Short Notes 1997

 
1

ALEXANDER, Michael John - CCA 11.6.97.
Sentence appeal.
Escape; steal from a motor vehicle; BE&S; 3 x steal from a dwelling. All steal charges occurred when applicant was at liberty following the escape. Applicant in custody serving life sentences for murder at the time of these offences.
Escape - MT 4y, AT 1y 4m; on other 5 counts, concurrent FT 2y imposed.
Appeal dismissed.
2

ARTHUR, James Campbell - CCA 27.11.96.
Sentence appeal.
2 x supply prohibited drug (cocaine - .39 gm and .45 gm) contrary to s.25(1) Drug Misuse and Trafficking Act 1985; + 1 x possess prohibited drug on a Form 2 taken into account.
MT 12m, AT 12m.
Parity.
Appeal allowed: re-sentenced to MT 8m, AT 8m.
3

B, A - CCA 7.7.97.
Sentence appeal.
Sexual offences involving 15 children committed over a long period. Appellant then a member of a religious teaching order.
MT 13*y, AT 4*y.
Appeal dismissed.
4

BARRETT, Peter Edward - CCA 3.3.97.
Sentence appeals.
19 x indecent assault - FT 4y; 6 x buggery - MT 7*y AT 2*y; 2 x procure act of indecency with male - FT 12m; 2 x assault with intent to commit buggery - FT 2y. Five victims involved, one aged 9, two 11 and two 12 years of age.
Sustained and exploitative paedophilic activity.
Appeals dismissed.
5

DAVIES, Bruce - CCA 12.5.97.
Sentence appeal.
Various drug offences:
(a) Supply 100.4 gm methylamphetamine - concurrent FT 4y.
(b) Supply 40 gm methylamphetamine - concurrent FT 4y.
(c) Supply 59.5 gm methylamphetamine - concurrent FT 4y.
(d) Supply 173 gm methylamphetamine - concurrent FT 4y.
(e) Supply 411.6 gm methylamphetamine (not less than commercial quantity) - MT 4*y, AT 2y.
(f) Supply 452 gm methylamphetamine (not less than commercial quantity) - concurrent FT 4y.
(g) Supply 437.8 gm methylamphetamine (not less than commercial quantity) - concurrent FT 4y.
(h) Supply 13.2 gm cocaine - concurrent FT 4y.
Assistance to authorities.
Appeal allowed: All sentences quashed - on 5th count sentenced to MT 3y 3m, AT 2y; on all remaining counts concurrent FT 2*y.
6

FRANKLIN, Brett Joseph - CCA 11.4.97.
Sentence appeal.
Supply prohibited drug (methylamphetamine) - jointly charged with co-offender.
Each received MT 3y, AT 1y. Co-offender appealed successfully, resentenced to MT 8m AT 16m.
Parity.
Appeal allowed: resentenced to MT 2y, AT 2y.
7

HAWKINS, Roybyn John - CCA 16.6.97.
Sentence appeal.
BE&S.
MT 3y, AT 2y. Sentence made concurrent to a great extent with a sentence already being served.
Leave to appeal refused.
8

HEFFERNAN, Kevin Murray - CCA 8.4.97.
Sentence appeal.
Supply cannabis leaf (1.8 kg). Max sentence for this offence is 10y.
Sentenced to MT 15m, AT 15m.
Contention that his Honour erred in taking into account as aggravating circumstance a certain threat used during the transaction.
Appeal dismissed.
9

HERRERA, Navia Mercedes Daza - CCA 6.6.97.
Sentence appeal.
11 counts of imposition upon the Commonwealth, totalling $90,073.
Sentenced to 2y 3m, NPP 15m.
Ordered to make reparation to Commonwealth for full amount involved in charges.
Prior criminal record, including 3 convictions for stealing. Some of present offences committed whilst subject to a bond for stealing offences.
Appeal dismissed.
10

LATSOS, Kristian - CCA 9.5.97.
Sentence appeal.
(b) Supply 9.43 gm heroin - concurrent FT 4y.
(b) Agree to supply 10 gm heroin - concurrent FT 4y.
(c) Deemed supply 3.69 gm cocaine - concurrent FT 4y.
(d) Deemed supply 51.3 gm heroin - MT 5y, AT 3y, taking into account further charges of possess heroin, goods in custody, drive unregistered vehicle, drive dangerously.
Manifestly excessive.
Appeal allowed: Sentence imposed on 4th count quashed, resentenced to MT 4y, AT 3y.
11

LEE, Kerrie Maree - CCA 19.6.97.
Conviction and sentence appeal.
Crown appeal against sentence.
7 x make false statements; 7 x publish false statements.
500 hours CSO.
Sufficiency of directions. Crimes Act, ss.178BB & 351 - whether former section excludes application of the latter section to its content - cross-examination under ss.38 & 41 Evidence Act.
Conviction appeal allowed: conviction and sentence quashed, new trial ordered.
Crown appeal dismissed.
12

OVERALL, Nevyl Wentworth - CCA 29.11.96.
Sentence appeal.
Knowingly take part in cultivation of not less than large commercial quantity prohibited plant (cannabis).
MT 1y, AT 1y.
Appeal dismissed.
13

STEVENS, Anthony - CCA 29.11.96.
Sentence appeal.
Robbery; possess shortened firearm; assault; 3 x armed robbery.
Appeal against sentence for the three armed robbery charges. Charged under s.97(1) - penalty 20y. However, the Crown Prosecutor informed the judge that they were brought under s.97(2) - penalty 25y.
On 1st armed rob charge, MT 6y, AT 2y; on each of other armed rob charges FT 4y.
Appeal allowed against sentence on 1st armed rob charge: resentenced to MT 5y, AT 3y.
14

AUSTIN, Bradley Wayne - CCA 7.7.97.
Conviction appeal.
Appellant unrepresented except for 1 day, convicted of sexual offences against child after trial lasting many weeks. Appellant wished to cross-examine Crown witnesses & call evidence to prove complainant falsely accused appellant in order to protect another man who had contemporaneous sexual relationship with complainant. Repeated assertions by counsel that evidence not permitted by s.409B - confusion of appellant - evidence not called, although s.409B would not have prevented it - defence case never put to jury.
Appeal allowed: convictions quashed.
15

BAARTMAN, Jon Leslie - CCA 30.6.97.
Conviction appeal.
Murder.
MT 15y, AT 5y.
Admission by appellant to police officers that murder weapon belonged to him.
Fresh evidence - evidence before NSW Police Royal Commission reflected adversely upon integrity of police officer through whom admission was proved.
Appeal allowed: new trial ordered.
16

BISHOP, Stephen John - CCA 19.6.97.
Conviction appeal.
Murder.
Whether comment by trial judge about counsel's failure to put defence case to principal Crown witness appropriate - whether warning regarding principal Crown witness sufficient.
Appeal dismissed.
17

BRUNO, Salvatore - CCA 7.7.97.
Conviction appeal.
Supply heroin.
Identification evidence - requirement for trial judge to give jury instructions as to special need for caution - unreliable evidence - fresh evidence - Police Royal Commission - reasonable diligence in obtaining evidence - Evidence Act 1995, ss.116, 165.
Appeal allowed: conviction quashed.
18

CLARKE, Kerrie Anne - CCA 11.6.97.
Conviction appeal.
1 x armed robbery; 1 x attempt use weapon with intent to prevent lawful apprehension. Convicted in respect of first charge and acquitted in respect of second charge.
MT 6y, AT 3y.
Admissibility of disputed portions of electronically recorded interview and admissibility of identification evidence. Failure of trial judge to give reasons for rulings on evidence. Chief Justice requested report from trial judge.
Appeal stood out of list for further mention. Matter to be relisted.
19

DE SOUZA, Steven Anthony Michael - CCA 2.7.97. - 41 NSWLR 656; 95 A Crim R 1
Conviction appeal.
Murder.
MT 12y, AT 4y.
Diminished responsibility - abnormality of mind - frenzy induced by effect of self-administered steroids - steroids alter function of brain cells - whether alteration of function an 'injury' for purposes of s.23A Crimes Act.
Appeal dismissed.
20

EGAN, Shayne James - CCA 7.7.97.
Conviction appeal.
Robbery in company.
Crown relied upon flight to demonstrate consciousness of guilty - no direction given in accordance with Edwards v The Queen (1993) 178 CLR 193, but none asked for - experienced trial advocate had reason for not requesting direction.
Appeal dismissed.
21

FOLEY, Neil John - CCA 5.6.97.
Conviction appeal.
2 x sexual conduct with child under authority.
Tendency evidence, admission and warning - complaint evidence - failure to warn in relation to age of complainant - failure to discharge jury.
Appeal dismissed.
22

GARDINER, John Robert - CCA 3.6.97.
Conviction and sentence appeal.
Robbery with striking.
Notice of alibi not given. Adjournment and leave to raise alibi refused by trial judge. Whether refusal caused a miscarriage. Fresh evidence of alibi had sufficient cogency and credibility.
Mickelberg v The Queen (1989) 167 CLR 259 applied.
Appeal allowed: conviction quashed, new trial ordered.
23

LOZANO, Emilio - CCA 10.6.97.
Conviction and sentence appeal.
1 x dispose of certain electrical goods, knowing they had been stolen; 2 x BE&S. Found guilty on 1st count and not guilty on 2nd and 3rd counts.
Witness asserted had no memory of events recorded in contemporaneous statement - leave to cross-examine - Evidence Act 1995, s.381(1)(a),(b) - discretions in ss.136, 137, 192(2)(b) - inconsistent verdicts.
Conviction appeal dismissed; leave to appeal against sentence refused.
24

McL, G M - CCA 7.7.97.
Conviction and sentence appeal.
1 x aggravated sexual intercourse with step-daughter; 1 x commit act of indecency upon step-daughter. Acquitted of 2nd charge, convicted of 1st charge.
MT 3y, AT 4y.
Charge pending at time of trial which was later admitted to be false responsible for failure to produce character evidence.
Appeal allowed: new trial ordered.
25

KENNEDY, Michael Graham - CCA 1.7.97. - 94 A Crim R 341
Criminal law and procedure - Dietrich stay - inability to pay without fault of applicant - reasonableness of conduct - availability of pro bono scheme - Crown's inability to supply further particulars - availability of Basha inquiry - Justices Act 1903, ss.48EA, 48E(2)(a).
Trial date vacated, further directions to be given as to the progress of the trial.
26

HARTMANN, Brett Geoffrey v COMMISSIONER OF POLICE, 14.3.97 (Court of Appeal) - 91 A Crim R 141
GREAT appeal - admissibility of statements made to Royal Commissioner in subsequent disciplinary proceedings.
Held: - not admissible - proceedings civil proceedings - construction of Royal Commission (Police Service) Act 1994, ss.5, 6, 7, 9, 12 and Royal Commissions Act 1923, s.12.
Appeal upheld: matter to be remitted to GREAT for further consideration.
27

GORDON, Craig Anthony - CCA 19.12.96.
Crown appeal against sentence.
1 x malicious wounding with intent to do GBH - MT 3y, AT 3*y; 1 x shorten firearm (.22 calibre rifle) - FT 12m. Sentences cumulative.
Undertaking to give evidence not complied with.
Crown's submission that sentence for malicious wounding manifestly inadequate.
Appeal allowed on malicious wounding charge: re-sentenced to MT 5y 9m, AT 2y 3m.
28

JOHNSON, Robert Arthur - CCA 16.5.97.
Crown appeal against sentence.
6 x indecent assault, each brought under s.81 Crimes Act, carrying max penalty of 5y; + 5 further charges of indecent assault on a Form 2.
On each of first 5 counts: sentenced to concurrent 18m PD; on 6th count, sentence deferred upon respondent entering a recognizance to be of good behaviour for 2y and place himself under the supervision of the Probation and Parole Service.
Deterrence - breach of trust - pattern of conduct.
Appeal allowed in part: Counts 1 to 5 sentence 18m PD; Count 6 further order that respondent undergo psychiatric counselling.
29

BARTALESI, Richard Guy 41 NSWLR 641; 93 A Crim R 274
FRAGASSI
, Leonardo - CCA 24.6.97.
Application for leave to appeal against interlocutory orders.
Charges by ex officio indictment under s.323 Crimes Act (NSW). Unsuccessful committal proceedings in respect of differently framed charges under s.323 arising out of same facts. Application to Shillington DCJ for orders that indictment be stayed on ground that Pt.9A Criminal Procedure Act 1987 had taken away right to initiate proceedings by ex officio indictment - application was refused.
Leave to appeal granted but appeal dismissed.
30

CRUMP, Kevin Garry - SC 24.4.97.
S.13A. Resentenced to 30y commencing 13.11.1973 & concluding 12.11.2003, AT remainder of natural life.
Conspiracy to murder - 25y commencing 13.11.1973 & concluding 12.11.1998.
31

JOHNS, Craig Lindsay - SC 16.5.97.
Redetermination of life sentence under s.13A Sentencing Act 1989.
Resentenced to MT 15y, AT 4y. Eligible for release to parole on 12.6.2001.
32

COLLINS, John Edward - CCA 18.6.97.
Application for extension of time for leave to appeal in two matters (more than 20 years out of time):-
(1) Conviction appeal.
2 x stealing -2y hard labour to date
from 20.8.74, NPP 6m.
(2) 1 x larceny of motor vehicle -
18m hard labour to commence at
expiration of above sentence and his NPP
was extended to expire on 20.5.75.
Both sentences served.
Applicant claimed police involved corrupt; he had inadequate legal representation by solicitor since struck off - this information only recently available to him.
Application for extension of time in each matter refused.
33

LLOYD, Terry - CCA 17.6.97.
Sentence appeal against sentences of PD which were subsequently cancelled, and leave to appeal against the sentences deemed by the Periodic Detention of Prisoners Act to have commenced at the time of such cancellation.
Larceny (GBB); Receiving (30m PD); Receiving (18m PD).
Applicant attended PD on 10 weekends in 1994. No attendances in 1995 due to illness (hepatitis C, supported by medical certificates). Attended on 5 weekends in early 1996. Cancellation of PD order in September 1996, the applicant having been absent without excuse on 3 occasions - 113 weeks plus two penalty periods still to be served. Sentenced by Judge Robison to full-time imprisonment for 115 weeks.
Appeal allowed: sentence imposed by Judge Robison quashed, resentenced to MT 56w, AT 56w.
34

MAMAN, Yaakov - CCA 27.3.97.
Sentence appeal.
Import not less than trafficable quantity heroin (s.233B(1) Customs Act) - max penalty 25y and/or fine of $100,000.
FT 9y; his Honour declined to set a parole period.
Conceded in Crown submissions that his Honour erred and should have set a parole period.
Appeal allowed: resentenced to MT 5y, AT 3y.
35

MARCEAU, John Alan - CCA 1.7.97.
Conviction and sentence appeal. ( See decision of 7.5.97, reserved.)
Numerous counts of sexual assault.
MT 6y, AT 3y.
Appeal allowed as to counts 5, 6, 8, 9, 12 & 15 - resentenced to MT 5y 4m, AT 2y 8m; appeal dismissed as to counts 3, 7, 1, 10, 13 & 17.
36

MARINO, Mark Darrell - CCA 9.4.97.
Sentence appeal.
Robbery with striking - max penalty 20y.
Powerful subjective features.
MT 3y, AT 3y.
Appeal dismissed.
37

MILLER, Paul George - CCA 25.3.97.
Sentence appeal.
5 x aggravated sexual assault without consent; 1 x aggravated sexual intercourse without consent. All charges brought under s.61J Crimes Act, carrying a max penalty of 20y.
Victim 16 year old girl with no previous sexual experience.
MT 7*y, AT 3*y.
Appeal dismissed.
38

O'BRIEN, Edward Paul - CCA 7.4.97.
Sentence appeal.
1 x supply cannabis; + 4 matters on a Form 2 (2 x self-administration of cannabis, 1 x self administration of amphetamine, 1 x possess cannabis).
Special circumstances constituted by youth and need for rehabilitation.
MT 1y, AT 1y.
Appeal allowed: MT 11m, AT 12m.
39

RAGAN, George Robert - CCA 11.6.97.
Sentence appeal.
2 x armed robbery (s.97 Crimes Act).
FT 2y on first charge; MT 4*y, AT 3y on second charge cumulative upon FT imposed on first charge.
Whether manifestly excessive.
Appeal allowed: sentences made partially concurrent.
40

TANNOUS, Vincent - CCA 18.6.97.
Sentence appeal.
1 x supply prohibited drug (cannabis leaf); 4 x supply prohibited drug (methylamphetamine) - s.25(1) Drug Misuse & Trafficking Act 1985.
Count 1: FT 12m to commence on 4.2.1997.
Counts 2-5: MT 2y 9m to commence on same day, AT 11m.
Leave to appeal refused.
41

WARNER, Leslie Joseph - CCA 7.4.97.
Sentence appeal.
1 x larceny of MV; 5 x receiving stolen property; 1 x assault; + 79 offences on a Form 2, including 7 x forgery and uttering, 37 larceny, 23 obtain money by deception 4 x goods in custody, 1 x fail to appear.
FT 2*y.
Appeal dismissed.
42

WASTE RECYCLING & PROCESSING SERVICE OF NSW v ENVIRONMENT PROTECTION AUTHORITY - CCA 11.6.97.
Sentence appeal.
Negligently cause substance to leak from container in manner likely to harm environment.
Fine of $100,000.
No error of fact or law disclosed by trial judge - sentence not excessive.
Appeal dismissed.
43

WHITNEY, Jennifer Learna - CCA 6.6.97.
Sentence appeal.
Defraud Commonwealth (s.29D Crimes Act, max penalty 10y). There were 31 instances and total amount involved was $138,549.45.
At various times placed on 3y good behaviour bond and also CSO. Despite this, she continued to defraud the Commonwealth.
Harsh and unrewarding life, violent relationships, alcohol problem, personality disorder, disturbed and disruptive upbringing.
4y, NPP 2*y.
Appeal dismissed.
44

ZANZE, Anthony
KINGSBEER, Kevin Mark - CCA 11.6.97.
Sentence appeals.
1 x supply prohibited drug (heroin) - s.20(1) Drug Misuse & Trafficking Act.
Each sentenced to MT 3y 9m, AT 1y 3m.
Error by sentencing judge concerning classification of quantities and max penalty.
Appeals allowed: Each resentenced to MT 2y, AT 1y.
45

HORDERN, Anthony - CCA 16.6.97.
Half page judgement. No details except that appeal allowed, convictions quashed, new trial ordered, bail granted.
46

MOORE, William Russell - CCA 5.6.97.
Conviction appeal.
Armed robbery.
MT 3y, AT 2y.
Identification evidence - whether verdict based wholly on photographic identification evidence unsafe or unsatisfactory.
Appeal dismissed.
47

P, V H - CCA 7.7.97.
Conviction appeal.
Homosexual intercourse with male person under age of 18 years (being 14 years). Appellant a school teacher.
MT 15m, AT 15m.
Indictment alleged offence between 1 August and 31 December 1987 - Complainant asserted specific date - Whether date made of the essence.
Accepting a concession by the Crown, the date had been made of the essence of the offence and trial judge's instructions on the point were in error.
Reg v Dossi (1918) 13 Cr App R 158, The King v Dean [1932] NZLR 753, R v Pfitzner (1976) 15 SASR 171 applied.
Appeal allowed: conviction and sentence quashed, judgement and verdict of acquittal entered.
48

PAN LABORATORIES PTY LTD v DPP (Cth) - CCA 2.7.97.
Conviction appeal.
16 charges concerning supply in Australia and exportation of Evening Primrose Oil. Verdict of guilty returned on 13 charges.
Held: Jury's verdicts not inappropriate 'inconsistent' in the way that term is used in McKenzie v The Queen (1997) 141 ALR 70; trial judge erred in holding appellant bore onus of proving issues referred to in s.20(1)(e) & (f) Therapeutic Goods Act 1989 (Cth). Vines v Djordevitch (1955) 92 CLR 512 and Avel Pty Ltd v Multicon Amusements Pty Ltd (1990) 171 CLR applied.
Appeal allowed: conviction quashed, new trial ordered.
49

PIAZZA, George - CCA 16.6.97. 94 A Crim R 459
Conviction appeal.
2 x defraud Commonwealth, s.29D Crimes Act (evasion of customs duty and sales tax on luxury cars imported into Australia).
Concurrent 12m on each count with order that he be released upon recognizance after 6m. Ordered to pay $69,000 reparation to Commonwealth.
Custodial sentence served in full, recognizance release order to expire soon.
Appeal allowed: convictions, sentences and orders quashed, judgement of acquittal entered.
50

VASTAG, Geza - CCA 20.6.97.
Conviction appeal.
2 x supply prohibited drug (ss.25(1) & 29 Drug Misuse and Trafficking Act).
Fresh evidence - 'Police Royal Commission Material' appeal - allegations made at Police Royal Commission against police who Crown relied upon for its case.
Appeal allowed: new trial ordered.
51

NOMCHONG, Gregory James - CCA 10.4.97.
Crown appeal against sentence.
Attempt to influence member of NSW Police Force with intent to pervert the course of justice.
S.319 Crimes Act - objective gravity.
36m PD.
Appeal allowed: resentenced to MT 1y 3m, AT 1y 9m.
52

PHAM, Cao Hung - CCA 27.3.97.
Crown appeal.
Attempt export 2 Major Mitchell cockatoos and 5 Galahs (s.21(b) Wildlife Protection (Regulation of Exports and Imports) Act 1982).
Recognizance in the sum of $1,000 to be of good behaviour for 3 years, to pay pecuniary penalty of $7,500 within one month. Max sentence is a fine of $100,000 or imprisonment for 10y or both.
Crown appeal dismissed.
53

PRIESTLEY, Christopher Hervey - CCA 3.6.97.
Crown appeal.
3 x sexual intercourse with person under age of 16 years; 1 x attempt sexual intercourse (girl aged 15 years at time of offences).
Deferred sentence, 3y good behaviour bond.
Whether non-custodial sentence manifestly inadequate - whether trial judge erred in exercise of discretion - strong subjective case - respondent in Army.
Appeal dismissed.
54

TIDSWELL, James Rex - CCA 3.4.97.
Crown appeal.
1 x knowingly take part in cultivation of prohibited plant (172 cannabis plants) - max penalty 2000 penalty units or 10y; 1 x possess prohibited drug (cannabis leaf and cannabis seed) - max penalty 20 penalty points or 2y.
Recognizance in the sum of $200 to be of good behaviour for 3y.
Trial judge erred in discounting estimated street value - general deterrence - legislative intent.
Appeal allowed: 18m PD.
55

WATT, Hamish Anderson - CCA 2.4.97.
Crown appeal against sentence.
Malicious wounding with intent to do GBH. Originally charged with attempted murder with alternative count of malicious wounding with intent to do GBH. Respondent pleaded guilty to alternative count which was accepted by Crown in full satisfaction of indictment (s.33 Crimes Act, max penalty 25y).
Use of knife aggravating factor - provocation.
MT 18m, AT 18m.
Appeal allowed: resentenced to MT 2y, AT 2y.
56

CASE, Jason Andrew - CCA 18.7.97.
Sentence appeal.
1 x robbery with striking; 1 x AOABH - pleaded guilty to lesser charge of AOABH and Crown accepted in full satisfaction of indictment (carries max penalty of 5y).
MT 18m, AT 18m.
Parity - other offenders given significantly lesser sentences - exercise of discretion.
Appeal dismissed.
57

CROWL, James Albert - CCA 10.7.97.
Conviction and sentence appeal.
Indictment containing 24 counts, each odd numbered count alleging offence contrary to s.178BA Crimes Act (dishonestly obtain by deception), & each even numbered count alleging offence contrary to s.178A (fraudulently omitting to account). Although indictment did not specify counts as alternatives, Crown case conducted on basis that jury invited to consider s.178BA counts first & only to consider s.178A counts in event they not satisfied former had been proved. Jury invited to acquit on counts 1, 3, 5, 7 & 9. Convicted on remaining 7 primary counts & also on 5 counts of fraudulently omitting to account which were paired with those counts upon which acquittal had been invited.
Concurrent FT 1y on each of 5 counts (s.178A) and concurrent MT 2y, AT 1y on each of 7 counts (s.178BA) to be served cumulatively upon FT.
Charges appropriate - no special point of principle - discussion of evidence by video link.
Appeals dismissed.
58

H, D - CCA 14.7.97.
Conviction appeal on Count 5 and leave to appeal generally against sentences.
Counts 1 & 2: indecent assault on female under age of 16y (s.76 Crimes Act, carrying max 6y);
Counts 3 & 4: carnal knowledge of girl of or above age of 10y and under 16y (s.71, max penalty 10y);
Count 5: sexual intercourse with person between 10y and 16y under authority (s.66C(2), max penalty 10y).
Count 1: FT 1y.
Count 2: FT 6m.
Count 3: FT 4y.
Count 4: FT 5y.
Count 5: MT 6y, AT 2y.
All sentences to date from 26.3.97.
Ground of appeal: Judge ought to have directed jury to acquit on ground there was no evidence that complainant was under authority of appellant.
Conviction appeal dismissed.
Sentence appeal dismissed.
59

JIN, Xio Ming - CCA 9.7.97.
Sentence appeal.
1 x supply commercial quantity prohibited drug (heroin); 1 x supply prohibited drug (heroin); + 1 x goods in custody on a Form 2.
Plea of guilty entered.
1st count: MT 5y, AT 2y.
2nd count & matter on Form 2: FT 4y.
Claim that judge relied far too heavily on report from police, judge erred in finding applicant a major player - no substance in either submission.
Appeal dismissed.
60

LI, Kenny - CCA 9.7.97.
Sentence appeal.
1 x B&E in circumstances of special aggravation in breach of s.112(3) Crimes Act, carrying max penalty of 25y. Two other offenders.
MT 3y 5m, AT 2y.
Parity.
Leave to appeal refused.
61

O'LEARY, Bradley Stuart - CCA 7.7.97.
Sentence appeal.
Attempt BE&S (s.112 Crimes Act - max penalty 14y); steal MV (s.154AA - max penalty 10y). Plea of guilty entered on both counts.
Special circumstances found by sentencing judge.
Attempt BE&S: sentenced to MT 2y, AT 3y.
Steal MV: received concurrent FT 12m.
Leave to appeal refused.
62

RICH, Rowena May - CCA 7.7.97.
Sentence appeal.
4 x BE&S (s.112 Crimes Act, max penalty 14y); 1 x steal MV (s.154AA, max penalty 10y): + 3 additional offences on Form 2.
BE&S + Form 2 offences: sentenced to MT 2y, AT 3y.
Steal MV: sentenced to concurrent FT 12m.
Sentencing judge described offences as illustrating 'high degree of criminality' with forethought and planning.
Criminal record involving a number of offences for dishonesty.
Appeal dismissed.
63

SORENSON, David Michael - CCA 7.7.97.
Sentence appeal.
4 x BE&S on first indictment; 1 x BE&S on second indictment; + 8 x BE&S on a Form 2.
Property on 1st and 2nd indictment, ignoring the Form 2 offences, exceeded the sum of $13,000.
BE&S carries a max penalty of 14y.
1st indictment: Counts 1, 2 & 3 - FT 15m; Count 4 & Form 2 matters - MT 2y 9m 14d, AT 18m;
2nd indictment: FT 15m.
Regina v Hayes [1984] 1 NSWLR 740 referred to.
Full weight given to subjective circumstances.
Appeal allowed on 4th count, in so far as it was adjusted to 2y 9m 7d to take into account 81 days spent in custody, not 74 days as was calculated by sentencing judge.
64

TRACEY, Lance Victor - CCA 7.7.97.
Sentence appeal.
Malicious wounding (s.35(a) Crimes Act, carrying max penalty of 7y).
Adhered to plea of guilty entered in Local Court.
On recognizance for 12m for AOABH at time of malicious wounding offence.
MT 2y, AT 8m.
Victim an alleged child sexual assault offender.
Appeal dismissed.
65

WOLFF, Graham Peter - CCA 7.7.97.
Sentence appeal.
1 x sexual intercourse without consent (s.61I Crimes Act, max penalty 14y).
Originally charged with further offence of commit common assault against same victim but after guilty plea to s.61I charge, Crown did not proceed with common assault charge.
MT 2*y, AT 2*y.
Applicant and victim had previous sexual relationship. Relationship terminated and victim formed relationship with another man to whom she became engaged.
Claim of mental disorder rejected.
Appeal dismissed.
66

A, G - CCA 17.7.97.
Conviction appeal.
2 x carnal knowledge of girl under 17 years;
1 x AOABH. In each case complainant was appellant's daughter.
Documents relating to psychiatric counselling of complainant produced on subpoena - judge deferred decision on application to give counsel leave to inspect.
Whether trial judge erred in accepting electronically recorded interview - whether appellant's psychiatric condition made admissions unreliable - s.85 Evidence Act.
Appeal dismissed.
67

C, L L - CCA9.7.97.
Conviction appeal.
2 x sexual intercourse with 4 year old girl. Appellant 15 years at time of offences; 19 at time of trial. Child 8 years at time of trial.
Penile penetration followed by digital penetration. Evidence of complaint made very shortly after alleged episode. Medical evidence vagina had been abraded & fresh tear in hymen. DNA test carried out on semen from child's panties and appellant's blood - results excluded 99.97% of population.
Appeal dismissed.
68

WILLIAMS, Gordon Arthur - CCA 17.7.97.
Leave to reopen hearing of appeal against conviction on 15 April 1994.
3 x sexual intercourse with person aged between 10 and 16 by a person in authority; plus 2 alternative charges.
Convicted on principal charges but convictions quashed by CCA on 21 May 1992 and new trial ordered.
Re-arraigned upon 5 counts similar to those presented at first trial.
Convicted upon one charge: sexually interfering with girl aged 11 years.
MT 2y, AT 3y.
Appeal to CCA on 15 April 1994 dismissed.
Fresh evidence - Credibility of critical Crown witness.
Appeal allowed: new trial ordered.
69

WRIGHT, Glen - CCA 8.7.97.
Conviction appeal.
Crown appeal.
Solicit to murder (s.26 Crimes Act, carrying max penalty of 25y).
MT 3y, AT 1y.
Offence complete upon offender soliciting with requisite intent - subsequent withdrawal no answer to charge - repentance evidenced by attempt to cancel arrangement relevant to sentence.
Conviction appeal dismissed.
Crown appeal dismissed.
70

HOOD, Anthony James - CCA 9.7.97.
Crown appeal.
Falsely represent motor vehicle owned by respondent had been stolen, with intent to pervert the course of justice (s.319, max 14y); dishonestly obtain financial advantage (s.178BA, max 5y); giving evidence on oath before the Police Royal Commission knowing it to be false (s.21, max 5y).
MT 9m 11d, AT 6m imposed on each charge. Unusual duration of sentences explained by Judge Moore as arising from existence of sentence previously imposed on respondent to which he was still subject and need to observe principle of totality. However, a few days before sentence, on 13.2.97, CCA allowed appeal on previous sentence. (See R v Anthony James Hood, unreported, 13.2.97.)
Totality.
Crown appeal allowed: resentenced to MT 18m, AT 12m.
71

TAPFIELD, Troy Rohan - CCA 30.7.97.
Crown appeal.
Dangerous driving causing death.
Respondent affected by heroin.
MT 12m, AT 9m.
Bad driving record. Previous convictions. Sentence outside range set by CCA.
Appeal allowed: sentence increased to MT 1y 9m, AT 1y 3m.
72

ORSOS, Andrew David - CCA 8.7.97.
Stated Case from District Court.
Crimes Act s.61N - 'Inciting an act of indecency with or towards (a person)'- provision construed to distinguish 'with' and 'towards'- a single count charging 'with or towards' duplicitous.
By majority, question answered in the affirmative.
73

PUBLIC GUARDIAN v GUARDIANSHIP BOARD & ORS
(NSW SC, Protective Division, Hodgson J, 20.5.97)
Fitness to be tried - election for determination by judge alone - mental health - guardianship - power of guardian to make election.
Held: An election to have a person's fitness to be tried determined by judge alone pursuant to s.11A Mental Health (Criminal Procedure) Act cannot be made by a guardian on behalf of that person.
Guardianship Act ss.3, 7, 14, 16.
Mental Health (Criminal Procedure) Act ss.11, 11A, 12.
R v Mifsud, unreported CCA, 8.11.95.
74

DALY, Trent Barry - CCA 14.7.97.
Conviction appeal and leave to appeal against sentence.
Receiving stolen goods + 2 matters involving possession of prohibited drugs on a Form 1.
Principally a circumstantial case.
MT 9m, AT 15m.
Test in M v The Queen (1994) 181 CLR 487 applied.
Conviction appeal dismissed.
Sentence appeal dismissed.
75

MONKS, Stuart Norman - CCA 5.8.97.
Conviction and sentence appeal.
A number of charges arising out of alleged aggravated sexual assaults upon complainant. Acquittals directed on some of the charges.
Jury convicted on remaining charges of sexual assault, including sexual intercourse without consent in circumstances of aggravation. Co-accused convicted of aiding and abetting.
MT 9y, AT 3y on more serious charge, lesser concurrent sentences in relation to other offences.
Whether trial judge erred in refusing adjournment to allow defence to call additional witness - whether trial judge erred in rejecting tender of medical report. Evidence Act ss.48, 60 & 69 considered.
Conviction appeal dismissed.
Sentence appeal dismissed.
76

WEBSTER, Daniel James - CCA 29.7.97.
Sentence appeal.
2 x BE&S; + 3 x BE&S and 1 x B&E with intent, 1 x assault police officer, 1 x resist arrest taken into account.
Guilty plea.
Sentenced to 12m PD.
PD order cancelled - only attended 13 periods of PD; absent for 16 periods; incurred 2 penalty periods; total number of periods remaining to be served was 41 - claim of illness but no documentary evidence provided.
Sentenced to serve 41w full-time custody.
Issues raised under s.27(4) Periodic Detention of Prisoners Act - discretion to set MT and AT.
R v Sommerville (1995) 77 A Crim R 122; R v Mikas (1996) 85 A Crim R 34; Wilson v Department of Corrective Services (unreported 12/2/97); R v Biddle (unreported 6/3/97); R v Lloyd (unreported 17/6/97) referred to.
CCA has no jurisdiction to hear appeal against cancellation of order for PD - not a sentence within s.5(1)(c) Criminal Appeal Act.
Application for leave to appeal refused.
77

WILSON, Jason - CCA 31.7.97.
Conviction and sentence appeal.
3 x stealing from the person (s.94 Crimes Act); 1 x common assault (s.61); 1 x AOABH (s.59).
All sentences concurrent, effective MT 3y, AT 3y.
Challenge to jury verdicts - no special point of principle.
Conviction appeal dismissed.
Sentence appeal dismissed.
78

D, B - CCA 28.7.97. (94 A Crim R 131)
Conviction appeal.
3 x sexual intercourse without consent in circumstances of aggravation (complainant 18 years, appellant her uncle).
MT 5y, AT 3y.
Evidence of complaint in sexual assault cases - admissibility in evidence in chief of complainant pursuant to Evidence Act 1995, ss.66, 108(3)(b) - whether use of evidence should be limited pursuant to s.136 - Regina v Geoffrey Arthur Hall (CCA, 28.2.97, unreported).
Appeal allowed: new trial ordered.
79

DAVIS, Guy Raymond - CCA 31.7.97.
Conviction appeal.
Supply prohibited drug (amphetamine); sexual intercourse without consent.
Pleaded guilty to count 1 and not guilty to count 2.
Count 1: FT 6m.
Count 2: MT 5y, AT 20m.
Trial judge's summing up inadequate - unbalanced summing up.
R v Ali (1981) 6 A Crim R 161; Cleland v R [1982] 151 CLR 1; Green v R (1971) 126 CLR 28; Wilde v The Queen 164 CLR 365 referred to.
Appeal allowed: Conviction on count of sexual intercourse without consent quashed, verdict and judgement of acquittal on that count entered.
80

DREW, Graham Peter - CCA 5.8.97.
Conviction appeal.
Supply heroin.
Admission of fresh evidence - Gallagher v The Queen (1986) 160 CLR 392 applied - prior inconsistent statements - - hearsay evidence - s.165(2) - directions by trial judge - s.60 Evidence Act 1995 - verdict unsafe and unsatisfactory - M v R (1994) 181 CLR 487 applied.
Appeal dismissed.
81

VELLA, Anthony - CCA 1.8.97.
Conviction appeal against two convictions for sexual assaults upon two juveniles who were brother ( 'A' - aged 9y) and sister ( 'B' - aged 8 or 9y).
Separate trials.
Criminal law & procedure - verdict unsafe & unsatisfactory - warning pursuant to s.165 Evidence Act 1995 - trial judge duty to summarise evidence and counsel's arguments - whether summing up adequate - ss. 66, 108(3) & 165.
Appeal dismissed.
82

WITHAM, John Allen - CCA 30.7.97.
Conviction appeal.
Maliciously inflict GBH (s.35(b) Crimes Act); alternative charge of AOABH (s.59).
Convicted upon alternative charge.
500 hours CSO. Offence committed with son who was required to enter into a recognizance (jury had made a recommendation for mercy).
Criminal law & procedure - warning relating to evidence of complainant - whether verdict inconsistent.
Appeal dismissed.
83

PELLOW, Matthew Benton - CCA 1.8.97.
Crown appeal.
Dangerous driving occasioning death (s.52A(1) Crimes Act; dangerous driving occasioning grievous bodily harm (s.52A(3).
500 hours CSO ordered on each charge, disqualified from obtaining or holding driving licence for 5y.
Respondent fell asleep at wheel - pleas of guilty - strong subjective case - shift worker.
Appeal allowed: two concurrent periods, each of 12m PD substituted.
84

REDDEN, John Allyn - CCA 18.7.97.
REDDEN, Lorna Carmel
Crown appeals.
Each charged with 1 x imposing on the Commonwealth (s.29B Cth Crimes Act). Plea of guilty entered by both.
Order made under s.20(1)(a) Crimes Act releasing respondents without passing sentence, conditional upon entering into recognizance to be of good behaviour for 4 years. Each fined $12,000 to be paid within 21 days. Reparation order made against each respondent under s.21B in the sum of $45,580.
Appeals dismissed.
85

BRADSHAW, Dean - CCA, 4.8.97
Sentence appeal.
3 x supply prohibited drug (cannabis) - s.25(1) Drug Misuse and Trafficking Act - max penalty fine of $200,000 or 10y imprisonment or both.
MT 12m, AT 4m on first count; concurrent FT 6m on other two counts.
Appeal dismissed.
86

BROWN, Gregory John - CCA, 15.7.97.
Conviction and sentence appeals - extension of time.
Sexual offences - 35 charges in all - predilection for committing indecent assaults upon boys. Appellant owned boys' amusement shop; ex-scout master.
MT 2y, AT 1y 9m.
Claim of delay in complaint, unsafe & unsatisfactory, fresh evidence, inflammatory address by Crown Pros, directions on complaint, lying.
Appeals dismissed.
87

EVERSON, Richard Roy - CCA, 4.8.97.
Application to reopen application to appeal against sentence which was dismissed after applicant had forwarded a Notice of Abandonment on 12.2.97 because of one co-offender's appeal being dismissed. However, another co-offender's appeal later succeeded.
2 x supply not less than commercial quantity methylamphetamine( 411.6 gm & 437.8 gm) - max penalty fine $350,00 or 20y or both. Plus 2 further supply taken into account (cocaine - less than commercial quantity).
MT 2y 6m, AT 10m.
Parity.
Appeal allowed: resentenced to 2y 10m, consisting of MT 2y 1m 18d. Order made for immediate release.
88

O'DONNELL, Jason Gordon - CCA, 12.5.97.
Sentence appeal.
Threaten to inflict ABH with intent to have sexual intercourse.
Plea of guilty; previous good character.
MT 2y 11m, AT 12m.
Appeal dismissed.
89

RPS - CCA, 13.8.97.
Conviction and sentence appeal.
Sexual offences: 8 counts.
1 & 2. Carnal knowledge - NG verdict.
3. Sexual int (penile) - NG verdict.
4. Sexual int (penile) - G verdict.
5. Sexual int (penile) - NG verdict.
6, 7 & 8. Sexual int (digital) - complainant under authority of appellant - G verdict.
MT 6y, AT 2y.
Criminal law & procedure - Evidence Act 1995, s.103 - definition of 'substantial probative value' in s.3 Dictionary does not apply - interference with cross examination of principal Crown witness.
Appeals dismissed.
Note: High Court appeal allowed: new trial ordered.
90

WARE, Darren John - CCA, 9.7.97.
Sentence appeal.
1 x sexual intercourse without consent (upon niece who was under 16y - 9 or 10y);
3 x indecent assault upon the same girl.
Offender a juvenile at time of offences (17y).
MT 18m, AT 6m.
Failure of trial judge to take certain matters into account resulted in error of principle in sentencing.
Appeal allowed: resentenced to FT 6m.
91

BURTON, Margaret Caroline - CCA, 6.8.97.
Crown appeal.
Supply prohibited drug (heroin).
Plea of guilty. Assistance to authorities.
MT 2y, AT 4y. (This went to appeal on 14.11.96 and resentenced to MT 2y, AT 2y.)
When respondent called upon to give evidence against others in drug dealing, claimed not to remember having given undertaking to assist.
R v Walters & Anor (1944) 33 NSWLR 612; R v O'Brien (CCA 10.6.93 unrep); R v Bagnall & Anor (CCA 10.6.94 unrep); R v Duck (CCA 4.8.97 unrep) referred to.
Discretion to vary sentence pursuant to s.5DA Criminal Appeal Act.
Appeal allowed: resentenced to MT 3y, AT 3y.
92

DUCK, Allan James - CCA, 4.8.97
Crown appeal pursuant to s.5DA Criminal Appeal Act.
Unlawful disposal of a body; supply prohibited drug (heroin) - max penalty 15y.
Count 1: recognizance.
Count 2: FT 6m.
Received reduced sentence because of undertaking to assist authorities. Failed to fulfil that undertaking.
R v Walters & Anor (1944) 33 NSWLR 612; R v O'Brien (CCA 10.6.93 unrep); R v Bagnall & Anor (CCA 10.6.94 unrep) referred to.
Appeal allowed: 1st count - FT 6m to be served concurrently with the FT on Count 2.
93

MORDY, Steven John (NSW SC, CD, Dowd J, 7.8.96)
Judgement on admissibility of evidence.
94

MORDY, Steven John (NSW SC, CD, Dowd J, 12.8.96)
Judgement regarding leave to cross examine under s.38(1)(a) Evidence Act 1995.
95

MORDY, Steven John (NSW SC, CD, Dowd J, 12.8.96)
Judgement on s.38 Evidence Act 1995 application.
96

MORDY, Steven John (NSW SC, CD, Dowd J, 13.8.96.
Judgement - consequential upon judgement of 12.8.96 regarding leave to cross examine pursuant to s.38 Evidence Act 1995.
97

MORDY, Steven John (NSW SC, CD, Dowd J, 14.8.96)
Judgement on application by Crown under ss.38(1)(a) and (c) to cross examine witness.
98

VELEVSKI (No.2), Ljube (NSW SC, CD, Dunford J, 12.6.97) 93 A Crim R 420
Judgement on application by Crown to cross examine witness called by it pursuant to s.38 Evidence Act 1995.
99

NEW SOUTH WALES GRAINS BOARD v GARY ERNEST DAVIS - CCA, 17.7.97
Stated case - production of records - whether reasonable time for compliance.
Held: a person has a reasonable time to comply with demand - R v Skurray (1967) 86 WN 1; Deputy Comm of Taxation v Ganke (1975) 1 NSWLR 252; Re O'Reilly ex parte Australena Investments P/L (1984) 58 ALJR 36; Peace v Button (1985) 8 FLR 388; Ace Customs Services P/L v Collector of Customs P/L (1991) 104 ALR 463 applied.
100

CINCOTTA, Norman James - CCA, 8.8.97
Sentence appeal (sentences imposed by Karpin J on 28.11.85 and by Coleman J on 18.11.96).
Karpin J: 11 x fraudulent misappropriation (s.178A Crimes Act - max penalty 7y).
Concurrent MT 16m, AT 8m on each of first 10 counts; sentence deferred on count 11 - recognizance, compensation in the sum of $68,510.69.
Coleman J: 1 x fraudulent misappropriation involving $159,510.87.
MT 3y, AT 1y.
Appeal:
Karpin J: appeal allowed, concurrent FT 16m on counts 1-10 - no additional term because of later sentence; order deleting requirement for payment of $68,510.69 on count 11.
Coleman J: appeal dismissed.
101

HOLDEN, Grant - CCA, 28.7.97.
Sentence appeal.
Cts 1-3: sexual intercourse with child under 10y (s.66A - max 20y).
Ct 4: aggravated indecent assault with child under 10y (s.61M(2) - max 10y).
Cts 5-7: sexual intercourse with child between 10 & 16y (s.66C(2) - max 10y).
Cts 8&9: aggravated indecent assault (s.61M(1) - max 7y).
Plea of guilty - position of authority - threats - deprivation - frustration.
Sentence:
Cts 1-4 - FT 3y.
Cts 5-9 - MT 2y, AT cumulative upon FT for Cts 1-4.
Appeal dismissed.
102

M, S D - CCA, 4.8.97.
Sentence appeal.
Ct 1: steal MV (s.154A).
Ct 2: aggravated armed robbery (s.97 - max 25y).
Ct 3: maliciously shoot with intent to prevent lawful apprehension (s.33).
Ct 4 (alternate charge): maliciously discharge loaded firearm with intent to prevent lawful apprehension (s.33A).
Plea of guilty to cts 1, 2 & 4 but not guilty to ct 3. Pleas of guilty accepted in full discharge of indictment.
Sentence:
Cts 2&4: MT 4y, AT 2y.
Ct 1: concurrent FT 18m.
Appeal dismissed.
103

SERIANNI, Giampiero - CCA, 4.8.97.
Sentence appeal.
Supply prohibited drug (heroin, 8.62 grams) - s.25(1) Drug Misuse & Trafficking Act - max 15y.
MT 12m, AT 2y - special circumstances.
Appeal dismissed.
104

SLUKA, Shayne Michael - CCA, 28.7.97.
Sentence appeal.
4 x drive in manner dangerous occasioning death (s.52A(1)(c) Crimes Act - max 10y).
Guilty plea - ingestion of drugs - interstate truck driver.
Urine samples revealed 0.02 mls per litre amphetamine & 0.04 mls per litre methylamphetamine.
MT 3y 6m, AT 2y 6m.
Mitigating factors - interstate imprisonment - general deterrence - rehabilitation - character evidence.
Appeal dismissed.
105

MULLER, Ryan Derek - CCA, 4.8.97.
Conviction appeal.
Supply prohibited drug (deemed supply) - 3,4-methylenedioxyamphetamine - 12 tablets weighing 3.92 grams.
Claimed for own use - depression caused by brother's suicide 2 weeks before appellant's purchase of tablets. Had purchased 15 tablets and had taken 3.
Unrepresented.
MT 9m, AT 3m.
Unsatisfactory summing-up; appellant already served nearly 6m.
Appeal allowed: conviction and sentence quashed, new trial ordered.
106

EGERTON, William John King - CCA, 8.8.97.
Conviction and sentence appeal.
2 x misapplying cheques;
3 x misapplying cash. Total $3 million.
Director treating company property as his own by banking company moneys in his own personal accounts to be remitted to overseas personal accounts contrary to s.173 Crimes Act. Overwhelming evidence of dishonesty.
Concurrent MT 18m, AT 6m on each count.
Adequate directions. Sentences lenient, not excessive.
Appeal dismissed.
107

HODGES, Gregory Ian - CCA, 20.8.97. - 95 A Crim R 85
Sentence appeal.
1 x conspire to supply prohibited drug (methylamphetamine); 1 x supply large commercial quantity methylamphetamine (ss.25(2) & 33(3) Drug Misuse & Trafficking Act - max life); 1 x knowingly take part in manufacture of methylamphetamine (s.24(1) - max 15y).
Plea of not guilty on 1st count, but guilty on 2nd and 3rd counts - accepted by Crown in full satisfaction of indictment.
MT 7y, AT 3y.
Disparity of sentences - co-offender given reduction by reason of past and promised future assistance to authorities - doubts about extent to which he fulfilled promised future assistance - doubts about truthfulness of past assistance - findings of fact concerning relative value of assistance given by co-offender and by applicant.
Appeal allowed: resentenced to MT 4y, AT 1y.
108

ALDERMAN, David (DPP (NSW) v)
(NSW SC, Common Law Division, Sperling J, 8.8.97.)
Judgement on production of documents.
Production of documents in compliance with s.6 Royal Commission (Police Service) Act 1994 - public official - false or misleading.
109

CRAMPTON, Alan James v DPP (NSW) & ANOR - Ct of A, 7.7.1997.
Application under s.5F.
Order made by trial judge forbidding publication of name of accused - source identified under s.578 Crimes Act (this section permits suppression of evidence, not suppression of names).
110

MANN, Arnold v O'NEILL, James Joseph - High Court, 31.7.97. - 191 CLR 204; 71 ALJR 903
Defamation - absolute privilege - absolute privilege only attaches out of necessity - complaint procedures & disciplinary proceedings - letter to AG questioning special magistrate's fitness to hold office - letter not a step in disciplinary proceedings - letter invoked investigative function equating with prosecuting authority's function - not necessary that statements to prosecuting authorities be absolutely privileged - complaints to prosecuting authorities enjoy qualified privilege.
111

KENNY, Nils John - CCA, 29.8.97.
Conviction appeal.
2 x homosexual intercourse; 1 x act of indecency (complainant 9 or 10y).
1 x gross indecency; 3 x homosexual intercourse; 1 x act of indecency (against brother of younger complainant).
Delay of 9y before complaint made. Judge gave jury no instruction as to delay and possible bearing upon credibility and reliability of evidence, nor did summing up contain direction as to significance of prejudice by reason of delay.
Crofts v The Queen (1996) 186 CLR 427; Longman v The Queen (1989) 168 CLR 79 followed.
Appeal allowed: new trial ordered.
112

MILENKOVSKA, Lida - CCA, 26.8.97.
Conviction appeal.
Supply prohibited drug (s.25(1) Drug Misuse and Trafficking Act 1985).
MT 10m, AT 2y.
Body search - plastic bag in vagina containing heroin (14.4 grams, 53% purity) - scales found in appellant's bag - heroin for own personal use - drug usage over period of 13 years using up to 0.5 grams daily.
Grounds: misleading evidence given in reply - unfair line of questioning by prosecution inconsistent with material in its possession - improper circumstances of search.
Appeal dismissed.
113

RANDLE, Steven William - CCA, 8.8.97.
Sentence appeal.
1 x B&E with intent (s.113 Crimes Act - max 10y); 3 x BE&S (s.112 - max 14y).
All offences committed on same day, involving a few thousand dollars, much of it recovered. Plea of guilty entered.
MT 4*y, AT 1*y.
Broken family background - violent alcoholic stepfather - use of drugs - previous record of 45 convictions.
Sentences severe but within sentencing discretion.
Appeal dismissed.
114

RICHARDSON, Gregory Charles - CCA, 26.8.97.
Sentence appeal.
Two matters:
Before James J: Malicious wound with intent to do GBH (guilty plea) - MT 3*y, AT 2*y.
Before McGuire J: Propose to commit murder (guilty plea entered on 2nd day of trial) - MT 5y, AT 2*y to commence on date of expiration of MT imposed by James J; in effect, a head sentence of 11 years, comprising MT 8*y, AT 2*y.
The propose to commit murder offence was arranged with a fellow prisoner in gaol.
A number of psychiatric & psychological reports tendered at trial - psychiatric history - depression - twice attempted to commit suicide - problem with alcohol - claimed wife had been having an affair.
Principle of totality - special circumstances.
Appeal allowed on propose to commit murder charge: resentenced to MT 4y, AT 3*y, giving a total MT 7*, AT 3*y.
115

TABIRARA, Jose Bergonia - CCA, 29.7.97.
Conviction appeal.
5 x indecent assault (s.61E Crimes Act). All offences related to same complainant.
Found guilty on one count, acquitted on other four counts.
No significant distinction of issues on conviction count and two of the others - delay before complaint - positive evidence adduced by appellant. Mackenzie v The Queen 71 ALJR 91 referred to.
Isolated verdict unsafe.
Appeal allowed: conviction quashed, verdict & judgement of acquittal entered.
116

WARD, Gavin Ali - CCA, 8.8.97.
Sentence appeal.
Count 1: cultivate prohibited plant (cannabis);
Count 2: cultivate prohibited plant (cannabis);
Count 3: 2 x supply prohibited drug (cannabis);
Count 4: 2 x supply prohibited drug (cannabis);
+ 1 x possess prohibited drug on a Form 2.
Plea of guilty entered.
Count 2 + Form 2 matter - MT 12m, AT 4m;
Counts 1 & 3 - FT 12m;
Count 4 - FT 1m.
Grounds: error in sentencing judge finding he had no discretion to resort to sentencing options other than full time custody - special circumstances - sentences manifestly excessive.
Appeal dismissed.
117

NEWMAN, Peter Hilton James
(NSW SC, CD, Graham Barr J, 3.9.97)
Sentence:
Originally charged with murder and AOABH, pleaded guilty to manslaughter and AOABH which was accepted by the Crown in full discharge of the indictment.
Unprovoked attack - no struggle.
Manslaughter: MT 6y, AT 2y 10m.
AOABH: FT 3y.
118

ARTHUR, Bradley - CCA, 3.3.97.
Sentence appeal.
BE&S in circumstances of special aggravation (namely mal inflict GBH);
Mal inflict GBH with intent; 2 x supply amphetamine or methylamphetamine; 2 x intercourse without consent in circumstances of aggravation; AOABH; mal wounding; kidnapping with intent to carnally know; demand money with menaces. Additional matters taken into account: 6 x aggravated sexual intercourse; 1 x attempt aggravated sexual intercourse; 1 x AOABH; 1 x use offensive instrument to avoid apprehension.
MT 13y, AT 4y 4m.
No special circumstances - on protection - early plea of guilty.
Appeal dismissed.
119

BENNETT, Neil - CCA, 3.9.97.
Sentence appeal.
Five pairs of charges, each pair comprised of 1 x BE&S; 1 x steal MV. In sentencing, 5 further offences taken into account.
MT 2*y, AT 1*y. Special circumstances found within s.5(2) Sentencing Act. 18y old at time of offences, 20y old at time of sentence. Tragic upbringing.
Alleged 'failure to administer individual justice'- whether recommendation that sentence be served in special care unit was essential basis of sentence.
Appeal dismissed.
120

GRAHAM, Phillip John - CCA, 2.9.97.
Conviction appeal.
4 x indecent assault by person in authority (s.61E(1A) Crimes Act); 3 x sexual intercourse with person under age of 10y (s.66A); 1 x attempt sexual intercourse with person under 10y (s.66B).
Found guilty of 3 counts indecent assault (s.61E(1A)) and 3 counts sexual intercourse with person under 10y (s.66A).
MT 2y, AT 2y for counts under s.66A; concurrent 12m imposed for counts under s.61B(1A).
Unsafe and unsatisfactory - admissibility of ERISP - admissibility of 'complaint'- spontaneity - Evidence Act 1995 ss.55 & 66.
Appeal dismissed.
121

KERR, Hamish Younger - CCA, 26.8.97.
Crown appeal.
Armed robbery (s.97 Crimes Act carrying max penalty of 20y) - bottle shop - $542 stolen.
Granted bail on condition he enter Odyssey House. Discharged from Odyssey House due to behavioural problems. Rearrested and pleaded guilty in LC to armed robbery. Granted bail on condition he reside with family friend and undertake drug rehabilitation course with the William Booth Institute. Came before Coolahan AJ in the Newcastle DC on 27.3.97 for sentencing and asked that 6 further offences be taken into account ( demand money from console operator at service station - $450; 2 x being disguised with intent to commit felony; steal power tool from carport; possess prohibited drug; self-administer prohibited drug - heroin).
Placed on Griffiths remand.
Appeal dismissed.
122

ROOKE, Garry James - CCA, 2.9.97.
Conviction and sentence appeal.
Receiving stolen MV; accessory after the fact of receiving stolen MV.
Sentenced to MT 18m, AT 6m on first count; concurrent FT 9m on second count.
Admissions made during unlawful detention - whether in admitting evidence of admissions trial judge applied tests prescribed by Evidence Act 1995 - whether statement shown by evidence as unlikely to be true is unreliable for purposes of sub-s.(2) of s.85 Sentencing Act - whether discretion to receive illegally obtained evidence properly exercised - nature of test under s.138 considered.
Held trial judge correctly applied tests prescribed by ss.85 & 138 - exercise of discretion did not miscarry.
Appeal dismissed.
123

SPINKS, John Kenneth - CCA, 7.8.97.
Sentence appeal.
Appeal against redetermination of life sentence for murder conviction. No error shown in trial judge's determination of additional term of life. Not necessary to find 'most serious case of murder' for additional term of life to be determined. Sentencing Act s.13A considered.
Appeal dismissed.
124

STAFRACE, Michael - CCA, 4.9.97 - 96 A Crim R 452
Sentence appeal.
2 x without reasonable excuse, possess not less than trafficable quantity cocaine reasonably suspected of being illegally imported (s.233B(1)(ca) Customs Act) totalling 1,664.5 grams pure cocaine.
Sentenced to 12y with 9y NPP.
Principal issue for determination on appeal is the correct identification of applicant's intention in relation to cocaine in his possession - R v Akram Derbas (1983) 5 PSR 2881 at 2884. Cocaine was in two safety deposit boxes, one in the name of the applicant and the other in the names of the applicant and another man. Accepted that applicant had not established that his possession of cocaine in each safety deposit box was for purposes other than related to sale of or other commercial dealing in the drug.
Appeal allowed: resentenced to 10y with 6y NPP.
125

WEBSDALE, Geoff Ian - CCA, 15.7.97.
Conviction appeal.
2 x murder; 1 x wound with intent to murder; 1 x malicious wounding with intent to do GBH.
Three of the victims (2 females, 1 male) were part of a shearing team in which the appellant worked as an apprentice, and one victim (male) a non-member of the shearing team.
Having armed himself, appellant kicked open door of women's quarters and observed them on beds, each accompanied by one of the males. Appellant commenced firing his weapon.
Fresh evidence - assertion that solicitor acting for appellant at trial had a conflict of interest - psychological assessments - objection to evidence.
No defect in Crown case or its presentation - defence appropriately conducted on justiciable issues.
Leave to appeal refused.


 

126

NGUYEN, Minh Heiu
TUAN LE, Ngoc Anhn
(NSW SC, CD, David Levine J, 27.5.97)
Judgement on application for separate trials.
2 x murder.
Application refused.
127

BATTY, Steven Ross - CCA, 6.8.97.
Conviction and sentence appeal.
Robbery in company ($100).
MT 1y, AT 2y.
Photographic identification - 'mug shots'- unsafe & unsatisfactory.
Evidence Act 1995, s.115 considered.
Appeal dismissed.
128

CLARK, Kelly James - CCA, 5.9.97. - 95 A Crim R 585
Crown appeal.
Assault with intent to rob.
Deprived childhood - no father - molested when young - sniffed petrol & smoked marijuana at young age - dependent on alcohol & drugs - bad criminal record, including offences involving violence for which he had been imprisoned.
Placed on 'Griffiths remand'.
Whether circumstances justified a 'Griffiths remand' for drug and alcohol rehabilitation programme - serious risk of suicide if incarcerated at that time.
Appeal dismissed.
129

MANY, Fred - CCA, 1.9.97.
Refusal by Davidson DCJ to grant permanent or temporary stay of proceedings - certificate given by his Honour, pursuant to s.5F Criminal Appeal Act 1912 in that regard.
Exercise of judicial discretion - no error of law - media should be careful about reporting of proceedings in order not to jeopardise a trial for armed rob later this year.
Appeal dismissed.
130

ALLEN, Shannon - CCA, 8.9.97.
Sentence appeal.
2 x armed robbery (toy pistol); 1 x possess sawn-off shotgun.
FT 5y 3m.
Guilty plea - contrition - frank admissions upon arrest.
Bad record, beginning when he was 14 - many BE&S, dishonesty offences and assaults - gaol sentences - fines - bond - gambling and drug habits.
Appeal dismissed.
131

CLAYTON, Christopher Stephen - CCA, 16.9.97. 42 NSWLR 268
Stated case.
Crimes Act 1900, s.444(4) - whether sub-section prohibits imposition of a third sentence to follow two consecutive sentences previously imposed, when the third sentence imposed during currency of the second.
Proceedings remitted to be dealt with according to law.
132

MARLIN, Mark - CCA, 10.9.97.
Crown appeal.
2 x dangerous driving occasioning death.
Guilty plea entered.
Respondent deliberately made vehicle skid sideways on slippery grass surface, vehicle rolled over and respondent's friend and 2 year old daughter were both killed.
200 hours CSO, disqualified from driving for 12 months.
Appeal dismissed.
133

SAM, William Wai - CCA, 5.9.97.
Conviction appeal.
Supply not less than commercial quantity heroin (447 grams).
MT 4y, AT 16m.
Strong Crown case - joint enterprise - inferences as to knowingly involved in enterprise - identification evidence.
Inadequate summing up - an accused entitled to have a trial in which relevant law is adequately explained and related to facts.
Appeal allowed: conviction quashed, new trial ordered.
134

SMITH, Brendan Kelly - CCA, 27.8.97.
Crown appeal.
Dangerous drive causing death.
MT 6m, AT 2m - MT to be served by way of home detention.
Important case on home detention because of discussion of contrast between periodic and home detention.
Majority held an order for home detention is a collateral order to a sentence of imprisonment and is not to be taken into account in assessing the adequacy of the term of imprisonment.
Minority (dissenting) held that service of sentence in home detention should be regarded as less onerous than in gaol - should have been taken into account in assessing severity or adequacy of sentence.
Appeal allowed: resentenced to MT 12m, AT 4m - MT to be served by way of home detention.
135

TIDESWELL, Raymond Norman - CCA, 10.9.97.
Conviction appeal.
2 x homosexual intercourse with children (aged 10 and 12); 1 x act of indecency.
Charged with 7 offences, acquitted of 4, having pleaded not guilty to all seven.
Total MT 2y 6m.
Admission of statements into evidence - conscious decision not to object to admission of that evidence - argued that trial became unfair - jury not mistaken or misled.
Appeal dismissed.


 

136

TURNER, Shane Gregory - CCA, 1.9.97.
Extension of time - sentence appeal.
1 x robbery with striking; offence of BE&S committed whilst on bail taken into account in sentencing.
At time of original sentencing, appellant was almost 20 but looked younger - judge observed life in gaol had obvious dangers for him - special circumstances.
2y 6m PD order.
Reported to Periodic Detention Centre on only two occasions - arrested.
Subsequently received MT 97w, AT 32w (resulting from the unexpired portion of the PD order).
Psychiatric report of personality disorder, depression, unstable mood, fear of abandonment, impulsive and self-defeating behaviour.
Appeal allowed: resentenced to MT 72w, AT 57w.
137

POSTIGLIONE - High Court, 24.7.97. - 189 CLR 295; 71 ALJR 875
Sentencing - parity principle - co-offenders - discrimination between offenders - differing degrees of criminality - due proportion between sentences - totality principle - disparity between co-offenders - justifiable sense of grievance - power to bring appeal (NSW) - purported dismissal of appeal - later application for leave to appeal - want of jurisdiction - Criminal Appeal Act 1912 (NSW).
138

BAKER, Troy - CCA, 27.8.97.
Crown appeal.
Armed robbery.
MT 6m, AT 12m.
(Periodic detention order earlier made on other matters revoked - no consequential orders fixing a MT or AT - Crown appealed against that sentence on ground it was inadequate.)
On morning of armed rob offence, applicant had attended Manly Local Court and been granted bail on charge of common assault & breach of apprehended violence order, thereafter purchasing a knife. Later that day, he entered a shop and committed the armed rob offence.
History of dishonesty offences, malicious damage, driving offences & drug offences.
Special circumstances - medical condition - drug & alcohol history - significant progress in rehabilitation.
Held: sentence grossly inadequate.
Appeal dismissed.
139

DARKIN, Christopher Lee - CCA, 10.9.97.
Sentence appeal.
Robbery with use of corporal violence; fail to appear also taken into account.
MT 4y, AT 2y.
Vicious attack by a large group of young persons in Hyde Park upon a man accompanied by his fiancee and two tourists.
Remorse - drug abuse (commenced when appellant was 14y) - living on streets - stable upbringing - behavioural problems at school - diagnosed as suffering from dyslexia - easily led - anti social traits - low average intelligence - attending alcohol & drug sessions at Remand Centre - had undertaken reading expression course.
Parity.
Appeal allowed: resentenced to MT 3y 6m, AT 2y.
140

KAIROUZ, Beshara 'Charlie'- CCA, 18.7.97.
Conviction and sentence appeal.
Knowingly take part in cultivation of prohibited plant - cannabis (s.23(1)(a) Drug Misuse and Trafficking Act).
MT 2y, AT 1y.
Admission of evidence - Judge's amendment of dates of alleged offence in indictment - direction as to occupancy of premises.
Appeal dismissed.
141

EISHAUER, Bernd - CCA, 19.9.97.
Conviction appeal.
1 x assault & commit act of indecency; 2 x sexual intercourse; 3 x being in relation to his stepdaughter.
MT 4y, AT 3y.
Whether complainant's evidence of ostensible memory of abuse was a case of true, recovered memory or a case of honestly experienced, false memory - no common knowledge available to aid resolution of that issue.
Appeal allowed: convictions quashed, judgement of acquittal entered on all counts.
142

FERNANDO, Brendan - 95 A Crim R 533
FERNANDO
, Vester Allan
(NSW SC, Abadee J, 21.8.97)
Sentence:
Brendan Fernando: Murder - life (term of natural); aggravated sexual assault - FT 10y.
Vester Allan Fernando: Murder - life (term of natural); assault with intent to have sexual intercourse without consent and in circumstances of aggravation - what constitutes worst category offence - whether Victim Impact Statement taken into account on sentence.
FT 10y.
143

HAWES, Peter v The Governor of the Goulburn Correctional Centre & Anor (NSW SC, Hidden J, 3.9.97) - 94 A Crim R 554
Judgement on plaintiff seeking an order to restrain defendants from taking, or attempting to take, samples of the plaintiff's blood, saliva or hair.
Murder.
Requested to supply sample of blood but refused to do so.
Summons dismissed.
144

BARAKAT, Jim
KARAPIDIS, Ilias
SAWYER, Craig Kevin
(NSW Dist Court, Murrell J, 7.5.97)
Judgement on admissibility of picture identification evidence - whether accused's photo tainted when other photos in selection of photographs shown to witness were 'mug shots'.
Held evidence admissible.
145

L - CCA, 7.8.97.
Crown appeal.
1 x malicious wounding with intent to cause GBH; 1 x malicious wounding.
2*y PD.
Offences committed whilst on parole - assistance to authorities - plea of guilty - diagnosed mental illness - rehabilitation.
Appeal allowed: resentenced to MT 2y, AT 2y.
146

KILMORE, Kate June
(NSW SC, Hidden J, 18.7.97)
Remarks on sentence:
Murder - sentencing judge considered whether offender's state of intoxication mitigated sentence - whether Victim Impact Statement of
deceased's family should be taken into account.
MT 10y, AT 4y.
147

NEMES, Peter Joseph - CCA, 28.8.97.
Sentence appeal.
Supply prohibited drug (cannabis leaf - 11.3 kilograms); + on Form 1 an offence of supply not less than large commercial quantity cocaine.
Special circumstances.
MT 2y, AT 3y.
Prior good character.
Appeal dismissed.
148

BALIC, Branko Ivan - CCA, 29.9.97.
Sentence appeal.
Count 1: Possess firearm without licence or permit -max 10y;
Count 2: Possess pistol on which the number had been defaced - max 5y;
Count 3: Possess prohibited weapon (electrical discharge device & battery without licence) - max 14y;
Count 4: Possess prohibited weapon (1 set of sap gloves, not being authorised to do so by licence or permit) - max 14y;
Count 5: Possess prohibited weapon (set of metal knuckledusters, without licence or permit) - max 14y.
Six further offences on a Form 2 taken into account (possess firearms).
At time of sentencing, appellant already serving sentence of MT 5y, AT 20m for offence of maliciously inflicting grievous bodily harm with intent. This went to appeal and appeal was allowed in part in that commencement date was adjusted to take into account pre-sentence custody.
Sentence: MT 3*y, AT 2y cumulative upon sentence he was already serving.
Parity - delay.
Appeal dismissed.
149

BOWERS, Stephen Edwin - CCA, 20.6.97 - 97 A Crim R 461
Sentence appeal.
Importation of commercial quantity Methylenedioxymethamphetamine (MDMA - 'Ecstasy') - 7,000 tablets.
MT 4*y, AT 4y.
Subjective features - unemployed - contrition - early plea
Category of drug for sentencing purposes R v Ferrer-Esis (1991) 55 A Crim R; R v Moore & Weibe (NSW) CCA, 11.8.92, unreported considered.
Appeal dismissed.
150

BUKSH, Iman - CCA, 29.8.97.
Sentence appeal.
Original sentence not mentioned.
Conspiracy (uttering of forged Australian citizenship certificates purporting to be issued by relevant Commonwealth instrumentality).
Concessions by Crown concerning proportion between head sentence and NPP and evidence of prior good character held Crown concessions properly made - no special point of principle.
Appeal allowed: resentenced to 3y with 1y 9m NPP expiring on 28.10.1998 and on that date applicant to be released on recognizance release order.
151

CHANNELLS, Wayne Robert - CCA, 30.9.97.
Sentence appeal.
Conviction - leave to appeal out of time refused.
Malicious wounding.
MT 3y, AT 2y.
Whether issue raised as to applicant's unfitness to plead by evidence of mental illness at earlier time - whether that evidence requires leave to be granted to withdraw plea of guilty - whether findings that applicant intended to inflict ABH breach De Simoni principle - importance of different factors in sentencing for malicious wounding.
Sentence appeal allowed: resentenced to MT 2y, AT 2y.
152

COLLINS, John Edward - CCA, 18.6.97.
Conviction and sentence appeal - matter No.60426/95.
8 x larceny (alternate counts of receiving same property) - tractor, truck - retrial.
MT 3*y, AT 14m.
Bias by trial judge - trial judge declined to call witnesses subpoenaed by appellant and set subpoenas aside - unrepresented at trial - no voir dire examinations - rejection of affidavits - special verdict, asserted irregularity - failure of trial judge to inform accused of advantages and disadvantages of voir dire evidence - failure of trial judge to call witness to give evidence - assertion of conspiracy between detectives and former solicitor - appellant not supplied with transcripts, depositions or exhibits of committal hearing - alibi.
Appeal dismissed.
153

DE HESSELLE, Mark Rene - CCA, 29.8.97.
Conviction and sentence appeal.
Possess not less than trafficable quantity prohibited import (cocaine).
MT 5y, AT 3y.
Grounds: claim by appellant of misdirections of fact in summing-up - verdict unsafe and unsatisfactory.
Appeal dismissed.
154

DODGE, Clinton - CCA, 12.9.97.
Sentence appeal.
Dishonestly obtain financial advantage by deception (advance of credit to value of $34,905); further counts of dishonestly obtain financial advantage by deception.
Guilty plea. Appellant offered to repay total outstanding amounts of almost $60,000 at rate of $4,000 per month. Judge took offer into account as mitigating factor. Open to judge to be sceptical.
Poor record for dishonesty - received bonds and fines - previous prison sentences for illegally using MV, BE&S offences, conspiracy to cheat and defraud, uttering, forgery and larceny.
MT 21m, AT 7m and a FT of 18m.
Appeal dismissed.
155

G, K R - CCA, 29.9.97.
Conviction appeal.
6 x sexual abuse.
Convicted of first 5 alleged offences, acquitted of 6th.
MT 2y 3m, AT 2y 3m.
Victim was appellant's stepdaughter - vaginal intercourse - fellatio - masturbation.
Appellant claims verdict unsafe or unsatisfactory - had constantly denied allegations.
Corroboration - victim antagonistic and resentful towards appellant - lies - serious discrepancies - increasing embellishment of allegations - discrepancy between evidence given by complainant at trial and information given to Community Services.
Appeal dismissed.
156

KAIN, Geoffrey Duncan - CCA, 12.9.97.
Sentence appeal.
3 x BE&S; 3 x breach of recognizance (relating to non-payment of compensation).
Concurrent FTs 3m.
Ambiguous evidence during sentencing proceedings as to how much had been paid in compensation - material indicating that at the time of breaches by non-payment, applicant was on unemployment benefits and probably unable to pay - applicant's solicitor did not seem to appreciate what facts and circumstances should be proved in evidence.
Appeal allowed: sentences quashed, re-sentenced to FT 2m which expired on 19 March 1997, the day on which applicant was last released on bail.
157

PANETTA, Armando - CCA, 2.10.97.
Conviction appeal. (The appellant filed a Notice of Appeal against conviction & sought an extension of time in which to do so, following the filing of a Crown appeal against sentence.)
Dangerous driving occasioning GBH.
Judge deferred passing sentence upon condition that appellant enter into a recognizance of $500 to be of good behaviour for a period of 3 years.
Witness permitted to give evidence of speed of oncoming vehicle by its headlights travelling at most over a distance of about 25 metres - s.78 Evidence Act 1995 states lay opinion requires proof of rational basis before it becomes admissible - evidence not relevant.
Relevance of inexperience of driver in sentencing - sharp increase in maximum sentences means that the case in which a sentence other than one involving full-time custody is appropriate has become rarer.
Appeal allowed: conviction quashed, verdict of acquittal entered.
158

PUKE, Richard - CCA, 12.9.97.
Sentence appeal.
Cultivate cannabis plants (405 plants); deemed supply of 603.4 grams cannabis leaf taken into account.
MT 18m, AT 18m.
Early plea of guilty - frank admissions - full co-operation with police - previously unblemished record - remorse manifest and deep - evidence before judge very frank, judge commenting he had rarely seen someone as frank - strong subjective features.
Appeal allowed: MT 12m, AT 2y.
159

ROSEBY, Anthony - CCA, 11.9.97.
Sentence appeal.
Previously abandoned appeal against conviction.
2 x assault in circumstances of aggravation committing act of indecency; 1 x commit act of indecency. The victim was aged just under 9 years at time of offences.
MT 12m, AT 12m on first count; judge deferred passing sentence on second and third counts and ordered that the applicant:
1. be bound over on recognizance in the sum of $1,000 to be of good behaviour for 3y; further conditions that on release he subject himself to all directions of officers of the Probation Service with regard to any psychiatric treatment or counselling;
2. not to approach the complainant either directly or indirectly and to remain away from the Newcastle area (complainant lived at Wallsend) except in so far as it is necessary for him to attend to conduct affairs of selling properties he owns.
Applicant appealed against the order that he remain away from the Newcastle area and also as to psychiatric evidence - applicant suffering from Bipolar Affective Disorder which can produce mild to moderate exacerbations which are sufficient to cause judgement and inhibition to be affected.
Appeal allowed: sentence varied by deleting condition No.2 above and substituting conditions as follows:
'2. That the applicant not approach either directly or indirectly the complainant or the complainant's mother.
3. That the applicant remain away from Wallsend'.
160

S, A R - CCA, 25.9.97.
Submission of question of law by DPP following acquittal in the District Court.
'Does the definition of prescribed sexual offence proceedings for the purposes of s.409B of the Crimes Act 1900 include proceedings in which the accused is charged with one prescribed sexual offence as defined in s.4 of the Crimes Act 1900, and other offences allegedly committed prior to the enactment of s.409B?'
Question answered in the affirmative; no other answer was possible in view of the definition of prescribed sexual assault proceedings in Crimes Act, s.4.
No question of principle discussed.
161

ALFARO, Jose Homero - CCA, 8.9.97.
Sentence appeal.
1 x knowingly take part in supply of cannabis leaf (actual supply, although a small amount); 1 x knowingly take part in supply of not less than commercial quantity prohibited drug (cannabis leaf).
Guilty plea (this charge not an actual supply but an agreement to supply).
Concurrent sentences of MT 1*y AT 6m imposed on each count (sentences dated to commence on actual date of sentence).
Submissions on behalf of the applicant that sentences appellably disproportionate to demonstrated objective gravity of offences - his Honour's reference to a 'broker' might more accurately have been a reference to a 'facilitator'- general and comparative minor facilitator rather than an active principal.
Appeal allowed: resentenced to MT 1*y, AT 6m to commence on 23 August 1996, taking into account pre-sentence custody.
162

COMBEO, Peter - CCA, 29.9.97.
Conviction appeal.
Escape from lawful custody.
Recognizance in the sum of $2,000 to be of good behaviour for 3y.
Appellant arrested by police for refusing to take breath test after vehicle he was allegedly driving was stopped by police - appellant denied he was driver - argued that his belief that police were mistaken about him driving was relevant to lawfulness of arrest and custody.
Held - there was no such issue to be left to the jury.
Appeal dismissed.
163

DINIC, Petar - CCA, 3.9.97. - 149 ALR 488
Sentence appeal.
Possess prohibited imports - pure 3,4 MDMA commonly known as 'Ecstasy'(being 529.8 grams, equivalent to 159.4 grams with a street value of $160,000). Max penalty for this offence 25y and/or fine of $100,000).
Guilty plea.
MT 3y, AT 2y. Pre-sentence custody taken into account.
Submitted on behalf of applicant that value of substance placed offence at lower end of scale in terms of gravity - his Honour erred in finding that applicant was more than a mere courier - criticism of remarks on sentence - assistance to authorities.
Appeal dismissed.
164

DOWNEY, Steven John - CCA, 3.10.97 - 97 A Crim R 41
Sentence appeal.
Originally came before Court as appeal against conviction and sentence, conviction appeal abandoned.
Maliciously inflict GBH; larceny of MV. Acquitted on a charge of BE&S with an alternative charge of larceny.
MT 4y, AT 2y on maliciously inflict GBH; concurrent FT of 1y on larceny charge.
Whether appellant's sentence should be reduced on basis of assistance to authorities - consideration of matters set out in s.442B Crimes Act.
Held (by majority) - court should decline to reduce sentence in circumstances of case.
Appeal dismissed.
165

GREEN, John Hilton - CCA, 29.9.97.
Sentence appeal.
Robbery (s.94 Crimes Act).
MT 3y, AT 3y. Delay in commencement of sentence due to the fact he was already serving 4m FT due to expire on 4.9.96, the date upon which the above sentence was to commence.
Guilty plea.
Crown put submissions forward to sentencing judge to consider full-time custody ranging between MT 18m AT 6m and MT 3y AT 1y.
Sentence imposed markedly higher than upper limit of range of sentences submitted by the Crown - no reference made in remarks on sentence as to reasons for imposing total sentence some 50% higher than upper range submitted by Crown.
Since sentence hearing, applicant diagnosed as suffering from significant mental illness - auditory hallucinations - need for supervision upon release.
Appeal allowed: resentenced to MT 2y, AT 2y. While on parole to be subject to supervision of Probation & Parole Service.
166

HASTINGS, Kevin Craig - CCA, 29.9.97.
Conviction appeal.
Supply cocaine.
24m PD.
One of four police officers who gave evidence later investigated by Police Royal Commission - nothing to discredit other three police officers - whether significant possibility that a jury would have acquitted appellant if fresh evidence before them.
Held: no significant possibility of acquittal shown.
Appeal dismissed.
167

INGRAM, Barry - CCA, 26.8.97.
Sentence appeal.
Aggravated dangerous driving causing death.
MT 3*y, AT 2*y. Special circumstances found.
Max penalty for this offence is 14y.
Applicant submitted that his Honour sentenced him on an unsustainable factual basis concerning point of impact and that his Honour failed to give sufficient weight to objective and subjective matters.
Appeal dismissed.
168

McADAM, John - CCA, 29.9.97.
Sentence appeal.
Malicious wounding (prescribed max 7y).
Guilty plea.
MT 2*y, AT 18m.
Applicant unrepresented at appeal.
Considerable criminal record - convictions on 2 counts of manslaughter - gaol terms - recognizances for offences involving violence.
Appeal dismissed.
169

TRAN, Minh (aka Minh Hau NGUYEN) - CCA, 26.8.97.
Crown appeal.
Armed robbery with wounding (s.98 - max penalty being 25y); plus 4 matters on a Form 1 (make false instrument, possess false implements, custody of offensive weapon, steal MV).
Guilty plea.
MT 2*y, AT 2*y.
On Committal for Sentence Document, a further crime for assault with intent to rob, being armed, was included (s.97 - max 20y).
The CCA described the s.98 offence as an appalling crime involving use of very dangerous weapon, situation of terror, wounding and which had profound effect upon principal victim of attack; s.97 offence described as being of great seriousness.
Appeal allowed: resentenced to MT 3*y, AT 3*.
170

PATTENDEN, Christopher Robert - CCA, 1.10.97.
Sentence appeal.
1 x drive motor vehicle in manner dangerous causing death; 1 x drive motor vehicle in manner dangerous causing serious bodily injury.
When appellant's blood was analysed, it was found to contain .28 milligrams per litre morphine, .02 milligrams per litre codeine, 1 milligram per litre temazepam and .024 grams per 100 litres of alcohol.
Hardship to third parties - fresh evidence of affect of imprisonment on appellant's parents and son - principles applicable to effect on third parties of sentencing considered.
Held: further evidence did not justify additional leniency.
Appeal dismissed.
171

SALEM, Albert - CCA, 3.10.97 - 96 A Crim R 421
Conviction appeal.
Supply heroin.
MT 3y, AT 1y.
Undercover operation - inciting supply of heroin - undercover police agent participating in arrangement a material witness - whether police acting illegally - s.138 Evidence Act - Ridgeway v The Queen (1995) 184 CLR 19 applied R v Anderson [1986] AC 27 distinguished.
Appeal dismissed.
172

SHORTEN, David Eric - CCA, 10.9.97.
Sentence appeal.
1 x steal MV (s.154AA - max 10y); armed robbery (s.97 - max 20y).
MT 3y, AT 3y.
Offences were regarded by his Honour as very serious.
Grounds: judge erred in not taking into account 'demonstrated rehabilitation of appellant'- sentence manifestly excessive.
Appeal dismissed.
173

MYERS v THE QUEEN - High Court, 3.9.97. - 71 ALJR 1488
Murder - 'act' of accused person - relevant state of mind - hypothesis advanced by accused person to exculpate himself - correctly rejected by jury - need for specific intent - act and intent to coincide - grounds not made out.
174

S, B.R. - High Court, 25.9.97. - 191 CLR 275; 71 ALJR 1512
Sexual offences. Teacher charged with 6 counts homosexual intercourse with pupil under age of 18y. Convicted on 5 counts, acquitted on 1 count.
Corroboration - character evidence - evidence of similar sexual conduct in relation to a witness - whether evidence capable of amounting to corroboration - whether failure by trial judge to direct jury as to permissible use of evidence amounted to miscarriage - similar fact evidence - relationship between corroboration and propensity evidence - need for warning to jury - basis of admissibility of similar fact evidence - possibility of concoction.
Appeal allowed: convictions on counts 1, 2, 4, 5 & 6 quashed and new trial ordered on those counts.
175

FRUGTNIET v AG of NSW - Court of Appeal, 13.5.97. - 41 NSWLR 588; 103 A Crim R 1
Appeal against order for transfer to Victoria made under s.15 Prisoners (Interstate Transfer) Act 1982.
Transfer of prisoners - issue & validity - arrest, search, seizure & incidental powers - warrant already spent - preconditions - whether failure to comply affects validity of order for transfer - collateral challenge - discretionary power to refuse transfer.
Magistrates' Court Act 1989 (Vic), s.66(1), (2); Prisoners (Interstate Transfer) Act 1982, ss.12, 15.
Held order for transfer should not have been made.
Appeal allowed with costs.
176

ABDULHADI, Fawaz - CCA, 3.10.97.
Sentence appeal.
Import cocaine (81% purity; pure weight 964.4 grams; commercial value in excess of $550,000 - concealed in a scuba air tank). Max penalty 25y, or a fine of $100,000, or both.
Willing participation for financial gain.
Assisted police in controlled delivery of substitute scuba tank.
5y, with 3y NPP.
His Honour indicated that had it not been for particular considerations within s.21E of the Cth Crimes Act, the sentence imposed would have been 8y with 4y NPP.
Application rested upon proposition that sentencing judge fell into error in nominating NPP of 3y within framework of head sentence of 5y - contended that his Honour ought to have nominated NPP of 2*y.
Appeal dismissed.
177

EYLES, Kenneth John - CCA, 1.10.97.
Stated case.
3 x offences against s.5 Summary Offences Act 1988:-
'5: A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person'.
Meaning of 'person' in s.5 Summary Offences Act - necessary for prosecution to prove that exposed area of the body could be seen by a person in a public place.
Matter remitted to DC.
178

HILDER, Noel Nicholas - CCA, 10.10.97 - 97 A Crim R 70
Conviction appeal; leave to appeal against sentence.
Armed robbery (bank).
MT 6y, AT 4y.
Defence of mental illness - psychiatrists unanimous accused did not know what he was doing was wrong - opinions dependent upon accuracy of history given by accused - material in evidence conflicted with history & with findings of psychiatrists - jury not obliged to find special verdict - whether judge obliged to direct jury that evidence of history given by accused is evidence of the truth of that history.
Mental Health (Criminal Procedure) Act 1990, s.37; Evidence Act 1995, s.60.
Appeal dismissed. Leave to appeal against sentence refused.
179

K, D.J. - CCA, 8.10.97 - 96 A Crim R 443
Conviction appeal.
1 x indecent assault; 4 x sexual intercourse (all upon appellant's grand-daughter).
Found guilty of 2 of the sexual intercourse offences and not guilty of the remainder.
Concurrent sentences of MT 2y 9m, AT 2y 3m imposed on each count.
Appellant subsequently stood trial upon charge of indecent assault (upon another grand-daughter) and was sentenced to a concurrent FT 6m.
Complainant gave evidence of events which took place significant time ago - direction given in accordance with s.405B Crimes Act - no reference made to effect of delay upon credit of complainant - Crown case relied solely upon evidence of child complainant - whether verdict of guilty deemed to be unsafe - R v Davies (1985) 3 NSWLR 276; R v Murray (1987) 11 NSWLR 12; Crofts v The Queen (1996) 186 CLR 427 considered.
Appeal allowed: convictions quashed, new trial ordered on 3rd and 4th counts.
180

LITTLE, Gregory John
(NSW SC, Hidden J, 17.10.97).
Remarks on Sentence.
Murder; plus 9 offences taken into account on a Form 1 (malicious damage to property by fire; steal from the person; steal from a dwelling; 2 x attempt steal MV; BE&S; larceny; malicious damage).
Unprovoked attack upon deceased.
Prisoner an Aboriginal man aged 30 - relatively minor criminal record - no significant matters of violence - third oldest of 8 children - stable and happy family background - poor student - psychologist found him to be of 'very limited intellectual capacity'- longstanding substance abuse - heavy drinker, marijuana and heroin use.
MT 11y, AT 5y.
181

MEARES, Colin - CCA, 3.10.97.
Sentence appeal.
Conspire to cheat and defraud (tax evasion).
Sentences to 2 years, to be released on recognizance after 6 months.
Appellant and his accountant charged with conspiracy - accountant pleads guilty, gives evidence against appellant and receives non-custodial sentence- whether parity in sentencing between appellant and his accountant - discussion of difference between tax avoidance and tax evasion.
Appeal dismissed.
182

MEISSNER [No.2], Joseph Ladislus - CCA, 13.10.97.
Appeal against refusal of trial judge to stay proceedings.
2 x supply prohibited substance (heroin).
Trial judge had refused to stay proceedings until a particular person was available to be called as a witness and refused to order a pre-trial examination of another witness.
Public interest immunity - no fundamental defect such that appellant will not receive fair trial.
Appeal dismissed.
183

NEWMAN, Matthew John - CCA, 9.10.97.
Conviction appeal;
Crown appeal against sentence.
Robbery with striking.
Recognizance in the sum of $1,000 to be of good behaviour for a period of 3y.
Appellant convicted and sentenced by DC judge on erroneous assumption he had pleaded guilty before magistrate - appellant's account of relevant facts inconsistent with guilt - confusion & error on part of appellant's legal representatives.
Conviction appeal allowed: conviction quashed, new trial ordered.
Crown appeal dismissed.
184

O, C.L. - CCA, 29.9.97.
Sentence appeal.
Robbery in company (s.97 Crimes Act - max 20y); accessory before the fact to murder.
Guilty plea.
Concurrent sentences of MT 5y, AT 4y imposed on each count.
Assistance to authorities - 40% discount given.
Appeal dismissed.
185

PRIOR, Trevor John - CCA, 7.10.97.
Sentence appeal.
2 x aggravated indecent assault (s.61M(1) Crimes Act - max 7y).
Found guilty on first count and not guilty on second count.
MT 15m, AT 15m with a recommendation that MT be served in protected custody.
Victim of assault was a 12y old child suffering from cerebral palsy being cared for on weekends at a centre conducted by the Northcott Society where the applicant was employed.
Pre-Sentence Report stated applicant suitable for CSO and PD - character references of applicant's dedication and service to handicapped people - references from parents of handicapped people and handicapped people themselves.
Submitted that whilst there was a need for a sentence to reflect element of general deterrence, there was no need for the sentence to reflect an element of personal deterrence - undue weight given by his Honour to statistics - offence at lower end of scale of seriousness - isolated incident of short duration - previous good character.
Appeal dismissed.
186

R, D.A. - CCA, 2.10.97.
Sentence appeal.
Sexual intercourse without consent (s.61I Crimes Act - max 14y).
MT 2*y, AT 18m. Order that sentence be served in a detention centre and recommendation that applicant be involved in Sex Offenders' Programme.
Co-accused who pleaded guilty to indecent assault (s.61I) received MT 1y, AT 1y, with similar order and recommendation.
Applicant aged 15y at time of sentencing. Applicant from Aboriginal background and is youngest of 6 children.
Sentencing - juveniles - Children (Criminal Proceedings) Act 1987 ss.16, 17, 18, 31, 32 - Children (Detention Centres) Act 1987 s.24 - Sentencing Act 1989 s.43 - R v WKR (1993) 32 NSWLR 447 discussed.
Appeal allowed: resentenced to MT 2y, AT 2y.
187

WADE, Paul William - CCA, 7.10.97.
Conviction and sentence appeal.
1 x assault and commit act of indecency; 1 x sexual intercourse without consent.
MT 1y, AT 2y 3m.
Appellant legally represented at trial but not legally represented on appeal.
Whether trial judge misdirected jury - whether verdict unsafe and unsatisfactory - whether term of imprisonment excessive.
Held: no misdirection - verdict not unsafe or unsatisfactory.
Appeal dismissed.
188

LUKE, John - CCA, 29.9.97.
Conviction appeal.
5 x sexual assault charges.
MT 7y, AT 3y.
Appeal previously lodged against convictions and sentences - appeal heard on 30.5.96 - appeal dismissed on 22.10.96.
By notice dated 24.2.97, applicant instituted further appeal against convictions, raising new grounds of appeal.
CCA has no jurisdiction to entertain further appeal - Grierson v The King (1938) 60 CLR 431; reaffirmed in Postiglione v The Queen (1997) 71 ALJR 875.
Appeal dismissed.
189

HUNT, Ian Lewis - CCA, 30.9.97.
Sentence appeal (out of time).
5 x fraudulently misappropriate (s.178A Crimes Act, max penalty 7y).
MT 1y, AT 21m on each count, to be served concurrently. Concern at time of sentencing regarding applicant's medical condition. Sentenced on 16.5.95.
Applicant appealed against conviction on 23.11.95 - appeal dismissed on 30.8.96.
Applicant on bail pending hearing of sentence appeal. Lengthy period elapsed between imposition of sentence and hearing of sentence application. The matter was listed for call-over on a number of occasions but was adjourned each time on the application of the applicant.
Submission by applicant that delays since original sentencing had caused him undue hardship. As he had been on bail for 2 years and 2 months, particular hardship would be suffered by him if he were to return to custody. Fearful and apprehensive about returning to prison because of previous attack upon him.
Held: submission misconceived because delays were caused by applicant; recommendation that applicant be given access to his anti-convulsant medication & receive proper medical and psychiatric treatment - minimum security.
Appeal dismissed.
190

BELL, Wendy Annette - CCA, 29.9.97.
Sentence appeal.
1 x armed robbery (s.97 Crimes Act - max 20y); 3 x steal from the person (s.94 - max 14y; 1 x threaten to use offensive weapon to avoid lawful apprehension (s.33B) + 2 matters under s.51A Justices Act (armed rob & larceny of MV); and matters contained on a Form 2.
In all, there were 13 offences involving 2 charges carrying a max of 20y down to offences carrying a max of 2y.
MT 4y 16w, AT 4y 6m. Principle of totality applied in sentencing, pre-sentence custody taken into account - special circumstances found.
Previous offences - none involving violence to other persons.
Appeal dismissed.
191

BOIAN, Dan Antonio 96 A Crim R 582
CARTER
, Rhonda Mary - CCA, 10.10.97.
Crown appeal.
5 x defraud Commonwealth (s.29D Crimes Act (Cth)); 9 x make false statements to obtain benefit (s.62(1)(f) National Health Act.
Boian (nursing home proprietor) - sentenced to MT 3*y, AT 2*y.
Carter (office manager for Boian, running office subject to his directions)- sentenced to 2y, with order to be released on recognizance after serving 6m.
False claims for nursing and personal care staff costs in relation to 5 nursing homes for frail aged - 'ghosting', whereby claims were made for work done by people who were not employed - falsification of records - total amount of frauds in excess of $1,7 million - prior to sentencing, all money repaid - objective seriousness of fraud - general deterrence.
Boian - Crown appeal allowed - resentenced to MT 4y 6m.
Carter - Crown appeal dismissed.
192

BOZATSIS, Peter - CCA, 29.10.97 97 A Crim R 296
SPANAKAKIS
, John
Crown appeal against interlocutory orders in the District Court.
Accused charged with manufacturing prohibited drug - police informer & undercover police officers participated in plan - police arranged supply of necessary ingredient - trial judge excluded whole of prosecution evidence - granted stay of proceedings.
Held: trial judge failed in his reasons to address issues raised by Evidence Act s.138 - orders set aside & notice of motion for stay of proceedings remitted to DC for further hearing - Ridgeway v The Queen (1995) 184 CLR 19 considered.
193

DYERS, Kenneth Emmanuel - CCA, 24.10.97.
Appeal against interlocutory order.
Permanent stay of indictment refused - earlier inconclusive trial - incidents of that trial examined - circumstances not exceptional or extreme - proceedings not an abuse of process.
Leave to appeal refused.
194

LARSSON, Berl - CCA, 11.9.97.
Sentence appeal.
Knowingly take part in manufacture commercial quantity of prohibited drug (amphetamine).
Plea of guilty.
MT 7y, AT 5y.
Applicant's initial involvement was in assisting to set up manufacturing laboratory and in monitoring, guiding and training of another in procedures involved in manufacture of amphetamines - also provided equipment left over from his own pathology laboratory - claimed laboratory produced no more than about 1 kilogram pure amphetamine per week.
Judge described applicant's criminality as 'of an extremely high order - much compounded by the fact that he committed these offences whilst on bail'.
Appeal dismissed.
195

TRAN, Thanh Vo (aka Minh Tung NGUYEN) - CCA, 3.10.97.
Sentence appeal.
Count 1 - enter building with intent to commit misdemeanour (s.114(1)(d) Crimes Act - max 7y) - sentenced to MT 9m, AT 15m;
Count 2 - unlawfully detain person - sentenced to FT 3m;
Count 3 - possess offensive weapons with intent to commit assault (s.33B - max 12y) - sentenced to MT 9m, AT 21m.
At time of sentence, applicant in custody serving sentence imposed in Children's Court (possess unlicensed firearm; possess 1 oz heroin) for which he received MT 15m, AT 6m.
Appeal dismissed.
196

PAVY, Errol Peter - CCA, 16.10.97.
Conviction appeal.
Count 1: murder - sentenced to MT 9y, AT 5y;
Count 2: maliciously inflict GBH - sentenced to FT 1y.
Deceased was 12 week old son of appellant and his wife - baby not breathing - appellant tried unsuccessfully to resuscitate him - taken to Hawkesbury Hospital - provisional diagnosis made of sudden infant death syndrome - transferred to Westmead Hospital and observed to have extensive bilateral retinal haemorrhages - CT scan revealed presence of para-falcine and sub-tentorial blood, regarded as diagnostic of 'shaken baby'- skeletal scan demonstrated presence of bilateral rib fractures.
Appellant admitted shaking baby but said that was after he discovered baby not breathing and was an act done in panic in an attempt to revive him.
Unsafe and unsatisfactory.
M v The Queen (1994) 181 CLR 487 applied.
Convictions set aside as unsafe & unsatisfactory - jury not entitled to be satisfied beyond reasonable doubt that death was caused by act of accused.
197

CAMPBELL, Brendan Bernard - District Court NSW, Howie J, 24.2.97
Judgement re photographic identification - Evidence Act s.115(4)
'Whether reasonably practicable to photograph defendant at any time after being taken into custody'.
Evidence inadmissible.
198

L, R.W. - NSW SC, Badgery-Parker J, 13.10.97.
Judgement 1 (admissibility of evidence)
Murder - admissibility of tendency evidence regarding accused's use of alleged murder weapon.
Principles - Evidence Act ss.97, 101.
199

L, R.W. - NSW SC, Badgery-Parker J, 13.10.97.
Judgement 2 (admissibility of evidence)
Admissibility of taped conversation between accused and cellmate regarding alleged murder - Evidence Act ss.90, 135, 137.
200

L, R.W - NSW SC, Badgery-Parker J, 16.10.97.
Judgement 3 (admissibility of evidence)
Admissibility of evidence of police experiment - deceased shot by bow and arrow - experiment of arrow shot into pig carcass.
Not admissible.
201

FRUGTNIET v THE STATE OF VICTORIA & ORS - HC, 17.9.97. - 71 ALJR 1598
Right to fair trial - lengthy trial - conspiracy - whether Court unable to ensure accused will receive fair trial unless legally represented - requirements of Dietrich v The Queen (1992) 177 CLR 292 - whether such requirements derive from the Constitution, Ch III - whether stay should be ordered - importance of manifest justice in criminal trials.
202

DAVIS, Camm William - NSW SC, Hidden J, 3.7.97.
Judgement on whether provocation should be left to the jury.
Murder.
Ruled no evidence of provocation fit to be left to the jury.
R v Quartly (1986) 11 NSWLR 332 referred to.
203

ESPOSITO, Guisepinna - NSW SC, Hulme J, 22.8.97.
Reasons for judgement allowing ERISP to be admitted into evidence.
During course of trial, Crown sought to tender ERISP - objection was taken and evidence given on a voir dire.
204

HOWLAND, John Robert - CCA, 1.10.97.
Conviction appeal; leave to appeal against sentence.
1 x conspire to manufacture not less than commercial quantity prohibited drug (amphetamine).
MT 2y, AT 3y.
Evidence - transcripts of intercepted telephone conversations - notebooks - handwriting.
Miscarriage of justice - appellant claimed plea of guilty entered upon advice of counsel.
Conviction appeal dismissed.
Sentence appeal: reserved.
205

LEONARD, Richard William - NSW SC, Badgery-Parker J, 10.11.97.
Sentence:
2 x murder (one was shot with arrow from compound bow - Dempsey;
the other was killed by repeatedly stabbing - Bahmad).
Claim by accused that Dempsey made sexual advances.
Partial defence of provocation rejected.
Accused diagnosed as a psychopath - little prospects of rehabilitation - no clear feelings of remorse identified - risk to the community - totality.
Life imprisonment.
206

PREUSS, David McGregor - NSW SC, Graham Barr J, 26.8.97.
Sentence:
Murder.
Shooting of friend to put him out of misery after accidentally shooting his friend.
Accused 23 yrs.
MT 7y, AT 5y.
207

NEISH, Stuart John (Nestle Australia Ltd v) - NSW SC, Common LD, David Levine J, 3.7.97.
Injunction to restrain dissemination of confidential information, injurious falsehood and defamation - requirement for in camera proceedings and confidentiality.
208

OUSLEY, David Patrick - HC, 20.10.97. - 192 CLR 69;71 ALJR 1548
Offences under the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Warrants authorising use of listening devices issued under s.4A Listening Devices Act 1969 (Vic) - whether warrants amenable to collateral review - whether warrant issued by judge of superior court must disclose jurisdiction on its face - whether partial disclosure of jurisdiction may be used as evidence that court has failed to take into account required considerations - whether partial disclosure renders warrant invalid - validity of O.7, r.7.05 Criminal Appeals and Procedures Rules 1988 (Vic).
New trial ordered.
209

BRARTI, Mourad - CCA, 28.10.97
Conviction appeal and leave to appeal against sentence.
Sexual intercourse without consent in circumstances of aggravation (at time of offence did maliciously inflict ABH upon her).
Offence committed against wife.
MT 2y 7m, AT 1y. Pre-trial custody of 5m taken into account; also breach of apprehended violence order.
Production by judge in presence of jury of document written by accused from court file for perusal of counsel - whether adverse effect upon accused's case.
Conviction appeal dismissed. Leave to appeal against sentence refused.
210

CATANZARITI, Mimmo
PIROMALLI, Michael
TRAJKOV, Antonio - CCA, 31.10.97
Sentence appeal.
Cultivate not less than large commercial quantity prohibited plant (s.23(2) Drug Misuse & Trafficking Act 1985 - max penalty 20y).
3,169 cannabis plants with potential street value of $6.338 million.
All three pleaded guilty.
All three sentenced to identical sentences of MT 6y, AT 2y. Because of differences in pre-trial custody, sentences of Catanzariti & Piromalli commenced at earlier date than sentence imposed upon Trajkov.
Parity between co-offenders - special circumstances.
Appeal allowed: Catanzariti - resentenced to MT 3y, AT 1y; Piromalli - resentenced to MT 3y, AT 1y; Trajkov - resentenced to 3y, AT 1y.
211

CLARKE, Kerrie Anne - CCA, 31.10.97 - 97 A Crim R 414
Conviction appeal.
Armed robbery (of post office store).
MT 6y, AT 3y.
Identification evidence - whether common law requirement of direction as to dangers of convicting upon such evidence still applies in face of s.116 & s.165 Evidence Act 1995 - police questioning after accused says that she does not wish to answer questions upon one particular issue - whether improper or unfair.
Appeal allowed: new trial ordered.
212

WELSH, Brian John - NSW SC, Hidden J, 14.11.97.
Remarks on sentence.
Murder.
Deceased 53y old man, significantly overweight and in ill-health, well affected by liquor at time, lying on his front lawn, unable to get up. Unprovoked attack by prisoner - described by trial judge as attack of great ferocity.
MT 12y, AT 6y.
213

CURRIE, Desmond Jeffrey - CCA, 31.10.97
Conviction appeal and leave to appeal against sentence.
5 x penile penetration of vagina; 1 x digital penetration of anus; 2 x oral intercourse without consent.
MT 4y, AT 3y.
Recorded interview - fairness to accused - absence of liaison officer - right to dismiss counsel - disagreement between counsel and accused over challenge to juror.
Appeals dismissed.
214

G - CCA, 31.10.97 - 42 NSWLR 451
Conviction appeal.
2 x sexual intercourse with child under age of 10y.
Appellant was complainant's step-father.
MT 2y, AT 8m.
Psychologist's report indicated child had been sexually assaulted previously whilst living with her natural father when she was aged 3. Earlier of the two assaults alleged against appellant occurred when child was aged 8.
S.409B(3) Crimes Act - whether evidence of sexual assault is evidence of prior sexual activity or experience or lack of it.
Appeal dismissed.
215

GERVAISE, Hamilton (aka PREECE)
PREECE, Susan - CCA, 13.11.97.
Conviction and sentence appeal.
Knowingly make and concur in making false statement to obtain valuable thing, namely, the home of an elderly and lonely man.
Each received MT 2y, AT 1y.
Materiality of false particular - 'gift' needs perfection.
Conviction appeal dismissed.
Sentence appeal allowed: Garvaise - resentenced to MT 15m, AT 9m;
Preece - remit to single judge pursuant to s.12(2) Criminal Appeal Act 1912 to finalise terms of sentence.
216

HENDERSON, James Brian - CCA, 5.11.97
Sentence appeal.
Maliciously inflict GBH with intent to cause GBH.
MT 8y, AT 3y.
Maximum penalty for this offence is 25y.
Street brawl - plea of guilty - provocative conduct not coming from victim - intoxication - gross injuries suffered by victim - public deterrence.
Appeal dismissed.
217

J, A.G. - CCA, 30.10.97
Conviction and sentence appeal.
Six offences involving sexual intercourse with step-daughter (cunnilingus, fellatio, act of indecency).
MT 4*y, AT 1*y.
Crimes Act s.61H et seq - latent duplicity - failure to specify acts and evidence relied on - complaint - warning of unreliability - Evidence Act ss.60, 165.
Conviction appeal allowed.
218

JOVANOVIC, Petar - CCA, 29.10.97 - 42 NSWLR 520; 98 A Crim R 1
Conviction and sentence appeal.
3 x homosexual intercourse with 15y old boy (non-consensual and accompanied by violence).
Whether the question 'Why would the complainant lie?'or similar questions are always impermissible in address by counsel or comment by the trial judge.
R v Unrig (unreported, NSW CCA, 24.10.96); R v E (1996) 39 NSWLR 450 discussed.
Appeal allowed: new trial ordered.
219

MUSUMECI, Paul - CCA, 30.10.97
Crown appeal.
Dangerous driving causing death.
15m PD and disqualified from driving for 3y.
Considerations which must be taken into account on sentencing - need for public deterrence usually outweighs fact that offender has already learnt lesson - double jeopardy on Crown appeal - substituted sentences of little value in ascertaining appropriate range in trial courts.
Appeal allowed: PD order revoked, sentenced to MT 8m, AT 7m.
220

TAOUSANIS, James Dimitrios - CCA, 6.11.97
Sentence appeal - extension of time.
2 x armed robbery in company (s.97 Crimes Act - max penalty 20y).
Plea of guilty.
MT 1y 5m, AT 2y (co-accused, Constantin, was sentenced on 12.2.96 to MT 1y 5m, AT 18m).
Assistance to authorities - parity of sentencing - functions of court and Parole Board.
Appeal dismissed.
221

ZONGAS, Nikki - CCA, 31.10.97
Crown appeal.
Defraud Health Insurance Commission by fraudulently procuring payment of medical benefits totalling $61,749, being payment for Medicare services which had not been rendered to patients as claimed.
Optometrist - although charged with single offence, this offence arose out of activity over a period of more than 2 years involving lodging with Health Insurance Commission of 1128 bogus assignment forms for services which had not been rendered.
3y GBB subject to supervision of Probation & Parole Service; recognizance in the sum of $2,000; order under s.21B Commonwealth Crimes Act to make reparation in the amount of $61,749.
Appeal allowed: save for the order made under s.21B Crimes Act, orders made by sentencing judge quashed, in lieu thereof sentenced to 9m PD.
222

WHITE, Raymond Leslie - NSW SC, McInerney J, 14.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder; arson of MV (sentenced to 6y for this offence).
Resentenced to: MT 16y, AT 5y. The MT commenced on 16.6.88 and will conclude on 15.6.2004.
223

GREEN, Malcolm Thomas - HC, 7.11.97 - 191 CLR 334; 72 ALJR 19
Murder/manslaughter - loss of control required - second stage of test - whether ordinary person in position of accused could lose self-control - sexual abuse of siblings - relevance - persistent unwanted sexual advances - whether nature of advance (homosexual) relevant - distinction between NSW Crimes Act 1900 s.23(a) and (b) - directions to jury - provocation.
Appeal allowed: retrial ordered.
224

SALES, Charles Edward - NSW SC, Studdert J, 7.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Attack upon deceased extended over lengthy period. Applicant one of three men charged over the death. Sentenced to life on 22.9.89.
Application allowed: resentenced to MT 14*y to expire on 6.1.2003, AT 5*y.
225

FENECH, Paul Godfrey - NSW SC, Graham Barr J, 4.9.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder - sentence commenced on 2.8.86.
Applicant bisexual - homosexual advances made towards deceased - deceased resisted - deceased strangled - body buried on remote part of applicant's parents' property.
Application allowed: resentenced to MT 16y expiring on 1.8.2002, AT for remainder of natural life.
226

VANIT, Somphon Lee - HC, 7.11.97 - 190 CLR 378; 72 ALJR 1
Life sentences - importation of 89 kg heroin - sentence served in State or Territory - whether subject to remission or reduction - whether (Cth) Crimes Act 1914 s.16G applies.
Held: s.16G does not apply to life sentences.
227

MURRAY, Kellie Marie - CCA, 29.10.97
Sentence appeal.
Supply prohibited drug (cocaine).
MT 2*y, AT 3y.
Minor criminal record - co-operation with authorities - named supplier - used profits to supplement income - unhappy childhood - rehabilitation - remorse.
Appeal dismissed.
228

MILAT, Ivan Robert Marco - CCA, 4.11.97
Conviction appeal - sufficiency of time to prepare appeal - unrepresented - request for adjournment.
Leave granted to file further submissions.
229

KIRWIN, Michael Anthony - CCA, 30.10.97
Sentence appeal.
MT 3y, AT 2y.
3 x B & E schoolhouse and maliciously damage it by fire.
Male 19y - guilty plea - first offence - prior good character - three schools involved - damage over $750,000 - intoxication - rehabilitation - unlikely to reoffend.
Appeal dismissed.
230

MARTIN, Alexander Richard Martin (DPP v) - NSW SC, Dowd J, 17.10.97
Judgement on whether element of offence occurred in NSW.
Charged under s.112 Independent Commission Against Corruption Act 1988 on finding that information laid under s.52 of the Justices Act was invalid.
Held: relevant to determination of matter was s.3A Crimes Act. Magistrate was of opinion that elements of offence did not include the direction but were rather those acts or events which themselves constituted breach of the direction, not the direction itself, and those acts or events had occurred only in Queensland. The term 'element' should be given its ordinary meaning. Commissioner's direction was fundamental ingredient of offence and an essential element. There being no issue that direction was given in NSW, it followed therefore that an element of the offence did occur within this State and there was a sufficient nexus with this State for the jurisdiction of the Local Court.
231

BERTONCELLO, George David - CCA, 5.11.97
Sentence appeal.
Corruptly receiving benefit in contravention of s.249B(1)(a) Crimes Act 1900; further charge of soliciting a benefit taken into account on a Form 1.
MT 18m, AT 6m.
Guilty plea.
Monitored ICAC operation involving surveillance and use of listening device - officer of Lane Cove Municipal Council working as a Health and Building inspector - initially solicited payment of $40,000 from principal of construction company engaged in land development (Form 1 offence) - received two cheques, each for $10,000 (corruptly receiving offence which carries max of 7y).
Appeal dismissed.
232

BLANCH, Lawrence - CCA, 30.9.97
Sentence appeal.
Attempt without lawful excuse to wilfully dissuade a witness in judicial proceedings from attending as a witness (this offence occurred whilst awaiting trial on charges of robbery being armed; being armed, assault with intent to rob; and escape lawful custody) - listening devices used by police.
Applicant pleaded guilty to all charges.
Sentence: Robbery charges: concurrent MT 3*y, AT 2; Escape: FT 6m; Attempt influence: FT 6m.
Lengthy criminal history.
Leave to appeal refused.
233

BROWN, Brendan - CCA, 5.11.97
Sentence appeal.
3 x B & E schoolhouse and maliciously damage it by fire (s.112(2) Crimes Act (max 20y).
Co-offender was Michael Kirwin.
Applicant sentenced to concurrent sentences of MT 2y 1m, AT 17m - special circumstances.
Guilty plea at committal - prior good character - three schools involved - damage over $750,000 - described by sentencing judge as more 'a follower than a leader'- intoxication - assistance to authorities - remorse - rehabilitation - unlikely to reoffend.
Appeal dismissed.
234

CROSS, Michael William - CCA, 3.11.97
Sentence appeal.
AOABH.
Brutal assault, using a cast iron water metre housing weighing 4 kilos - extensive injuries - facial lacerations, facial bone fractures, closed head injury - victim extremely intoxicated at time, having no recollection of events of assault.
MT 3y, AT 12m.
Applicant 19y at time of offence - first custodial sentence - previous sentence of 100 hours CSO and fine of $100 - applicant intoxicated at time of assault - troubled upbringing - abuse of alcohol - special circumstances - applicant assaulted whilst in custody.
Appeal allowed in so far as sentence varied: MT 2*y, AT 1*y.
235

DANG, Quanng Vinh - CCA, 7.11.97
Sentence appeal.
Supply prohibited drug (heroin - max 15y or fine of $200,000 or both); plus 3 matters on a Form 1 (1 x possess prohibited drug - cannabis leaf; 2 x possess prohibited weapon - .22 calibre semi-automatic pistol with ammunition and spring loaded self-opening flick knife).
Guilty plea.
MT 3y, AT 2y.
Sentencing judge found special circumstances: assistance to authorities and hardship as a result of being in protective custody.
Leave to appeal refused.
236

DOWNES, Jonathon Winfield - CCA, 7.11.97
Sentence appeal.
Escape from lawful custody (max 10y).
Guilty plea.
MT 2y, AT 2y - the MT to commence at expiration of MT of 1*y for various offences of dishonesty which applicant was serving at time of escape.
Criminal record: dishonesty offences and driving offences - disturbed family background - drug abuse, especially heroin - genuinely motivated to deal with drug problem - participation in drug & alcohol counselling and educational courses.
Appeal allowed: resentenced to MT 1y, AT 2y.
237

DUNN, Thomas Albert - CCA, 28.10.97
Sentence appeal.
Manslaughter (max 25y).
MT 7y, AT 4y.
Aggravating features - brutality of attack; return of prisoner to crime scene to perpetrate additional violence upon victim.
Appeal allowed in so far as commencement date varied.
238

EL-MOHAMAD, Mohamad - CCA, 7.10.97
Conviction appeal and leave to appeal against sentence.
Knowingly give false evidence with intent to pervert course of justice; attempt to induce others to give false evidence with intent to pervert course of justice; induce another to give false evidence with intent to pervert the course of justice. These offences arose out of false claims that appellant and his son Youssef El-Mohamad made false claims that they had been inured in a motor vehicle accident. Youssef El-Mohamad was acquitted on a only charge brought against him - give false evidence with intent to pervert the course of justice.
Concurrent sentences on each count of MT 18m, AT 6m.
Conviction appeal dismissed.
Sentence appeal dismissed.
239

EMERY, Michael Edmund - CCA, 7.11.97
Sentence appeal.
Supply prohibited drug (1.3 grams heroin powder - max 15y or fine of $200,000 or both).
MT 12m, AT 12m.
Prior criminal history for offensive behaviour; possess prohibited drug; goods in custody; smoke prohibited drug; possess utensils for use with prohibited drug; sell prohibited drug (Indian hemp); sell prohibited drug (LSD), self-administer prohibited drug.
Subjective features - extensive injuries sustained in head-on collision - diagnosed as having Hepatitis C - on Methadone programme at time of sentence - spasmodic periods of employment - undertaking 2 TAFE courses at time of sentence - helped mother on her farm.
Ground of appeal - judge erred in sentencing applicant as drug trafficker.
Appeal dismissed.
240

F, M.G. - CCA, 7.11.97
Crown appeal.
4 x indecent assault upon person under 16y (max penalty 4y);
1 x homosexual intercourse with male between 10y and 18y (max penalty 10y);
1 x commit act of indecency with person under 16y by person in authority (max penalty 4y);
1 x sexual intercourse without consent with person under 16y (max 10y);
1 x indecent assault upon person under 16y by person in authority (max 6y);
3 x indecent assault upon male (max 5y);
plus a Form 1 containing a further 24 offences of a similar nature committed upon same victims.
Offences committed over a period of 17 years.
Guilty plea.
Concurrent sentences of MT 18m, AT 2*y on each count were imposed.
Crown appeal allowed: resentenced to a total MT of 3y and AT 3y.
241

FROGLEY, Brian John - CCA, 2.10.97
Conviction and sentence appeal.
2 x AOABH.
Attack with a pick handle, breaking victim's right leg and requiring suturing of wound in his left leg.
Guilty pleas.
MT 15m, AT 24m. Pre-sentence custody of 3m taken into account.
Leave to withdraw pleas of guilty - claim of provocation.
No evidence of provocation - statement given to police at odds with submissions in court. At time of assault, victim was already disabled with a broken leg which was encased in a plaster cast. Applicant described himself as being a peace loving person all his life - this contradicted by his criminal history involving repeated convictions associated with physical violence.
Dismissed.
242

IRVING, Donald Bruce - CCA, 5.11.97
Sentence appeal.
Supply heroin.
MT 2y 11m, AT 1y. Pre-sentence custody of 1m taken into account.
Jar containing 16 satchel bags of white powder, 6 satchel bags of brown paper, larger bag containing white powder, set of scales, coffee grinder, bag containing unused syringes, pieces of paper with figures on them. Appellant's wallet contained $1,180, cashing totalling in excess of $600 on the premises. At time, appellant's main source of income was a pension of $380 per fortnight.
Trial run on basis that appellant was a supplier commercial basis - continuing activity.
Applicant 66 years old at time of appeal - long record of offences commencing when he was 9y old - dishonesty and driving offences, throwing corrosive fluid with intent to do GBH, murder.
Psychologist report of appellant being suicidal.
Appeal allowed: resentenced to MT 2y 5m, AT 18m.
243

JORDAN, Christopher James - CCA, 3.11.97
Sentence appeal.
Attempt pervert course of justice (max 14y); use false instrument (max 10y).
MT 1y 4m, AT 1y 8m.
Applicant employed as teller at Tamworth branch of Commonwealth Bank - opened continuation passbook in name of one of bank's clients, forged signature & withdrew $35,000, which was subsequently spent on a motor vehicle and household items.
Full confession to offences in ERISP - intended to pay full compensation to the bank which had refunded the money to bank's client.
Guilty plea. In the course of submissions, a photocopy of an ANZ counter cheque made out to the Commonwealth Bank in the amount of $35,000 was presented to the magistrate at Tamworth Local Court, leading the magistrate to impose a lenient sentence of PD for 9m. However, applicant had stopped payment on the cheque - this leading to charge of attempt pervert course of justice.
Psychologist's report revealed applicant in de facto relationship. De facto had personal difficulties and appellant felt some responsibility.
Appeal dismissed.
244

KANELLEAS, Steve - CCA, 27.10.97
Sentence appeal.
Sexual intercourse with child under age of 16y (the child was aged 13y and involved digital penetration).
Guilty plea.
MT 1y 9m, AT 7m.
Applicant 44y at time of sentencing - unmarried - pensioner - no criminal history - psychiatric condition. Report from psychiatrist of schizoaffective psychosis complicated by drug abuse; that condition under control with treatment; need for maintenance treatment for rest of applicant's life; that applicant was fully responsible for his actions.
Complainant gave evidence that she regarded the applicant as a 'father figure' This evidence was given without objection.
Leave to appeal refused.
245

McKENZIE, Leslie Colin - CCA, 29.10.97
Conviction appeal.
Cultivate prohibited plant (cannabis) - pleaded not guilty; possess prohibited weapon - guilty plea.
Aerial surveillance located 9 separate locations of cannabis on applicant's property.
Total of 128 plants. Crown case at trial was described as being entirely circumstantial, relying principally upon fact that applicant was owner and also occupier of the property on which the 9 plots were found, as well as pieces of equipment and items similar to that found on the 9 plots were found in various sheds on the property. Also found were seedling pots and black plastic seedling bags. Applicant claimed he had no idea that the plants were there and that the plots were tended or planted by a man living on an adjoining property. Complaint made that at no stage during course of reasons did trial judge identify the elements of the offence: R v MPW (unreported, CCA, 14.9.95).
Appeal dismissed.
246

MICALEFF, Renee - CCA, 3.11.97
Sentence appeal.
Armed robbery; plus an offence of using heroin on a Form 1.
MT 2y, AT 4y.
Robbery of florist shop using blood filled syringe, telling assistant 'I'd hate you to get AIDS, but I have it. I just want the money.'  Assistant handed over $45 from cash register. Applicant demanded more. Assistant handed applicant $15 from her purse. Applicant left store and rode off on a bicycle.
Evidence applicant was a heroin addict - did not have HIV virus - victim not to know that.
No admissions made to police - pleaded guilty before a magistrate - adhered to that plea. Pre-sentence report of remorse. No prior convictions - 18 at time of offence - on a methadone programme since being in custody - support from family members - need for long-term drug rehabilitation, psychological counselling.
Overall sentence manifestly excessive - conceded to by Crown, except MT should remain the same.
Appeal allowed: resentenced to MT 18m, AT 2*y.
247

SAXON, Ian Hall - CCA, 31.10.97
Sentence appeal.
Major drug importation followed by money laundering and other offences, including escape from custody.
Head sentence of 24y, NPP 16y.
Parity - totality.
Appeal dismissed.
248

SERVICE, Murray Craig - CCA, 3.11.97
Sentence appeal.
Maliciously inflict GBH (s.35(b) - max penalty 7y).
MT 12m, AT 3m.
Victim attempted unsuccessfully to retrieve debt owed to his girlfriend from applicant's co-accused, Arnold. Victim said he would be back later that day to collect debt. When victim left premises, co-accused made phone call, requesting 4 persons, including applicant, to attend her premises to protect her against victim. When victim arrived later in the day, he was attacked with various implements by 4 male persons, including applicant (who used crowbar). Serious injuries sustained: ruptured spleen; fractured right forearm; left scapula fracture; pain & bleeding in abdomen; bruising to chest & arms; laceration to arm & right leg; bleeding nose.
Applicant admitted punching & kicking victim in head & body, denied using crowbar. Admitted using this instrument to Probation Officer & also in evidence at hearing on sentence.
Leave to appeal refused.
249

TAPASA Jnr, Faapili - CCA, 31.10.97
Sentence appeal.
Imported greater than trafficable quantity cocaine.
Guilty plea.
Sentenced to 8y, NPP 4*y.
Applicant passed through Customs without being searched, co-offender found to be in possession of 1108.8 grams cocaine, 60% purity. Pure net weight was 723.6 grams, estimated street value $144,600. Co-accused implicated applicant. Applicant made full admissions - drugs carried by applicant were not recovered.
Parity (co-offender sentenced to 7*y, NPP 4y for same offence).
Leave to appeal refused.
250

WALSH, Gregory John - CCA, 27.10.97
Sentence appeal.
2 x drive in manner dangerous causing death (max 5y); 3 x drive in manner dangerous causing GBH (max 3y). Penalties for these offences have been substantially increased since sentencing on 17.12.96.
FT 15m on drive in manner dangerous causing GBH; cumulative 3y MT for drive in manner dangerous causing death, AT 2y; total sentence being MT 4y 3m, AT 2y.
Driving 10-15 kilometres over speed limit of 60 kph. Collided with utility parked on side of straight road. Surviving passengers gave evidence of applicant being in a very aggressive mood and driving fast. Applicant had previously been drinking at Kingswood Hotel with passengers and other persons - left scene of accident.
Appeal dismissed.
251

WEBB, Daniel - CCA, 12.9.97.
Sentence appeal.
Robbery with wounding; robbery with striking and wounding (s.96 - max 25y).
On 12.5.95, applicant was sentenced to concurrent control orders of 6m each for assault; AOABH; failure to appear; 3 counts of stealing.
Five weeks after release at expiration of control orders, applicant committed s.96 offence.
After 24 days in custody, on 11.1.96 in the Childrens Court, applicant pleaded guilty to s.96 offence and was granted bail. Whilst on bail, he committed three further offences: larceny MV (s.154A - max 10y); 2 x bag snatching robberies (s.94 - max 14y). Pleaded guilty to these three offences in the Childrens Court on 5.7.96.
On 30.7.96, applicant appeared in DC, was granted an adjournment, remaining in custody bail refused, until he affirmed his pleas in the DC on 9.10.96. Two Form 1 matters were taken into account in sentencing: self-administration of cannabis; being an unlicensed driver.
MT 3y, AT 2y. Applicant was 18y 5m when he stood for sentence.
Sentence excessive - youth of applicant - troubled background - suffered from attention deficit disorder.
Appeal dismissed.
252

LEES, Neville Andrew - NSW SC, Badgery-Parker J, 30.9.97
Remarks on Sentence
Murder.
Prisoner and deceased were flatmates. Deceased was the tenant. Prisoner was in arrears with his rent. Outstanding rent money was discussed in presence of deceased's mother. Deceased's mother left unit at about 8.30 pm. A few hours later, ambulance officers arrived in response to prisoner's phone call to find the deceased dead (2.22 am).
Brutal, savage attack - sub-dural & sub-arachnoid haemorrhage; inhalation of blood from facial injuries causing death - intra-cranial haemorrhages - fractured rib - tramline bruising fracture of nose - vertical lacerations on either side of nose - split to left nostril. Examination by police revealed towel rail, piece of wooden dowel, as well as shattered mirror bearing blood of deceased.
MT 13*y, AT 4*y.
253

DONNELLY, Brennan Patrick - NSW SC, Hidden J, 19.9.97 - 96 A Crim R 432
Judgement on admissibility of admissions.
Evidence Act s.85 - 'official questioning'- whether circumstances in which admissions were made might have adversely affected their truth - relationship of s.85(2) to s.189(3).
Evidence Act s.90 - discretion to reject evidence of admissions if use of them unfair to accuse.
Evidence admitted.
254

BRAUN, Rebecca Leanne - NSW SC, Hidden J, 24.10.97
Judgement on admissibility of evidence of admissions.
Detention at police station unlawful: Williams v The Queen (1986) 161 CLR 287 - confessional evidence illegally obtained - Evidence Act s.138 - burden of proof upon Crown - responsibility of trial judge to reject evidence.
Collins v R (1980) 31 ALR 257 referred to.
255

FULLER, Stephen John - NSW SC, Graham Barr J, 21.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Murder.
Applicant told his fiance he was going away for 5 years and she wouldn't see him during this period. Fiance, assuming relationship at an end, began going out with deceased. Applicant came back after less than a month, found out about fiance's new relationship, bought a shotgun and ammunition and killed deceased with two blasts from the shotgun as deceased was leaving a club with applicant's fiance.
State of mind - violent upbringing - immature.
Application allowed: resentenced to MT 14y, AT 5y.
256

BARAGHITH, Hamdi Kamel Mohamed - NSW SC, Michael Grove J, 28.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Egyptian national who met his wife while she was holidaying in Egypt. She sponsored his migration to Australia in December 1986. They married in February 1987. On 5.2.1988, he killed her by beating her about the head with a brick. He lit a fire at the murder scene, went to a hotel & then on to North Sydney Police Station where he confessed to the killing. Claim of difficulty in adjusting to social & cultural aspects of life in Australia; claimed wife was unfaithful, however, evidence at trial suggested she was genuinely seeking to make a success of the marriage.
Deportation - express wish of applicant to return to Egypt - ageing parents.
Serious Offenders Review Council report described him as being an excellent worker, well-behaved, spare time spent pursuing various academic & life skill interests.
Application allowed: resentenced to MT 12y, AT 3y.
257

READING, William Thomas - NSW SC, Sully J, 27.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
Stabbed de facto three times: back and chest. On 17.9.79 applicant went to Maroubra Police Station, accompanied by his former de facto wife, and surrendered himself - claimed wife nagged him.
Placed in custody on day of surrender, went to trial, received life sentence. On 30.11.84, applicant was released on licence pursuant to provisions of s.463 Crimes Act 1900. Licence revoked because of breaches of various conditions with effect from 15.3.96, although applicant not actually returned to custody until 13.1.97. Total of 6y 31d spent in custody.
Application allowed: resentenced to MT 10y, AT 4y. Taking into account time already spent in custody, applicant to be released on 28.10.2001.
258

ROBINSON, Alan - NSW SC, Abadee J, 28.11.97
Redetermination of life sentence under s.13A Sentencing Act 1989.
2 x murder - received concurrent life sentences on each count. Brought to trial 7 years after offences committed - bodies of victims never located. Crown case that applicant shot victims & dumped bodies into an abandoned mine before blowing them up with gelignite - four witnesses claimed applicant made admissions to this effect. Short period in custody prior to trial - no order backdating sentences.
Charged with solicit to murder whilst appealing against conviction & sentence on the murder charges & received MT 6y, AT 2y to be served concurrently with the life sentences.
Application allowed: resentenced to MT 16y, AT remainder of natural life.
259

GLASBY, Suzette Louise - NSW SC, Sully J, 11.11.97
Remarks on sentence.
Murder.
Shooting - contract killing.
Initially pleaded not guilty, however, changed her plea to guilty after the luncheon adjournment on the third day of the trial after an unsuccessful attempt to exclude certain evidence in the Crown case.
Prisoner 20y at time of murder - previous offences - heroin addiction - on methadone treatment - completed some drug & alcohol related courses - two suicide attempts - reasonable prospects of rehabilitation.
Sentence: MT 9y, AT 3y.
260

BARKER, Geoffrey Albert - CCA, 27.10.97
Crown appeal.
Accessory before the fact to armed robbery (max penalty 20y).
MT 1y, AT 1y.
Defence of duress.
Respondent employed with Brambles as a guard - held position for approx 10y. Position involved having access to records showing details of monies to be delivered to various institutions & keeping tabs on movements of Brambles vehicles.
Provided essential information to co-offenders. $165,000 involved in robbery - all proceeds of robbery recovered.
Appeal allowed: resentenced to MT 2y, AT 2y.
261

CHEUNG, Ying-Lun (aka Gary CHEUNG) - CCA, 21.11.97
Conviction and sentence appeal.
Knowingly concerned in the importation into Australia of commercial quantity of heroin (s.233B(1)(d) Customs Act).
Life imprisonment, NPP 21y 11m.
At time of offence, appellant was a senior inspector in Hong Kong Customs Service. Offence involved a ship berthed at Glebe Island Container Terminal in Sydney - cargo included freezer and water heater concealing 148 blocks high grade heroin with gross weight of approx 50 kgs containing 38 kgs pure heroin. Appellant claimed he had not reported movement of heroin because he was protecting his informants - intended reporting matter once heroin had been delivered & informants were safe.
Whether verdict unsafe or unsatisfactory - relevance of failure by law enforcement officer to report information.
Appeal dismissed.
262

DURRANT, Sandra Gail - CCA, 11.6.97
Sentence appeal.
1 x larceny as a clerk (s.156 Crimes Act); 10 x obtain financial advantage by deception (s.178BA); 83 further counts of larceny as a clerk on a Form 2.
Amounts involved totalled $349,401.41 - $67,010.18 reimbursed. Management of trust account within estate agency - avoided detection during annual audits by swapping receipt books to mislead auditors. Once falsifications were discovered, took books & tried to fabricate a new set of books, then destroyed original books & made a suicide attempt by use of drugs obtained on multiple prescriptions.
MT 3y, AT 2y.
Subjective matters taken into account: health - psychiatric condition - first offender.
Held: sentence at upper end of range of penalties - manifestly excessive.
Mortgage entered into by applicant & husband in order to make reparation.
Appeal allowed: resentenced to MT 2y 3m, AT 1y 3m.
263

H, A. - CCA, 27.11.97 - 42 NSWLR 702; 98 A Crim R 71
Conviction appeal.
2 x sexual intercourse without consent; 1 x assault; 1 x indecent assault as alternative count to one of the counts of sexual intercourse without consent.
Found guilty on 1 count of sexual intercourse and 1 count of indecent assault.
MT 2*y, AT 1*y.
Whether proper for trial judge to allow rhetorical question to be put to jury - 'why would complainant lie'- proscription against arguments being put to jury on validity of witness' motive to lie only where no evidence of motive to lie or where issue of motive to lie has not been raised in trial: R v Uhrig (unreported CCA, 1.11.96) & R v E (1996) 39 NSWLR 450 applied. Evidence suggesting 'guilty passion'- purpose for which such evidence introduced by Crown: R v Beserick (1993) 30 NSWLR 510 at 515 considered - operation of Evidence Act ss.95, 97 & 101 explained.
Appeal allowed: convictions quashed, new trial ordered.
264

RYAN, William John - CCA, 3.11.97
Conviction appeal.
2 x sexual intercourse without consent in circumstances of aggravation (inflicting ABH upon her immediately before having intercourse with her) - first offence involving vaginal sexual intercourse, the second offence involving fellatio.
Found guilty on the first count (this offence attracts statutory max penalty of 20y) and not guilty on the second count.
MT 4y, AT 2y.
Grounds: trial judge's directions on maliciously inflict ABH inadequate; verdict of guilty of sexual intercourse without consent in circumstances of aggravation unsafe & unsatisfactory.
Appeal dismissed.
265

FORDHAM, Stephen - CCA, 2.12.97 - 98 A Crim R 359
Conviction appeal and leave to appeal against sentence.
3 x sexual intercourse without consent (occurring on different occasions during period when appellant was living with complainant).
Evidence given by complainant that throughout period of their relationship, both before & after offences charged, appellant continually assaulted & intimidated her.
MT 4*y, AT 1*y.
Relationship of complainant & appellant - admissibility of acts of violence & injuries inflicted on complainant after the offences charged - adequacy of direction to jury - whether verdicts unsafe & unsatisfactory.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
266

OSBORNE, Colin George - CCA, 6.11.97
Sentence appeal.
Import into Australia narcotic goods (3,4-methylenedioxyethylamphetamine - MDEA, known as Ecstasy) - s.233B(1)(b) Customs Act 1997 (Cth).
Applicant arrested at Sydney Airport, when he was observed to have a bulge in clothing around midriff - advised Customs officers he was 'carrying something I was given by someone I met in the pub' which he believed to be steroids - said 'I am only doing this for the ticket otherwise I couldn't afford this trip'.  When told it was intended to video removal of substances from his person, applicant himself removed 4 plastic packages from his trousers & threw them to the ground. Thereafter he denied he had ever possessed the packages, accusing Customs officers of planting them on him & assaulting him - invented story that in pursuance of a set-up, Customs officers had decided to blame him - also claimed he had paid his own fare. Total of 155 tablets of Ecstasy with a weight of 47.9 gms.
Sentenced to 8y with NPP 5*y.
Held: no error - sentence not too severe.
Appeal dismissed.
267

TOO, Moses Bo - NSW SC, Badgery-Parker J, 26.7.96
Judgement on giving evidence.
Evidence Act ss.11 & 26 - Evidence on Commission Act 1995 s.20 - power of Court to order evidence be taken via video link - never intention of legislature that ordinary manner of giving evidence be departed from except in exceptional circumstances - ss.11 & 26 do not create general power to control manner of giving evidence.
268

CHAMPAIN, Harriett Anne - CCA, 5.12.97
Conviction appeal.
5 x defraud Commonwealth (Social Security fraud).
Sentenced to 4y, NPP 2*y.
Appellant an employee of Department of Social Security, Crows Nest office at the time of offences. Crown case circumstantial, based upon pattern of frauds over several years.
Whether verdict unsafe or unsatisfactory.
Appeal dismissed.
269

HUMPHRIES, Ronald Bruce - CCA, 2.12.97 - 98 A Crim R 233
Sentence appeal.
Demand upon airline company with threat that aircraft would be destroyed in flight if money not paid (s.208 Crimes Act - max 14y).
MT 6y, AT 2y.
Threats made over period of about 5 months, consisting of 12 letters and 8 telephone calls - payment of $350,000 demanded - phial containing commercial explosive accompanied letters - demand sought to be justified upon basis that extortionist had contracted HIV as a result of a liaison with an Ansett flight steward - held Ansett responsible.
Priors: dishonesty, resulting in custodial sentences; conviction for fraud.
Need for public deterrence.
Appeal dismissed.
270

NEWLAND, John Paul - CCA, 5.12.97 - 98 A Crim R 455
Conviction and sentence appeal.
2 x accessory after the fact to felony.
MT 1y, AT 1y.
Two principal offenders, who were alleged accomplices of appellant, not called as witnesses either by Crown or defence.
Jones v Dunkel direction (1959) 101 CLR 298 - need for caution in applying those principles to a criminal trial - direction inappropriate both in substance and in form.
R v Buckland [1977] 2 NSWLR 452 applied.
Appeal allowed: new trial on both counts.
271

OYGUR, Rahmi - CCA, 31.10.97
Sentence appeal.
Cultivate large commercial quantity prohibited plant; + 3 matters of possess prohibited drug taken into account on a Form 1 (cannabis leaf & amphetamine).
MT 2y 18d, AT 9m 12d. Two months pre-sentence custody taken into account.
Co-accused sentenced on same day as applicant received MT 18m, AT 6m.
Video-taped evidence of applicant and co-accused tending cannabis plants on a property (1,239 plants).
Parity - Lowe v The Queen (1984) 154 CLR 606 and Postiglione v R (1997) 145 ALR 408 referred to - applicant pleaded guilty, whereas co-offender did not - co-offender's criminal record worse than that of applicant - sentencing judge stated he did not take into account to a great deal the fact that applicant had pleaded guilty as he had been caught red-handed - judge accepted co-offender's evidence that it was the applicant who engaged in the enterprise which led to their joint downfall.
Appeal dismissed.
272

JONES, Vincent Raymond - HC, 2.12.97 - 191 CLR 439; 72 ALJR 78
Appellant gym instructor convicted on 2 of 3 counts sexual interference with girl student who brought complaint 2* years after last alleged incident.
Unsafe & unsatisfactory - nature & function of appellate court - inconsistent verdicts on similar counts - whether open to jury to convict - delay in complaint - difficulties experienced by defendant in countering delayed complaints - directions.
Appeal allowed: verdicts of acquittal entered.
273

ILOSKI, Tome - CCA, 31.10.97
Sentence appeal.
1 x rob with striking (alt count of steal from a person) - pleaded not guilty;
2 x receiving (pleaded guilty).
FT 12m on first count; cumulative MT 20m in respect of 2nd & 3rd counts with AT 18m.
Steal from a person offence arose when a fight broke out & the applicant intervened. At the completion of the fight the applicant removed a chain medallion from one of the combatants by tugging it off his neck & later in the day sold it to a second-hand goods shop for $130. The receiving counts arose out of the sale and pawn of TV sets, video recorders & a cassette player.
Prior convictions - serving prior sentence at time of sentencing - totality.
Appeal dismissed.
274

VAN POELJE, Jerrit Lucien Bram
PRATER, Bradley Peter - CCA, 31.10.97
Van Poelje: Sentence appeal.
Extortion - blackmail by an unwarranted threat to publish. Guilty plea.
Sentenced to MT 2y, AT 8m with recommendation he be deported at conclusion of sentence.
Prior convictions - special circumstances - Dutch national - effect of being away from family - good prospects of rehabilitation.
Appeal dismissed.
Prater: Application for extension of time within which to appeal against sentence.
Demand money with menaces with intent to steal. Guilty plea.
Sentenced to MT 4y, AT 1y 4m.
Special circumstances - first offence - contrition - good prospects of rehabilitation -protection - attending drug & alcohol counselling in gaol - psychologically unstable.
Extension of time granted; appeal dismissed.
275

SIMPSON, Allen Martin - CCA, 27.10.97
Sentence appeal.
1. Armed rob - FT 3y.
2. Aggravated armed rob - cumulative MT 3*y, AT 3y.
3. Steal MV - FT 2y concurrent with second sentence.
Total MT 6*y, AT 3y.
Guilty plea - priors - main offence armed rob of bank - shotgun - belief of customers & staff that anyone who got in way would be shot - out of gaol for 5 weeks before first offence - totality - prospects of rehabilitation - medical problems.
Appeal dismissed.
276

WHITNEY, James Herbert - CCA, 6.11.97
Sentence appeal.
Import commercial quantity of cocaine into Australia (s.233B(1)(b) Customs Act 1901 - carrying max of life imprisonment).
Sentenced to 7y, NPP 4*y.
Applicant an American citizen residing in Colombia for a number of years, flew to Australia from Colombia via Tahiti. At airport underwent baggage examination & body search by Customs officers. White powder was found which, on analysis, totalled 2.79 kgs pure cocaine.
Considerable assistance to authorities taken into account in sentencing.
Appeal dismissed.
277

KALANJ, Nicholas - CCA, 18.12.97 - 98 A Crim R 505
Crown appeal.
Aggravated dangerous drive occasioning death (s.52A(2) Crimes Act - max 14y.
1 x drive unregistered vehicle and 1 x drive uninsured vehicle taken into account on a Form 1.
Guilty plea.
MT 18m, AT 18m.
Respondent's blood alcohol reading not less than .16 grams alcohol per 100 millilitres blood.
Manifestly inadequate.
Appeal allowed: resentenced to MT 2*y, AT 2*y.
278

PAUNA, Ilie - CCA, 2.12.97
Conviction and sentence appeal.
Multiple charges of supply heroin to a number of persons, some of which were not less than commercial quantity.
Plea entered in presence of jury array - plea of guilty entered on some counts, not guilty plea on others.
MT 10y, AT 3y 4m.
Directions - duplicity - unsafe & unsatisfactory - manifestly excessive.
Appeals dismissed.
279

POSTIGLIONE, Mario - CCA, 4.12.97 - 98 A Crim R 134
Sentence appeal.
This appeal follows a sentence appeal to the CCA that was dismissed & subsequently went to the High Court which allowed the appeal & remitted the matter to the CCA.
2 x conspiracy: one to import cocaine into Australia from South America, the other to import heroin from Thailand.
The appellant & George Savvas were co-offenders; conspiracies took place in gaol where each already serving substantial sentences relating to importation of drugs.
Appellant received 18y on 1st count with concurrent 10y on 2nd count, NPP of just under 14y.
Sentencing judge indicated that but for assistance to authorities, a sentence of 21y with NPP of 17y would have been imposed.
Criminal law & procedure - when order of CCA is perfected - lack of ratio decidendi in Postiglione v The Queen (1997) 145 ALR 408 as to operation together of parity & totality principles.
Appeal allowed: resentenced to 14y on 1st count, 8y on 2nd count, new NPP 10*y.