Court of Criminal Appeal Update : Review of 2010

Chrissa Loukas,
Barrister, Public Defender
March 2011

Chrissa Loukas thanks Ms Prita Supomo and Ms Jennifer Wheeler, Research Lawyers, Public Defenders Chambers, for their invaluable assistance in the preparation of this Paper.

Contents

Sentence Appeal cases

Conviction Appeal cases

Annexures / Appendix

INTRODUCTION

Welcome to the 4 ^th Annual instalment of the Criminal Law Update. This paper reviews Court of Criminal Appeal sentence and conviction appeal judgments through 2010. Annexed are summaries of 2010 High Court cases along with recent criminal legislation.

SENTENCE CASES

1. Standard Non-Parole Periods

Where listed offences are committed after 1 February 2003 and the offence is in the mid-range of seriousness, the standard non-parole period (SNPP) is required to be set unless the court determines that there are reasons for not setting the SNPP: s.54B Crimes (Sentencing Procedure) Act1999 (Appendix A). Factors in s.21A Crimes (Sentencing Procedure) Act1999 and the common law are relevant to this exercise. These factors are not a 'narrow list of considerations': Way (2004) 60 NSWLR 168 at 56-57. The application of the SNPP continues to dominate sentence appeals in the NSW CCA.

SNPP must be completely disregarded where offender under 18 years at offence

Section 54D(3) Crimes (Sentencing Procedure) Act1999 provides that the SNPP provisions do not apply if the offender was under 18 at the time of the offence. In BP [2010] NSWCCA 159 and AE [2010] NSWCCA 203 the Court said that it is an error to use the SNPP as a 'guide' where the offender was under 18 at the time of the offence to which a SNPP normally applies. See also JC [2010] NSWCCA 67. Even 'oblique usage' was erroneous and the SNPP must be completely disregarded: BP at [39].

In AE [2010] NSWCCA 203 the applicant was aged 15 at sentence. The judge said at sentence: "I will return for a moment to the significance of the standard non-parole period. As I said earlier it does not apply automatically for amongst other reasons that the offender pleaded guilty. Nevertheless it remains, according to the authorities, as a guideline or perhaps guidepost giving some indication ..'.

Upholding the appeal, the Court said the approach was erroneous in principle.

Inadequate reasons when sentencing for SNPP offence

In Mayall [2010] NSWCCA 37 the Court reiterated the importance of providing adequate reasons in sentencing for a SNPP offence. In this case, there was no assessment of the objective seriousness of the offences or reasons given for departure from the SNPP. However, although the sentencing discretion miscarried, the Court did not consider that any lesser sentence was warranted.

Per Howie J (James and Davies JJ agreeing):

Necessary to describe the degree to which offence departs from mid-range

There have been a number of judgments on this issue.

In McEvoy [2010] NSWCCA 110 the judge found an offence of malicious wounding with intent to cause grievous bodily harm fell 'below the mid-range of objective seriousness.'  The CCA said the judge erred in not stating with sufficient precision where in the range of objective seriousness the offence stood.

The Court (at [76]ff) referred to Knight & Biuvanua (2007) 176 A Crim R 338 where the judge had erred in simply finding the offence 'at least in the mid-range of objective seriousness.' In Knight, Howie J said that while one cannot make an assessment with 'absolute precision', a judge should "at least indicate whether the offence is assessed as below, of, or above mid-range of seriousness with some indication as to the degree to which it departs from the mid-range if that is the finding." McClellan CJ at CL said that such a finding meant the offence is above mid-range and that the judge ought to 'define the extent to which it falls above the mid-range.' The Court in McEvoy said that the slightly less prescriptive approach taken by Howie J should be preferred.

Per Simpson J (Grove and RA Hulme JJ agreeing):

In Sellars [2010] NSWCCA 133, involving supply a commercial quantity of amphetamine, the judge had found the offence fell 'below the middle of the range of objective seriousness.' This was an error as it is necessary for judges to specify the extent or degree to which an offence departs from an offence in the mid range: at [11]. Allowing the Crown appeal, McCllellan CJ at CL (Grove and Johnson JJ agreeing) said:

Other judgments where this issue arose include Dunn [2010] NSWCCA 128; Mitchell [2010] NSWCCA 145; LP [2010] NSWCCA 154; Hamieh [2010] NSWCCA 189.

A sentencing judge is not required to compare a SNPP offence with an 'abstract offence'

In Dunn [2010] NSWCCA 128 and Hristovski [2010] NSWCCA 129 the Court said that a judge is not required to compare the objective seriousness of an offence with 'abstract offences' in the middle of the range of objective seriousness. In these cases, the applicants submitted that the judge erred in finding the offences were in the mid-range without comparing salient features of the offences with 'putative or abstract mid-range- offences'. The Court rejected this submission.

In Hristovski [2010] NSWCCA 129 Johnson J (Grove and Johnson JJ agreeing) said:

Standard non-parole reasoning does not apply where offence does not have SNPP

In Georgopolous [2010] NSWCCA 246 the Court said a judge should avoid making an independent assessment of 'objective seriousness' where the offence does not carry a SNPP. The applicant pleaded guilty to robbery in company under s 97(1) Crimes Act to which no SNPP applies. In sentencing, the judge said: '... It is indeed fortunate that the victim's injuries were not more serious. However, this fact alone does not diminish the objective seriousness of this crime in any significant way. My assessment of the objective seriousness is that it falls slightly above the mid range for offences of its type'.

Per Howie AJ (Allsop ACJ and Adams J agreeing):

2. Aggravating factors

Section 21A Crimes (Sentencing Procedure) Act1999 (Appendix B) sets out aggravating and mitigating factors that a sentencer is to take into account in determining the appropriate sentence. This is an area that has given rise to a plethora of appeals in relation to aggravating factors and double counting and continues to do so.

Section 21A(2) is not a checklist

In Gore, Hunter [2010] NSW CCA 330 (involving drug supply) the Court said that s 21A(2) is not to be used as a checklist without any regard to the particular facts and the nature of the offence. In this case the judge erred in finding the offence was committed 'in company' and 'in the presence of a child' when the evidence did not support these findings. Adams J and Howie AJ commented that the factors in s 21A(2) must actually aggravate the offence.

Adams J said:

Howie AJ said:

Similarly in Dong [2010] NSW CCA 107 the applicant was charged with kidnapping in company with intention to obtain financial advantage (s86(3) Crimes Act). The applicant complained that the judge adopted a "check list" approach to s 21A and effectively double counted that the offence was committed 'in company' and 'for financial gain.'  The Court agreed - the judge had viewed these matters as matters of aggravation when they were clearly an element of the offence and this was an error: at [52]-[53].

Where aggravating circumstance can be proved through victim impact statement

In Aguirre [2010] NSWCCA 115 it was not an error to use the victim impact statements to establish an aggravating circumstance (s 21A(2)(g) substantial harm) where the statement was tendered without objection and with no limit as to evidentiary weight. The applicant submitted that an aggravating factor has to be proved beyond reasonable doubt and cannot be proved to the requisite standard by a victim impact statement: Slack [2004] NSWCCA 128 at [62]. Per James J (Simpson J and Barr AJ agreeing):

s.21A(2)(e) - the offence was committed in company

In Gore, Hunter [2010] NSW CCA 330 the Court found that the judge erred in finding a drug supply offence aggravated by being 'in company' just because the applicant used a co-offender to assist in his drug trade. This fact did not mean that the offence was committed 'in company'.

Per Howie AJ:

s.21A(2)(ea) - the offence was committed in the presence of a child

In Gore, Hunter [2010] NSW CCA 330 the applicant's drug supply business was conducted in a house where the applicant's 17 year old son lived. However, there was no evidence the supplies took place in the son's actual presence and it was an error to find finding the offence aggravated by this factor.

Per Howie AJ:

s.21A(2)(eb) - the offence was committed in the home of the victim or any other person - may apply to 'break, enter and steal'

In Palijan [2010] NSWCCA 14, where the offender was charged with aggravated break, enter and steal (s 112(2) Crimes Act), it was not an error to take into account as an aggravating factor that the offence took place in the victim's home. The element of breaking and entering in s 112(2) does not require the premises to be the victim's home: at [21]-[22].

Per Barr AJ (McClellan CJ at CL and Hislop J agreeing):

In Aguirre [2010] NSW CCA 115 the applicant was sentenced for 'aggravated take and drive vehicle'. The offence was committed while victim sat in his car in the driveway of his house. There was no error in finding the offence aggravated under s 21A(2)(eb).

s.21A(2)(l) - victim vulnerable

In Ali [2010] NSWCCA 35 the offender, a taxi driver, sexually assaulted his passenger victim who was intoxicated. The Court said there was no error in finding the victim was 'vulnerable.'

s.21A(2)(n) - offence part of a planned or organised criminal activity

In Williams [2010] NSWCCA 15, involving break, enter and steal, the judge erred in finding the offence was 'part of a planned or organised criminal activity': s 21A(2)(n). The applicant had stolen valuable artworks and property worth $120,000 from an isolated rural home. The Court said at [23] that it is only when the offence is part of a more extensive criminal undertaking that s 21(2)(n) applies. The fact that an offence was planned is not sufficient: Fahs [2007] NSWCCA 26 at [21] per Howie J. In the present case, the offence was planned but there was nothing to indicate that it formed part of 'a planned or organised criminal activity': at [21]. The offence was, however, professionally planned in the sense of that expression when used by Grove J in Ponfield (1999) 48 NSWLR 327. The robbery and the goods targeted showed a level of professionalism and these were matters relevant to the applicant's level of criminality: at [22].

Per McClellan CJ at CL (Simpson and Hidden JJ agreeing):

s . 21A(2)(n) and drug offences

In Knight [2010] NSW CCA 51, where the applicant was a street-level drug supplier, it was an error to find the offences were planned and part of an organized criminal activity under s 21A(2)(n). The offences did not permit a finding that the degree of planning exceeded what would ordinarily be expected in the case of a person supplying drugs at street level. There was no evidence that the offences were part of a planned or organised criminal activity, as that expression has been interpreted by this Court. It has been consistently held that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) is present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning exceeded the degree of planning which would ordinarily be expected in an offence of that kind: Yildiz (2006) 160 A Crim R 218; Fahs [2007] NSWCCA 26; Hewitt (2007) 180 A Crim R 306. However, the Court found that the judge was mindful that the applicant was a street level supplier and that the applicant's offences were planned only to the extent that street level dealing in drugs is ordinarily planned. As the error had no material impact on the sentences imposed the appeal was dismissed: [16]-[27].

In contrast, in Gore, Hunter [2010] NSW CCA 330 the applicant's drug supply business was conducted from a house that had been fortified and drugs were readily available. Howie AJ said that these were relevant considerations in finding the offence had been 'planned':

3. Mitigating factors

Extra curial punishment and loss of career / public humiliation

In Kenny [2010] NSWCCA 6 the applicant pleaded guilty to child sexual assault offences. The applicant had held a public position as a councillor with a promising political career. It was submitted that the judge ought have taken into account in mitigation that he had suffered "public denigration" and "public humiliation".

The Court said at [49] that whether public humiliation can constitute extra-curial punishment remains unresolved in the High Court: Ryan (2001) 206 CLR 267, and it was unnecessary to determine the issue for the purposes of this appeal. There may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment: see Allpass (1993) 72 A Crim R 561 and King [2009] NSWCCA 117: at [49]. But such a finding was not supported by the evidence in this case: at [50].

The Court noted at [47] that the loss of a career or profession could in an appropriate case be taken into account as extra-curial punishment: see Poynder [2007] NSWCCA 157. It was a matter for the judge as a factual finding to determine whether the impact upon the applicant's political career was a matter that should mitigate the sentence as extra-curial punishment, and the Court was not persuaded that the judge had erred: at [51].

Reduction in sentence where offender's parents reported criminality to police

In Barlow [2010] NSWCCA 215, a Crown appeal, it was not an error to reduce the sentence on the basis that the offender's parents had reported their son's criminality to police. The Crown argued that this rewarded the child for the conduct of his parents: at [44].

Per McCallum J (Allsop and Price JJ agreeing):

s 21A(3)(i) Remorse

Remorse is a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. That section is as follows:

Offender must provide, but need not give, evidence of remorse

In Butters [2010] NSWCCA 1 the offender tendered reports and references containing expressions of remorse but did not himself give evidence. The sentencing judge found that "remorse might have been more forthcoming". The Court held at [17] that s 21A(3)(i) does not require an offender to give evidence before remorse can be taken into account in mitigation. There is only a requirement that an offender provide evidence of remorse: Thomas [2007] NSWCCA 269. In this case there was "ample evidence" to satisfy s 21A(3)(i). The judge did not disregard the evidence of remorse on the basis that the applicant did not himself give evidence but properly took that into account in assessing the weight of the evidence. The Court has previously cautioned against uncritical reliance on material contained in tendered reports where an offender has not given evidence: at [18]; Qutami (2001) 127 A Crim R 369; TS [2007] NSWCCA 194. The judge was entitled to give reduced weight to evidence of remorse as a mitigating factor. The appeal was dismissed: at [21].

Error to find applicant 'not truly remorseful' on basis that applicant failed to identify co-offenders

In Pham [2010] NSWCCA 208, involving supply drugs, the offender tendered reports stating he was remorseful. An agreed statement of facts named his co-offenders but did not identify them. The judge said that there was no real evidence of remorse and that as the applicant did not identify his co-offenders he was 'not truly remorseful': at [19]-[20]. The Court said that the judge was not obliged to accept the assessment made in the reports stating the applicant was remorseful: at [26] citing Butters [2010] NSWCCA 1. However, it was an error to treat the applicant's reluctance to identify his co-offenders as indicative of the absence of remorse and contrition. There are good and well-known reasons why participants in drug offences might display such reluctance: at [27] citing Baleisuva [2004] NSWCCA 344. It was open to the judge to be sceptical about the applicant's remorse, but it was not open to his Honour to find the applicant was not "truly remorseful": at [28].

Restitution as evidence of remorse

In Oh Hyunwook [2010] NSWCCA 148 the Court said that practitioners might note that restitution is a powerful way to demonstrate remorse: at [32]. When asked by the sentencing judge whether he had contributed towards the victim's medical costs, the applicant replied he had not because his lawyers had advised not to have contact with the victim. The sentencing judge had referred to this as 'unfortunate.' The CCA found that the judge had found evidence the applicant was remorseful but that restitution would have demonstrated remorse: at [30]-[32].

Plea of guilty and its significance as evidence of remorse

In Georgopolous [2010] NSWCCA 246, where the offender had pleaded guilty to armed robbery, the sentencing judge said, 'I am unable to see any evidence of remorse (aside from the plea itself) and I do take his plea into account as a mitigation factor.' The Court said this statement was incorrect. A plea of guilty is not evidence of remorse and will rarely by itself be sufficient to meet the pre-conditions for it to be used as a mitigating factor under s 21A(3)(i): at [49]. The Act requires an offender to demonstrate by evidence that s/he is truly remorseful: at [50].

Per Howie AJ (Allsop ACJ and Adams J agreeing):

Motive

In Quealey [2010] NSWCCA 116 the applicant submitted that her moral culpability was reduced due to her motive, that is, revenge upon the victim. The applicant believed that the victim had sexually abused the applicant's daughter. Dismissing the appeal, the Court said in this case motive did not reduce the applicant's moral culpability to any significant degree. The applicant had embarked on a deliberate course of conduct and deterrence was important: at [28]-[29]. However, the Court observed that motive is relevant to explaining an offender's conduct and can be an important factor on sentence: Per Latham J (Giles JA and Hulme J agreeing):

The Court also cited other recent authorities: Rayment [2010] NSWCCA 85; (2010) 200 A Crim R 48 at [106]; Dole & Nguyen [2010] NSWCCA 101 at [4].

Ill-health

In Leighton [2010] NSWCCA 280 the judge erred in not giving weight to the applicant's ill-health as a mitigating factor. Price J (Simpson J and Howie AJ agreeing) summarised the principles:

[37] It appears from the remarks quoted at [30] above that the Judge considered that the applicant's state of health neither provided a greater burden for him whilst in custody nor was there a serious risk of imprisonment having a gravely adverse effect on his health. His Honour gave no weight to the applicant's ill health as a mitigating factor on sentence.

[38] Notwithstanding any treatment that might be provided by Justice Health there is an abundance of evidence, which demonstrates that the applicant's ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living. ...

[39] In my respectful opinion, some weight should have been given to the applicant's ill health in determining the sentences. This was not a case such as Grenfell [2009] NSWCCA 162 upon which the Crown placed some reliance in oral argument where the contention was that the sentencing judge erred in failing to give "sufficient weight" to the applicant's disabilities. When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest. I would uphold this ground of appeal'.

4. Procedural Fairness

Offender did not give informed agreement to 'agreed' statement of facts

In Korgbara [2010] NSWCCA 176 the judge sentenced the applicant on the basis of agreed facts signed by the applicant. However, on appeal, the evidence showed that the applicant did not give his informed agreement to that statement and did not in fact agree with important parts of its contents. He had not been given the opportunity to consider the statement before it was tendered: at [14], [24]. The sentencing process had thus miscarried and the matter was remitted to the District Court for re-sentence.

Error to reject disputed evidence not subject to cross-examination

In O'Neil-Shaw [2010] NSWCCA 42, involving an offence of violence, the applicant stated by affidavit that he suffered years of violence by the victim. The prosecution and defence made an agreement that witnesses were not required for cross-examination and the applicant was not cross-examined. The judge rejected the applicant's evidence.

Allowing the appeal and remitting the matter for rehearing, the Court said the judge erred in rejecting the applicant's evidence. The Court said (at [26]-[27]) that where the evidence was not challenged by the prosecution, and was not implausible, the judge was not entitled to reject it or fail to act on it, or at least was not entitled to do so without giving proper notice to the applicant: Chow v DPP (1992) 28 NSWLR 593; Palu (2002) 134 A Crim R 174. It is a rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, so that the witness may respond and the court can assess the response: SWC [2007] VSCA 201; 175 A Crim R 71 at [12]-[15]. Where there has been no cross-examination of witnesses, 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ [2005] 80 ALJR 329 at [39].

The Court further said at [30]-[31] that s 6(3) Criminal Appeal Act1912 would allow a matter to be remitted to the District Court (pursuant to s 12(2)) where the sentencing process miscarried but the CCA is not able to determine the factual dispute and an appropriate sentence.

Where judge did not sentence in accordance with indicated discount for guilty plea

In Trujillo-Mesa [2010] NSWCCA 201 the Court said procedural fairness was denied where the judge said he accepted the Crown's concession that the applicant's sentence would be discounted by 25 per cent but later gave only a 20 percent discount with no opportunity to be heard further on the issue: at [4]. The Court said that the applicant's legal representative had proceeded on the basis of an indication (even if unstated) that the maximum discount would be allowed after his Honour considered the evidence and the submissions of counsel, and that in those circumstances the applicant had been denied procedural fairness: at [29].

Allowing the appeal, per Fullerton J (Hodgson JA and Price J agreeing):

Where judge is contemplating sentencing upon a different factual basis than set out in statement of agreed facts - Judge acted appropriately and did not allow stated suspicions about offender's role to affect sentence

In Yaghi [2010] NSWCCA 2, on the basis of the agreed statement of facts, the judge stated he would find special circumstances and the non parole period would be half of the total term. Later, in an exchange with counsel, the judge said although he considered the applicant's role was actually greater than outlined in the facts, his suspicions would not affect the sentence. However, following the lunch adjournment, the judge said that he had reconsidered and he would not be reducing the non-parole period to 50% of the total sentence. The applicant submitted the judge had allowed his suspicions to affect his assessment and this amounted to taking into account matters not part of the agreed facts.

The Court rejected this submission. There was no connection between the raising by the judge of his suspicions about the applicant's role and his decision concerning the non-parole period. The judge only indicated a tentative view then after reconsideration and as a matter of procedural fairness did inform counsel that he had modified his view: at [49].

Dismissing the appeal, per R A Hulme J (Grove and Simpson JJ agreeing):

5. Setting Terms of Imprisonment: Special Circumstances and the Statutory Ratio

Section 44 of the Crimes (Sentencing Procedure) Act states:

Risk of institutionalisation as special circumstances - error in not giving full effect to finding of special circumstances

In Jackson [2010] NSWCCA 162 the Court said that a risk of institutionalisation can form the basis for a finding of special circumstances. The Court was referred to various authorities.

Per Fullerton JJ (McClellan CJ at CL and Simpson J agreeing):

The Court said that the error in this case is not that the judge failed to make sufficiently clear the basis upon which he found special circumstances as mandated by s 44(2), but that the judge failed to give full effect to his finding of special circumstance after accumulation of individual sentences: at [22]-[24], [30]. The Court allowed the appeal.

Where NPP longer than statutory ratio stipulated in s 44 Crimes (Sentencing Procedure) Act - Where sentencing judge silent as to question of special circumstances.

In Briggs [2010] NSWCCA 250 the applicant received a sentence comprised of a non-parole period of 8 years with a balance of term of 1 year and 9 months for a supply drug offence. The ratio of non-parole period to total term was 82 per cent, an increase on the 75 per cent ratio provided for under s 44 of the Crimes (Sentencing Procedure) Act: at [5]. The judge's remarks were silent as to special circumstances.

The Court found the judge did not err in failing to consider and find special circumstances. However, the judge's silence as to his reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent indicated that he may have overlooked giving appropriate focus to the statutory ratio in s 44 Crimes (Sentencing Procedure) Act. Allowing the appeal and imposing a new sentence, Fullerton J (Hodgson JA; Price J agreeing) said:

Accumulated sentences and special circumstances

In Flynn [2010] NSWCCA 171 the judge found special circumstances when sentencing for a number of offences. However, because the individual sentences were partially accumulated, the non-parole period ended up being more than 75% of the total sentence. The Court found the judge had overlooked the statutory ratio due to the accumulation of sentence and allowed the appeal: at [44].

See also Smaragdis [2010] NSWCCA 276.

Focus is on the total term of sentence

In Dolman [2010] NSWCCA 137, where no special circumstances were found, the judge was informed that his proposed sentence did not accord with the 'statutory ratio' in s44 of the Crimes (Sentencing Procedure) Act (i.e. the non parole period being 75% of the total sentence). The judge responded by increasing the total term and left the statutory ratio as he proposed. On appeal, the Crown conceded that the judge had erred in the manner in which he had arrived at sentence. Allowing the appeal, the Court said that s44(1) of the Crimes (Sentencing Procedure) Act is 'concerned with the manner in which a sentence is pronounced, not how it is arrived at' and the focus is still on the total term of the sentence: at [15], [17].

Per Hidden J (McClellan CJ at CL and Johnson J agreeing):

6. Parity

Where offenders are charged with different offences arising out of common criminal enterprise

In Li [2010] NSWCCA 125 a 5 judge bench said that there has been reluctance by the courts to apply the parity principle where cooffenders are charged with different offences: at [52]. The applicant was charged with a money laundering offence. Another man, V, was charged with a lesser offence arising out of the same enterprise and received a lesser sentence. The appellant appealed on the ground of disparity. The Court referred to Kerr [2003] NSWCCA 234. where the appellant successfully argued disparity with offenders charged with different offences. The Court noted that Kerr has been limited by subsequent authorities. Dismissing the appeal, Barr AJ (Allsop P; Basten JA; McClellan CJ at CL; Simpson J agreeing) said:

In the earlier case of Jimmy [2010] NSWCCA 60 co-offenders involved in the same criminal enterprise were charged with different offences. The Court (Campbell JA, Howie J and Rothman J in separate judgements generally agreeing) said that the parity principle does have a role to play for sentences imposed for different crimes committed by offenders involved in a common criminal enterprise: at [136] per Campbell JA; [244] per Howie J. Campbell JA set out 'some limits' to the application of the parity principle in this context (Howie J expressly agreed at [246]; Rothman J agreed at [252], [270] subject to additional comments [253]-[270]):

In relation to point 1, above, (that the parity principle cannot overcome sentence differences which arise from the prosecutorial discretion to lay different charges against co-offenders) the Court took the view that Kerr [2003] NSWCCA 23 should no longer be followed on this point: per Campbell JA at [117], [130]; per Howie J at [247]; per Rothman J at [267].

Court of Criminal Appeal may create disparity between co-offenders

In Green and Quinn [2010] NSWCCA 313 a five judge bench considered how to approach a Crown appeal when it is submitted that to intervene would create disparity with another offender who received an apparently excessively lenient sentence. The Crown appealed against the sentences imposed upon co-offenders Green and Quinn, but not upon a third co-offender KT. The sentence imposed upon KT was 'obviously manifestly inadequate': at [142]. The respondents raised the issue of parity with KT and because there existed conflicting authority a bench of five judges was constituted to hear the appeal: at [62].

Allowing the appeal, the Court (RS Hulme J; McClellan CJ at CL; Latham J agreeing with both; Allsop P and McCallum J dissenting) said that on a Crown appeal the Court can raise the sentence of a respondent while the sentence of a co-offender remains unchanged even though a justified sense of grievance may result. The Court declined to follow McIvor [2002] NSWCCA 490: at [32].

RS Hulme J delivered the principal judgment and concluded as follows:

McClellan CJ at CL agreed and made the following comment

Allsop P and McCallum J dissented and made the following comment:

It is understood special leave will be sought to appeal to the High Court on this matter.

Where co-offender sentenced in Childrens Court

In Ruttley [2010] NSWCCA 118 the Court said that it will be a rare case where the parity principle will apply where the offender is dealt with as an adult and the co-offender is sentenced in the Children's Court albeit for a more serious offence.

Per Simpson J (McClellan CJ at CL and Fullerton J agreeing):

Parity with respect to special circumstances and non-parole period

In Lau [2010] NSW CCA 43 the applicant was convicted of a more serious drug offence than his co-offender and received a heavier sentence. The Court rejected a submission that the applicant's total sentence be reduced on the ground of disparity. However, there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance: at [15]. This was such a case as the personal circumstances of the applicant and his co-offender were relevantly indistinguishable. The Court reduced the applicant's non-parole period.

Per McClellan CJ at CL (James and Davies JJ agreeing):

7. Findings on Sentence

Sentencing in accordance with agreed facts where offender gives contradicting evidence

In Zamitt [2010] NSWCCA 29 the judge was entitled to reject the applicant's evidence where the applicant gave sworn evidence inconsistent with the agreed statement of facts tendered by the Crown. The Court cited from Falls [2004] NSWCCA 33 per Howie J:

Here the judge pointed out the factual issues during the applicant's testimony and during addresses. It was open to the judge not to accept the applicant's evidence, not simply because it was in contradiction to the agreed statement of facts: at [27].

Consequences not foreseen by the offender cannot be taken into account

In Josefski [2010] NSWCCA 41 the Court held that a sentencing court must have regard only to those consequences that were intended or could reasonably have been foreseen by the offender: Wickham [2004] NSWCCA 19.

The applicant was charged with break, enter and steal. The applicant submitted that the judge erred in finding as an aggravating factor that the emotional harm caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act1999. The applicant argued that he could not have reasonably foreseen the harm occasioned to the victim on the basis that s 21A(2)(g) was limited by the common law rule that a court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: per Howie J at [25] in Wickham [2004] NSWCCA 19.

Because the Court found that the emotional harm suffered by the victim and the presence of a child in the house were reasonably foreseeable in this case, it was not necessary to decide the issue. However, the principle stated by Howie J in Wickham still represents the law: at [4], [39]. The Court dismissed the appeal.

Per James J:

Per Howie J:

8. Children and Youth

Error to reduce sentence so that juvenile may serve entire sentence in juvenile facility

In TG [2010] NSWCCA 28 it was submitted the judge ought to have structured a sentence to allow the applicant to remain in a juvenile facility to aid rehabilitation and so avoid being sent to an adult prison. Dismissing the appeal, Howie J said at [25] that the proper approach is to determine the appropriate sentence and then consider what are the option for how that sentence is to be served: Zamagias [2002] NSWCCA 17. In a case involving a juvenile offender being sentenced at law, the same principle applies. The judge is to determine the sentence and then consider whether it is necessary and appropriate to make an order under s 19 of the Children (Criminal Proceedings) Act. It would be an error to reduce a sentence just to avoid a juvenile spending a period of custody in an adult gaol.

Emotional immaturity and impulsive behaviour as a mitigating factor - emotional maturity and impulse control may not be fully developed until the early to mid twenties

In BP [2010] NSWCCA 159 the applicant was convicted of sexual intercourse without consent. He was just under 17 years old at the time of the offence and had a criminal history of two offences of aggravated sexual assault. Allowing the applicant's appeal, Hodgson J made the following comments about the relevance of youth on sentence: (Rothman J agreeing; Johnson J dissenting in the principal judgment).

9. Aboriginality and Offenders at Social Disadvantage

In Kennedy [2010] NSW CCA 260 at [50]-[53] the judge remarked at sentence 'there is little evidence here to show that the prisoner was raised in a community the toxic features of which prevented the development of a proper attitude to law abiding behaviour' and thus the Fernando (1992) 76 A Crim R 58 principles did not apply: at [54]. Simpson J (Fullerton and RA Hulme JJ agreeing) said the judge had erred. The applicant was the eldest of eight children of an Aboriginal family with an early history of social deprivation and instability. He had been removed from his mother's care at seven and had no relationship with his father. He had little education and succumbed to drug and alcohol at an early age.

Simpson J also said the Crown's argument on appeal that Fernando did not apply because the applicant 'does not come from a remote part of the community' was incorrect. Simpson J said it is no answer to say that he did not come from "a remote part of the community" - social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote areas or communities: [54]-[55].

Simpson J further pointed out that the Fernando principles apply not just to Aboriginal offenders but generally to offenders suffering social disadvantage, particularly where there is alcohol dependence and addiction:

10. Mental Illness

In Watts [2010] NSW CCA 315 the applicant was sentenced for malicious damage property by fire. Uncontested psychiatric evidence showed that the applicant suffered from a personality disorder, polysubstance dependence and post-traumatic stress disorder.

Allowing the appeal, the Court found the judge failed to take into account the psychiatric evidence in an appropriate manner: at [27]. The judge erred in applying the principles in Hemsley [2004] NSWCCA 228 by relying on Hemsley as a type of parity argument comparing the position of Ms Hemsley with the applicant: [22]. The judge failed to give due weight to the uncontested psychiatric evidence, as it was not shown that the psychiatric opinions were based on false reporting by the applicant: [25]. The judge erred in seeing the applicant's psychological condition as relevant only to the mitigating factor under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999: that "the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability". [24]. The relevance of an offender's mental disorder transcends a matter of mitigation under this provision: [27].

Per McClellan CJ at CL and Howie J jointly, Schmidt J agreeing:

11. Sentencing and Statistics

In McIvor [2010] NSWCCA 7 the Court said that applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed, even though that range was low, rather than by the range the Court thinks appropriate: at [17].

The applicant was sentenced for two armed robberies and one offence of assault with intent to rob in company. He was sentenced to a total term of 15 years imprisonment with a non-parole period of 9 years 6 months. The applicant submitted that although the individual sentences were appropriate, the effective accumulation resulted in a total sentence that was manifestly excessive.

The Court said the total sentence was outside the pattern of sentences for multiple armed robbery. Although the range of sentences imposed for multiple armed robbery offences is too low, the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed. The appeal was allowed and new sentence of 10 years with a non-parole period of 7 years and 3 months imposed.

Per Howie J (Tobias JA agreeing):

This approach received support in Moore [2010] NSW CCA 188 at [48] per Davies J, McClellan CJ at CL and Hall J agreeing.

However, the Court in Hampton [2010] NSWCCA 278 said that to adopt this view as a general proposition would be to emasculate the role of the Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. RS Hulme J (Beazley JA and Latham J agreeing) observed:

12. Pre-sentence Custody

Preferable course is to backdate sentence

In Wiggins [2010] NSWCCA 30 the judge said he had 'taken into account' a 4 month period of custody which the applicant had served prior to sentence. The Court said this was an error and that, as the Court has repeatedly stated, the preferable course is to backdate the sentence imposed by a period equivalent to the pre-sentence custody: at [3]-[7]. In this case, it was unclear how the judge had arrived at the sentence by taking the 4 months into account and the Court should not have to speculate: at [11]. However, the appeal was dismissed as no lesser sentence was warranted.

Per Howie J (McClellan CJ at CL and Harrison J agreeing):

A suspended sentence cannot be backdated

In Pulitano [2010] NSWCCA 45 the Court said that a suspended sentence cannot be backdated to take into account pre-sentence custody. Rather, the pre-sentence custody must be taken into account by reducing the sentence or backdating it when the bond is revoked: at [9]. The Court said it was not necessary to determine which is the preferable course. In this case the judge had taken into account the pre-sentence custody when suspending the sentence and it was open for his Honour to do so: at [10]-[15].

As to pre-sentence custody generally, the Court said that backdating the date on which the sentence is to commence (s 47(2)(a) (Crimes (Sentencing Procedure) Act) is the preferred course, although reducing the sentence imposed can be followed for good reason: at [8].

13. Plea of Guilty

Criminal Case Conferencing Trial Act 2008 s 17(1)(a): Discount of 25% for plea of guilty before committal

The Criminal Case Conferencing Trial Act2008 applies to committal proceedings that are to be heard in the Downing Centre or Central Local Courts in Sydney: s 4.

In Do [2010] NSWCCA 182 and Tran [2010] NSWCCA 183 the applicants pleaded guilty to firearms offences. In both cases. the parties failed to bring the judges' attention to s 17(1)(a) which resulted in the judges failing to allow a discount of 25% for the applicants' guilty plea before committal. Section 17(1)(a) states that if an offender pleads guilty to an offence at any time before being committed for sentence, the court must discount the sentence of imprisonment by 25%. As a material error had occurred, the applicants were re-sentenced.

Permissible to take into account factual dispute against offender on discount for guilty plea.

In Donaczy [2010] NSWCCA 143 the Court said that a judge is permitted to take into account a factual dispute unfavourable to the offender when determining the discount for a guilty plea. The applicant had pleaded guilty to manslaughter. A factual dispute arose around whether the applicant had 'king hit' the deceased victim without warning. The judge rejected the applicant's evidence on this issue and allowed a discount of 20% for the guilty plea. The applicant submitted that it was an error to take into account the factual dispute and that the discount should have been 25%. Dismissing the appeal, Allsop P (Grove and Hislop JJ agreeing) said:

14. Supply Prohibited Drugs - Trafficking to a Substantial Degree

The principle is that trafficking in drugs to a substantial degree should attract full-time custodial imprisonment in the absence of exceptional circumstances: Clark (NSWCCA, unreported, 15.3.1990); Gip (2006) 161 A Crim R 173.

Failure to consider whether offender substantially involved in supply

In Scott [2010] NSWCCA 103 the applicant was charged with supply prohibited drug. The applicant claimed that the drugs were for his own personal use. The Court held that the sentencing judge failed to consider whether the applicant had actually been substantially involved in the supply of drugs before applying the principle that a custodial sentence must be imposed unless there are exceptional circumstances. It could not be said that the evidence warranted no other conclusion.

Allowing the appeal, per Hislop J (Allsop P and Grove J agreeing):

In Zahrooni [2010] NSWCCA 252 the applicant also argued that the judge failed to consider the extent to which the evidence established trafficking to a substantial degree. However, the appeal was dismissed. The judge properly found the applicant was a 'user/dealer' and had the judge expressly adverted to the phrase 'trafficking to a substantial degree' he would have concluded the applicant came within that description: at [33].

Per Simpson J (Hoeben and RA Hulme JJ agreeing):

Voluntary cessation of criminal activity may be 'exceptional circumstances'

In Pickett [2010] NSWCCA 273 the Court found that the offender's voluntary cessation of criminal activity prior to his arrest amounted to exceptional circumstances to allow other than full-time imprisonment where there was trafficking to a substantial degree.

Per Simpson J (RA Hulme J agreeing; Fullerton J agreeing with separate reasons):

15. Particular Offences

Child Pornography - factors relevant to objective seriousness

In Minehan [2010] NSWCCA 140 the appellant was charged with a number of Commonwealth and State child pornography offences RA Hulme J (Macfarlan and Johnson JJ agreeing) set out a list of factors relevant to an assessment of the objective seriousness of offences of possession, dissemination or transmission of child pornography. His Honour referred to Whiley [2010] NSWCCA 53; Gent (2005) 162 A Crim R 29; Oliver [2003] 1 Cr App R 28; Colbourn [2009] TASSC 108; Hutchins v WA [2006] WASCA 258; Mara [2009] QCA 208:

RA Hulme J also referred to 3 other considerations: the importance of general deterrence and denunciation; and that the importance of previous good character is of less significance in these offences: at [96]-[101].

s 97 Armed robbery - error to assess objective seriousness with reference to 'mid-range' rather than Henry guideline judgment

In Kelly [2010] NSWCCA 259 the respondent was sentenced for five armed robberies under s 97(1) Crimes Act. This offence does not carry a standard non-parole period. The judge assessed the objective seriousness of all of the offences 'to be around mid range' and imposed fixed terms of 2 years each for four offences, and a non-parole period of 2 years 6 months for the fifth offence, all sentences to be partly consecutive. The Court held it was an error to globally assess the objective seriousness of all of the offences by reference to a 'mid range offence'. The proper procedure was to assess the criminality of each of the offences by reference to the armed robbery guideline judgment in Henry (1999) 46 NSWLR 346: at [47]-[50].

Money Laundering - sentencing principles

In Guo & Oian [2010] NSWCCA 170 the Crown appealed against the sentences imposed upon the applicants for recklessly dealing in proceeds of crime under s.400.4(2) Criminal Code1995 (Cth); and conducting transactions so as to avoid reporting requirements under s.31(1) Financial Transaction Reports Act1988 (Cth). The applicants were each sentenced to imprisonment by way of periodic detention. The Court held the sentences to be manifestly inadequate and allowed the appeal. The Court reviewed a number of authorities which have set out the relevant sentencing principles for these type of offences: at [84]-[91], [92]-[97]. These principles are summarised as follows:

Money laundering offences

At [86] - Sentencing decisions for money laundering offences may provide assistance by way of statements of general sentencing principle, but not by way of identification of a range of sentence - see Van Haltren [2008] 191 A Crim R 53 at 79; Wing Cheong Li [2010] NSWCCA 125.

At [87] - The offences comprehend a wide range of criminality. The principal differentiating factors are the minimum value of money or property and the offender's state of mind. Each case will have other important variables that bear on sentence which will include:

see Wing Cheong Li [2010] NSWCCA 125 per Barr AJ at [41]; Olbrich (1999) 199 CLR 270 at [19]; Ansari (2007) NSWLR 89 [119]-[124]

At [88] - The legislative scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender; intentional dealing is more serious than one where the state of mind is recklessness: Ansari (2007) NSWLR 89 at [122].

At [89] - Some factors which bear upon the assessment of the objective seriousness of a money laundering offence:

see Huang & Siu (2007) 174 A Crim R 370 at [32]-[36].

At [91] - General deterrence as a sentencing factor for money laundering offences has been emphasised: Huang & Siu at [36].

Financial reporting offences

At [93] - The Financial Transaction Reports Act1988 (Cth) is directed at regulating the cash economy, which can facilitate both tax evasion and money laundering: O'Driscoll 57 NSWLR 416 [13]-[14]. The legislation gives law enforcement agencies the ability to monitor the movement of large amounts of cash and thus to identify tax evaders and the recipients of proceeds of crime: Leask v Commonwealth of Australia [1996] 187 CLR 579 at 596-597.

At [94] - The offences call for a significant degree of general deterrence - Au [2001] NSWCCA 468 at [7]; Narayanan [2002] NSWCCA 200 at [89]; Rule [2003] NSWCCA 97 at [9]-[10]; Edwards; Ex parte Director of Public Prosecutions (Cth) [2008] 183 A Crim R 83 at [2].

At [97] - As with money laundering offences, sentencing decisions for financial reporting offences may provide assistance by way of statements of general sentencing principle, but not by way of identification of a range of sentence.

In Nguyen [2010] NSW CCA 226, involving dealing with proceeds of crime under s 400.3(1) Criminal Code (Cth), Barr AJ (Beazley JA and Buddin J agreeing), again summarised:

Drug importation - sentencing principles

In Nguyen; Pham [2010] NSWCCA 238 Johnson J set out the following general sentencing principles for serious federal drug offences:

Manslaughter and Culpable Driving Cases

In Bombardieri [2010] NSWCCA 161 the Court reviewed sentences imposed in manslaughter and culpable driving cases.

Break and Enter

In Mapp [2010] NSWCCA 269 Simpson J suggested that in light of s.21A Crimes (Sentencing Procedure) Act1999 the guideline judgment under Ponfield (1999) 48 NSWLR 327 has little continuing relevance.

16. Other Sentence Cases

De Simoni principle

In Bourke [2010] NSW CCA 22; (2010) 199 A Crim R 38 the applicant was sentenced for 'malicious wounding with intent to inflict grievous bodily harm' under s33 Crimes Act. The victim suffered a number of lacerations and fractures after being attacked by the applicant armed with an axe and pole. The applicant submitted that any 'grievous bodily harm', as opposed to 'wounding', could not be taken into account in assessing objective severity: De Simoni (1981) 147 CLR 383; McCullough (2009) NSWCCA 94.

The Court held there was no error. The injuries which were wounds were so severe that they could appropriately be described as grievous bodily harm. 'The fractures to the victim's skull and hands, although, ... not ... wounds, are so related to the blows to the victim which caused the wounding that in order to properly identify the extent and consequence of the wounding consideration of the resulting fractures and their consequence was undoubtedly appropriate': at [53].

The intent to which the applicant pleaded guilty was the intention to do grievous bodily harm. The judge was entitled to have regard to the full extent of those injuries. The applicant was not sentenced for a more serious offence or for an aggravated form of the offence. The case was different to McCullough (a case under 'malicious wounding' s35 Crimes Act) where it was held that the 'wounding' with which the offender was convicted was unrelated to the injuries amounting to 'grievous bodily harm': at [54]-[55].

'Back-up or related offences' limited by penalties available in Local Court

In Collins [2010] NSWCCA 13 the applicant had pleaded guilty to various offences in the Local Court. These offences were placed on a certificate as back-up or related offences and transferred to the District Court pursuant to the procedure available under s 166 Criminal Procedure Act1986. The judge's attention was not drawn to s 168(3) Criminal Procedure Act:

Consequently, the judge did not limit sentence to the appropriate maximum penalties and the applicant had to be re-sentenced: at [23]-[24]. The Court went on to find that the judge had erred in assessing the objective seriousness of the offences and that the sentences were manifestly excessive: at [38].

Suspended sentences - The same considerations relevant to determining whether a sentence of imprisonment is appropriate are also relevant to whether sentence should be suspended - this does not amount to 'double counting'.

In Farrawell-Smith [2010] NSWCCA 144, a Crown appeal, the respondent had received two suspended sentences for one offence of recklessly cause grievous bodily harm in company and one offence of reckless wounding in company (s 35(1), (3) Crimes Act). The judge took into account the respondent's assistance to authorities in deciding to reduce the sentence, and then again when determining to suspend the sentence. The Crown argued that this constituted 'double counting. 'The ground was rejected.

Per Barr AJ (McClellan CJ at CL and Hislop agreeing)

Assistance to authorities in other jurisdictions

In Shaw [2010] NSWCCA 23 the Court said that a sentence may be reduced where the offender has provided assistance to authorities in other jurisdictions. In this case the offender's counsel did not ask the sentencing judge for a discount as it was accepted that the offender had received a discount in relation to offences for which he had already been sentenced in Queensland. However, counsel asked that the fact the offender was a person who would give assistance be taken into account as part of his personal subjective characteristics: at [20]. The Court said that because the applicant had already received a discount for his assistance, no error was demonstrated: at [23]. Per McClellan CJ at CL (RS Hulme and Johnson JJ agreeing):

S 10 Crimes (Sentencing Procedure) Act - Dismissal of charges and conditional discharge of offender

(This is a Court of Appeal decision.) In Hoffenberg [2010] NSWCA 142 the Court discussed the factors relevant to a determination of whether a particular offence is 'trivial' under s 10 Crimes (Sentencing Procedure) Act1999. The applicant was convicted and placed on a s 9 bond for damaging property (s 195 Crimes Act). An appeal to the Chief Judge of the District Court was dismissed. The applicant appealed to the Court of Appeal submitting the Chief Judge had applied an incorrect statutory test when exercising the court's jurisdiction pursuant to s 10. The Court dismissed the summons holding there was no error of process by Chief Judge: at [23]. The Court also said that the applicant's actions deliberate act of vandalism placed the offence beyond the trivial and the Chief Judge had made correct findings pursuant to s 10.

Per McClellan CJ at CL (Tobias JA and Basten JA agreeing):

17. Crown Appeals / Double Jeopardy

s 68A(1) Crimes (Appeal and Review) Act 2001 abolishes double jeopardy with respect to Crown appeals

In the Crown appeal of JW [2010] NSWCCA 49; (2010) 199 A Crim R 486 the respondent, who was 15 at the time of the offences, was sentenced for two robbery with wounding offences (s 98 Crimes Act). The respondent, in the company of co-offenders, robbed victims on trains at night. He received a two year suspended sentence for the first offence and 80 hours community service for the second. The Crown appealed against manifest inadequacy.

A five judge bench was constituted to consider s 68A(1 )Crimes (Appeal and Review) Act2001 which abolished double jeopardy with respect to Crown appeals. Section 68A (which commenced in September 2009) states:

The Court (Spigelman CJ; Allsop P agreeing; McClellan CJ at CL, Howie and Johnson JJ agreeing except on adequacy of sentence for the first offence) allowed the appeal. The Court quashed the sentence for the second offence and imposed a suspended sentence of two years. Two major issues considered by the Court were double jeopardy and the competency of the appeal.

(i) Double jeopardy

On the issue of double jeopardy, Spigelman CJ considered numerous authorities and concluded:

The Court however retains a discretion to dismiss a Crown appeal on the basis of "unfairness or injustice": Holder & Johnston (1983) 3 NSWLR 245. The discretion is not one to be exercised on the basis of a narrow range of considerations. The principle of double jeopardy, now abolished by statute, is only one basis on which this discretion can be exercised: at [85]. Although s 68A removes the double jeopardy element from the exercise of the discretion to intervene, other aspects remain untouched. So despite the abolition of the double jeopardy principle, there remains a residual discretion to reject a Crown appeal: at [95]. Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene. Matters include the contribution the Crown made to sentencing error by the sentencing judge, conducting an appeal on a different basis to that below and delay in instituting an appeal: at [92]-[93].

(ii) Competency of appeal

The Court rejected the respondent's submission that the Crown appeal was incompetent because the Crown did not set out the grounds of appeal in its Notice of Appeal. Rule 23E Criminal Appeal Rules does not refer to a notice of a Crown appeal containing grounds. However, the Court at [24]-[33] acknowledged that it is a desirable "rule of practice" that a Crown appeal identify grounds of appeal in the notice of appeal, although such grounds need not be identified when the notice is first filed: see Rule 76 Criminal Appeal Rules.

In Carroll [2010] NSWCCA 55; (2010) 267 ALR 57 the CCA said that s 68A does not deprive the essential character of the Court and does not require the Court to proceed in a manner that compromises equality before the law, impartiality or substantive fairness of process. Section 68A removes one aspect from judicial consideration being double jeopardy expressed in JW at [141(ii)] as: "... the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject." It would not lead to inconsistent outcomes: at [30]-[36].

Section 68A and Commonwealth offenders

In DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28, the Court by majority (McClellan CJ at CL, Simpson J and Barr AJ; Allsop P and Basten JA dissenting) held that s 68A applies to Crown appeals concerning federal offences. There was no inconsistency arising under s.109 of the Constitution as between s.68A Crimes (Appeal and Review) Act2001 and s.16A Crimes Act1914 (Cth).

In De La Rosa the Court said that any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced may be taken into account in accordance with s 16A(2)(m) Crimes Act1914 (Cth) (being the 'mental condition' of the offender).

Section 16A(2) of the Crimes Act1914 (Cth) lists matters which a sentencing court must take into account as are relevant and 'known to the court' in reference to actual, rather than presumed, anxiety and distress. Section 68A precludes reliance by the Court upon the presumption that the respondent is suffering anxiety and distress. But it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced: at [162]-[180]; [274]-[282] and [315]; as discussed in Nikolovska [2010] NSWCCA 169 at [99]-[100]. Where there is evidence of an offender's anxiety and distress, a sentencing court can take those factors into account. However, it is not presumed and the weight to be accorded to such evidence will vary from case to case: De La Rosa at [176], [180], [280].

CONVICTION APPEAL CASES

Inconsistency between State and Cth laws - Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) is not inconsistent with Criminal Code (Cth) s 306.2

In El Helou [2010] NSWCCA 111 the Court held that there is no inconsistency between s25(2) Drug Misuse and Trafficking Act1985(NSW) and s 306.2 Criminal Code1995 (Cth) which would render s 25(2) inoperative. The Court (Allsop P; Grove and Hislop JJ agreeing) dismissed the respondent's appeal against conviction. The Court said that the sections are not entirely coextensive or identical and that the elements of each offence are different. A person could commit an offence under s 25(2) but not s 306.2: at [20]. Part 9.1 of the Code is not intended to "cover the field", making clear that the State legislature may make laws in the same field: [23].

This is presently a live issue. Recently, the High Court held in Dickson (2010) 270 ALR 1 (discussed below under 'High Court cases') that a Victorian conspiracy provision was inconsistent with a Commonwealth conspiracy provision on the basis that the State provisions were broader and imposed greater obligations upon an offender than the Commonwealth law.

The High Court has also reserved judgment in Momcilovic (also under 'High Court cases' below). This is a Victorian case challenging the validity of s.5 Drugs, Poisons and Controlled Substances Act1981 which deems that a person is in possession of a drug if the drug is found on land / property occupied by the person unless that person can satisfy the court to the contrary. The issue of inconsistency is based on the fact that the Criminal Code (Cth) contains no deeming possession provision.

Rule in Browne v Dunn - Remedies where rule breached - Exclusion of evidence where rule breached - Generally a matter of last resort in a criminal trial

In Khamis [2010] NSW CCA 179, a sexual assault trial, the applicant attempted to give evidence of a conversation involving himself, the complainant and the complainant's brother. The trial judge refused to allow the evidence as it had not put to the complainant or other Crown witnesses during cross-examination.

The Court ruled the conversation was important and should have been put to all witnesses by trial counsel. The rule in Browne v Dunn (1893) 6 R 67 applied: at [36]. However, the trial judge erred in deciding that the only option was to exclude the evidence. The judge ought to have considered other options including recalling the witnesses under general power or under s.46 Evidence Act. The option of excluding defence evidence should be an option of last resort. A miscarriage of justice had occurred and the Court quashed the conviction and ordered a new trial.

The Court considered a non-exhaustive list of five options open to a trial judge in dealing with such evidence.

Per Whealy J (Campbell JA and Simpson J agreeing):

In RWB [2010] NSW CCA 147 the Court said that a Browne v Dunn warning was unnecessary in that case:

Evidence of uncharged acts admitted over objection - Tendency evidence formalities not satisfied

In ES (No.1) [2010] NSW CCA 197 the ruled that a failure to properly categorise evidence of uncharged sexual misconduct resulted in a miscarriage of justice.

The applicant was convicted of child sexual offences. At trial the Crown relied upon evidence from the complainant's sister K that she once saw the appellant touch the complainant in the genital area. The evidence was not tendered as tendency evidence and no notice had been served under s 97 Evidence Act.

The Court said evidence of uncharged acts may be admissible as, at [38]

The Court went on to comment at [39] that while there may be a theoretical distinction between motive and tendency evidence but it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child because

In allowing the appeal and ordering a new trial the Court held that the evidence could not be used as evidence of tendency because the requirements for the admission of tendency evidence under s 97 had not be satisfied: Qualtieri (2006) 171 A Crim R 463; DJV [2008] NSWCCA 272. As context evidence, however, the prejudicial effect of the evidence outweighed its probative value and the evidence should not have been admitted. Moreover the trial judge had directed the jury that K's evidence could not be used unless they accepted it occurred beyond reasonable doubt - a standard of proof required when uncharged acts are used as tendency evidence: at [46].

Misdirection on proper use of relationship evidence - Evidence of complainant not corroborated - Oath against oath - Proviso not available.

In Rees [2010] NSWCCA 66 the Court upheld the applicant's appeal against conviction and ordered a new trial. The applicant was convicted of sexual intercourse without consent (s 61I Crimes Act). Evidence by the complainant of sexual conduct by the applicant over a long period of time prior to the offence was admitted as relationship evidence.

In allowing the appeal the Court held that the trial judge's directions were erroneous, the same directions, provided by the same trial judge, having been held to be erroneous in JDK [2009] NSWCCA 76. The Court went on to say that this being essentially a case of oath against oath, the Court would not apply the proviso (s 6 Criminal Appeal Act which allows the Court to dismiss the appeal because there was no substantial miscarriage of justice).

Per Handley AJA (Grove J and Hislop JJ):

Unlawful arrest - Requirement to inform person of true reason for arrest

This is a decision of the Court of Appeal in which the arrest was found to be unlawful. In Johnstone v NSW NSW CA 70 the court considered the common law obligation under Christie v Leachinsky [1947] AC 573 to inform a person of the true reason for their arrest. The accused produced a Medicare card in response to a request for identification, but was asked to provide further identification that contained his address and date of birth. After being told 'if he didn't supply his name and details he would have to be arrested' the accused pushed the police officers and was subsequently arrested and charged with assault offences.

Beazley JA (McColl and Young JJA agreeing) said that in determining whether a person has been advised of the true reason for their arrest, what must be ascertained is whether the person was sufficiently informed of the true reason for the arrest: [56]. What is required will depend on the particular circumstances in each case:

In this case, the arresting officer thereby failed to satisfy the common law obligation to inform the appellant of the true reason for his arrest: [80]:

Section 281 Criminal Procedure Act - whether at the time admission made appellant could reasonably have been suspected of having committed an offence - Refusal by appellant to participate in a record of interview constituted a reasonable excuse for not having a recording

In Doklu [2010] NSWCCA 309 the police attended the scene of a stabbing and spoke to the appellant who had been stabbed by his estranged wife. The following conversation took place:

On appeal the Court rejected the applicant's submission that the conversation and admissions should have been excluded under s.281 Criminal Procedure Act because they had not been recorded.

Section 282(1)(a) applies where the person making the admission 'was or could reasonably have been suspected ... of having committed an offence.' At the time of the conversation the police officers were investigating a stabbing of which the appellant was the victim. There was no basis for them to have suspected the appellant had committed an offence prior to the admissions being made: at [21]-[22].

Under s.281(2)(a)(ii) a subsequent recording should be made of 'an interview about the making and terms of the admission.' The trial judge had properly found that a refusal by the appellant to participate generally in a record of interview constituted a reasonable excuse for not having a recording: at [27]-[30]:

Tendency /Context Evidence

In RWC [2010] NSWCCA 332 Simpson J provides a summary of the difference between tendency and context evidence:

See also RG [2010] NSWCCA 173 where the Court discussed the distinction between tendency and context evidence, the differing test for admissibility and the importance in taking into account the stated purpose of the Crown as well as the way the evidence in actually used at trial, to determine the nature of the evidence: at [29]- [37].

Accessorial Liability

In Chishimba [2010] NSWCCA 228 there is a useful summary of the principles of accessorial liability: at [29]-[34], [148].

DNA Evidence

In Aytugrul [2010] NSW CCA 272 the Crown tendered DNA evidence seeking to link the accused to a murder. Expert evidence was led that that 99.9% of world population could be excluded as having the DNA profile in issue. The appellant submitted that DNA evidence expressed as exclusion percentages and as percentages of close to 100, was unfairly prejudicial and should have been rejected pursuant to s 135 or s 137 Evidence Act.

In dismissing the appeal Simpson J, (Fullerton J agreeing, McClellan CJ at CL dissenting) found there was nothing to suggest the evidence was unduly or unfairly prejudicial, or confusing or misleading nor had there been any deficiency in the directions. Simpson J further held at [196] that neither GK [2001] NSWCCA 413; 53 NSWLR 317 ('relative chance of paternity' evidence) nor Galli [2001] NSWCCA 504; 127 A Crim R 493 are authority for the proposition that 'exclusion percentage' evidence is never admissible, nor that such evidence must inevitably be excluded under either s 135 or s 137.

Conduct of Crown

In GDD [2010] NSWCCA 62 the appellant had been convicted of a sexual assault where it was alleged he physically overbore his sister's fiance. In allowing the appeal both Simpson J and Grove J found errors made in the final address of the Crown Prosecutor to the jury were such that the conviction was unsafe. One error of particular concern was an invitation by the female Crown Prosecutor to the female members of the jury to use their own life experiences to appreciate how much stronger men are than women.

Per Grove J

Per Simpson J

Sane and Insane Automatism

In Woodbridge [2010] NSW CCA 185 the court considered the difference between sane and insane automatism. On an appeal against convictions for manslaughter and aggravated driving causing grievous bodily harm the appellant argued the trial judge erred in refusing to leave the issue of sane automatism to the jury.

CONCLUSION

The Judicial Commission Statistics for the Court of Criminal Appeal for 2010 sentencing and crown appeals have not as yet been finalised. The statistics for 2000-2009 are set out below. What can be gleaned from the available statistics is that successful severity appeals reached a high point of 46% in 2004, and fell progressively to 34.2% in 2009. Conversely successful crown appeals reached a low point of 49.2% in 2003 and there has been an increase to 64.6% in 2009.

Severity appeals *

Crown appeals *

54A What is the standard non-parole period?

54B Sentencing procedure

54C Court to give reasons if non-custodial sentence imposed

54D Exclusions from Division

Table Standard non-parole periods

21A Aggravating, mitigating and other factors in sentencing

(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.

(6) In this section:

In 2010, nine out of the 49 High Court judgements that were delivered focussed on the criminal law. As noted by Mirko Bargaric, there were two judgments with potentially far-reaching implications. In Dupas (2010) 241 CLR 237 the High Court established a high threshold for the granting of a permanent stay where there has been pre-trial publicity. In SA v Totani (2010) 271 ALR 662, where the invalidity of the SA anti-bikie legislation was confirmed, the Court applied and discussed the Kable doctrine. Two other important decisions, which canvassed the offence of conspiracy, LK (2010) 241 CLR 177 and Ansari (2010) 266 ALR 446 have potential implications for other areas of the (Cth)Criminal Code. In Pollock [2010] HCA 35 the Court gave a relatively liberal interpretation to the defence of provocation: see Mirko Bargaric, ' The High Court on Crime in 2010: Analysis and Jurisprudence'(2011) 35 Crim LJ 5.

1. Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465

(Appeal from NSW)

The High Court held the NSW CCA ( Hili [2010] NSWCCA 109) erred in stating that the 'norm' for sentencing under the Commonwealth legislation is a non-parole period between 60 and 66%. Such a norm is not in the statute and there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should serve in prison.

The High Court also discussed principles in Commonwealth crown appeals. These principles were applied by the CCA in Nguyen & Nguyen [2010] NSWCCA 331. There is a distinction between the assertion by the crown of, on the one hand, error in the sentencing process that can be identified (e.g. acting on a wrong principle) and, on the other, error that cannot be identified but that emerges from consideration of 'all the matters that are relevant to fixing the sentence'( Hili at [60]). An assertion of manifest inadequacy is an assertion that the result was 'unreasonable or plainly unjust'( Dinsdale [2000] 202 CLR 321). The High Court also rejected the proposition that 'manifest error [in sentencing] is fundamentally intuitive'. The CCA is required to consider all of the matters relevant to fixing sentence - in much the same way as a sentencing judge is required to do.

The Court considered the principle of consistency, stating that consistency between cases is found not in numerical equivalence but in the consistent application of relevant legal principles: at [48]-[50]. The Court also reiterated previous statements about the use of bare statistics in sentencing matters. Bare statistics are of little use without the whole of the circumstances as to why such sentences were passed: at [54]. In addition to facts and circumstances of the offences, and personal circumstances, a court ideally has sentences imposed in comparable cases, including, importantly, the reasons for those sentences: at [67].

2. The Queen v LK; The Queen v RK [2010] HCA 17; (2010) 241 CLR 177

(Appeal from NSW)

The High Court dismissed this Crown appeal. The respondents were charged with conspiracy to deal with $1 million being reckless to the fact that the money was the proceeds of crime (s 11.5 and s 400.3 Criminal Code(Cth)). The money was part of a larger $150 million fraud against the Commonwealth. RK had agreed, at LK's request, to allow money to be transferred to his Swiss account. The prosecution did not allege that the respondents were a party to, or had knowledge of, the larger fraud. At trial, the judge directed a verdict of acquittal on the basis that the charge was bad at, or unknown to, law. The Crown's appeal to the NSW CCA was dismissed: LK (2008) 192 A Crim R 456. The High Court held that a person cannot be found guilty of conspiracy under the Code unless s/he has knowledge of the facts that make the proposed act/s unlawful - in this case, that the funds were proceeds of crime.

3. Ansari v The Queen [2010] HCA 18; (2010) 266 ALR 446

(Appeal from NSW)

The High Court dismissed this appeal by affirming the conclusion of the NSW CCA that an indictment charging conspiracy to commit an offence, an element of which is recklessness, is not bad at law: Ansari [2007] 73 A Crim R 112. The charges against the appellants under s 11.5 Criminal Code(Cth) alleged that they conspired to deal with money where there was a risk that the money would become an instrument of crime and were reckless as to that risk. The Court said that under the Criminal Code, recklessness may be proved by intention or knowledge. Thus if the appellants intended that the agreed conduct would be carried out and had knowledge of the facts of the criminal conduct, then the offence the object of the conspiracy charge could have the fault element of recklessness. The Court also held that the NSW CCA did not err in its characterisation of the physical and fault elements of the offence of conspiracy under s 11.5 of the Code: referring to LK HCA 17, above.

4. Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

(Appeal from Victoria)

The High Court dismissed the applicant's appeal against the judgment of the Victorian Court of Appeal not to grant a permanent stay on the basis of prejudicial pre-publicity. The appellant was facing re-trial for murder. There was extensive media publicity of two previous murder convictions and the present charge. The appellant submitted that "the ubiquity and pervasiveness of the [his] reputation as a serial killer, is such that no fair trial can now be had." The Court said at [35] that in seeking to apply the relevant principle in Glennon (1992) 173 CLR 592, the question is not whether the case can be characterised as extreme, but whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR 75 at 111; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; Glennon (1992) 173 CLR 592 at 605. Extensive pre-trial publicity does not render a trial extreme per se and must be balanced with public interest in having the trial continue. In this case, possible prejudice from pre-trial publicity could be dealt with by appropriate directions.

5. South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662

(Appeal from South Australia)

The High Court dismissed an appeal by the State of South Australia against a decision of the Supreme Court of South Australia that s 14(1) of the Serious and Organised Crime (Control) Act2008(SA) (known as 'anti-bikie' legislation) was invalid. The High Court held that s 14(1) and a control order made under it were constitutionally invalid. Section 14(1) requires the Magistrates Court, on application by the Commissioner, to make a control order against a person if the Court is satisfied that the person is a member of a declared organisation. The Court held s 14(1) authorised the executive to 'enlist' the Magistrates Court in implementing decisions of the executive. This was incompatible with the Magistrates Court's institutional integrity: Kable v DPP (NSW) (1996) 189 CLR 51.

6. Dickson v The Queen [2010] HCA 30; (2010) 270 ALR 1

(Appeal from Victoria)

The appellant was convicted of conspiracy to steal under s 321(1) Crimes Act1958(Vic). He had conspired to steal cigarettes which had been seized and stored by Customs in a private warehouse. The Court found that as the cigarettes were in the possession of Customs they were property belonging to the Commonwealth. As a result, the theft provision in s 131.1 of the Criminal Code(Cth) applied and the conspiracy provision in s 11.5 could attach to it. The Court held that the Victorian Law was invalid to the extent it was inconsistent with the Commonwealth offence. The Victorian offence of conspiracy was defined more widely than the Commonwealth offence and imposed greater obligations. The Court allowed the appellant's appeal.

7. Hogan v Hinch [2011] HCA 4

(Appeal from Victoria)

The applicant was charged with breaching Serious Sex Offenders Monitoring Act2005 (Vic) s 42 when he publically identified two sexual offenders protected under the legislation. In the High Court the applicant sought to challenge the constitutional validity of s 42 on the basis that:

The court dismissed the appeal.

Other Cases

Judgments Reserved

Wainohu v State of NSW ; 2.12.2010 - Appeal from NSW

Constitutional Law - Validity of the Crimes (Criminal Organisations Control) Act2009 (NSW) which came into force on 3.4.09 ('motorcycle gang' legislation) - Whether the Act or any provision invalid on the ground that it undermines the institutional integrity of the Supreme Court of NSW - Whether Act is outside the legislative powers of the Parliament of NSW.

SKA v R ; 9.11.2010 - Appeal from NSW

Verdict unreasonable or insupportable having regard to evidence — Test to be applied —Where appellate court had videotape of interview of complainant played at trial — Where appellate court did not view videotaped evidence — Whether appellate court erred in application of test by not viewing videotaped evidence - Opinion of trial judge — Where inconsistencies in complainant's evidence — Where trial judge said 'impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt'— Whether appellate court erred in making no reference to opinion of trial judge.

Momcilovic v The Queen ; 3.9.2010 - Appeal from Victoria

Where person deemed to be in possession of drugs 'upon any land or premises' occupied by person, unless person satisfies court to the contrary: Drugs, Poisons and Controlled Substances Act1981 (Vic) s 5 — Whether s 5 creates legal onus on accused to disprove possession on balance of probabilities or evidential onus to show that s/he was not in possession - Drugs found in applicant's home — Where applicant and her partner gave evidence that drugs were her partner's and applicant had no knowledge — Whether jury should have been directed that prosecution must prove applicant's knowledge of drugs in order to prove possession — Statutory reversal of burden of proof of possession of drugs.

Lacey v The Attorney-General of Queensland ; 30.11.2010 - Appeal from Queensland

Principles regarding Crown appeals — House (1936) 55 CLR 499 — Whether s 669A Criminal Code1889(Qld) requires error by sentencing court — Whether inclusion of words 'unfettered discretion' in s 669A removes requirement for error on by sentencing court before appellate court can substitute an alternative sentence.

Special Leave granted

Cth DPP v Poniatowska ; 12.11.2010 - Appeal from South Australia

Obtain financial advantage from Commonwealth, knowing of lack of entitlement: s 135.2 Criminal Code1995 (Cth) — Respondent fails to declare $71,000 in commission payments while receiving Centrelink payments — Whether omitting to perform act a physical element of offence — Whether existence of legal duty or obligation to perform act, imposed by offence provision or other Commonwealth statute, determinative of question of physical element —'engages in conduct'.

White v DPP (WA); Bowers v DPP (WA) ; 21.10.2010 - Appeal from WA

Confiscation of proceeds of crime — Restraining or freezing order — Applicants did not own and have effective control of property where offences committed — Freezing orders made over applicants' property in place of property where offences took place: Criminal Property Confiscation Act2000 (WA) s 22 — Whether property where offences took place was 'crime-used' property as defined by s 146

R v Muldrock 11.3.2011 - Appeal from NSWCCA

Construction and application of s 54A Crimes (Sentencing Procedure) Act1999 standard non-parole provisions - whether provisions only apply where offence found to be in mid-range - whether provisions apply where offence found to be below mid-range - whether finding under Way that standard non-parole period still a benchmark where offence below mid-range inconsistent with legislation

1. Criminal Procedure Amendment (Case Management) Act 2009

Commenced 1.2.2010 - amendments apply to proceedings on indictment where the indictment was presented or filed on or after 1 February 2010: Sch 2 Pt 19.

This Act is designed to make the trial process more efficient.

The Criminal Procedure Act 1986 was amended as follows:

At the first court mention, the Court is to give directions as to notice and future conduct of the trial: s 136. The Court has a discretion to determine which (if any) of the measures may be suitable in particular proceedings: s 134(2). But the Court may also waive any disclosure requirements: s 148. The Supreme Court and District Court have each issued practice notes as to standard directions where a Court does not make a direction under s 136 or waives the requirement to do so: Supreme Court Practice Note SC CL 2; District Court Practice Note9.

The prosecution must give notice of its case to the accused that includes matters such as a copy of the indictment, statement of facts and copies of witness statements and exhibits: s 137. The defence must give notice of its response including matters such as notice of alibi or notice of consent under s 90 Evidence Act (Discretion to exclude admissions): s 138. A Court may direct the parties to attend a pre-trial hearing and may make such orders it thinks appropriate for the conduct of the trial: s 139. Direction for a pre-trial conference may be made, the purpose of which is to determine whether the parties are able to reach agreement as the evidence to be admitted at trial: s 140.

The Court may make an order for pre-trial disclosure by both the prosecution and defence: s 141. The prosecution must include in its pre-trial disclosure notice such matters as those matters included in its s 137 notice and copies of documents that could reasonably be considered adverse to the credibility or credit of the accused: s 142. The defence pre-trial disclosure notice must include certain matters such as those matters included in a s 138 notice, whether the prosecution statement of facts is agreed to or disputed and whether it is proposed to call expert evidence. The Court may refuse to admit evidence not disclosed in accordance with pre-trial disclosure orders and to exclude expert evidence where a copy of such report was not provided to the other party in accordance with those orders: s 146.

The form of notices, how notices may be delivered and the types of material that should and should not be provided are set out in ss 149 - 149D.

2. Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010

Commenced 1.10.2010

The Act amended the Crimes (Sentencing Procedure) Act 1999 by abolishing periodic detention and introducing the 'intensive correction order'(ICO) as a community-based sentencing option. The Act was based on recommendations by the Sentencing Council in its 2007 report 'Review of Periodic Detention.' The ICO aims to reduce an offender's risk of reoffending through the provision of intensive rehabilitation and supervision in the community. An ICO is a sentence of imprisonment of up to two years ordered to be served in the community, where offenders can be subject to a range of stringent conditions, such as 24-hour monitoring, regular community work, and educational and rehabilitative activities.

A Court that has sentenced an offender to imprisonment for not more than 2 years may make an ICO: s 7. An ICO cannot be made for prescribed sexual offences: s 66. An ICO cannot be made unless the Court is satisfied the offender is above 18, is a suitable person for an ICO, that it is appropriate in all the circumstances to make such an order, and the offender has signed an undertaking to comply with the ICO: s67. Before a court can make an ICO, a suitability assessment must be made by Corrective Services. Provision for referral and assessment of suitability are in ss 69-70.

Part 3 of the Crimes (Administration of Sentences) Act 1999 deals with the general obligations of offenders, permission for non-compliance with work or reporting requirements, and breaches of intensive correction orders. Corrective Services conducts suitability assessments, supervises offenders, undertakes worksite and home visits, conducts drug and alcohol testing and checks on compliance. The Parole Authority has powers and functions in relation to the suspension, revocation and reinstatement of an ICO.

3. Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009

Commenced 22.2.2010

The Act streamlines the fraud and forgery offences. The Act amended the Crimes Act 1900 as follows:

The new offences are modelled on the Model Criminal Code and the Criminal Code (Cth).

Fraud offences - Part 4A

The new offences are:

. by any deception, to dishonestly obtain property belonging to another or obtain any financial advantage or cause any financial disadvantage. Maximum penalty 10 years imprisonment: s 192E.

. intention to defraud by destroying or concealing accounting record. Maximum penalty 5 years imprisonment: s 192F.

. intention to defraud by false or misleading statement. Maximum penalty 5 years imprisonment: s 192G.

. intention to deceive members or creditors by false or misleading statement by an officer of an organisation. Maximum penalty 7 years imprisonment: s 192H.

Identity crime offences - Part 4AB

In response to the rising incidence of identity-type crimes the new identity fraud offences are:

. dealing with identification information with the intention to commit or facilitate the commission of an indictable offence. Maximum penalty 10 years imprisonment: s 192J.

. possess identification information with the intention to commit or facilitate the commission of an indictable offence. Maximum penalty 7 years imprisonment: s 192K.

. possess equipment to make identification documents or things. Maximum penalty 3 years imprisonment: 192L.

Forgery offences - Part 5A

The new offences are:

. to make a false document (Forgery). Maximum penalty 10 years imprisonment: s 253.

. to use a false document. Maximum penalty 10 years imprisonment: s 254.

. to possess a false document. Maximum penalty 10 years imprisonment: s 255.

. to make or possess equipment etc for making false documents knowing that it is so designed or adapted and with the intention to use it to commit forgery. Maximum penalty 10 years imprisonment: s 256(1).

. to make or possess, without reasonable excuse, any equipment etc designed for the making of a false document, knowing that it is so designed. Maximum penalty 3 years imprisonment: s 256(2).

. to possess any equipment etc capable of being used to make a false document, intending that the person or another person will use the equipment, material or other thing to commit forgery. Maximum penalty 3 years imprisonment: s 256(3).

4. Crimes (Forensic Procedures) Amendment Act 2009

Commenced 17.5.2010

A new Part 8A has been inserted into the Crimes (Forensic Procedures) Act 2000 to allow for the carrying out of forensic procedures on children under 10 years old. A Magistrate may only make such an order for the limited purposes of investigating an offence, assisting in locating or identifying a missing person; or assisting in identifying a deceased person: s 81F(1). A Magistrate must take into account certain matters including the child's age, the child's best interests, the child's understanding and the purpose for which the procedure is required: s 81F(2). Further provisions relate to the informed consent of parents and guardians: s81C, and to the retention and destruction of forensic material: ss 81G-N.

5. Crimes Amendment (Child Pornography and Abuse Material) Act 2010

Commenced 17.9.2010

(i) Amendments to the Crimes Act 1900

Designed was to make the law more consistent with Commonwealth offences.

New terminology and definition of 'child abuse material.'

'Child pornography' is now called 'child abuse material.' Section 91FB, modelled on Commonwealth provisions, extends to a wider range of 'child abuse material', including material that depicts or describes the private parts of a child. Child abuse material is defined as material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

Defence that material produced for child protection, scientific, medical, legal, artistic or other public benefit purposes removed.

The existing offence of producing, disseminating or possessing child pornography is retained in s 91H. However, it is no longer a defence to that offence that the material concerned was produced, used or intended to be used by the defendant acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose. Instead, s 91FB sets out the factors to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive. These factors include literary, artistic, educational or journalistic merit.

Defences

Section 91HA contains similar defences to those available under Commonwealth law:

It is still a defence for the offence of producing, disseminating or possessing child abuse material that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed child abuse material: s 91HA(1).

Data defined

Section 91FA defines 'data' so that possession of child abuse material includes possession of a computer or data storage device holding or containing the data.

(i) Amendments to the Criminal Procedure Act 1986

Random sample evidence

Section 289B of the Criminal Procedure Act 1986 provides for the use of random sample evidence in child abuse proceedings to limit exposure of police, court staff, lawyers and juries to the sometimes large volumes of offensive material. An authorised analyst may conduct an examination of a random sample of the child abuse material the subject of the proceedings. The prosecution may adduce evidence of the analyst's findings. This evidence may be admissible as evidence of the nature and content of the whole of the material from which the random sample was taken. A court may thus find that any type of child abuse material present in a particular proportion in the random sample of the material is present in the same proportion in all of the material.

Extension of protections afforded to complainants in sexual offence cases

Under s 294D Criminal Procedure Act, the special arrangements that apply to the giving of evidence by complainants in sexual offence cases (eg in camera evidence, CCTV) has been extended to sexual offence witnesses. A sexual offence witness is a witness (other than the complainant) against whom it is alleged that the accused has committed a sexual offence (not being the sexual offence that is the subject of the proceedings).

6. Crimes Amendment (Police Pursuits) Act 2010

Commenced 18.3.2010

The Act created a new indictable offence of failing to stop a vehicle and driving the vehicle recklessly, or at a speed or in a manner dangerous to others, after becoming aware that police officers are in pursuit of the vehicle: s 51B Crimes Act 1900. Section 51B provides that it is an offence if a driver:

The maximum penalty in the case of a first offence is 3 years imprisonment. In the case of a second or subsequent offence the penalty is 5 years imprisonment.

7. Courts and Crimes Legislation Amendment Act 2010

Commenced 1.11.2010

The Act amended the Criminal Procedure Act 1986 to extend the circumstances in which an alleged victim of an 'offence involving violence' is not required to attend committal hearings. An alleged victim of an offence involving violence cannot be directed to attend committal proceedings where the victim has made a written statement, unless the Magistrate is satisfied there are special reasons why the victim should give oral evidence: s 93 Criminal Procedure Act1986. 'Offence involving violence's is defined in s 94. A new s 94(1)(f) extends the definition of 'offence involving violence' so that it includes an offence the elements of which include the commission of, or intention to commit, any offence that is already defined as an offence involving violence.

8. Courts and Crimes Legislation Further Amendment Act 2010

Commenced various times.

The various amendments include:

Crimes Act 1900

Insertion of new offence s44. The new offence replaces and modernises the current offence of not providing any wife etc with necessities where a person is legally liable to do so and which endangers the life of, or causes serious injury to that person (Commenced 7.12.2010).

Criminal Procedure Act 1986 :

Sexual assault communications privilege - amendments commenced 7.12.2010 and extend to proceedings commenced but not completed before the commencement of those amendments although this does not affect anything done in the proceedings prior to those amendments

Section 249D - definition of a "sexual offence witness" in s 249D, being a witness other than the complainant (ie. a tendency witness), is amended to apply to witnesses against whom the accused person is alleged to have committed a prescribed sexual offence if they occurred in NSW at the time of the commencement of proceedings. The amendment extends 'communications privilege' to witnesses who were the victim of sexual misconduct that did not constitute an offence at the time but is now an offence, and witnesses subject to sexual misconduct that allegedly occurred interstate or overseas.

Section 295 Sexual Assault Communications Privilege - definition of 'criminal proceedings' is amended to include pre-trial and interlocutory proceedings. 'Sexual assault offence' is amended to include acts that would constitute a prescribed sexual offence if those acts: (i) had occurred in this State, or (ii) had occurred at some later date, or (iii) had both occurred in this State and occurred at some later date.

Sections 297-299: Procedures - replaced. The new provisions extend to a protected confider who is not a witness or a party to the proceedings. This includes making provision for notice to be given to such person where there is an application to tender in evidence a document or evidence containing a protected confidence. When determining whether to grant leave a Court must now take into account a number of factors including that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship and that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. The court is also able to permit a confidential statement to be made to it by or on behalf of the principal protected confider (the victim) by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. The court must not disclose a confidential statement to a party other than the victim. (The amendments do not apply to proceedings commenced prior to the commencement of the amendments - commenced 7.12.2010).

Sections ss 132 and 132A - Trial by Judge Alone - both the accused and the prosecutor may apply to the court for an order that the accused be tried by judge alone. The order must be made if both agree but cannot be made if the accused does not agree. If the prosecutor does not agree, the court may make an order if it considers it to be in the interests of justice. The court must not make an order unless satisfied that the accused has obtained legal advice about the effect of the order. Despite these provisions, the court may make an order if there is a substantial risk of jury tampering offences occurring and there is no other way of reasonably mitigating that risk. A new s132A provides for the time within which applications for orders must be made (not less than 28 days before the date fixed for trial) and applications in joint trials. (Amendments apply to criminal proceedings that commenced on or after the commencement of the amendments - amendments commenced 14.1.2011.)

Section 56(3) - Committal proceedings to be heard in open court - allows certain aspects of committal proceedings to be conducted in the absence of the public, but only for the purpose of facilitating the use of an electronic case management system in proceedings under the Electronic Transactions Act 2000. (Amendment applies to committal proceedings instituted on or after the commencement of the amendment - amendment commenced 7.12.2010.)

Criminal Appeal Act 1912

The amendment is related to the sexual assault communications privilege amendments to the Criminal Procedure Act, above. A new s 5F(3AA) allows other parties to appeal against a decision that a document or evidence does not contain a protected confidence. (Applies to proceedings commenced but not completed at time of amendment - amendment commenced 7.12.2010).

9. Evidence Amendment Act 2010

Commenced 14.1.2011

Mutual recognition of certificates relating to privilege against self-incrimination - ss.128, 128A - Sections amended to provide for the recognition in NSW courts of 'certificates of self-incrimination certificates' issued under the provision of another State or Territory (as prescribed in the Regulations).

Unavailability of witnesses - clause 4 Dictionary Definition - Substituted to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.

10. Graffiti Control Amendment Act 2009

Commenced 3.5.2010

A new Part 3A in the Graffiti Control Act 2008 allows a court when imposing a fine to order the offender to perform community service clean up work to satisfy the amount of the fine. Community clean up work is any community service work under the Children (Community Service Orders) Act 1987 or the Crimes (Administration of Sentences) Act 1999 approved by the applicable Minister: s 9C. An offender must be a suitable person for community clean up work and, if a child, must be sufficiently mature to perform the work, and work must be available in the area where the offender lives: s 9D.

Written notice of the order must be given to the offender and the relevant Department and, where appropriate, to the Children's Court: s 9E. A Court must explain the requirements of the order, the consequences of not complying and that the fine may be paid instead of performing the work: s 9F. One hour of clean up work equals $30 of the total fine: s 9G. An order may be revoked in certain cases, for example, where the offender fails to attend for work within 3 months of the order: ss91K-L.

The Act also inserted new offences:

11. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Prohibition) Act 2010 (CTH)

Commenced 14.4.2010

The Death Penalty Abolition Act1973 (Cth) amended to extend the prohibition on the death penalty state laws so that the death penalty cannot be introduced anywhere in Australia: ss3(3), (4).

New torture offence inserted into s 274 Criminal Code1995.

12. Crimes (Sentencing Procedure) Amendment Act 2010

Commenced 14.3.2011

Aggregate sentences

The main amendments are to the Crimes (Sentencing Procedure) Act 1999 to allow for an aggregate sentencing scheme. The aim is to remove some of the complexity involved when sentencing offenders for multiple offences.

Guilty Pleas

Section 22 requires a court to take a guilty plea into account in passing sentence for an offence and allows a lesser penalty to be imposed.

Admissions

Evidence of an admission is not admissible unless recorded and the prosecution establishes a 'reasonable excuse' as to why a recording is not made. 'Reasonable excuse' includes a 'refusal' by the person being questioned to have the interview recorded: s 281 Criminal Procedure Act 1986. In Armstrong [2010] NSWSC 483 (Buddin J) the accused spoke with a police officer 'off the record' and made an admission. The accused then declined to be videotaped or sign any document until he had spoken to his solicitor. The police officer had recording equipment available but had not ascertained at the start of the discussion whether the accused was willing to be videotaped. Buddin J held the Crown failed to establish under s.281 that the accused had 'refused' to have the questioning recorded and therefore the Crown had not established a 'reasonable excuse'.

Adjournment where brief not served in time

In DPP (NSW) v Fungavaka [2010] NSWSC 917 (Hidden J) the Magistrate dismissed the charge against F because the brief had not been served in time. The prosecution's application for an adjournment was dismissed, the reason being that the Magistrate was not satisfied with the explanation for the failure to serve the brief by the date required. Hidden J upheld the DPP's appeal saying that although service of a brief in time is a central consideration, the interests of justice would have been best served by granting the prosecution an adjournment. The Magistrate had based his decision solely upon the failure of the police to serve the brief in time, and did not weigh the competing policy considerations bearing upon the exercise of his discretion: at [41]. See ss 183, 187 Criminal Procedure Act1986.

Police power to require person to disclose identity

Section 11 of the Law Enforcement (Powers and Responsibilities) Act2002 states that a police officer may request a person to disclose his identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged offence occurred. It is an offence to fail to comply with a request made under s 11 without reasonable excuse: s 12.

In DPP (NSW) v Horwood [2010] NSWSC 1447 (Fullerton J), in response to an incident at a hotel, a police officer asked H for his name but H refused. H asked if he was under arrest and the officer told him that he was not. The officer told H he believed that H was present when the incident occurred, that he was required by law to provide his name and that he would be committing an offence if he refused. H refused and was arrested. The magistrate dismissed the charge brought against H because H was a suspect and was exercising his common law right to silence. Allowing the DPP appeal, Fullerton J held that unless and until a person who police believe was present when an indictable offence is committed is arrested and charged, that person, even if regarded as a suspect, is obliged to provide their identification details if requested by an officer who believes that the person may be able to assist police in their investigation. If the person refuses, otherwise than on reasonable grounds, they are liable to be convicted of an offence against s 12.