD, Hassan
McClellan CJ at CL, Hulme & Harrison JJ
Citation:R v Syed, Islam, Mahmood [2008] NSWCCA 37
Conviction appeals; &
Crown appeals against sentence.
Syed: Robbery in company - 1y 10m with a NPP of 1y 3m.
Mahmood: Robbery in company - 1y 8m with a NPP of 1y 3m.
Islam: Accessory before the fact to robbery - 15m with a NPP of 10m.
Culpability of each offender
Conviction appeals dismissed.
Crown appeals dismissed.
99

GALANTE, Mark - NSW SC, Adams J, 11.4.2008
Citation:R v Galante [2008] NSWSC 319
Remarks on Sentence.
Murder.
Guilty plea.
The offender drove his pregnant wife to a remote area, got her to get out of the car & shot her in the back of her head. Their 2 year 10 month old daughter was in the car at the time. The offender reported the deceased as missing & engaged in an elaborate cover-up.
Cannabis user - limited remorse - anti-social personality - limited insight into interpersonal behaviour - no priors - some rehabilitation prospects.
Sentenced to 27y with a NPP of 20y.
100

HML; SB; OAE -HCA, 24.4.2008 - Reported:235 CLR 334;82 ALJR 723
Citation:HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16
On appeal from the SC of SA.
Sexual offences committed upon a child.
The matters raised in the HC related to issues concerning the admissibility at a criminal trial of a certain kind of similar fact evidence & the proper directions to be given to a jury in the event that such evidence is admitted. In each matter, the evidence was that of a complainant who, in addition to giving an account of specific acts the subject of the charge or charges in an indictment, testified that other such acts had taken place between the accused & the complainant. This was described in argument as evidence of uncharged acts.
Evidence - similar facts - uncharged acts - relevance - admissibility - applicability of test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 - standard of proof - whether uncharged acts must be proved beyond reasonable doubt - directions to jury - application to amend notice of appeal to raise issue of admissibility of evidence.
Appeal dismissed.
101

SIN, Sophorn -NSW SC, Latham J, 18.4.2008
Citation:R v Sin [2008] NSWSC 351
Application to disqualify on grounds of apprehended bias.
Manslaughter plea - unlawful & dangerous act - Crown case on sentence consistent with intention to inflict GBH - obligation upon sentencing judge to accord procedural fairness to offender.
Application granted. Parties to approach Registrar for allocation of fresh hearing date.
102

HEINE, Aung Wyn - CCA, 16.4.2008
Bell JA, Simpson & Adams JJ
Citation:Heine v R [2008] NSWCCA 61
Sentence appeal.
Detain with intent to obtain advantage.
4y with a NPP of 2y.
The victim of the offence was the appellant's wife.
Mental disorder - assessment of impact on moral culpability - whether sentence manifestly excessive.
Appeal dismissed.
103

MILETIC, Zoran - CCA, 10.4.2008 - Reported:183 A Crim R 72
Mason P, James & Hoeben JJ
Citation:Miletic v R [2008] NSWCCA 74
Sentence appeal.
1 x ongoing supply of prohibited drug (methylamphetamine & LSD); 7 x supply cannabis;1 x knowingly take part in supply of cannabis; 1 x supply methylamphetamine; + 8 offences on a Form 1.
Total sentence of 4*y with a NPP of 3y.
Accumulation - totality - parity in sentencing - whether basis for justifiable sense of grievance.
Appeal dismissed.
104

CHEA, Chhengly - CCA, 21.4.2008
BS
LEOUNG, Kunthea
SREY, Sam
CHOUN, Sothear
OUM, Sophia
YIN, Sinary
Tobias JA, James & Hoeben JJ
Citation:R v Chea & Ors [2008] NSWCCA 78
Crown appeal against sentences imposed on all 7 respondents; +
Sentence appeal by Oum & Yin.
Import marketable quantity border-controlled drug (heroin).
The respondents, Cambodian nationals, came to Australia on the same flight, purportedly as tourists. Each had swallowed pellets containing heroin. Quantities imported were: Chea 146.8gms; Choun 149.9gms; Loeung 169.7gms; Oum 228.8gms; BS 239.2gms; Srey 27.1gms; Yin 222.9gms.
Crown appeal dismissed.
Sentence appeal by Oum & Yin allowed.
105

FEATHERSTONE, Garry Maxwell - CCA, 23.4.2008 - Reported:183 A Crim R 540
Bell JA, Adams & Latham JJ
Citation:Featherstone v R [2008] NSWCCA 71
Sentence appeal.
12 x sexual assault charges (indecent assault, act of indecency, procure commission of act of indecency, homosexual intercourse with male over 10 & under 18, act of gross indecency); + 12 offences on a Form 1.
Total sentence of 16y 11m with a NPP of 12y 11m.
The applicant pleaded guilty to the above offences, which involved indecent acts against 4 boys aged between 11 & 14, from 1983 to 1989. The applicant was a music teacher at a private school & targeted boys who were vulnerable because of family circumstances.
Offences occurred prior to introduction of the Sentencing Act 1989 - whether sentencing practice at date of offending constitutes special circumstances.
Appeal allowed: resentenced to 12y 7m with a NPP of 7y.
106

WRIGHT, Kevin James - CCA, 23.4.2008
Basten JA, Barr & Buddin JJ
Citation:Wright v R [2008] NSWCCA 91
Judgment
Application to set NPP.
Armed robbery.
Sentenced to 2y 32w to be served by way of PD.
The applicant did not complete the sentence of PD & the PD was subsequently cancelled.
Cancellation of PD order - failure to set NPP.
Appeal allowed in part: NPP set at 18m.
107

CROOK, Darroll Charles - CCA, 21.4.2008
Giles JA, Adams & Latham JJ
Citation:Crook v R [2008] NSWCCA 84
Sentence appeal.
Aggravated B&E - 5y 3m with NPP of 3y;
Malicious damage to property - concurrent FT of 9m.
The victim (applicant's mother) was asleep in her house in the very early hours of the morning when she woke to the sound of banging on the front gate & saw the applicant coming towards the locked front glass door. She told him to go away & come back in the morning but he went to an open window, ripped the gauze from it & entered the house. The victim described him as behaving like a madman, his appearance was disorganised & his hair in a mess. She believed he was under the influence of drugs. The applicant was abusive, walked over to her whilst she was still sitting in bed & struck her with his fist across her nose & forehead & then on her upper arm. He screamed out, 'I'm going down and you're coming with me. I'm going to the kitchen to get the knife, I'll show ya, I'll show ya.' He continued to yell at his mother & made his way up the hallway. Thinking that he was on his way to get a knife, the victim left the house through the window through which the offender had entered & made her way on foot to the Police station. Police went to her house & negotiated with the applicant. After more than an hour, he surrendered to police. When the victim returned home, she found that the applicant had caused extensive damage to her home.
Guilty plea - 25% discount - substance abuse & psychiatric problems - substantial progress in rehabilitation - objective seriousness below mid-range -need for supervision upon release.
Whether sentence excessive.
Appeal allowed: resentenced to 3y 9m with a NPP of 1y 9m.
108

WATKINS, Thomas Douglas - CCA, 29.4.2008
McClellan CJ at CL, Price & Simpson JJ
Citation:Watkins v R [2008] NSWCCA 88
Conviction appeal.
43 x doing an act as an officer of a body corporate with intent to cheat or defraud the body corporate.
7y with a NPP of 4*y.
Fresh evidence - whether failure to give direction in accordance with Longman -missing documents - prejudice.
Appeal dismissed.
109

BLUNDELL, Richard James - CCA, 29.4.2008 - Reported:184 A Crim R 120
Grove, Hulme & Simpson JJ
Citation:Blundell v R [2008] NSWCCA 92
Sentence appeal.
4 x obtain money by deception; + Form 1 offences (3 x obtain money by deception; 1 x fraudulent misappropriation; 1 x obtain money by false or misleading statements).
Total sentence of 18m with a NPP of 6m.
The applicant pleaded guilty to the above offences. The applicant & his brother were in partnership, operating an insurance brokerage business: see Blundell v R (Cth) [2008] NSWCCA 63. The applicant's brother pleaded guilty to 3 counts of fraudulent misappropriation & was sentenced to 18m with a NPP of 9m. The brother was unsuccessful in his appeal against sentence.
Whether inadequate recognition given to subjective circumstances & consideration of alternate sentencing options - failure to take into account s.5(1) Sentencing Procedure Act -lengthy delay in finalisation of proceedings.
Appeal allowed: resentenced to 100 hours community service. Although orders were made in December 2007, the judgment was only published on 29.4.2008.
110

DERRINGTON, John Anthony - CCA, 19.2.2008
Hulme J, McClellan CJ at CL, Mathews AJ
Citation:Derrington v R [2008] NSWCCA 94
Sentence appeal.
Supply cocaine (deemed).
4y with a NPP of 3y.
The applicant arrived in Sydney on a flight from Perth. Later that day, he was stopped & searched at the airport prior to his intended departure on a flight back to Perth. The applicant produced 2 small clear plastic packages from his mouth & admitted that they contained heroin. During a further search, a package containing white powder was found hidden in his anus. Analysis revealed 25 grams of cocaine with a purity of 36%.
Whether error in judge's inference from facts that police had information about the applicant - tender of criminal antecedents - whether sentence excessive
Appeal dismissed.
111

SALAH, Dror - NSW SC, Johnson J, 4.4.2008
SALAH, Bzra
Citation:R v Dror Salah; R v Ezra Salah [2008] NSWSC 311
Remarks on Sentence.
Dror Salah: Manslaughter.
Ezra Salah: Accessory after fact to manslaughter.
Stabbing - excessive self-defence.
Sentences:
Dror Salah -8y 9m with a NPP of 5y 9m.
Ezra Salah -3y with a NPP of 1y 11m.
112

BARLOW, Melanie - CCA, 6.5.2008 - Reported:184 A Crim R 187
McClellan CJ at CL, Hall & Price JJ
Citation:Barlow v R [2008] NSWCCA 96
Sentence appeal.
Detain with intent to obtain advantage (to assault & occasion ABH).
15m 2w with a NPP of 5m 2w.
The applicant, accompanied by a male friend, detained the victim, who was then punched, dragged, hit with kitchen tongs & threatened with death & put in terror for at least 2 hours. The offence was motivated by revenge. The applicant alleged that the victim had sexually assaulted her earlier.
Objective seriousness of offence - availability of suspended sentence as an alternative - whether sentence manifestly excessive.
Appeal dismissed.
113

SABAPATHY, Elvis - CCA, 24.4.2008
Giles JA, Adams & Latham JJ
Citation:Sabapathy v R [2008] NSWCCA 82
Conviction and sentence appeal.
Sexual intercourse without consent.
3y with a NPP of 18m.
The day prior to the offending, the complainant had moved into a granny flat attached to the appellant's home. The appellant invited the complainant to his home for a welcome drink. They consumed alcoholic drinks, some food & watched TV & a DVD. The complainant became drowsy. The appellant asked if she was sleepy, but she did not respond. He picked her up & carried her into his bedroom, where he 'started touching her and removed her clothing and had sexual intercourse with her in a number of different positions, which [she] found painful'. At one point the appellant ejaculated on the complainant's abdomen. The complainant did not consent to any of these acts.
Guilty plea - whether attributable to genuine consciousness of guilt - whether integrity of plea affected by misunderstandings - - whether sentence excessive.
Appeal dismissed.
114

KAZZI, John - CCA, 21.4.2008
Mason P, James & Hoeben JJ
Citation:R v Kazzi [2008] NSWCCA 77
Crown appeal.
3 x supply cocaine; 2 x supply commercial quantity cocaine; 1 x supply large commercial quantity cocaine; 1 x supply large commercial quantity methylamphetamine.
Total sentence of 8y with a NPP of 6y.
Over a period of almost 2 months, the respondent was involved in the supply of substantial quantities of methylamphetamine & cocaine. In some cases the drugs were supplied to co-offenders & on-sold. Although there was no actual supply involved in one of the charges because the purchasers withdrew from the deal, the judge considered the agreement to supply as objectively serious as an actual supply.
Aged 30 at time of offending - diagnosed as having 'severe substance abuse disorder'- prior offence of drug possession & minor driving offences - no previous imprisonment.
Failure to apply principles in Pearce -failure to separately assess level of objective seriousness for each standard NPP - whether error in taking into account sentence passed on co-offenders - whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 14y with a NPP of 10*y.
115

HUDSON, Michael Peter - CCA, 1.4.2008
McClellan CJ at CL, James & Hoeben JJ
Citation:Hudson v R [2008] NSWCCA 90
Sentence appeal (extension of time).
Aggravated indecent assault upon child under 16.
3y 7m with a NPP of 2y 2m.
At the time of the offence, the applicant was aged 43 years & the complainant was aged 13 years 7 months. The complainant's mother had been in an on-and-off de facto relationship with the applicant for about 6 years & they had a son together, however, at the time of the offence they were living apart. The applicant had access visits with the children & on the night of the offence, he had picked up the complainant & her younger brother & taken them to his home to spend the night. The offence occurred during the evening. The applicant was sharing a home with a man who had been out shopping. When the man returned home, he saw what the applicant was doing to the complainant through the lounge room window & later confronted the applicant about what he saw. The following morning the applicant took the children back to their mother. Later that day, the man phoned the complainant's mother & told her what he had seen. The mother questioned the complainant about it & a couple of days later the matter was reported to police. The applicant was arrested 15 days later.
Whether sentence manifestly excessive.
Appeal dismissed.
116

GIBBS, Christopher - NSW SC, Rothman J, 30.4.2008
Citation:R v Gibbs [2008] NSWSC 415
Ex Tempore Judgment on question of jurisdiction.
Granting of bail.
Applicant on charges of malicious damage, armed with intent to commit indictable offence, drive whilst not licensed & drive without visible headlights.
Bail - jurisdiction to grant - applicant serving sentence for other offence - construction of s.9 Bail Act -whether Court has jurisdiction.
Decision: The provisions of sub-s.9(4) of the Bail Act 1978 do not deny jurisdiction to grant bail.
117

JACOBS, Gregory William - NSW SC, Rothman J, 30.4.2008
Citation:R v Jacobs [2008] NSWSC 417
Ex Tempore Judgment on application for bail.
Applicant charged with murdering his wife by strangulation. He pleaded not guilty by reason of self-defence and/or mitigates the culpability of the killing by reason of provocation.
The applicant is a partial paraplegic.
Medical needs - whether in terms of s.9C of the Bail Act 1978 the Court is satisfied that 'exceptional circumstances' justify the grant of bail.
Decision: Conditional bail granted.
118

AGW -CCA, 15.4.2008
Grove, Hulme & Simpson JJ
Citation:AGW v R [2008] NSWCCA 81
Conviction appeal.
1 x sexual intercourse with person under age of 10 years.
The appellant was tried upon an indictment charging 5 counts of sexual intercourse with a person under the age of 10. It was alleged that the offending started in January 1995 & concluded in September 1999. The appellant pleaded not guilty to all counts & was acquitted by the jury on counts 1, 3, 4 & 5. He was found guilty on count 2 by what the appellant's counsel described in written submissions to the CCA as a 'purported ... majority verdict'. The complainant did not give any direct evidence relating to count 2. The Crown relied upon the evidence of the complainant's sister who, at the time, was married to the appellant. Allegations were made to police in about mid-2005. Police enquiry did not confirm an assertion by the complainant that she had earlier told a school friend about what had happened. Police took a statement from that person who said that no such complaint had been received. The complainant's sister agreed in cross-examination that she had initially believed the appellant's denial in relation to count 2 & had never spoken to the complainant about it. The sister separated from the appellant in 2003 when she formed another relationship. She agreed that there had been a lot of animosity between herself & the appellant.
Jury unable to agree on verdict - strict compliance with statutory requirement before majority verdict may be taken - failure to comply in this instance.
Appeal allowed: new trial ordered.
119

NEWBURN, Ronald Neville - CCA, 14.3.2008
McClellan CJ at CL, Hulme & Mathews JJ
Citation:Newburn v R [2008] NSWCCA 57
Sentence appeal.
1 x malicious damage to property by fire; 2 x aggravated BE&S; + 10 offences on a Form 1 taken into account.
Total sentence of 6y 4m with a NPP of 3y 9m (finding of special circumstances - 40% discount allowed).
All offences, including those on the Form 1, were committed during February & March of 2006.
On bond at time of above offences - aged almost 25 at time of appeal - guilty plea - identifies himself as Aboriginal - long history of alcohol abuse starting at age 10 - heavy user of illicit drugs - lengthy criminal history - first dealt with in Children's Court at age 17 for numerous offences, including assaults, BE&S & assault with intent to rob whilst armed with offensive weapon - has since committed numerous offences of assault & AOABH - has served several terms of imprisonment.
Whether sentence manifestly excessive.
Appeal dismissed.
120

NOWAK, Krysztof - CCA, 21.4.2008 - Reported:183 A Crim R 526
Bell JA, Barr & Buddin JJ
Citation:Nowak v R [2008] NSWCCA 89
Sentence appeal.
Maliciously inflict GBH.
3y with a NPP of 1y.
The applicant & the victim were among a number of guests at a wedding reception. During the evening, friends of the applicant were involved in a disagreement with a member of the bridal party. Some time later, the applicant & 3 of his friends were asked to leave following a heated exchange between the friends & the families of the bride & groom. The applicant & his friends began walking down the driveway from the reception towards the roadway. The applicant was holding a 700ml glass Vodka bottle, which he maintained was still sealed. The bride's father was walking behind the applicant & his friends in order to ensure that they left the premises. As he reached the exit gate, the applicant turned to face the victim who was in close proximity to the bride's father. He swung the glass bottle & struck the victim with it. The glass bottle shattered upon impact with the victim's face. The victim sustained multiple injuries to the face & chest.
Aggravating factors: use of weapon - extent of injuries-victim unarmed & vulnerable.
Whether sentence manifestly excessive - whether error in relation to use of various aggravating factors.
Appeal dismissed.
121

WOODS, David George - CCA, 23.4.2008 - Reported:184 A Crim R 108
Spigelman CJ, Hulme & Latham JJ
Citation:Woods v R [2008] NSWCCA 83
Sentence appeal.
1 x aggravated indecent assault (upon person under 16) - 21m with a NPP of 9m commencing 12.6.2007; 1 x intimidate with intent to cause fear of physical or mental harm - 12m with a NPP of 5m commencing 12.1.2008.
The appeal was against the sentence imposed on the 1st charge. The complainant was aged 14 at the time of the offences. The applicant had originally been charged with 6 offences (4 x aggravated indecent assault, 1 x intimidate with intent to cause fear of physical or mental harm, 1 x alter a document with intent to hinder a police investigation in respect of the aggravated indecent assault). The Crown case was that the applicant made contact with the complainant on the internet & had then met with her at her home. The complainant then went for a drive with the applicant & while they were driving he touched her in the vaginal area. After returning to her home & whilst still in the car, he put his hands on her breasts, again touched the area of her vagina & put her hand on his penis. Both the complainant & the applicant were dressed at all times & most of the touching was on the outside of clothes. After some time, the complainant left the car, having told the applicant that she would not have intercourse with him.
Aged 35 at time of offending - guilty plea - of good character - unlikely to re-offend - no priors.
Whether sentence manifestly excessive.
Appeal dismissed.
122

FERNANDO, Kurukulasuriya - CCA - 7.5.2008
McClellan CJ at CL, Simpson & Price JJ
Citation:Fernando v R [2008] NSWCCA 97
Conviction appeal.
Count 1-3: Aggravated indecent assault (guilty verdicts);
Count 4: Sexual intercourse with child under 16 (not guilty verdict).
The complainant was aged 15 at the time of the offences. The appellant submitted that the evidence in relation to all counts on the indictment rested exclusively upon the jury accepting the reliability & accuracy of the complainant. The complainant's evidence-in-chief was presented largely by the playing of a pre-recorded videotape of an investigative interview she had with police. The Crown case was that the complainant, who was in year 10, had phoned the appellant after seeing his business sign in premises near her house & asked if she could do work experience with him. The appellant's business involved massage therapy. It was during the so-called training that the offences occurred.
Inconsistent verdicts - whether verdicts on counts 1-3 unreasonable having regard to acquittal on count 4.
Appeal dismissed.
123

GASSY, Jean Eric - HCA, 14.5.2008 - Reported:236 CLR 293
Citation:Gassy v The Queen [2008] HCA 18
On appeal from the SC of SA.
Murder.
The deceased was Dr Margaret Tobin, Director of Mental Health for South Australia.
She had been out to lunch & was returning to her office on the 8th floor of an Adelaide city building. She got into a lift with 2 men & another woman. One of the men & the other woman got out of the lift at the 7th floor. Dr Tobin got out on the 8th floor & as she was walking away from the lift, she was shot 4 times & died shortly thereafter. At the applicant's trial, the prosecution alleged that he had been the 4th passenger in the lift & that he had shot Dr Tobin. The prosecution case was that he had been motivated by resentment & anger stemming from Dr Tobin's part in setting in train a sequence of events during the 1990s that had led to the applicant, then a legally qualified medical practitioner practising as a psychiatrist, being deregistered & disqualified from practising medicine & psychiatry. Neither of the other passengers in the lift recognised the applicant & neither positively identified him from a selection of photographs. Following directions from the trial judge, the jury deliberated, without success, for more than 10 hours. The trial judge suggested that, if invited by the jury, she could suggest ways for the jury to "move forward'.  The jury requested assistance. The trial judge gave a further direction suggesting how the jury could approach its deliberations. The jury returned its guilty verdict about half an hour after the further direction. Following conviction, the applicant appealed to the SC. His appeal against conviction was dismissed & he applied for special leave to appeal to the HCA. At the applicant's trial, counsel had sought to appear for the applicant in relation only to a voir dire hearing concerning the admissibility of certain evidence, whereupon the trial judge stated that counsel could not appear on the voir dire if counsel did not then represent the applicant for the entire trial. Counsel withdrew & the applicant conducted the voir dire himself.
Further direction - voir dire -whether miscarriage of justice.
Appeal allowed: new trial ordered.
124

IBRAHIM, Michael - NSWSC, Price J, 21.4.2008
Citation:R v Ibrahim [2008] NSWSC 268
Remarks on Sentence.
Manslaughter by unlawful and dangerous act.
The offender & 3 others were involved in a brutal attack on the brother of comedian George Nassour. The deceased was fatally stabbed, punched & kicked in the attack while his brother was wounded. The offender who stabbed the deceased has since died.
Guilty plea - extended joint criminal enterprise.
Sentence: 9y 4m with a NPP of 6*y.
125

HUTTON, Daniel John - CCA, 1.5.2008
Campbell JA, James & Johnson JJ
Citation:Hutton v R [2008] NSWCCA 99
Sentence appeal.
Supply commercial quantity MDMA (ecstasy).
6y with a NPP of 3y.
A police strike force was established to investigate the drug supplying activities of a man named Patterson. Patterson & the applicant were residents of Queensland. Patterson had been supplying drugs to the applicant for the applicant's own use. Patterson asked the applicant to take money to Sydney to pay for a quantity of drugs that Patterson had ordered & to then take the drugs back to Queensland, for which the applicant would receive $500 worth of tablets for himself. The applicant flew to Sydney with $60,000 in cash. A person he met in Sydney directed him to a hotel in Randwick where he booked into a room. Patterson's supplier visited the applicant in the hotel room & the applicant handed over the money to him & about 2,000 tablets of MDMA (total weight 478 grams) were delivered to the applicant's hotel room. The applicant strapped packages of tablets to his legs, using Goad wrap & phoned Patterson, using code words to refer to the drugs. The applicant was arrested at Sydney airport the following morning.
Well planned/organised criminal activity - whether error in taking into account as aggravating factor - whether failure to give sufficient weight to subjective factors - whether too much weight given to objective seriousness of offence & personal & general deterrence.
Appeal dismissed.
126

KING, Anthony Patrick - CCA, 13.5.2008
Mason P, Simpson & Latham JJ
Citation:King v R [2008] NSWCCA 101
Conviction appeal.
Fraud (obtain money by deception).
5y with a NPP of 3y.
The appellant was found guilty of defrauding the National Australia Bank of $44,001,144 million. The appellant & his twin brother were co-directors of King Bros Holdings Pty Ltd, a large bus company. The bank agreed to advance $100m to King Bros Holdings, subject to a number of contractual arrangements & securities. One of the securities required by the bank was a deed of sale under which 144 buses, identified by chassis & engine numbers in a tax invoice, were sold by King Bros Holdings to the bank at an agreed price of $44,001,144. The appellant was the primary organiser of the transaction on behalf of the company & arranged for the preparation of a tax invoice for the sale of the buses & made a statutory declaration as to King Bros Holdings' ownership of the buses. The bank needed title to the buses so that it could in turn lease them back to King Bros Holdings as part of the ongoing financial arrangement between the bank & King Bros Holdings. The buses, however, did not exist.
The appellant's brother stood trial for the same offence but the jury failed to agree on a verdict in his case.
Failure by trial judge to properly identify issues to jury - failure by trial judge to properly put defence case to the jury - whether conviction 'unsafe and unsatisfactory'.
Appeal dismissed.
127

BROOKES, Alexandria George -NSW SC, Michael Grove J, 15.5.2008
Citation:State of New South Wales v Brookes [2008] NSWSC 473
Judgment.
Application for extended supervision or detention order.
Serious sex offences.
See also: State of New South Wales v Brookes [2008] NSWSC 150.
Decision: Application for detention order declined.
Application allowed for extended supervision order: extended supervision order made for a period of 5 years, subject to applicant complying with certain conditions.
128

CHRISTODOULOU, Spiro - CCA, 15.5.2008
Campbell JA, Grove & Johnson JJ
Citation:Christodoulou v R [2008] NSWCCA 102
Sentence appeal.
Multiple violent offences against family members & arresting police.
Total sentence of 6y 2m with a NPP of 3y 2m
During the course of committing the offences, the applicant caused injury to himself by deliberately inserting a syringe containing acid into his arm, causing him to suffer permanent damage to his arm.
Self-harm - extra curial punishment.
Sentences - accumulation & concurrency - whether sentences excessive.
Appeal dismissed.
129

VERSLUYS, Lee Thomas - CCA, 3.4.2008
McClellan CJ at CL, Simpson & Price JJ
Citation:Versluys v R [2008] NSWCCA 76
Conviction and sentence appeal.
Murder.
26y 8m with a NPP of 20y.
The appellant strangled his de facto. There was evidence of previous violence inflicted upon the deceased by the appellant. In an interview with police, the appellant admitted strangling the deceased. There was video evidence of him demonstrating to police how he had held the deceased by the throat. The issue at trial was the intent with which the appellant acted when he strangled the deceased. The defence case at trial was that there was no intention to kill or to cause serious harm. The deceased was a small woman, whereas the appellant is a very large man.
Whether conviction 'unsafe and unsatisfactory'- whether evidence only supported a conviction for manslaughter - whether appellant had intention to kill or cause GBH - whether summing-up balanced - whether offence in middle range of objective seriousness - whether error in imposing standard NPP.
Appeal dismissed.
130

DAVIS, Steven Roy - NSWSC, Price J, 8.5.2008
Citation:State of New South Wales v Davis [2008] NSWSC 490
Ex Tempore Judgment.
Application for interim detention order for a period of 28 days.
The orders sought included the appointment of 2 qualified psychiatrists to conduct separate psychiatric examinations of the defendant. At the time of the instant application, those appointments had not been arranged. The defendant's current custody will have expired before the application for a continuing detention order is determined.
Serious sex offences - Crimes (Serious Sex Offenders) Act 2006 - Mental Health (Criminal Procedure) Act 1990.
Orders made.
131

SPIERS, Phillip Ronald - CCA, 23.5.2008
Giles JA, Adams & Latham JJ
Citation:R v Spiers [2008] NSWCCA 107
Crown appeal.
Kidnapping; administer stupefying drug; aggravated sexual assault; + Form 1 (aggravated robbery, obtaining benefit by deception, assault).
Total sentence of 8y with a NPP of 6y.
The respondent claimed that he was affected by the bite of a funnel web spider when he kidnapped, drugged & raped the 18 year old complainant. The respondent abducted the complainant outside the supermarket where she worked & pushed her into the boot of her car, drove to a remote area, threatened her with a knife, drugged her & bound her with duct tape before raping & robbing her. He wiped down the complainant's body & flushed out her vagina with a liquid that smelt like methylated spirits. He left the complainant, bound & gagged, in the boot of the car for several hours before alerting her family. The respondent was arrested 8 years after the offences following his confession to his girlfriend, who tipped off police.
Aged 32 at time of offences - guilty plea - married at time of offending with 2 small children.
Whether sentence manifestly inadequate - objective criminality - general deterrence.
Appeal allowed: resentenced to a total term of 12y with a NPP of 9y.
132

IONATANA, Ben (Peniamina) - CCA, 1.5.2008
McClellan CJ at CL, James & Hoeben JJ
Citation:Ionatana v R [2008] NSWCCA 95
Sentence appeal.
3 x robbery whilst armed with offensive weapon (knife); + Form 1 offences (larceny; possess prohibited drug; armed robbery).
Total sentence of 7*y with a NPP of 4*y.
Aged 21-22 - guilty pleas - 25% discount allowed - alcohol abuse - mental health issues - multiple priors.
Finding of special circumstances - diminished prospects of rehabilitation - whether adequate consideration given to applicant's mental health - whether sentence manifestly excessive.
Appeal dismissed.
133

WALKER, Calvin Glen - NSW SC, Harrison J, 15.5.2008
Citation:R v Walker [2008] NSWSC 462
Judgment on fitness to be tried.
Murder.
The accused stabbed the deceased once in the back with a knife. The blade of the knife pierced through the lower lobe of the left lung, damaging blood vessels. The deceased subsequently died from these injuries. The accused had been in a relationship with a woman for a number of years. Prior to the start of that relationship, the woman had had a brief relationship with the deceased. It was alleged that the accused harboured some animosity towards the deceased as a result of that relationship.
Whether accused unfit to stand trial - medical opinion that accused unfit to stand trial - evidence of developmental retardation & psychiatric illness including schizophrenia & psychosis - Mental Health (Criminal Procedure) Act 1990.
Decision: Unfit to be tried. Order that in accordance with s.14 Mental Health (Criminal Procedure) Act 1990, accused referred to the Medical Health Review Tribunal & that accused to be remanded to his former custody pending determination of the Tribunal under s.16 or until further order.
134

DONAI, Terry Mark - NSWSC, Fullerton J, 23.5.2008
Citation:R v Donai [2008] NSWSC 502
Remarks on Sentence.
Murder.
The offender was found guilty of helping to suffocate his friend's adoptive parents on 8.1.2000 & then dispose of their bodies in order to make it look as though they had died in a motor vehicle accident. The crime was motivated by greed, with the accused sharing in the adopted son's inheritance. Police initially treated the death of the 2 deceased as accidental when their bodies were found at the bottom of a ravine. The sister of the female deceased always believed that the adopted son was responsible for both deaths. The adopted son eventually made confessions to her & in 2005 he pleaded guilty to the 2 murders. He is currently serving 28y with a NPP of 22y: see R v Weightman [2005] NSWSC 1354.
In sentencing Donai for his part in the murders, the sentencing judge was highly critical of the "forensic ineptitude" of state officials in failing to discover the "unprofessional and amateurish" murders.
Relevant principles concerning application of s.61(1) Crimes (Sentencing Procedure) Act 1999 - whether life sentences should be imposed - whether offence within worst category - future dangerousness.
Sentence: Concurrent sentences of life imprisonment.
135

FISHER, Gregory Joseph - CCA, 15.5.2008
Grove, Hulme & Simpson JJ
Citation:Fisher v R [2008] NSWCCA 103
Sentence appeal.
2 x supply 4-Hydroxybutanoic Acid; 1 x supply cocaine; 1 x supply MDMA (ecstasy); 1 x import trafficable quantity cocaine; 1 x supply commercial quantity 4-Hydroxybutanoic Acid; 1 x supply commercial quantity cocaine; 1 x supply commercial quantity MDMA; 1 x supply commercial quantity Ketamine; 1 x supply commercial quantity methylamphetamine.
Total of 9y 10m with a NPP of 7y 4m.
The applicant was on bail at the time of the above offences. In 2000, he was diagnosed with a life-threatening disease & began using drugs. The sentencing judge found that his drug taking had led on to the supply business in order to pay for the drugs & to make a living.
Guilty plea - born in 1965.
Whether sentence manifestly excessive - accumulation of sentences - discount for assistance - ill-health - special circumstances.
Appeal dismissed.
136

HOLDEN, Craig Leslie - CCA, 9.5.2008
Basten JA, Barr & Buddin JJ
Citation:Holden v R [2008] NSWCCA 100
Sentence appeal.
Maliciously inflict GBH in company; + Form 1 (AOABH; assault).
Total sentence of 4y with a NPP of 2*y.
The applicant shared a room with 4 other men at a house owned by the victim, who also lived there. The victim was severely beaten by the applicant & his friends when the victim objected to the applicant bringing a large number of people to his house. The victim reported the incident & the following day the applicant & others were evicted from the premises. At around noon the next day, the victim went with a friend to a hotel near his premises. As they were about to enter the hotel, the applicant approached the victim from behind & attempted to king hit him, however, the victim was able to deflect the punch. At about 3.15pm that afternoon, the victim was sitting in his lounge-room with 3 friends when those who had been evicted, including the applicant, as well as other men made their way into the victim's home & once again assaulted the victim. The victim's 3 friends witnessed the entire incident.
Whether sentence excessive - parity.
Appeal dismissed.
137

DALTON, Mathew James - CCA, 26.5.2008
James, Hislop & Hoeben JJ
Citation:Dalton v R [2008] NSWCCA 108
Sentence appeal.
2 x robbery in company.
Total sentence of 4y with a NPP of 18m.
The 14 & 15 year old male victims caught a train at Emu Plains station & stood in the vestibule of the carriage with their pushbikes. When the train was travelling between Lapstone & Glenbrook, they were approached by the applicant & 2 young persons in his company. After a short conversation, the applicant proceeded to threaten the victims with physical violence & pushed one of the boys up against the side of the carriage. The offenders stole the i-Pod, wallet & mobile phone of one victim & the wallet of the other. The offenders ran from the train when it stopped at the next station. The victims gave chase & the applicant punched both of them. The offenders were subsequently arrested.
Aged 18* at time of offences - guilty plea - In breach of probation order & bond at time of offending - sad & depressing background characterised by violence, homelessness, absence of love, hopelessly dislocated education & drug abuse - remorse/contrition - special circumstances found - received 25% discount - significant history of various forms of violence involving malicious damage to property, common assault & AOABH.
Whether sentence manifestly excessive.
Appeal dismissed.
138

GREEN, James Richard - CCA, 28.5.2008
Beazley JA, Johnson & McCallum JJ
Citation:Green v R [2008] NSWCCA 112
Sentence appeal.
3 x aggravated sexual intercourse without consent with person under 16 (aged 12); 1 x aggravated indecent assault of person under 16 (aged 12).
Total sentence of 3y with a NPP of 2y.
The applicant was a senior elder in the Fairfield Seventh Day Adventist Church when he met the victim, a 12-year old girl, through his work with the church. The victim started attending the church when her father married a member of the congregation. At that time, she had a very unhappy home life. The applicant took an interest in her & her younger brother, invited them to his house for meals & took them on outings. When the victim was in Year 5, she noticed that the applicant was becoming 'quite touchy-feely' with her. Each count alleged that the applicant had sexual intercourse with the victim, without her consent, knowing she was not consenting, in circumstances of aggravation, being that the victim was under the age of 16 years, namely 12 years.
Aged 49 at time of offences - aged 61 at time of sentence - only prior was an offence of receiving dealt with by way of a fine & GBB - heart problem requiring ongoing treatment.
Whether sentence manifestly excessive.
Appeal dismissed.
139

KOKAUA, Jack - CCA, 26.5.2008
James, Hislop & Hoeben JJ
Citation:Kokaua v R [2008] NSWCCA 111
Sentence appeal.
Assault with intent to rob.
3*y with a NPP of 1y 9m.
Misstatement of fact in remarks on sentence - mental illness & deterrence - whether sentence should have been backdated - whether sentence manifestly excessive.
Appeal dismissed.
140

RASO, Joseph - CCA, 30.5.2008
Beazley JA, Barr & Hoeben JJ
Citation:Raso v R [2008] NSWCCA 120
Conviction and sentence appeal.
Knowingly concerned in the cultivation of a prohibited drug (60 cannabis plants).
Suspended sentence of 2y.
The appellant & a co-accused were arraigned together. The co-accused entered a plea of guilty & was subsequently called to give evidence in the appellant's case. In April of 2003, a company controlled by the co-accused purchased a house in Eastwood. In August of that year, police searched the house & found 60 cannabis plants growing in 6 of the rooms. An extensive system had been set up to cultivate the cannabis, including an electricity meter bypass, lighting, ventilation, piping equipment, black plastic sheeting, pots & chemicals. A month later, police saw the appellant at the house. When questioned, the appellant said he was a friend of the co-accused & that he worked for him. The co-accused maintained that a third person was renting the house from him & that this person was responsible for the cultivation. The Crown suggested that the story about the tenant was a lie & that the co-accused & the appellant had been involved in the cultivation business. DNA belonging to both the appellant & the co-accused was found at the house. Fingerprints belonging to someone other than the appellant & the co-accused were also found. Police searched official records but could find no person with the alleged tenant's name. The case left to the jury was that either the appellant, like the co-accused, was knowingly involved in the cultivation or the cultivation was entirely the work of the tenant.
Substantial criminal record, including convictions for drug offences.
Whether verdict unreasonable - whether sentence excessive.
Appeal dismissed.
141

CLARK, Peter Frederick - CCA, 30.5.2008 - Reported:185 A Crim R 1
Bell JA, Barr & Buddin JJ
Citation:Clark v R [2008] NSWCCA 122
Conviction and sentence appeal.
Count 1: procure child over 14 years to be used for pornographic purposes - 4y with a NPP of 2y;
Count 2: incite child under 16 years to commit act of indecency - concurrent FT of 6m.
The appellant was unrepresented at trial.
The appellant was driving along a street when he saw the 14-year-old complainant walking home. He pulled over & offered him a ride home, which the complainant accepted. He told the complainant of a job where the complainant could earn lots of money & the appellant would keep a percentage. The appellant interrupted the journey & went into a shop, returning to the car with a CD. He then drove to his own house & showed the CD to the complainant. The CD contained images of naked boys. The appellant then drove the complainant home. On the way, he asked the complainant to show him his penis. He dropped the complainant off a short distance from where he lived & gave the complainant his mobile phone number & invited him to get in touch if he needed a lift. About a week later, the complainant was in the company of 2 other boys when the appellant drove by. The appellant stopped his car & asked the complainant whether he wanted to talk to him. The complainant reported the matter & the police were informed.
Cross-examination of complainant - whether unrepresented accused should be required to provide written draft of proposed questions about complainant's sexual reputation, experience or activity - court-appointed questioner - whether questioner should remain absent during complainant's evidence-in-chief - whether accused should be required to provide a written draft of questions proposed to be asked in cross-examination before complainant gives evidence - whether miscarriage of justice - data on computer hard drive but 'deleted'- whether retrievable - whether accused knew of its existence or ability to be retrieved - whether correct test for intentional possession applied - whether verdict unreasonable - whether sentence excessive.
Conviction appeal allowed in part: verdict of acquittal entered on count 3.
Sentence appeal allowed in part: resentenced on count 1 to 3y with a NPP of 1*y.
142

LOMBARD, Daniel (DPP v) -CCA, 23.4.2008 - Reported:184 A Crim R 565
Basten JA, Barr & Buddin JJ
Citation:Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
Crown appeal.
Malicious wounding with intent to do GBH.
3y with a NPP of 2y to be served by way of PD.
The respondent stabbed a security guard in the neck outside a nightclub following an earlier altercation between them, in which the respondent had suffered facial injuries. The respondent entered a plea of guilty to the above charge. In sentencing, the judge allowed a discount of 33 1/3% (comprising a discount of 20% for the guilty plea, and 13.3% for contrition & remorse & a weak Crown case on the element of intent).
Whether sentence manifestly inadequate - tailoring the length of a sentence to permit a favoured order - reliability of cases with similar sentences.
Appeal dismissed.
143

SILVANO, Oliver - CCA, 2.6.2008 - Reported:184 A Crim R 593
James, Hislop & Hoeben JJ
Citation:Silvano v R [2008] NSWCCA 118
Sentence appeal.
Murder; assault with intent to rob whilst armed with dangerous weapon; malicious shooting with intent to do GBH.
Total sentence of 22y 4m with a NPP of 17y.
The offender shot dead his own girlfriend in a bungled robbery of the victim of the assault & malicious shooting charges, who was shot in the shoulder as he ran away.
While the applicant was in custody on remand, he was raped while taking a shower, soap having first been rubbed into his eyes in order to protect the perpetrator's anonymity. Some 7 months later, the applicant was punched by another inmate & he suffered swelling to his face & bleeding from an eye. The sentencing judge accepted that he had lost substantial vision out of that eye.
Whether sentence manifestly excessive - whether failure to properly take into account injuries inflicted on applicant whilst in prison - whether failure to give proper weight to applicant's subjective circumstances.
Appeal dismissed.
144

COWAN, Gilbert Wolford - CCA, 4.6.2008
Bell JA, Barr & Buddin JJ
Citation:R v Cowan [2008] NSWCCA 124
Crown appeal.
14 x armed robbery - 9y with a NPP of 5*y.
The above offences all occurred on Christmas Day 2005 & were part of a joint criminal enterprise.
The day after being sentenced for the above offences, the respondent appeared for sentencing before the same judge for a further series of armed robberies to which he had pleaded guilty in the LC (5 x armed robbery; 1 x aggravated armed robbery involving use of firearm; 1 x possess prohibited weapon) & asked that a further 22 armed robbery offences & an offence of BE&S be taken into account. The sentencing judge imposed sentences for these offences that were subsumed by the sentences for the offences imposed the previous day, except that the NPP was extended by 6m 15d.
Whether sentence for one offence adequately reflective of criminality involved in commission of all offences.
Appeal allowed: respondent resentenced to a total of 11*y with a NPP of 8*y.
145

BERBEN, Laurens Leonard - CCA, 4.6.2008
Giles JA, Barr & Hall JJ
Citation:Berben v R [2008] NSWCCA 125
Conviction appeal.
Social Security fraud (receipt of age pension while in employment).
2y GBB with order for reparation in the amount of $31,243.17.
The Crown case was that the appellant had been employed & paid by the Society of St Vincent de Paul over the period December 1999 to June 2003, that he did not tell Centrelink of this fact & that he received payment of the age pension from Centrelink, which he would not have received had he told Centrelink about being employed. The evidence included, in a record of interview with a Centrelink officer, that the appellant was aware that he should disclose his employment to Centrelink.
Aged 70 at time of first offence, aged 77 at time of trial, aged 79 at time of appeal.
Requisite intent - whether trial unfair because of being unrepresented at trial - whether miscarriage.
Appeal dismissed.
146

SLEIMAN, Fadi - CCA, 2.6.2008
James, Hislop & Hoeben JJ
Citation:Sleiman v R [2008] NSWCCA 117
Sentence appeal.
Malicious damage to property.
2y with a NPP of 18m.
The applicant was the sole director of a vehicle smash repair business. A man took his Mercedes-Benz to the applicant's business in order to have deep scratch marks to its paint-work repaired. The owner of the vehicle was dissatisfied with the work done on it & following an assessment by a representative of his insurance company as to the quality of the repair work done by the applicant's business, the owner took the vehicle to another vehicle repair business. The applicant arranged for an acquaintance to inflict damage to the Mercedes-Benz once it was back inside the owner's garage. The damage done to the vehicle consisted of deep scratches on the bonnet, all side panels, all doors, the roof & the lid of the boot. Some type of liquid had been applied to the bonnet, the front quarter panel & front bumper bar, causing the paint-work to change in colour & bubble.
Whether sentence excessive.
Appeal dismissed.
147

STEWART, Wade John - NSWSC, Johnson J, 6.6.2008
Citation:R v Steward [2008] NSWSC 563
Remarks on Sentence.
Manslaughter.
The offender stabbed the deceased several times during a fight.
Excessive self-defence - objective gravity - importance of general & personal deterrence.
Sentenced to 10*y with a NPP of 7y 3m.
148

McLEOD, Audrey Amazon Anne - CCA, 4.6.2008
Beazley JA, Barr & Hoeben JJ
Citation:McLeod v R [2008] NSWCCA 127
Conviction appeal.
Maliciously destroy property by fire.
Suspended sentence of 2y.
The Crown case was that, whilst in a drunken fit of jealousy & anger, the appellant set fire to a dwelling, which she mistakenly believed was where her intended victim lived. She believed that the intended victim had been having an affair with her husband.
Error in trial judge's direction excluding accident as a reasonable possibility of the cause of the fire - error in direction that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt - whether verdict unreasonable or not supported by the evidence.
Appeal allowed: new trial ordered.
149

NGUYEN, Thanh - CCA, 4.6.2008
James, Hoeben & Hall JJ
Citation:R v Nguyen [2008] NSWCCA 113
Crown appeal.
Dangerous drive occasioning death.
2y 3m with a NPP of 1y.
Whilst on a provisional driver's licence & whilst intoxicated, the respondent drove his car with a passenger in the front & another in the back. In a 50kph zone, the car spun out of control, mounted the kerb & collided with a wooden fence made of treated pine logs. One of the logs penetrated the car & struck the backseat passenger. The car travelled a little further & came to rest after hitting a tree. The back-seat passenger sustained fatal injuries. The respondent & the front-seat passenger sustained minor injuries, although the respondent lost consciousness. The respondent had no recollection of the accident, except for the fact that he had been travelling fast, estimating that it would have been about 80kph. A blood sample taken from the respondent in hospital gave a reading of 0.092 grams of alcohol per 100 millilitres of blood. It was estimated that at the time of the accident, the respondent's blood alcohol level would have been between 0.098 & 0.12
Guilty plea - aged 19 at time of offence - poor driving record - previous conviction for low-range PCA.
Appeal allowed: respondent resentenced to 3y with a NPP of 18m & disqualified from holding a driver's licence for a period of 5y.
150

YUN, Gil Bum - CCA, 2.6.2008 - Reported:185 A Crim R 58
Beazley JA, Barr & Hoeben JJ
Citation:Yun v R [2008] NSWCCA 114
Sentence appeal.
Murder.
27y 5m with a NPP of 20y 9m.
Whether intent to kill alone is sufficient to take offence above the midrange of seriousness - error in using standard minimum NPP as the starting point for fixing a sentence.
Appeal allowed: resentenced to 24y with a NPP of 18y.
151

DU RANDT, Amelia - CCA, 30.5.2008
Basten JA, Barr & Buddin JJ
Citation:Du Randt v R [2008] NSWCCA 121
Sentence appeal.
Dealing in money that was the proceeds of crime.
3y 3m with a NPP of 2y.
The applicant pleaded guilty to dealing in money that was the proceeds of crime, which occurred in both NSW & Qld (to the value of $100,000 or more).
Guilty plea - psychological ill-health - potential to affect subsequent assessment of moral culpability
Whether sentence excessive - whether adequate consideration given to applicant's mental health at time of offence.
Appeal allowed: resentenced to 2*y with a NPP of 1*y.
152

MORRIS, Stephen Jodey - CCA, 4.6.2008
James, Hoeben & Hall JJ
Citation:R v Morris [2008] NSWCCA 115
Crown appeal.
1 x B&E and commit serious indictable offence (aggravated armed robbery); 1 x BE&S; + offences on two Form 1 documents.
Total sentence of 7y with a NPP of 4y.
Guilty plea - aged 41 at time of sentencing - spent time at juvenile detention institutions from age 13 - left home at age 15 - at age 16 became addicted to amphetamines & by age 18 addicted to heroin - long history of BE&S offences - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal dismissed.
153

BOULOS, Magdi - CCA, 2.6.2008
James, Hoeben & Hall JJ
Citation:Boulos v R [2008] NSWCCA 119
s.5F appeal against interlocutory judgment refusing application for a permanent stay.
The indictment the Crown proposes to present at appellant's trial contains 10 counts, each charging an offence under s.29D (since repealed) of the Commonwealth Crimes Act. These charges are different from the charges on which the appellant was committed for trial, which were charges under s.5 of the Crimes Act (also since repealed) & s.29D of the Crimes Act, alleging that the appellant was knowingly concerned in a company defrauding the Commonwealth. The amounts the appellant is alleged to have defrauded the Commonwealth range from $83,300 to $188,222.40 & total $1,140,789. The Crown case is circumstantial.
The ground of appeal was that by reason of a combination of matters, any trial of the appellant on the charges would necessarily be an unfair trial.
Appeal dismissed.
154

KERR, Michael - CCA, 12.6.2008
Beazley JA, Johnson & McCallum JJ
Citation:Kerr v R [2008] NSWCCA 133
Sentence appeal.
Multiple offences of stealing; receiving stolen goods.
Total initial sentence of 3y suspended upon appellant agreeing to enter into Drug Court Programme.
Did not complete his treatment in the Programme - final sentence of 2y with a NPP of 18m.
Guilty pleas - Drug Court Programme - jurisdictional maximum - on parole at time of offences.
Whether sentence excessive.
Appeal dismissed.
155

PB -CCA, 26.5.2008 - Reported:184 A Crim R 552
Bell JA, Johnson & McCallum JJ
Citation:R v PB [2008] NSWCCA 109
Crown appeal.
Armed robbery with wounding.
4y with a NPP of 1y 10m.
The victim, a 20 year old apprentice carpenter, was in his vehicle outside a construction site, waiting for the site to open. As the victim tried to get out of his vehicle, the respondent slammed the door on the victim's leg & punched him through the open window. The respondent took a Stanley knife out of the victim's pocket & proceeded to stab the victim, all the time demanding the victim's wallet. The victim managed to hand the wallet to the respondent, who then ran away. The victim sustained a 6cm cut to his right cheek, an 8cm laceration to the left side of his neck & a 2cm laceration to his right hand.
Aged 17y 8m at time of offence - Aboriginal - cannabis use - history suggestive of conduct disorder - on bail at time of offending.
Whether sentence manifestly inadequate - juvenile offender - weight given to objective seriousness of offence.
Appeal allowed: respondent resentenced to 6y 9m with a NPP of 3y 6m.
156

CTM -HCA, 11.6.2008 - Reported:236 CLR 440; 82 ALJR 978
Citation:CTM v The Queen (2008) HCA 25
On appeal from the SC of NSW.
Sexual intercourse with child aged between 14 & 16 years.
The 17 year old appellant was convicted of having had sexual intercourse with the intoxicated 15 year old female complainant. He did not give evidence at trial & told police that the complainant had said she was 16. The trial judge permitted the appellant to leave the defence of honest & reasonable mistake as to the age of the complainant & directed the jury as to onus of proof on appellant on the balance of probabilities.
An appeal to the NSWCCA was dismissed
Onus & standard of proof - whether accused obliged to establish honest & reasonable mistake of fact - whether sufficient evidential foundation for contention - whether sufficiently raised at trial - whether trial judge obliged to direct jury on issue - whether substantial miscarriage of justice - whether appellate court able to conclude that no substantial miscarriage of justice occurred where misdirection on onus & standard of proof demonstrated.
Appeal dismissed.
157

KURU, Murat - HCA, 12.6.2008 - Reported:82 ALJR 1021
Citation:Kuru v State of New South Wales [2008] HCA 26
On appeal from the SC of NSW.
Six police officers went to a suburban flat after receiving a report of a male & female arguing. They treated the report as a 'violent domestic'.  By the time they arrived, only the applicant was there, his fiance having left with her sister. The applicant invited the police inside to look around the flat. Once they had looked around the flat, they remained there. When asked about the female involved in the argument, the applicant told them his fiance had left with her sister & provided police with the sister's phone number. Still they remained on the premises. Despite repeated requests that they leave, the police refused. Eventually, a violent scuffle broke out & the applicant was punched, handcuffed & sprayed with capsicum spay. As he was led downstairs to a police vehicle, he twice fell down the stairs. At the police station, he was locked in a cell for hours with nothing to wear but his boxer shorts. He was released from custody some hours later.
Police charged the applicant with assaulting police & resisting arrest. He was found not guilty & was awarded damages of more than $400,000 in the District Court but that was overturned by the Court of Appeal: see New South Wales v Kuru [2007] NSWCA 141. The matter then went to the HC.
Whether statutory justification for police to remain on premises - proper construction of ss.357F & 357H Crimes Act 1900 (NSW) - whether express refusal by occupier immediately terminated authority of police "to so enter or remain" on premises, irrespective of fulfilment of purposes for which entry effected.
Trespass to land - power of police to enter private premises - whether common law justification for police to remain on premises - whether entry could be justified as directed to preventing a breach of the peace.
Appeal allowed: Matter remitted to the NSWCA.
158

HOPLEY, Clint - CCA, 15.5.2008
Beazley JA, Johnson & McCallum JJ
Citation:Hopley v R [2008] NSWCCA 105
Sentence appeal.
Manslaughter.
5y with a NPP of 3y.
After an evening spent at a hotel, the applicant punched the victim twice before departing in a taxi, leaving the victim dying on the ground.
Whether sentence manifestly excessive - whether error in finding of fact made concerning offence in aftermath of verdict of jury - whether error in approach taken with respect to hardship to applicant's son.
Appeal dismissed.
159

FOO, Jeong Ming - NSWSC, Harrison J, 12.6.2008
Citation:R v Foo [2008] NSWSC 587
Judgment.
Murder.
Trial by judge alone.
The accused stood trial for the murder of his baby son.
Deceased died from diffuse axonal injury to brain caused by non-accidental acceleration/deceleration forces from shaking or impact - circumstantial case - reasonable alternative hypothesis - degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved not so high that the contrary could not reasonably be supposed - no satisfaction beyond reasonable doubt that the accused was the person who inflicted the injuries to the deceased that ultimately led to his death.
Decision: Verdict of not guilty.
160

FARMER, Robert Black - NSWSC, Hall J, 13.6.2008
Citation:R v Farmer [2008] NSWSC 581
Remarks on Sentence.
Detain with intent to obtain advantage (sexual gratification); cause GBH with intent to murder; maliciously damage property by means of fire with intent to endanger life.
The victim was bashed & doused in petrol at her parents' home, which was then set alight. The victim spent 23 days on life support & suffered permanent brain damage as a result of the attack. The Crown case hinged on forensic & circumstantial evidence.
Whether offence within worst category - objective seriousness of offence - aggravating factors - accumulation & totality of sentences.
Sentenced to a total of 24*y with a NPP of 20y.
161

FERRER, Arthur - CCA, 19.5.2008
Bell JA, Johnson & McCallum JJ
Citation:R v Ferrer [2008] NSWCCA 104
Crown appeal.
Malicious wounding with intent to do GBH.
4y with a NPP of 2y.
The respondent stabbed the victim with a pair of scissors, once in the abdomen, 4 times in the back & once behind the left ear. He said that he only did this after the victim first stabbed the respondent's hand.
Aged 24 at time of offending - born in Philippines - at age 5 moved to Australia with family - mother kicked him out of home at age 12 - later regretted action - father located him, brought him back home after a week or two - devastating effect on applicant - began using heroin & amphetamines at age 13, later used cannabis & alcohol - psychological assessment of depression at clinically significant levels - untreated depression underpinned drug use & relapses into heroin dependence following several attempts at detoxification.
Whether sentence manifestly inadequate.
Appeal dismissed.
162

SLATER, Shaun Troy - NSWSC, Adams J, 6.6.2008
Citation:R v Slater [2008] NSWSC 591
Judgment.
Murder.
The deceased had given the accused a room in his home as the accused had nowhere else to live. Despite many kindnesses the deceased had shown to the accused, the accused stabbed the deceased to death during a psychotic episode. The accused admitted fatally stabbing & choking the deceased.
Schizophrenic basis for defective thinking - need for permanent monitoring of mental health - need for permanently taking psychiatric medication to reduce risk of relapse.
Decision: Not guilty by reason of mental illness. To be detained in such place & in such manner as is provided by law until fit to be released.
163

RJA -CCA, 10.6.2008 - Reported:185 A Crim R 178
Spigelman CJ, Price & McCallum JJ
Citation:RJA v R [2008] NSWCCA 137
Sentence appeal.
3 x sexual intercourse with child under age of 10.
Total term of 21y with a NPP of 16y.
The complainant is the applicant's own daughter. The daughter's age at the time of the offences was 8 & 9. Two of the counts involved penile penetration, while the remaining count involved digital penetration.
Statutory aggravating factors - age of victim - standard NPP - offences in mid-range of objective seriousness - degree of penetration - risk of reoffending.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 17y with a NPP of 13y.
164

CARNEY, Adam Graham - CCA, 16.6.2008
Spigelman CJ, Hidden & Latham JJ
Citation:Carney v R [2008] NSWCCA 140
Conviction appeal.
1 x sexual intercourse without consent; 2 x indecent assault.
Sentence note stated.
The appellant faced trial on 6 counts. The jury returned verdicts of not guilty on 3 of the counts. On the Crown case, there were 2 occasions when the sexual offences occurred. The offences occurred on a rural property. The appellant was aged 23 at the time of the offences & the complainant was a male aged 16 years. The 1st count related to the rubbing of the complainant's penis & masturbation. The 2nd count related to the digital penetration of the complainant's anus. The 3rd count related to the appellant placing the complainant's hand on the appellant's penis & masturbation.
Inconsistent verdicts - whether convictions unreasonable & not supported by evidence - whether error in approach - whether miscarriage of justice.
Appeal dismissed.
165

TA'ALA, Jerome Marjani - CCA, 16.6.2008
Campbell JA, Grove & Johnson JJ
Citation:Ta'ala v R [2008] NSWCCA 132
Conviction appeal (extension of time).
Count 1: Murder - 26y with a NPP of 19*y (commencing 2.5.2002);
Count 2: Murder - 35y with a NPP of 26*y (commencing 29.4.2014).
Total sentence of 47y with a NPP of 38y 6m.
The appellant & a co-offender fatally bashed Mr O'Callaghan with a cricket bat because they believed he had been involved in actions & interference concerning drug dealing in which the appellant & his co-offender had an interest. A few hours later, they stabbed & beat to death Mr O'Callaghan's girlfriend because the appellant was worried she would go to the police. A number of people witnessed the killings.
Aged almost 20* years at time of offences - guilty pleas.
Extreme violence - 2nd killing designed to prevent report to police of 1st murder - determinate sentences imposed although 2nd offence assessed in worst category - accumulation - intention to set NPP at 75% of total not implemented.
Appeal allowed in part: On Count 2, NPP reduced to 23y 3m.
166

FISHER, John Ian - CCA, 20.6.2008
McClellan CJ at CL, Simpson & Hidden JJ
Citation:Fisher v R [2008] NSWCCA 129
Sentence appeal.
2 x aggravated sexual assault; 3 x aggravated indecent assault.
Total sentence of 11y with a NPP of 7y.
The victims were the 13 year old twin daughters of a woman with whom the applicant had been in a relationship. The aggravated sexual assaults were committed against the one twin & the aggravated indecent assaults were committed against the other twin. In respect of each victim, the offences occurred on a single occasion, as part of a continuous course of conduct.
Aged between 36 & 38 at time of offending - guilty pleas.
Whether uncharged criminal conduct taken into account as aggravating feature - whether sentence manifestly excessive.
Appeal dismissed.
167

BARNES, Richard Frederick - CCA, 12.6.2008
Spigelman CJ, Price & McCallum JJ
Citation:Barnes v R [2008] NSWCCA 136
Sentence appeal.
1 x specially aggravated B&E with intent to commit serious indictable offence; 1 x robbery with offensive weapon.
Total sentence of 5*y with a NPP of 3y.
There were 3 circumstances of special aggravation in the commission of the B&E offence: in company, use of corporal violence, armed with dangerous weapon (replica pistol). The victim of the B&E offence was a person who had previously shared a house with the applicant & his co-offender. The applicant claimed that when the victim left the house, he had taken money & property belonging to the co-offender. The co-offender voluntarily surrendered himself to police some days later & made full admissions. The robbery offence occurred when the offender & a co-offender robbed a 15 year old boy of his bicycle. The applicant used a knife during this robbery & made several small grazes across the boy's neck with the knife. The applicant at first denied being involved in this offence, however, he was identified by a number of witnesses.
Early pleas of guilty - psychiatric illness - effect upon weight to be given to general & specific deterrence - accumulation - whether sentence excessive.
Appeal dismissed.
168

HAMMOND, Stephen Clyde - CCA, 10.6.2008
Spigelman CJ, price & McCallum JJ
Citation:Hammond v R [2008] NSWCCA 138
Sentence appeal.
1 x aggravated kidnapping.
7*y with a NPP of 5y.
The person detained was the applicant's wife & the circumstance of aggravation was OABH.
Guilty plea - psychological, mental & alcohol problems - need for supervision & rehabilitation.
Whether connection between mental health & commission of offence - whether sentence manifestly excessive.
Appeal dismissed.
169

BJR -CCA, 16.6.2008 - Reported:185 A Crim R 360
Beazley JA, Hulme & Latham JJ
Citation:BJR v R [2008] NSWCCA 43
Conviction appeal.
2 x maliciously inflict GBH with intent to do GBH; 1 x AOABH.
The conviction appeal was against the 2 counts of maliciously inflicting GBH with intent. The victims of these 2 offences were the appellant's infant daughters. The 1st maliciously inflict GBH offence was committed upon his 3 month old infant daughter. The 2nd offence occurred some 2 years later & was committed upon his 3 week old infant daughter. Both infants suffered leg & fractured rib injuries. The appellant was the only common link in all the offences.
Circumstantial case - coincidence evidence - opinion evidence from medical practitioners/paediatric specialists underpinned Crown case - identity of perpetrator - proof of specific intent.
Whether open to jury to draw inference of specific intent.
Appeal dismissed.
170

BURTON, Michael Anthony - CCA, 20.6.2008
Campbell JA, Grove & Johnson JJ
Citation:R v Burton [2008] NSWCCA 128
Crown appeal.
3 x common assault; 2 x AOABH; 1 x detain with intent to obtain advantage; 1 x influencing witness.
Total sentence of 2y 9m with a NPP of 1y 9m.
Domestic violence type offences. All offences committed against the one victim.
Whether sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 4*y with a NPP of 3y.
171

ARVIDSON, Elizabeth Karen - CCA, 20.7.2008 - Reported:185 A Crim R 428
Beazley JA, Johnson & McCallum JJ
Citation:R v Arvidson [2008] NSWCCA 135
s.5F appeal by Crown against exclusion of prejudicial evidence.
Larceny as a clerk; destruction of paper with intent to defraud.
The respondent pleaded guilty to both charges, which relate to the theft of $80,000 from her employer.
Before the commencement of the Crown case, the respondent made a successful application to the trial judge for the exclusion of an edited CCTV surveillance video of the despatch area of the firm from which the money was taken & the evidence of the person who had compiled the edited version of the videotapes. This person gave evidence that in editing the CCTV footage, he had focussed on the movements of the respondent, acting on the assumption that she was the primary suspect. The trial judge found that a jury, on viewing the edited footage, would be likely to give the evidence more weight than it deserved, or the jury would be diverted from its task. He determined that the prejudice of the footage outweighed any probative value, which could not be cured by giving appropriate directions.
Exclusion of prejudicial evidence - whether exclusion eliminates or substantially weakens prosecution case - whether probative value outweighed by prejudice - whether exclusion unreasonable.
Appeal allowed: decision of trial judge to exclude evidence of edited video tapes set aside.
172

SOON, Grace - NSWSC, Michael Grove J, 20.6.2008
Citation:R v Soon [2008] NSWSC 622
Remarks on Sentence.
Manslaughter.
The offender pleaded guilty to the manslaughter of her estranged husband, a former church minister, who had taken to spending money on prostitutes & engaging in other sexual activities. The deceased infected the offender with syphilis in the 1980s. In 1999 he broke his neck during a sexual encounter with a transvestite, which rendered him a quadriplegic. The offender owned property & was afraid the deceased intended claiming some of her assets. This ultimately led her to burning down the house in which the deceased lived, killing him.
At the time of the offence, the deceased was aged 63 & the offender aged 69. At the time of sentencing, the offender was aged 71.
Partial defence of substantial impairment by abnormality of mind - melancholic or possibly psychotic depression - prior unblemished record.
Sentenced to 9y with a NPP of 5*y.
173

VAN RYSEWYK, Anthony - CCA, 16.6.2008
Bell JA, Hulme & Latham JJ
Citation:R v Van Rysewyk [2008] NSWCCA 130
Crown appeal.
Specially aggravated BE&S (with wounding).
6*y with a NPP of 3*y.
The victims of the above offence, a man of 81 & his wife aged 72 years, had retired to bed, when the respondent & his co-offender broke into their home. During the robbery, the 81 year old man received a deep stab wound to his left thigh, extending down to the bone. The respondent & his co-offender stole a wallet, a quantity of valuable jewellery, a quantity of foreign currency & various credit cards. They severed the telephone cord before leaving.
The respondent pleaded guilty to the above offence. A hearing followed to determine a factual dispute as to the respondent's role in the commission of the offence. The respondent contended that his role was limited to acting as a lookout for 2 other offenders. The trial judge rejected this & accepted the Crown submission that the respondent was one of 2 offenders, each armed with a knife, who entered the home of the victim.
Indeterminate assessment of objective gravity - standard NPP - whether sentence manifestly inadequate.
Appeal allowed: respondent sentenced to 8y 7m with a NPP of 5y.
174

SIN, Sophorn - NSWSC, McClellan CJ at CL, 20.6.2008
Citation:R v Sin [2008] NSWSC 621
Remarks on Sentence.
Manslaughter by unlawful & dangerous act.
The offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter.
A fight broke out between rival gangs in a shopping centre. The deceased was punched, kicked & chased through the shopping centre, then stabbed several times.
Guilty plea - prospects of rehabilitation - finding of special circumstances.
Sentenced to 10*y with a NPP of 7y.
175

PETROULIAS, Nikytas Nicholas - NSWSC, Johnson J, 20.6.2008
Citation:R (Cth) v Petroulias (No. 36) [2008] NSWSC 626
Remarks on Sentence.
1 x defraud Commonwealth (s.29D Crimes Act 1914, Cth); 1 x agree to receive benefit on understanding that the exercise by him of his duty as a Cth officer would be affected (s.73 Crimes Act 1914, Cth); 1 x publish to person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Cth officer and which it was his duty not to disclose (s.70 Crimes Act 1914, Cth).
The offender was an Australian Taxation Office employee & as such had signed a declaration of secrecy. While employed at the ATO, he established a private commercial business without informing the ATO. In his position, he influenced favourable outcomes on advance opinions or private rulings for his own private financial gain & received $41,000 as proceeds of private business interests. He also provided client lists to another in breach of secrecy provisions of tax legislation.
Well-planned - motivated by self-gain - very high order of objective gravity - offending over considerable period of time - gross impropriety - concealed facts & directed others to conceal facts - flagrant breach of duty as ATO officer - very close to worst cases - no contrition - general & specific deterrence - abuse of trust - psychiatric & therapeutic counselling - substantial tertiary qualifications - highly educated lawyer - depression subsequent to offences - substantial debt from defence - reasonable prospect of rehabilitation - delay
Sentenced to 3y 2m with a NPP of 2y.
176

YASSINE, Abboud - CCA, 24.6.2008
Spigelman CJ, Price & McCallum JJ
Citation:Yassine v R [2008] NSWCCA 139
Sentence appeal.
1 x supply commercial quantity cocaine; + a further 6 matters taken into account on a Form 1.
7y with a NPP of 3*y.
The amount of cocaine supplied was 383.1 grams.
Parity.
Appeal dismissed.
177

THOMAS, Bruce Malcolm - NSWSC, Johnson J, 11.6.2008
Citation:State of New South Wales v Thomas [2008] NSWSC 640
Application for interim detention order for a period of 28 days.
Serious sex offender - interim detention order - orders for appointment of psychiatrists to examine defendant.
Orders made
178

ROBINSON, Clifford Mark - CCA 26.6.2008
Spigelman CJ, Hulme & Latham JJ
Citation:Robinson v R [2008] NSWCCA 64
Conviction appeal.
Conspiracy to commit armed robbery.
The appellant's sentencing hearing was adjourned indefinitely on the basis of medical reports suggesting that his mental illness in the form of autism was operative at the time of the offence. Two expert medical witnesses found that the appellant's cognitive skills were equivalent to a 9 or 10 year old child. The 1st expert stated that the appellant was unfit to stand trial. The 2nd expert stated in his report that the appellant was not unfit but in cross-examination he acknowledged the possibility of unfitness.
Whether unfit for trial - issue not raised at trial.
Appeal allowed: new trial ordered.
179

MAIN, Robert Michael - NSWSC, Adams J, 4.7.2008
Citation:R v Main [2008] NSWSC 692
Redetermination of life sentences.
Murder; assault with corporal violence - sentenced to concurrent terms of life imprisonment on each count. Whilst in prison he committed another murder (a contract killing) & was sentenced to life imprisonment for that crime.
Application allowed in part: Overall NPP set at 25y.
180

TECTOR, Darren John - CCA, 4.7.2008 - Reported:186 A Crim R 133
Giles JA, Barr & Hall JJ
Citation:Tector v R [2008] NSWCCA 151
Sentence appeal.
3 x using a carriage service to transmit a communication to a person under the age of 16 years with the intention of procuring that person to engage in sexual activity (s.474.26(1) Criminal Code 1995, Cth).
Concurrent sentences of 11y with NPP of 7y.
The 1st offence concerned the applicant using an internet messaging facility. The 2nd & 3rd offences involved the use of telephone lines to communicate orally with the victim.
Failure to take into account nature of sexual activity intended to be procured; whether sentences manifestly excessive.
Appeal allowed: resentenced to concurrent sentences of 8y with NPP of 5y.
181

RYLANDS, Christopher William - CCA, 23.5.2008 - Reported:184 A Crim R 534
Mason P, James & Hoeben JJ
Citation:Rylands v R [2008] NSWCCA 106
Conviction and sentence appeal.
1 x sexual assault.
6y with a NPP of 4y.
The appellant was found guilty of the above offence, which occurred when he engaged in cunnilingus. The appellant was found not guilty of 2 charges of aggravated indecent assault.
Opinion evidence - DNA evidence - whether sentence excessive.
Appeal dismissed.
182

BRADBURY, Roy William - CCA, 23.5.2008 - Reported:184 A Crim R 453
Mason P, Latham J, Mathews AJ
Citation:Bradbury v R [2008] NSWCCA 93
Sentence appeal.
4 x indecent assault of female under the age of 16 years.
Total sentence of 2*y with a NPP of 1y 9m.
The offences were committed in the early 1970's.
The offences were alleged to have occurred on various dates over a period of little more than 5 years. The victim in each case was the applicant's youngest daughter. The offences took place when the child was aged between 8 & 12 years. The applicant made no further sexual approaches to the complainant after she turned 13. It was more than 2 decades later when these offences first came to light. In the mid-1990s the victim confronted the applicant about the offences in the presence of the victim's mother. In December 2005 the victim reported the matter to police. A telephone intercept warrant was obtained in 2006 & 2 calls were recorded in which the applicant admitted to at least some of the offences.
Whether sentences excessive - sentencing to replicate sentencing practices of earlier time - non-availability of remissions - NPP to reflect pattern of sentencing at the time.
Appeal allowed: resentenced to a total of 2y with a NPP of 1y.
183

DIEGUEZ, Jason - CCA, 4.7.2008
Bell JA, Grove & Latham JJ
Citation:Dieguez v R [2008] NSWCCA 147
Application for leave to appeal against sentence.
Supply heroin.
6*y with a NPP of 4y.
Whether sentence manifestly excessive.
Application for leave to appeal filed out of time - no reasonable explanation for delay.
Leave to appeal refused.
184

MILICH, Jennifer - CCA, 26.6.2008
Beazley JA, Grove & Hidden JJ
Citation:Milich v R [2008] NSWCCA 148
Sentence appeal.
Attempt possess trafficable quantity prohibited import (cocaine).
10y with a NPP of 6y.
During a period spanning 2004-2005, the applicant was involved in arrangements to receive 4 packages, one of which was intercepted by police. This package was found to contain cocaine with a gross weight of 408.1 grams & a pure net weight of 296.9 grams. When police executed a controlled delivery of the package, the applicant took possession of it.
Aged 43 at offence - previous good character - excellent prospects of rehabilitation - unlikely to re-offend.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with a NPP of 4y 9m.
185

ROSENTHAL, Danny Alon - CCA, 2.7.2008
Spigelman CJ, Hidden & Latham JJ
Citation:Rosenthal v R [2008] NSWCCA 149
Sentence appeal.
Drive under the influence of a drug occasioning GBH.
3*y with a NPP of 2*y.
The applicant was driving his car with his partner, who was 33 weeks pregnant, in the front passenger seat when the car left the highway near Glenbrook & crashed into a concrete safety barrier, resulting in the death of their unborn baby. The applicant & his partner were seriously injured. Some time before they had left on their journey, the applicant had consumed a significant quantity of ecstasy.
Disqualified driver - on bail - abandonment of responsibility - lack of remorse - general deterrence.
Whether sentence excessive.
Appeal allowed: resentenced to 3y with a NPP of 1y 9m.
186

HOGAN, John Barry - CCA, 2.7.2008 - Reported:186 A Crim R 52
Beazley JA, Johnson & McCallum JJ
Citation:Hogan v R [2008] NSWCCA 150
Conviction and sentence appeal.
1 x maliciously inflicting ABH with intent to have sexual intercourse (s.61K(a)) - 6y with a NPP of 4*y.
The appellant was also found guilty of sexual intercourse with a person over the age of 10 & under the age of 16 (s.66C Crimes Act 1900) for which he received a sentence of 4y with a NPP of 3y.
The total effective sentence was 7y with a NPP of 5*y.
The appellant appealed only against his conviction in respect of the s.61K(a) offence & sought leave to appeal against the sentence. The relevant facts relied upon by the Crown for the s.61K(a) offence were that the appellant & the victim were alone in a caravan & that the appellant attempted to have sexual intercourse with the victim. After the appellant left, the victim noticed that she had scratches on her back, a split lip & marks around her neck. Police photographed the scratches. The victim's mother gave evidence regarding the marks on her neck, scratches on her back & a bruise on her arm.
Whether verdict unreasonable & not supported - whether miscarriage of justice occurred as a result of trial judge's directions regarding requirement that ABH be inflicted maliciously - whether sentence excessive - NPP increased beyond statutory ratio,
Conviction appeal dismissed.
Sentence appeal allowed: resentenced on the s.61K(a) offence to 6y with a NPP of 4y 3m.
187

JEFFRIES, Darren Richard - CCA, 26.6.2008 - Reported:186 A Crim R 500
Beazley JA, Johnson & McCallum JJ
Citation:Jeffries v R [2008] NSWCCA 144
Sentence appeal.
Detain for advantage & cause ABH (s.86(2)(b) Crimes Act; detain for advantage (s.86(1)(b).
Total sentence of 10y with a NPP of 7*y.
The victim of the s.86(2)(b) offence was the applicant's domestic partner & the victim of the s.861(1)(b) offence was the victim's 15 year old daughter.
Serious domestic violence offences - history of ongoing domestic violence - objective seriousness.
Aged 38 at time of offences - bad record for crimes of violence - offences committed whilst subject to bail & AVO - importance of specific & general deterrence.
Whether sentence manifestly excessive.
Appeal dismissed.
188

ENGLISH, Daniel Luke - CCA, 20.6.2008
McClellan CJ at CL, Simpson & Hidden JJ
Citation:English v R [2008] NSWCCA 134
Sentence appeal.
Intimidation with intent to cause fear of physical harm.
2y 8m with a NPP of 2y.
The applicant entered a train carriage in which the victim was travelling, sat down next to him & engaged him in conversation, during which he told the victim that he had just got out of prison that day & asked the victim if he could help him out with some money. The victim said he could not. The applicant then said, 'Listen, I've just come out of prison, I can hurt you, it doesn't mean anything to me.' As he said this he seized the front of his own jumper. The victim thought that he might be concealing a weapon & feared that he would be harmed. The applicant moved closer to the victim & again asked him to help him out, continuing to hold his jumper in the same way. The victim said he could not help him. The applicant then apologised & extended his hand to the victim & they shook hands. The applicant then left the carriage. When the train arrived at the station, the victim went to the guard's compartment & told the guard what had happened. The guard notified police by phone. The victim remained in the guard's compartment because he still feared the applicant. At the next station, police boarded the train & arrested the applicant. The applicant took part in a recorded interview, in which he denied intimidating the victim.
Aged 25 at time of offence - guilty plea - disturbed upbringing - suffers from several medical conditions - history of alcohol & drug addiction - significant criminal record - on parole at time of offence.
Whether sentence manifestly excessive - objective gravity of offence.
Appeal allowed: resentenced to 2y 2m with a NPP of 1y 8m.
189

SASSINE, Fouad - CCA, 30.6.2008
Beazley JA, Johnson & McCallum JJ
Citation:Sassine v R [2008] NSWCCA 146
Sentence appeal.
Conspire to inflict GBH with intent to do GBH - 5y with a NPP of 3y;
Assault; resist police - concurrent fixed terms of 12m; + Form 1.
Total sentence of 5*y with a NPP of 3*y.
The applicant was involved in a plot to assault a businessman & set fire to his shop. The applicant's role was to drive his 2 co-offenders to & from the premises. Police had been alerted to a potential arson attack & a plot to have a staff member seriously injured. Two police officers then posed as employees & were in the shop when the offenders arrived. A shot was fired by a co-offender near the legs of one of the undercover officers, but missed. In an interview with police, the applicant said that he was to receive $1,500 for his part in the offence.
Whether sentence excessive - purported duplication of sentence on counts on indictment & matters on Form 1 - special circumstances - parity.
Appeal allowed in part.
190

PORTER, Phillip John - CCA, 26.6.2008
Bell JA, Johnson & McCallum JJ
Citation:Porter v R [2008] NSWCCA 145
Sentence appeal.
2 x BE&S; 1 x maliciously damage property by fire.
Total sentence of 7y with a NPP of 3y.
Shortly after midnight, the applicant, affected by alcohol, broke into a florist shop by smashing a window & stole about $50 in coins. Before leaving the shop, he used his cigarette lighter to set fire to a curtain. A while later, he returned to the same building & broke into another shop by smashing the glass on the door & stole about $20 in coins. He noticed flames in the florist shop at this time but did not report the fire. The fire destroyed 2 business premises entirely before being extinguished & the effects of smoke and/or water severely damaged a number of other business premises in the building. The judge found that all the shop owners had suffered 'very grievously' as a result of the fire, which had driven all of them away from their businesses.
Aged 19 - guilty plea - alcohol abuse - serious gambling problem - prior juvenile & adult offences - no previous imprisonment.
Totality - error in not complying with principles in Pearce — whether error in taking into account evidence concerning loss & harm to victims of malicious damage offences - whether sentences excessive.
Appeal allowed: resentenced to a total of 5y 3m with a NPP of 3y.
191

WILLIAMSON, James Steven - NSWSC, James J, 2.6.2008
Citation:R v Williamson [2008] NSWSC 686
Remarks on Sentence.
Manslaughter (excessive self-defence).
Sentenced to 5y with a NPP of 2*y.
192

DAVIS, Steven Roy - NSWSC, Price J, 24.6.2008
Citation:State of New South Wales v Davis [2008] NSWSC 664
Ex Tempore Judgment.
Application for continuing detention order for a period of up to 5 years.
Serious sex offender: see also State of New South Wales v Davis [2008] NSWSC 490
Orders:
1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act, the defendant be detained in a correctional centre for four months from today.
2. Pursuant to s 20(1) of the Act a warrant issue for the committal of the defendant to the correctional centre for the duration of the continuing detention order referred to in order 1.
3. Liberty to apply on 3 days notice.
4. Subject to any other application made by either party beforehand the balance of the summons be stood over for mention on 22 September 2008.
193

ANG, Thiah - NSWSC, Adams J, 23.5.2008
Citation:R v Ang [2008] NSWSC 673
Judgment.
The accused murdered his wife & attempted to kill his 15 year old son.
Mental illness defence - major depression with psychotic features.
Decision: Not guilty by reason of mental illness.
Matter adjourned for a further hearing.
194

MOORE, David Albert - CCA, 26.6.2008
Giles JA, Adams & Latham JJ
Citation:Moore v R [2008] NSWCCA 143
Sentence appeal.
Maliciously inflict GBH with intent to inflict GBH.
9y with a NPP of 6y.
The applicant & the victim decided to end their marriage. Later that night, they began to argue. The victim assaulted the applicant with a metal poker. The applicant suffered defensive wounds to his hands & a superficial contusion to his head. The applicant took the poker from the victim & inflicted a number of forceful blows to her head. At a later stage, he inflicted a number of superficial abrasions to his own abdomen in order to embellish the extent of provocation. The applicant called 000. The victim was found semi-conscious in a pool of blood, with a large wound to her head & grey matter protruding. The severe brain injuries sustained by the victim resulted in permanent cognitive, emotional, behavioural & functional impairment. At the time of sentencing, the victim was wheelchair-bound & unable to live independently.
Aged 56 at time of offence - guilty plea - remorse - health problems - finding of special circumstances.
Whether sentence excessive.
Appeal dismissed.
195

CHARKAWI, Mohammed - CCA, 4.7.2008
Allsop P, James & Price JJ
Citation:Charkawi v R [2008] NSWCCA 159
Sentence appeal.
Social security fraud; + offences taken into account.
4y with a NPP of 2*y.
Between Jan 1998 & May 2004, the applicant dishonestly obtained financial benefits from the Cth in the sum of $106,095.57. The charges on the schedule involved a further $9,151.89 as well as the obtaining of false tax file numbers. Four false identities were used & false documents were produced to prove an identity when making an application for social security benefits. The applicant repeatedly made false statement in forms lodged with the Commonwealth Services Delivery Agency throughout the period of the offences. The offences were only discovered when a comparative analysis was conducted by the Agency.
Guilty plea - transparency in application of discount - whether sentence manifestly excessive.
Appeal dismissed.
196

MELIKIAN, Vartan - CCA, 10.7.2008
Spigelman CJ, Hidden & Price JJ
Citation:Melikian v R [2008] NSWCCA 156
Sentence appeal.
Knowingly take part in the supply of heroin; + goods in custody taken into account.
5y with a NPP of 3y 9m.
Police intercepted a number of phone calls between the applicant & others relating to the supply of heroin. The applicant, who was in Newcastle, made arrangements over the phone with a person known as Bobby to buy 28 grams of heroin for $5,600. The actual purchaser of the heroin was Ryker Jennar. The applicant travelled with Jennar to Sydney & received the drugs from Bobby. He then handed the drugs to Jennar. Shortly afterwards, the applicant & Jennar were arrested. The drugs were found on Jennar & weighed 27.2 grams, 15*% of which was pure heroin (street value estimated to be $6,900 - $12,000). At the time of his arrest, the applicant had $350 in his possession, which was part of his reward for his role in the supply. He was also to receive some of the drugs for his own use.
Guilty plea - whether sentence manifestly excessive - parity - justifiable sense of grievance.
Appeal allowed: resentenced to 4*y with a NPP of 3y.
197

BARBETTA, Michael - NSWSC, Howie J, 11.7.2008
Citation:R v Barbetta [2008] NSWSC 688
Remarks on Sentence.
Murder.
The 65 year old deceased's body was found in his flat. An autopsy revealed that 5 house keys on a metal key ring had been forced down the deceased's throat & he had been strangled.
Aged 44 - guilty plea - criminal record dating back to 1977 - persistent abuse of legal & illegal drugs.
Sentenced to: 18y 7m with a NPP of 13y 9m.
198

TUIGAMALA, David - NSWSC, Hulme J, 11.7.2008
Citation:R v Tuigamala [2008] NSWSC 706
Remarks on Sentence.
Murder.
Nomination of Limiting Term following a finding that applicant not fit to be tried: see R v Tuigamala [2007] NSWSC 493.
Limiting Term nominated: 21 years commencing on 7.9.2003.
199

HA, Van Can - CCA, 24.6.2008
Grove, Hulme & Simpson JJ
Citation:Ha v R [2008] NSWCCA 141
Sentence appeal.
2 x supply heroin.
Total of 7*y with a NPP of 4*y.
Guilty plea - whether sentence manifestly excessive - assessment of role in offences - parity - delay in sentencing - rehabilitation - subjective circumstances - contrition - mitigating factors.
Appeal dismissed.
200

TM -CCA, 14.7.2008
James, Hoeben & Hall JJ
Citation:TM v R [2008] NSWCCA 158
Sentence appeal.
Count 1: specially aggravated enter dwelling house with intent to commit serious indictable offence (wounding); Count 2: assault with intent to rob whilst armed with offensive weapon (knife) causing wounding (in company); Count 3: AOABH; Count 4: assault.
Total sentence of 8y with a NPP of 4*y.
The offences took place during a home invasion. The applicant & his brother entered the home via a rear door. Members of a family were present at the time, although the father of the family had left for work a short time before. Those present in the house included a woman & her 3 sons & 2 daughters.
Aged 14 at time of offences - guilty plea - on bail at time of rob in company - limited criminal history - prospects of rehabilitation - influenced by older brother with history of behavioural problems - no previous imprisonment.
Whether sentence manifestly excessive.
Appeal allowed in part, resulting in a total sentence of 6y 9m with a NPP of 3*y.
201

GOMES, Alfredo - CCA, 24.6.2008
GOMES, Jose
Tobias JA, Hulme & Hidden JJ
Citation:Gomes v R [2008] NSWCCA 142
Sentence appeal.
12 x being directors of a body corporate did defraud by factoring false invoice; + a further 62 offences taken into account.
Each applicant received a total sentence of 4y & a little more than 10m with a NPP of 3 weeks short of 3y.
The total of the amounts stated in the 12 counts & the offences taken into account was $2,044,664.72. The 12 offences & the 62 offences taken into account were intended to be representative charges, with the Statement of Agreed Facts indicating that there had been over 400 false invoices factored between November 2002 & October 2003.
Whether sentences manifestly excessive - whether error in assessment of objective criminality.
Appeal dismissed.
202

KAUWENBERGHS, Tim Leon Mon - CCA, 14.7.2008 - 186 A Crim R 197
Beazley JA, Hall & Fullerton JJ
Citation:Kauwenberghs v R (Cth) [2008] NSWCCA 98
Sentence appeal.
3 x supply commercial quantity ecstasy; 2 x possess commercial quantity ecstasy reasonably suspected of having been imported,
22y 4m with a NPP of 14y.
Fresh evidence - evidence of co-offender's possession & supply of ecstasy at more senior level than appellant - evidence not tendered at sentence proceedings - whether fresh evidence undermined sentencing judge's findings on objective criminality - assistance to authorities - guilty plea - parity - whether sentences manifestly excessive.
Appeal allowed: resentenced to 14y with a NPP of 9y.
203

KENNEDY, Ian David - NSWSC, Fullerton J, 11.7.2008
Citation:R v Kennedy [2008] NSWSC 703
Remarks on Sentence.
Manslaughter by unlawful & dangerous act.
The deceased died as a result of injuries sustained when the offender struck him to the head & stabbed him in the back. The offender was heavily intoxicated at the time, due to the combined effects of drugs & alcohol.
Intoxication & underlying brain damage - prospects of rehabilitation - finding of special circumstances.
Sentence: 6y with a NPP of 4y.
204

AZZI, John - CCA, 22.7.2008
James, Hoeben & Hall JJ
Citation:Azzi v R [2008] NSWCCA 169
Sentence appeal.
1 x aggravated assault with intent to rob (use of corporal punishment); + Form 1offence (failure to identify other persons).
3y with a NPP of 18m.
The victim & his female partner had advertised puppies for sale in the Trading Post. In response to the advertisement, the applicant contacted them by phone & arrangements were made to meet at a service station. The victim & his partner arrived at the service station & the applicant arrived a short time later with a male & female in his car. The male & the applicant approached the victim & his partner & the applicant asked to see the puppies. The applicant decided to take a male puppy, however, when advised about the price of the puppy, a dispute arose as to whether the price was negotiable. The applicant then punched the victim directly in the mouth, which split the victim's lip. A knife was visible in the front pocket of the applicant's jacket at all times. The victim fought with the applicant. The applicant then retreated to his car with the other male & they left the scene. When contacted by police, the applicant initially denied any involvement. He then made full admissions to police, but refused to name the 2 people in his car.
Offence largely impulsive - sentencing judge had expressed a provisional sentence then revised the sentence upwards - whether error.
Appeal dismissed.
205

AGOSTON, Peter Gabriel - CCA, 18.7.2008
James, Hoeben & Hall JJ
Citation:Agoston v R [2008] NSWCCA 116
s.5F appeal against refusal to grant permanent stay of proceedings.
5 x defraud Commonwealth.
Fitness to plead - aged 81 at time of appeal - ill-health - dementia.
Appeal dismissed.
206

YACOUB, Harb - CCA, 16.7.2008
McClellan CJ at CL, Simpson & Hidden JJ
Citation:Yacoub v R [2008] NSWCCA 164
Conviction appeal.
Attempt murder.
8y with a NPP of 6y.
The appellant was accused of cutting his girlfriend's wrists & throat.
Whether victim's injuries self-inflected - whether jury verdict unreasonable.
Appeal dismissed.
207

COLES, Peter John - NSWSC, Michael Grove J, 10.7.2008
Citation:R v Coles [2008] NSWSC 682
Judgment.
Murder; malicious wounding.
Trial without jury.
The accused faced trial charged with the murder of his mother & the malicious wounding of her former partner. The accused said that he loved his 68 year old mother & had killed her because she had to go.
Aged 38 - diagnosed with schizophrenia at age 18 - resisted psychiatric treatment - mother in agreement - mother believed accused could attain spiritual & physical health through homeopathic treatment far better than with psychiatric treatment & medication.
Unanimous psychiatric opinion supporting special verdicts - chronic mental illness - need for long-term, perhaps indefinite, psychiatric care & supervision.
Verdict: Not guilty by reason of mental illness.
208

O'MEARA, Shane Francis Gregory - CCA, 14.7.2008
Allsop P, James & Price JJ
Citation:O'Meara v R [2008] NSWCCA 154
Sentence appeal.
1 x cultivate cannabis (12m PD cancelled & sentenced to 6m 26d); 1 x supply cannabis (3y PD cancelled & sentenced to 2y 6m 26d) + Form 1 matters (4 x goods in custody); 1 x supply methylamphetamine (3y PD cancelled & sentenced to 2y 6m 26d). All sentences concurrent.
Police executed a search warrant at premises occupied by the applicant in February 1995 & located 5 cannabis plants, 6.6 grams of cannabis & 7.6 grams of methylamphetamine. The also found items connected with the supply of drugs, including a set of scales & resealable plastic bags.
The applicant served 29 periods of 3 concurrent PD orders & incurred a further 6 penalty periods before absconding from Sydney in 1996. The orders were cancelled in the applicant's absence & a warrant issued for his arrest & detention for the unexpired term of the sentences by way of full-time imprisonment. On 22.9.2007 he was arrested in Qld & has been in custody since that date.
Aged 21 at time of offending - genuine contrition - no priors.
Inference that longer term of PD was ordered than if sentence was to be served by way of full-time imprisonment - whether miscarriage of justice arising out of cancellation of PD.
Appeal allowed: resentenced to a total of 18m with a NPP of 15m.
209

STOKES, Tyson - CCA, 4.6.2008 - Reported:185 A Crim R 74
Giles JA, Barr & Hall JJ
Citation:Stokes v R [2008] NSWCCA 123
Sentence appeal.
1 x knowingly take part in supply of prohibited drug (ecstasy); 1 x supply prohibited drug (cocaine); 1 x ongoing supply of prohibited drug (ecstasy & cocaine).
Total sentence of 4y with a NPP of 3y.
Whether aggravated by organisation & planning - whether sentence excessive.
Appeal dismissed.
210

SALAH, Ezra - CCA, 2.6.2008
McClellan CJ at CL, Hulme & Hidden JJ
Citation:Salah v R [2008] NSWCCA 170
Sentence appeal.
Accessory after the fact to manslaughter.
3y with a NPP of 1y 11m.
The applicant & his brother were charged that they did jointly murder the deceased. The applicant pleaded guilty to being an accessory after the fact to manslaughter & his brother pleaded guilty to manslaughter. The Crown accepted the pleas in satisfaction of the indictment. The basis of the plea by the applicant's brother was excessive self-defence. See R v Dror Salah; R v Ezra Salah [2008] NSWSC 311.
Whether discount for guilty plea excessively low - whether sentence manifestly excessive.
Appeal allowed in part: NPP reduced to 1y 9m 25d.
211

OWENS, Frederick - CCA, 14.7.2008
Allsop P, James & Price JJ
Citation:Owens v R [2008] NSWCCA 155
Sentence appeal.
Specially aggravated detain for advantage; manslaughter.
6y with a NPP of 4y.
The applicant beat & detained the female victim for more than an hour after she went into labour because he thought she had stolen his wallet. His co-offender looked on as he repeatedly hit the woman & refused to let her leave the flat. Eventually, a visitor to the flats called police & the victim was rushed to hospital with a ruptured uterus. The baby, who was delivered by caesarean section, suffered brain damage as a result of the rupture of her mother's uterus & died the following day. The sentencing judge was satisfied beyond reasonable doubt that the victim was assaulted by the applicant in the manner described by her.
Whether error in finding of fact.
Appeal dismissed.
212

OSMAN, Ali - CCA, 14.7.2008
McClellan CJ at CL, Hidden & Howie JJ
Citation:Osman v R [2008] NSWCCA 157
Sentence appeal.
4 x ongoing supply of methylamphetamine; + similar matters on a Form 1.
Total sentence of 15y with a NPP of 9y.
More than 10,000 telephone intercepts showed the applicant functioning as a manager in a drug supply syndicate, supplying runners with drugs, paying them for their services & checking on their locations. The runners would also be contacted by the applicant during the course of their shifts to ensure that they had sufficient drugs to supply.
Parity - whether sentence manifestly excessive.
Appeal dismissed.
213

AGHA, Omar - CCA, 16.7.2008
Bell JA, Grove & Latham JJ
Citation:Agha v R [2008] NSWCCA 153
Appeal against severity of limiting terms of imprisonment following a special hearing conducted under s.21A Mental Health (Criminal Procedure) Act 1990.
Stealing - limiting term of 9m imprisonment; robbery - limiting term of 2y imprisonment (partly concurrent).
Total limiting term: 2y 3m.
Aged 19 at time of offending - suffers from intellectual disability - illiterate - never held any employment - easily influenced by negative peer group.
Whether limiting terms excessive.
Appeal dismissed.
214

LICASTRO, Tony - CCA, 22.7.2008
McClellan CJ at CL, Simpson & Hidden JJ
Citation:Licastro v R [2008] NSWCCA 131
Sentence appeal.
Knowingly take part in cultivation of large commercial quantity cannabis plants.
8y with a NPP of 6y.
On a property in Medowie, police found 3,831 cannabis plants under cultivation (street value approx $8m) along with a sophisticated irrigation system, machinery, fertiliser, living quarters & accommodation.
Aged 36 at time of offence - born in Italy - history of drug use - priors - previous imprisonment.
Parity - whether likely to re-offend - whether prior convictions taken into account - whether sentence manifestly excessive.
Appeal dismissed.
215

LINDSTROM, Charlotte Karin - CCA, 24.7.2008
Allsop P, James & Price JJ
Citation:R v Lindstrom [2008] NSWCCA 160
Crown appeal.
Solicit to murder; + offence taken into account (solicit to murder).
3y 10m with a NPP of 2y.
The respondent asked undercover police officers to kill 2 witnesses who were to give evidence in her boyfriend's drug trial.
Whether sentence manifestly inadequate - objective seriousness of offence - double counting for discount for guilty plea, assistance & for finding of special circumstances.
Appeal allowed: respondent resentenced to 4y 9m with a NPP of 3y.
216

SULTAN, Wayne Denis - CCA, 24.7.2008 - Reported:191 A Crim R 8
Spigelman CJ, Price & McCallum JJ
Citation:Sultan v R [2008] NSWCCA 175
Conviction and sentence appeal.
1 x use false instrument.
3y 2m with a NPP of 1y 5m.
The appellant was convicted of one of 17 counts of using a false instrument contrary to s.300(2) Crimes Act 1900. The Crown case was that he had participated in a fraudulent loan scheme in which he purported to act for a man pretending to be the owner of property which was to be the security upon which funds would be advanced by a third party. On the count for which the appellant was convicted, the trial judge found that he knew that this person was not the true owner & therefore that the documents were fraudulent. He also found that the appellant's participation in the transaction amounted to 'use'of the fraudulent mortgage instrument.
Findings of knowledge & intent - findings on 'use'.
Appeal allowed: conviction quashed, verdict of acquittal directed.
217

JAMAL, Saleh - CCA, 22.7.2008 - Reported:72 NSWLR 258; 191 A Crim R 1
Spigelman CJ, Simpson & Price JJ
Citation:R v Jamal [2008] NSWCCA 177
Crown appeal pursuant to s.5F Criminal Appeal Act 1912 from an interlocutory judgment in which an order was made to stay criminal proceedings against the respondent 'until the Crown consents to Mr Jamal's trial proceeding by judge alone'.
Maliciously discharging a loaded firearm with intent to inflict GBH.
The offence related to a number of bullets being fired at Lakemba Police Station, which was occupied by police officers. The Crown case is that the respondent participated in a joint criminal enterprise by driving the getaway vehicle. The judge had before her details of publicity about the respondent, which included the shooting at Lakemba Police Station. Various allegations were made in the media about the respondent, including allegations of being a terrorist, the latest of which was published in December 2007. Many of the media reports are available on websites capable of being accessed & which would reveal many past publications bearing the respondent's name.
Whether error in failure to consider possibility of lengthy adjournment.
Appeal allowed: Order staying respondent's trial set aside.
218

SITU, Xue Zhong - CCA, 14.7.2008 - Reported:186 A Crim R 224
McClellan CJ at CL, James & Hoeben JJ
Citation:Situ v R [2008] NSWCCA 161
Conviction appeal.
Attempt possess trafficable quantity methylamphetamine.
7y with a NPP of 4y.
Whether error in failure to direct verdict of acquittal at end of Crown case - whether act was merely preparatory - whether error in directions regarding control of property - whether verdict unreasonable.
Appeal dismissed.
219

YOUMARAN, Raymond - NSWSC, Rothman J, 25.7.2008
Citation:R v Youmaran [2008] NSWSC 762
Remarks on Sentence.
Murder.
Following the shooting death of the deceased, the offender was charged with murder & entered a plea of guilty. The offender (aged 24) shot the deceased (aged 28) at close range outside the Playhouse Hotel at Sefton. The offender & his companions had picked a fight with the deceased & his friends, who were out celebrating a birthday, within seconds of entering the hotel. Fists, bottles & chairs had been thrown in the hotel before the offender's group returned to their car to fetch guns. The deceased followed them outside to the car park. The offender & an alleged accomplice then opened fire.
Offence slightly above mid-range of seriousness - application of repealed s.44 Crimes (Sentencing Procedure) Act 1999.
Sentenced to 17y 4m with a NPP of 13y.
220

DARGIN, Gregory James - NSWSC, Hidden J, 25.7.2008
Citation:R v Dargin [2008] NSWSC 751
Judgment.
Murder.
Trial by judge alone. Defence of mental illness.
The accused was charged with the stabbing murder of his uncle. He told arresting police officers that the devil had told him to do it. The accused was raised & cared for by the deceased & his wife. As a teenager he suffered a head wound in a car accident & had several seizures, but was never prescribed medication for them. About the same time he began experimenting with drugs, starting with cannabis & later moving on to amphetamines, heroin & methamphetamine or ice. By his late teens he was frequently in trouble with the law. On one occasion while in custody he reported hearing voices. A month before the killing, he called police to the family home & told them he suffered from paranoid schizophrenia & said he did not want to hurt his family. He complained of hearing voices in his head telling him to kill or be killed. He spent a few days in the mental health unit at Blacktown Hospital before returning home where he stopped taking medication & resumed his illicit drug-taking. At the time of the stabbing of the deceased, the accused had not slept for several days because he feared someone in his family was going to kill him.
Three psychiatrists diagnosed the accused as suffering from schizophrenia. The crown did not dispute the defence of mental illness.
Verdict: Not guilty by reason of mental illness.
221

FERGUSON, Sadatia Anne - NSWSC, Barr J, 25.7.2008
Citation:R v Ferguson [2008] NSWSC 761
Remarks on Sentence.
Manslaughter.
Guilty plea.
The offender & the deceased, who were cousins, began a sexual relationship early in 2006. They had a violent physical relationship & the deceased had previously threatened to kill the offender. The deceased was sexually very demanding. He humiliated her & made remarks about having sex with the offender & her 17-year-old daughter. Two days before the deceased's death, the offender had left him to go & stay with an aunt in Lismore, but he had begged her to return. She went back because she was afraid he would commit suicide, but the intimidating behaviour continued. The last thing she remembered the deceased saying was that she would always have to look over her shoulder. She then stabbed the deceased several times.
The offender was sexually abused by an uncle for 9 years, starting when she was aged 5 & ending when she turned 14. She eventually made complaint, but the uncle was never charged.
History of depression - drug use - psychiatric evidence offender suffering from major depressive illness.
Substantial impairment by an abnormality of mind arising from an underlying condition - provocation.
Sentenced to 7y with a NPP of 4y.
222

RACZKOWSKI, Ted - CCA, 4.7.2008
Bell JA, Grove & Latham JJ
Citation:Raczkowski v R [2008] NSWCCA 152
Sentence appeal.
Multiple offences by husband on estranged wife.
Use prohibited pistol without licence or permit; detain with intent to obtain advantage occasioning ABH; indecent assault; attempt sexual intercourse without consent; breach of AVO; + Form 1 (possess unauthorized firearm).
Total sentence of 11*y with a NPP of 8y.
The victim was the applicant's wife. They had been together for over 40 years, however the relationship had deteriorated & an AVO was issued against the applicant. That order did not restrict their continuing to share the premises that had been their matrimonial home.
Whether sentences excessive - observation of possible ambiguity where standard NPP applies to offence against provision by section number & statute declares same penalty for attempt but determination not required - error in applying apparently intended concurrency - whether appropriate to adjust sentence commencement dates.
Appeal allowed: resentenced to a total of 9*y with a NPP of 6y.
223

NGUYEN, Van Cong - CCA, 10.7.2008
McClellan CJ at CL, James & Fullerton JJ
Citation:Nguyen v R [2008] NSWCCA 163
Sentence appeal.
Supply ecstasy (17.8 grams).
2y with a NPP of 18m.
Upon re-entering a nightclub, the applicant was found to be in possession of 64 ecstasy tablets & 2 mobile phones. He claimed that he was re-entering the nightclub to return the drugs to their owner, having left a short time earlier because he was feeling unwell. Two witnesses said they saw him being handed the items by another person, but it was not clear whether this was inside or outside the nightclub. The jury rejected the applicant's account & the matter proceeded to sentence on the basis that the drugs were in his possession for the purposes of supply. There was no evidence of actual supply. Although the mobile phones were untraceable, there was an inference that they were in the applicant's possession to assist him in his dealing.
Prospects of rehabilitation - special circumstances - personal & general deterrence.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 2y with a NPP of 1y.
224

FLENTJAR, Andrew Wayne - NSWSC, Buddin J, 26.7.2008
Citation:R v Flentjar [2008] NSWSC 771
Remarks on Sentence.
2 x detain with intent to obtain advantage and occasion ABH (specially aggravated form of kidnapping).
The bodies of a male & female were found in smouldering 44-gallon drums in the Tomerong State Forest.
The court heard that Kim Leanne Snibson was the mastermind behind the murders & manipulated both Stacey Lea-Caton & Flentjar into assisting her to capture her victims. Snibson pleaded guilty to the kidnapping & murder of the 2 deceased. As at 26.7.2008, Snibson was yet to be sentenced. Lea-Caton is serving a sentence of 22y with a NPP of 16*y for aiding & abetting in the murders. Flentjar admitted holding down the male prior to his murder while his wrists & mouth were being bound with sticky tape, but maintained that he was at his home when the male & female were killed.
The facts were that Snibson phoned the male & invited him to her house. When he arrived, he was attacked with a plank of wood, tied up & gagged. His wife was called about half an hour later. When she arrived, she was tackled, bound & gagged. Snibson later suffocated the female by wrapping her face in tape. She strangled the male with electrical wire. Snibson & Lea-Caton then forced the bodies into 44-gallon drums & took them to the Tomerong State Forest where they were set alight.
Pleas of guilty - assistance to authorities - parity.
Sentenced to a total of 10y with a NPP of 7y.
225

HANNA, Roger - CCA, 28.7.2008 - Reported:191 A Crim R 302
James, Hoeben & Hall JJ
Citation:Hanna v R [2008] NSWCCA 173
Conviction appeal.
Whilst in company, detain with intent to obtain advantage & occasion ABH.
6y 3m with a NPP of 3y 3m.
The appellant & others were involved in a transaction to procure methamphetamine for a group of bikies. Different grades of the drug were mixed & another ingredient added which spoiled it. The bikies were unhappy & wanted their money back. It was alleged that the appellant & his co-accused were involved in finding the money to repay the bikies. They believed that one of the victims might have been holding the money. Evidence was given that the appellant & his co-accused went to the victim's residence where he lived with his de facto wife & their child. It was alleged that the appellant was involved in detaining the victim & occasioning him ABH, as well as taking money.
Preconditions for the application of s,55F Jury Act 1977 (NSW) - giving of a majority verdict direction at the same time as giving a Black direction.
Appeal allowed: new trial ordered.
226

THEWLIS, Graham - CCA, 28.7.2008 - Reported:186 A Crim R 279
Spigelman CJ, Simpson & Price JJ
Citation:Thewlis v R [2008] NSWCCA 176
Sentence appeal.
Maliciously inflict GBH with intent to do GBH - 8y with a NPP of 4y; malicious wounding with intent to cause GBH - FT of 3y.
Total sentence of 9y with a NPP of 5y.
The victims were the applicant's recently estranged de facto& a friend of the applicant, with whom the de facto had begun a relationship. The de facto was the victim of the 1st count & the friend was the victim of the 2nd count. Both were stabbed a number of times.
Guilty pleas - whether sentence manifestly excessive - objective seriousness of offence.
Appeal allowed in part: sentence imposed for Count 1 quashed; resentenced on that count to 6y with a NPP of 3y, resulting in a total sentence of 7y with a NPP of 4y.
227

WALICKI, Linda Jane - NSWSC, Michael Grove J, 30.7.2008
Citation:R v Walicki [2008] NSWSC 777
Judgment.
2 x murder; 1 x wound with intent to murder.
Trial without jury. The accused was charged with murdering her father & her 15 year old sister & wounding her mother with intent to murder. All three suffered multiple stab wounds.
There was strong evidence of the accused's ongoing mental health problems. Both counsel for the defence and the Crown agreed that the accused should be found not guilty by reason of mental illness.
Acute schizophrenia - paranoid delusions - religious delusions - bizarre beliefs - auditory hallucinations.
Verdict: Not guilty by reason of mental illness.
228

GRAHAM -CCA, 28.7.2008
Spigelman CJ, Price & McCallum JJ
Citation:Graham v R [2008] NSWCCA 174
Conviction and sentence appeal.
Count 6: sexual intercourse without consent - 9*y with a NPP of 7y;
Count 9: attempt sexual intercourse without consent - FT of 5y (concurrent).
In all, appellant faced 12 counts. He was found guilty on the above 2 counts & not guilty on all other counts.
Different jury verdicts - whether unreasonable.
Whether sentence excessive - totality - allowance not made for special circumstances.
Appeal allowed: resentenced on count 6 to 9*y with a NPP of 6y 5m.
229

GRANT, Craig James - NSWSC, Johnson J, 31.7.2008
Citation:R v Grant [2008] NSWSC 784
Judgment on fitness to be tried.
Murder; attempted murder.
Psychiatric reports for defence & Crown that accused was unfit to be tried. Counsel for the defence and the Crown submitted that the accused was unfit to be tried.
Decision: Unfit to be tried. Orders and recommendations made.
230

BURRELL, Bruce - HCA, 31.7.2008 - Reported:238 CLR 218; 82 ALJR 1221
Citation:Burrell v The Queen [2008] HCA 34
On appeal from the SC of NSW.
Murder - life imprisonment; detain with intent to hold for advantage - 16y with a NPP of 12y
The appellant was convicted of the kidnapping & murder of a friend, Kerry Patricia Whelan, whose body was never recovered & the circumstances of death remain unknown: see R v Burrell[2006] NSWSC 581.
The appellant appealed to the CCA against his convictions & sought leave to appeal against the sentences imposed. On 16.3.2007, that Court (McClellan CJ at CL, Sully & James JJ) published reasons for its decision to dismiss the appeal against convictions & granted leave to appeal against sentence, but dismissed that appeal: see Burrell v R[2007] NSWCCA 65.
On 19.3.2007, the matter was again called on by the CCA. McClellan CJ at CL, who had given the reasons published on 16.3.2007, said that it had been brought to the attention of his associate that morning "that the judgment, which I prepared and the other members of the Court joined in, when recounting the Crown case has some inaccuracies". The Court asked counsel how it should set out correcting the error that had been made. Counsel then appearing for the respondent submitted that the error could not be corrected. The matter was stood over for further argument on 21.3.2007. That further argument proceeded on the basis that the prosecution had sought to reopen the appeals, but as the description of events showed, the initiative for reconsideration came from the CCA. Neither in the further argument of the matter in the CCA nor subsequently had there been any dispute between the parties, as the CCA was later to state in its second set of reasons. The appellant submitted to the CCA that the Court had no power to reopen the appeals & submitted that the CCA, as then constituted, should not redetermine the matter because there would be a reasonable apprehension that the Court, as then constituted, may be biased. The CCA rejected both submissions & held that it had the power to reopen the appeals: see Burrell v R[2007] NSWCCA 79.
The appellant appealed to the High Court against the first orders of the CCA made on 16.3.2007 & the second orders made on 23.3.2007. The central issue in the HC was whether the CCA had the power to reopen the appeals after orders disposing of them had been formally recorded.
Appeals allowed: Appeal against conviction & application for leave to appeal against sentence remitted to the CCA of NSW for rehearing. The NSW CCA did not have the power to reopen an appeal after orders had been formally recorded.
231

JJM -6.8.2008
Bell JA, Grove & Latham JJ
Citation:JJM v R [2008] NSWCCA 180
Sentence appeal.
2 x armed robbery; 1 x assault with intent to rob whilst armed with an offensive weapon accompanied by wounding; + Form 1 (3 x rob in company; 1 x attempt rob in company).
Total sentence of 8y with a NPP of 4y 3m 7d, to be served in a juvenile detention facility.
The structure of the sentences was designed so that the minimum term of custody would expire 6 months after the applicant's 21st birthday, being the limit during which an offender may be directed to serve his sentence in a juvenile detention facility: s.19 Children (Criminal Proceedings) Act 1987.
Applicant was aged 17 at the time of the offences & was aged 19 at the time of sentences were imposed.
Whether sentence manifestly excessive.
Appeal dismissed.
232

ZENG, Xiao Yuan - CCA 6.8.2008
Giles JA, Barr & Hall JJ
Citation:R v Zeng [2008] NSWCCA 183
Crown appeal.
Attempt possess commercial quantity MDMA (ecstasy).
10y with a NPP of 6y commencing on 29.6.2006.
Customs officers in Melbourne intercepted a container that had arrived on a ship from Canada. Inside the shipping container, they found over 1.29 million MDMA tablets concealed in ink containers. Analysis revealed that the tablets comprised over 371kgs of MDMA. The pure MDMA was over 74kgs with an estimated street value ranging from $38-$77 million. The shipping container was ultimately sent on to Sydney. It was during subsequent events, which were subjected to police monitoring & surveillance, that the appellant's role in the enterprise emerged.
Whether sentence manifestly inadequate - technical error in sentencing - failure by sentencing judge to take into account the fact that the respondent's pre-sentence custody had been broken by a period on bail.
Appeal allowed to correct technical error regarding pre-sentence custody: respondent resentenced to 10y with a NPP of 6y commencing on 27.7.2006.
233

CRAWFORD, Neal Andrew - CCA, 6.8.2008
McClellan CJ at CL, Hidden & Fullerton JJ
Citation:Crawford v R [2008] NSWCCA 166
Conviction appeal.
AOABH.
3y with a NPP of 18m.
The appellant faced trial on 6 counts. He was found guilty of the above offence & not guilty of all other offences charged.
The appellant had been in contact with his ex-girlfriend by phone & she had agreed to have a face-to-face discussion with him regarding their relationship. When he arrived at her house, she failed to come out of the house. He waited for some time then started calling out for her & banging on the front door. It was then that a call was placed to police & a police officer & a probationary officer attended the scene. At first the appellant was calm & co-operative, but then started calling out his ex-girlfriend's name again. Although the police officer told him to be quiet & allow them to deal with the situation, he became even more agitated & the police officer sent for backup. The police officer & the appellant gave differing accounts as to what then ensued. What was not in dispute was the fact that the appellant twice punched the police officer in the face. This resulted in the police officer sustaining multiple fractures to his jaw. The appellant claimed that his actions were in self-defence.
Failure to give adequate directions on issue of self-defence.
Appeal allowed: new trial ordered.
234

MILLINGTON, John William - NSWSC, Fullerton J, 8.8.2008
Citation:R v Millington [2008] NSWSC 813
Judgment.
Murder.
The accused was charged with killing the deceased. The day after the killing, he went to police & admitted shooting the deceased. From the age of 14, the accused had been cared for by the deceased & her family & was treated as though he was part of the family, although they drifted apart some years later. The accused held a delusional belief of a conspiracy against him for nearly 30 years. Reports from two psychiatrists were in agreement that the accused suffered from a mental illness that deprived him of the capacity to realize that his actions were wrong, even after he had shot the deceased.
Aged 42 at time of offending - reputation of being a loner - regular use of drugs & alcohol - issues relating to mental health first surfaced in 2001-2002 - subsequent admission to hospital - diagnosed as suffering from drug-induced psychosis.
Verdict: Not guilty by reason of mental illness.
235

MOUSCAS, Alexios - CCA, 6.8.2008
Allsop P, James & Price JJ
Citation:Mouscas v R [2008] NSWCCA 181
Sentence appeal.
1 x possess child pornography.
2y 9m with a NPP of 1*y.
In July 2006, the US FBI commenced an investigation into the distribution of child pornography using the internet. This led them to identify numerous persons located in Australia who had attempted to download child pornography images from an FBI monitored website. One of those persons was the applicant & a search warrant was executed at his home on 8.3.2007. The applicant took the police to his bedroom where he removed a concealed computer hard drive & a concealed spindle of compact disks. At the time of the seizure, members of the Australian Federal Police Computer Forensic Team examined the computer & found approximately 3 gigabytes of child pornography images. Subsequent examination of the seized hard drive & disks revealed 41,923 graphic files & 251 video files classified as child pornography. Due to the large number of files that had been seized that required classification, Australia Federal Police limited the classification of child pornography to prepubescent males & females in at least a semi-nude state.
Aged 39 at time of offence - early guilty plea - no priors.
Whether sentence manifestly excessive - whether error in finding that offence in upper range of objective seriousness.
Appeal dismissed.
236

CLARK, Michael Rex - NSWSC, Kirby J, 10.3.2008
Citation:R v Clark [No.1] [2008] NSWSC 820
Judgment on objection to listening device.
The Crown sought to introduce a conversation recorded by listening device. The listening device was installed under a warrant lawfully obtained. The conversation involved the accused, his son & his wife. There was an objection by the accused based partly upon relevance.
Objection to listening device - relevance - whether unfair prejudice - discretion to exclude.
Decision: Conversation should be admitted with agreed deletions.
237

CLARK, Michael Rex - NSWSC, Kirby J, 27.3.2008
Citation:R v Clark [No.2] [2008] NSWSC 821
Judgment on application to discharge jury.
Previous trial - hung jury - juror conversation at church with wife of juror in previous trial - whether juror or panel should be discharged.
Decision: Application for discharge refused.
238

CLARK, Michael Rex - NSWSC, Kirby J, 11.8.2008
Citation:R v Clark [No.3] [2008] NSWSC 795
Remarks on Sentence.
Murder.
The deceased was shot in the rear garden of his home. Two bullets were fired, the first of which struck a glancing blow to the left side of his head. The second was fired at close range to the left side of his forehead & penetrated his skull, fracturing the base of the skull & facial bones. The deceased staggered a short distance before collapsing on the lawn. About an hour later, he was found unconscious by his partner, who had just returned home. An ambulance was called & the deceased was taken to hospital, where he died that afternoon, having never regained consciousness. The prisoner & his son were charged with murder. The Crown case was that they had engaged in a joint criminal enterprise whereby the son would shoot the deceased when the prisoner was well away from the murder scene. He had to be well away so that he could not be accused of having committed the crime. According to the Crown, the prisoner needed that insulation because he had an obvious motive. He was in poor financial circumstances & was a beneficiary under the deceased's will. When the matter was called on for trial, the son pleaded guilty & on 24.8.2007 he was sentenced to 20y with a NPP of 14y. The prisoner pleaded not guilty & in March 2008, he was arraigned before a jury & after a lengthy trial, he was convicted of murder.
Sentenced to: 30y with a NPP of 24y.
239

WOOD, Gordon Eric - NSWSC, Barr J, 6.8.2008 - 186 A Crim R 454
Citation:R v Wood [2008] NSWSC 817
Judgment on a report of jury misconduct.
The accused was on trial, having been accused of murdering the deceased by throwing her from the top of the cliff at The Gap, Watsons Bay. The Crown began his opening address on the 1st day of the trial & concluded on the 2nd day. On the 3rd day, members of the jury were taken for an inspection of certain features at Watsons Bay & were shown the place from which the Crown would be submitting the deceased had been thrown to her death.
On the 4th day of the trial, at the conclusion of the evidence in chief of the 1st witness, the Court adjourned. Later that afternoon a report was received in the trial judge's chambers to the effect that a person claiming to be a member of the jury had had a telephone conversation with a journalist & had claimed that some members of the jury were intending to return to The Gap that night for a private inspection.
Directions to jury - examination of jurors on oath - contravention of s.68C Jury Act -discretion to discharge jury.
Decision: Jury discharged.
240

ORD, Elizabeth - CCA, 8.8.2008 - 186 A Crim R 475
McClellan CJ at CL, James & Fullerton JJ
Citation:Ord v R [2008] NSWCCA 162
Sentence appeal.
Social Security fraud: 3 x impose upon Cth by untrue representation with a view to obtain money (s.29B Crimes Act 1914 - now repealed); 6 x dishonestly cause loss to Cth (s.135.1(5) Criminal Code Commonwealth).
Total sentence of 18m with a NPP of 10m 2w.
In 1996, the applicant gave birth to a son Jacob. In 1998, she entered into a relationship with a man, Hayden Scott, who was not Jacob's father. In 1999, Scott seriously assaulted Jacob & DOCS removed Jacob from the applicant's care. In April 2000, the applicant gave birth to twin daughters, of whom Scott was the father. While in hospital, the applicant completed application forms for Social Security benefits on the basis that she would be the carer of her twin daughters. Before she was discharged from hospital, the babies were removed from her care by DOCS & placed in the care of their grandparents, on the grounds that the applicant's partner Scott had seriously assaulted her son Jacob & that both the applicant & Scott were addicted to illicit drugs. The twins remained in the care of their grandparents. Over a period of more than 4 years, the applicant received family tax payments or benefits & parenting payments on the basis that she was the carer or shared in the care of her twin daughters. The total amount received was about $75,000 of which about $5,000 was subsequently repaid, leaving a net sum of just under $70,000. The applicant's offending conduct was discovered in August 2004 & no further payments were made to her. In 2004, the applicant's partner Scott was sentenced to a term of imprisonment & the relationship between them ended. The applicant formed a relationship with another man & a child was born to them in August 2005.
Mothers and Children's Programme within Department of Corrective Services - no assessment of suitability of offender for Programme.
Whether sentences manifestly excessive - whether insufficient weight given to role played by Hayden Scott in considering offences committed by applicant - delay.
Aged 29 at time of sentence - guilty pleas.
Appeal dismissed.
241

NORRIE, Andrew Mark - CCA, 8.8.2008
Campbell JA, James & Johnson JJ
Citation:Norrie v R [2008] NSWCCA 185
Application for leave to appeal against direction not to reapply for redetermination of life sentence for 20 years.
Murder; armed robbery with wounding; 2 x shoot with intent to murder; malicious damage to dwelling house.
In 1986, the applicant (aged 24) & a teenage boy set out from Brisbane. They shot a family driving down the Pacific Highway & then went on to kill a fisherman at Narooma on the NSW south coast, before killing a hitchhiker in Victoria. The applicant told police that he enjoyed killing people.
See: R v Norrie [2006] NSWSC 830. See also: R v Norrie [2001] VSC 478 & R v Norrie [2002] VSCA 232;
Factors relevant to fixing of preclusion period - protection of community - public interest - heinous offence - relevance of sentences for other offences - patent or latent error.
Appeal dismissed.
242

FAM -CCA, 8.8.2008
McClellan CJ at CL; Hidden & Fullerton JJ
Citation:FAM v R [2008] NSWCCA 167
Sentence appeal.
1 x aggravated indecent assault; + Form 1 (1 x possess child pornography).
2*y with a NPP of 1*y.
The applicant committed the indecent assault upon his 12 year old son. The applicant & his wife had separated & at the time of the commission of this offence, the son was staying over at the applicant's home. They both slept in the same bed. At 4:00am, the complainant woke up to find the applicant had undone his boxer shorts & was touching his penis & testicles. The complainant rolled away & the following morning he told his mother & the matter was reported to police. While speaking to police, the complainant said he had seen pictures of young boys on his father's computer. The computer was then seized. On 3 hard drives, 2,346 images were found & 67 short films of child pornography involving young boys, many of the images were in the deleted files directory.
Whether sentence manifestly excessive.
Appeal allowed insofar as correction made to expiry date.
243

S -CCA, 8.8.2008 - 186 A Crim R 505
Bell JA, Adams & Latham JJ
Citation:S v R [2008] NSWCCA 186
Sentence appeal.
1 x supply commercial quantity methylamphetamine; 1 x possess prohibited firearm (.22 calibre pen gun); + 5 matters on a Form 1).
Total sentence of 7y with a NPP of 4*y.
The applicant's arrest followed a police operation. During an interview with police, the applicant candidly admitted that he had been supplying significant amounts of amphetamine for about 9 months. These admissions were the only evidence possessed by police as to the full extent of the applicant's drug dealing, other than the much smaller amounts of drug that they already knew about.
Special circumstances - strong subjective features - sentencing judge's finding that drug dealing significantly less than mid-range of seriousness.
Whether sentence manifestly excessive - significance of assistance - manner of calculating discount.
Appeal dismissed.
244

MITCHELL, Shane Bradley - CCA, 8.8.2008
McClellan CJ at CL, Grove J & Blanch AJ
Citation:Mitchell v R [2008] NSWCCA 192
Sentence appeal.
1 x supply cocaine (14.36 grams, purity 50%); 1 x supply methylamphetamine (26.9 grams, purity 16.5%).
Total sentence of 3y 4m with a NPP of 2*y.
Police & Customs investigators went to premises where the applicant was living with 2 of his friends. It was indicated that drug detection dogs would be brought in & the applicant was asked whether he had any drugs. He told police he had some drugs because he was going on a 'bucks weekend' with friends. He then indicated to police where the drugs were kept. Police also located a total of $34,861.50 in cash & 3 mobile phones. This gave rise as to whether or not the applicant was dealing commercially in drugs. The applicant said that he & 9 friends were going to Queensland for a wedding & the drugs were to be distributed amongst at least 6 of those men. The sentencing judge concluded that it was '... a one-off purchase of cocaine and amphetamines ...'& accepted the applicant's version. The sentencing judge found that the money represented legitimate proceeds of a business.
Whether sentence excessive - consideration of principles of consistent sentencing as opposed to parity of sentencing.
Appeal allowed: resentenced to a total of 2y with a NPP of 18m.
245

PHIPPS, Rodney Thomas - CCA, 11.8.2008
McClellan CJ at CL, Hidden & Fullerton JJ
Citation:Phipps v R [2008] NSWCCA 178
Application for leave to appeal against sentence.
11 x aggravated sexual intercourse (child under 16); 5 x aggravated indecent assault (child under 16).
Total sentence of 14y with a NPP of 11y.
The victim was the applicant's step-daughter. In each of the offences charged, the circumstance of aggravation was that the victim was under the applicant's authority. The offences were committed over a period in excess of 3 years, when the victim was aged between 12 & 15 years. The offences involved penile/vaginal intercourse, anal intercourse & various incidents of 'sexual touching'. On the occasion of the 1st count of aggravated sexual intercourse, the applicant threatened to kill the victim if she made a noise. He was violent towards her mother & on another occasion the victim agreed to sexual contact after he promised not to hit her mother anymore. The victim was in fear of him. The whole pattern of abuse was described by the sentencing judge as 'virtual sexual servitude'. The applicant's manipulative behaviour was such that his Honour regarded the offences as 'amongst the most serious of their kind'.
Whether overall sentence excessive - accumulation of sentences - finding of special circumstances reflected in individual sentences but not in aggregate sentence - whether error.
Appeal dismissed.
246

QIN, David Guan Liang - CCA, 8.8.2008
McClellan CJ at CL, Grove & Blanc JJ
Citation:R v Qin; Qin v R [2008] NSWCCA 189
Conviction appeal; and
Crown appeal.
Count 1: indecent assault; Count 2: sexual intercourse without consent.
On count 1 the appellant was ordered to enter a bond for a period of 5y;
On count 2 he was sentenced to imprisonment for 10y suspended upon entering a bond upon conditions in the same terms as the bond on count 1 with the addition of a further term that he not work as a masseur either on a paid or unpaid basis in the clinic at which the offence occurred.
The offences took place in a massage clinic.
Conviction appeal: Whether verdicts unreasonable - uncorroborated evidence of complainant - rational basis for discrimination. Appeal dismissed.
Crown appeal: Whether sentence manifestly inadequate. Appeal dismissed.
247

SIEDERS, Johan - CCA, 13.8.2008 - Reported:72 NSWLR 417; 186 A Crim R 540
SOMSRI, Yotchomchin
Campbell JA, James & Johnson JJ
Citation:Sieders v R; Somsri v R [2008] NSWCCA 187
Conviction and sentence appeal.
Sexual servitude offences: conduct of business involving sexual servitude of other persons ( s 270.6(2) Criminal Code Act 1995 (Cth)).
Somsri: 5y with a NPP of 2*y
Sieders: 4y with a NPP of 2y.
Somsri owned & managed 3 brothels, one in Strathfield, 2 in Parramatta. Sieders & his wife owned & operated one brothel at Penrith. The offence charged covered a period of 6 months, although the brothels were in operation prior to the commencement date of the offence. Having been recruited by a woman in Thailand, young Thai women were brought over to Australia to work as prostitutes in the brothels. They had large sums of money they had to pay off before being able to keep any money for themselves. They were moved from one brothel to another on a regular basis, including to a brothel that someone other than the accused owned.
Whether verdicts unreasonable - whether facts alleged by Crown insufficient to establish offence charged - whether no or insufficient evidence that appellants required fault element with respect to offence - where fault element is knowledge of or recklessness as to sexual servitude - s.5.4 Criminal Code Act -whether miscarriage of justice occasioned by direction that jury could convict if satisfied accused were reckless as to sexual servitude - where Crown referred only in passing to recklessness in closing address - procedural unfairness - where experienced counsel for accused did not object to direction at trial - rule 4 Criminal Appeal Rules - where limited objection made only as to trial judge's use of expression of 'wilful blindness' - whether use of expression created potentially misleading impression in mind of jury - substantive unfairness - whether s.270.6(2)(b) Criminal Code Act creates 2 distinct offences, one with knowledge, the other with recklessness as its fault element - whether open on appeal to convicted person to take point that there was no evidence of essential element of charge - where point not taken in court below - extrinsic materials as aid to construction - s.15AB Interpretation Act 1901 (Cth) - new offence of debt bondage - s.271.8 Criminal Code Act -whether legitimate to use statute that amends previously existing statute to construe statute in its unamended form - where earlier & later legislation do not deal with same topic - where later legislation not in operation at time of events to which charge relates - where later legislation has work to do independent of work done by earlier legislation - where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to later legislation - statutory definition of sexual servitude - s.270.4 Criminal Code -condition of person in sexual servitude - person 'snot free' to take particular actions - whether person in question must actually have taken those actions at any time in past - where lack of freedom must arise 'because of'  use of force or threats - whether phrase conveys notion of causal relationship actually in operation - whether force or threats must be used by accused - what constitutes threat of detrimental action - whether s.270.6(2) Criminal Code Act creates 2 offences with different fault elements or single offence with alternative fault elements - 'not free' - 'because of use of force or threats' -'detriment's - 'involves sexual servitude of other persons'  - whether overall sentences & NPP manifestly excessive - objective seriousness of offence - subjective circumstances of offender - parity - sentence imposed on co-offender - whether regard should have been had to penalty applicable to offence of debt bondage - whether sentence falls within permissible sentencing discretion.
Appeal dismissed.
248

VIANA, John Paul - CCA, 11.8.2008
Spigelman CJ, Simpson & Price JJ
Citation:R v Viana [2008] NSWCCA 188
Crown appeal.
Money laundering.
4*y with a NPP of 2y 11m.
The respondent came to Australia to assist in the collection of a large sum of money & to organise for that money to be sent to Colombia. The money was due to a Colombian national by the name of Alexander Ayala-Serna, who had supplied 300kgs of cocaine in Colombia, which had then been imported into Australia. The amount of money involved in the money laundering was $A5,050,000.
Whether sentence manifestly inadequate.
Appeal dismissed.
249

KLEIN, Gaby Michael (aka KALISCHER)-NSWSC, Buddin J
Citation:R v Klein [2008] NSWSC 835
Remarks on Sentence.
Murder.
This was the offender's 3rd trial for the same charge of murder. In 2003, he pleaded guilty to murder, but the following year he withdrew his plea & the matter was set down for trial. Following a trial in March of 2005, the jury was discharged after failing to reach a verdict. Later that year, the offender was found guilty of murder by another jury & received a sentence of 24y with a NPP of 18y. Following a successful appeal in 2007, a new trial was ordered.
The offence related to the death of the deceased, who was shot dead in his mobile phone retail shop on Victoria Road, Gladesville. The accused was in the vicinity of the shop around the time of the shooting. He had gone to the premises in order to obtain $1,500, which was owed to him by the deceased. Several witnesses told the court of seeing a man on a motorbike near the Gladesville shop on the day of the shooting dressed in shorts & with a distinctive tattoo on his leg. The jury accepted that the offender was that man.
Intent to kill but not premeditated.
Sentence: 22y with a NPP of 16y.
250

CLIFFORD, Adrian Earl Albrecht - CCA, 15.8.2008
Allsop P, James & Price JJ
Citation:R v Clifford [2008] NSWCCA 190
Crown appeal.
1 x B&E with intent; 5 x BE&S; 1x steal MV; + Form 1 (12 x BE&S; 1 x B&E with intent; 1 x attempt BE&S).
Total sentence of 5y with a NPP of 2*y.
Repeat offending - offences committed upon small businesses.
Aged 46 at time of sentence - on conditional liberty at time of offending.
Whether sentence manifestly inadequate - failure to adequately reflect aggravating features - error in applying principles in Pearce -failure to properly reflect Form 1 matters - excessive adjustment to statutory ratio following finding of special circumstances.
Appeal allowed: respondent resentenced to a total of 5y 3m with a NPP of 3y.
251

FRYAR, James - CCA, 13.8.2008 - 187 A Crim R 8
Spigelman CJ, Barr & Fullerton JJ
Citation:R v Fryar [2008] NSWCCA 171
Crown appeal.
1 x malicious wounding with intent to cause GBH.
6*y with a NPP of 4y.
The offence took place at a bowling club. The respondent believed the victim was having an affair with his ex-wife. The respondent slashed the victim with a box-cutter, causing a deep 20cm wound to his back. The attack sparked a fight & the respondent was thrown through a window & smacked in the face with a bar stool, causing a fractured eye socket & ribs. Doctors who treated the respondent said that he had no memory of the incident.
Whether sentence manifestly inadequate - application of s.54B Crimes Sentencing Procedure Act 1999 - standard NPP - errors in assessment of objective criminality - failure to find matter of aggravation under s.21A(2)(i) - overweighed matters of mitigation.
Appeal allowed: respondent resentenced to 9y with a NPP of 6y.
252

PGM -CCA, 13.8.2008 - Reported:187 A Crim R 152
Spigelman CJ, Barr & Fullerton JJ
Citation:R v PGM [2008] NSWCCA 172
Crown appeal.
3 x sexual intercourse with child under 10 years; 3 x indecent assault upon child under 10; + Form 1 (2 x possess child pornography).
Total sentence of 7y with a NPP of 4*y.
This appeal followed a 2nd trial, the respondent having been successful in his appeal against conviction following his 1st trial: see PGM v R [2006] NSWCCA 310, reported at 164 A Crim R 426.
The above offences occurred over a 7 month period & were committed upon the same child, who was aged 6 & 7 years at the time. The young victim lived with her siblings & parents, who were neighbours of the respondent & his wife.
Whether sentence inadequate - whether sentencing discretion miscarried - failure to adequately reflect gravity of criminal conduct involving very young child - objective of general deterrence.
Appeal allowed: respondent sentenced to 9*y with a NPP of 7*y.
253

CM -CCA, 19.8.2008 - 187 A Crim R 197
McClellan CJ at CL, Grove & Blanch JJ
Citation:CM v R [2008] NSWCCA 195
Sentence appeal.
Sexual intercourse without consent and at the time maliciously inflict ABH; offence of detain taken into account.
10*y with a NPP of 6*y (to be served in a Juvenile Detention Centre until age 21).
In the commission of the above offences, the young female victim was subjected to a violent beating by the applicant, using a length of wood. There were 2 other males in the unit at the time & although they did not take part in the offences, they did nothing to assist the victim. In the early hours of the morning, 2 teenage girls arrived at the unit to visit one of these males. They saw the victim semi-naked & covered in blood & helped her out of the unit. The applicant followed, still holding the piece of wood, told the victim to return & when she did not, threatened her not to contact police. When they were out of sight, the victim told the girls what had happened & they took her to a nearby house where police & an ambulance were summoned. She was taken to hospital where she was treated for a number of severe injuries.
Juvenile offender aged 15 at time of offending - Aboriginal - disruptive upbringing - very limited education - inhaled petrol for 6 months prior to arrest - offending close to being in worst category - sexual sadism - reluctance to accept responsibility for offences - high risk of future offending for offences related to sex & violence - priors - first appeared in Children's Court at age 13 - on bond at time of above offences.
Whether sentence excessive - whether insufficient weight given to applicant's youth.
Appeal dismissed.
254

PHAM, Van Diep - CCA, 15.8.2008 - Reported:187 A Crim R 21
TRAN, John Xanvi
Citation:Pham; Tran v R [2008] NSWCCA 194
Conviction and sentence appeals; &
Crown appeal against sentences.
Multiple drug offences involving supply commercial quantity heroin; supply indictable quantity cocaine; supply large commercial quantity MDMA (ecstasy); supply large commercial quantity cocaine; supply commercial quantity cocaine; supply large commercial quantity N,N-Dimethylamphetamine.
Pham: Total sentence of 14y with a NPP of 10*y.
Tran: Total sentence of 16y with a NPP of 12y.
The Crown case relied on a significant body of evidence obtained by surveillance & by the interception of telephone conversations, which were almost totally in Vietnamese & which, when translated, did not refer to any of the drugs in question. The Crown case was that when one appreciated the code that was used by the offenders, one could interpret the conversations as being relevant to the dealing in drugs.
Translations of intercepted conversations - voice identification - decoding of language used by offenders.
Conviction and sentence appeals:
Whether summing up unbalanced - whether expert evidence as to meaning of words used in conversations the subject of surveillance admissible - whether sentences excessive.
Appeals dismissed.
Crown appeal:
Whether sentences manifestly inadequate.
Appeal dismissed.
255

MORTON, Richard Harry - CCA, 11.8.2008 - Reported:191 A Crim R 333
McClellan CJ at CL, Barr & Price JJ
Citation:R v Morton [2008] NSWCCA 196
s.5F appeal by Crown against order rejecting tender of statement signed by complainant and principal Crown witness.
Robbery in company.
The victim was a French national. The trial came on for hearing while the victim was still in Australia. The co-accused had not yet been committed for trial & the Crown asked for the respondent's trial to be vacated so that there could be a joint trial. The respondent's trial was then adjourned & the victim returned to France. When the joint trial commenced, the victim was absent & no arrangement had been made for him to give evidence by video link. The Crown proposed to proceed, partly by adducing evidence of what the victim had said, through an interpreter, to the police officer in his statement & to others at relevant times. Objection was taken. Evidence was tendered on that question & submissions were made. The trial judge rejected the tender of evidence.
Inadmissibility of witness statement taken through interpreter - admissibility of evidence under s.65 Evidence Act when maker not available.
Decision: Order rejecting tender of witness' statement set aside.
256

BONEY, Phillip Mitchell - CCA, 19.8.2008 - Reported:187 A Crim R 167
McClellan CJ at CL, Hulme J, Mathews AJ
Citation:Boney v R [2008] NSWCCA 165
Conviction and sentence appeal.
Eleven counts of sexual offences involving: enter dwelling with intent to commit serious indictable offence (intimidation) in circumstances of aggravation; assault; malicious damage to property; detain without consent to obtain advantage (sexual intercourse); sexual intercourse without consent; detain with intent to obtain advantage (sexual intercourse) & immediately before inflict ABH; aggravated sexual intercourse (inflict ABH); + 7 offences on a Form 1.
Total sentence of 27y with a NPP of 20y.
The offences involved 3 separate, violent & degrading assaults upon applicant's ex-partner.
Aged 28 at time of sentence - Aboriginal - history of violence against complainant over many years - previous imprisonment had no effect in preventing continued attacks upon her - drug & alcohol abuse - no show of remorse - thinks he's entitled to do what he did - continues to pose a danger to complainant - little prospect of rehabilitation - deterrence.
Whether error in admission of 'relationship' evidence - whether error in directions - whether summing-up unbalanced - whether error in failure to give directions on consideration of evidence relating to each count.
Conviction appeal dismissed.
Sentence appeal allowed on counts other than counts 1&3, resulting in a new total sentence of 15y with a NPP of 12y.
257

DAVIS, Steven Roy - NSWSC, Price J, 20.8.2008
Citation:State of New South Wales v Davis [2008] NSWSC 862
Ex Tempore judgment.
Application by State of NSW that continuing detention order made on 24.6.2008 be revoked: see State of New South Wales v Davis [2008] NSWSC 664.
Community Offender Support Accommodation at Malabar now open.
Orders made:
1. Pursuant to s,19(1) Crimes (Serious Sex Offenders) Act 2006 continuing detention order made on 24.6.2008 revoked with effect on & from 4pm 20.8.2008.
2. Pursuant to s.17(1)(a) of the Act, extended supervision order made for period of 5 years, to commence on & from 4pm 20.8.2008 & pursuant to ss.17(5) & 11 of the Act, direct compliance by defendant with conditions set out in Schedule (see Schedule following on from Orders at para 15 of judgment).
258

TA -CCA, 21.8.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:TA v R [2008] NSWCCA 179
Sentence appeal.
Attempt robbery armed with dangerous weapon; unauthorised possession of shortened firearm.
Total sentence of 3y with a NPP of 18m, to be served in a Juvenile Detention Centre.
Pleas of not guilty were changed after the defence of duress was withheld from the jury.
The offences were committed late in the afternoon at a general store in Coonabarrabran. Five offenders were involved. There was a degree of planning in that weapons were obtained & false number plates were placed on their motor vehicle. The store was operated by a couple who were present in the store at the time of the offences, as were their 11 year old daughter & their 14 year old son. The offences were prosecuted on the basis that the applicant was part of a joint criminal enterprise.
Young offender - aged under 18 at time of offences - prior good character.
Whether error in trial judge failing to find applicant acted under duress - principle of parity - whether sentence manifestly excessive.
Appeal dismissed.
259

TANG, Wei - HCA, 28.8.2008 - Reported:237 CLR 1; 82 ALJR 1334
Gummow, Kirby, Hayne, Heydon, Crennan & Kiefel JJ
Citation:The Queen v Tang [2008] HCA 39
Crown appeal against decision of Victorian Supreme Court of Appeal quashing convictions & ordering a new trial
Intentionally possess slaves and intentionally exercise over slaves power of use (s.270.3 Criminal Code (Cth)).
The respondent was convicted of enslaving 5 Thai women at her brothel where the women were forced to work off individual debts of up to $45,000. The women were not under lock & key but had little money, limited English, worked long hours & feared they would be found by immigration authorities, their visas having been obtained illegally. Their passports were withheld by the respondent.
The Victorian Supreme Court quashed the conviction on the basis that the trial judge's directions on intent were inadequate.
Licensed brothel - foreign sex workers - slavery - intent - whether respondent 'intentionally possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership'- directions to jury - fault element of offence.
Constitutional law - International Convention to Suppress the Slave Trade and Slavery (1926) - Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) - implementation of treaty by legislation regulating conduct in Australia - whether ss.270.1 & 270.3(1)(a) of the Code within legislative power - s.51(xxix) Commonwealth of Australia Constitution Act.
Appeal allowed: Orders for new trial overturned.
The Court held that the Federal Parliament had the power to make laws as part of its obligations under the international slavery convention and found there was enough evidence provided during the respondent's trial o meet the definition of slavery.
260

CURTIS, Matthew - CCA, 29.8.2008
McClellan CJ at CL, Hulme & Hidden JJ
Citation:Curtis v R [2008] NSWCCA 200
Sentence appeal.
4 x BE&S.
Total sentence of 4y 9m with a NPP of 2y 9m.
The offences were committed at private homes in Young over a period of about 10 days. The applicant stole money, jewellery, a video recorder & a Playstation. From one home, he stole 2 rifles & a shotgun, which he later disposed of. The offences were committed to fund the applicant's addiction to oxycontin, a pain-killing drug, which he was buying illegally.
Guilty plea - aged 31 at time of offending - long history of drug abuse - bad criminal record - previous convictions.
Whether sentence excessive - assistance to authorities - whether undue emphasis placed on theft & disposal of firearms - drug addiction - prospects of rehabilitation.
Appeal dismissed.
261

MORRIS, Bernard - CCA, 21.8.2008
MORRIS, Bruce
SNELSON, James
Spigelman CJ, Hidden & Price JJ
Citation:Morris, Morris and Snelson v R [2008] NSWCCA 182
Sentence appeals.
Bruce Morris: 2 x aggravated BE&S; + Form 1 - 4y with a NPP of 2y
James Snelson: 2 x aggravated BE&S; + Form 1 - 4y 8m with a NPP of 2*y.
Bernard Morris: 2 x aggravated BE&S; 1 x aggravated enter dwelling with intent to steal; + Form 1 - total sentence of 4y with a NPP of 3*y.
The applicants & another offender drove to a property outside Bourke. Bernard Morris remained in the car while the others broke into 2 residences. The previous day, Snelson had found out that the occupants would not be at home at the time. The offenders took a large amount of valuable property. They then removed 2 cars from a shed & used them to transport the stolen property back to Smith's home. They also drove around town for some hours. The property was divided between 3 of the offenders, Bernard Morris being left out. In the early hours of the following day, Bernard Morris travelled to the property in one of the stolen vehicles, along with 4 juvenile co-offenders & they entered one of the premises through a door that had been left open.
Guilty please - Aboriginals - deprived upbringings - drug & alcohol abuse - involvement in community work.
Whether adequate distinction in sentence because of offenders' different roles & subjective cases - whether pleas of guilty taken into account - whether assistance to authorities taken into account - whether overall sentence after accumulation reflected finding of special circumstances - whether lesser sentences warranted.
Bruce Morris and James Snelson: Appeals dismissed.
Bernard Morris: Appeal allowed insofar as commencement date of 12m FT changed for aggravated enter dwelling with intent offence.
262

FAEHNDRICH, John Harry - NSWSC, Price J, 29.8.2008
Citation:R v Faehndrich [2008] NSWSC 877
Remarks on Sentence.
Murder.
It was the prisoner's case at trial that he was acting under provocation when he killed the deceased. The partial defence of substantial impairment by abnormality of mind was also raised.
The prisoner stabbed the deceased with a pair of scissors, resulting in her vertebral artery being cut. The prisoner & the deceased had been in a relationship for about 3 months. The jury was satisfied that the prisoner deliberately & intentionally stabbed the deceased & that the stabbing was not carried out in self-defence & that there was no provocation.
Mental illness - recurrent depressive illness, alcohol abuse & personality disorder.
Provocation - general & specific deterrence - departure from standard NPP.
Sentenced to 20y with a NPP of 15y. Conditions of release to parole that psychiatric treatment & appropriate medication continue.
Recommendation made that prisoner be immediately assessed by Mental Health Team; that prisoner to remain under regular care of psychiatrist whilst in custody & receive appropriate medication.
263

RYAN, Stephen Walter James - CCA, 29.8.2008
McClellan CJ at CL, Barr & Price JJ
Citation:Ryan v R [2008] NSWCCA 198
Sentence appeal.
Armed robbery.
3y with a NPP of 15m.
The applicant had been drinking alone. Later, he entered a service station, armed with a knife. He grabbed the console operator, pointed the knife at him & asked for money. The console operator placed cash from the cash register into a plastic bag, which he gave to the applicant, as well as 2 packets of cigarettes. As the applicant left the console area, he cut the telephone cord & told the operator not to call police. The entire incident was captured on CCTV. This was later shown on local TV, however, there was no response from the public. Three days later, the applicant, accompanied by his parents, attended the police station where he participated in an ERISP & made full admissions. He also gave police the plastic bag that still contained most of the money stolen from the service station.
Whether sentence manifestly excessive - application of guideline judgment - subjective circumstances.
Appeal dismissed.
264

KEUNG, Wing Kwai - CCA, 21.8.2008 - Reported:191 A Crim R 317
BOW, Wai Kwan
LIU, Miller
Giles JA, Johnson & Hall JJ
Citation:Keung, Bow, Liu v The Queen [2008] NSWCCA 193
Each appealed against conviction;
Keung applied for leave to appeal against sentence.
Conspire to import commercial quantity MDMA (ecstasy).
Keung: Life sentence.
Bow: 24y with a NPP of 16y.
Liu: 21y with a NPP of 14y.
A ship from Rotterdam arrived in Sydney. A shipping container consigned to 3 businesses in Sydney was unloaded. Sixteen days later, Customs & Police officers opened the container, which contained a large number of boxes packed on separate pallets. Thirty seven of the boxes on one of the pallets were found to contain 60 compressed blocks of MDMA powder, individually wrapped in plastic & concealed between layers of wonton pastry. The blocks weighed 342 kgs & the pure MDMA in them weighed 234.92 kgs. The powder was sufficient to make over one million ecstasy pills.
Whether error in failure to direct jury that the prosecution had to prove that appellant agreed to import not less than the commercial quantity of MDMA - whether error in failure to direct jury that prosecution had to prove that appellant intended to import a particular quantity of MDMA - whether error in trial judge directing jury to put to one side any transcripts of recorded conversations to which they could ascribe no meaning.
Appeals dismissed.
265

DOE, Aisson - CCA, 2.9.2008 - Reported:187 A Crim R 328
Spigelman CJ, Hidden & Latham JJ
Citation:Doe v R [2008] NSWCCA 203
Conviction appeal.
4 x sexual intercourse without consent; 1 x indecent assault.
Sentence not stated.
Circumstantial case as to identity of offender - alleged admission by accused to acquaintance - acceptance beyond reasonable doubt of that witness essential to proof of guilt - whether comment suggesting that the witness had "no axe to grind" capable of being understood by the jury as "Why would he lie?" - whether summing up compounded alleged error.
Appeal dismissed.
266

MILAT, Ivan Robert Marko - NSWSC, McClellan CJ at CL, 17.7.2008
Citation:Milat - Inquiry into conviction and sentence [2008] NSWSC 732
Judgment on application for inquiry into conviction and sentence.
7 x murder; 1 x detain for advantage.
Life imprisonment.
Strong Crown case.
Third application made.
Whether trial judge's ruling erroneous - whether applicant denied procedural fairness during trial - grounds raised - whether question of doubt as to guilt.
See also: R v Milat [2005] NSWSC 920 and Milat [2006] NSWSC 1391.
Decision: Application refused.
267

SPEECHLY, Justin - CCA, 4.9.2008
McClellan CJ at CL, Barr & Price JJ
Citation:Speechly v R [2008] NSWCCA 204
Sentence appeal.
Malicious wounding with intent to do GBH.
10y 8m with a NPP of 6y.
The offence involved the vicious beating of the victim in the street in the early hours of the morning, as a result of which the victim suffered very serious injuries.
Whether sentence excessive - relationship between NPP & parole period under s.44 Crimes (Sentencing Procedure) Act -comparison of sentences of co-offenders.
Appeal allowed: resentenced to 9y with a NPP of 6y.
268

BEATTIE, Lisa Joy - CCA, 2.9.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Beattie v R [2008] NSWCCA 184
Appeal against verdict under s.22 Mental Health (Criminal Procedure) Act 1990 following a special hearing held in the District Court of NSW: see R v Lisa Joy Beattie [2007] NSWDC 117.
Maliciously inflict GBH.
The appellant stabbed a young woman in a shopping centre.
Whether misdirection on specific intent - mental illness - whether verdict unreasonable.
Appeal dismissed.
269

GEDEON, Gilbert v Commissioner of NSW Crime Commission - HCA, 4.9.2008 - Reported:82 ALJR 1465
DOWE, David Darley v Commissioner of NSW Crime Commission
Citation:Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43
On appeal from the NSWSC.
Take part in supply of cocaine.
In early 2005, the NSW Crimes Commission had authorised 6 controlled operations involving the sale of nearly 4 kgs of unlawfully imported cocaine. The applicants, Gedeon & Dowe allegedly bought quantities of the cocaine from a Commission informer. The applicant Dowe was convicted on serious drug offences & jailed for 12 years. The applicant Gedeon was still awaiting trial. None of the cocaine was ever recovered.
Whether Commissioner had power to issue Authorities where sale of cocaine without recovery strategy was decided at trial or upon judicial review to seriously endanger health or safety of person - whether reference to "any other person" in s.7 of Law Enforcement (Controlled Operations) Act 1997 (NSW) confined to person in physical vicinity of authorised conduct or extended to person subject to foreseen & expected consequence of proposed controlled operation - whether "controlled activity" within meaning of the Act extended to conduct unlawful by reason of contravention of Commonwealth law.
Appeals allowed. Orders made.
NSW Crime Commission had no statutory power to grant an authority for such an operation.
270

KERR, Peter John - CCA, 29.8.2008
Spigelman CJ, Simpson & Price JJ
Citation:Kerr v R [2008] NSWCCA 201
Sentence appeal.
Aggravated kidnapping (86(2)(b) of the Crimes Act 1900); + Form 1 (aggravated kidnap; steal MV).
11y with a NPP of 8y.
The applicant & the victim had been in a relationship for about 2 months. The relationship terminated a couple of days before the offence.
Circumstances of unlawful detention aggravated by actual use of violence & real threat of violence - presence of a weapon.
Guilty plea - discount of a little over 20% allowed.
Whether sentence manifestly excessive - failure to properly backdate sentence - consideration & application of principle of totality - reflection of finding of special circumstances in NPP.
Appeal allowed insofar as sentence backdated.
271

WILLS, Russell Clement - NSWSC, Hidden J, 9.9.2008
Citation:R v Wills [2008] NSWSC 932
Reasons for Verdict.
Murder.
This was a retrial before a judge alone. The matter first came up for retrial before Barr J in April 2008, however, the jury was discharged before evidence was completed. The accused had previously been found guilty of murder. On appeal to the NSWCCA, his conviction was overturned & a new trial ordered: see Wills v R [2007] NSWCCA 160.
A 60 year old man was found dead in his public housing unit. He had been severely beaten & sustained extensive injuries, both external & internal. The Crown relied upon a number of specific circumstantial factors in support of the accused having murdered the deceased.
Aged 49 at sentence - itinerant lifestyle - long-standing addiction to alcohol - socially dysfunctional - self-critical & depressive disposition - likelihood of alcohol-related brain damage - schizophrenia.
Verdict: Not guilty.
272

IBRAHIM, Hussan - CCA, 21.8.2008
Allsop P, James & Price JJ
Citation:Ibrahim v Commissioner of Police & Anor [2008] NSWCCA 197
Application for leave to appeal from an interlocutory order upholding a claim of public interest immunity in relation to documents called for in paras 1-7 of an amended schedule to a subpoena issued on behalf of the applicant & setting aside the subpoena in relation to those paragraphs. The amended schedule was annexed to a letter from the applicant's solicitor to the Crown Solicitor's Office.
The applicant is in custody awaiting trial in relation to charges connected with the shooting of a number of persons. The shooting was said to involve the affairs of a motorcycle gang known as 'The Nomads'.
Procedure - subpoena - public interest immunity privilege.
Appeal dismissed.
273

HOWARD, Gregory Mark - NSWSC, Hulme J, 5.9.2008
Citation:R v Howard [2008] NSWSC 934
Remarks on Sentence.
Murder
The prisoner killed his son by shooting him. Three shots were fired in all. One shot entered the right side of the deceased's chest, perforating the lower lobe of both lungs & transecting the aorta. Another shot entered the deceased's left cheek near the left orbital cavity, perforated a number of bones in his head & transected his spinal cord. Earlier in the day, the prisoner & the deceased had had an argument. The prisoner said that the deceased had threatened him. He said that the deceased had later made threatening phone calls to him, that he was in fear of the deceased & therefore armed himself with a firearm. He said that he heard the deceased approaching his garage & he himself then walked out of the garage with the firearm. He said that he fired the first shot when the deceased was about 30 metres away but that the deceased continued to walk towards him & threaten him. The prisoner said he then fired 2 more shots. A neighbour, during an interview with police, said that the prisoner had told him that he fired a warning shot & when he deceased kept coming towards him he shot him, then as the deceased went down the prisoner shot him in the head.
Aged almost 50 years at time of offence - health problems - on medication for hypertension, diabetes, reflux esophagitis, anxiety, depression, insomnia - also suffers from hepatitis C, a mediastinal cyst & hypersplenism with thrombocytopaenia - alcohol abuse since age 15 - unsuccessful attempts at rehabilitation - prior use of drugs, but had ceased well before shooting - has 6 children from 5 relationships - previous convictions, but not deemed as aggravating offence of murder.
Sentence: 18*y with a NPP of 14y.
274

HAOUI, Joseph Robert - CCA, 10.9.2008 Reported:188 A Crim R 331
Beazley JA, Johnson & McCallum JJ
Citation:Haoui v R [2008] NSWCCA 209
Conviction appeal.
Dangerous drive occasioning GBH.
18m with a NPP of 9m to be served by way of PD.
A man driving his utility out of a driveway, intending to turn right onto the road, saw a car to his right but thought it was sufficiently far away for him to safely turn onto the road. Before completing the turn, his vehicle was struck in the rear by the car. A passenger in the utility suffered a sub-conjunctival haemorrhage of the right eye & a depressed right cheek fracture with bony deformity, requiring surgery to elevate the bony fragment & the insertion of a titanium plate. This injury was said to constitute the element of GBH.
The Crown's expert witness, Sgt Kelly, provided 4 written reports that calculated the appellant's speed at the time of impact using physics formulae. Reports 1 & 2 were served 2 years before the trial. Reports 3 & 4 were tendered at the completion of evidence, when the trial had almost concluded. Appellant's counsel contended that the late service of these reports, containing new material of a technical & specialist nature, was prejudicial to the appellant having a fair trial & should be rejected. Arguments were also raised as to the admissibility of its contents. The trial judge heard evidence from Sgt Kelly on a voir dire & admitted the reports into evidence. Shortly after the sergeant gave evidence before the jury, counsel for the appellant applied for the jury to be discharged, which the trial judge refused, holding that any unfairness could be overcome by an adjournment to enable the appellant to seek his own expert or by the re-examination of witnesses with appropriate directions to the jury. The appellant did not take up either of these suggestions offered by the trial judge.
Late introduction of expert evidence - new material of technical & specialist nature - irremediable prejudice - whether injuries to passenger amounted to GBH - whether verdict unreasonable - whether miscarriage of justice.
Appeal allowed: conviction & sentence quashed; verdict of acquittal entered.
275

ANDERSON, Robert John - CCA, 9.9.2008 Reported:187 A Crim R 542
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:Anderson v R [2008] NSWCCA 211
Sentence appeal.
Malicious wounding with intent to do GBH.
7y with a NPP of 3y 9m.
The applicant was drinking with a group of friends at a hotel. One of his friends approached the victim sitting at another table & struck him twice across the face with a pool cue, with sufficient force to cause the cue to break. The applicant then grabbed another cue & swung it at the victim's head, causing a 4 cm laceration to the right side of his head. The applicant's cue also broke on impact. The applicant continued to strike the victim until bystanders intervened to stop the attack.
Aged 26 at time of offending - guilty plea - Aboriginal - In long-term de facto relationship - has 2 young children - devoted father - long-standing substance abuse - prior convictions including offences of violence - previously received bonds, suspended sentences & short terms of imprisonment from LC.
Whether sentence excessive - approach to standard NPP - relevance of standard NPP when offender pleaded guilty - whether sentence appropriate despite error - whether special circumstances present - applicability of principles in Fernando (1992) 76 A Crim R 58 in relation to Aboriginality of offender.
Appeal dismissed.
276

SUDATH, Kondasinghe Aron - CCA, 9.9.2008
McClellan CJ at CL, Hidden & Fullerton JJ
Citation:Sudath v R [2008] NSWCCA 207
Conviction and sentence appeal.
Sexual intercourse without consent; assault.
Total sentence of 5*y with a NPP of 3*y.
The victim in these offences was the appellant's wife.
Prescribed sexual offence proceedings - whether error in allowing alternative arrangements for giving of evidence by complainant - whether error in declining to give a direction on circumstantial evidence - whether verdict unreasonable in the circumstances - whether fresh evidence obtained after proceedings evinced a miscarriage of justice - accumulation of sentences - whether inappropriate considering Pearce [1998] HCA 57; (1998) 194 CLR 610.
Appeal dismissed.
277

SNIBSON, Kim Leanne - NSWSC, Buddin J, 5.9.2008
Citation:R v Snibson [2008] NSWSC 905
Remarks on Sentence.
2 x murder; 2 x specially aggravated kidnapping.
Snibson lured the male victim & his wife to her house where she, Flentjar & Lea-Caton tackled, hog-tied & gagged them. The victims were still alive when Flentjar left the crime scene. Snibson later suffocated the female by wrapping her face in tape. She strangled the male with electrical wire. Snibson & Lea-Caton then forced the bodies into 44-gallon drums & took them to the Tomerong State Forest where they were set alight. Snibson & Lea-Caton blamed each other for the killings but neither version could be corroborated.
See also: R v Stacey Lea-Caton [2007] NSWSC 1294; & R v Flentjar [2008] NSWSC 771.
Dispute about offender's role - pleas of guilty - standard NPP - question of totality - consideration of sentence imposed on co-offender.
Sentenced to a total term of 32y with a NPP of 24y.
278

BOLDER, Dean - CCA, 25.9.2008
ZAPHIR, Alexander Aristotle
McClellan CJ at CL, Hoeben & Harrison JJ
Citation:R v Bolder; R v Zaphir [2008] NSWCCA 222
Crown appeals.
1 x assault with intent to rob whilst in company.
Each received 15m with a NPP of 9m to be served by way of PD.
The respondents brutally bashed a 63 year old man.
Whether delay in committal & trial process justified mitigation of sentences - whether length & conditions of bail justified mitigation of sentences - whether disproportionate emphasis placed on rehabilitation - whether need for personal deterrence undervalued - whether error in finding age of offenders would lead to hardship if fulltime imprisonment imposed - consideration of guideline judgment in Henry.
Appeals allowed: Respondents resentenced to 4*y fulltime imprisonment with a NPP of 2*y.
279

QORO, Sela Ratu - CCA, 26.9.2008
Giles JA, Johnson & Hall JJ
Citation:Qoro v R [2008] NSWCCA 220
Conviction and sentence appeal.
Aggravated sexual assault in company.
14y with a NPP of 10y.
The young complainant was pulled into a house in Redfern by a man she knew & held captive for several hours, during which time a large group of men repeatedly raped her. The appellant was identified by the complainant as being one of the men who had raped her. Following her eventual release from the house, the complainant made immediate complaint.
Whether miscarriage of justice in refusal to discharge jury - claim that trial judge left possible basis for conviction to jury which had not been relied upon by Crown - whether error in refusal to withdraw picture identification evidence from jury - whether error in use of evidence concerning appellants psychiatric condition on sentence - whether sentence excessive.
Appeal dismissed.
280

CAMPBELL, Belinda Mary - CCA, 16.9.2008 Reported:188 A Crim R 1
Spigelman CJ, Weinberg AJA, Simpson J
Citation:Campbell v R [2008] NSWCCA 214
Conviction appeal; & Crown appeal against sentence.
Import commercial quantity border controlled precursor (pseudoephedrine).
2*y with a NPP of 18m.
Australian Customs officials discovered the drugs in the form of cold tablets contained in 36 boxes secreted in a shipping container of furniture imported from Indonesia. The furniture was destined for the appellant's furniture business. At trial, the appellant accepted that she became aware of the drugs once the container was opened. At trial, the Crown submitted that the appellant could be convicted of importing as that act extended to a point in time after this occurred. The trial judge refused to withdraw this submission from the jury & it was left open to them to convict the appellant on the basis that, even if they were not satisfied that the appellant had the intention to import the drugs prior to the container being opened, they could convict her on the basis that she formed the intention at that time.
Physical & fault elements of an offence - Criminal Code Act 1995 (Cth) - construing statutory language - ambiguity - being 'knowingly concerned'- ordinary meaning of 'import'- meaning of 'importer'.
Conviction appeal allowed: new trial ordered.
281

BELL, Peter Douglas - CCA, 12.9.2008
McClellan CJ at CL, Barr & Price JJ
Citation:Bell v R [2008] NSWCCA 206
Sentence appeal.
Conspire to dishonestly obtain financial gain from a Commonwealth entity (s.135.4(1) Criminal Code (Cth).
6*y with a NPP of 3y 10m.
In his capacity as a production manager with the ABC, the applicant's co-offender, Williams, defrauded the ABC by authorising payments on invoices submitted by the applicant's company. The applicant, who was the sole director of CFX Pty Ltd, submitted invoices to the ABC in the name of CFX for services purportedly provided to the ABC by CFX, which, in fact, were never provided. The agreement between Williams & the applicant was that Williams would authorise payment on the invoices & the money would be paid into the applicant's bank accounts. This money would subsequently be divided between the applicant & Williams.
Williams was charged with the conspiracy offence & entered a plea of guilty. He also pleaded guilty to 5 additional charges that did not involve the applicant. For his part in the conspiracy to dishonestly obtain a financial gain from the ABC, Williams received a sentence of 7y with a NPP of 4y 9m. He was also sentenced for the further 5 offences, resulting in a total effective sentence of 8y with a NPP of 4y 9m.
Aged 56 at time of sentencing - guilty plea - no prior criminal history.
Whether sentence manifestly excessive - parity - application of principle of totality to co-offender's sentence - whether justifiable sense of grievance.
Appeal allowed: resentenced to 5*y with a NPP of 3y 3m.
282

QUINN, Peter Andrew - NSWSC, Hidden J, 2.10.2008
Citation:NSW v Quinn [2008] NSWSC 1080
Judgment.
Application for extended detention order.
Serious sex offences.
Decision: Continuing detention order for 3y subject to conditions.
283

SPILLETT, Wayne Michael - NSWSC, Howie J, 15.10.2008
Citation:R v Spillett [2008] NSWSC 1084
Judgment.
Murder.
Trial by judge alone.
Defence of mental illness.
The accused admitted killing his brother, maintaining that this was in self-defence as he believed his brother was going to kill him.
Suffers from Bipolar disorder - occasional manic episodes - hospitalised from time to time - at times resisted taking medication - paranoid delusions.
Decision: Not guilty by reason of mental illness.
284

ANTONIO, Tamilo - CCA, 12.9.2008
McClellan CJ at CL, Barr & Price JJ
Citation:Antonio v R [2008] NSWCCA 213
Sentence appeal; &
Crown appeal.
Robbery in company - 1y FT.
Robbery; + Form 1 offences - 7*y with a NPP of 3*y.
Total sentence: 4*y with a NPP of 3y.
While 2 males stood nearby, the applicant robbed a man at a bus stop, taking money & the victim's watch. A couple of days later, claiming to have a gun, he made an unsuccessful attempt to rob a tax agency office. With his face covered, he then entered a clothing hire shop & demanded money, saying he had a gun. He took the entire amount of money from the cash register & left. Security guards apprehended him & the money was returned to the shop. The applicant fled but was later arrested by police.
Aged 24 at time of offending - suffering schizoaffective or bipolar disorder at the time - extensive criminal history - previous imprisonment.
Sentence appeal:
Whether sentence on robbery count excessive.
Appeal allowed, resentenced on that count to 6y with a NPP of 3y.
Crown appeal:
Whether sentence on count of robbery manifestly inadequate.
Appeal allowed, sentence on that count increased to 2y FT.
Total sentence: 4*y with a NPP of 3y.
285

TIUFUA, George - CCA, 26.9.2008 Reported:189 A Crim R 1
LEE, Robert
NIUQILA, Acura
Beazley JA, Grove & Hidden JJ
Citation:Tuifua v R; Lee v R; Niuqila v R [2008] NSWCCA 224
Sentence appeals.
Tuifua: Conspiracy to commit robbery armed with an offensive weapon - 6y 9m with a NPP of 3y 10m
Lee: Conspiracy to commit robbery armed with an offensive weapon; + being carried in conveyance without consent of owner - 6y 0m with a NPP of 3y 9m.
Niuqila: Conspiracy to commit robbery armed with an offensive weapon - 7*y with a NPP of 4y 9m.
The applicants & 3 co-offenders had been under police surveillance. Telephone intercepts revealed that they were planning to commit an armed robbery of a bank in Seven Hills. Tuifua was involved in organising the equipment for the proposed robbery, including a firearm & ammunition, a stolen vehicle, sledgehammers, radios & disguises. In the 24 hours leading up to the robbery, the applicants & co-offenders were all involved in further preparatory acts. Lee and Niuqila obtained a shortened double-barrel shotgun. On the day of the offences, the applicants & co-offenders travelled in 3 cars, one of which was stolen, to Seven Hills. The police intervened & a co-offender & Lee fled in the stolen car. They were arrested shortly afterwards. Niuqila & Tuifua were also arrested shortly after & were found to be in possession of a balaclava & other clothing to be used for disguise. The other co-offenders were arrested a week later.
Whether sentences excessive - whether justifiable sense of grievance.
Appeals allowed & applicants resentenced:
Tuifua: 5y 9m with a NPP of 3y 3m.
Lee: 5y 9m with a NPP of 3y 2m.
Niuqila: 6y with a NPP of 4y.
286

STEVE, Michael John - CCA, 8.10.2008 Reported:189 A Crim R 68
Beazley JA, Hislop & Price JJ
Citation:Steve v R [2008] NSWCCA 231
Conviction appeal.
1 x sexual intercourse without consent.
3y with a NPP of 2y.
The complainant alleged that she was sexually assaulted by the appellant in an apartment to which she had gone with the appellant & his friend. They had a drink together in the lounge room. The complainant's evidence was that at one stage she excused herself to go to the bathroom, but as she went to do so, the appellant forced her into a small bedroom, pushed her onto the bed & sexually assaulted her.
The appellant alleged that his trial had miscarried, based on the failure of his solicitor to object to irrelevant & prejudicial evidence, tendency or coincidence evidence & evidence of bad character, as well as his failure to seek directions from the trial judge in respect of this evidence. Further, the appellant alleged that the trial judge had failed to apply the mandatory provisions of s.137 of the Evidence Act.
Whether miscarriage of justice - whether verdict 'unsafe'.
Appeal allowed: new trial ordered.
287

KARI, Georgeus - NSWSC, Hidden J, 23.9.2008
H
HAMID, Jamal
Citation:R v Kari; R v H; R v Hamid [2008] NSWSC 993
Remarks on Sentence.
Kari: Manslaughter - (guilty plea).
H: Manslaughter; + unrelated home invasion offence taken into account - (guilty plea).
Hamid: Accessory after the fact to manslaughter; + Form 1 offence (cause danger with firearm); + unrelated offence (home invasion) - (guilty plea).
Sentences:
Kari: Total of 7y with a NPP of 4*y.
H: Total of 6y with a NPP of 3*y
Hamid: Total sentence of 6y with a NPP of 3y 9m.
288

EINFELD, Marcus Richard - CCA, 14.10.2008 - Reported:71 NSWLR 31; 189 A Crim R 178
Bell JA, Hulme & Latham JJ
Citation:Einfeld v R [2008] NSWCCA 215
s.5F appeal against order dismissing an application to quash the first 5 counts in an indictment containing 9 counts. Application's motion for an order adjourning his trial for a period of 12 months because of intensity of publicity was also dismissed.
Pervert course of justice - statutory interpretation - assumption against extending scope of penal statute.
Decision: 1. Grant leave under s 5F(3) of the Criminal Appeal Act 1912;
2. Allow the appeal and set aside James J's order dismissing the relief claimed in prayer 2 of the Notice of Motion filed on 15 April 2008;
3. Quash counts 1 to 5 in the indictment dated 21 January 2008
289

EINFELD, Marcus Richard - CCA, 14.10.2008 - Reported:71 NSWLR 31
Bell JA, Hulme & Latham JJ
Citation:Einfeld v R [2008] NSWCCA 243
Consequential orders.
Decision: Non-publication order made on 17 June 2008 dissolved.
290

GAO, Peng - CCA, 10.10.2008
McClellan CJ at CL, Hoeben & Harrison JJ
Citation:Gao v R [2008] NSWCCA 234
Sentence appeal.
2 x supply commercial quantity ecstasy.
Total sentence of 12y with a NPP of 8y.
The supply of the drugs was to an undercover police officer.
Parity - whether sentence gives rise to reasonable sense of grievance - accumulation of one year - whether error in failure to order that sentences be served concurrently.
Appeal dismissed.
291

CARLTON, Adam Rawdon - CCA, 16.10.2008 Reported:189 A Crim R332
Basten JA, Hislop & Price JJ
Citation:Carlton v R [2008] NSWCCA 244
Conviction and sentence appeal.
4 x aggravated sexual intercourse without consent with person under 16.
Total sentence of 13y 4m with a NPP of 8*y.
Sentencing judge also recommended that the appellant be placed on protection & that he be given all the appropriate treatment for his mental illness.
All offences were committed upon the same complainant who was aged 10 years at the time.
Whether specific errors in summing up - whether miscarriage of justice because summing-up lacked balance & was unfair - whether failure to give proper weight to appellant's mental illness.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 12y with a NPP of 7y 8m.
292

STOESKI, Stephen - CCA, 14.10.2008
Allsop P, Johnson & Price JJ
Citation:Stoeski v R [2008] NSWCCA 230
Sentence appeal.
1 x possess precursor (pseudoephedrine); 2 x dispose of stolen MV; + Form 1 (unlawfully obtained goods on premises; knowingly dealing with proceeds of crime).
Total sentence of 4*y with a NPP of 3y.
Childhood described as chaotic & dysfunctional - behavioural problems from early adolescence with criminal offending - need for careful guidance & assistance to help reconstruct life
Special circumstances - extent of adjustment to statutory ratio - sentencing discretion - totality.
Appeal dismissed.
293

HEATLEY, Michael Allen - CCA, 2.10.2008
McClellan CJ at CL, arr & Price JJ
Citation:Heatley v R [2008] NSWCCA 226
Sentence appeal.
Manslaughter; armed robbery.
Total sentence of 18y with a NPP of 12y.
Whilst in prison, the applicant killed his cellmate & was charged with murder. He pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea in full satisfaction of count 1 on the basis of 'overwhelming medical evidence on both sides.' The armed robbery offence was committed upon the Commonwealth Bank at the corner of Liverpool and Castlereagh streets.
Totality - guideline judgment - Henry (1999) 46 NSWLR 346 - discount for voluntary disclosure of offence - Ellis (1986) 6 NSWLR 603 - delay in sentencing process - special circumstances by reason of mental illness - utilitarian value of guilty plea - whether error in taking into account previous verdicts of not guilty by reason of mental illness - whether previous verdicts of not guilty by reason of mental illness capable of disclosing continuing disobedience to the law - whether robbery could be characterised as a planned offence - whether lesser sentence warranted in law.
Appeal dismissed.
294

SEETO, Janice - CCA, 2.10.2008
EVANS, Stephen Richard
Giles JA, Rothman & Price JJ
Citation:Seeto v R; Evans v R [2008] NSWCCA 227
Conviction appeals.
Seeto: 9 x bribery of a member of the NSW Police Force (s.200(2)(a) Police Act 1990) - 21m with a NPP of 10m.
Evans: 8 x receiving a bribe while a member of the NSW Police Force (s.200(1) Police Act) -22m with a NPP of 12m.
Both appellants entered pleas of guilty. Seeto, a private investigator, paid almost $18,000 to Evans for the purpose of Evans tracking down people who had defaulted on their car loans or had given false details to the lender & had subsequently disappeared. She was working as a subcontractor for loan companies.
The sole ground of appeal for each of the appellants was that the proceedings for the offences committed in 2003 & 2004 were statute barred by reason of s.200(3) of the Police Act.
The appeals depended on the correct statutory construction of legislation promulgated in 1996 that amended the pre-existing legislation.
Appeals dismissed.
295

KATON, James Rodney - CCA, 2.10.2008
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:R v Katon [2008] NSWCCA 228
Crown appeal.
3 x sexual intercourse with child under 16; 2 x commit act of indecency on child under 16; 2 x possess child pornography; 2 x use child for pornographic purposes; + 5 matters on a Form 1.
Total sentence of 5y with a NPP of 3y.
The offences occurred between September 1998 & February 2007.
Appeal allowed: respondent sentenced to a total of 7y with a NPP of 5y.
296

BAGSHAW, Leith Gordon - CCA, 14.10.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Bagshaw v R [2008] NSWCCA 246
Application for leave to appeal under s.5F Criminal Appeal Act against a decision by Berman DCJ refusing an application for adjournment or dismissal of proceedings.
Leave to appeal refused.
297

NP -CCA, 24.9.2008
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:NP v R [2008] NSWCCA 205
Sentence appeal.
Conspiracy to import commercial quantity MDMA (ecstasy).
11y with a NPP of 7y.
The applicant was one of 6 persons convicted for their part in the importation of 170 kgs of MDMA, which arrived concealed in freezer units in a container from Malaysia in April 2003. The Crown alleged that the applicant was a middleman or intermediary who facilitated contact between the various members of the conspiracy in Sydney.
Guilty plea - assistance - discounts - part played in conspiracy - whether applicant withdrew from conspiracy before arrest - parity principles - whether other sentence warranted in law.
Appeal dismissed.
298

HEALEY, Christopher - CCA, 2.10.2008
Basten JA, Hislop & price JJ
Citation:Healey v R [2008] NSWCCA 229
Conviction appeal.
3 x homosexual intercourse with male person above age of 10 years & under age of 18 years.
Total sentence of 2y 11m with a NPP of 1y 8m.
The complainant was aged 13-14 at the time of the offences.
Whether error in direction to jury on lies evidencing consciousness of guilt where not part of prosecution case - risk of misunderstanding by jury - necessity to eliminate risk of circular reasoning.
Appeal allowed: convictions quashed. The NPP of the appellant's sentence expires on 2.12.2008. It is for the DPP to decide whether in view of the time served by the appellant & the previous trials whether he should be put on trial again.
299

IRANI, Nekzad - CCA, 18.9.2008 Reported:188 A Crim R 125
McClellan CJ at CL, Hoeben & Harrison JJ
Citation:Irani v R [2008] NSWCCA 217
Conviction appeal.
4 x supply cocaine.
Total sentence of 5y with a NPP of 3*y.
The Crown case was that the appellant was involved in 4 separate supplies of cocaine to an undercover informant. The transactions were recorded on a listening device. The Crown relied upon the evidence of a police officer who had prepared transcripts from the recordings. The trial judge permitted the police officer to give evidence that he identified the voice of the appellant as being one of the voices on the listening device recordings. On appeal, the appellant challenged this ruling, arguing that the evidence of the police officer had little probative value because the same exercise that he carried out could have been carried out by the jury.
Ad hoc expert - identification of voice on audio tapes - whether error in admitting evidence - s.137 Evidence Act 1995 - meaning of "probative value".
Appeal dismissed.
300

SCHULTZ, Ronald David - CCA, 4.9.2008
McClellan CJ at CL, Barr & Price JJ
Citation:R v Schultz [2008] NSWCCA 199
Crown appeal.
Social Security fraud (impose upon Cth; defraud Cth; dishonestly obtain financial advantage from Cth entity).
Total sentence of 2y 3m & to be released to parole after serving 6m upon entering into GBB
The respondent was in receipt of age pension payments made in the name of his mother, who had lodged an authority with the Department of Social Security in 1978, which had the effect of appointing the respondent as her 'payment nominee'.  In accordance with that authority, her age pension payments were thereafter paid into a bank account controlled by the respondent. The respondent's mother died in 1982, however, payment of her pension continued to be made for many years.
In order to make reparation for money received, respondent sold his house - repaid all amounts owing - marriage subsequently failed - significant health issues - depression - evidence of gambling problem.
Challenge to direction that offender be released on recognizance - continuous course of conduct - whether period of imprisonment before recognizance release manifestly inadequate - relationship between head sentence & period provided in recognizance release order.
Appeal dismissed, but technical error in recognizance corrected.
301

FIELDSEND, Geoffrey Shaun - CCA, 26.9.2008
McClellan CJ at CL, Barr & Price JJ
Citation:Fieldsend v R [2008] NSWCCA 202
Sentence appeal.
1 x aggravated assault with intent to take/drive motor vehicle (armed with offensive weapon); 1 x maliciously damage property with intent to endanger life; 2 x robbery armed with offensive weapon (machete); + s.166 offences (2 x assault; knowingly contravene AVO; being armed with intent to commit indictable offence intimidation with intent to cause physical/mental harm).
Total sentence of 10y 3m with a NPP of 8*y.
The applicant was subject to an interim AVO for the protection of his partner, Ms Lowe. On the morning of 6.12.2006, the applicant & Ms Lowe prepared to attend a hearing to determine final orders. The applicant pushed Ms Lowe onto the bed & slapped her several times, took out a pocket knife, opened it & pushed it towards her in a stabbing motion. He told her not to do anything stupid at court or he would stab someone. That afternoon, Ms Lowe went to visit a male friend. When she arrived, the applicant threatened Ms Lowe & the friend with a knife. The applicant kicked Ms Lowe to the ground & drove away with their 7 month old child in the car. On the evening of 9.12.2006, the applicant set fire to the veranda of Ms Kauter's residence, where a number of people were present, including Ms Lowe. On 18.12.2006, the applicant, wearing a disguise, entered a service station with another man & threatened the attendant with a machete. They stole more than $600 & a quantity of cigarettes. On 19.12.2006, the applicant, another man & 2 youths entered a hotel in Dubbo, disguised & armed with baseball bats & a machete. The applicant herded the patrons together whilst brandishing the machete. A till was stolen but later recovered intact.
Part played in robbery - youth - accumulation of sentences - whether overall sentence excessive.
Appeal allowed: resentenced to a total of 10y with a NPP of 7y.
302

CHALLIS, Michael David - CCA, 18.9.2008 Reported:188 A Crim R 154
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:Challis v R [2008] NSWCCA 210
Sentence appeal.
1 x steal; 2 x malicious damage; + Form 1 (malicious damage).
Total sentence of 6y with a NPP of 4y.
Use of sentencing statistics - aggravating factors - prior criminal record - whether sentencing judge erred in use made of prior criminal record - application of s.44 Crimes (Sentencing Procedure) Act 1999 - whether some lesser sentence warranted in law.
Appeal dismissed.
303

HUYNH, Huy Bao - CCA, 22.9.2008 Reported:188 A Crim R 287
Allsop P, Johnson & Price JJ
Citation:Huynh v R [2008] NSWCCA 216
Sentence appeal.
1 x supply methylamphetamine; 9 x deal with proceeds of crime.
Total sentence of 4y with a NPP of 3y 3m.
Police executed a search warrant at the applicant's home where they found 29.42g of methylamphetamines & supply paraphernalia. Personal use and supply to friends; Offence below mid-range; Proceeds of crime offences related to $3,505,256.09 over 5 months.
Findings: drugs for personal use & for social supply - offence below mid-range.
Aged 29 - guilty plea - significant criminal record including drug offences - prospects of rehabilitation.
Whether total sentence failed to reflect finding of special circumstances - whether sentence for drug offence manifestly excessive.
Appeal dismissed.
304

HORAN, Zethan - NSWSC, Studdert J, 18.9.2008
Citation:R v Horan [2008] NSWSC 990
Remarks on Sentence.
Manslaughter; + Form 1 offences.
The offender was involved in a plan to steal a safe from the deceased's house. The safe was believed to contain a large sum of money & documents relating to a fraud. The offender & a co-offender made a visit prior to the night of the planned robbery in order to survey the house. On the night of the planned robbery, the offender acted as 'lookout' while another co-offender entered the house. The deceased, who was in bed at the time, was bashed to death by that co-offender.
Aged 20 - joint criminal enterprise - seeking financial gain - no prior convictions - genuine remorse - favourable prospects of rehabilitation - undertaking to give assistance - onerous custodial conditions.
Sentence: 6y with a NPP of 4y.
305

MAY, Scott Alan - NSWSC, Rothman J, 19.9.2008
Citation:R v May (No.7) [2008] NSWSC 971
Remarks on Sentence.
Murder.
The offender arranged for the killing of a fellow drug dealer, following a dispute over some drug dealing. The offender lured the deceased to a parkland area on the pretext of a meeting. While there, the deceased was shot by the co-offender.
Aged 22 - drug-related criminal history - breach of conditional liberty.
Premeditated - intent to kill - well above mid-range seriousness.
Sentence: 36y with a NPP of 27y.
306

PENINTON, Lisa Michelle - CCA, 26.9.2008
DUNNINGHAM, Stephen John
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:Peninton v R; Dunningham v R [2008] NSWCCA 221
Sentence appeals.
Peninton: Aggravated enter house with intent to commit AOABH; AOABH - 3*y with a NPP of 2y.
Dunningham: Aggravated enter house with intent to commit AOABH; AOABH; malicious wounding - 3*y with a NPP of 2y.
Dunningham forced entry into a neighbour's house & committed a sustained assault on the male occupant; Peninton entered the house & head-butted the sleeping female occupant. Dunningham also assaulted the female occupant.
No planning - below mid-range - criminal records include violence - depression - substance abuse.
Whether sentence outside range - whether insufficient weight given to mitigating factors.
Whether identical sentence imposed on both offenders breached principle of parity.
Appeals dismissed.
307

MARTIN, Chay Aric - CCA, 2.10.2008
Giles JA, Rothman & McCallum J
Citation:Martin v R [2008] NSWCCA 225
Sentence appeal.
Malicious wounding; robbery in company.
4y with a NPP of 2y.
The offences were committed in the early hours of the morning. The applicant & his co-offender, BD, who was a juvenile, had been drinking at a bar. They left shortly before 2am & together with 3 or 4 other males assaulted a man who was walking along a nearby street. The victim was punched & kicked & left lying on the footpath. He suffered head injuries, including severe bruising to both sides of the head, a broken nose & a black eye. He also suffered a laceration to one side of the head that required 11 stitches & a laceration to his lip that required 3 stitches. The applicant & BD returned to the bar & drank for a couple more hours. They then left the bar with another male & approached 3 men walking through Hyde Park. One member of the applicant's group punched one of the men, who started to run away with his companions. The applicant & BD chased after them & caught one of the men. The applicant held this man on the ground while BD kicked & punched him around the head & upper body. BD then searched the man's pockets. At that stage, the applicant released his hold on the man & ran off, not taking anything from the man. BD took the man's wallet & a digital camera. The man suffered various injuries as a result of the attack, including small lacerations & bruising to the face & body.
Partial accumulation - co-offender aged 16 - disparity - psychological condition.
Appeal dismissed.
308

RHB -CCA, 14.10.2008 Reported:189 A Crim R 178
Basten JA, Hislop & Price JJ
Citation:Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236
Crown appeal; and
Sentence appeal.
Manslaughter - 6y with a NPP of 4*.
Murder - 30y with a NPP of 20y (cumulative upon the above NPP).
Total sentence: 34*y with a NPP of 24*y.
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.
See also: R v RHB [2007] NSWSC 1466.
Error in sentencing - inconsistencies in reasons - setting of sentence for murder of young child - calculation of NPP & balance of sentence on parole - accumulation - totality - whether sentence proportionate to overall criminality -comparison with life imprisonment - objective seriousness - standard NPP.
Crown appeal dismissed.
Sentence appeal allowed on murder count: resentenced on that count to 26y 8m with a NPP of 20y (cumulative upon the NPP for the manslaughter offence).
309

WILSON, Darren Brian - CCA, 20.10.2008
Beazley JA, Hislop & Price JJ
Citation:Wilson v R [2008] NSWCCA 245
Sentence appeal.
Robbery whilst armed with offensive weapon (shortened non-functioning shotgun); take & drive conveyance; + Form 1 (being carried in stolen MV); + charge of being an unlicensed driver.
Total sentence of 6y 9m with a NPP of 5y.
Guilty plea - 25% discount.
Whether error in not adjusting aggregate NPP & parole period sufficiently for special circumstances after indicating special circumstances - co-offender - disparity - whether error in imposing a parole order and parole conditions - accumulation - totality - whether sentence manifestly excessive.
Appeal allowed: resentenced to 6*y with a NPP of 4*y.
310

HELLER, Victoria - CCA, 20.10.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Heller v R [2008] NSWCCA 241
Sentence appeal.
7 x obtain money by deception; 3 x do an act intending to pervert the course of justice; + 7 offences on a Form 1.
Total sentence of 8y with a NPP of 5*y.
The applicant was employed by a company as a financial officer for 4 years. She was responsible for preparing the company's finances, payroll, payables, receivables & general accounting requirements. She also performed the role of office administration manager & assistant to the chief executive officer. During the course of this employment she obtained a total sum of $434,934.37 by deception. None of this money has been repaid. The applicant left the company shortly before she was to be sentenced for offences she committed during previous employment. Her offending was discovered by the financial officer who replaced her soon after she left.
Principle of totality - whether sentences manifestly excessive.
Appeal dismissed.
311

KR -NSWSC, Price J, 19.9.2008
PR
Citation:R v KR & PR [2008] NSWSC 970
Remarks on Sentence.
Manslaughter by unlawful & dangerous act.
The offenders were involved in a group attack upon 2 brothers after an earlier altercation. The brothers were lured to a car park where one of the brothers was fatally stabbed by a co-offender.
Extended joint criminal enterprise - agreement to cause injury less than GBH - became aware of knife during assault.
Plea of guilty - remorse - priors - good prospects of rehabilitation - assistance in unrelated matter - onerous custodial conditions.
Sentences:KR: 5y 2m with a NPP of 3y 7m; PR: 5y 2m with a NPP of 3y 7m.
312

CARROLL, Joshua John - CCA, 19.9.2008 Reported:188 A Crim R 253
McClellan CJ at CL, Simpson & Hislop JJ
Citation:R v Carroll [2008] NSWCCA 218
Crown appeal.
Manslaughter.
3y with NPP of 18m to be served by way of PD.
The victim, who was significantly affected by alcohol, threatened to get a gun & shoot the offender & friends. The offender head-butted the victim to the face, whereupon the victim fell & hit the back of his head with some force. The offender told his brother to call an ambulance.
Aged 20 - guilty plea - clinically significant depression & anxiety - under treatment of clinical psychologist - special circumstances.
Whether sentence manifestly inadequate - whether error in assessment of objective seriousness of offence.
Appeal allowed: respondent resentenced to full-time custody comprising 3y with a NPP of 18m.
313

MENCARIOUS, Ashraf - CCA, 14.10.2008
McClellan CJ at CL, James & Fullerton JJ
Citation:Mencarious v R [2008] NSWCCA 237
Conviction and sentence appeal.
Murder.
26y 8m with a NPP of 20y.
The appellant was found guilty of murdering his wife. Although he had inflicted significant other injuries on her, the Crown case was that he had killed her by asphyxiation.
Born in Egypt - came to Australia as a child - first marriage failed - 2 children from that marriage - marriage to 2nd wife (deceased) 'arranged' by parents - baby boy from that marriage - no sign of remorse or contrition following killing of wife.
Whether necessary for trial judge to detail defence case in summing-up - whether trial judge misstated evidence as to cause of death - whether error in not leaving self-defence & provocation to jury - whether failure to properly direct jury in relation to 'accident'- whether error in setting standard NPP.
Appeal dismissed.
314

CHANDLER, Tully Light - CCA, 20.10.2008
Beazley JA, Hislop & Price JJ
Citation:Chandler v R [2008] NSWCCA 240
Sentence appeal.
12 x B&E and commit serious indictable offence (larceny); 2 x B&E with intent to commit serious indictable offence (larceny); + 7 matters on a Form 1.
Total sentence of 5*y with a NPP of 3*y.
Applicant represented self on appeal.
Appeal dismissed.
315

CAUSEVIC, Damir - CCA, 14.10.2008 Reported:190 A Crim R 416
McClellan CJ at CL, Barr & Price JJ
Citation:Causevic v R [2008] NSWCCA 238
Conviction appeal.
Malicious wounding with intent to inflict GBH.
The victim & the appellant had earlier argued about noise emanating from the appellant's room. They subsequently agreed to meet on the landing to sort out the problem. The victim waited, but the appellant failed to appear. The victim then turned around & started down the stairs towards his room, when the appellant suddenly appeared & attacked him. The victim was stabbed with a knife in his neck, left chest & left elbow. He had a deep stab wound to his neck below the left ear. There was no doubt that the appellant had inflicted these wounds. The principal issues were whether or not the appellant had intended to harm the victim & whether he had acted in self-defence. A subsidiary issue was whether, if acting in self-defence, he had used excessive force. There was also a question as to whether the victim was also carrying a knife.
The appellant's sole argument on appeal rested on the Crown prosecutor's final address to the jury. There was no complaint by defence counsel at the trial about the prosecutor's address. In an affidavit read without objection on the appeal, trial counsel said that he 'failed to raise any objection at trial to the Crown Prosecutor's closing address because at the time I failed to recognise his submissions as being, in part, the pressing of his own opinions on the jury rather than argument on the evidence'.
Whether Crown prosecutor's final address gave rise to miscarriage of justice - whether prosecutor's comments improper & prejudicial - whether prosecutor's submission not based on evidence - whether prosecutor conveyed personal opinion - whether prosecutor encouraged impermissible line of reasoning - whether prosecutor belittled & disparaged defence case.
Rule 4 considered - R v Saffron (1989) 17 NSWLR 395 at 434; R v Ita (2003) 139 A Crim R 340 at [90]; Tekely & Nagle v R [2007] NSWCCA 75.
Appeal dismissed.
316

BAGHDADI, Abdul - CCA, 14.10.2008
McClellan CJ at CL, Hulme & Hidden JJ.
Citation:R v Baghdadi [2008] NSWCCA 239
Crown appeal.
2 x armed robbery; aggravated carjacking; robbery armed with dangerous weapon; specially aggravated BE&S.
Total sentence of 10y 9m with a NPP of 6y 8m.
Aged 19 at time of offending - early guilty plea - 25% discount - first time in custody - partial accumulation of sentences - need for longer NPP to deal with illicit substance abuse - finding of special circumstances.
Whether sentences manifestly inadequate & fail to reflect objective criminality - whether sentencing judge improperly departed from guideline judgment for armed robbery: Henry -whether aggregate sentence fails to reflect totality of criminality: Pearce.
Appeal allowed: respondent resentenced to a total of 13y with a NPP of 9y. Starting dates adjusted.
317

NEWBOLD, Adam - NSWSC, Fullerton J, 10.9.2008
Citation:R v Newbold [2008] NSWSC 942
Remarks on Sentence.
Conceal serious offence (murder); AOABH.
The accused pushed the victim to the ground during a fight on a street at night. The victim was then run over by the co-offender & killed. The accused left the scene with the co-offender.
No prior knowledge of intent of co-offender - feared co-offender.
Aged 24 - guilty plea - no relevant criminal record - good character - undertaking to give assistance - 400 days' pre-sentence custody facing murder trial - loss of family & employment -lowest order of objective criminality - remorse.
No conviction recorded.
318

LUKENIC, Mirojub - CCA, 28.10.2008
McClellan CJ at CL, Simpson & McCallum JJ
Citation:Lukenic v R [2008] NSWCCA 250
Sentence appeal.
3 x receive stolen property; 1 x dispose of stolen property; 1 x possess property stolen outside NSW; + 3 similar offences taken into account & aid & abet having custody of false instrument (driver's licence).
Total sentence of 2y 11m with a NPP of 1y 9m.
The applicant was the principal of a criminal enterprise dealing in stolen property. The stolen property included jewellery & other items the proceeds of burglaries & thefts from retail stores. A co-accused was found to be in possession of a false driver's licence. The enterprise was centred upon a coffee shop of which the applicant was the proprietor.
Failure to give proper allowance for pre-sentence custody.
Appeal allowed: commencement dates adjusted.
319

NEAL, Robert Walter - CCA, 8.9.2008
Allsop P, Johnson & Price JJ
Citation:Neal v R [2008] NSWCCA 212
Sentence appeal.
AOABH; B&E and commit serious indictable offence (AOABH); induce witness to withhold evidence; + Form 1 (contravene AVO).
Total sentence of 6y with a NPP of 4*y.
The applicant had been out & returned home intoxicated. He assaulted his partner during an argument. She escaped & fled to her 60 year old father's house, which was at the rear of her home. The applicant followed. He then broke & entered the front door of that house & attacked the father.
The applicant later sent a letter & other documents to his partner with the intention of persuading her to withhold evidence in judicial proceedings in which she was to be called as a witness.
Aged 33 - guilty plea - whether sentence manifestly excessive.
Appeal dismissed.
320

SMITH, James Duncan - CCA, 30.10.2008 Reported:190 A Crim R 8
McClellan CJ at CL, Blanch & Hislop JJ
Citation:R v Smith [2008] NSWCCA 247
s.5F appeal by Crown against ruling by trial judge that evidence of tendency & coincidence sought to be tendered was not admissible under ss.97 & 98 Evidence Act 1995.
The Crown case is that the complainant was touched in a sexual way by the respondent over a number of years, the first occasion being when the complainant was aged 7 years.
At trial, the Crown sought to tender tendency evidence with respect to the respondent being previously charged & convicted of sexual offences against another child. The NSWDC found the surrounding circumstances were more or less identical but actual allegations of indecency were not sufficiently similar & therefore ruled that evidence of tendency was not admissible under ss. 97 & 98 of the Evidence Act 1995.
Evidence clearly of significant probative value & any potential prejudice to respondent matter for trial judge to determine in light of evidence as it emerged at trial - elimination of tendency evidence would substantially weaken prosecution case as only remaining evidence would be that of complainant whose credibility would no doubt be criticised.
Appeal allowed: Ruling made by trial judge vacated.
321

NGUYEN, Duc Quang - CCA, 30.10.2008 Reported:189 A Crim R 454
McClellan CJ at CL, Hidden & Fullerton JJ
Citation:Nguyen v R [2008] NSWCCA 219
Sentence appeal.
B & E with intent to commit serious indictable offence in circumstance of aggravation (inflict ABH).
5y with a NPP of 3y 9m.
The applicant gained entry to a unit by climbing onto the 1st floor balcony & slashing a sliding flyscreen door to a bedroom. He was disturbed while inside a wardrobe in the bedroom by the occupier of the unit, who was at home with his wife & son at the time. The applicant bit the man on the arm while being restrained by him & his son. The occupier suffered bruising & broken skin.
Diagnosed with schizophrenia - connection between mental illness & offending - finding of future risk to community - whether sentence manifestly excessive.
Appeal dismissed.
322

PACE, Daniel Simon - CCA, 30.10.2008
Bell JA, Latham & Fullerton JJ
Citation:R v Pace [2008] NSWCCA 233
Crown appeal.
Offences under s.94 Crimes Act 1900 (2 completed offences, 2 attempted offences).
Total sentence of 3y 1m with a NPP of 13m.
Whether sentence manifestly inadequate - restraint - significance of psychiatric illness.
Appeal dismissed.
323

BELLCHAMBERS, Dennis Arthur - CCA, 14.10.2008 Reported:189 A Crim R298
Allsop P, Johnson & Price JJ
Citation:Bellchambers v R [2008] NSWCCA 235
Conviction appeal.
Maliciously inflict GBH with intent to do GBH.
13y with a NPP of 10y.
Intent to cause GBH - whether inference can be drawn from seriousness of wounds - direction on intoxication - whether misdirection - capacity to form specific intent.
Appeal allowed: new trial ordered.
324

LEDDIN, Shane Joseph - CCA, 20.10.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Leddin v R [2008] NSWCCA 242
Sentence appeal.
1 x detain with intent to obtain advantage (sexual intercourse) & at the time occasion ABH; 3 x sexual intercourse without consent & at the time maliciously inflict ABH.
Total sentence of 16y with a NPP of 12y.
The applicant pleaded guilty to the rape of a young woman who was dragged off the street & attacked in the grounds of Kildare Catholic College. He threatened her with death if she told anyone.
On parole at the time - extensive criminal history, including sex & violent offences - drug & alcohol abuse.
Setting of NPP - failure to give reasons for setting FT - whether sentence manifestly excessive.
Appeal allowed in part, however, the overall sentence remained unchanged.
325

HALLS, Mark Anthony - CCA, 3.11.2008
Hodgson JA, Kirby & Hislop JJ
Citation:R v Halls [2008] NSWCCA 251
Crown appeal.
1 x malicious damage to property by fire.
4y with a NPP of 2y.
The offence related to the destruction of a NSW Department of Housing unit in which the respondent lived.
Following arrest, while awaiting trial, the prison authorities recognised the respondent's intellectual disability & arrangements were made for his transfer to the Long Bay Disability Unit. He has made good progress in that unit & has participated in various short courses & has been accepted into the criminal justice programme of the Department of Disability and Home Care, which also involves 24 hour supervised supported accommodation upon his release.
Aged 45 at time of sentence - guilty plea - Intellectual disability - does not know biological father - suffered physical abuse at hands of step-father from very young age - illiterate - expelled from school in Year 7 - has never been employed - long criminal history - previous arson type offences.
Whether sentence manifestly inadequate - s.21A(2)(g) - whether damage "substantial" - whether criminal record a matter of aggravation.
Appeal dismissed.
326

CITTADINI, Alexander - CCA, 5.11.2008 Reported:189 A Crim R 492
McClellan CJ at CL, Simpson & McCallum JJ
Citation:R v Cittadini [2008] NSWCCA 256
Judgment.
s.5F appeal by Crown against a ruling excluding certain evidence the Crown proposed to tender in a criminal prosecution.
Manslaughter by criminal negligence.
Admissibility of evidence - whether tendency - whether exclusion substantially weakens prosecution case.
Decision: Ruling that the evidence was tendency evidence vacated.
327

MURRAY, Tony Mark - NSWSC, Hislop J, 4.11.2008
Citation:DPP (NSW) v Murray [2008] NSWSC 1161
Judgment.
Crown appeal against permanent stay of proceedings.
AOABH; knowingly contravene AVO.
The above charges were heard together at the Blacktown LC. At the conclusion of the hearing, the magistrate was satisfied beyond reasonable doubt that both offences had been established. He adjourned the matter to a later date. On that later date, he convicted the defendant of contravening the AVO & sentenced him to a term of imprisonment. He permanently stayed proceedings on the assault charge, concluding that it was an appropriate way to deal with the situation because, in his opinion, the 2 charges arose out of a single event.
Whether error in concluding that the charge relating to the assault should be stayed.
Appeal allowed: Order for permanent stay of proceedings set aside. Matter remitted to Blacktown LC to be dealt with according to law.
328

WOOD, Stuart Leslie - CCA, 5.11.2008
McClellan CJ at CL, Nettle AJA, Simpson J
Citation:Wood v R [2008] NSWCCA 257
Sentence appeal.
Supply commercial quantity MDMA (ecstasy); supply indictable quantity MDMA; supply indictable quantity ketamine; + offence taken into account (supply small amount methylamphetamine).
Total of 6y with a NPP of 3*y.
The applicant met an undercover police operative at a hotel & agreed to supply 1,000 ecstasy tablets. Almost immediately thereafter handed the operative a bag containing 999 tablets of the drug, together with 0.39 grams of methylamphetamine, for which he made no charge. Almost 2 weeks later, the operative contacted the applicant & asked him to supply another 1,000 tablets. The applicant agreed, but said that he could only supply 400 at that time & would attempt to obtain the remaining 600. No actual supply took place & no money changed hands. Sixteen days later, the operative contacted the applicant, with a request for 1,000 tablets. Later that day, the applicant supplied 851 tablets of ketamine (343.2 grams) & was paid $16,500.
Aged 30 at time of offending - pleas of guilty - no priors.
Objective seriousness of offence - whether insufficient weight given to subjective circumstances - whether sentence manifestly excessive.
Appeal allowed: sentence imposed on count 1 quashed; resentenced on that count, resulting in a total of 5*y with a NPP of 3y; sentences imposed on counts 2&3 confirmed.
329

JM -CCA, 5.11.2008
McClellan CJ at CL, Nettle AJA, Simpson J
Citation:JM v R [2008] NSWCCA 254
Sentence appeal.
3 x use false instrument; 2 x dispose of stolen property; + two Form 1 documents containing 46 offences.
Total sentence of 7y with a NPP of 4y 3m.
The offences were committed as part of a sophisticated criminal enterprise, in which the applicant & several other offenders were involved. They used companies or registered business names to establish apparent business enterprises. They used false names & false documents as identification in order to establish bank accounts. Using false documents of identification, they leased industrial premises & purported to embark upon a business. They identified 'victim' or 'target' companies. They conducted an initial, apparently legitimate, transaction, in which they established business credibility. They then obtained substantial items of property or equipment on credit, including forklift trucks. On one occasion, they obtained a large consignment of raw coffee beans. Once this property had been delivered to their leased premises, the offenders removed the property & vacated the premises, without paying rent. They then disposed of the property.
Guilty pleas - offending motivated by gambling addiction - priors offences of dishonesty, make false instrument, obtain money by deception.
Discount for past assistance - no discount for offered future assistance - fresh evidence available in relation to assistance - whether allowance should have been made for future assistance - magnitude of offending.
Appeal dismissed.
330

EID, David - CCA, 5.11.2008
McClellan CJ at CL, Simpson & McCallum JJ
Citation:Eid v R [2008] NSWCCA 255
Sentence appeal.
Armed robbery; knowingly deal in proceeds of crime; conduct dealings to avoid reporting requirements; + two further offences on a Form 1.
Total sentence of 10y 4m with a NPP of 6*y.
The offences were all part of a chain of criminality that began with the armed robbery, which was committed in company with another man, during which 2 Chubb security officers were accosted as they were transferring bags containing a large sum of cash from a business at Mascot into an armoured van. After a security officer placed the bags into the van & secured the door, the applicant pointed a black revolver at his chest & demanded that the money be handed to him. The applicant gave the security officers 2 bags, into which they placed satchels containing the money. The applicant took the bags & drove off, with the other man as passenger. The amount of money stolen amounted to almost $2,000,000. Five days later, the applicant purchased a Lexus motor vehicle for which he paid $27,500 in cash. On the same day, he purchased a BMW motor vehicle, for the sum of $92,490 for which he paid by way of a trade-in, together with $87,750 in cash. Sixteen days later, in company with 2 relatives, he purchased at auction another BMW, bidding $79,979.70. He tendered this sum in cash, but was presented with an Austrac currency declaration, requiring disclosure of the source of the cash. The applicant & his relatives left & purchased 8 separate bank cheques, 7 in the sum of $9,900 & one in the sum of $2,700.
Aged 29 - guilty pleas - married - has 2 children - minor insignificant criminal record - depression - heroin addiction -attempts to overcome addiction.
Whether presence of firearm treated as aggravating factor - whether failure to sentence in accordance with s.44(1) Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Appeal dismissed, however, sentence on count 1 reformulated.
331

CESAN, Rafael - HCA, 6.11.2008 - Reported:236 CLR 358; 83 ALJR 43
MAS RIVADAVIA, Ruben
Citation:Cesan v The Queen; Rivadavia [2008] HCA 52
On appeal from the NSWCCA where appeals against convictions & sentences were dismissed: see Cesan v Director of Public Prosecutions (Cth); Mas Rivadavia v Director of Public Prosecutions (Cth) NSWCCA 273.
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 of 15y with a NPP of 10y.
Trial judge asleep for periods during trial.
Whether miscarriage of justice under s.6(1) Criminal Appeal Act 1912 (NSW) - whether consequences of conduct of trial judge a departure from proper conduct of trial - whether trial judge exercised sufficient supervision & control over trial process to ensure jury paid attention to evidence - whether supervision & control over trial so indispensable to trial by jury that failure itself gives rise to miscarriage of justice - whether trial judge's conduct distracted jury from attending to evidence - whether distraction of jury resulted in miscarriage of justice - whether appearance of unfairness sufficient to constitute miscarriage of justice - duties of trial judge & counsel in trial by jury.
Proviso - whether no substantial miscarriage of justice actually occurred - demonstration to appellate court from record of trial that accused guilty beyond reasonable doubt necessary but not sufficient condition for application of proviso - natural limitations of appellate court acting on record of trial - relevance of letter sent to trial judge by accused, after jury returned guilty verdict, but before sentence passed, to determining whether there was no substantial miscarriage of justice.
Appeals allowed: new trial ordered for each appellant.
332

HALMI, Nicolae - CCA, 11.11.2008
Campbell JA, Grove & Johnson JJ
Citation: Halmi v R [2008] NSWCCA 259
Conviction appeal.
Supply large commercial quantity heroin.
3*y with a NPP of 2*y.
The appellant drove his co-offender to an area where the supply was to occur. The Crown case was that both engaged in a joint criminal enterprise to supply heroin. The fingerprints of the appellant & the co-offender were found on plastic wrapping enclosing the heroin.
Whether verdict unreasonable and not supported by the evidence - whether error in directions to jury.
Appeal dismissed.
333

CROAKER, Geoffrey Matthew - CCA, 7.11.2008 Reported:190 A Crim R 15
Bell JA, Latham & Fullerton JJ
Citation:Croaker v R [2008] NSWCCA 232
Sentence appeal.
1 x aggravated BE & commit serious indictable offence (AOABH); + Form 1 (2 x malicious damage).
3y with a NPP of 2y 3m.
The applicant broke into his former de facto partner's home by forcing the front door off its hinges. When the complainant ran from her bedroom towards the lounge room to call the police, the applicant pushed her & she fell backwards onto the lounge suite. The applicant lifted a steel dining chair above his head & threw it at her & it struck the upper part of her body. She stood up & ran towards the front door. He picked up the chair & threw it at her again but it missed her & landed on a coffee table & broke a small window near the door. The complainant ran outside. Her neighbour had come out of his house to see what was going on & the applicant abused & pushed him, then he called the police on his mobile phone, telling them to: 'hurry and get up here, I could murder someone'. The police attended a short while later & found the applicant standing in the middle of the road. He was arrested & taken to the Orange Police Station. He admitted kicking open the door, but denied throwing the chair at the complainant.
Aged 30 - guilty plea - drug/alcohol abuse - priors.
De Simone error.
Appeal allowed: applicant resentenced to 2y 8m with a NPP of 2y.
334

LU, Hoang Quang - CCA, 11.11.2008 Reported:190 A Crim R 109
Beazley JA, Hislop & Harrison JJ
Citation:Lu v R [2008] NSWCCA 261
Sentence appeal.
Manslaughter (by unlawful & dangerous act).
9y 4m with a NPP of 6y 2m.
The sentence for manslaughter was set to commence at the expiration of the NPP for a supply prohibited drug offence, for which the applicant was already serving a sentence of 4y 8m with a NPP of 3y 7m.
The applicant & his friend attacked the deceased in a crowded city street, during which the applicant's friend produced a knife & stabbed the deceased. Their purpose in attacking the deceased had been to assault the deceased in retaliation for an alleged attack on the applicant's girlfriend a month before.
The applicant was sentenced on the basis that he intended that he & his friend would assault the victim & occasion ABH & that the applicant was not aware that his friend was in possession of a knife, which he would use to fatally stab the deceased.
Guilty plea - 15% discount - lengthy criminal history - poor prospects of rehabilitation - contrition/remorse.
Whether sentence excessive - whether error in failure to partially accumulate sentence.
Appeal dismissed.
335

LY, Vi Nang - CCA, 13.11.2008
Beazley JA, Hislop & Harrison JJ
Citation:Ly v R [2008] NSWCCA 262
Sentence appeal.
Supply large commercial quantity methylamphetamine.
12y with a NPP of 8y.
Police stopped & searched the applicant, who was found to be in possession of $34,550 in cash & 9 active mobile phones. They then executed a search warrant at his home & found 4 plastic bags containing a substance that appeared to be methylamphetamine; a further 19 active mobile phones; 2 sets of scales & further amounts of cash totalling $296,600. Subsequent analysis confirmed that the substance in the plastic bags was methylamphetamine with a total weight of 1101.22 grams & an estimated street value of approx $550,000. The purity of the bulk of the drug was 50.5%, however, one of the smaller amounts of 28.2 grams had a purity of 74% & the other smaller amount of 68 grams had a purity of 53%. Taxation documents found at the applicant's home showed taxable income of between $10,847 & $15,239 for 3 years from 2003-2006. He also received $533 in fortnightly payments from Centrelink. He had been employed part time as a delivery driver since 2002. Further inquiries revealed he & his wife had joint bank accounts with a balance of approximately $418,000.
Aged 40 - guilty plea - refugee from Vietnam - Australian citizenship - regular employment - gambling addiction - significant drug habit - ceased taking drugs in prison - maintains intention to stay off drugs - psychologist reports a need for ongoing support upon release.
Whether error in finding that offence falls within mid-range of seriousness.
Appeal dismissed.
336

LYNN, Scott David - NSWSC, Hidden J. 7.11.2008
Citation:R v Lynn [2008] NSWSC 1122
Remarks on Sentence.
Manslaughter.
Following an argument in a mall, the offender stabbed the deceased. Both were intoxicated at the time. About 3 or 4 weeks prior to this, they were in a fistfight. Friends of the deceased had broken up that fight.
Plea of guilty in satisfaction of murder indictment - excessive self-defence.
Aged 29 at time of offending - lengthy criminal history involving offences of violence, dishonesty, drug & driving - first dealt with in Children's Court in 1990's - previous terms of imprisonment.
Sentence: 7y with a NPP of 4*y.
337

JUSTINS, Shirley - NSWSC, Howie J, 12.11.2008
Citation:R v Justins [2008] NSWSC 1194
Remarks on Sentence.
Manslaughter.
The offender was found guilty of manslaughter following the death of her long-time de facto partner. The deceased, who was suffering from Alzheimer's disease, died as a result of ingesting a lethal dose of Menbutal. Ms Jenning, a friend of the offender, had travelled to Mexico to obtain the drug & ultimately supplied it to the offender. The Crown accepted that the deceased voluntarily drank the drug that had been provided to him by the offender. The same jury who convicted the offender also convicted Ms Jenning of being an accessory before the fact to manslaughter. After the jury verdict was returned & before the sentencing proceedings commenced, Ms Jenning, who was suffering from terminal breast cancer, committed suicide by drinking the same drug.
Sentence: 2*y with a NPP of 1y 10m to be served by way of periodic detention.
338

PODESTA, Jason - NSWSC, McCallum J, 14.11.2008
Citation:R v Podesta [2008] NSWSC 1204
Remarks on Sentence.
Manslaughter.
The offender was found not guilty of a charge of murder but guilty of manslaughter. The offender stabbed his mother's boyfriend to death after hearing false claims that the boyfriend was HIV positive.
Aged 19 at time of offence - convicted of assaulting police officer in execution of his duty 2 months prior to the manslaughter - on a 2y GBB bond for the assault at the time of manslaughter offence.
Partial defence of substantial impairment by abnormality of mind.
Sentence: 8y with a NPP of 5y.
339

SGJ -CCA 11.11.2008
KU
Hodgson JA, Kirby & Hislop JJ
Citation:SCJ v R; KU v R [2008] NSWCCA 258
Sentence appeals.
Multiple sexual offences against children under the age of 10 years, including using children for pornographic purposes; + further 18 offences on a Form 1 taken into account when sentencing for count 4.
Both sentenced to a total of 22y with a NPP of 15y.
Failure to fix NPP in standard NPP offence - indictment with Form 1 - multiple victims - preferable to have Form 1 for each victim - whether sentences for child sex offences excessive - parity.
No lesser sentence warranted (s 6(3)) - need to restructure sentence.
Appeal allowed insofar as sentences restructured, however, the overall sentences remained unchanged.
340

DL -NSWSC, Hulme J, 14.11.2008
Citation:R v DL [2008] NSWSC 1199
Remarks on Sentence.
Murder.
The offender was found guilty of the stabbing murder of a 15 year old schoolgirl, who was stabbed about 48 times. A possible motive was that the schoolgirl had rejected his advances. As she lay dying, the schoolgirl was able to give a first name, high school name & grade that matched the accused. The schoolgirl's DNA was found on the offender's clothes.
Aged 16 at time of offence.
Sentence: 22y with a NPP of 17y.
341

NGO, Truong Lam - NSWSC, Hoeben J, 13.11.2008
Citation:Ngo v United States of America & Anor [2008] NSWSC 1186
Judgment.
Nature of proceedings
On 29 April 2008 the second defendant, her Honour Magistrate O'Shane ('the Magistrate') determined under s.19 of the Extradition Act 1988 (Cth) that the plaintiff was a person eligible for surrender in relation to an extradition offence. She issued a warrant pursuant to s.19(9) ordering that the plaintiff be committed to prison to await surrender.
By summons filed 13.5.2008 the plaintiff claims an order under s.21(2)(b) of the Act quashing the orders made by the Magistrate on 29.4.2008 & directing that the plaintiff be released from custody.
Extradition Treaty - United States of America - construction - description of facts supporting extradition request - reasonable grounds for believing offence committed by person sought.
Whether sufficient information available to Court to satisfy test - whether sufficient information before Court to satisfy test in respect of ingredients of offence under United States law - whether submission with evidentiary implications can be made to Court when submission not made to Magistrate.
Decision: Orders made by Magistrate confirmed. Plaintiff to pay defendants' costs.
342

STEPHENSON, Darren Robert - CCA, 13.11.2008
Bell JA, Blanch & Hall JJ
Citation:Stephenson v R [2008] NSWCCA 266
Sentence appeal (out of time).
Manslaughter.
6y with a NPP of 3*y.
The applicant pleaded guilty to the manslaughter of his partner. His plea was accepted by the Crown in discharge of an indictment for murder.
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 celebrated 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 during the afternoon of the same day. A post-mortem examination revealed that the direct cause of death was a traumatic basal subarachnoid haemorrhage.
Whether sentence excessive.
Appeal dismissed.
343

PANTELAKIS, Con - CCA, 13.11.2008
Bell JA, Blanch & Hall JJ
Citation:R v Pantelakis [2008] NSWCCA 265
Crown appeal from an order made on 18.9.2008 by his Honour Judge G Woods QC adjourning sentence proceedings to 6.2.2009 & granting the respondent conditional bail. The order was made pursuant to s.11 of the Crimes (Sentencing Procedure) Act 1999.
The respondent stood for sentence on a charge of aggravated robbery, the circumstances of aggravation being the use of corporal violence. He asked that a further offence of aggravated robbery be taken into account.
s.11 adjournment - respondent suffering from psychiatric illness - period of full-time custody served before the order.
Aged 33 & on parole at time of offending - drug abuse - history of mental illness - diagnosed as schizophrenic - suffers from paranoia, delusions, hallucinations - receiving ongoing treatment.
Appeal dismissed.
344

WHYBROW, Jamie Samuel - CCA, 19.11.2008
Hodgson JA, Kirby & Hislop JJ
Citation:Whybrow v R [2008] NSWCCA 270
Sentence appeal.
2 x aggravated dangerous driving occasioning death; 1 x aggravated dangerous driving occasioning GBH.
Total sentence of 9y with a NPP of 5y 4m.
The applicant was involved in a head-on collision, caused by his car drifting onto the wrong side of the road & colliding head-on with an oncoming car. The driver & his wife in the other car were both killed & their 18 year old daughter, who was sitting in the backseat, was injured. The applicant suffered serious injuries as a result of the collision.
Aged 20* years - blood alcohol reading of 0.15 - prior good character.
Whether error in having regard to s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 as aggravating factor - whether error in failure to reflect extra curial punishment suffered by applicant as mitigating feature in sentencing exercise - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 7y with a NPP of 4y 2m.
345

BRAUN, Peter - CCA, 19.11.2008 Reported:190 A Crim R 497
McClellan CJ at CL, Hall & Harrison JJ
Citation:Braun v R [2008] NSWCCA 269
Sentence appeal.
Fraud type offences: (6 under s.1041G Corporations Act 2001 (Cth); 2 under s.300(1) Crimes Act 1900 (NSW)).
Total sentence of 3y 3m with a NPP of 2y 2m.
The applicant was responsible for managing approx $1.2 million on behalf of 6 investors who were advised they were investing their money into individual accounts that would then be traded by the applicant. ASIC alleged these funds were, in fact, pooled into one account & that the applicant subsequently provided reports that contained false & misleading information regarding the value of investments between July 2005 & October 2006. Almost $840,000 was lost during this period. The offences under the NSW Crimes Act were of making false instruments in relation to 'buy & sell share contract notes' provided to an investor. These charges followed allegations by ASIC that the applicant had forged the documents to conceal the true state of the funds he was managing.
Whether sentences manifestly excessive - whether error in concluding that there was no alternative to full-time custody - failure to properly take account of subjective circumstances - failure to apply Pearce.
Appeal allowed: resentenced to 2y 8m with a NPP of 1y 8m.
346

MARRACOS, Frank - CCA, 19.11.2008
Basten JA, Hislop & Price JJ
Citation:Marracos v R [2008] NSWCCA 267
Sentence appeal.
1 x possess MDMA; 1 x possess equipment and instructions for commercial manufacture of controlled drugs; 1 x possess prohibited weapon without permit (extendable baton); 1 x possess prohibited weapon without permit (self-loading pistol).
Total sentence of 5y 5m 18d with a NPP of 2y 11m 18d.
Between November 2005 & May 2006, the applicant engaged in a sophisticated international enterprise to manufacture LSD in Australia. His role was to organise & facilitate matters in Sydney. Although not the principal, he played an important part in this criminal enterprise. His involvement was motivated by greed. The loaded Colt .45-calibre semi-automatic handgun was found in the applicant's house. The extendable baton was found in his car.
Aged almost 29 years - born in Iraq - disrupted childhood - parents imprisoned when he was aged 6 - raised by grandmother to age 13 - 3 uncles executed in Iraq - fled with family & immigrated to Australia via refugee camp - struggled with symptoms of post traumatic stress disorder for much of his life - at time of offending was running a restaurant - no priors - good rehabilitation prospects.
Whether sentences manifestly excessive - failure to properly consider range of offences covered by s.7(1) Firearms Act, in determining offence was in mid range - failure to properly apply Division 1A of Part 4 Crimes (Sentencing Procedure) Act, 1999.
Appeal allowed: resentenced to a total of 3y 4m with a NPP of 1y 10m.
347

WC -CCA, 19.11.2008
McClellan CJ at CL, Hall & Harrison JJ
Citation:R v WC [2008] NSWCCA 268
Crown appeal.
5 counts of sexual assault upon child above age of 10 & under age of 16 (11 or 12).
Total FT of 2y.
Respondent already serving a lengthy sentence for other offences, including for manslaughter. The earliest date upon which respondent will be eligible for release, therefore, will be 15.7.2032.
Application of totality principle - where, at date of sentencing, offender already serving lengthy sentence for earlier convictions - whether individual sentences imposed in respect of 5 counts manifestly inadequate - whether aggregate sentence as between the 5 counts manifestly inadequate - whether total effective sentence manifestly inadequate.
Appeal dismissed.
348

TILLMAN, Kenneth Davidson - NSW SC, Johnson, 27.10.2008
Citation:State of New South Wales v Tillman [2008] NSWSC 1229
Judgment on application for interim supervision order.
Serious sex offender -
Application for extended supervision order for 5 years - application for interim supervision order pending final hearing - application for order for examination by psychiatrists.
See also Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 & Tillman v The Attorney General for the State of New South Wales [2007] NSWCA 327.
Decision: Interim supervision order and order for psychiatric examination made.
349

TILLMAN, Kenneth Davidson - NSW SC, Johnson J, 31.10.2008
Citation:R v Tillman [2008] NSWSC 1227
Judgment on application for bail.
Charges of sexual assault & related matters - alleged offences in 1995 - applicant discharged at committal proceedings in 1998 - applicant in custody between 1997 & 2008 - complainant revives complaint to police in April 2007 - applicant charged in June 2008 - applicant subject to civil detention under Crimes (Serious Sex Offenders) Act 2006 from May 2007 to October 2008 - application in October 2008 by State of NSW for extended supervision order - interim supervision order made pending final hearing - s.9D Bail Act 1978 - exceptional circumstances - applicant subject to stringent conditions under interim supervision order
Conditional bail granted.
350

VAN HALTREN, Harold Thomas - CCA, 21.11.2008 - Reported:191 A Crim R 53
Allsop P, Johnson & Price JJ
Citation:Van Haltren v R [2008] NSWCCA 274
Sentence appeal.
25 offences under the Financial Transaction Reports Act 1988 (Cth), the Bankruptcy Act 1966 (Cth) & the Criminal Code Act 1995 (Cth); one offence under s.300(2) Crimes Act 1900 (NSW); + offences taken into account (8 under s.16BA Crimes Act 1914 (Cth) & 4 NSW offences).
Total sentence of 6y with a NPP of 3y 9m
Undischarged bankrupt - identity crime - opening accounts in false names - operating accounts in false names - obtaining credit without disclosing bankruptcy - possess false Cth document with intent to use dishonestly - use false instrument - persistent course of deception over 3*y - motivated by greed.
Guilty pleas - whether insufficient discount allowed for assistance to authorities - whether inadequate discount allowed for pleas of guilty - whether sentences manifestly excessive.
Importance of general & personal deterrence - maintenance of integrity of bankruptcy laws - element of planning & sophistication in use of false identities.
Appeal dismissed.
351

MANNERS, Andrew Robert (State of NSW v) - NSWSC, Johnson J, 7.11.2008
Citation:State of New South Wales v Manners [2008] NSWSC 1242
Order sought for examination by psychiatrists.
Serious sex offender -defendant on parole - requirement under s.6(3)(b) for supporting documentation to include a psychological report assessing likelihood of committing further serious sex offences.
Whether current & specific report required for that purpose.
Decision: Order made for 2 psychiatrists to conduct separate psychiatric examinations.
352

HARRISON, Graham Loughlan (State of NSW v) - NSWSC, Johnson J, 3.11.2008
Citation:State of New South Wales v Harrison [2008] NSWSC 1240
Application for continuing detention order; application for order for examination by psychiatrists.
Serious sex offender.
Decision: Order made for 2 psychiatrists to conduct separate psychiatric examinations.
353

TOMS, Cecil Hector (State of NSW v) - NSWSC, Johnson J, 29.10.2008
Citation:State of New South Wales v Toms [2008] NSWSC 1238
Application for extended supervision order; application for order for examination by psychiatrists.
Serious sex offender.
Decision: Order made for 2 psychiatrists to conduct separate psychiatric examinations.
354

WILKINSON, Paul James - NSWSC, Johnson J, 13.10.2008
Citation:R v Wilkinson [2008] NSWSC 1237
Judgment on fitness to be tried.
Murder; arson.
Decision: Accused fit to be tried on charges of murder & arson.
355

PEACOCK, Adam - CCA, 14.11.2008 Reported:190 A Crim R 454
PEACOCK, Brendan
McClellan CJ at CL, Nettle AJA, Simpson J
Citation:Adam Peacock v R & Brendan Peacock v R [2008] NSWCCA 264
Conviction appeal (out of time).
Wound with intent to murder; detain for advantage & occasion ABH; detain for advantage.
Each sentenced to a total of 12y with a NPP of 8y.
The Crown case was that one of the victims, Baker, had been involved in a burglary of the applicants' home & that this was the motive for the commission of the offences against him and another victim by the name of Isgro. Baker gave evidence that he had in fact committed the burglary with a man named Biddle. The Crown did not call Biddle & the defence did not ask that he be called or that he be made available for cross-examination. Biddle subsequently made a statement in which he claimed not to have been involved in the burglary.
Whether miscarriage of justice - failure by Crown to call witness - admissibility of evidence - fact in issue - credibility of witness - collateral evidence rule.
Appeal dismissed.
356

BURNS, John Thomas - CCA, 19.11.2008
McClellan CJ at CL, Simpson & McCallum JJ
Citation:Burns v R [2008] NSWCCA 260
Sentence appeal.
1 x attempted armed robbery (replica pistol); 1 x aggravated carjacking.
Total sentence of 8*y with a NPP of 5*y.
The applicant sat outside a post office, contemplating a robbery. A young schoolgirl nodded at him as she walked past the post office & he took this as a signal for him to rob the post office. Armed with a replica pistol, he went inside & jumped the counter. The owner of the post office, who saw the gun & believed it to be real, told the applicant that he was not going to get any money & to get out. The applicant left. He then tried to grab a woman's car keys, but she resisted. The post office owner pulled the woman away because he was afraid for her safety. The applicant escaped in the car, but later crashed it. He was arrested the same day.
Aged 35 at sentence - diagnosed as having drug-induced psychosis with a differential diagnosis of schizophrenic illness - need for prolonged period of residential drug rehabilitation.
Accumulation - ratio between NPP & balance of term - refusal by trial judge to find special circumstances - whether sentence manifestly excessive.
Appeal allowed in part.
357

BURRELL, Bruce Allan - CCA, 21.11.2008
Allsop P, Johnson & Price JJ
Citation:Burrell v R [2008] NSWCCA 276
Application for leave to appeal against an order to lift a non-publication order.
Whether prejudice - whether necessary & appropriate to protect future jury trial - whether necessary for utility of appeal procedure - whether error in refusing to make or continue order prohibiting publication of material - where further trial speculative.
Appeal dismissed.
358

KUTSCHERA, Michael - NSWSC, Fullerton J, 28.11.2008
Citation:R v Kutschera [2008] NSWSC 1271
Remarks on Sentence.
Murder.
Following a night out with friends, the deceased was involved in an altercation & as a result was left lying on a footpath. The offender twice ran over the deceased with his Nissan Patrol 4WD.
Offence within mid-range - standard NPP.
Sentence: 26y 8m with a NPP of 20y.
359

MILLER, Troye Jarrod - NSWSC, Fullerton J, 14.11.2008
Citation:R v Miller [2008] NSWSC 1038
Judgment.
Murder.
Trial without jury.
The accused voluntarily attended a police station & admitted having killed his father the previous day.
Agreed statement of facts - reports from psychiatrists - uniformity of opinion accused suffering from mental illness - manic behaviour - increased energy - grandiose delusions - genius IQ, able to defeat Grand Masters in chess and martial arts, master level drummer - self-harmer - suffers from auditory hallucinations.
Aged 32 at time of offence - regular illicit drug use.
Decision: Not guilty by reason of mental illness.
360

CR -NSWSC, Kirby J, 28.11.2008
Citation:R v CR [2008] NSWSC 1208
Remarks on Sentence.
Manslaughter (excessive self-defence).
The accused was charged with murder. After a short trial, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
The accused stabbed a man in a toilet block. The toilet block was a well-known homosexual meeting place, although the accused denied knowing this fact. The deceased suffered 2 stab wounds, one being to his heart. The deceased suffered from Asperger's syndrome. The accused had been to several parties that night & was drinking beer with the deceased in the toilet block. The accused told a friend that the deceased had tried to grab him & rape him.
Aged 2 months short of 17 years at time of offence - in Year 11 - remorse.
Sentence: 7y with a NPP of 3*y.
361

DOUSHA, Malcolm Ross - CCA, 1.12.2008
Bell JA, Latham & Fullerton JJ
Citation:Dousha v R [2008] NSWCCA 263
Sentence appeal.
6 x assault with act of indecency with child under 16; 1 x sexual intercourse with child above 10 & under 16; 1 x sexual intercourse with child under 10.
Total sentence of 10*y with a NPP of 7y.
Aged in late-20's at time of offending - guilty plea - planned & deliberate course of conduct.
Whether sentencing regime at time of offences resulted in generally lower sentences than presently imposed - specification of NPP for offences committed prior to introduction of Crimes (Sentencing Procedure) Act 1999 - partially accumulated sentence.
Appeal allowed in part.
362

CARNEY, Todd - CCA, 25.11.2008
Bell JA, Blanc & Hall JJ
Citation:Carney v R [2008] NSWCCA 277
Sentence appeal.
1 x discharge firearm with intent to prevent lawful apprehension; 1 x unauthorised use of firearm; 1 x unauthorised possession of firearm.
Total sentence of 6y with a NPP of 3*y.
All offences were committed on the same day.
Whether error in finding that case close to worst case - whether error in finding that operation of general deterrence only slightly ameliorated in the circumstances of this case - whether sentence manifestly excessive - findings in respect of the applicant's mental illness.
Appeal dismissed.
363

ARNAOUT, Hilal - CCA, 27.11.2008 - Reported:191 A Crim R 149
Basten JA, Hislop & Price JJ
Citation:Arnaout v R [2008] NSWCCA 278
Sentence appeal.
BE&S; 2 x steal from the person; aggravated robbery; robbery; AOABH; escape lawful custody; + Form 1 offences.
Total sentence of 10y with a NPP of 7y.
The above sentence was accumulated on the balance of parole for earlier sentences.
The first offence occurred when the applicant broke into a David Jones store & stole 33 digital cameras, 19 camcorders & 3 laptop computers. Four offences involved the applicant grabbing handbags from victims. Two of the victims fell & suffered injuries. Some days later, while under guard by prison officers, the applicant was being treated for injuries at hospital. While using the toilet, he wrapped a hospital gown around his hand & smashed out a window. He stood on the window ledge, took hold of a shard of glass & made stabbing motions towards the officers. He stabbed the first officer 5 times. The second officer sustained injuries trying to pull the offender back from the window ledge.
Aged 30 - early plea of guilty - failure to give sufficient discount - accumulation - failure to make sufficient allowance for totality - whether double counting for offences committed on parole - whether sentencing judge had to quantify discount or specify an undiscounted starting point - whether sentence for escape excessive.
Appeal allowed in part. Applicant resentenced on escape offence, resulting in a total sentence of 8y 10m with a NPP of 7y.
364

MITCHELL, Malcolm - CCA, 21.11.2008
Hodgson JA, Kirby & Hislop JJ
Citation:Mitchell v R [2008] NSWCCA 275
Conviction appeal.
Aggravated sexual intercourse without consent (maliciously inflict ABH); malicious damage to property.
Total sentence of 8*y with a NPP of 6y.
The 55 year old complainant, two of his friends & the appellant had been in a hotel, drinking beer & playing pool. When the 2 friends left, the complainant invited the appellant back to his unit where they shared a joint. The complainant went to the toilet & when he came back, the appellant attacked him.
Evidence that complainant had drunk substantial quantities of alcohol - whether warning pursuant to s.165 Evidence Act 1995 should have been given - telephone intercepts in which appellant asserted that what had happened was consensual & that he had been greatly intoxicated - whether verdict unreasonable.
Appeal dismissed.
365

TILLMAN, Kenneth Davidson - NSW SC, Johnson J, 5.12.2008
Citation: State of New South Wales v Tillman [2008] NSWSC 1293
Application for extended supervision order.
Serious sex offender.
Defendant subject to continuing detention order between June 2007 & October 2008 - completed CUBIT program - extended supervision order made - factors relevant to fixing duration of order - factors relevant to setting conditions requiring wearing of electronic monitoring equipment & a curfew - public interest in fair & balanced reporting of proceedings under Crimes (Serious Sex Offenders) Act 2006.
Decision: Extended supervision order made for period of 5y subject to 36 conditions set out in para.107 of the judgment.
366

GIOTAS, Aris - CCA, 5.12.2008
McClellan CJ at CL, Hislop & Hoeben JJ
Citation:Giotas v R [2008] NSWCCA 287
Conviction and sentence appeal.
2 x sexual intercourse without consent - 4*y with a NPP of 2y 3m.
Failure to discharge jury - medical evidence - Longman direction - whether verdict unreasonable.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 4*y with a NPP of 2y 3m.
367

HANZA, Camelia - CCA, 5.12.2008
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Hanza v R [2008] NSWCCA 288
Sentence appeal.
Ongoing supply of heroin.
Total sentence of 6y with a NPP of 4y.
Applicant arrested following undercover police operation - guilty plea.
Leave to appeal refused.
368

WOOD, Gordon Eric - NSWSC, Barr J, 4.12.2008
Citation:R v Wood [2008] NSWSC 1273
Remarks on Sentence.
Murder.
The accused was found guilty of murdering the deceased by throwing her from the top of the cliff at The Gap, Watsons Bay.
Sentence: 17y 4m with a NPP of 13y.
369

STACK, Steven Brett - CCA, 3.12.2008 - Reported:191 A Crim R 251
McClellan CJ at CL, Simpson & McCallum JJ
Citation:Stack v R [2008] NSWCCA 271
Sentence appeal.
1 x supply methylamphetamine; 1 x ongoing supply of methylamphetamine; + Form 1 offences (2 x supply methylamphetamine).
Total sentence of 5y with a NPP of 3y.
All offences involved sales to undercover police officers. The sentencing judge found that the applicant did not control access to the drugs. Each time he was approached for drugs, he contacted his co-offender in order to obtain the drugs.
Parity.
Appeal dismissed.
370

O'CONNOR, Laurence Bede - NSWSC, Studdert AJ, 5.12.2008
Citation:R v O'Connor [2008] NSWSC 1297
Remarks on Sentence.
Murder.
The offender was found guilty of the murder of his wife on their farming property. He shot her twice, once to the head & once to the back. He then buried his wife on the property. Two months later, he admitted to police officers what he had done & showed them where he had buried his wife's body in a relatively isolated location on the property. The sentencing judge found that the offender had intended to kill his wife, but that it was not pre-meditated.
Aged 65 - defence of provocation.
Sentence: 21y with a NPP of 16y.
371

HARRISON, Graham Loughlan (State of NSW v) - NSWSC, Fullerton J, 9.12.2008
Citation:State of New South Wales v Harrison [2008] NSWSC 1306
Application for continuing detention order or extended supervision order.
Serious sex offender.
Standard of proof - categories of serious sex offences under the Crimes Act where victim is an adult - relevance of static & dynamic risk factors - mental disorder - custody-based vs community-based treatment in administration of anti-libidinal medication.
Decision: Extended supervision order made for initial period of 3 months.
372

BRILLEY, Clint Joseph - CCA, 9.9.2008
McClellan CJ at CL, Grove & Blanch JJ
Citation:Brilley v R [2008] NSWCCA 208
Conviction appeal (extension of time).
Armed robbery.
7*y with a NPP of 5y.
The offence took place at a warehouse.
Identification - whether verdict unreasonable.
Appeal dismissed.
373

KAMM, William - CCA, 10.12.2009
Giles JA, Latham J, Mathews AJ
Citation:Kamm v R [2008] NSWCCA 290
Conviction appeal.
1 x aggravated act of indecency towards person under age of 16; multiple offences of aggravated sexual intercourse with person over age of 10 & under age of 16.
Sentence not stated.
At the time of the offences, the complainant was aged 14 or 15. The circumstance of aggravation was that at the time, the complainant was under the appellant's authority. The appellant, known as The Little Pebble, was the leader of a religious community.
Whether miscarriage of justice through witness's allegation that counsel complicit in destruction of documents - counsel & witness at cross purposes - not truly allegation of impropriety or likelihood of prejudice to accused - rational decision by counsel not to apply for discharge of jury or take some other course to negate possible prejudice to accused - whether miscarriage of justice through certain cross-examination by Crown prosecutor - was relevant and not offensive - had substantial probative value - not outweighed by risk of unfair prejudice.
Appeal dismissed.
374

STEER, Brian James - CCA, 9.12.2007 - Reported:191 A Crim R 435
McClellan CJ at CL, Simpson & McCallum JJ
Citation:Steer v R [2008] NSWCCA 295
Conviction appeal.
Murder.
31y 4m with a NPP of 24y.
The deceased's charred body was found by fire fighters who had been called to put out a house fire. The prisoner had been upset when his ex-girlfriend began a relationship with the deceased. He broke into the deceased's home at night, stabbed & slashed the deceased's throat, then started a fire that burnt the deceased's body beyond recognition in order to cover up the crime. The prisoner later confessed to the crime to several people.
Judicial discretion to admit or exclude evidence - prejudicial evidence - whether evidence of armed robbery & proposed flight should have been admitted as evidence of accused's consciousness of guilt for murder - whether proviso should be applied - s.137 Evidence Act 1995 - s.6(1) Criminal Appeal Act 1912 - appeal & new trial & inquiry after conviction - particular grounds - misdirection & non-misdirection - whether trial judge misdirected jury as to how evidence of armed robbery & proposed flight could be used as evidence of consciousness of guilt - whether proviso should be applied - whether admission of evidence that accused owned hunting knives should have been admitted.
Appeal dismissed.
375

MULLINS, Owen Jeffrey - CCA, 12.12.2008
Hodgson JA, James & Price JJ
Citation:Mullins v R [2008] NSWCCA 302
Conviction appeal.
Sexual intercourse without consent.
3*y with a NPP of 1y 10m.
It was accepted by the appellant that sexual intercourse had occurred between him & the complainant. The only issues at trial were whether or not the complainant consented to the sexual intercourse and/or whether the appellant knew that she was not consenting or was reckless as to that matter.
Issues of consent - complainant intoxicated - gaps in complainant's recollection - whether open to jury to be satisfied beyond reasonable doubt that complainant did not consent & that appellant knew she did not consent.
Appeal dismissed.
376

CARROLL, Thomas Neville Terrance - CCA, 8.12.2008
Tobias JA, James & Price JJ
Citation:Carroll v R [2008] NSWCCA 300
Sentence appeal.
Aggravated kidnapping.
6y with a NPP of 4y.
The applicant faced trial with a co-offender. The pregnant female victim was living at the co-offender's flat. Believing that the victim had stolen his wallet, the co-offender detained her for more than an hour after she went into labour. The applicant looked on as the co-offender repeatedly hit the woman & refused to let her leave the flat. Eventually, a visitor to the flat called police & the victim was rushed to hospital with a ruptured uterus. The baby, who was delivered by caesarean section, suffered brain damage as a result of the rupture of her mother's uterus & died the following day.
Parity.
Appeal dismissed.
377

IRVINE, Chad Kyle - CCA, 21.11.2008
Hodgson JA, Kirby & Hislop JJ
Citation:R v Irvine [2008] NSWCCA 273
Crown appeal.
Manslaughter (excessive self-defence).
2y PD.
The respondent inflicted a single punch to the jaw of an intoxicated male in the street at night in response to a sudden lunge from the male.
No priors - prospects of rehabilitation - remorse.
Whether sentencing judge erred in finding offence well below mid-range of seriousness - whether offence required sentence of full time imprisonment.
Appeal dismissed.
378

THOMAS, Bruce Malcolm - NSWSC, Adams J, 12.12.2008
Citation:State of New South Wales v Thomas [2008] NSWSC 1340
Application for extended supervision order.
Serious sex offender.
Decision: Extended supervision order made for period of 12m.
379

KATIC, Steven Momir - NSWSC, Hidden J, 12.12.2008
Citation:R v Katic [2008] NSWSC 1330
Remarks on Sentence.
Aggravated armed robbery; manslaughter.
The offender was indicted for murder & for robbery whilst armed with a dangerous weapon. He pleaded not guilty to the murder but guilty to the aggravated armed robbery. The jury found him not guilty of murder but guilty of manslaughter.
Wearing a mask & carrying an unloaded air rifle, the offender & his accomplice went into a newsagency & demanded money from the victim. The victim's mother was present in the shop. The victim handed over a little under $200 & the offender ran from the shop. The victim chased after the offender, caught up to him & a struggle took place. The offender discarded the money & ran away. The victim had managed to take the air rifle from the offender & he pursued the offender into a laneway. The offender then picked up a loose paling & struck the victim to the head. The victim died in hospital a week later. He had recognised the offender as a customer.
Excessive self-defence.
Sentences:
Aggravated armed robbery - FT of 4y;
Manslaughter - 9y with a NPP of 5*y.
Total sentence of 11y with a NPP of 7*y.
380

NGUYEN, Giac Van - CCA, 27.11.2008
McClellan CJ at CL, Hulme & Hidden JJ
Citation:Nguyen v R [2008] NSWCCA 280
Sentence appeal.
Supply methylamphetamine; deemed supply commercial quantity heroin.
Total sentence of 9y with a NPP of 6y.
The applicant was arrested following a period of police surveillance. He was one of a number of persons the subject of that surveillance.
Whether sentence manifestly excessive.
Appeal dismissed.
381

SULLIVAN, Benjamin Daniel - CCA, 11.12.2008
SKILLIN, Andrew James
McClellan CJ at CL, Grove & Howie JJ
Citation:Sullivan v R; Skillin v R [2008] NSWCCA 296
Sentence appeals.
Sullivan: 6 offences involving the re-birthing of motor vehicles; + 2 offences on a Form 1, one of which was a firearm offence - total sentence of 5y with a NPP of 3y 3m.
Skillin: 5 offences involving the re-birthing of motor vehicles; + one offence on a Form 1 - total sentence of 4y with a NPP of 2*y.
Guilty pleas.
Whether discount for pleas sufficient - effect of delay before trial - whether sentences manifestly excessive.
Appeals dismissed.
382

AHMED, Samir - CCA, 5.12.2008
McClellan CJ at CL, Grove & Howie JJ
Citation:Ahmed v R [2008] NSWCCA 305
Sentence appeal.
1 x robbery whilst armed with offensive weapon (knife); + 5 offences taken into account (3 x obtain valuable thing by deception; 1 x drive conveyance without consent; 1 x drive stolen MV).
Total sentence of 7y with a NPP of 3*y.
Whether sentence excessive. No special point of principle.
Appeal dismissed.
383

WRIGHT, Damien John - CCA, 15.12.2008
Tobias JA, Kirby & Hall JJ
Citation:Wright v R [2008] NSWCCA 282
Sentence appeal.
1 x maliciously inflict GBH.
5y with a NPP of 4y.
The applicant attacked the victim with a glass in a pub.
History of similar offences - finding of continuing disregard of law.
Whether sentence manifestly excessive.
Appeal dismissed.
384

LUU, Phong Tran - CCA, 27.11.2008
Giles JA, Latham J, Mathews AJ
Citation:Luu v R [2008] NSWCCA 285
Sentence appeal
Unauthorised possession of prohibited pistol; possess unregistered pistol; supply (deemed) prohibited drug (crystalline methylamphetamine); supply (deemed) prohibited drug (heroin); + 7 offences on a Form 1.
Total sentence of 6*y with a NPP of 4y 4m.
The applicant was found to be in possession of 19.72g of crystalline methylamphetamine & 7.29g of heroin. He was also found to be in possession of a prohibited .22 calibre pistol & an unregistered 9mm pistol.
Age 39 - guilty plea - drug offences - drug & alcohol abuse - twice victim of home invasion - post-traumatic stress disorder - polysubstance abuse in remission.
Whether error in failure to find applicant's psychiatric diagnosis mitigated offences - whether error in finding offences 'objectively most serious'- whether failure to properly apply principle of totality.
Appeal dismissed.
385

YARAK, Coreen Monique - CCA, 11.12.2008
Giles JA, Latham J, Mathews AJ
Citation:Yarak v R [2008] NSWCCA 298
Sentence appeal.
2 x impose on Commonwealth by untrue representation; 3 x dishonestly cause loss to Commonwealth entity.
Total sentence of 2y with a release on recognizance after 15m.
The offences related to a single course of conduct.
The applicant, who was separated from her husband, applied for single parenting payments for her son. Between 14.3.2000 & 7.1.2007 these payments were deposited into the account of her son at the Commonwealth Bank. The applicant was a signatory to that account. Between March 2000 & January 2007 the applicant was employed, initially part-time, but later on a full-time basis. Her income from that employment was paid into a Commonwealth Bank account in her own name. During the period of nearly 7 years she earned over $228,000 from her employment, which she failed to declare to the Commonwealth. As a result, $75,075 was overpaid to her by way of Parenting Payment Single.
Plea of guilty.
Whether applicant suffering from depression & a dissociative behavioural state - hardship in separation from son - requirement for exceptional circumstances - whether sentences manifestly excessive.
Appeal dismissed.
386

RIDLEY, Colin - CCA, 13.11.2008
Bell JA, Blanch & Hall JJ
Citation:Ridley v R [2008] NSWCCA 299
Sentence appeal.
Sexual intercourse with child between 16 and 18 under care.
12m with a NPP of 6m.
The prosecution case at trial relied almost exclusively on the evidence of the complainant.
The applicant had been in a relationship with the 17 year old complainant's mother for many years. That relationship ceased & the complainant moved into residence with the applicant. The sexual relationship between the applicant & the complainant produced a child.
Guilty plea at earliest opportunity - no priors - consensual relationship.
Error in sentencing judge considering unprotected sexual intercourse resulting in child as aggravating factor as given child's birth date entirely probable conception at time when conduct not proscribed by law.
Less severe sentence warranted in law as most unusual circumstance that conduct made illegal partway through consensual relationship.
Appeal allowed: Sentence quashed; in lieu, sentence deferred on condition applicant enter into GBB for 3y with no order as to supervision.
387

DARMADJI, Darmadji - NSWSC, Hidden J, 9.12.2008
Citation:R v Darmadji [2008] NSWSC 1308
Judgment. Trial by judge alone.
Murder.
Defence of mental illness.
The accused stabbed his wife multiple times. Evidence showed that the defendant exhibited disturbing behaviour in days prior to the killing. There was psychiatric evidence that the defendant suffered from schizophrenia or a delusional disorder at the time of the offence.
Whether defendant not guilty by reason of mental illness.
Decision: Not guilty by reason of mental illness.
388

AD -CCA, 9.12.2008
Beazley JA, Hislop & Harrison JJ - Reported:191 A Crim R 409
Citation:R v AD [2008] NSWCCA 289
Crown appeal.
Manufacture methylamphetamine; conspiracy to manufacture large commercial quantity MDMA (ecstasy); deemed supply of commercial quantity LSD.
Total sentence of 11*y with a NPP of 5y 5m.
The above offences were committed while the respondent was on parole.
Concurrent sentences - whether structuring of sentences failed to reflect number & objective seriousness of offences - whether sentences inappropriately backdated - whether trial judge erred in double counting mitigating factors including early guilty pleas & provision of assistance to authorities.
Appeal allowed: respondent resentenced to a total of 10*y with a NPP of 7y 3m.
389

STEWART, Danielle - NSWSC, Mathews AJ, 16.12.2008
Citation:R v Stewart [2008] NSWSC 1359
Remarks on Sentence.
Manslaughter.
The offender was charged with the murder of her husband & entered a plea of not guilty. The jury returned a verdict of not guilty of murder but guilty of manslaughter. The offender stabbed her husband with an antique knife during an argument. The offender was extremely intoxicated at the time, having a blood alcohol reading of 0.24. She also had a double dose of anti-psychotics in her system.
Borderline personality disorder - mental condition linked to violent dissociative rages.
Relevance of mental disorder on sentence - pre-trial offer to plead guilty to manslaughter rejected by Crown - offender entitled to notional utilitarian value of offered plea.
Sentence: 6y 4m with a NPP of 4y.
390

WILDE, John Alan (AG for NSW v) - NSW SC, Kirby J, 12.12.2008
Citation:State of New South Wales v Wilde [2008] NSWSC 1211
Judgment.
Application for continuing detention order for period of 2 years; or in the alternative application for an extended supervision order for 5 years.
Serious sex offences - long history of committing serious sex offences - likelihood of committing further serious sex offences.
Respondent completed sentence for serious sexual offence - respondent conceded high risk of further sex offence absent supervision but submitted extended supervision order should be made - respondent under psychiatric supervision & anti-libidinal medication taken for month - reoffending risk reduction dependant on supervision & medication continuing.
Decision: Order made for extended supervision for period of 3 years.
391

SHUMACK, Michael John - CCA, 16.12.2008 - Reported:191 A Crim R 513
Hodgson JA, James & Price JJ
Citation:Shumack v R [2008] NSWCCA 311
Sentence appeal.
1 x dangerous drive occasioning death; 1 x failure to stop and assist after collision occasioning death.
Total sentence of 7y with a NPP of 5y.
The applicant's motor vehicle, travelling at high speed, hit the victim as she was crossing the road. The applicant then failed to stop. The victim suffered extensive head injuries & died the following day. Prior to the collision, the applicant had consumed 5 schooners of beer at a club & 2 stubbies of Tooheys Extra Dry at the home of his former de facto wife. A pharmacologist's evidence was that the applicant's minimum blood alcohol reading at the time of the collision would have been 0.1 grams per 100ml of blood.
Whether error in finding that dangerous drive charge aggravated by failure to stop - Whyte guideline - whether double punishment - whether sentences manifestly excessive.
Appeal dismissed.
392

STANTON, Dennis John - CCA, 17.12.2008
Beazley JA, Kirby & Hall JJ
Citation:Stanton v R [2008] NSWCCA 326
Sentence appeal.
1 x supply methylamphetamine; 2 x knowingly take part in supply of methylamphetamine; 1 x knowingly take part in supply of MDMA (ecstasy); + 3 further offences on a Form 1.
Total sentence of 3y 9m with a NPP of 2y 3m.
The offences arose out of a controlled operation conducted by police into the activities of a motorcycle gang. The offences occurred over a one month period, in circumstances where there were drug sales to police undercover operatives. Other persons, including the co-offender, involved in the drug supplies were also charged & convicted. Police executed a search warrant on the applicant's residence, where the applicant revealed a large number of small used resealable bags & a number of used syringes.
Aged 42 when taken into custody - early guilty plea.
Parity - disparity - justifiable sense of grievance - approach by trial judge in co-offender's sentencing - erroneous comparison of number of offences - erroneous consideration by trial judge of offence of which applicant charged.
Appeal allowed: resentenced to a total of 2y 9m with a NPP of 1y 10m
393

STEVENS, Gary Noel - CCA, 9.12.2008
McClellan CJ at CL, Hulme & Hidden JJ
Citation:Stevens v R [2008] NSWCCA 294
Sentence appeal.
Supply methylamphetamine; possess firearm without licence or permit; + offences on a Form 1.
Total sentence of 4y 8m with a NPP of 3y 9m.
Approach to assessing significance of Form 1 matters - partly cumulative sentences - proportion of effective NPP to aggregate sentence.
Appeal dismissed.
394

BUI, Thi Rien - CCA, 12.12.2008
Hodgson JA, James & Price JJ
Citation:R v Bui; Bui v R [2008] NSWCCA 297
Extension of time to appeal against conviction; and
Crown appeal against sentence.
Cultivate commercial quantity cannabis plants by enhanced indoor means & expose children to cultivation process; + unlawfully consuming electricity (s.64 Electricity Supply Act) taken into account.
2y suspended sentence.
Extension of time for appealing against conviction refused.
Crown appeal against sentence dismissed.
395

SAYIN, Okan - CCA, 16.12.2008
McClellan CJ at CL, Grove & Howie JJ
Citation:Sayin v R [2008] NSWCCA 307
Sentence appeal.
Maliciously cause GBH.
5y with a NPP of 3y.
Finding of intent which would elevate crime to one attracting greater punishment - assessment close to available maximum for actual offence of which offender convicted - discussion of extent of Crown obligation to tender material touching on prior record - serious objective facts but sentence must take into account statutory maximum.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y 9m with a NPP of 2y 3m.
396

AWIT, Adam - CCA, 18.12.2008
Beazley JA, Hislop & Price JJ
Citation:Awit v R [2008] NSWCCA 321
Sentence appeal.
2 x conspire to maliciously damage property by fire; 1 x maliciously damage property by fire; 1 x conspire to maliciously inflict GBH with intent to do GBH;
Total sentence of 10y with a NPP of 7y.
Error in assessing applicant's hierarchy in the offending - sentence imposed did not adequately reflect finding of special circumstances.
Appeal allowed in part.
397

NIKOLAIDIS, Leon - CCA, 17.12.2008 - Reported:191 A Crim R 556
McClellan CJ at CL, Simpson & Hislop JJ
Citation:Nikolaidis v R [2008] NSWCCA 323
Conviction and sentence appeal.
Make false instrument.
2y with a NPP of 1y.
Directions - whether trial judge failed to give proper or adequate instruction regarding the nature & scope of elements of offence - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross-examine & manner & form of cross-examination in relation to certain issues - whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint.
Appeal dismissed.
398

NGUYEN, John - CCA, 16.12.2008
McClellan CJ at CL, Grove & Howie JJ
Citation:Nguyen v R [2008] NSWCCA 308
Sentence appeal.
1 x specially aggravated kidnapping; 3 x robbery in company.
Total sentence of 8y with a NPP of 6y.
Applicant & co-offender originally dealt with together - subsequent quashing of sentences on one of them - new sentencing proceedings regarding that offender - new findings by resentencing judge - appeal by other offender - parity with co-offender's resentence.
Whether sentence manifestly excessive.
Appeal dismissed.
399

BUI, Van Phinh - CCA, 18.12.2008
McClellan CJ at CL, Howie & Hislop JJ
Citation:Bui v R [2008] NSWCCA 314
Sentence appeal.
Cultivate large commercial quantity cannabis plants by enhanced indoor means.
5y with a NPP of 3y.
Whether error in sentencing - findings - whether sentence manifestly excessive.
Appeal dismissed.
400

HOURI, Ralph (AKA Samuel TENESELI) - CCA, 16.12.2008
Campbell JA, Grove & Howie JJ
Citation:R v Houri [2008] NSWCCA 327
Crown appeal.
1 x dishonestly damage property by fire; 2 x make false statement with intent to obtain financial advantage.
Suspended sentences of 12m, 6m & 3m.
Sentences manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 2y full-time custody with a NPP of 18m.
401

NGUYEN, Van Cuong - CCA, 18.12.2008
Tobias JA, James & Price JJ
Citation:Nguyen v R [2008] NSWCCA 322
Sentence appeal.
1 x cultivate commercial quantity cannabis plants; 1 x supply trafficable quantity cannabis leaf.
Total sentence of 5*y with a NPP of 4y.
Accumulation of sentences - discount for plea of guilty - relevance of strength of prosecution case - discount for remorse - whether sentence manifestly excessive - submissions after hearing - submissions without leave - whether exceptional circumstances.
Appeal dismissed.
402

McCARTHY, Rodney Raymond - CCA, 18.12.2008
Giles JA, Rothman & Price JJ
Citation:McCarthy v R [2008] NSWCCA 320
Conviction appeal (extension of time).
7 x sexual intercourse with child under 16 years (aged 14).
Total sentence of 4y with a NPP of 3y.
Appellant represented himself on appeal.
Numerous complaints, including that legal representation deficient & that verdicts unreasonable & not supported having regard to the evidence.
Appeal dismissed.
403

BROWN, David Charles - CCA, 17.12.2008
McClellan CJ at CL, Hall & Harrison JJ
Citation:Brown v R [2008] NSWCCA 306
Conviction appeal.
Shoot with intent to murder.
Lack of warning about identification evidence - miscarriage of justice.
Leave to appeal refused.
404

GRAHAM, Judd Matthew - CCA, 4.12.2008
Hodgson JA, James & Price JJ
Citation:Graham v R [2008] NSWCCA 309
Sentence appeal.
Nine offences involving aggravated rob (ABH, corporal violence); indecent assault; aggravated sexual assault (inflict ABH).
25y with a NPP of 20y.
Appeal allowed: resentenced to a total of 20y with a NPP of 15y.
405

RAZZAK, Mohamed - CCA, 16.12.2008 - Reported:191 A Crim R 530
Allsop P, Blanch & Ball JJ
Citation:Razzak v R [2008] NSWCCA 304
Conviction and sentence appeal.
4 x maliciously discharge loaded firearm with intent to do GBH in company; 1 x fire firearm in public place.
Total sentence of 13y with a NPP of 9y.
The applicant's 2 co-accused were acquitted of all counts.
Length of jury deliberations - circumstantial evidence - leave to cross-examine under s.38 Evidence Act 1995 - whether verdicts unsafe & unreasonable.
Conviction appeal in respect of counts 4,6&8 allowed, verdicts of acquittal entered.
Conviction appeal in respect of counts 2&9 dismissed, convictions confirmed.
Leave granted to appeal against sentences on counts 2&9 but appeal dismissed.
406

EDWARDS, Steven Douglas - CCA, 3.12.2008
McClellan CJ at CL, Hall & Harrison JJ
Citation:Edwards v R [2008] NSWCCA 281
Sentence appeal.
1 x supply large commercial quantity MDMA (1,680g); 1 x supply commercial quantity amphetamine (381.3g); 1 x deemed supply MDMA (225g); 1 x deemed supply amphetamine (301.29g); + Form 1.
Total sentence of 17y with a NPP of 10y.
The sentencing judge made a finding that the applicant was engaged in a sophisticated drug operation & had access to significant supplies of drugs & was willing to provide significant supplies to others.
Early guilty plea - 25% discount allowed - remorse/contrition - no priors.
Appeal dismissed.
407

NRW -CCA, 18.12.2008
McClellan CJ at CL, Grove & Howie JJ
Citation:NRW v R [2008] NSWCCA 318
Sentence appeal.
Multiple sexual offences on 2 stepchildren & one natural child.
Total sentence of 19y with a NPP of 14y.
Aged 45 at time of appeal - guilty pleas - alcohol & cannabis use - physically abusive to spouse - physically & emotionally abusive to children - mostly unemployed while spouse worked at 2 jobs.
Grave crimes - no challenge to overall sentence - whether sentencing judge impliedly intended to set lesser NPP by reason of finding of special circumstances.
Appeal dismissed.
408

RENEHAN, Matthew Mark - CCA, 16.12.2008
Campbell JA, Grove & Howie JJ
Citation:Renehan v R [2008] NSWCCA 334
Sentence appeal.
1 x ongoing supply of methylamphetamine; 1 x supply methylamphetamine.
Total sentence of 2*y with a NPP of 1*y.
The offences came to light during a controlled police investigation.
Whether error in the way sentencing judge took into account his finding that the applicant was partially motivated to supply drugs to assist a friend - parity - whether sentences excessive.
Appeal dismissed.
409

KESSING, Allan Robert - CCA, 19.12.2008 - Reported:73 NSWLR 22
Bell JA, Rothman & Price JJ
Citation:Kessing v R [2008] NSWCCA 310
Conviction appeal.
Offence under s.70(2) Crimes Act 1914 (Cth) - communicating contents of a document that had come into applicant's possession as a Commonwealth officer which it was his duty not to disclose.
Departure from particulars - whether unfairness in manner trial conducted - misdirection of law - application of proviso.
Appeal dismissed.
410

STEVENS, Bradley James - NSWSC, Hall J, 18.12.2008
Citation:R v Stevens [2008] NSWSC 1370
Remarks on Sentence.
Manslaughter (by reason of provocation).
Plea of guilty with discount of 20% - domestic relationship between offender & deceased - assessment of gravity of offence - reasonably low level of provocation in the form of deceased's drug abuse & neglect of parental duties & admissions of infidelity - extremely high level of violence inflicted - offender under the influence of excessive amount of prescribed medication on day of offence - limited evidence of prospects of rehabilitation.
Sentence: 8y 9m with a NPP of 6y 7m.
411

BONEY, Douglas Charles - CCA, 17.12.2008
McClellan CJ at CL, Hulme & Hidden JJ
Citation:R v Boney [2008] NSWCCA 313
Crown appeal.
Detain for advantage; AOABH; maliciously inflict GBH with intent to inflict GBH.
Total sentence of 6y with a NPP of 3y.
Failure to identify reasons for departure from standard NPP - 25% discount allowed for plea of guilty in relation to maliciously inflict GBH with intent to do GBH not warranted - failure to consider specific & general deterrence in light of respondent's criminal record - failure to partially accumulate sentence on those sentences imposed on the other offences - starting point of sentence disproportionate - variation of statutory ratio of NPP to the total sentence to reduce it to 50% based on finding of special circumstances was excessive.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 7*y with a NPP of 4*y.
412

FDP -CCA, 18.12.2008 - Reported:192 A Crim R 87
McClellan CJ at CL, Grove & Howie JJ
Citation:FDP v R [2008] NSWCCA 317
Conviction and sentence appeal.
Maliciously wound with intent to do GBH; 3 x remove child from lawful control.
Total sentence of 6*y with a NPP of 4*y.
The complainant was the appellant's wife.
Objection not taken to evidence - whether judge should have rejected evidence relying upon s.137 Evidence Act -whether evidence prejudicial - whether judge failed to warn jury against tendency reasoning - scope of s.137, whether requires judge to reject evidence where objection not taken - whether sentences manifestly excessive.
Conviction appeal dismissed;
Sentence appeal allowed: resentenced.
413

MANNERS, Andrew Robert (State of NSW v) - NSWSC,, Hulme AJ, 19.12.2008
Citation:State of New South Wales v Manners [2008] NSWSC 1376
Application for extended supervision order.
Serious sex offender.
Defendant completed CUBIT & other programs - issue as to term of order - paedophile with high risk of re-offending - conditions of order - appropriateness of ban on alcohol consumption - notification of schedule of proposed movements - appropriateness of requiring the taking of antilibidinal medication.
Decision: Defendant be subject to extended supervision for period of 5y.
414

WEBB, Peter Reuben - NSWSC, Howie J, 17.12.2008
Citation:R v Webb [2008] NSWSC 1351
Remarks on Sentence.
Murder; being carried in a stolen conveyance.
Plea of guilty - killing in course of armed robbery - agreed statement of facts.
Sentence: Total of 22y with a NPP of 16*y.
415

LAPA, John - CCA, 19.12.2008 - Reported:192 A Crim R 305
McClellan CJ at CL, Hulme & Hidden JJ
Citation:Lapa v R [2008] NSWCCA 331
Sentence appeal.
1 x BE&S; 1 x supply heroin.
Total sentence of a little over 5y 2m with a NPP of a little over 3y 8m.
Pleas of guilty - BE&S dealt with summarily - whether judge could determine starting point in excess of 2y limit for Table 1 offence before reduction for plea - whether sentence for supply heroin ^ overall sentence manifestly excessive.
Appeal dismissed.
416

RIDLEY, Gavin Mark - CCA, 18.12.2008 - Reported:192 A Crim R 139
Allsop P, Johnson & Price JJ
Citation:Ridley v R [2008] NSWCCA 324
Conviction and sentence appeal.
9 x defraud Commonwealth; 3 x attempt by deception to dishonestly obtain financial advantage.
Total sentence of 8y with a NPP of 5y.
Administration of GST scheme - BAS lodged with ATO - input tax credits improperly claimed - serious fraud against the revenue.
Alleged failure to give directions - directions said to be inadequate - directions said to be misdirections - whether sentence manifestly excessive - considerations not legitimate - weight for specific deterrence
Appeal dismissed.
417

SKAF, Bilal - CCA, 17.12.2008
SKAF, Mohammed
McClellan CJ at CL, Hidden & Howie JJ
Citation:Skaf, Bilal v R; Skaf, Mohammed v R [2008] NSWCCA 303
Conviction and sentence appeals.
Multiple sex offences.
Jurisdiction, practice & procedure - adjournment, stay of proceedings or order restraining proceedings - stay of proceedings - pre-trial publicity & publicity during trial - whether appellants received a fair trial - evidentiary matters relating to witnesses & accused persons - identification evidence - direction to jury - adequacy of warning - whether trial judge erred in directing jury that they could use other evidence in Crown case to bolster identification evidence - whether sentences manifestly excessive.
Conviction appeals dismissed.
Sentence appeals allowed: applicants resentenced.
418

DTS -CCA, 19.12.2008 - Reported:192 A Crim R 204
Beazley JA, Kirby & Hall JJ
Citation:DTS v R [2008] NSWCCA 329
Conviction appeal.
Aggravated indecent assault (complainant aged 12).
12m GBB.
The appellant was also charged with 2 more counts - count 2 with assault with intent to have sexual intercourse without consent & count 3 with aggravated indecent assault, which was laid alternatively to count 2. The jury returned a verdict of not guilty on count 2 & was unable to reach a verdict on count 3. The trial judge had given a Murray direction in respect of counts 2 & 3. He added that the warning was not given because he had a view about the evidence, but because the law required him to do so.
Whether Murray direction required - some corroboration of complainant's evidence - some inconsistencies in corroboration evidence - lack of full corroboration and/or some inconsistency not determinative of whether Murray direction required - where solicitor had identified discrepancies to jury - whether miscarriage of justice - relationship evidence - directions to jury.
Appeal dismissed.
419

SAVIC, Jovan Nenadov - CCA, 16.12.2008
Allsop P, Kirby & Hall JJ
Citation:Savic v R [2008] NSWCCA 312
Conviction and sentence appeal.
Wound with intent to murder.
13*y with a NPP of 10y.
The above sentence includes a sentence for a previous offence.
This was a trial conducted before a judge alone. The appellant had stood trial previously on the same indictment before a judge & jury, however, the jury was unable to reach a verdict.
The appellant broke into a friend's home & viciously attacked him with a baseball bat.
Whether evidence of guilty plea in separate proceedings admissible or unfairly prejudicial - whether failure of counsel to object to evidence said to be inadmissible displayed flagrant incompetence - whether error in trial judge failing to accede to application for view - whether error in disallowing certain cross-examination on prior inconsistent statement & credit - voice identification - visual identification - admissibility.
Whether sentence manifestly excessive - whether reflected objective seriousness of offence - whether failure to take into account & give credit for co-operative manner in which trial conducted by accused.
Appeal dismissed.
420

KING, Robert Keith Matthew - CCA, 17.12.2008 - Reported:191 A Crim R 552
McClellan CJ at CL, Hidden & Fullerton JJ
Citation:King v R [2008] NSWCCA 316
Sentence appeal.
Sexual intercourse without consent.
5y 10m with a NPP of 4y 3m.
The applicant was giving the victim a lift to Lismore, however, his car broke down while they were still in Ballina. The applicant went to a nearby service station & bought $5 worth of petrol. When he returned to the car, he was still unable to start it. The applicant & the victim then both walked back to the service station. The victim sat in an adjoining park & the applicant joined her. The victim went into a nearby public toilet & entered one of the cubicles in the female section. While she was using the toilet, the applicant came into the cubicle. He inserted his fingers into her vagina as she was trying to adjust her jeans & underwear. She was protesting, there was a struggle & she fell to the floor, hitting the back of her head as she did so. The applicant left the toilet, as did the victim. In a distressed state, the victim went to the service station & reported the sexual assault to the service manager. The police were called & the applicant was arrested. At the time of the offence, both he & the victim had consumed a considerable quantity of alcohol.
Whether sentence manifestly excessive.
Appeal dismissed.
421

SAMADI, Adel - CCA, 19.12.2008 - Reported:192 A Crim R 251
DJAIT, Chebli
Beazley JA, Hislop & Price JJ
Citation:Samadi and Djait v R [2008] NSWCCA 330
Conviction and sentence appeals.
Samadi: 12 x administer stupefying drug with intent to commit an indictable offence (steal); 1 x sexual intercourse without consent - total sentence of 15y with a NPP of 12y.
Djait: 12 x administer stupefying drug with intent to commit an indictable offence (steal); 3 x sexual intercourse without consent - total sentence of 15y with a NPP of 12y.
Use of stupefying drugs (drink spiking).
Admissibility of coincidence evidence - s.98 Evidence Act -circumstantial case - principles as stated in O'Leary v R (1946) 73 CLR 566 - question of joint or separate trials in respect of multiple counts arising out of 6 separate incidents - directions - whether miscarriage of justice in ordering joint trial.
Statutory ratio between non-parole & parole periods - parity between co-offenders convicted of sexual assault upon separate complainants.
Conviction appeals dismissed.
Sentence appeals allowed & appellants resentenced as follows:
Samadi: Total sentence of 14*y with a NPP of 10y 7m.
Djait: Total sentence of 15y with a NPP of 11y.
422

OWENS, Adam Patrick - NSWSC, McCallum J, 19.12.2008
Citation:R v Owens [2008] NSWSC 1375
Remarks on Sentence.
Murder.
The accused pleaded guilty to the murder of his 69 year old mother by stabbing her.
Agreed statement of facts.
The offender did not make any submissions on sentence. In his sworn evidence, he submitted that the Court should impose the maximum penalty.
Aged 32 at time of offence - plea of guilty - offence within mid-range - consideration of aggravating & mitigating factors - no priors - highly intelligent & articulate - wished to take full responsibility for acts.
Sentence: 23y with a NPP of 17y.
423

MITRESKI, Zlatko - CCA, 11.12.2008
Giles JA, Latham J, Mathews AJ
Citation:Mitreski v R; R v Mitreski [2008] NSWCCA 301
Conviction appeal; and
Crown appeal.
2 x dangerous drive causing death.
Total sentence of 2y 5m with a NPP of 1y 8m.
The Crown case was that the appellant drove his semi-trailer at an excessive speed, in the wrong gear for the relevant gradient & across the path of an oncoming vehicle containing the 2 victims. The appellant's vehicle & the victims' vehicle left the road & collided head-on some distance from the road surface.
Whether verdicts unreasonable - whether judge required to find speed of respondent's vehicle for purposes of sentencing - erroneous characterisation of liability based upon momentary inattention - failure to apply guideline judgments of Jurisic & Whyte -whether sentence manifestly inadequate.
Conviction appeal dismissed.
Crown appeal allowed: respondent resentenced to a total sentence of 3y 4m with a NPP of 3y; and disqualification of licence for 3y.
424

RK -CCA, 22.12.2008 - Reported:73 NSWLR 80; 192 A Crim R 456
LK
Spigelman CJ, Grove & Fullerton JJ
Citation:R v RK and LK [2008] NSWCCA 338
Crown appeal against acquittal by direction.
Conspiracy to launder money.
The respondents allegedly dealt with money that was part of the proceeds of a plan to defraud the Commonwealth Superannuation Scheme of $150million. They were charged with conspiring to deal with money being reckless as to the fact that the money was the proceeds of crime, pursuant to s.11.5(1) & s.400.3(2) Commonwealth Criminal Code. The Crown case was not that the respondents had knowledge that the money was the proceeds of crime, only that they were reckless as to this fact.
Following a trial before a jury, the respondents made a no case to answer submission. The trial judge rejected the submission that the evidence could not prove beyond a reasonable doubt the critical elements of the offence charged, but upheld the submission that the indictment, on the case the Crown presented, charged an offence bad at law or unknown to the law. The trial judge directed the jury to return a verdict of not guilty.
Fault element - recklessness & knowledge - whether sufficient for prosecution to prove that accused was reckless with respect to physical element of the substantive offence - ss.5.4, 11.5, 400.3 Criminal Code Act 1995 (Cth).
Appeal dismissed.
425

BLACK, Michael - CCA, 22.12.2008
McClellan CJ at CL, Simpson & Latham JJ
Citation:Black v R [2008] NSWCCA 337
Sentence appeal.
Doing an act with intent to influence a witness (s.323(a) Crimes Act 1900).
5y with a NPP of 3y.
The effect of the above sentence was to add one year to the sentence that had already been imposed for offences of malicious wounding & aggravated car-jacking. It was the complainant in the malicious wounding matter who the applicant attempted to influence when committing the present offence.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with a NPP of 18m.
426

HA -NSWSC, Rothman J, 18.12.2008
Citation:R v HA [2008] NSWSC 1368
Remarks on Sentence.
Manslaughter.
The offence concerned the death of the offender's son, who died from pneumonia & pyelonephritis. The offender & her husband failed to obtain medical treatment for the child.
The offender's husband died from a heart attack earlier this year.
Plea of guilty - domineering husband - lower range culpability - exceptional case.
Sentence: 2y suspended sentence.
427

TOWERS, Alicia Lee - CCA, 22.12.2008
Beazley JA, Kirby & Hall JJ
Citation:Towers v R [2008] NSWCCA 283
Sentence appeal.
Assault; 2 x AOABH; aggravated B&E with intent to steal; receive stolen goods.
Total sentence of 5y with a NPP of 2*y.
The applicant entered the victims' kitchen at night. The male victim asked his wife to phone the police. The applicant ripped the telephone from the female victim's hand & the wall socket. When the applicant attempted to escape, she was stopped by the female victim. The applicant grabbed the female victim's arm with force & pulled her out of the way. When the male victim took hold of the applicant in an attempt to stop her, she bit him on the wrist. The victims were aged 60 & 62 years.
Aged 21 - guilty plea - drug use - difficult childhood - parents openly used drugs & were generally unemployed - learning difficulties - raped on several occasions - remorse - good prospects of rehabilitation - special circumstances - no property taken - no permanent injury inflicted.
Whether error in referring to wrong maximum penalty - whether imposed double punishment - whether error in finding offences aggravated by victims' vulnerability - whether error in failure to backdate sentence - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 4*y with a NPP of 2y.
428

ZAHAROS, Spyros - CCA, 22.12.2008
McClellan CJ at CL, Grove & Howie JJ
Citation:Zaharos v R [2008] NSWCCA 336
Sentence appeal.
Malicious wounding.
5y 2m with a NPP of 3y 10m.
The attack upon the victim occurred in a restaurant following the victim advising the applicant not to order barramundi for his dinner as he believed it wasn't barramundi at all.
The victim suffered a stab wound to the left side of his abdomen that perforated his large bowel. He also received multiple stab wounds to his left arm, resulting in the separation of the bicep muscle, the median & musculocutaneous nerves & the brachial artery. He required surgery for the bowel perforation & his arm & artery & spent a number of weeks in hospital.
Aged 64 at time of offence - guilty plea - no prior criminal history - has suffered from schizophrenia since mid-forties - history of mental health admissions to St George Mental Health Unit arising out of non-compliance with medication regimes, breaching of community treatment order, self-harm attempts, unprovoked aggression, paranoid ideation & command auditory hallucinations.
Whether mental illness causally connected to commission of offence - whether error in approach to special circumstances - whether discount for guilty plea sufficient - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with a NPP of 2y 9m.
429

GORDON-KING, David - CCA, 22.12.2008 - 192 A Crim R 448
McClellan CJ at CL, Grove & Howie JJ
Citation:Gordon-King v R [2008] NSWCCA 335
Conviction appeal.
Assault and commit an act of indecency against person under 16 years.
The appellant was a friend of the complainant's family. The Crown alleged that the appellant sexually assaulted the complainant in a motel room after she became intoxicated at a party. The appellant & the complainant had attended the party together, the appellant's role being that of an adult supervisor. At the time of the alleged offence, the complainant was aged 15 years.
Evidence from a friend of the complainant was that some weeks after the alleged offence, the complainant told her friend that she had been raped. The appellant claimed that that evidence was not admissible due to the significant lapse of time between the alleged occurrence of the offence & the trial.
Whether evidence wrongly admitted.
Appeal dismissed.
430

GILLIES, Darrin Michael - CCA, 23.12.2008
Basten JA, Hislop & Price JJ
Citation:Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Conviction and sentence appeal.
Sexual intercourse without consent.
6y 8m with a NPP of 5y.
The appellant was self-represented on appeal.
Following trial, the appellant was found guilty of the above offence. He was acquitted on 2 counts of sexual assault. The jury was unable to agree on a verdict on 2 further counts alleging an assault with act of indecency & an attempted sexual intercourse.
At the time of the alleged offences, the appellant & the complainant had been in a sexual relationship for 4 months. The appellant had secretly video-taped sexual activity between himself & the complainant. Video evidence was submitted at trial. The 1st part of the video evidence showed consensual activity between the appellant & the complainant. The 2nd part of the video evidence showed impugned behaviour recorded over a section of the 1st part.
Nine of the grounds of appeal submitted by the appellant related to the manner in which his legal representatives conducted his defence. Transcript of the trial revealed that defence counsel clashed with the trial judge on a number of occasions.
Whether interaction between counsel & trial judge caused unfairness - whether defence counsel incompetent - whether trial judge erred in failing to discharge jury after counsel's instructions withdrawn - whether trial miscarried as appellant forced to sign Evidence Act s.191 document - whether error in refusing permanent stay - whether trial judge erred in response to note from jury - whether acquittals showed element of offence not made out.
Whether error in assessment of severity of offence - whether inadequate weight given to co-operation - whether inadequate weight given to concession video authentic - whether sentence manifestly excessive.
Appeal dismissed.