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287
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DO, Thi Bach Tuyet - CCA, 22.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Do [2005] NSWCCA 258
Sentence appeal.
Import trafficable quantity heroin.
8y with NPP of 5y.
Applicant had earlier been sentenced to precisely the same term of imprisonment when she was previously convicted for the same offence. Her conviction for that offence was subsequently quashed in the CCA & a retrial ordered: see
R v Do [2004] NSWCCA 137.
Appellant travelled from Australia to Vietnam, returning almost a month later. Upon arrival at Sydney Airport, Customs officers found heroin concealed in her shoes. When interviewed, she said she had bought the shoes at a market in Vietnam & did not know there was anything secreted in them. Australian Federal Police officers were called & she gave them the same account. In a later recorded interview at AFP headquarters, she gave a detailed account. She took part in a further recorded interview some months later in which she retracted that account.
Aged 49 at time of sentence - no priors - lived a tragic life - no family - no support.
Sentence after retrial - whether error in sentencing judge regarding his sentencing discretion as fettered by the sentence earlier imposed - likelihood of deportation - extra-curial punishment.
Appeal dismissed. |
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288
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ABS - CCA, 20.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v ABS [2005] NSWCCA 255
Appeal brought by the Crown against an order made in the DC adjourning sentencing proceedings pursuant to s.11(1)
Crimes (Sentencing Procedure) Act 1999.
6 x aggravated sexual intercourse without consent (female under 16, under authority); + 4 similar charges on a Form 1.
The complainant is the respondent's stepdaughter. All the offences occurred within the family home when the complainant was aged between 12 & 14. The complainant was only 2 years of age when her mother & the respondent commenced living together. All the offences but one consisted of digital/vaginal penetration or penile/anal penetration. The remaining offence was an act of cunnilingus.
Aged 38 at time of appeal - guilty pleas at first available opportunity - full admissions - no prior convictions - rehabilitation - depression.
Objective gravity of offences - standard NPP - repeated nature of offences -
R v Holyoak (1995) 82 A Crim R 502 - Form 1 offences needed to be taken into account -
Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146 - offences continued over extended period of time - engaged in various forms of sexual misconduct - abuse of position of trust -
R v BJW (2000) 112 A Crim R 1 - victim at vulnerable age - respondent instigated offences, engineered circumstances in which they were committed -
R v CJP [2004] NSWCCA 188 - need to protect children, deterrence -
R v Fisher (1989) 40 A Crim R 442;
R v Burchell (1987) 34 A Crim R 149.
Appeal allowed: Order quashed; matter remitted to the DC. |
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289
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DENIGRIS, Tony - CCA, 4.7.2005
James, Howie & Rothman JJ
Citation: R v Denigris [2005] NSWCCA 228
Sentence appeal.
1 x money laundering; 8 x obtain money by deception; 3 x make false instrument; 1 x obtain valuable thing by deception.
Total sentence of 6y with a NPP of 4y.
Over a 2* month period, appellant obtained a total of $354,211 from the Australian Guarantee Corporation (AGC) by submitting applications for loans to finance the acquisition of computer equipment, which did not in fact exist. In all but one of the applications, the purported applicant was a fictitious person for whom a false identity had been created. There was only one application where the applicant was a real person (applicant's co-offender). The amount of money dishonestly obtained on this occasion was the largest ($101,761). By the time the applicant was sentenced, the co-offender had repaid more than $40,000.
Aged 35 at time of offence - Italian, immigrated to Australia in 1964 - married with 5 children - some contrition - positive behaviour whilst in prison - multiple priors - previous imprisonment (PD).
Whether sentencing judge erred in failing to order concurrent sentences in respect of some charges - whether justifiable sense of grievance - parity - whether inadequate weight given to guilty pleas & assistance.
Appeal allowed in part: total of 6y with NPP of 4y unchanged. |
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290
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HEFFERNAN, William Patrick - NSW SC, Hoeben J, 29.7.2005
Citation: R v Heffernan [2005] NSWSC 739
Remarks on Sentence.
Murder.
The offender killed the deceased by repeatedly striking him on the head with a piece of wood during a fight. Both the deceased & the offender were intoxicated at the time. At the time the offender struck the deceased with the piece of wood, there was eyewitness evidence that the deceased was on his knees.
Effect of self-defence, provocation & intoxication not reaching level to reduce offence to manslaughter - mitigating factors - objective seriousness of offence.
Sentenced to 14y with a NPP of 10y. |
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291
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DF - CCA, 22.7.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v DF [2005] NSWCCA 259
Sentence appeal.
Robbery with offensive weapon; specially aggravated kidnapping (causing ABH).
Total of 5y with a NPP of 2*y, to be served in a juvenile detention centre.
Applicant & 4 co-offenders were driving in a stolen MV when they saw the victim standing in a carpark adjacent to his home. They stopped the stolen vehicle & 3 of the co-offenders, armed with a knife & a steel pole, approached the victim & stole property from him, including a wallet, palm computer, CD player & 2 mobile phones. The victim was then ordered to sit in the back seat of his own vehicle & the 3 co-offenders entered the vehicle, whereupon one co-offender drove the vehicle to a nearby shopping centre while the applicant & the other co-offender followed in the stolen vehicle. Upon being threatened by one of the co-offenders, the victim revealed his PIN number, as a result of which the 3 co-offenders withdrew $800 from his account. Whilst they were at the ATM, the applicant & the other co-offender were left to guard the victim. When the victim attempted to escape, the applicant leant into the vehicle & punched the victim, striking at least half a dozen blows to his face, causing substantial bruising. When the 3 co-offenders returned, the applicant & the co-offender with him returned to the stolen vehicle & followed the other co-offenders in the victim's vehicle to another location. At this location, all 5 offenders got out of the vehicles & began to discuss the victim's fate. The victim overheard them making plans to keep him for a couple of days , however, he was able to make his escape & went to a nearby house for help.
Aged 17 at time of offending - guilty pleas first entered in Children's Court, adhered to in DC -
Youth & rehabilitation - quantification of discount for guilty pleas - form of order.
Appeal allowed only to the extent of correcting the sentences imposed so that they conformed with the requirements of s.44
Crimes (Sentencing Procedure) Act 1990. Total sentence remained unchanged. |
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292
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LAVENDER - HC, 4.8.2005 -
222 CLR 67;79 ALJR 1337
Citation: The Queen v Lavender [2005] HCA 37
On appeal from the NSW CCA: see
R v Lavender [2004] NSWCCA 120.
Crown appeal against the decision of the CCA allowing a conviction appeal & entering a verdict of acquittal.
Manslaughter - involuntary manslaughter by criminal negligence - respondent killed a 13 year old boy by running over him with a front end loader -
whether malice an element of the offence - relevance of former statutory requirement that indictment include a charge of maliciously killing for murder but not for manslaughter - interaction of provisions of the
Crimes Act with the common law of punishable homicide - application of the defence of honest and reasonable mistake of fact to manslaughter by criminal negligence - distinction between murder and manslaughter.
Statutes - Interpretation - relevance of historical context in resolving questions of statutory construction - relevance of past amendments to Act - use of contemporary historical materials in statutory construction - relevance of the rule of strict construction of penal statutes - relevance of uniformity in the criminal law throughout Australia.
Sentencing - appeal on sentence - restoration of custodial sentence after entry of an acquittal by NSW CCA - whether parties now entitled to seek leave of CCA to appeal against sentence.
Appeal against conviction allowed: Conviction restored. Orders postponed for 28 days to allow sentence appeal to CCA. |
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293
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ZOEF, Tony - CCA, 3.8.2005
McColl JA, Barr & Johnson JJ
Citation: R v Zoef [2005] NSWCCA 268
Conviction and sentence appeal.
1 x maliciously inflicting GBH with intent to do GBH; unauthorised possession of a shortened firearm; unauthorised possession of a prohibited weapon (silencer).
Total of 10y with a NPP of 7*y.
The appellant shot the victim when he entered the appellant's home at 2:00am. The appellant admitted shooting the victim but claimed he had done so in self-defence. The victim sustained a gunshot wound that damaged his spinal cord, rendering him a paraplegic.
Whether trial judge erred in admitting evidence of silencer not proved to have been used in the commission of the offence - whether directions concerning self-defence capable of causing miscarriage of justice - whether verdict unreasonable - whether sentence manifestly excessive.
Appeal dismissed. |
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294
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TZANIS, George - CCA, 4.8.2005
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Buddin JJ
Citation: R v Tzanis [2005] NSWCCA 274
Sentence appeal.
1 x dangerous drive occasioning death - 5y with NPP of 3y; 1 x dangerous drive occasioning GBH - 18m FT (concurrent). Driver's licence disqualified.
Total of 5y with NPP of 3y.
Appellant had been drinking at a hotel for some hours with friends. As he drove around the corner of the first intersection, his vehicle wheels spun & the vehicle almost collided with a parked car on the other side of the road. One passenger asked him to drive him straight home, which the appellant did. Appellant's car was then seen driving west along Talavera Road, Marsfield going at speed over a crest in the road at the intersection of Herring Street. Eyewitness evidence was that the vehicle became airborne, however, the witness lost sight of the vehicle on the crest & did not see it again until he drove past the collision. The appellant's vehicle's front passenger side wheel had collided with the southern kerb of Talavera Road & the vehicle had then gone into a clockwise spin. The vehicle had then continued to travel in a westerly direction for approx 90 metres before colliding with a timber power pole. The collision was a high-speed impact, causing the rear of the vehicle to be compressed around the power pole. The vehicle then spun anticlockwise & came to a stop with the front of the vehicle touching a brick wall. As a result of the collision, one passenger died & the other suffered a closed head injury, lacerations to his lip & upper gum & a partial collapse of the lower lobe of his left lung. Appellant had an alcohol reading of 0.135 grams per 100 millilitres of blood. Appellant left Australia for Greece. He became a Greek citizen & joined the Greek army. After about 2 years, he voluntarily returned to Australia, aware that a custodial sentence was inevitable.
Driving whilst licence suspended - intoxication - warning by passenger - driving erratically in a narrow area - high prospects of rehabilitation - unlikely to re-offend - guilty plea.
Whether error in trial judge considering harm caused by offences - whether error in trial judge considering that there were multiple crimes.
Appeal allowed: resentenced to 3*y with NPP of 2y for offence of dangerous drive occasioning death. Disqualification of licence affirmed. |
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295
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HABIB, Meme - CCA, 17.6.2005
McClellan AJA, Simpson & Rothman JJ
Citation: R v Habib [2005] NSWCCA 223
Conviction appeal.
1 x sexual intercourse without consent.
3*y with NPP of 2y.
Appellant & complainant were employed through an agency as carers at a home for disabled people. The complainant gave evidence that after her shift one evening, she stayed back for a while. She made a cup of tea & then sat on a couch in the lounge room, with the appellant sitting on the other end of the couch. The complainant said that the appellant then made advances towards her & had sexual intercourse with her without her consent. The appellant stated that it was the complainant who initiated the sexual activity. The complainant's evidence of how the act of sexual intercourse took place seemed questionable without her co-operation.
Verdict unreasonable - inconsistencies in complainant's evidence - error in directions on lies.
Appeal allowed: verdict of acquittal entered. |
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296
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DM - CCA, 18.7.2005
Grove, Hulme & Simpson JJ
Citation: R v DM [2005] NSWCCA 181
Sentence appeal.
1 x robbery in company with wounding; 2 x detain person in company with intent to obtain advantage; robbery in company; + Form 1 (3 x carried in conveyance without consent of owner; B&E with intent to commit serious indictable offence; 2 x attempt take & drive conveyance without consent of owner; 2 x maliciously destroy property; 2 x drive conveyance without consent of owner; robbery; larceny).
Total sentence of 6y 3m with NPP of 4y.
Applicant & his co-offenders travelled in a stolen MV to an address where one of the co-offenders had previously been employed. Applicant & one of the co-offenders approached the 54 year-old male victim as he was leaving the premises carrying a briefcase containing $1,000 in cash. Applicant struck him around the upper body a number of times with a baseball bat & the co-offender kicked the victim until he let go of the briefcase. The offenders then escaped in the stolen car after being chased by the victim & other employees & throwing the briefcase at them. The victim suffered lacerations, abrasions & contusions to his arm & back, cuts to his hands, bruising & an avulsion fracture to his right hip. Severe bruising to the victim's kidneys resulted in the passing of blood. Some 5 months later, the applicant, again travelling in a stolen MV with 2 co-offenders, stopped a female victim as she was walking from her home towards the railway station. One of the co-offenders threatened her with a knife & demanded her bag. The applicant forced the victim to hand over her purse & took $20, some small change & ATM cards. The victim was pushed into the car & driven to an ATM where she was made to withdraw $1,000 from her account. Approximately 9 days later, applicant & a co-offender alighted from a stolen car & approached another female victim who was walking with her 16 year-old daughter. The applicant attempted to snatch her handbag. At the same time the co-offender punched the victim's daughter several times after demanding money. They took the handbag containing $150 & personal papers & then drove off. About half an hour later, the applicant & a co-offender approached a male victim. The applicant threatened him with a hollow pipe. On this occasion, the offenders took $150 cash, a mobile phone & wallet from the victim. They then ordered the victim to enter the car & drove a short distance where they took the victim's ATM card & PIN. They allowed the victim to leave the car, however, upon seeing the victim look back & suspecting that he was attempting to note the car's registration number, the applicant punched the victim in the face.
Aged 14 at time of offending, 15 at sentence - subject to 18m GBB at the time - dysfunctional family - chaotic upbringing - parents separated - alcoholic mother subsequently entered into abusive
de facto relationship - father served a number of gaol terms during applicant's youth, died unexpectedly, possibly from a drug overdose, when applicant aged 9 - severely disrupted education ending when applicant aged 12 - began using marijuana at age 12 - progressed to alcohol, amphetamines, ecstasy - priors (illegal use of MV's) - previously subject to control orders.
Accumulation of sentences - failure adequately to promote rehabilitation - sentences manifestly excessive.
Reduction in NPP to allow access to juvenile rehabilitation programmes.
Appeal allowed in part: NPP for the robbery in company with wounding offence reduced, resulting in a total sentence of 6y 3m with a new total NPP of 3y. |
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297
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MMK - CCA, 4.8.2005
Spigelman CJ, Grove & Hall JJ
Citation: R v MMK [2005] NSWCCA 273
Conviction appeal.
9 x aggravated sexual assault in company.
Total of 22y with a NPP of 13y.
The charges related to a number of individual sexual acts that were alleged to have been committed upon each complainant. There were 5 accused & all were charged with each of those acts on the basis of an alleged joint criminal enterprise existing between them.
Arrangements were made by phone & 2 of the co-accused picked up the complainants from East Hills station & drove them to their house at Ashfield where they watched videos, listened to music & drank. The appellant propositioned one of the complainants. When she refused, he grabbed her. He was assisted by another co-offender, who was holding a knife & who threatened to kill the complainant. She was then taken to a bedroom & was sexually assaulted in turn by both men. In the meantime, the other complainant had been taken by another co-offender into another bedroom. She was also threatened with a knife before being sexually assaulted. At one stage she was advised that her friend was dead, having been stabbed with a knife. She was informed that if she did not shut up, the same thing would happen to her. The complainants were dumped in Campsie, where they raised complaint immediately, after which the police arrived & they were taken to hospital.
Whether verdict unreasonable - identification evidence - alibi evidence - whether jury properly instructed.
Appeal dismissed. |
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298
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MRK - CCA, 4.8.2005
Spigelman CJ, Grove & Hall JJ
Citation: R v MRK [2005] NSWCCA 271
Conviction appeal.
9 x aggravated sexual assault.
Total of 10y with a NPP of 5y.
Two of appellant's co-accused made arrangements by telephone & picked up the complainants from East Hills station & drove them to their house at Ashfield where they watched videos, listened to music & drank. One co-accused propositioned one of the complainants & when she refused he grabbed her. He was assisted by another co-accused, who was holding a knife & who threatened to kill the complainant. She was then taken to a bedroom & was sexually assaulted in turn by both men. In the meantime, the other complainant had been taken by the appellant into another bedroom. She too was threatened with a knife, before being sexually assaulted. At one stage she was advised that the other complainant was dead, having been stabbed with a knife. She was told that if she did not shut up, the same thing would happen to her. The 2 complainants were dumped in Campsie, where they raised complaint immediately, after which the police arrived & they were taken to a hospital. The Crown case against the appellant was one based on joint criminal enterprise. It was no part of the Crown case that the appellant had sexual intercourse with either complainant. The case against the appellant was that there existed an agreement amongst all the accused to commit acts of aggravated sexual assault in company & that such agreement was complete by the time of the general deprivation of liberty of the complainants. The Crown case was that appellant was a party to the said agreement in that he assisted or encouraged his co-accused in the commission of the offences or that he was present & ready to give aid if required.
Whether sufficient evidence that appellant was party to agreement to use knife - whether open to jury to find element of aggravation - joint criminal enterprise - directions to jury - whether erroneous - whether adequate - whether onus of proof properly stated - whether verdicts reasonable.
Appeal dismissed. |
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299
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CACCAMO, Vincent Anthony - CCA, 3.8.2005
Studdert, Kirby & Howie JJ
Citation: R v Caccamo [2005] NSWCCA 257
Sentence appeal.
1st indictment: supply large commercial quantity heroin (1.22 kgs); supply greater than indictable quantity cannabis (1.28 kgs); + Form 1 (2 x supply more than indictable quantity heroin; receive laptop computer).
2nd indictment: supply commercial quantity heroin (966 grams).
Total sentence of 8y with a NPP of 5y.
Applicant was involved in the supply of drugs in the northern beaches area of Sydney. Police intercepted the applicant's phone calls during drug deals in 1999 that linked him to dealing in drugs. In 2001, the applicant gave evidence to the Police Integrity Commission identifying dozens of transactions with corrupt police officers. The applicant argued that he deserved a reduced sentence because of pleading guilty & helping police with their investigations of corruption.
Aged almost 46 at time of sentence - married & has 2 children - addicted to heroin - lived in rented premises - engaged in drug activities to secure supply of heroin for himself & to enable him to support his family - no accumulation of substantial assets - prior drug offences - previous imprisonment.
Assistance to authorities, including against corrupt police - extent of discount - whether sufficient - whether more lenient sentence warranted.
Appeal dismissed. |
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300
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VU, Cam Quyen - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Vu [2005] NSWCCA 266
Conviction and sentence appeal.
1 x ongoing supply of cocaine.
6y with a NPP of 4*y.
Police officers suspected that a person or persons were supplying cocaine and/or heroin from a flat in Cabramatta & set out to prove it. The appellant & his friend were supplying drugs from the friend's flat.
Vietnamese - migrated to Australia with parents & siblings in 1990 - university studies in electronics interrupted by the migration - did not resume studies in Australia due to lack of command of English - undertook English language classes - satisfactory work record until 2000 when he lost his job - unemployed for approx 1 year until arrested - not a drug user - no priors.
Whether miscarriage of justice - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 4y with a NPP of 2*y. |
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301
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MARKARIAN, Anthony - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Markarian [2005] NSWCCA 264
Crown appeal.
Knowingly take part in supply of commercial quantity of heroin.
Respondent acted as chauffeur for a principal who carried on a substantial business buying & selling heroin. From time to time, respondent was present at meetings where heroin was purchased, he made up deals & at times personally distributed heroin & collected money. He sometimes loaned money to the principal for the purchase of heroin. The quantity of heroin involved in the above offence was 415 grams. On 18.7.2002, Hosking DCJ imposed a sentence of 2*y with NPP of 15m. The Crown successfully appealed to the CCA against the inadequacy of this sentence & the sentence was increased to 8y with a NPP of 4*y: see
R v Markarian [2003] NSWCCA 8. Respondent subsequently appealed to the HC. The HC set aside the sentence & remitted the matter to the CCA to dispose of the appeal in accordance with the HC's reasons: see
Markarian v The Queen [2005] HCA 25, 79 ALJR 1048.
Aged 36 at time of offence - on parole at the time - drug addiction - contrition - prospects of rehabilitation - prior drug offences & driving offences - previous imprisonment.
Sentence manifestly inadequate - multiple jeopardy - original sentence already expired - justice does not require the sentence to be increased.
Appeal dismissed. |
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302
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O'CONNELL, Kevin John - CCA, 3.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v O'Connell [2005] NSWCCA 265
Crown appeal.
9 x steal from a dwelling; 8 x larceny; 2 x receive stolen goods; 1 x possess unregistered firearm; + Form 1 (6 x unlawful possession of property; 10 x receive stolen property).
23*m suspended sentence with a NPP of 18m; placed on a 5y GBB.
Respondent was originally charged with more than 140 offences, but pleaded guilty to the above offences in full satisfaction of the indictment. Between February 2001 & May 2003, he used his position as an environmental services officer for Cabonne Council to steal large amounts of property from victims at Spring Glen, Forest Reefs, Eugowra, Canowindra, Mullion Creek, Bowen Park, Molong, Cudal, Cumnock, Lucknow, Nashdale & Manildra. This included jewellery, chainsaws, pumps, drills, whipper snippers, shovels, fishing equipment, plumbing supplies, knives, generators, saddles, gas bottles, welding equipment, electrical equipment, as well as CD, DVD & VCR players.
Suffering from long-term major depression - received long-term psychiatric treatment - suffers from kleptomania - became deeply depressed after losing $400,000 as a result of a misguided investment in about 1988 - not motivated by material gain - compulsive hoarder.
Whether sentence manifestly inadequate.
Appeal dismissed. |
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303
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KNL - CCA, 29.7.2005 -
154 A Crim R 268
Brownie AJA, Buddin & Latham JJ
Citation: R v KNL [2005] NSWCCA 260
Crown appeal.
1 x sexual intercourse with child aged between 10 & 16.
Received a bond under s.10
Crimes (Sentencing Procedure) Act 1999.
The complainant was aged 12 at the time of the offence. The respondent was adamant that the complainant told him that she was 16 & he said that he believed this to be true. Although the complainant disclosed the incident to 2 of her friends some time later, she only told her father 2 months after the date of the incident. Her father then approached the respondent, who admitted having sexual intercourse with the complainant. The matter was then reported to the police.
Aged 19* at time of offence - early plea of guilty.
Failure to reflect objective gravity of offence - whether sentence manifestly inadequate.
Discretion to resentence - double jeopardy - requirements of
Offenders Registration Act - extra-curial punishment - failure to have due regard to complainant's age in assessing objective gravity of offence - consequences of conviction allowed to override considerations of punishment & general deterrence - failure to observe requirements of s.10.
Appeal allowed. Conviction recorded; placed on an 18m GBB under s.9
Crimes (Sentencing Procedure) Act. |
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304
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MAURI, Ngereteina - CCA, 4.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Mauri [2005] NSWCCA 272
Sentence appeal.
Malicious wounding.
4y with NPP of 9m.
After having spent some time at a hotel at Campsie sitting at a table with friends & consuming a significant amount of alcohol, applicant approached another table at which a young woman was sitting with other people. He spoke to the young woman but she did not wish to have anything to do with him. A man who had been sitting with her at the table came back to the table & tried to persuade the applicant to leave, but he ignored the man & persisted in his attempts to speak to the young woman. The victim, who was sitting at another table, then intervened. He went over to the applicant & after some heated words he struck the applicant on the head, which pushed the applicant back into a pole. The applicant then struck out at the victim with his fist whilst holding a glass, which broke against the victim's face. The victim suffered a 4cm laceration to his left temple & an 8cm laceration to his left cheek, a painful jaw & painful left shoulder. There was no evidence that the victim's wounds resulted in permanent disfigurement. The victim was a heavily built man, whilst the applicant was a smaller man with physical disabilities. The sentencing judge was of the opinion that at the time he struck the victim, applicant was attempting to act in some form of self-defence.
Aged 38 at time of offence - born in NZ - father an aggressive alcoholic - applicant became a ward of the State at an early age. Spent time in institutions in NZ before coming to Australia at age 15 - limited education - regular employment as a steel fixer - references given from past employers - involved in a motor cycle accident at about age 28 sustaining spinal cord injury, which resulted in wasting of legs & difficulty in walking - above offence committed whilst on bail - prior offences include offences of violence, also offences involving abuse of alcohol & driving offences.
Whether sentence excessive.
Appeal allowed: resentenced to 3y with a NPP of 9m. |
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305
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AMOHANGA, Nico - CCA, 22.7.2005 -
155 A Crim R 202
RAI, Michael
Grove, Hulme & Simpson JJ
Citation: R v Amohanga; R v Rai [2005] NSWCCA 249
Crown appeal.
Amohanga: 1 x robbery armed with offensive weapon inflicting GBH; + Form 1 (robbery in company with wounding (GBH)) - 10y with NPP of 6y.
Rai: 1 x robbery armed with offensive weapon causing wounding; 1 x robbery - 11y with NPP of 7y.
A prostitute, who was in a sexual relationship with Amohanga, lured the victim to a flat on the pretext that a prostitute was going to have sex with him. Respondents planned to steal the victim's possessions while he was taking a shower. The victim, accompanied by the prostitute, arrived at the flat & had sex with a 14 year old prostitute. He refused to take a shower. Urged on by the older prostitute, respondents (one armed with a tyre lever, the other with a 4ft iron bar) beat the victim mercilessly & stole his wallet & mobile telephone. The victim was beaten unconscious & left at the scene curled up on the ground bleeding. He was found some time later by a 3rd party who returned to the flat. The offence involved gratuitous cruelty. The victim's injuries were multiple & included scalp lacerations (with brain exposed through them), a left occipital parietal comminuted skull fracture, fractured left zycoma & a left extradural haematoma. The victim suffered a traumatic brain injury in the extremely severe category & underwent a craniotomy & later a cranioplasty. He spent time in a Brain Injury Rehabilitation Unit. He has lost his ability to communicate in English. He has been left seriously & permanently impaired, both physically & mentally. He will require care & assistance for the rest of his life & will remain unfit for work either in the open market or supported. His condition has been exacerbated by an organic psychotic depression & he has suffered post-traumatic epilepsy. His wife & children left him in October 2002. The inference was that this was the result of his injury. After Rai had been arrested for this offence & subsequently released to bail, he entered a suburban electronics store & pushed the sales assistant into a store room where the manager was. He ordered the men to the floor & threatened them that if they moved, a guy outside with a gun would shoot them. Rai tore the phone from the wall & demanded telephones & cash. The manager was ordered to open the safe & Rai stole 12 mobile phones & 38 recharge cards. After further threats, the manager opened the till & Rai stole $915. He also stole 3 radio scanners from a display cabinet. After threatening to kill the victims if they attempted to use the phone or try to go outside, Rai made off with property & cash to the value of $9,405.35.
Respondents both recidivists - prior criminal records.
Whether sentences manifestly inadequate - Rai: plea of guilty to unrelated charge of robbery - Amohanga: prior sentences for detaining for advantage & rob in company - nature of error in sentencing - cumulative & concurrent sentencing - condition under which Amohanga at liberty at time of offence - prospects of rehabilitation - proportion between NPP & head sentence.
Appeal allowed: Amohanga sentenced to 12y with a NPP of 8*y; Rai sentenced to 11y with a NPP of 8y. |
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306
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KELLY, Rachelle Lee - CCA, 11.8.2005 -
155 A Crim R 499
Simpson, Johnson & Rothman JJ
Citation: R v Kelly [2005] NSWCCA 280
Sentence appeal.
1 x aggravated robbery - 2*y with NPP of 12m; 1 x dispose of stolen property - 6m FT (concurrent).
While waiting for a train at a suburban railway station, the victim was verbally abused by the applicant's co-offender. The applicant then walked towards the victim & punched her in the face. The co-offender joined in the attack & the victim was punched, kicked & bitten. Despite the victim's pleas, the applicant stole 2 valuable rings from her fingers. The applicant pawned one ring & sold the other. The victim suffered a bleeding nose, soreness to the left of her face, a bite mark to her left hand & upper arm, minor abrasions to the back of her head & soreness to her left eye.
Aged 20 at time of offence - guilty pleas - Aboriginal - parents separated when she was a child - began drinking alcohol at 14 - rehabilitation - remorse/contrition expressed at sentencing hearing - priors (use offensive language in or near public school or place) - no previous imprisonment.
Parity - justifiable sense of grievance - whether sentence excessive.
Appeal allowed in part: resentenced for the aggravated robbery offence to 2y 2m with a NPP of 9m. Appeal otherwise dismissed. |
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307
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NZ - CCA, 17.8.2005 -
63 NSWLR 628
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Johnson JJ
Citation: R v NZ [2005] NSWCCA 278
Sentence appeal.
Aggravated sexual intercourse without consent (s.61J
Crimes Act); in the alternative, sexual intercourse with child under 16 (s.66C).
5y with a NPP of 2*y.
At the time of the offence, the appellant was aged 15 years 4 months, his co-offender was aged 14 years 9 months & the complainant was aged 14 years 3 months.
While at a park celebrating the last day of the school holidays, the victim, who was well intoxicated, needed to go to the toilet & was driven to a service station by the co-offender & the appellant. On leaving the service station, the co-offender entered the rear of the vehicle next to the complainant & the appellant drove. While in the back of the vehicle, the co-offender sexually assaulted the victim by digitally penetrating her vagina without her consent. A short time later, he swapped places with the appellant, who had penile intercourse with the victim without her consent. See also
R v MSS [2005] NSWCCA 227.
During the trial, evidence in chief of the complainant & several other Crown witnesses was substantially given by way of videotaped interviews with police officers. Transcripts of the tapes were given to the jury & remained with them. Further examination in chief & cross-examination was conducted by way of video-link between the courtroom & a remote location in which the witness was present. The videotapes were given to the jury without objection, along with the other exhibits when they retired to consider their verdict.
The jury found the appellant guilty of the s.61J offence & found the co-accused guilty of the s.66C offence.
Consistency of verdicts given by the jury in respect of the accused & co-accused - use of videotaped interviews of Crown witnesses. - jury's failure to extend to the appellant the benefit of doubt afforded the co-offender - whether miscarriage of justice.
Appeal dismissed. |
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308
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ANCUTA, Ion - CCA, 17.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Ancuta [2005] NSWCCA 275
Sentence appeal; extension of time.
1 x deemed supply of a commercial quantity of heroin.
9y with a NPP of 6*y.
Police stopped applicant's car as he was driving from Sydney to Brisbane where he lived. A search of the car revealed 701.6 grams of heroin. Applicant had purchased the heroin from a man named Chu for about $250,000, although the precise price paid was not established. Shortly after applicant's arrest, police executed a search warrant at Chu's premises & found $292,000 in cash & paraphernalia associated with drug dealing. The sentencing judge found that the applicant had purchased the heroin for resale. There was evidence of intercepted phone conversations between the applicant & Chu, where they spoke in code about the intended purchase. There was also evidence of police surveillance of Chu's activities.
Guilty plea - migrant from Romania - poor command of English - health problems - remorse/contrition - undertaken rehabilitation courses - need for continuing supervision regarding alcohol & drug dependence.
Proper approach to standard NPP -
R v Way [2004] NSWCCA 13 - finding of aggravating factors - special circumstances - assistance - whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with a NPP of 5y. |
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309
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JANCESKI, Darko - CCA, 18.8.2005 -
64 NSWLR 10
Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie & Johnson JJ
Citation: R v Janceski [2005] NSWCCA 281
Conviction appeal.
Maliciously inflicting GBH (s.35
Crimes Act 1900).
The conviction for the above offence was entered following the 2nd of 2 trials, the jury in the 1st trial having been unable to reach a verdict.
The indictment presented at the 2nd trial was signed by a barrister at the private bar who was not authorised to do so under s.126
Criminal Procedure Act 1986.
The appellant appealed on the basis that the 2nd trial & the subsequent conviction were nullities as the indictment upon which the 2nd trial proceeded was invalid. Further grounds of appeal were also raised in relation to the admission at trial of photographic identification evidence & directions to the jury.
Appeal allowed: conviction and sentence set aside; appellant to be retried on the offence of maliciously inflicting GBH. |
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310
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JANCESKI, Darko - CCA, 18.8.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Janceski [2005] NSWCCA 287
Crown appeal.
Maliciously inflicting GBH (s.35
Crimes Act 1900).
The respondent had successfully appealed against his conviction earlier in the day. The conviction was set aside & a new trial ordered.
Crown appeal dismissed. |
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311
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JANCESKI, Darko - CCA, 18.8.2005
Spigelman CJ, Hunt AJA, Howie J
Citation: R v Janceski [2005] NSWCCA 288
Crown appeal.
2 x dangerous drive causing death.
Total of 2y with a NPP of 12m.
Respondent was driving a motor vehicle when his passenger recognised another vehicle driving past as being one that had been stolen from a friend. The respondent followed the other vehicle until both vehicles stopped at traffic lights. Respondent & his passenger left their vehicle & confronted the occupants of the other vehicle in a threatening manner (the passenger was carrying a steering wheel lock). That vehicle drove off & respondent & his passenger re-entered their vehicle & gave chase. Respondent asked his passenger to contact the police on his mobile phone. The passenger was told by the operator to not 'go through any red lights or anything'. This warning was repeated. The conversation was recorded. The passenger told the operator they were travelling at 60-70kph & the respondent was heard to say 'We're not speeding, we're just keeping up with them'. Respondent also told the passenger to tell the police to hurry as the vehicle being chased was going 'to make a break soon'. The evidence at trial showed that the 2 vehicles were travelling in concentrated traffic at high speeds of over 100kph (at one stage estimated as reaching 150kph) running red lights & narrowly avoiding collisions with other vehicles & at times being almost out of control. When the 2 vehicles were travelling side by side in adjoining lanes, the driver of the chased vehicle deliberately moved to his right so that his vehicle came into contact with the respondent's vehicle, forcing it onto & over the grass median strip where it almost collided with oncoming traffic. The driver of the chased vehicle lost control of his vehicle & it collided with a power pole, killing the driver & his passenger.
Insufficient weight given to respondent's culpability - whether sentence manifestly inadequate.
Appeal allowed: resentenced to a total of 5y with a NPP of 3y. |
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312
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McVITTIE, Leslie John - CCA, 1.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v McVittie [2005] NSWCCA 267
2 x armed robbery.
Petition to the Governor of NSW - review of convictions - referral to CCA to be dealt with as an appeal - 2000 NSW Police Integrity Commission inquiry - 2003 Royal Commission investigation of corrupt conduct by police in WA - concession by Crown - convictions a miscarriage of justice.
Appeal allowed: convictions quashed, judgment of acquittal entered. |
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313
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ARAYA, Gustavo Enrique - CCA, 22.8.2005 -
155 A Crim R 555
Simpson, Johnson & Rothman JJ
Citation: R v Araya [2005] NSWCCA 283
Sentence appeal.
5 x obtain valuable thing by deception; 1 x attempt obtain valuable thing by deception.
Total sentence of 3*y with a NPP of 2y.
The offences involved applicant dishonestly using credit card numbers of other persons to purchase air tickets & accommodation by telephone. The total sum involved in the 6 offences was $18,104, none of which has been repaid by the applicant.
Aged 27-28 at time of offences - born in Argentina - migrated to Australia with parents when he was a baby - director of own company - stated he earned on average $1,000 per week - priors, including obtain money by deception - previous imprisonment.
Relevance of sentence imposed upon associate who was not a co-offender - factors relevant to sentence for offences involving dishonest use of credit cards - insufficient weight given to guilty pleas - insufficient weight given to timing of guilty pleas - concurrence, accumulation, totality - whether sentence excessive.
Appeal dismissed. |
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314
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ANTOUN, Joseph - CCA, 1.8.2005
ANTOUN, Antoine
Simpson, Johnson & Rothman JJ
Citation: R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270
Application for bail pending determination of appeal to the HCA.
Each applicant granted bail subject to conditions. |
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315
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JENNINGS, Trent - NSWSC, Kirby J, 11.8.2005
Citation: R v Jennings [2005] NSWSC 789
Murder.
Judge alone trial.
The deceased died from a single stab wound to the side of his neck. When interviewed by police, the offender made admissions of stabbing the deceased. He said that after the deceased had tied up the offender & performed oral sex on him, their roles were reversed & the offender tied up the deceased & performed oral sex on him. He also said that the deceased tried to have anal sex with him against his will & that the deceased used his hands to try to force himself on Jennings. He said that in an attempt to protect himself, he stabbed the deceased once & then ran off. However, evidence of police & witnesses showed that the deceased was bound hand & foot when he was found.
Aged almost 19 at time of offence - mental illness defence - alternative of substantial impairment by abnormality of mind - complication of drugs taken before stabbing.
Verdict: Not guilty of murder by reason of mental illness. Order made under s.39
Mental Health (Criminal Procedure) Act 1990 that Jennings be detained in a hospital until released by due process of law. |
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316
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HALMI, Nicolae - CCA, 29.7.2005
Simpson, Bell & Buddin JJ
Citation: R v Halmi [2005] NSWCCA 263
s.5F appeal against refusal to stay proceedings.
Previous DC trial declared to be a nullity.
Decision: Further proceedings on the indictment be stayed unless & until the Crown pays the costs incurred by the applicant in relation to the previous aborted trial; those costs to include costs incurred in the application before Chief Judge Blanch & the application for leave to appeal to the CCA. |
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317
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NATOLI, John - CCA, 17.8.2005
Sully, Hulme & Hall JJ
Citation: R v Natoli [2005] NSWCCA 292
s.5F appeal against an interlocutory order.
Applicant & a co-accused were jointly arraigned upon an indictment charging them with maliciously inflicting GBH whilst in company. The trial commenced on 2.8.2005 & proceeded to the conclusion of the Crown's closing address & the commencement of the defence's closing address. A brief adjournment was ordered for an application to be made to the CCA. It was submitted in support of the application for leave to appeal that the indictment is defective in law. No application to quash the indictment was made.
Leave to appeal refused. |
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318
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G - CCA, 25.8.2005
Grove, Hidden & Bell JJ
Citation: R v G [2005] NSWCCA 291
s.5F application by the Crown against an evidentiary ruling in favour of the respondent.
1 x detain for advantage; 3 x aggravated sexual assault.
The respondent had previously been found guilty in a joint trial with 3 other men. The CCA subsequently set aside his conviction & ordered a retrial: see
R v Chami & Ors [2004] NSWCCA 36. The respondent is to be retried alone. After a pre-trial
voir dire hearing, the trial judge rejected a photograph of the respondent taken by police when they searched the home where the respondent was living. That photograph was included in a photographic array from which the complainant identified him as one of the men who sexually assaulted her. The complainant's identification of the respondent is crucial to the Crown case. At the time of the offence, the respondent was aged 17
Whether posing for the photograph amounted to an admission - whether Part 10A
Crimes Act complied with - exercise of discretion under s.1`38
Evidence Act.
Appeal allowed: ruling of trial judge set aside, matter remitted to the DC. |
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319
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SMITH, Larry - CCA, 23.8.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Smith [2005] NSWCCA 286
Crown appeal.
Maliciously inflict GBH on child.
10m with a NPP of 5m.
The injuries to the child, the 6 year old son of the respondent's
de facto spouse, were inflicted at some time between 28.9.2001 & 15.10.2001. At the time, the respondent was responsible for the care of the child, his mother having gone shopping. The victim was absent from school on the last day of term (28.9.2001). On resumption of the school term on 15.10.2001, the victim failed to return to school & remained absent until 19.11.2001. The explanation given to the school by the child's mother was that the child's natural father had scalded the child's legs with hot water during an access visit. Two DOCS officers went to the respondent's home on 16.1.2002 & observed extensive discolouration & scarring of the victim's ankles. The victim was wearing tracksuit pants & indicated that his legs had also been burnt when he was placed in a hot bath. The respondent was questioned. He told the officers that he had put the child in the bath & then went to answer the phone. He said he then heard a scream & went back to lift the victim from the water. The next day, the child was examined by a paediatrician at Campbelltown Hospital, who noted significant severe purple keloid scarring consistent with burns on the child's legs. The child was transferred to the Paediatric Burns Unit at Westmead Children's Hospital & placed into the care of DOCS. The child spoke of the scalding a number of times between 21.1.2002 & 13.8.2002. His accounts were consistent, to the extent that he was in the bathroom when his legs were burnt by hot water, whilst the respondent was present. At various times, he referred to sitting in the bath when the water was too hot, having hot water poured on him with a bucket & standing in the bath when the respondent splashed him with hot water from the hot tap, using his hand.
Insufficient weight attached to breach of trust & failure to seek medical care - failure to meet requirements of s.3A
Crimes (Sentencing Procedure) Act 1999 - objective gravity - recklessness - intent - whether sentence manifestly inadequate.
Appeal dismissed. |
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320
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SKORIN, Blaz - CCA, 11.8.2005
James, Howie & Rothman JJ
Citation: R v Skorin [2005] NSWCCA 276
Crown appeal.
Knowingly take part in cultivation of large commercial quantity cannabis plants.
2y 2m with NPP of almost 1 year (4 days short).
Respondent was involved in the large scale production of cannabis plants.
Guilty plea - assistance to authorities.
Clearly a commercial enterprise - participated in offence out of motive of greed - not at lowest level of organisation but at some intermediate level - error in finding special circumstances - starting point of sentence too low - guilty plea - assistance - whether error in allowing substantial discount - failure to set NPP of sufficient length to reflect criminality involved - general deterrence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 4*y with a NPP of 2y 9m. |
|
321
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ATTALLAH, Joseph - CCA, 25.8.2005
James, Buddin & Rothman JJ
Citation: R v Attallah [2005] NSWCCA 277
Conviction and sentence appeals.
Supply large commercial quantity heroin; supply large commercial quantity cocaine.
Life for each offence.
Appellant conducted an unlicensed brothel in Bankstown. For almost a 2 year period, he conducted the brothel as a joint enterprise with his co-accused, Sabbagh. Appellant set up the brothel with the assistance of a woman named Jackie Walsh, who had been a prostitute for many years. She was the principal Crown witness at the trial. Many of the prostitutes working at the brothel were drug addicts. Appellant supplied them with their daily requirements of heroin & cocaine. At trial, Jackie Walsh & 3 prostitutes gave evidence of the daily amounts of heroin & cocaine used by themselves & other prostitutes working at the brothel. The appellant denied supplying them with drugs, although he said he was aware that some of them were drug addicts. It was the Crown case that the appellant, either personally or through an agent, had regularly supplied small quantities of heroin & cocaine for use by the prostitutes & that the aggregate of the amounts supplied over the period alleged in the charges amounted to not less than a large commercial quantity.
Whether trial proceedings miscarried through re-examination of witness who gave evidence that she was fearful of appellant because there had been an argument among members of appellant's family resulting in the death by shooting of a person - whether trial proceedings miscarried because of outbursts by appellant's family & appellant himself on a number of occasions - whether trial proceedings miscarried through remarks & comments made by Crown prosecutor in the course of his closing address - whether directions given on requirement for proof of element of quantity in charges of supplying large commercial quantity of prohibited drugs were erroneous & inadequate - whether directions given as to potential unreliability of certain witnesses adequate - whether life sentences manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 24y with a NPP of 18y for each offence (concurrent). |
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322
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HARDY, Jason Anthony - CCA, 30.8.2005
James, Hidden & Bell JJ
Citation: R v Hardy [2005] NSWCCA 294
Sentence appeal.
1 x armed robbery.
6y with NPP of 4*y.
With their faces covered, applicant & his co-offender entered a home occupied by an elderly couple. The elderly male suffered from dementia. One of the offenders had a weapon that looked like a gun. They entered the elderly female's room, took her handbag & then left the premises. The bag was later found nearby, its contents still intact. The following day, police located a sample of hair in the yard. DNA testing yielded a result consistent with the profile of the applicant.
Aged 26 at time of offence - late plea of guilty - drug addiction - heart condition resulting from intravenous drug use - may have to undergo heart surgery - lengthy criminal record - previous imprisonment.
Special circumstances - sentence erroneously passed under amended s.44
Crimes (Sentencing Procedure) Act - approach to sentencing under amended section when special circumstances found.
Appeal allowed insofar as NPP reduced to 3*y. |
|
323
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STEWART, Kevin John - CCA, 22.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Stewart [2005] NSWCCA 290
Sentence appeal.
2 x BE&S.
Total sentence of 3*y with a NPP of 18m.
Applicant broke into locked, secure premises & stole goods valued at nearly $29,000. Blood stains found at the scene had the same DNA profile as the applicant. He was arrested 7 months later & placed in custody. About 7 months after that, he broke into other premises & stole a DVD player & 13 DVD movies. He was identified through his fingerprints left on a rear sliding door.
On the day he committed the 1st BE&S, applicant was arrested in possession of stolen watches which were part of the proceeds of that offence. This fact only became known some time later. He was refused bail on that day & later pleaded guilty to a charge of goods in custody & was sentenced in the LC to a fixed term of 3m, backdated to the date of his arrest.
Aged 28 at time of offence - guilty pleas - drug addiction - multiple priors - previous imprisonment.
Punished twice for overlapping criminal conduct - time served for related goods in custody offence.
Appeal allowed insofar as sentences backdated to take account of 3m served for goods in custody offence, which was related to the 1st BE&S offence. |
|
324
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MAH - NSW SC, Hislop J, 30.8.2005
Citation: R v MAH [2005] NSWSC 871
Remarks on Sentence.
Murder.
The offender was jealous of the relationship between the deceased & the offender's girlfriend & believed that the deceased was flirting with the girlfriend. He decided to murder the deceased & enlisted the help of his co-offender the week before the murder. The offender arranged to meet the deceased. The offender, his co-offender & the deceased subsequently met, ostensibly to go 4-wheel driving in the offender's vehicle. They drove to a campsite in bushland in the Cordeaux Dam area, where the deceased was struck by both offenders. The deceased tried to run away but was tackled & whilst down the offenders kicked him in the head until he was semi-conscious. They then took a large log & forcibly dropped it onto the deceased's head a number of times, after which they took the deceased, who was by then comatose if not deceased, by row-boat to a remote part of the dam area & buried him in a shallow grave. All personal items were removed from the deceased & a version of events was agreed upon by the offenders.
At the time of offending, offender was under the age of 18, as were a number of witnesses & the deceased.
Sentenced to 22y with a NPP of 16*y. |
|
325
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NIMMO, Richard Burton - CCA, 29.8.2005
Spigelman CJ, Ipp JA, Adams J
Citation: R v Nimmo [2005] NSWCCA 295
Sentence appeal.
Supply prohibited drug (ongoing).
3y 4m with a NPP of 2*y.
The offence charged that on 3 or more separate occasions during a period of 30 consecutive days, the applicant supplied crystalline methylamphetamine for financial or material reward. The evidence showed that during that period, applicant supplied the drug to various customers on 11 separate occasions. The price range of the transactions was between $50 & $150. Analysis of a white crystal substance found during a search of the applicant's residence revealed crystal amphetamine with a total weight of 63.39 grams & a purity of 85%.
Aged 23 at time of offence - guilty plea at earliest reasonable opportunity - 25% discount for utilitarian value - further discount for remorse & contrition - overall discount accorded to applicant was one-third - criminal record dating back to when applicant was aged 18 - no previous imprisonment.
Starting point when calculating sentence was too high having regard to finding of objective seriousness of offence - insufficient weight given to special circumstances - whether sentence manifestly excessive.
Appeal dismissed. |
|
326
|
TEMMINGH, Sven Arne - CCA, 11.8.2005
Grove, Hoeben & Hall JJ
Citation: R v Temmingh [2005] NSWCCA 261
Crown appeal.
Import anabolic steroid (Nandrolone Decanoate).
Conditional release.
The sentencing judge convicted the respondent of the above offence, but ordered that he be conditionally released pursuant to s.20 of the
Crimes Act 1914 (Cth). That release was to be conditional upon him remaining of good behaviour for a period of 3 years & was further conditional upon him paying the Commonwealth a pecuniary penalty in the sum of $30,000 within 6 months of the date of sentence. It was common ground that the pecuniary penalty was paid within the specified period.
Respondent imported Nandrolone Deconoate from China. An analysis of the goods by Customs Service revealed that the drum in which the substance arrived was incorrectly labelled as Glucosamine. It had a net weight of almost 5 kgs & contained an estimated 85.8% Nandrolone Deconoate.
Whether sentence manifestly inadequate - emphasis on intention of respondent - insufficient weight given to objective criminality & general deterrence - objective seriousness of offence.
Appeal allowed: Respondent convicted under s.20
Crimes Act 1914 (Cth) & sentenced to 12m imprisonment, suspended upon entering a 3y GBB. |
|
327
|
WILKIE, Daniel - CCA, 29.8.2005 -
64 NSWLR 125; 157 A Crim R 498
BURROWS, Stephen
MAINPRIZE, Timothy Maxwell
Spigelman CJ, Ipp JA, Adams J
Citation: R v Wilkie, Burrows and Mainprize [2005] NSWCCA 311
Application for leave to appeal against an interlocutory judgment.
Whether witness giving evidence by video-link violates requirement that trial be held 'in the State where the offence was committed'- s.80
Commonwealth Constitution.
Leave to appeal refused. |
|
328
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CATT, Roseanne - CCA, 17.8.2005
McClellan AJA, Adams J, Smart AJ
Citation: R v Catt [2005] NSWCCA 279
Appellant petitioned the Governor pursuant to s.474B
Crimes Act 1900, seeking a review of her conviction on 8 counts. After considering the petition, the Attorney-General referred the case to the CCA pursuant to s.474(1)(b) of the Act.
Count 1: malicious wounding;
Count 2: perjury;
Count 3: malicious wounding;
Count 4: AOABH;
Count 5: attempt to cause to be taken a noxious thing (Lithium) thereby endangering life;
Count 6: solicit to murder;
Count 7: solicit to murder;
Count 9 unlawful possession of firearm.
Total of 12y 3m with a NPP of 10y 3m.
Appellant was acquitted of encouraging to murder (Count 8).
See
R v Catt[2005] NSWCCA 279 for full details.
Concoction of evidence by husband & police officer - police officer corrupt - multiplicity of charges presented at the same time - unfair prejudice - fresh evidence - planting of evidence - false evidence.
Whether convictions were the result of a miscarriage of justice - whether because of fresh evidence the conviction in relation to each count must be quashed.
Orders:
1. Uphold appeal in relation to counts 1, 2, 5, 6, 7 & 9 and quash each conviction.
2. Enter verdict of acquittal on count 9.
3. Order that there be a new trial in relation to counts 1, 2, 5, 6 & 7.
4. Dismiss appeal in relation to counts 3 & 4.
5. Appellant's bail to continue.
6. Reserve liberty to apply.
(Appellant to remain on bail pending decision by the DPP as to whether to proceed with any fresh trial.) |
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329
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PITT, Lorraine - CCA, 6.9.2005
Grove, Hoeben & Hall JJ
Citation: R v Pitt [2005] NSWCCA 304
Sentence appeal.
1 x malicious wounding; 2 x robbery whilst armed with dangerous weapon; 1 x possess unauthorised firearm; 1 x possess unregistered firearm.
Total sentence of 7y with a NPP of 4y.
The malicious wounding was preceded by an episode of binge drinking by applicant & her estranged husband. The applicant obtained a kitchen knife, cut her own wrist by making superficial cuts & then cut her husband's throat. An ambulance was called & the husband was subsequently treated, requiring 15 stitches to the left side of his neck. The 1st armed robbery involved applicant robbing a service station whilst armed with a loaded .357 calibre Magnum handgun. About 15 minutes later, applicant committed the 2nd armed robbery at a pizza business.
Aged 42 at time of offences - mother of 7 children - history of mental illness - psychotic disorder, either schizophrenia or bi-polar mood disorder - abuse of prescription-based medication - abuse of alcohol compounded by severity of mental health problems & inability to respond to treatment - requirement of intensive & ongoing therapeutic treatment to address alcohol dependence & mental health issues.
Error in having insufficient regard to history of mental illness - error in finding offences committed in breach of suspended sentence.
Appeal allowed: resentenced to a total of 6y with a NPP of 3y. |
|
330
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HUMPHRIES, Joshua Luke - CCA, 6.9.2005
Sully, Hidden & Hall JJ
Citation: R v Humphries [2005] NSWCCA 305
Sentence appeal.
3 x BE&S; + Form 1 (6 x BE&S; 1 x make false statement).
Total of 3y with a NPP of 18m.
Applicant entered pleas of guilty on a joint indictment with his co-offender (his brother).
The 1st count on the indictment occurred when applicant & his brother broke into a welding factory & stole a large amount of property (welders & associated tools to the value of $23,059). The only property not recovered were 2 welders (value $18,700). The 2nd count involved the offenders entering a building site at Corlette & stealing tools from shipping containers. The 3rd count on the indictment occurred when they jemmied open the front door of premises under construction & removed a number of items, a good deal of which was subsequently recovered. The Form 1 BE&S offences were committed upon dwelling houses, 4 of owned by Masterton Homes, the other 2 owned by AV Jennings. The remaining Form 1 offence involved applicant making a false statement contrary to the
Pawnbrokers & Second Hand Dealers Act 1996.
Aged 20 at time of offending - 10 years younger than his brother - identical sentences passed on applicant & his brother - applicant had no relevant criminal record, whereas his brother had a number of priors - brother had previously received PD - brother had 2 additional serious matters on his Form 1.
Disparity of sentences - whether less severe sentence warranted - whether justifiable sense of grievance.
Appeal dismissed. |
|
331
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LEWIS, Katrina - CCA, 2.9.2005
Grove, Hidden & Bell JJ
Citation: R v Lewis [2005] NSWCCA 300
Sentence appeal.
Aggravated BE&S; + Form 1 (stealing from dwelling; stealing).
4*y with a NPP of 2y 3m.
Aged 25 & subject to bonds at time of offending - substance abuse - entrenched pattern of anti-social conduct - past abusive relationships - need for structured setting in a residential rehabilitation facility - criminal history, mainly drug offences, driving & dishonesty offences - no previous imprisonment.
Relevance of standard NPP after plea of guilty - sentence passed before
R v Way (2004) 60 NSWLR 168.
Appeal dismissed. |
|
332
|
KADDOUR, Khalid - CCA, 2.9.2005 -
156 A Crim R 11
Hulme, Barr & Buddin JJ
Citation: R v Kaddour [2005] NSWCCA 303
Conviction and sentence appeal.
Maliciously damage property; take part in manufacture of some quantity of MDMA (ecstasy).
Total sentence of 5*y with a NPP of 3y 5m.
Directions on meaning of taking part in manufacture of prohibited drug - admission of evidence - whether error in directions - whether directions on issue of joint criminal enterprise inadequate - verdict on offence of maliciously damaging property unreasonable - prejudicial impact of adverse media publicity during trial proceedings relating to barrister appearing for appellant- whether trial miscarried by reason of fact that one jury member knew appellant & knew of adverse information regarding appellant's character & reputation.
Appeal dismissed. |
|
333
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MULE - HC, 8.9.2005
Citation: Mule v The Queen [2005] HCA 49
Appeal from the decision of the WA CCA upholding the trial judge's directions to the jury.
Accused was convicted of possession of a prohibited drug for supply. The prosecution evidence included a record of interview with the accused & a solicitor. During the interview, the accused admitted possessing 27 tablets of ecstasy, stating that they were for his personal use. No evidence was given at trial. The trial judge directed the jury as to the use they could make of the evidence of the interview, contrasting denials & admissions not supported by evidence on oath.
Right to silence - miscarriage of justice - whether observations on weight to be attached to exculpatory statements permissible - whether trial judge erred in directions on right to silence in relation to observations - whether error in directions on weight as question of fact - whether observations erroneous at law.
Appeal dismissed. |
|
334
|
RYMER, Patrick Wayne - CCA, 6.9.2005 -
156 A Crim R 84
Grove, Barr & Latham JJ
Citation: R v Rymer [2005] NSWCCA 310
Conviction and sentence appeal.
Count 1: sexual intercourse with child under age of 10;
Counts 2&3: sexual intercourse with child aged between 10 & 16.
Sentenced to 9y with NPP of 6y on each count, to be served concurrently.
The complainant is the daughter of a woman with whom appellant was living in a
de facto relationship at the time of the offences.
Denial by accused when confronted by police with allegation - denial maintained at video recorded interview held shortly thereafter - objection by Crown to admission of exculpatory material - hearsay - basis of exception to hearsay rule - maintenance of common practice - general duty of Crown to tender subject to objectionability of contrived material - accused gives evidence following ruling requiring him to do so in order to make earlier denials admissible - whether ruling erroneous - whether miscarriage - trial judge misinformed as to applicable maximum penalty - sentences in excess of maximum.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to a total of 6*y with a NPP of 4y. |
|
335
|
LNT - CCA, 8.9.2005
Simpson, Johnson & Rothman JJ
Citation: R v LNT [2005] NSWCCA 307
Sentence appeal.
Malicious wounding with intent to do GBH.
7*y with a NPP of 5y.
Applicant attacked the victim near the Footlocker Store at the entrance to the Town Hall Arcade, striking her a number of times. Applicant's older sister & a friend arrived at the scene & grabbed the victim. The victim pulled out 2 'fighting sticks' from her jacket pocket & used them to defend herself but she was overpowered by the 3 attackers who restrained & punched her. CCTV footage showed the applicant striking the victim a number of times with a knife. The victim suffered multiple lacerations, requiring sutures.
Aged 17 at time of offence - produced false identification showing she was aged 22 - as a result treated as an adult until true identity established 4 months later - had participated in a lengthy electronic interview.
Whether sentence manifestly excessive - misuse of aggravating factors - special circumstances - young offenders - whether offender should be treated as an adult - principles of sentencing minors & juveniles.
Appeal allowed: resentenced to 7y with a NPP of 4y, to be served in a juvenile detention centre. |
|
336
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REID, Paul Wayne - CCA, 8.9.2005 -
155 A Crim R 428
Sully, Hidden & Hall JJ
Citation: R v Reid [2005] NSWCCA 309
Sentence appeal.
Malicious wounding with intent to do GBH.
6y 9m with a NPP of 4y 5m.
The applicant & the victim had been in a
de facto relationship, but not for the 18 years preceding the offence. They still saw each other as friends. On the day of the above offence, the applicant visited the victim. He had a female with him at the time. The applicant demanded to know who had been staying at the victim's home. He became very aggressive & shouted at the victim, then went to the kitchen & returned with a large knife. He waved the knife at the victim & slashed down the victim's face, causing a deep laceration from the left side of the top of the victim's nose down to the bottom of the right side of her chin. He then pushed the knife towards the victim's throat. In an attempt to fend off further injury, the victim grabbed hold of the knife, which caused a deep laceration to her thumb & part of her hand. The applicant threw the knife towards the sink in the kitchen, took the victim's children (aged 10 & 3) & left with the other female. He is not the natural father of the 2 children but had visited them numerous times & looked after them.
Objective seriousness of offence - double counting of relevant aggravating factors in s.21A
Sentencing Act - relevant legal principles - whether sentence excessive.
Appeal dismissed. |
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337
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GRATTAN, Phillip John - CCA, 2.9.2005
McClellan AJA, Simpson & Rothman JJ
Citation: R v Grattan [2005] NSWCCA 306
Conviction appeal.
Multiple sex offences against a male person under the age of 16, at the age of 16 & over the age of 16 (4 x sexual intercourse without consent; 1 x sexual intercourse; 5 x act of indecency; 1 x attempt sexual intercourse).
Total sentence of 11y with a NPP of 8y 3m.
Appellant is the complainant's uncle by marriage, being married to the sister of the complainant's mother.
Whether error in admitting evidence of complainant's distressed condition - uncharged acts not complained of - telephone conversations & email messages - incorrect directions - whether miscarriage of justice.
Appeal dismissed. |
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338
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PHAM, Duy Tan - CCA, 12.9.2005
Sully, Hidden & Hall JJ
Citation: R v Pham [2005] NSWCCA 314
Sentence appeal.
1 x import trafficable quantity prohibited import (heroin).
9y with a NPP of 5*y.
On arrival at Sydney Kingsford Smith airport aboard a flight from Bangkok, applicant was frisk searched by Australian Customs Service officers & found to have in his possession 244.6 grams of pure heroin, with a wholesale value of $120,000 & a street value of between $611,500 & $856,100.
Born in Vietnam - family arrived in Australia when applicant was aged 8 years after spending approx 2 years in a refugee camp in Indonesia. In Australia the family spent 2 months in Villawood Detention Centre - left school prematurely in Year 11, having been sentenced to imprisonment in respect of a MV accident in which his friend was killed - upon completion of sentence undertook post-secondary studies course at TAFE completing an IT certificate course - undertook advanced IT certificate course - no history of substance abuse - contrition/remorse - friend's death in MV accident was a traumatic event having ongoing effects upon applicant - impaired capacity to reason & cope with stresses of life - suffered serious psychological harm, including impairment of emotional functioning - unresolved emotional turmoil - symptoms consistent with post-traumatic stress disorder.
Error in adopting two-stage approach to sentencing - error in dealing with applicant's mental condition - mitigating factor - whether sentence manifestly excessive.
Appeal allowed: resentenced to 8y with a NPP of 4*y. |
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339
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WELLING, Michael David - CCA, 12.9.2005
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v Welling [2005] NSWCCA 318
Sentence appeal.
2 x armed robbery; 1 x robbery.
Total sentence of 8y with a NPP of 5y.
The victim in the 1st armed robbery was a 50 year-old female attendant at a service station. The amount of money taken was $295. The victim in the 2nd armed robbery was a 19 year-old console operator working in a shop. On this occasion the applicant stole $100. Neither of these victims suffered physical injury. The remaining count involved a robbery committed upon a 69 year-old disabled woman, who suffered minor physical injury during a struggle with the applicant. The sentencing judge found that the emotional impact upon this victim was substantial. On this occasion, applicant stole a packet of cigarettes & a pillow before making his escape.
Aged 19 at time of offending - had been diagnosed with schizophrenia - suffering auditory hallucinations - evidence to indicate direct connection between mental condition & offending.
Mental illness - causal relationship between illness & offences - failure to give proper or sufficient consideration to mental condition - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 4*y with a NPP of 2y 9m. |
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340
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KING, Vincent Patrick - CCA, 25.8.2005
Sully, Hidden & Hall JJ
Citation: R v King [2005] NSWCCA 296
Crown appeal.
Conspiracy to defraud.
s.11 adjournment.
The judge at first instance stated that PD would most likely be the form of punishment that the offender would receive.
The CCA held that in making an order pursuant to s.11
Crimes (Sentencing Procedure) Act 1999 (NSW) the judge ought to have let the adjournment run its course without saying anything more about what might happen, or should happen, or could possibly happen.
s.11 order not correctly made in point of principle - issue of utility -
Anderson (unreported) NSWCCA 25.6.1996;
Parker (unreported) NSWCCA 13.12.1993 - Crown not prejudiced.
Appeal dismissed. |
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341
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RTGS - CCA, 12.9.2005
Studdert, James & Howie JJ
Citation: R v RTGS [2005] NSWCCA 293
Conviction appeal.
Aggravated sexual intercourse without consent.
3y with a NPP of 18m.
Appellant was the complainant's step-uncle by marriage. It was the Crown case that he digitally penetrated the complainant's vagina when he was baby-sitting her in his home.
Complainant's evidence in chief given by playing videotape - tape marked as exhibit - jury's access to videotape of complainant's evidence in chief - directions as to what use could be made of that evidence - failure to warn against giving disproportionate weight in considering that evidence - whether verdict unreasonable.
Appeal dismissed. |
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342
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DICKINSON, Joseph Brian - CCA, 16.8.2005
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Dickinson [2005] NSWCCA 284
Application under s.43
Crimes (Sentencing Procedure) Act 1999 for an order to correct what was asserted to be a sentencing error.
Malicious wounding with intent to do GBH (guilty plea).
A suspended sentence of 2y with a NPP of 12m was imposed. The Crown successfully appealed against that sentence & the applicant was sentenced to 2y 2m PD. The Court declined to set a NPP. (See
R v Dickinson [2004] NSWCCA 457.)
Whether sentence contrary to law - failure to comply with requirement of s.45(2) to record reasons for declining to fix a NPP - such reasons as were recorded disclosed error.
Application dismissed. |
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343
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BOBAK, Trevor Mark - CCA, 6.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Bobak [2005] NSWCCA 320
Sentence appeal.
Maliciously inflicting GBH with intent to do GBH; aggravated BE&S.
Total of 16y with a NPP of 12y.
Suspecting that the victim had stolen a gold bracelet belonging to the applicant's daughter, the applicant & his co-offender went to the victim's home. The victim was not there so the applicant kicked in the door & the offenders stole a stereo system & speakers. They later came upon the victim as he rode a bicycle down an alleyway & promptly set about assaulting him. The applicant repeatedly struck the victim on the head with a plasterer's hammer & then struck him on the head with the axe blade on that tool. The blade penetrated the victim's skull from just above his right ear, entering into the middle of his brain. The victim suffered horrendous injuries, leaving him permanently brain damaged with resultant devastating effects on his life. See also
R v Kirkland [2005] NSWCCA 130.
Guilty plea - history of drug & alcohol abuse - family support - long criminal record - previous imprisonment for a short period.
Parity - whether sentence manifestly excessive.
Appeal dismissed. |
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344
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ISON, Kevin Shane - CCA, 6.9.2005
ISON, Joseph
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Ison; R v Ison [2005] NSWCCA 321.
Conviction appeals.
Maliciously inflict GBH with intent to do GBH.
No details of offence stated.
Indictment signed by person not authorised to do so - trial therefore a nullity.
Appeal allowed: convictions & sentences quashed; new trials ordered. |
|
345
|
DV - CCA, 8.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v DV [2005] NSWCCA 319
Crown appeal.
Robbery whilst armed with offensive weapon; + Form 1 (2 x common assault).
3y with a NPP of 2y 3m to be served by way of PD.
Respondent was an employee of the Abruzzi Sports Club. In the early hours of the morning, after the club had closed, he opened a rear door & allowed his 3 co-offenders, wearing balaclavas, into the premises. There were 3 other employees on the premises at the time. They were threatened with pistols & $55,000 in cash was taken from a safe. The intruders pretended that the respondent was a victim of the robbery. The intruders assaulted the 3 other employees of the club. When first interviewed by police, respondent denied playing any role in the offence. He later admitted to being involved & gave an undertaking to give evidence against his co-offenders. Two co-offenders pleaded guilty. Delays occurred in bringing the remaining co-offender to trial. When that trial came on for hearing, respondent gave evidence as promised. At the conclusion of the trial, the jury failed to agree upon a verdict & was discharged. The co-offender was presented for further trial & respondent was again called to give evidence. On this occasion, he reneged.
Aged 22 at offence - born in Laos - came to Australia at 11 months - completed HSC - started using cannabis at school - progressed to heroin; had since ceased using - good employment record - no priors.
Sentence close to expiry - custodial element of sentence fully served.
Whether sentence inadequate.
Appeal dismissed. |
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346
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THAMMAVONGSA, Meng - NSW SC, Kirby J, 13.9.2005
Citation: R v Thammavongsa [2005] NSWCCA 915
Remarks on Sentence.
Murder
Some hours after a minor verbal altercation with a group of young men at a party, offender sought out the group then shot the deceased in the head with a pen gun, after which he kicked him in the head. The deceased died from injuries to his brain.
Aged 21 at time of offence - born in Laos - migrated with mother at age 5 years - began smoking cannabis shortly after entering high school - then began using heroin - expelled from one school, found it difficult to adjust to the next - left school in Year 9 - illiterate in English & in native tongue - employed as a process worker at time of offence - with assistance of family, attempted treatment to overcome addiction, without success - prior offences, starting at age 16 - previous short term of imprisonment.
Sentenced to 21y with a NPP of 16y. |
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347
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VL - CCA, 2.9.2005
Grove, Hulme & Simpson JJ
Citation: R v VL [2005] NSWCCA 301
Sentence appeal.
Specially aggravated kidnapping.
6y with a NPP of 4y.
Aged 15y 10m at time of offence - of Tongan extraction - asked to leave school because of constant truanting - no employment history - drug use - mild intellectual disability - intense chronic angry feelings - anti-social tendencies - easily swayed - vulnerable to exploitation - impulsive behaviour - responded well to counselling whilst in custody - multiple priors - on parole at time of offending - previous imprisonment.
Error in taking into account standard NPP outlined in Div 1A, Pt 4
Crimes (Sentencing Procedure) Act 1999 - error in regarding as an aggravating factor that offence committed in company - error in failure to find that offences were not planned or organised - error in failure to give adequate consideration to special circumstances.
Appeal allowed: resentenced to 5y with a NPP of 3*y, to be served in a juvenile detention centre.
Sentence amended:-
VL - CCA, 21.11.2005
Grove, Hulme & Simpson JJ
Citation: R v VL (AMEND) [2005] NSWCCA 389
Amendment to above sentence.
Correct sentence: 5y 4m with a NPP of 3*y. |
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348
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LLM - CCA, 2.9.2005
Grove, Hulme & Simpson JJ
Citation: R v LLM [2005] NSWCCA 302
Sentence appeal.
Assault with intent to rob in company and with wounding; specially aggravated kidnapping; + offences on two Form 1 documents.
Total sentence of 8y 4m with a NPP of 5y.
Aged 17y 3m at time of offences - background of considerable disadvantage - poorly educated - poorly supported by family & community - significant intellectual & personality problems.
Whether sentences manifestly excessive - parity - error in having regard to element of offence - error in having regard to prior criminal record as aggravating factor - markedly more favourable treatment extended to a co-offender.
Appeal allowed: resentenced to total of 6y 8m with a NPP of 5y; order that the sentence be served in a juvenile detention centre until age 21. |
|
349
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BELLAMY, Joseph Allen - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Bellamy [2005] NSWCCA 329
Sentence appeal.
2 x aggravated BE&S (in company); + offences on two Form 1 documents.
Total sentence of 3y 11m with a NPP of 3y.
The 1st BE&S involved applicant & 2 other offenders breaking into the Gianni Versace store in Castlereagh St, Sydney. All the property taken by the offenders (wholesale value in excess of $12,000) was recovered. The damage to the property was in excess of $2,000. The 2nd offence involved the applicant & a co-offender forcing open the door to the computer laboratory inside the offices of Australian Consolidated Press in the city & stealing 17 laptop computers valued at $42,500. None of that property was recovered. The matters on one Form 1 document included 2 further BE&S offences when laptop computers & a video camera worth more than $20,000 were stolen. The matters on the other Form 1 document involved possession of car breaking implements, entering premises with intent to commit an indictable offence & goods in custody.
Aged 18 at time of 1st BE&S, 22 at time of 2nd - guilty plea - sad & troubled life - childhood marked by parental conflict/alcohol abuse, resulting in chronic neglect of applicant - by age 11 took to wandering through Kings Cross after school, getting into drugs & returning home late at night - DOCS intervened & applicant placed into care of older sisters - by age 14 was dependent upon heroin, began stealing to support habit - ongoing support of both sisters - eldest suffers from schizophrenia - priors - previous imprisonment - on parole at time of above offences.
Parity - prior criminal record as an aggravating factor.
Appeal dismissed. |
|
350
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MASRI, Ali - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Masri [2005] NSWCCA 330
Conviction appeal.
Supply MDMA (ecstasy).
1y 9m with a NPP of 9m.
Appellant was arrested, having been found in possession of 13.2 grams of MDMA. He pleaded guilty on the advice of his counsel, despite the fact that at all times he had instructed his counsel that he had possession of the drug only for his personal use. His counsel believed that his claim to have possession of the drug only for his own personal use did not affect his guilt of the charge of supply but was relevant as a matter in mitigation. At the sentencing hearing, the appellant gave evidence, maintaining that his possession was for nothing other than his own personal use. During the course of argument, the sentencing judge raised the question of what offence the appellant would be guilty of in the event that he accepted that his possession of the drug was for his personal use. He was told by counsel that it was still 'a deemed supply', which was accepted by his Honour. Counsel appearing for the appellant at the sentencing proceedings has since admitted her error. On appeal, the Crown accepted that the plea of guilty was entered in circumstances that gave rise to a miscarriage of justice.
Error in advising 'a deemed supply'- miscarriage of justice.
Appeal allowed: conviction & sentences quashed; matter remitted to the DC to be dealt with in accordance with procedures of that court. Bail granted, subject to conditions. |
|
351
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MALIK, Jana - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Malik [2005] NSWCCA 334
Sentence appeal.
2 x BE&S.
Total of 18m with a NPP of 15m.
Applicant broke into 2 houses & stole valuable personal property. She was detected by fingerprint & DNA evidence & pleaded guilty to both matters in the DC.
Aged 34 at time of sentence - long-standing addiction to heroin - priors - previous imprisonment.
Partial accumulation of sentences - error in imposing aggregate NPP greater than 75% of aggregate head sentence - trial judge did not impose such a sentence inadvertently - whether lesser sentence warranted.
Appeal dismissed. |
|
352
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CHRESTA, Nathalie - NSW SC, Greg James J, 14.3.2005
Citation: DPP v Chresta [2005] NSWSC 233
Appeal by the DPP against an acquittal.
Police observed respondent holding a mobile phone to her ear whilst driving her car. She said that she was merely turning the phone off in order not to wake up her son & had placed the phone to her ear to make sure it was turned off. The magistrate dismissed the charge, saying that he could not be satisfied that what the defendant did constituted 'use' of the phone under r 300 of the Australian Road Rules (incorporated in NSW by way of
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999).
Bruce James J held that to turn a phone on & off is an operation of the phone & therefore is a 'use' of the phone within the meaning of r 300. He declined to remit the matter back to the LC or set aside the acquittal. He stated that for the future the width of the offence was the operation of any of the communication functions of a hand-held mobile phone, which included turning it on & off. |
|
353
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AFELE, Suafoa - CCA, 7.9.2005
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v Afele [2005] NSWCCA 315
Sentence appeal.
1 x AOABH in company - 3y with a NPP of 2y; 2 x robbery in company - 3y with a NPP of 1y.
Total sentence of 4y with a NPP of 2y.
Three men were walking In King Street in the city shortly before 3.30am when they were confronted by a group of about 10 or 12 men, one being the applicant. One of the 3 men suffered a number of injuries, having been punched & kicked by the applicant's group. The applicant's group stole a number of items from these men. Less than an hour later, applicant's group approached another 2 men & robbed them.
Aged 18* at time of offending - guilty plea - born in NZ of Samoan origin - family migrated to Australia when applicant was aged 16 or 17 - religious family - remorse - prior good character.
Whether sentences manifestly excessive - parity with sentences imposed upon co-offenders - totality.
Appeal allowed in respect of sentence for count 1: resentenced to a FT of 18m on that count. Appeal otherwise dismissed. Total sentence remained at 4y with a NPP of 2y. |
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354
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ROMANO, Adrian Russell - CCA, 6.9.2005
Simpson J, Smart AJ & Patten AJ
Citation: R v Romano [2005] NSWCCA 313
Sentence appeal.
1 x intimidation; 1 x AOABH in company.
Total of 3y with a NPP of 2*y.
Applicant & the female victim had been in a 3 year relationship & had a child aged 17 months at the time of the offence. The victim of the assault charge was the female victim's current partner with whom she was living at the time. The applicant & the female victim arranged to meet so that the applicant could see his daughter. After meeting, they drove to a nearby park where the intimidation offence occurred. Applicant then made a phone call & was joined by 2 women & his 2 brothers. He ordered the female victim to drive him & his brothers to her home. When the door was opened by the male victim, the applicant & his brothers, armed with a club lock, confronted the man & repeatedly struck him on the legs, head & chest. Both victims were able to escape. Following treatment in hospital, the male victim made a full recovery.
Aged 22 at time of offences - significantly disadvantaged background - problems as a child - mixed with wrong crowd at school - father a bad influence - priors, particularly offences involving violence.
Consideration of aggravating features - serving sentence in protection - accumulation of sentences.
Appeal dismissed. |
|
355
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PRICE, Jeremy Paul - CCA, 15.8.2005
Simpson, Johnson & Rothman JJ
Citation: R v Price [2005] NSWCCA 285
Sentence appeal.
1 x aggravated B&E a dwelling & commit serious indictable offence (AOABH)
2y 8m with a NPP of 1y 6m (special circumstances found).
Applicant's father & the victim of the above offence had an altercation, during which the applicant's father was injured. The following day, the applicant armed himself with a wooden stick, entered the victim's home, went upstairs to the victim's bedroom where the victim was in bed, accused the victim of having bashed his father & struck him hard in the vicinity of his left eye & again to his head & twice to his body. He threatened the victim that he & the bikies were after the victim. The victim was taken to hospital. He suffered fractures to his nose & other facial bones, trauma to the left side of his face, swelling of the left eye & nose area & bruising to the chest. He is not expected to suffer any long-term neurological injury. Two days after the attack, applicant voluntarily presented himself to police & was interviewed, but made no admissions & declined to respond to allegations put to him.
Aged 24 at time of offence - came from a close-knit family - hard working - held down full-time job & own weekend business - diligent involvement in variety of community & charity work - after offence, sought help & was referred to a psychologist for assessment & anger management training - constant & committed effort towards rehabilitation - priors, including offences of violence - no previous imprisonment.
Use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s.21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for Court to form a s.6(3) opinion.
Appeal allowed: resentenced to 16m with a NPP of 9m. |
|
356
|
ORBAN, Steven - CCA, 22.9.2005
Simpson J, Smart AJ, Patten AJ
Citation: R v Orban [2005] NSWCCA 312
Sentence appeal.
2 x supply heroin; + Form 1 (1 x goods in custody, being a sum of money).
Total sentence of 4y with a NPP of 2*y.
The offences came to light as a result of an undercover police investigation. The applicant & 3 associates were involved in the illegal distribution & supply of heroin.
Parity - relevance of comparison with co-offenders sentenced for ongoing supply - whether breach of
De Simoni principle (147 CLR 383) - powerful subjective circumstances - whether sentence excessive.
Appeal allowed in part: NPP reduced to 2y. |
|
357
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SCHUMACHER, Kelly Louise - CCA, 22.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v Schumacher [2005] NSWCCA 335
Sentence appeal.
Supply prohibited drug (methylamphetamine); + Form 1 (drive MV while licence suspended).
2y with a NPP of 13m.
The sentencing judge held that the driving offence had no significance in determining the sentence for the drug offence.
The charge on which the applicant was convicted was an alternative one. Along with her
de facto husband, the applicant had been charged with supplying a large commercial quantity of the drug. Both she & her
de facto were acquitted of that charge. The alternative charge was left to the jury by the judge, applying the decision in
King [2004] NSWCCA 20 after the
de facto had given evidence supporting that charge but negating the charge in the indictment. Counsel for the applicant in the CCA contended that the judge told the jury that if they acquitted her of count 1, they should convict her of the alternative count, in that he referred to their verdict as to the 1st count being guilty or not guilty or guilty of the alternative count; that the judge did not tell them that they could return a verdict of not guilty on the alternative count; & that the judge gave strong directions on the alternative count reflecting the state of the evidence, saying that there was no dispute about the facts on the alternative count. No objections were taken at the trial to the directions given.
Aged 28 at time of offending - has 2 children aged 6 & 7 to be looked after by applicant's mother - children adversely affected by their mother being in gaol, especially with their father also in gaol - sentencing judge held that very exceptional circumstances did not exist - failure to remain drug free whilst on remand.
Whether sentence excessive.
Appeal dismissed. |
|
358
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OTTO, Phillip - CCA, 23.9.2005 -
157 A Crim R 525
Sully, Hidden & Hall JJ
Citation: R v Otto [2005] NSWCCA 333
Sentence appeal.
Import commercial quantity cocaine; possess falsified passport.
Total of 14y with a NPP of 8*y.
The amount of cocaine imported was a little over 3.025 kgs, with a pure weight of a little over 2.136 kgs. The estimated street value was a little more than $854,000. Applicant arrived in Australia aboard a Land Chile Airlines flight from Santiago & presented a falsified Irish passport in another name.
Whether appropriate weight given to guilty plea -
Thomson and Houlton guideline judgment (49 NSWLR 483) - whether sentence manifestly excessive - comparable cases.
Appeal allowed: resentenced to a total of 10*y with a NPP of 7y. |
|
359
|
RTI - CCA, 20.9.2005 -
158 A Crim R 172
Giles JA, Hislop J, Smart AJ
Citation: R v RTI [2005] NSWCCA 337
Special hearings - appeal against determinations.
Multiple charges of sexual offences.
Total limiting term of 11y.
Special hearings under
Mental Health (Criminal Procedure) Act 1990 - election for determination by judge alone - whether hearings miscarried because judge did not enquire into understanding of nature of election -
R v Minani ([2005] NSWCCA 226) required judge to be satisfied that person's barrister or solicitor be satisfied person properly understood - no enquiry into this - judge's determinations quashed - whether charges of sexual intercourse without consent with person under 16 unreasonable & inconsistent with evidence - consideration of evidence as to complainant's age at the time of the alleged offences - open to judge to be satisfied beyond reasonable doubt - observations as to nomination of limiting terms under
Mental Health (Criminal procedure) Act - accumulation of sentences where multiple offences - can not nominate limiting term if commencement after the time of nomination - legislative attention deserved.
Appeal allowed: determinations that appellant committed the offences quashed, new special hearings to be conducted. |
|
360
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O - CCA, 16.9.2005
Sully, Hidden & Hall JJ
Citation: R v O [2005] NSWCCA 327
Crown appeal.
Multiple sexual offences upon children (sexual intercourse & aggravated indecent assault; children aged 5, 6 & 8).
Total sentence of 4y with a NPP of 2y.
There were 2 separate trials.
The respondent was a bus driver & was married to the grandmother of one of the young children.
Objective criminality - general deterrence - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to a total of 5y with a NPP of 2*y. |
|
361
|
MARSH, Robert William - CCA, 20.9.2005
Studdert, Kirby & Howie JJ
Citation: R v Marsh [2005] NSWCCA 331
Conviction appeal.
Armed robbery.
6y with a NPP of 4y.
The above offence was committed in a bank. After photos taken by the bank's security cameras were developed, a police officer sent one of them to the media. That photo & an accompanying article were subsequently published. The appellant's sister saw the photo & the article, claimed to recognise the appellant & notified the police. Four witnesses to the robbery participated in photo identification parades. None of them selected the appellant's photo as being the photo of the robber. Those witnesses consisted of 2 tellers working in the bank at the time, a sales consultant who was present in the bank & a 12 year old boy who saw a person running from the bank. One of the tellers was the teller who dealt with the offender.
Admissibility of security camera photographs - scrutiny of evidence given by sister.
Appeal dismissed. |
|
362
|
CHAMI, Mahmoud - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Chami [2005] NSWCCA 299
Sentence appeal.
Aggravated sexual intercourse without consent (in company); detain for advantage.
Total sentence of 18y with a NPP of 10*y.
The victim was lured from a train by several co-offenders & was sexually assaulted in a toilet block. She was then driven in a black car to a trotting club, where the co-offenders met with another group of young males in a red car. The applicant was the driver of the red car. His passengers included Bilal Skaf. The victim was told that the occupants of the red car would take her home, whereupon she entered the red car. At one point in the journey, the applicant held an unseen object to the victim's head & said, 'Don't move, bitch, or you're dead.' The applicant drove the car to an industrial estate at Chullora. The male passengers alighted from the car but guarded the doors to prevent the victim getting out. The applicant climbed into the back seat with the victim, pushed her onto her back & had penile-vaginal intercourse with her without her consent.
Aged 19 at time of offending - prior good character - employed as a bricklayer - supportive, stable, loving family background - medium to low risk of reoffending - strict protective custody - expressed sympathy for victim - remorse - no priors.
Whether errors in findings by sentencing judge - whether sentences manifestly excessive.
Appeal dismissed. |
|
363
|
SKAF, Bilal - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Bilal Skaf [2005] NSWCCA 297
Sentence appeal.
1st trial: Offences of 10 August 2000.
9 x aggravated sexual assault (in company); 2 x detain for advantage; 3 x assault.
Total of 30y with a npp 20y.
2nd trial: Offences of 30 August 2000.
2 x aggravated sexual assault (in company); detain for advantage; 2 x pervert the course of justice; aggravated indecent assault (in company); aggravated act of indecency (in company.
Total of 26y with a NPP of 10y.
Overall sentence of 46y with a NPP of 30y.
On 10.8.2000, applicant was among 8 young males who met the victims (2 female Year 12 students) at a shopping centre. The victims were offered marijuana & accepted a lift home in a white van with the applicant & 3 of the co-offenders. The other 4 co-offenders followed in a red car. The victims were taken to a park & detained. They were forced to participate in numerous acts of oral intercourse with the applicant & his co-offenders. In those instances in which the applicant did not personally have oral sex with the victims, he was convicted on the basis that he aided & abetted each offender by his presence & willingness to assist in the criminal activity if required. He was also present & aided & abetted the actual assailant in the commission of the common assaults. On 30.8.2000, a group of 5 offenders, including applicant's brother, lured a young woman from a train & subjected her to a series of sexual assaults in a public toilet. She was then driven to the deserted car-park of a trotting club where further sexual assaults were committed upon her. Subsequently, the victim saw a red car drive into the car-park. She entered this car after being told she was being taken home. The applicant was one of the occupants of this car. The victim was driven to an industrial estate & during the course of the journey was detained in the car & was touched on the upper thighs, legs & breasts by the applicant & a co-offender. The applicant & the co-offender grabbed the victim's hands & put them around their exposed penises, moving them up & down. The applicant & a co-offender pulled up the victim's skirt & inserted their fingers into her vagina. The victim was threatened by a co-offender with what she believed to be a weapon. At the industrial estate, the victim was sexually assaulted by several co-offenders. The applicant forced her to have penile-vaginal intercourse with him in the back of the car. After being interviewed by police, the applicant incited a female acquaintance to make a false statement supporting his claim that he, his brother & a co-offender were at home at the time of the attacks.
Aged 18 at time of offences - left school at age 14 - no remorse or contrition - priors (larceny, malicious damage, shoplifting, dangerous drive, take & drive conveyance without consent, traffic offences) - no previous imprisonment.
Whether offences of aggravated sexual intercourse constituted worst class of case - whether errors in findings & approach by sentencing judge - parity - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 28y with a NPP of 22y. |
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364
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SKAF, Mohammed - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mohammed Skaf [2005] NSWCCA 298
Sentence appeal.
2 x detain for advantage; 2 x aggravated sexual intercourse without consent (in company); +Form.
Total of 23y with NPP of 11y.
On 30.8.2000, applicant was among a group of young males who lured the 18 year old victim from a train. The applicant took the victim's mobile phone after she received a call from a friend. She was then led to a toilet block in a carpark & was told by the applicant that she would not get her phone back until she had sex with him. He prevented the victim from leaving & pushed her against the wall. He turned the victim around, pulled down her skirt & underwear & inserted his penis in her vagina from behind. She was then subjected to sexual assaults by co-offenders. She was persuaded to enter a black car, on the pretext of being driven home. Instead, she was driven to a trotting club, where further offences were committed by other males. The victim was then transported in a red car to an industrial estate. More offences by co-offenders occurred there. At one point, the applicant led the victim away from the other males & forced her to give him oral sex.
Aged 17 at time of offences - younger brother of Bilal Skaf - born in Australia - average intelligence - completed number of courses in detention - anti-social personality disorder - troublesome & violent whilst in detention - unwilling to accept responsibility for offences - frequently protested innocence - diagnosed with Hodgkin's disease after sentencing - non-associated protective custody - no relevant priors.
Whether errors in findings & approach by sentencing judge - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 19y with a NPP of 11y. |
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365
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H - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v H [2005] NSWCCA 282
Sentence appeal.
Act of indecency; assault; aggravated indecent assault (in company); 4 x detain for advantage; 3 x aggravated sexual intercourse without consent (in company); sexual intercourse without consent; + Form 1 offences.
Total of 25y with NPP of 15y.
Applicant was one of 4 males who surrounded a 14 year old girl on a train & made repeated sexual overtures to her. Applicant's conduct included putting his hand on her thigh & vaginal area (outside her clothes), grabbing her neck & masturbating in front of her with a condom on his exposed penis. Six days later, applicant was among 8 males who approached 2 young women (Ms A & Ms B) at a shopping centre. The victims were driven in a white van, containing 4 of the males, to a park. The other 4 males, including the applicant, followed in a red car. When the red car approached the park, Ms A was just breaking free from engaging in non-consensual oral intercourse with Bilal Skaf. The men from the red car tackled her to the ground. A co-offender threatened to bash Ms A if she did not perform oral sex on him, so she complied while the applicant & others stood nearby. At one point, applicant forced Ms A to give him oral sex while he held the back of her head. Later, Ms B was tackled by a co-offender & forced to give him oral sex in the applicant's presence. Twenty days later, applicant was among a group of males who lured Ms C from a train to a toilet block in a car park. Applicant stood outside the toilet block while 4 co-offenders sexually assaulted her inside the block. Ms C was persuaded to enter a black car on the pretext of being given a lift home but instead was driven to a trotting club, where the applicant forced her to give him oral sex.
Aged 17 at time of offending - youngest of 8 children - parents separated when he was a child - IQ of 67 - assessed as mildly mentally retarded - sentencing judge concluded he was 'intellectually and possibly mentally disabled'- moderate risk of re-offending - behavioural problems - attended special school because of learning difficulties - left school at age 14 - genuine remorse - reasonable prospects of rehabilitation - prior juvenile offences not relevant - no previous imprisonment.
Accessorial offences & offence as principal in first degree - whether errors in findings & approach by sentencing judge - whether sentences unduly harsh & severe.
Appeal allowed: resentenced to a total of 16*y with a NPP of 12y. |
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366
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AIKEN, Bruce Malcolm - CCA, 20.9.2005 -
63 NSWLR 719; 157 A Crim R 515
Studdert, Kirby & Howie JJ
Citation: R v Aiken [2005] NSWCCA 328
Conviction appeal (against 2 sexual offences).
Sexual intercourse without consent; indecent assault; steal from the person.
Total of 4y with a NPP of 12m.
Applicant was in a K-Mart store when he realised that the complainant was attempting to steal items. He approached her & told her he had been watching her. The complainant thought he was an undercover security person. The applicant said he was going to tell security, then said 'I can help you if you help me'& pointed to his groin. The complainant put her hand on the applicant's trousers on top of his penis. The applicant told the complainant to follow him & they left the store. The complainant declined to go to her home. They waited for nearby toilets to become unoccupied. The victim still believed the accused was a security officer & felt scared. The applicant locked the toilet, pulled down his trousers & underwear & put the complainant's hand on his penis which became erect. He told her to kiss his penis. After initially declining, the complainant put his penis in her mouth 3 times, however, it hurt the applicant as she used her teeth. The applicant told the complainant to use her hand & put soap & water on his penis & on her hand. The complainant masturbated the applicant until he ejaculated. The applicant then asked the complainant for money & took $200 from her purse. The complainant asked the applicant to help her obtain some items from K-Mart. The applicant agreed, saying he would meet her there, but the complainant could not find him. The complainant then told a staff member about what had happened.
Aged 30 at time of offending - no other details in judgment - prior offences of indecent assault upon a child under 10, AOABH - previous imprisonment.
Whether perceived non-violent threat vitiated consent.
Appeal in relation to convictions for the 2 sex offences allowed, judgments of acquittal entered for those 2 offences. |
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367
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HAJEID, Belal - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Hajeid [2005] NSWCCA 262
Sentence appeal.
2 x detain for advantage; 2 x assault; 2 x aggravated sexual intercourse without consent (in company).
Applicant was with a group of 8 males who approached 2 young women at a shopping centre. The victims were driven to a park in a white van, containing 4 of the co-offenders, including Bilal Skaf. The other 4 co-offenders, including the applicant, followed in a red car. When the red car arrived at the park, Ms A was breaking free from an act of forced oral intercourse with Bilal Skaf. The applicant's group tackled Ms A to the ground, kicked her around the legs & threw her into the bushes. After Bilal Skaf sexually assaulted Ms A a 2nd time, she was approached & threatened by the men from the red car. She was subjected to non-consensual oral intercourse with 4 men, while the applicant was present, aiding & abetting these assaults. The group from the red car then surrounded the other victim (Ms B) & demanded oral sex. The applicant grabbed Ms B by the arm & took her behind a toilet block. He pushed her to her knees, held her head & put his penis into her mouth.
Aged 18 at time of offending - left school end of Year 11, having performed poorly - brief periods of employment - psychological report & pre-sentence report noted lack of self-perception - portrayed himself as innocent victim of co-offenders & the court - prior offences whilst a juvenile treated as not relevant - no previous imprisonment.
Accessorial offences & offence as principal in the first degree - whether errors in findings & approach by sentencing judge - youth - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 17y with a NPP of 12y. |
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368
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FLETCHER, James Patrick - CCA, 23.9.2005 -
156 A Crim R 308
McClellan CJ at CL, Simpson & Rothman JJ
Citation: R v Fletcher [2005] NSWCCA 338
Conviction appeal.
8 x homosexual intercourse with male of or above 10 & under 18 (repealed s.78K
Crimes Act 1900); 1 x commit act of indecency towards person under 16 under authority (repealed s.61E(2) of the Act).
The appellant was a parish priest & the complainant was a parishioner & altar boy.
Prior conduct - tendency & coincidence - relevance - principles to apply - material to be considered - time at which judgment to be made - exercise of discretion by trial judge - Common Law as a guide to
Evidence Act - weighing of probative value & prejudicial effect.
Appeal dismissed. |
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369
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POLLOCK, Daniel Keith - CCA, 22.9.2005
Simpson, Howie & Rothman JJ
Citation: R v Pollock [2005] NSWCCA 316
Conviction appeal.
Murder.
Life imprisonment.
The Crown case at trial was that the appellant had caused the victim to fall down a flight of stairs by punching him & that he had pursued the victim down the stairs & further violently assaulted him at the bottom of the stairs, as a result of which he had caused the victim's death. The appellant was unsuccessful in his appeal against conviction in 1992: see
R v Pollock, unreported, NSWCCA, 13.4.1992). On 24.2.2005, after an application under s.474B
Crimes Act 1900, the matter was referred to the CCA to be dealt with as an appeal against conviction under the
Criminal Appeal Act 1912. The basis on which the appellant sought orders quashing his conviction was that fresh evidence existed that was not reasonably available at the time of the trial & that it was of sufficient cogency to cast doubt upon the guilty verdict.
Evidence of admission by appellant given by police officer in trial - denied by appellant - appellant alleged that confessional evidence fabricated - appellant alleged participation in interview not voluntary - admissibility of confessional material - evidence given to the Royal Commission into the NSW Police Service - credibility of police witnesses at trial - police officer charged with refusing to submit to breath analysis proved but dismissed - whether capable of affecting credibility of police officer at trial - police officer alleged to have taken part in assault - whether capable of affecting credibility - alleged inadequate or corrupt investigation of different murder - whether capable of affecting credibility - whether fresh evidence meets established tests - impact of
Evidence Act 1995.
Appeal dismissed. |
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370
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SANOUSSI, Mohamed - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mohamed Sanoussi [2005] NSWCCA 323
Sentence appeal.
4 x aggravated sexual assault (in company); robbery in company; 3 x detain for advantage.
Total sentence of 21y 3m with NPP of 12y (to be served in a juvenile detention centre until age 21).
On 10.8.2000, applicant was one of a group of 8 males who approached 2 young women (Ms A & Ms B) at a shopping centre. The victims were driven in a white van to a park. During the journey, the applicant indecently assaulted Ms A in the van. At the park, he forced Ms A to give him oral sex & stole some of her property. He also participated in other acts, including common assaults upon Ms A and Ms B. On 30.8.2000, applicant & approx 3 other males approached a young woman (Ms C) on a train. She was lured off the train & taken to a toilet block, where she was subjected to various sexual assaults. The applicant forced his penis into the victim's mouth.
Aged 16 at time of offending - congenital deformity (no fingers on right hand) - low self-esteem, poor social skills - developmentally delayed as a young child - subsequent disruptive behaviour & truanting - during period in custody has been treated for depression & attempts at self-harm - participation in counselling & acceptance of responsibility for offences indicate positive prospects of rehabilitation - no priors.
Offences committed as an aider & abetter did not give rise to same culpability as offences committed as a principal - totality - whether error in almost wholly accumulating some sentences.
Appeal allowed: resentenced to 16y, NPP 10y (to be served in a juvenile detention centre until age 21). |
|
371
|
SANOUSSI, Mahmoud - CCA, 16.9.2005
Studdert, Bell & Latham JJ
Citation: R v Mahmoud Sanoussi [2005] NSWCCA 322
Sentence appeal.
Aggravated sexual assault (in company); detain for advantage.
Total of 11y 3m with a NPP of 6*y.
Applicant was part of a group of young men who approached the young female victim on a train on 30.8.2000. The victim was lured from the train & sexually assaulted in the toilet block of a carpark.
Aged 15 at time of offending - limited remorse & insight into gravity of offending - reasonable prospects of rehabilitation - youngest of the offenders but strongly built & assumed protective role towards his co-offender brother who has a physical impediment - priors as a juvenile not significant - no previous imprisonment.
Parity.
Appeal dismissed. |
|
372
|
TABE - HCA, 6.10.2005 -
225 CLR 418; 79 ALJR 1890
Citation: Tabe v The Queen [2005] HCA 59
On appeal from the SC of Queensland.
Criminal law - attempted possession of dangerous drug - unopened parcel contained dangerous drug - innocuous substance substituted by police - principal offender obtained custody of unopened parcel - appellant charged with aiding, abetting or counselling attempted possession.
Whether Crown need prove only that principal offender has custody of unopened receptacle containing drug & knows that it is not empty to establish possession of dangerous drug in contravention of s.9
Drugs Misuse Act 1986 (Qld) - whether requisite state of knowledge differs between principal offender & accessory alleged to have aided, counselled or procured custody of receptacle - whether s.129(d)
Drugs Misuse Act 1986 (Qld) requires accused to prove honest & reasonable but mistaken belief.
Appeal dismissed. |
|
373
|
YORK - HCA, 6.10.2005 -
225 CLR 466; 79 ALJR 1919
Citation: York v The Queen [2005] HCA 60
On appeal from the SC of Queensland.
Appellant pleaded guilty to serious drug offences - co-operated with prosecuting authorities to secure murder conviction - evidence that appellant's life would be endangered in prison - appellant sentenced at first instance to a wholly suspended term of imprisonment because of that risk - AG appealed that decision, alleging the sentence was manifestly inadequate - Queensland Court of Appeal re-sentenced appellant to serve a term of actual imprisonment.
Whether appropriate to wholly suspend sentence - whether sentencing judge entitled to take into account risk to appellant's safety whilst serving a term of imprisonment.
Appeal allowed: Orders of the Court of Appeal of the Supreme Court of Queensland set aside and in their place an order made that the appeal to that Court be dismissed. |
|
374
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BOULAD, Talal - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Boulad [2005] NSWCCA 289
Sentence appeal.
19 x sexual intercourse with person aged under 16 years; + Form 1 (not keep firearm safely; possess unregistered firearm; 2 x unlawfully obtain goods).
Total sentence of 6y with a NPP of 3y.
The applicant had sexual intercourse with a 15 year old girl over a period of 4 months. The complainant was a ward of the State living in a group home & had been diagnosed as having an intellectual disability in the moderate range. She was suffering from an anti-social personality & required round-the-clock supervision because of her condition. She was considered to be extremely vulnerable. The complainant's caseworker contacted police after the complainant told her that she was having sex with the applicant, that he had shaved her pubic region & had taken photographs of her whilst she was naked. When police went to the applicant's premises, they found photographs & a notebook that set out in considerable detail the sexual activities that the applicant had engaged in with 10 different females. There were numerous references to the complainant, including the fact that he had to let her go because she was under age. In due course, the complainant was referred to a family planning clinic & was diagnosed as suffering from Chlamydia.
Aged 32 at time of offending - prior good character - history of sexual abuse - personality disorder - remorse - separated from wife - has a daughter - continuing family support - no priors - no previous imprisonment.
Whether error in having additional regard to an aggravating factor which forms an element of the offence - whether error in taking the 'global approach' to sentencing.
Appeal dismissed. |
|
375
|
AHMAD, Walid - NSW SC, Howie J, 9.9.2005
Citation: R v Ahmad [2005] NSWSC 911
Remarks on Sentence.
Manslaughter; maliciously inflict GBH; malicious wounding; being in company AOABH.
The offender shot the deceased. The deceased suffered 6 gunshot wounds to the chest. He was on the ground at the time the shots were fired.
Aged 30 - born in Lebanon - one prior conviction for possessing a prohibited drug -
Excessive self-defence.
Sentenced to a total of 10y 4m with a NPP of 7y. |
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376
|
HILTON, Neville Francis - CCA, 7.9.2005 -
157 A Crim R 504
Adams, Bell & Hall JJ
Citation: R v Hilton [2005] NSWCCA 317
Sentence appeal.
8 x having control over premises in which child prostitution took place (s.91F) - concurrent 2y, NPP 12m;
11 x receive money knowing it was derived from an act of child prostitution (s.91E) - concurrent 3y, NPP 12m (cumulative upon above sentence).
Total sentence 4y with a NPP of 2y.
All offences were committed between 11 & 21 August2003. The applicant owned a building in Port Kembla in which a brothel was operating. He took part in the management of the brothel. He attended the brothel almost daily, keeping or checking the books of account. He then took cash in payment of the rent. The only prostitutes providing services to clients of the brothel were 2 girls aged 13 & 14 years.
Offences under ss.91E & 91F
Crimes Act 1900 (NSW) - multiple offences - common factual elements - same effective sentence for both series of offences - double punishment.
Appeal allowed in respect of the s.91E offences: concurrent fixed terms of 2m substituted. |
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377
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GILL, David - CCA, 29.8.2005
Spigelman CJ, Ipp JA, Adams J
Citation: R v Gill [2005] NSWCCA 308
Sentence appeal.
1 x aggravated sexual intercourse without consent; + Form 1 (1 x aggravated sexual intercourse without consent; 1 x aggravated indecent assault).
Total of 4y with a NPP of 2*y.
The applicant had been married 3 times. The victim is his daughter by a previous marriage & was living with her mother & maternal grandmother. The applicant happened to meet the grandmother early in 2001 & shortly thereafter travelled with 3 of his younger children from a subsequent marriage to where the victim lived in order to see her. He had not been in contact with her since she was 9 months old. He was told that the victim suffered from a number of mental conditions, including bipolar disorder & depression, for which she was being treated. The applicant invited her to travel with him so that they could get to know each other. The mother & grandmother advised the victim against this, but she decided to go. The grandmother warned the applicant about the victim's mental problems & told him that it was imperative that she should not drink alcohol. A little over a week later, when the applicant & the children were at Tweed Heads, the applicant went to a bar, consumed some alcohol, then bought a number of alcohol drinks for the victim to celebrate her 16th birthday. The victim became intoxicated. They then all returned to the motel where they occupied the same room. The applicant, the victim & one of the other children went for a swim in the motel pool, the applicant in the nude. When they all went to bed, 2 of the younger boys slept in the single bed & the applicant, the victim & his other son slept in the double bed. During the night, the applicant undressed the victim, inserted his finger in her vagina & then full penile intercourse took place, whereupon he ejaculated. Later that same night, he repeated the intercourse over a longer period & again ejaculated. During these incidents, the applicant spoke to the victim & one of the other children. The victim said she was frightened & was too afraid to do anything to stop the applicant from touching her. The following day, they all went to the applicant's house in Queensland, where the applicant again had intercourse with the victim. He told the victim what he wished to do & the victim told him she did not want him to do it. Full vaginal intercourse occurred again & he again ejaculated. The following day, the victim made a complaint to one of her father's friends. Police were informed & the applicant was eventually arrested.
Compromised mental state - relevance - whether reduces importance of general deterrence.
Appeal dismissed. |
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378
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STEVENS - HCA, 21.10.2005 -
227 CLR 319;80 ALJR 91
Citation: Stevens v The Queen [2005] HCA 65
On appeal from the SC of Qld.
Criminal law - unlawful killing - murder - accident - counsel for defence requested direction on defence of accident at trial - whether trial judge erred in declining to direct jury on defence of accident - whether defence of accident open on the evidence - whether jury should have been instructed that appellant could not be convicted unless prosecution had satisfied jury beyond reasonable doubt that the operation of s.23 of the
Criminal Code (Qld) had been excluded - relationship between defence of accident and murder - whether defence of accident inconsistent with conviction of murder - relationship between defence of accident and manslaughter - case left to jury on basis that only available verdicts were guilty or not guilty of murder - whether manslaughter should have been left to the jury - whether manslaughter was open on the evidence - whether substantial miscarriage of justice occurred as a result of trial judge's failure to give directions on accident.
Appeal allowed: order set aside; appeal against conviction allowed; new trial ordered. |
|
379
|
DANSON, Neil Matthew - CCA, 30.9.2005
Windeyer & Hislop JJ, Smart AJ
Citation: R v Danson [2005] NSWCCA 343
Sentence appeal.
Aid & abet importation of commercial quantity cocaine; supply commercial quantity MDMA (ecstasy); supply commercial quantity cocaine.
Total sentence of 13y with a NPP of 8y 3m.
The appeal related only to the aid & abet importation charge.
The amount of cocaine imported was 3.7131 kgs, with an approximate street value of between $2.12 million & $4.24 million. The wholesale price range was $464,137 to $612,661.
The principal in the drug importation operation pleaded guilty & gave assistance to authorities. He received a 30% discount & was sentenced to 12*y with a NPP of 8y 3m. The operation's chemist, whose task it was to extract the pure cocaine, received a sentence of 13y with a NPP of 8y.
Judge's assessment of role of applicant - whether open on the evidence - whether sentence excessive.
Appeal dismissed. |
|
380
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JTAC - CCA, 5.10.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v JTAC [2005] NSWCCA 345
Sentence appeal.
Count 1: sexual intercourse with female child under the age of 10;
Counts 2&3: indecent assault upon female child under the age of 10 (the same child);
Count 4: sexual intercourse with male child under the age of 10.
Total of 2*y with a NPP of 9m.
The female child was aged 5 at the time the applicant committed the offences upon her. The male child was aged 7 at the time the applicant committed the offence upon him. Although he was a juvenile, the applicant was dealt with at law. After being charged, he was kept in custody for about 1 month, after which he was granted bail. He was returned to custody following breach of bail conditions. He remained in custody for about another 5* months. Thereafter, he was again admitted to bail, although he was required to live in premises operated by Marist Youth Care, as it was no longer possible for him to reside in the household with the child victims.
Aged 13 at time of offences - 25% discount for early guilty pleas - pre-sentence custody taken into account - prospects of rehabilitation viewed with mixture of promise & apprehension, both from expert & family sources.
Whether error in sentencing judge regarding the vulnerability of the victims as an aggravating factor - whether error in having regard to preventative detention in imposing sentence - whether sentence manifestly excessive.
Appeal dismissed. |
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381
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WILLIAMS, Stephen Barry - CCA, 16.9.2005 -
156 A Crim R 225
Basten JA, Simpson & Buddin JJ
Citation: R v Williams [2005] NSWCCA 355
Sentence appeal.
Manufacture methylamphetamine; possess precursor (pseudoephedrine) intended to be used in the manufacture of methylamphetamine; supply methylamphetamine; possess prohibited weapon (pistol); Form 1 (1 x supply methylamphetamine).
Total of 8y with a NPP of 4y.
In respect of each offence, the sentencing judge imposed an identical sentence, which he expressed as imprisonment for 8 years with a NPP of 4 years. He did not express himself to be taking the Form 1 offence into account in relation to any particular count, but appears to have done so on all counts. In sentencing in this way, he failed to comply with s.44 of the
Sentencing Procedure Act as amended with effect from 1.2.2003.
Aged 39 at time of offences - guilty pleas - psychiatric disability - diagnosed at age of 9 years - during period of stay in psychiatric hospital was regularly sexually abused by older male patients - traumatic experience as a child could have triggered psychiatric disorder - has fathered 6 children by 5 different mothers - 4 of the children left in his care & applicant is responsible for their upbringing - one child suffers from a significant psychiatric disorder - priors - previous imprisonment.
Psychiatric disability - global sentence imposed for all offences - no attempt to identify appropriate sentence for each offence - breach of
Pearce doctrine - additional offences taken into account - discount for guilty plea - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 6y with a NPP of 3y 3m. |
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382
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CE - CCA, 15.9.2005
Grove & Hall JJ, Smart AJ
Citation: R v CE [2005] NSWCCA 326
s.5F appeal against an order refusing a separate trial.
AOABH; sexual intercourse without consent & at the time inflicting ABH.
Applicant faced trial with 2 co-accused.
Particular prejudice to one of 3 accused - not reasonably capable of avoidance by judicial direction - necessary order to avoid unfair trial.
Appeal allowed: Order made that applicant be tried separately. |
|
383
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CAMERON, Matthew Allan - CCA, 28.10.2005 -
157 A Crim 70
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Cameron [2005] NSWCCA 359
Crown appeal.
3 x manslaughter; 1 x aggravated driving in manner dangerous causing GBH.
Total sentence of 8y with a NPP of 4y; + disqualified from holding a driver's licence for 10 years.
Respondent was driving in an area with a 50 kph speed limit when he proceeded to accelerate. Three of his passengers asked him to slow down. He continued to accelerate & reached a speed well in excess of 100 kph. He lost control of the vehicle at a sweeping bend & the vehicle slid to the wrong side of the road, forcing an oncoming vehicle to take evasive action. The respondent's vehicle careered into the kerb & a telegraph pole. The impact with the pole split the vehicle. The rear section of the vehicle was located near the pole & the front section nearly 60 metres away. The rear of the car caught fire. One of the male passengers had been ejected from the car onto the driveway of a motel. He suffered brain damage & died in hospital 2 days later. Another passenger was also ejected & landed on the lawn area of the motel. He died almost instantly from multiple injuries. A female passenger, who had not been ejected, suffered extensive skull & other fractures, however, her body was incinerated. A 4th passenger, who had been sitting in the front passenger seat, suffered a comminuted fracture of the right distal radius & other injuries that were described as 'minor'.
Guilty plea - priors - on GBB at time of offences - diagnosed with ADHD as a child - suffering from post traumatic stress disorder since crash - urgent need for regular & consistent psychiatric care - attacked by 3 prisoners whilst in custody awaiting sentence & rendered unconscious - on protection since that time.
Error in assessing sentence as if one offence caused 3 deaths - distinction between manslaughter & offence contrary to s.52A
Crimes Act - gross culpability - whether sentences manifestly inadequate.
Appeal allowed: resentenced to total 9y with 6y NPP. Disqualified from holding driver's licence for 10 years. |
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384
|
LUCAS, Robert Harry - CCA, 18.5.2005
Simpson, Buddin & Hall JJ
Citation: R v Lucas [2005] NSWCCA 194
Sentence appeal.
1 x BE&S; 1 x aggravated BE&S; + offences taken into account (drive vehicle without consent; larceny).
Total sentence of 7y with a NPP of 5y.
Applicant gained entry to a home by removing the fly screen then forcing open the laundry window. He entered & ransacked the premises, stealing a variety of personal items. Some weeks later, a little after midnight, he smashed a window of a vehicle parked in a street in front of the owners' residence & ransacked its contents. He tried to start the vehicle with the use of a screwdriver, however, the damage he caused prevented its ignition. The applicant then entered the owners' residence by removing a fly screen & opening a window. He searched for property in a wardrobe in a bedroom where the male owner was sleeping. Upon being alerted by a dog barking, the female owner came to investigate. A fracas ensued & the applicant pushed the woman backwards into the bedroom before making his escape. A few days later, he smashed a window of a car parked in a street & stole approx $3 from inside the vehicle.
Aged 18 at time of offences - guilty plea - Aboriginal heritage - deprived & disadvantaged upbringing - good relationship with step-father - tested positive for hepatitis A, B & C - diagnosed as suffering from ADD & possibly schizophrenia - drug & alcohol problems, including petrol sniffing - hepatitis - possible schizophrenia - vulnerable - family pattern of alcoholism & drug abuse - priors - previous imprisonment.
Whether aggregate sentence manifestly excessive - whether adjustment in aggregate NPP reflects special circumstances - prospects of rehabilitation.
Appeal allowed in part: NPP reduced to 4y. |
|
385
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NGUYEN, Thanh Hai - CCA, 31.10.2005 -
157 A Crim 80
PHAM, Van Hau
VU, Quang Huy
TO, Km Pui
Grove, Barr & Howie JJ
Citation: R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362
Sentence appeals.
Pham: Knowingly concerned in the importation of trafficable quantity heroin; import commercial quantity of MDMA - effective overall sentence of life imprisonment with NPP of 23y.
Nguyen: Knowingly concerned in the importation of trafficable quantity heroin; knowingly concerned in the importation of commercial quantity MDMA - effective overall sentence of 25y with a NPP of 18y.
TO: Possess commercial quantity MDMA - life imprisonment with NPP of 20y.
VU: 2 x knowingly concerned in the importation of trafficable quantity heroin & methylamphetamine; convey commercial quantity MDMA - effective overall sentence of 12y with a NPP of 8y.
The applicants were involved in one or more of 3 dealings with drugs imported into Australia. They entered pleas of guilty in the SC. Two other offenders were dealt with in the DC, the 2nd of these being dealt with after the others were sentenced. That offender was involved in all 3 dealings but received the lightest total sentence & a NPP shorter than that of all others, save one.
Disparity between sentences received by applicants & that imposed on the co-offender in the DC capable of engendering justifiable sense of grievance - whether sentences manifestly excessive.
Appeals allowed, applicants resentenced as follows:-
Pham: total sentence of 28y with a NPP of 18y.
Nguyen: total sentence of 22y with a NPP of 16*y.
To: total sentence of 22y with a NPP of 16*y.
Vu: total sentence of 9y with a NPP of 6y 3m. |
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386
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B - NSW SC, Dunford J, 15.4.2005
153 A Crim R 205
Citation: R v B [2005] NSWSC 340
Redetermination of life sentence.
On 8.9.1988, the applicant, then aged 14, was one of a group of 5 street kids who abducted a woman from Sutherland Railway Station. She was sexually assaulted & drowned in a dam. Following a trial with 2 co-accused, the applicant was convicted of murder, abduction, sexual intercourse without consent, robbery & other charges. The sentencing judge imposed a life sentence & recommended that the applicant should never be released. On 28.11.1996, the applicant made an application pursuant to s.13A of the
Sentencing Act 1989 (NSW), as it then stood, which permitted a person such as the applicant, to apply to the Court for the determination of a minimum term & an additional term of the sentence, after serving 8 years of his or her sentence. Effective from 9.5.1997, the
Sentencing Legislation Further Amendment Act 1997 (NSW) amended s.13A with affect that persons such as the applicant would be required to serve at least 20 years of the sentence before they could apply. The
Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW) increased that period of time to 30 years. By notice of motion, the applicant sought answers to specific questions on how the amending legislation would affect his status to apply for redetermination.
Held:
(1) The applicant was not affected by the amendments which would have required him to wait 20 years before making an application, because his application was pending immediately before the day on which the 1997 Amending Act was introduced into Parliament.
(2) The words of the sentencing judge clearly constitute a non-release recommendation within the meaning of the legislation.
(3) The applicant did not have to wait 30 years before making the application (he had already made it) and he did not have to satisfy the Court that "special reasons" existed which justified the making of the application.
(4) The applicant's application had been "duly made" notwithstanding the amending legislation.
(5) The amendments to the sentencing legislation were not invalid by reason of inconsistency with Ch III of the
Constitution.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Baker v The Queen (2004) 78 ALJR 1483, referred to.
|
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387
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GLEN, David Jack - NSW SC, Barr J, 28.10.2005
Citation: R v Glen [2005] NSWSC 1093
Redetermination of life sentence.
Murder.
Applicant murdered his 10 year old female cousin. The offence occurred in 1985 & was both vicious & sadistic. Following violent sexual attacks upon the young girl, the applicant choked her to the point of unconsciousness with a military-type wooden baton. He then strung her up by the neck to a rail in the wardrobe with a belt tied around her neck by means of a slipknot. Her body was supported on a chair & she was left there to die by asphyxiation. The applicant left the flat shortly after 3:00pm & remained out until about 5:00am, returning to dispose of the young girl's body. However, in his absence, the body was discovered by police.
Applicant was aged 20 at the time of the murder.
Rehabilitation - remorse/contrition.
Application granted: sentenced to 36y with a NPP of 24y. |
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388
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KILPATRICK, Gary Thomas - CCA, 21.10.2005 -
156 A Crim R 478
Grove & Hall JJ, Smart AJ
Citation: R v Kilpatrick [2005] NSWCCA 351
Sentence appeal.
65 x obtain money by deception.
Total of 7y with a NPP of 4*y.
The sentencing judge dealt with the offences in 3 groups. The offences in the 1st group were committed between Sept 1997 & Feb 2001. Large amounts of money were obtained from various finance companies & institutions secured against property which, in the vast majority of cases, did not exist. In other cases, the property was falsely described & evaluated. The 2nd series of offences involved the fraudulent use of credit card details. Orders were made for goods over the phone & in each case a credit card number was provided, as a result of which goods or services were supplied. The credit card numbers used by the applicant related to cards held by various customers of the NAB, each having a highly rated credit standing. The applicant obtained these numbers from a co-offender who was a branch manager of the bank. The 3rd group of offences were similar to those in the 1st group in that large amounts were obtained from finance institutions as a result of frauds committed in a variety of way. There was some restitution available to victims of these offences as a house offered as security did in fact exist & was able to be sold for the purpose of recompense. The applicant was one of a number of offenders. The total amount obtained by applicant & his co-offenders was over $2.6 million.
Guilty pleas - priors.
Aggravating factors - reference to previous conviction - failure to give effect to utilitarian value for guilty pleas - failure to give effect to proper application of principles of proportionality & totality.
Appeal dismissed. |
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389
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PALMER, Michael James - CCA, 13.10.2005
Grove & Hall JJ, Smart AJ
Citation: R v Palmer [2005] NSWCCA 349
Sentence appeal.
BE&S; larceny; take & drive conveyance without consent; possess implement capable of being used to enter & drive conveyance; + 2 matters on a Form 1 relating to cannabis & a white powder.
Total sentence of 5*y with a NPP of 3y.
The BE&S was committed at a cafe. Applicant broke in by throwing 2 rocks through a glass panelled door. Upon entry into the premises, he sustained a cut & some of his blood dripped onto the floor. That blood was later examined & found to contain applicant's DNA. Applicant stole a black leather attach* case from the cafe containing 300 musical compact disks, $150 in cash from the cash register & $210 in cash from a Westpac bank bag kept behind the reception desk. The total value of the property stolen was $7,400. Four days later, applicant broke into a car & stole a plastic crate containing a large amount of mobile phones & accessories valued at $25,000 which were found in his possession the following day when he was arrested on other matters. Between 3.00pm on the day of the larceny offence & 3.00am the following day, applicant broke into a car at a service station. He was seen driving the car some hours later & was arrested a short time later. Police found a 'jiggle' key in the ignition. The car had been driven about 250 kilometres since it had been taken & was littered with rubbish.
Failure to take into account the fact that all offences capable of summary disposal - whether error in treatment of criminal history as an aggravating feature.
Appeal dismissed. |
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390
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NEWHAM, Wade Robert - CCA, 12.9.2005
Mason P, Grove & Buddin JJ
Citation: R v Newham [2005] NSWCCA 325
Sentence appeal.
Robbery; indecent assault; AOABH in company; + Form 1 (steal from premises).
Total sentence of 6y with a NPP of 3*y.
Applicant was staying with a female acquaintance. He began pestering her to provide him with drugs. The female asked another male ,who was also staying at the house, to take the applicant to the victim's home. At the victim's home, they all smoked cannabis & watched a video. The applicant then grabbed the victim by the shoulders, threatened him with a knife & told him they 'were going for a ride'. The applicant & the other male drove the victim to an isolated area where the applicant verbally abused the victim, made him get out of the car, then punched the victim in the chest & kidneys. The victim screamed. The applicant ordered the victim to strip, searched his discarded clothes & took $15 from his wallet. The applicant knocked the victim to the ground, demanding money or drugs, but the victim was unable to comply. The applicant then exposed his penis & made sexual gestures to the victim. The applicant repeatedly punched the applicant about his torso, returning to the attack after an interruption. The victim fell on a barbed wire fence & was injured. According to the victim's statement, the other male's only involvement was to engage in one or two kicks after the applicant demanded to know if he 'would back him up'.
Aged 21 at time of offences - guilty pleas - unfortunate & disturbed upbringing - moved numerous times between carers & locations - commenced living on the streets at age 14 - taken into 'Kids Off the Streets' programme - successfully completed carpet laying course - priors, including offences of violence.
Specifically taking into account factors of additional aggravation which are ingredients of offence 'surrounding circumstance elevating offence into more serious category than that charged - whether sentence excessive.
Appeal allowed: resentenced to a total of 4y 9m with a NPP of 2*y. |
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391
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THOMPSON, Lionel - CCA, 29.9.2005 -
156 A Crim R 467
Mason P, Barr & Johnson JJ
Citation: R v Thompson [2005] NSWCCA 340
Sentence appeal.
Deemed supply of large commercial quantity of MDMA (ecstasy); + Form 1.
16y with a NPP of 12y.
Applicant owned a mobile phone registered under an assumed name at a fictitious address. Police intercepted a call in which the applicant offered to supply a quantity of ecstasy tablets to a man at a price of $14.50 each. In a later call, he agreed to supply a single tablet as a 'tester' .On the following day, the applicant was observed meeting the man, who was subsequently found in possession of the tablet. When the applicant was arrested a short time later, his backpack was found to contain 8 separate bags of ecstasy tablets with each bag weighing about 249grams. The total weight was 1.983kgs. If the tablets were sold in bulk at the price quoted by the applicant to the man, their value was in excess of $110,000. Applicant was also found to be carrying $10,650.
Standard NPP - s.21A, s.54B(2)
Crimes Sentencing Procedure Act 1999 - aggravating factors - mitigating factors - sentencing principles in
Way (2004) 60 NSWLR 168 - middle of the range of objective seriousness - special circumstances - accumulated assets.
Appeal allowed: resentenced to 13y 4m with a NPP of 10y. Sentence backdated to commence from time when applicant was taken into custody. |
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392
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MD, BM, NA, JT - CCA, 30.9.2005 -
156 A Crim R 372
McClellan CJ at CL, Simpson & Howie JJ
Citation: R v MD, BM, NA, JT [2005] NSWCCA 342
Crown appeal.
MD: 1 x manslaughter; 1 x stealing (mobile phone) - 5y 9m with NPP of 3y 9m.
BM: 1 x manslaughter; 1 x common assault - 4y with NPP of 2y.
JT: 1 x manslaughter; 1 x common assault - 4y 3m with NPP of 2y 9m.
NA: 1 x manslaughter - 4*y with NPP of 2y.
All accused entered pleas of guilty.
The deceased, his friend & some young girls were in Emu Plains on their way from the station to a party when they were attacked by a group of young men (the accused). The deceased received a savage beating, during which he was punched & his head was propelled into a power pole, after which his head was kicked & stomped on when he lay motionless on the ground. The deceased's friend was assaulted in order to prevent him from going to the aid of the deceased.
Objective gravity - young offenders - whether trial judge gave excessive weight to subjective factors.
Appeal in each matter dismissed; sentence in relation to BM varied. |
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393
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AB - CCA, 27.10.2005 -
156 A Crim R 577
CLIFFORD, Michael Douglas
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v AB; R v CLIFFORD [2005] NSWCCA 360
Crown appeals.
Clifford: Manslaughter; maliciously inflict GBH - total sentence of 6y with a NPP of 3y.
AB: Murder; maliciously inflict GBH - total sentence of 14y with a NPP of 9*y.
Clifford started an altercation with the deceased & his friends who were walking to a party after having been drinking at some hotels. During the altercation, Clifford called out for help, whereupon AB fired 2 shots, one of them killing the deceased, the other wounding a friend of the deceased. The offenders were teenagers at the time. Both offenders came from extremely violent families & both had abused drugs & alcohol from a very young age.
Assessment of objective seriousness - weight given to subjective circumstances - whether there was a failure to accumulate sentences - whether finding that respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with jury's verdict.
Appeals allowed, respondents resentenced as follows:
AB: total of 15y with a NPP of 10*y.
Clifford: total of 7*y with a NPP of 4*y. |
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394
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ERRINGTON, Burt - CCA, 19.10.2005 -
157 A Crim R 553
Mason P, Grove & Buddin JJ
Citation: R v Errington [2005] NSWCCA 348
Sentence appeal.
Dangerous driving causing death; dangerous driving causing GBH.
Total sentence of 2y 9m with a NPP of 1*y; disqualification of driver's licence.
Applicant was driving his prime mover towing a 3-axle tabletop trailer loaded with an empty cargo container along General Holmes Drive at Mascot, travelling at 60-70kph in a northerly direction towards the intersection with Millpond Road. As the road straightened out from a left-hand bend, the traffic lights controlling the intersection & any vehicles stopped at those lights would have come into the applicant's view, which was 370 metres before the intersection. The applicant travelled that distance in 18-20 seconds & collided with the last vehicle, a Hyundai XL, in a line of traffic that had stopped at a red traffic light. He did not break heavily until immediately before he struck that vehicle. Upon impact, the Hyundai XL went into the rear of a panel van, that van was then pushed into the rear of a utility & that utility was pushed into the Ford Falcon in front of it. The rear of the utility was forced upwards & rotated so that it was suspended between the panel van & the Ford Falcon. The utility also collided with the trailer & cargo container being towed by a prime mover. The Ford Falcon was pushed into the rear of a State transit bus & the bus was then pushed into the Toyota Prada in front of it. That vehicle was then pushed into a Holden Commodore station wagon. When the applicant's truck impacted with the Hyundai XL, the front of the applicant's vehicle also impacted with a Holden Commodore utility travelling in the adjacent lane. As the Hyundai XL became wedged under the applicant's vehicle, the vehicle also collided with a Yamaha motorcycle. Many of the vehicles were extensively damaged, some people were trapped in their vehicles & had to be rescued. As a result of the impact, the driver of the Hyundai XL received fatal injuries & died at the scene. Another male suffered undisplaced fractures of the right tibia & fibula. He also sustained soft tissue injuries to his right leg, resulting in swelling, blistering & bruising. He underwent surgery at St George Hospital. The applicant was uninjured. There was no explanation for the collision. The applicant was not speeding or affected by drugs or alcohol. His truck was in good roadworthy condition & the condition of the road was good. There was no suggestion of any relevant medical condition.
Aged 49 at time of offences - guilty pleas at earliest opportunity - married with 2 children - excellent driving record - extensive evidence of good character - was the OH&S drivers' representative at work - regarded as responsible driver by employer - symptoms of post-traumatic stress disorder stemming from the accident - accepted full responsibility -deeply remorseful - assisted police in relation to an unrelated armed robbery matter arising at his place of work - assessed as able to meet a fine, suitable for CSO but ineligible for PD order - no relevant criminal record.
Typical offender in
Whyte (2002) 55 NSWLR 252 - abandonment of responsibility - momentary inattention or misjudgement.
Licence disqualification - 3y automatic statutory period - discretion to shorten disqualification period - driving behaviour unexplained - whether insufficient regard to subjective case.
Appeal dismissed. |
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395
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OTWAY, Allan William - CCA, 19.10.2005
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Otway [2005] NSWCCA 352
Sentence appeal.
Maliciously inflict GBH.
2y 4m with a NPP of 1y 9m (NPP ordered to expire on 25.2.2006).
The applicant knew the victim. One morning, the victim & his
de facto wife were waiting for a bus when they were approached by the applicant who was with his
de facto wife & their 2 year old child. The applicant & the victim began to argue. The argument became heated & suddenly the applicant produced a knife from his right hand pocket, which he flipped open. The argument continued with the applicant opening & closing the blade of the knife. He then hit the victim in the face with his hand. The victim's wife moved between the men to push the applicant away, but he moved around her & lunged at the victim with the knife, stabbing him in the stomach. The 2 men began punching one another & the applicant again lunged with the knife but the victim managed to push him away, causing him to drop it. The victim's wife stepped on the knife to stop the applicant from getting it. He managed to obtain it nevertheless & walked away towards his home. The victim was treated at the scene & later admitted to hospital. He suffered 2 wounds, one approx 2cms in length over the lower right abdomen & the other about 3cms long in the left upper abdomen. No major organs were damaged. Following the incident, applicant walked to a friend's home & was driven at his own volition to Penrith Police Station where he spoke to police & was arrested. He admitted stabbing the victim but was unable to offer any explanation as to why he had done so.
Guilty plea - diagnosed as suffering from amphetamine-induced psychosis - need for ongoing counselling & periodic testing for drug use.
Discount for plea of guilty - special circumstances - pre-sentence report not tendered in evidence - significant error of fact - prospects for rehabilitation - whether sentence excessive.
Appeal allowed insofar as NPP to commence on 26.5.2004 & expire on 19.10.2005. |
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396
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MACBAIN, Mark Raymond - CCA, 20.10.2005
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v MacBain [2005] NSWCCA 358
Sentence appeal.
2 x BE&S: + Form 1 (take & drive conveyance; drive whilst disqualified; 3 x drive through red light; possess amphetamines; resist officer in execution of his duty).
Total of 5y 3m with a NPP of 3y.
The 1st BE&S offence involved applicant removing the front right window of business premises & stealing a TV, a power saw & an electric drill. The 2nd offence occurred when the applicant forced entry to the home of a married couple & stole items, the value of which totalled $15,700. Applicant caused a fair amount of damage in forcing entry & ransacking the home.
Aged just under 35 at time of offences - guilty pleas - offences committed whilst on parole - multiple prior convictions, including similar type convictions in Victoria - previous imprisonment.
Whether sentences contained an aspect of double punishment for the fact that they were committed on parole - whether sentences manifestly excessive.
Appeal allowed insofar as sentences backdated. |
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397
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STONE, Robert John - CCA, 24.10.2005 -
64 NSWLR 413; 157 A Crim 41
Hunt AJA, Hislop J, Smart AJ
Citation: R v Stone [2005] NSWCCA 344
Crown appeal.
Supply prohibited drug (methylamphetamine).
This was an appeal brought by the Crown pursuant to s.5F
Criminal Appeal Act 1912 against the judgment & orders made by Judge Coolahan in the DC at Newcastle whereby he upheld a plea in bar in the nature of
autrefois convict entered by the respondent.
Autrefois convict - plea in bar in nature of
autrefois convict - not permitted while plea of not guilty remains standing on the record - leave to withdraw plea of not guilty if plea in bar a good one - requirement that both conviction (in the sense of a finding of guilt) & sentence (in the sense of the final disposal of the case) must be established by the accused - judge's ruling that plea in bar had been made out when there had not been a sentence erroneous - ruling a final decision disposing of the proceedings - acquittal - no Crown appeal lies from that ruling whether pursuant to s 5F of the
Criminal Appeal Act 1912 or otherwise.
Appeal dismissed. |
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398
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SMITH, Leslie Russell - CCA, 28.9.2005
Hulme, Hidden & Bell JJ
Citation: R v Smith [2005] NSWCCA 339
Sentence appeal; and
Crown appeal.
Supply methylamphetamine (0.05 grams - FT of 2y; enter dwelling house with intent to commit larceny -3y with NPP of 1y; maliciously inflict GBH - 4*y with a NPP of 2y.
Total sentence imposed was 6*y with a NPP of 4y.
Applicant went to the house where the victim was living with her mother & 2 siblings. After speaking to the victim at the front door, he left a small quantity of methylamphetamine in an envelope to be given to the victim's mother. One or 2 hours later, he returned, entering the house through a kitchen window whilst the occupants were asleep. He entered the victim's bedroom, wrapped a piece of nylon string around her neck & applied what a medical expert described as significant force around her neck. Before leaving the house, he cut off a lock of the victim's hair. The victim suffered a large 10cm abrasion & haematoma to her throat, as well as bruising behind her right earlobe & face. There were signs of bilateral conjunctival haemorrhages & haemorrhages on her right shoulder & sternum. The victim also suffered a contusion to her shoulder.
Aged 32 at time of offending - qualified motor mechanic - separated from wife - has 2 children - previous alcohol problems overcome - amphetamine addiction - supportive family - reasonable prospects of rehabilitation - priors - previous imprisonment.
Offences linked in time - whether sentence on drug charge manifestly excessive - whether concurrence of sentence on other 2 charges appropriate - whether accumulation of those sentences on sentence for drug charge appropriate - whether overall sentence appropriate to reflect total criminality - whether Court should intervene when error shown in individual sentences but overall sentence appropriate.
Both appeal against sentence & Crown appeal allowed in part, resulting a new total sentence of 5y 9m with a NPP of 3y 9m. |
|
399
|
ELLAZ, Mohamad - CCA, 19.10.2005
Sully, Hidden & Hall JJ
Citation: R v Ellaz [2005] NSWCCA 350
Sentence appeal.
Ongoing supply of heroin; + Form 1 (goods in custody).
2y 10m with a NPP of 1y 10m.
Applicant sold small amounts of heroin to an undercover police officer on 3 occasions. On a 4th occasion, he purported to sell heroin to the same officer, however, upon analysis, that substance proved to contain no heroin. It was on that occasion that he was arrested. The total amount of heroin sold to the undercover officer was 0.69 grams, for which the applicant was paid $590. The goods in custody on the Form 1 related to the fact that the applicant was found to be in possession of 9 deadlock door knobs reasonably suspected to have been stolen or unlawfully obtained.
Aged 30 at time of offending - early guilty plea - found by sentencing judge to be part of a sophisticated heroin dealing operation - married, with one child - strong family support - long-standing drug problem - psychological complications as a result of a head injury - already serving a sentence at time of sentencing.
Whether adequate discount for guilty plea - assistance to authorities - relevance of observations of sentencing judge during final addresses - finding of special circumstances - whether structure of sentence appropriate - whether adequate weight given to mental condition.
Appeal dismissed. |
|
400
|
LAWSON, Benjamin John - CCA, 14.9.2005
Grove, Simpson & Buddin JJ
Citation: R v Lawson [2005] NSWCCA 346
Sentence appeal (extension of time).
5 x administer stupefying drug (nitrous oxide) with intent to commit aggravated sexual intercourse without consent; 2 x aggravated sexual intercourse without consent; 1 x aggravated indecent assault; + 7 further offences on a Form 1.
Total sentence of 13y with a NPP of 9*y.
The offences were committed upon 3 young teenage boys. The applicant is a paedophile who was also a youth leader at the New Life Baptist Church at Dee Why at the time of committing the above offences. His position offered him the opportunity to engage in his criminal conduct with the teenage boys named in the charges. He provided the boys with canisters & bulbs of nitrous oxide & instructed them in their use. The nitrous oxide was provided in such large quantities that the boys were rendered unconscious & were then sexually assaulted by the applicant.
Whether sentence excessive.
Appeal dismissed. |
|
401
|
GENT, Garry Raymond - CCA, 17.10.2005 -
162 A Crim R 29
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Gent [2005] NSWCCA 370
Sentence appeal.
Importation of child pornography (s.233BAB(5)
Customs Act 1901).
18m with a NPP of 12m.
On 9.7.2004, the applicant was questioned by Customs officers at Sydney Kingsford Smith Airport following his return to Australia. He told Customs officers that he was returning from an overseas teaching position as a Year 6 primary school teacher & that he intended to holiday in Australia for a period before seeking employment in a primary school in China. A search of applicant's baggage revealed a number of CDs, floppy disks & a DVD. In response to questions from a Customs officer, applicant said that the CDs & floppy disks did not contain any pornographic or offensive material. Upon examination at the airport, one of the CDs was found to contain movie footage of young boys engaged in sexual acts with adult males. Another CD contained numerous pictures of young boys & girls engaged in sexual acts with each other or with adult males. The CDs, floppy disks & DVD were seized by Customs officers, together with other items. On 18.7.2004, Customs investigators attended Sydney Kingsford Smith Airport domestic terminal & intercepted the applicant as he disembarked from a domestic flight from Launceston. He was placed under arrest for importation of child pornography & was taken to Maroubra Police Station, where he was charged.
Aged 39 at time of offence - born in England - at age 6 emigrated to Australia with family - qualified as a teacher at Sydney University - taught in several schools throughout NSW for 13 years - was dismissed after being caught accessing child pornographic material on a Department of Education computer - thereafter sought employment as a teacher overseas - did not disclose to any potential or actual employer that he had been dismissed in NSW - obtained employment in Turkey & Qatar - in Qatar he was discovered accessing child pornography sites on his computer & was summarily dismissed & put on a plane to Australia - returned to Turkey in teaching position - returned to Australia on 9.7.2004.
Approach to prior good character on sentence - relevance of possibility of summary disposal - whether sentence manifestly excessive.
Appeal dismissed. |
|
402
|
HATHAWAY, Ronald Leslie - CCA, 20.10.2005
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v Hathaway [2005] NSWCCA 368
Sentence appeal.
Aggravated B&E (malicious wounding).
6y 9m with a NPP of 5y.
A witness noticed someone acting suspiciously around the administration block at Hay Public School at approx 8:00pm. The witness contacted the school principal & informed him. The principal attended the school, walked around the buildings & noticed that the entry to the administration block was open & had apparently been forced. He called out, asking if there was anyone there, then entered the building. He turned on the light in the photocopy room & proceeded down the hallway. He noticed that the front office door was slightly open & once again called out. As he was opening the front office door with his foot, the applicant grabbed him, pulled him into the office & threw him to the floor, whereupon he assaulted the principal about the head & back with an iron tyre lever. When the applicant fled the building, the principal sought help at a nearby hotel. He was taken by ambulance to hospital. When police arrived, there was no sign of the applicant. The principal suffered lacerations to his head, 3 requiring stitches. He also suffered bruising to his chest & back, as well as grazing on his back. The applicant was not arrested until almost 2 years later. Four days after the above offence occurred, he appeared before the Hay Local Court & was imprisoned for 3m for a number of unrelated larceny offences. At the same time, he was placed on a bond for a previous AOABH.
Aged 20 at time of offence - early guilty plea - left school at age 16 - some employment history - started using cannabis at a young age - cannabis use had increased to about a quarter to half an ounce a day - user of amphetamines but ceased use prior to being sentenced - also used Serepax & Rohypnol - remorse.
Whether error in taking into account applicant's prior convictions as an aggravating factor - whether error in failing to have regard to delay between commission of offence & arrest - whether error in application of discount for guilty plea - whether sentence manifestly excessive.
Appeal dismissed. |
|
403
|
RAE, Stephen John - CCA, 8.11.2005 -
157 A Crim R 182
Giles JA, Hislop & Rothman JJ
Citation: R v Rae (No.2) [2005] NSWCCA 380
Application for leave to appeal against conviction and sentence.
Causing GBH with intent to murder; + Form 1 (OABH).
19y 8m with a NPP of 14y 9m.
The applicant went to his former girlfriend's premises at night & gained access to her bedroom. He had a 2 litre plastic container full of petrol with him. He started to throw the liquid over the victim who had woken up because of a loud noise the applicant made. She screamed & escaped from the flat, seeking help from a neighbour living downstairs. The applicant was able to get a lighter out of his pocket & to set the victim on fire. She suffered appalling injuries, including full thickness burns to 93% of her body & internal inhalation problems. Her quality of life has been permanently & severely affected & she will be restricted in her activities by great pain & discomfort for the rest of her life. Because of his rescue attempts, the neighbour received partial thickness burns to 10-15% of his body.
On 12.1.2000, applicant appealed against both conviction & sentence. He later abandoned the conviction appeal. The sentence appeal was heard on 12.12.2001 & was dismissed (
R v Rae [2001] NSWCCA 545).
Aged 33 at time of offence - emotionally disturbed at the - no priors.
Failure of initial representatives to give relevant information to experts & obtain evidence - failure of Crown to ensure case presented with fairness to accused - evidence relating to preparation of case - scientific evidence - improper pressure leading to guilty plea - incompetence of legal representative - inherent bias in expert's report - insufficient preparation time for sentencing proceedings - miscarriage of justice.
Application dismissed. |
|
404
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O'NEILL, Ryan Sydney Bruce - CCA, 27.10.2005
Hulme, Hidden & Hall JJ
Citation: R v O'Neill [2005] NSWCCA 353
Sentence appeal (extension of time).
1 x deemed supply of cocaine; 1 x deemed supply of cannabis; 1 x dishonestly obtain valuable thing (motor vehicle); + Form 1 offences.
Total of 4y 7m with a NPP of 3y 5m.
Police stopped the applicant who was driving a hired car at 135 kph in a 110 kph area. He was unable to produce a driver's licence. Police found $53,210 in cash in the glove box, $12,600 in cash in a magazine holder on the front seat of the car, a plastic bag containing cannabis under the front passenger seat & a further 4 bags in a backpack behind the driver's seat. Two small bags of cocaine were found in a wallet & a backpack. Messages on applicant's mobile phone appeared to be associated with drug dealing.
Utilitarian value of guilty plea - strength of Crown case - whether sentence excessive.
Appeal dismissed. |
|
405
|
SHIAGETZ, Jason (Parole Board of NSW v) - CCA, 19.10.2005
Simpson, Adams & Johnson JJ
Citation: Parole Board of NSW v Shiagetz [2005] NSWCCA 372
Application made under s.155
Crimes (Administration of Sentences) Act 1999 against a decision of the Parole Board denying applicant's release on parole.
Applicant was convicted & sentenced for robbery in company: see
R v Shiagetz [2003] NSWCCA 115.
Unsuccessful application for parole - disputed facts - role of Parole Board - adjournment of consideration of application - not released on parole - sentence served before appeal heard - jurisdiction of Court.
Appeal dismissed. |
|
406
|
MARTIN, Margaret Joan - CCA, 10.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Martin [2005] NSWCCA 381
Sentence appeal.
Supply commercial quantity prohibited drug (heroin).
8y with a NPP of 6y.
Appellant & her sister were in a joint criminal enterprise, purchasing significant quantities of heroin from a number of sources & then supplying the heroin they purchased. Some of the heroin was supplied by the applicant's sister & her connections. The heroin retained by the applicant was sold to contacts on the north coast & through a network the applicant maintained in Sydney. The amount of heroin purchased & sold by the applicant & her sister during a 2* month period was estimated to be 1 kg.
Different sentences for co-offenders - special circumstances - whether sentence manifestly excessive.
Appeal dismissed. |
|
407
|
DROLLETT, Adam - CCA, 4.11.2005
McClellan CJ at CL, Simpson & Rothman JJ
Citation: R v Drollett [2005] NSWCCA 356
Conviction appeal.
Malicious wounding in company.
5y with a NPP of 3*y.
On 6.7.2002 the appellant was a prisoner at Goulburn Correctional Centre. Julius Graf was also a prisoner. Between 1.30 pm and 1.35 pm on that date Mr Graf was placed by a Correctional Services Officer in a space known as '6 yard'. A number of other prisoners, the majority of them of Pacific Islander origin, were already present in the yard. The appellant was among them. Shortly after Graf's arrival, a melee erupted & Graf was attacked & injured. Eleven prisoners, including the appellant, were charged on indictment with malicious wounding in company & the matter went to trial. The Crown then offered, in return for pleas of guilty by all accused, to present a fresh indictment, reducing the charges to AOABH. Ten of the accused accepted the offer & entered pleas of guilty to that offence. The appellant declined to do so. The jury was discharged & a new trial began, with the appellant the sole accused who faced the original charge of malicious wounding in company. The jury returned a verdict of guilty. The only issue in the trial was whether the appellant had been shown to have been a participant in the attack on Mr Graf. '6 yard' was under continuous camera surveillance & much of the incident was recorded. At least 2 digital cameras were positioned in the area. The footage produced was not continuous but a series of still photographs taken at one-second intervals. When shown on a video player, the images are staccato-like, jerky & extremely indistinct. The film shows the melee involving a number of individuals but no faces can be seen. Immediately after the incident, a muster of inmates was conducted. The entire procedure was video-recorded. On this video film the appellant can clearly be seen & identified. The video image is accompanied by sound recording in which the appellant can be heard identifying himself.
Whether evidence concerning film footage admissible - evidence on
voir dire subsequently admitted - witness saw appellant from front view after incident ended but was unable to identify him from front view footage - witness did not see appellant from rear view but purported to identify him from that footage - whether evidence relevant - evidence of fact - evidence of opinion - witness identified clothing worn by appellant minutes before attack - witness identification by process of deduction & reference to his clothing - interpretation of video evidence -
ad hoc expert.
Appeal allowed: new trial ordered. |
|
408
|
GARDNER, Bronwyn Margaret - CCA, 10.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Gardner [2005] NSWCCA 383
Sentence appeal.
BE&S.
2y with a NPP of 12m.
A home at Cherrybrook was broken into & antique items exceeding $15,000 in value were stolen. The home was empty at the time, one of the elderly owners being in hospital, the other in a nursing home. The applicant was linked to the crime by her fingerprint found on the outside of a window to the premises.
Aged 27 at time of offending - guilty plea - serious problem with marijuana, heroin, amphetamines - offence connected to addiction - lack of insight into offending behaviour - priors - previous imprisonment.
Whether error in sentencing discretion - assessment of objective seriousness - principles in
De Simoni (1981) 147 CLR 383 - failure to take account of mental illness - failure to give weight to staleness of offence - rehabilitation - failure to take into account exceptional hardship to applicant's babies - whether sentence excessive.
Appeal dismissed. |
|
409
|
DAVIES, Andrew Lucas - CCA, 10.11.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Davies [2005] NSWCCA 384
Sentence appeal.
Sexual intercourse with child under age of 10 years; + Form 1 (aggravated indecent assault upon same child).
10y with a NPP of 7*y.
Applicant inserted his penis into the mouth of the 7 year old child & ejaculated. He was living with the child & her mother in a domestic situation at the time & was in a position of authority over the child.
Aged 22 at time of offending - guilty plea - offence well above mid-range but below 'worst type'- approx 30% discount for utilitarian value of plea, remorse - no priors.
Range of sentences - s.66A
Crimes Act - statistics - whether sentence excessive.
Appeal allowed: resentenced to 7y with a NPP of 5y 3m. |
|
410
|
HENARE, Lucas Jai - CCA, 10.11.2005
Hoeben JJ
Citation: R v Henare (No.2) [2005] NSWCCA 366
Appeal brought pursuant to s.5AF
Criminal Appeal Act 1912 to a single judge of the Court sitting as the Court of Criminal Appeal. The appellant appealed against sentences imposed on him in the Drug Court on 24.11.2004 pursuant to s.12
Drug Court Act. These were final sentences in accordance with the Act.
Sentencing principles - utilitarian value of guilty plea - weight to be given to subjective factors.
Appeal dismissed. |
|
411
|
HENARE, Lucas Jai (No.2) - CCA, 10.11.2005
McClellan CJ at CL, Simpson & Hoeben JJ
Citation: R v Henare (No.2) [2005] NSWCCA 367
Application for leave to appeal pursuant to s.5(1)(c)
Criminal Appeal Act 1912 against a sentence imposed in the Drug Court in respect of a BE&S offence. An appeal was also brought pursuant to s.5AF in relation to matters in which the Drug Court imposed sentences pursuant to s.12
Drug Court Act: see
R v Henare [2005] NSWCCA 366. The only ground in the instant application was that 'In the event that the applicant's appeal brought pursuant to s.5AF is successful this Court would intervene in the appeal brought under s.5(1)(c) to give effect to the sentencing judge's stated intention.' That stated intention was that the same sentence should be imposed in relation to that offence as the final sentence imposed by the Drug Court pursuant to s.12
Drug Court Act.
Following upon the failure of the appeal under s.5AF, the application for leave to appeal could not succeed.
Application refused. |
|
412
|
FORBES, Warren Alan - CCA, 21.10.2005 -
160 A Crim R 1
Spigelman CJ, McClellan CJ at CL, Hall J
Citation: R v Forbes [2005] NSWCCA 377
Conviction and sentence appeal.
2 x manslaughter.
For the killing of Ross Kimball, sentenced to 12y with a NPP of 9y, commencing on 29.5.2002.
For the killing of Andrew Hullick, sentenced to 12y with a NPP of 8y, commencing on 29.5.2009.
Total sentence of 19y with a NPP of 15y.
The appellant was charged with the murder of Andrew Hullick. He was found not guilty of murder but guilty of manslaughter. Appellant had also pleaded guilty to the manslaughter of Ross Kimball. The Crown accepted the appellant's plea of guilty to manslaughter on the basis of the concept of extended joint criminal enterprise. The appeal against conviction related to the killing of Mr Hullick. The appeal against sentence related to both killings. There was evidence of a number of admissions made by appellant to his friends relating to the killing of Mr Hullick, suggesting that he had acted in self-defence. After the shooting of Mr Hullick, the appellant at first denied any involvement, however, he did take steps to cover up any forensic evidence. On day 10 of the trial, one of the jurors was found to be in possession of 2 publications (a book entitled
'Guns and Gunsmiths'& an advertising brochure predominantly for ammunition)
Juror misconduct - juror found in possession of published material, possibly related to trial - whether trial miscarried - whether directions sufficient to cure irregularity - adequacy of summing up - trial judge did not follow Bench Book formulation - excessive self-defence - whether directions in relation to self-defence correct in law - failure to adequately take into account guilty plea - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed in part:
For the killing of Ross Kimball - 9y with a NPP of 6y 9m, commencing 29.5.2002.
For the killing of Andrew Hullick - 12y with a NPP of 8y, commencing 29.2.2007.
Total new sentence of 17y with a NPP of 13y. |
|
413
|
GUIDER, Timothy Paul - CCA, 3.8.2005
Simpson, Adams & Hall JJ
Citation: R v Guider [2005] NSWCCA 386
Reference by the Registrar of the CCA under s.19(2)
Criminal Appeal Act 1912 for consideration of summary determination.
See
Regina v Guider [2000] NSWCCA 355 for details.
The instant application followed upon the NSW Attorney General's referral of applicant's petition under s.474B
Crimes Act 1900 to be heard & determined by the CCA pursuant to s.5(1)(b)
Criminal Appeal Act.
Applicant took no steps to prosecute his appeal - applicant rang Registrar to advise that he did not wish to go ahead with his appeal - applicant indicated that he would be content for the appeal to be struck out.
Appeal summarily dismissed. |
|
414
|
MOBBS, Lucas Rodney - CCA, 19.10.2005
Simpson, Adams & Johnson JJ
Citation: R v Mobbs [2005] NSWCCA 371
Sentence appeal.
1 x hinder investigation of a serious indictable offence.
15m with a NPP of 12m.
The car in which the applicant was a passenger moved to the wrong side of the road straight into the path of a vehicle driven by Mr Simon Gray, his wife & their 2 daughters. Mr Gray was killed instantly & his wife & daughters seriously injured. The injuries suffered by the one daughter resulted in brain damage. There was some delay before police & an ambulance arrived. When they did, the applicant, his cousin & the driver (Richards) gave false information to police & ambulance officers in which it was said that the applicant had been driving. The applicant maintained this pretence in conversations with no fewer than 7 people at the scene of the accident & at the hospital. A blood sample taken from the applicant at the hospital provided a negative result. A blood sample taken from Richards was never analysed. The day after the accident, the applicant informed police that he had not been the driver & Richards confirmed to police that he was the driver.
Aged 21 at time of offence - eldest of 5 children - parents separated when applicant aged 14 - applicant bore substantial responsibility for raising siblings - applicant's various problems stemmed from poor parenting - prior offences - previous imprisonment.
Impermissible finding of aggravating circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to FT of 4m. |
|
415
|
MILENKOVIC, Vladimir - CCA, 26.9.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Milenkovic [2005] NSWCCA 382
Urgent application by the Crown against interlocutory judgment.
s.5F(3A) & s.5F(2)
Criminal Appeal Act 1912.
Respondent indicted upon a charge of armed robbery - trial has commenced - Crown sought to tender evidence of respondent's involvement in another armed robbery - trial judge refused to admit evidence.
Application for stay of proceedings.
Stay granted pending the appeal to be heard the following day. |
|
416
|
MILENKOVIC, Vladimir - CCA, 27.9.2005 -
158 A Crim R 4
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Milenkovic [2005] NSWCCA 379
Crown appeal against interlocutory judgment. See also
R v Milenkovic [2005] NSWCCA 382.
Whether evidence should be admitted as tendency and/or coincidence evidence.
Appeal dismissed, stay dissolved. |
|
417
|
MDB - CCA, 7.11.2005
Simpson, Adams & Johnson JJ
Citation: R v MDB [2005] NSWCCA 354
Conviction appeal.
Aggravated indecent assault.
2y 3m with a NPP of 1y 3m.
The 11 year old complainant & his mother were on friendly terms with the appellant & his family. The appellant took his 2 sons & the complainant on a camping trip. The Crown case was that after going to bed one evening, the appellant sexually interfered with the complainant by fondling his penis. The complainant made no protest at the time & the appellant eventually ceased the activity. The complainant did not immediately make complaint. About 6 months later he told 2 of his school friends who encouraged him to tell his mother. He did this at a time when plans were being made for another camping trip with the appellant's family in which the complainant did not wish to participate. The appellant denied the allegation.
Complaint evidence - admissibility of evidence -
Evidence Act credibility rule - evidence of prior consistent statement - circumstances leading to statement - directions on complaint and delay.
Appeal dismissed. |
|
418
|
MAISEY, Troy James - CCA, 11.10.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Maisey [2005] NSWCCA 347
Sentence appeal.
Robbery using corporal violence with infliction of GBH.
9y with a NPP of 5y 9m.
The applicant's sister had been in a relationship with the victim. She told the applicant that the victim had physically abused her by throwing her to the ground & kicking her in the ribs. She said she left the victim's unit but did not take her pair of Nike shoes with her. These had been given to her by the applicant as a Christmas present. After meeting at a hotel & consuming some drugs & alcohol, the applicant & his co-offender went to the unit where the victim lived. As soon as the victim opened the door, the applicant punched him so hard with a closed fist that the skin on his face was torn & the victim hit the floor. According to the victim, the applicant & the co-offender punched & kicked him all over his body. The victim tried to escape by jumping down from his balcony to the balcony immediately below. He did not land on that lower balcony & fell 2 storeys to the ground. He suffered a number of injuries, including serious back injuries.
Guilty plea at earliest opportunity - received 25% discount.
Whether judge erred in relying upon his own experience of effects of back injury & in failure to alert defence of his intended finding of victim's permanent back injury - procedural unfairness.
Appeal dismissed. |
|
419
|
CAMERON, Alexander Douglas - CCA, 10.11.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Cameron [2005] NSWCCA 357
Sentence appeal.
Count 1: misappropriation - 2y with a NPP of 18m, commencing on 2.9.2004;
Count 2:misappropriation - 2y with a NPP of 18m, commencing 2.3.2005;
Count 3: misappropriation - 2y with a NPP of 18m, commencing 2.9.2005.
These were 3 separate offences committed over a period of months, involving 3 separate victims. Each of the charges involved a contravention of s.165 of the
Crimes Act 1900 (NSW). The applicant was in charge of a real estate agency. The applicant received deposits from prospective purchasers of properties. He misappropriated these funds & used them for other commitments arising from his business activities.
Aged 26 at time of offences - guilty pleas entered at first available opportunity - offences committed before 1.2.2003 - no relevant criminal history.
White collar crime - significant objective seriousness - general deterrence an important element of sentencing - comparatively small amount paid by way of restitution - no compelling personal circumstances that would attract significant leniency.
Utilitarian value of guilty plea - irrelevance of strength of Crown case - whether Court should intervene - need to adjust NPP after partial accumulation of sentences to maintain statutory ratio.
Appeal allowed only in respect to count 3. Resentenced on that count to 2y with a NPP of 15m to commence on 2.9.2005. |
|
420
|
MALLARD - HCA, 15.11.2005 -
224 CLR 125
Citation: Mallard v The Queen [2005] HCA 68
On appeal from the SC of WA.
Murder.
After serving 8 years of his sentence of life imprisonment in strict security, applicant petitioned for clemency.
The A-G for WA referred the petition to the CCA of WA, which dismissed the appeal. The appeal to the HC raised questions as to the way in which the CCA of WA should proceed in determining a reference of such a petition & the evidence to which it may have regard in so doing.
Further evidence adduced on reference in possession of police before & during trial - evidence not disclosed to appellant - appellant petitioned for clemency - whether error in adopting approach that Court's jurisdiction limited consideration of evidence adduced at trial & relevance to further evidence introduced & relied upon in reference - whether error resulted in miscarriage of justice - whether appellant should be acquitted or retried.
Appeal allowed: retrial ordered. |
|
421
|
KANAAN, Michael - CCA, 17.11.2005 -
64 NSWLR 527;157 A Crim R 238
Hunt AJA, Buddin & Hoeben JJ
Citation: R v Kanaan [2005] NSWCCA 385
Conviction and sentence appeal.
2 x murder - life imprisonment on each count;
1 x malicious wounding with intent to do GBH - 25y imprisonment.
In each case, the sentence imposed was the maximum provided by law.
Appellant was charged with the murder of 2 men & with having maliciously wounded a 3rd man with intent to inflict GBH in an altercation on the footpath outside a hotel. The Crown case was that the appellant & other men stopped the motor vehicle in which they were travelling when they saw a fight between one of the deceased & the victim who was ultimately wounded & that the appellant left the vehicle & fired a gun directed at 3 men a number of times in quick succession & at close proximity. There was some evidence that he was involved in a scuffle with one of the deceased before firing the gun. One of the men accompanying the appellant was indemnified by the A-G in relation to his evidence against the appellant. The appellant's case was one of alibi. Both the Crown & appellant's counsel at trial declined the trial judge's offer to put manslaughter to the jury as an alternative verdict. The trial proceeded on the basis that whoever fired the gun had the relevant state of mind for murder.
On appeal, the appellant was represented by different counsel. It was submitted that the trial judge was bound to put manslaughter to the jury as an alternative verdict wherever there is a viable case of manslaughter, even when that course is opposed at trial.
Whether viable case of manslaughter available on the evidence - whether obligation to leave manslaughter to jury even when not raised by either party & even if a party or both parties object -
Gilbert v The Queen (2000) 201 CLR 414;
Gillard v The Queen (2003) 202 ALR 202 discussed - where Crown relies on conduct of accused as being inconsistent with innocence & as amounting to an implied admission of guilt - directions fashioned on
R v Lucas [1981] QB 720 at 724 &
Edwards v The Queen (1993) 178 CLR 193 ordinarily required - direction on alibi.
Appeal dismissed. |
|
422
|
HARMOUCHE, Albert - CCA, 21.11.2005 -
158 A Crim R 398
Sully, Hulme & Latham JJ
Citation: R v Harmouche [2005] NSWCCA 398
Crown appeal.
Supply cocaine.
2*y with a NPP of 1y 3m.
The respondent pleaded guilty to the above offence. The offence came to light as a result of a Strike Force investigation into the distribution & supply of prohibited drugs in the South Western suburbs of Sydney.
No weight given to the aggravating feature that the respondent was on conditional liberty at the time of the above offence - error in finding that 'between the commission of the offence and sentencing that the respondent had exhibited rehabilitation ... and had not committed any further offences'- whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y & 134d with a NPP of 2y & 134 d.
Following the resentencing of the respondent, Hulme J made the following comments:-
'73 Before I conclude these reasons there are three further matters to which I would refer. Firstly, as has been said before but, as this case demonstrates, needs to be said again, judges who fail to pass sentences properly reflecting the seriousness of offences as laid down by Parliament and the principles of sentencing as dictated both by that body and established by superior Courts do no favour to those such as the Respondent who must now have his life and rehabilitation interrupted yet again and be returned to custody. 74 Secondly, this case is yet another of those all too frequent cases where, in order to impose a proper sentence on the Respondent, this Court has had to choose between the unfairness of unequal treatment of co-offenders and the injustice to the community of acquiescing in a second manifestly inadequate sentence because the Director of Public Prosecutions, while appealing in the case of the Respondent elected, or was not sufficiently organised, to appeal in the case of a co-offender. As the Respondent and Sayadi were both arrested on the same day and sentenced by the same judge some 2 weeks apart it is inconceivable that the Office of the Director of Public Prosecutions was not aware of the relationship between them. In that situation it is impossible to see any rational explanation for the bringing of an appeal in one case and not in the other. 75 Thirdly, I wish to make it clear that the sentence I have proposed is one entered in the exercise of this Court's discretion, reflects a number of matters which should not have been allowed to occur and is appreciably less than should have been imposed at first instance'. |
|
423
|
KHALOUF, Ali - CCA, 18.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Khalouf [2005] NSWCCA 395
Conviction appeal.
Murder.
20y with a NPP of 13*y.
The only issue at trial was whether the appellant had acted under provocation. Appellant had previously been tried for the same offence & was found guilty. An appeal against that conviction was upheld & a new trial ordered. The instant appeal was against the conviction in that 2nd trial.
The appellant & the victim were lovers. They met at a hotel & had sex. The appellant then received a telephone call from his son. The victim complained that every time they went to the hotel, the appellant's family phoned him. She became increasingly aggressive & after using words that were inflammatory to the appellant, she performed an obscene sexual act in front of him while making derogatory comments about him. She emerged from the bathroom waving a knife at the appellant. After cutting his hand while taking the knife away from her, the appellant killed her by stabbing her repeatedly in the upper chest, throat & neck.
Whether jury were misdirected as to provocation under s.23(2)(b) & s.23(3)(a)
Crimes Act - whether there was a failure to direct the jury as to consciousness of guilt - the proper use of the evidence of appellant's accounts & any inconsistency therein.
Appeal dismissed. |
|
424
|
CAPAR, Kanan - CCA, 7.10.2005
McClellan CJ at CL, Grove & Hislop JJ
Citation: R v Capar [2005] NSWCCA 402
Sentence appeal.
1 x conspiracy to supply large commercial quantity heroin; 1 x conspiracy to supply commercial quantity cocaine; 1 x money laundering; 1 x possess firearm; + 4 matters on a Form 1 (hinder investigation of serious indictable offence; intimidate police officer in execution of duty; 2 x goods in custody).
Total sentence of 12y 9m with a NPP of 8y 4m.
Applicant pleaded guilty to the above offences. He was the principal of a very significant drug operation. He was sentenced along with his 3 brothers, who each played a part in the operation. The applicant was not addicted to drugs & was engaged in that business purely for profit. Evidence disclosed that he resorted to violence to enforce his will on his business associates.
Whether error in not allowing sufficient discount for guilty plea.
Appeal dismissed. |
|
425
|
EGC - CCA, 21.11.2005
Sully, Hulme & Latham JJ
Citation: R v EGC [2005] NSWCCA 392
Sentence appeal.
3 x sexual intercourse with person under age of 10; 2 x aggravated indecent assault of person under age of 16 under authority.
Total sentence of 7y with a NPP of 5y 3m.
The sexual intercourse offences & one of the aggravated indecent assaults were committed upon applicant's step-daughter who was aged between 7 & 10 at the time. The other aggravated indecent assault was committed upon applicant's step-son who was between the ages of 4 & 6 at the time.
Delay between commission of offences & sentencing - rehabilitation - loss of opportunity to complete Pre-Trial Diversion Programme - whether sentences excessive.
Appeal allowed in part: new total sentence of 6y with a NPP of 3y. |
|
426
|
MILAT, Ivan Robert Marko - NSW SC, Barr J, 27.10.2005 -
157 A Crim R 565
Citation: R v Milat [2005] NSWSC 920
Application for an order under s.474D
Crimes Act.
Criminal procedure - Inquiry - convictions - application for inquiry into convictions for murder & detain for advantage - applicant sought case to be dealt with as appeal - whether doubt or question as to guilt - Inquiry not intended to provide convicted person with another avenue of appeal after usual avenues exhausted - matters in current application dealt with at trial & on appeal - no doubt or question of guilt arose.
Application refused. |
|
427
|
ROBERTS, Troy John - CCA, 22.11.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Roberts [2005] NSWCCA 401
Sentence appeal.
Aggravated BE&S.
4y with a NPP of 2*y.
Applicant & 2 co-offenders broke into the Harvey Norman Bathurst Warehouse at Kelso, each wearing a balaclava & each carrying a two-way radio. One co-offender was carrying a pinch bar. The 3 men placed a number of electrical items on trolleys, however, unknown to them, their entry into the warehouse had triggered an alarm system & a security guard was sent to investigate. When the security guard entered the warehouse, the offenders left, leaving behind the electrical items. The security guard chased after them. During the chase, he fired 2 shots, one of which hit one co-offender, who was found to be in possession of a two-way radio tuned to channel 28. The applicant & the other co-offender made their getaway in a car driven by yet another co-offender. On their way to Sydney, they were stopped by police & were arrested. The car in which they were travelling contained the pinch bar wrapped in a plastic bag, a pair of binoculars, a radio scanner & 5 two-way radios, 4 of them tuned to channel 28. The applicant has at all times maintained his innocence. The sentencing judge found that the offence was 'part of a planned criminal activity' but did not consider that the applicant was involved in the planning to the same extent as 2 of the co-offenders. He considered the applicant's criminality equal to the remaining co-offender who received a sentence of 3y 3m with a NPP of 2y. This sentence was imposed after allowing a 15% discount for a guilty plea. The sentencing judge made it clear that the original sentence, before discount was applied, was for a period of 4y.
Parity - whether sentence manifestly excessive.
Appeal dismissed. |
|
428
|
CDR - CCA, 24.11.2005
Simpson, Adams & Hoeben JJ
Citation: CDR v R [2005] NSWCCA 404
Conviction appeal.
Robbery; 2 x assault police officer; 2 x resist police officer; + 2 offences to which guilty pleas had been entered earlier (supply heroin; ongoing supply of heroin).
Total sentence of 4y 9m with a NPP of 2y 9m.
The Crown case was that appellant stole a woman's handbag as she was walking along a street. He admitted stealing the handbag but without the necessary force to sustain a conviction for robbery. He claimed he did not touch the woman but simply removed her handbag which was protruding out the back of her arm. The woman's evidence was that her arm had been grabbed, her shoulder pulled down very hard & that she had bruising on the upper part of her arm for approx 2 weeks. In his haste to run away, appellant ran into the rear of a car. The driver of that vehicle gave evidence supporting the woman. Police were in an unmarked police vehicle behind that car. They activated the vehicle's siren & chased after the appellant. The appellant continued to flee until he was cornered in a dead-end street. The female police officer (Const Davis), who had already identified herself to the appellant, was the first to alight from the car & approach the appellant. As she attempted to pull one of his arms behind his back to handcuff him, he punched her on the side of her head, pushed her against a wall, punched her to the head again several times, as well as to the chest. The other police officer (Const Siva) saw the appellant punching Const Davis & yelled out for him to get away from her. The appellant was then handcuffed, placed under arrest & walked to the scene of the offence. It was the appellant's case that he did not strike Const Davis at any time & that he did not struggle or otherwise resist being arrested by her. As the appellant was being taken back to the scene of the offence, he was continuously struggling. Const Siva put a call in for a caged police truck. When it arrived, he searched the appellant at the rear of the truck & the appellant kicked back with his leg on a number of occasions, striking Const Siva's thighs & shins. The appellant's evidence was that he had been co-operative in returning to the scene of the offence & had waited quietly for the arrival of the caged truck. He claimed that as he was being put into the back of the truck, on 3 occasions his head was deliberately pushed by Const Siva against the top of the door of the truck. He said that it was this that caused him to kick out at Const Siva. There was eyewitness evidence that this was not true.
Whether guilt or innocence alternatives constituted error when put to jury in summing-up - points not take at trial - whether failure by Crown to particularise individual acts constituting offence amounted to error.
Appeal dismissed. |
|
429
|
MS2; PM; JS - CCA, 24.11.2005 -
158 A Crim R 93
Simpson, Adams & Hoeben JJ
Citation: MS2 and Ors v R [2005] NSWCCA 397
Sentence appeal.
PM (aged 15y 10m): Aggravated robbery causing GBH (s.96
Crimes Act); take & drive conveyance without consent - total sentence of 6y with a NPP of 4y.
MS2 (aged 15y 7m) & JS (aged 14y 5m): Aggravated robbery causing GBH (s.96
Crimes Act); being carried in a conveyance without the consent of the owner - each received a total sentence of 5y with a NPP of 3y 4m.
The sentencing judge ordered that in each case the whole of the NPP be served in a juvenile justice centre.
Applicants & 2 other offenders went to Warwick Farm railway station & lay in wait for a suitable victim. PM had armed himself with a metal steering-wheel lock. At about 6.40 in the evening, the victim, aged 50, alighted from a train on his way home from work, carrying a brief case. He reached his vehicle & was unlocking the driver's door, when PM ran out & struck the victim to the head with the metal steering wheel lock, causing the victim to fall unconscious to the ground. As the victim lay unconscious on the ground, JS kicked him in the head. Another co-offender (MS) stole the victim's brief case containing personal documents & a mobile phone. MS2, PM & JS then drove from the car-park in the victim's car, leaving the victim in an unconscious state, bleeding profusely from a number of wounds to the head & face. His false teeth had been knocked out & he was lying face down in a pool of his own blood. The victim's legs were seen protruding from behind a parked car by a man parking his own vehicle. The man tried to provide assistance to the victim & immediately called for medical help. The victim sustained very serious injuries, including a severe traumatic brain injury that was likely to result in long-term high-level cognitive impairment.
Guilty pleas - young offenders - each came from a good family background - no priors - offences inexplicable.
Effect of immaturity & youth when serious offence involved - weight to be given to planning of offence - parity.
Appeals allowed (Simpson J dissenting). Applicants resentenced as follows:
MS2: sentence for s.96 offence allowed, resulting in a new total sentence of 4y 5m with a NPP of 2y 5m.
PM: sentence for s.96 offence reduced, resulting in a new total sentence of 5*y with a NPP of 3y.
JS: sentence for s.96 offence reduced, resulting in a new total sentence of 4y 5m with a NPP of 2y 5m. |
|
430
|
MASCARO-VARILLAS, Fernando Eduardo - CCA, 22.11.2005 -
157 A Crim R 355
Simpson & Adams JJ, Davidson AJ
Citation: R v Mascaro-Varillas [2005] NSWCCA 399
Application to withdraw plea of guilty.
Knowingly concerned in the importation of a commercial quantity of cocaine.
15y with a NPP of 11y.
Applicant appealed against his sentence. The appeal was allowed in part & the NPP was reduced to 10y: see
R v Mascaro-Varillas [2002] NSWCCA 524.
A German national by the name of Aussem arrived in Sydney on a flight from Buenos Aires, having travelled from Chile. Numerous packages containing cocaine were strapped to his body. Aussem agreed to assist the Australian Federal Police in a controlled delivery. Aussem made & received a number of phone calls to & from applicant & another man. Applicant was arrested in the USA & extradicted to Australia. He pleaded guilty in the LC. The amount of cocaine the subject of the charge was 2.9691 kgs. There was a dispute as to the precise role played by the applicant.
Applicant claimed that facts disclosed no offence committed - claim of overbearing - claim of abuse of process.
Claims rejected - leave refused.. |
|
431
|
LAH - CCA, 24.11.2005
Sully, Hulme & Latham JJ
Citation: LAH v R [2005] NSWCCA 400
Conviction and sentence appeal.
Sexual intercourse with person knowing she had an intellectual disability with intention to take advantage of her vulnerability (s.66F(3)
Crimes Act 1900 (NSW)).
5y with a NPP of 3y.
The complainant was the appellant's 57 year old intellectually disabled sister.
Judge alone trial - error in directions on contradictions in complainant's evidence - whether conviction unreasonable - whether error in application of s.21A(2)
Crimes (Sentencing Procedure) Act 1999 - whether sentence manifestly excessive.
Conviction appeal allowed: conviction & sentence quashed, verdict of acquittal entered. |
|
432
|
TAOUK, Simon (Eid) - CCA, 7.6.2005
154 A Crim R 69
James, Hislop & Hall JJ
Citation: R v Taouk [2005] NSWCCA 155
Conviction appeal.
2 x murder.
Total of 22y with a NPP of 15y.
Appellant was convicted of the murder of his wife & his brother-in-law. Their bodies were found in the house in which the appellant lived with his family. Both had been shot. There were no witnesses to the shootings. After the shootings, the appellant went to a police station where he told a police officer that he wanted to report a disturbance at his house. When the police officer asked what had happened, appellant admitted he had shot his brother-in-law. Shortly thereafter, the police officer made notes of the conversation in his notebook. These notes were never shown to the appellant. In a later ERISP with other police officers, appellant denied that he had said that he shot his brother-in-law. At trial, the trial judge admitted the evidence of the appellant's admissions to the first police officer. The Crown case against the appellant was circumstantial, supported by the evidence of the admissions.
Whether error in admitting disputed evidence of admissions that were not electronically recorded - whether verdicts unreasonable.
Appeal dismissed. |
|
433
|
WICKS, Leon - CCA, 25.10.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Wicks [2005] NSWCCA 409
Crown appeal.
4 x sexual intercourse with person under 16 outside Australia (s.50BA(1)
Crimes Act 1914, Cth); 1 x induce person under 16 to commit act of indecency outside Australia (s.50BD(1)
Crimes Act 1914, Cth); 1 x induce person under age of 16 to have sexual intercourse with another person outside Australia (s.50BB(1)
Crimes Act 1914, Cth).
Total sentence of 5y with a NPP of 3y.
The offences occurred in Thailand during a period of a little over 2 weeks. The respondent pleaded guilty. His activities were detected following a multi-national police initiative aimed at the detection of persons involved in the distribution & possession of child pornography, primarily accessed through the internet. The respondent was identified as having accessed & downloaded child pornography from global internet sites & as having visited a known internet site connected with the promotion of child sex tourism. Following a search of the respondent's residential premises during which a large amount of pornographic material was seized, the respondent was taken to the Cobar Police Station where he made a number of admissions relating to sexual activities with male persons while he was holidaying in Thailand. He admitted engaging the services of boys from bars & prostitution-related venues in Bangkok & Pataya. He admitted paying boys to engage in various sexual activities with him & paying boys to engage in sexual activities with one another while he video-recorded the activity.
Whether sentencing judge failed to provide an adequate standard & level of punishment - whether sentence failed to adequately reflect the criminality of respondent's conduct, the elements of deterrence & the aggravating features of his offending.
Appeal allowed: new total sentence of 7y with a NPP of 5y. |
|
434
|
NEWMAN, Craig John - CCA, 4.11.2005
Spigelman CJ, Sully & Hulme JJ
Citation: R v Newman [2005] NSWCCA 388
Sentence appeal.
2 x BE&S.
Total sentence of 5y with a NPP of 4y.
The 1st offence occurred when the applicant forced entry to a residence by smashing a rear door. He stole a video-cassette recorder, a CD stereo system, a wallet & $400 in cash. The total value of the property stolen was $1,980. The damage to the rear door cost $500. The 2nd offence occurred 10 months later. Applicant gained entry to a residence by placing a chair under a window & lifting the window off its track. He stole jewellery, a laptop computer, cheques, a chequebook & a car key. The total value of items stolen in the commission of this offence was $8,563.
Appellant was already serving a sentence for other offences at the time of sentencing for the above offences. The effect of the sentences imposed on the above offences extended the applicant's NPP by 1y 7m.
Special circumstances - NPP less than 75% of total sentence - whether error - whether sentence excessive.
Appeal dismissed. |
|
435
|
MAK; MSK; MMK - CCA, 4.11.2005
McClellan CJ at CL, Grove & Hall JJ
Citation: R v MAK; R v MSK; R v MMK [2005] NSWCCA 369
Sentence appeals.
MSK: 9 x aggravated sexual assault in company - 22y with a NPP of 16*y.
MAK: 9 x aggravated sexual assault in company - 16y with a NPP of 12y.
MMK: 9 x aggravated sexual assault in company - 22y with a NPP of 13y, to be served in a juvenile detention centre.
The offences involved 2 complainants aged 17 & 16, who were gang raped over a period of some hours, during which threats were made. The complainants were later dumped in Campsie where they immediately raised complaint, after which police arrived & they were taken to hospital.
For details of offences, see
R v MSK; R v MAK; R v MRK; R v MMK [2004] NSWSC 319 revised - 30/4/2004.
New evidence purporting to mitigate by reason of mental condition (MSK) - evidence received but submissions rejected - whether error in extent of accumulation (MSK) - incongruity of fixed terms which were longer than NPP for offence personally committed (MAK) - whether error in total imposition (MAK) - assessment of crimes as in 'worst category'- whether error in so finding - parity between juvenile (MMK) & MSK - identical head sentences but markedly less NPP set for juvenile - youth of offender MMK - whether sentences manifestly excessive.
MAK: Leave to appeal refused.
MSK and MMK: Appeals dismissed. |
|
436
|
MASON, Deon Rodney - CCA, 17.10.2005
McClellan CJ at CL, Adams & Johnson JJ
Citation: R v Mason [2005] NSWCCA 403
Sentence appeal.
Aggravated robbery with offensive weapon with wounding (in company); + Form 1 (aggravated armed robbery, in company, wounding).
Total sentence of 8*y with a NPP of 6y.
The principal count on the indictment involved the applicant threatening the 61 year old victim (Mr Nam) with a knife when Mr Nam came to investigate noises coming from a taxi after he heard loud banging & someone calling for help. Mr Nam was forced to the ground & cut with a knife from his right ear to his cheek, causing a laceration of approx 10-12 centimetres in length & one centimetre deep. There was near complete dissection of his right lower earlobe. The pleas for help that Mr Nam had heard were made by Mr Liu, a taxi driver, who had earlier been robbed by the applicant & his co-offenders (1st count on the Form 1). Mr Liu had been terrorised & forced into the boot of his taxi, whilst the applicant threatened him with a knife. The 2nd charge on the Form 1 related to the robbery of a 17 year old male victim as he was walking home shortly after alighting from a bus. The applicant threatened to stab him if he did not hand over his mobile phone. One of the co-offenders then struck the young victim over the head with a beer bottle.
Guilty plea - 15% discount - aged 17 at time of offences - Aboriginal - traumatic childhood - father a violent alcoholic - applicant moved from refuge to refuge, often with mother & 4 sisters - spent most of childhood at Mission Aboriginal Reserve - subsequent exposure to drug influences, criminality, alcoholism, violence - struggled in primary school - failed to complete HSC due to severe behavioural problems & conduct disorder - had never been employed - has a girlfriend & a 3 year old daughter - remorse/contrition - history of re-offending - previous imprisonment.
Whether error in assessing relevance of applicant's objective case - guilty plea - whether failure to give proper weight.
Appeal dismissed. |
|
437
|
MALLAH, Zaky - NSW SC, Wood CJ at CL, 11.2.2005
154 A Crim R 150
Citation: R v Mallah [2005] NSWSC 358
Judgment on Notice of Motion to disallow tender of evidence.
Accused was charged with terrorist offences. The Crown case included evidence from an undercover police officer to whom the accused allegedly conveyed threats directed towards others. Objection was taken to the evidence of the undercover police officer, including recordings under warrant & items handed to the officer, on the basis that the conduct of the police officer was unlawful & not covered by a controlled operation certificate & that he improperly made misrepresentations to the accused, leading to handing over of a videotape.
Terrorist offences - preliminary hearing - pre-trial issues - Notice of Motion to disallow tender of evidence - ss.11.2, 11.4, 101.6
Crimes Act 1914 (Cth) - ss.90, 138
Evidence Act 1995 (Cth).
No evidence that police officer intentionally induced accused - accused had formulated plan prior to meeting police officer - misrepresentations by police officer were known to be false. |
|
438
|
MOSEGAARD, Jens Grandt - CCA, 6.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Mosegaard [2005] NSWCCA 361
Conviction and sentence appeal.
Sexual intercourse without consent and maliciously inflict ABH; sexual intercourse without consent.
Total sentence of 12y with a NPP of 9y.
The complainant shared a house with 3 others, including the appellant. Complainant worked at a nightclub as an exotic dancer. Prior to the above offences being committed upon her, the complainant had ingested drugs & alcohol.
Whether verdict unreasonable - absence at trial of expert evidence of likely effects of alcohol & drugs ingested by complainant in hours prior to offences - whether injuries apparent in photographs of complainant could have come about from earlier sexual & dance activity - whether miscarriage of justice - whether sentence excessive.
Appeal dismissed. |
|
439
|
ITAOUI, Fida - CCA, 2.12.2005 -
158 A Crim R 454
Studdert, Whealy & Howie JJ
Citation: Itaoui v R [2005] NSWCCA 415
Sentence appeal.
1 x larceny by a servant.
34m with a NPP of 15m.
Applicant pleaded guilty to the above offence. She commenced employment with Thomas Cook Travel in May 1996. Her criminal activity first came to her employer's notice in October 2000, whereupon her employment was terminated. Over a period of about 15 months the applicant had stolen $135,199.40 from her employer. She was not charged with any offence until 9.9.2002. She was arraigned before the DC on 24.4.2003 & was to stand trial on 7.9.2004. The trial was estimated to run for 10 weeks but on the first day of trial she pleaded guilty. In 1997, the applicant was the victim of an armed robbery in the Thomas Cook office at Sydney Airport. Her brother gave evidence of the effect this had upon her. Evidence was tendered suggesting she suffered from Post Traumatic Stress Disorder as a result of the hold-up. She was off work for 6 months because of stress & depression. Her brother believed she had not fully recovered by the time she returned to work. The applicant had no criminal record prior to the commission of the above offence, however, since her termination with Thomas Cook, she had been charged & convicted of offences arising from her subsequent employment with NRMA. In June 2002 she was placed on a bond in respect of 3 offences arising from fraudulently altering her payslips to her mother's name in order to assist her mother obtain a personal loan. The sentencing judge indicated that these matters reflected adversely on the applicant's prospects of rehabilitation.
Born on 3.9.1973 in Lebanon - family migrated to Australia in 1984 - close-knit family - engaged to same man for 9 years - obtained a law degree from Sydney University but has never practiced law - obtained a Bachelor in Business degree from the University of Western Sydney.
Delay in charging applicant - health issues - psychiatric condition at time of offending - erroneous pronouncement of sentence - whether any other sentence warranted.
Appeal allowed on technicality: resentenced to 34m with a NPP of 15m. |
|
440
|
CUNNINGHAM, Brenton - CCA, 30.11.2005
Studdert, Whealy & Howie JJ
Citation: Cunningham v R [2005] NSWCCA 416
Sentence appeal.
2 x supply cannabis leaf; 1 x sell prohibited pistol to person not authorised to purchase it; 1 x possess prohibited weapon without authority; + offences on a Form 1.
Total sentence of 6y with a NPP of 4y.
Sentences were imposed following pleas of guilty entered in the LC & adhered to in the DC.
The offences were detected during an undercover police operation targeting the applicant's activities.
Duress - objective seriousness of firearms offences - directions - insufficient discount for guilty plea - failure to make all sentences concurrent - failure to take account of assistance to authorities - consideration of applicant's health - whether sentences manifestly excessive.
Appeal dismissed. |
|
441
|
TIDONA, Aurelio - CCA, 2.12.2005
Simpson, Adams & Hoeben JJ
Citation: Tidona v R [2005] NSWCCA 410
Sentence appeal.
Aggravated indecent assault upon person under the age of 16 years (s.61M(1)
Crimes Act 1900) - guilty plea on 1st day of trial, sentenced to 5y 2m with a NPP of 3y 11m, commencing 5.9.2003.
Some months prior to the above offence, applicant had been convicted of an offence of commit act of indecency with person under 16 years (s.61N(1)
Crimes Act 1900) & received a 1y GBB.
The commission of the s.61M(1) offence constituted a breach of the GBB. For that breach, applicant was sentenced to a FT of 12m, commencing 5.9.2003.
Applicant sought leave to appeal from both sentences.
Applicant was born in 1935. His wife died in early 2002. On 15.11.2002, applicant asked his 13 year old neighbour to do some housework for him. When she arrived at his house, he sat near her & offered her $250 to perform sexual acts with him. He reached over & grabbed the victim's right wrist & squeezed it. The victim pulled away & left the house. The applicant called out to her to come back the next day & not to tell anyone. The victim told her mother & the incident was reported. It was that matter for which applicant received the GBB.
The victim of the s.61M(1) offence was aged 12. She too had been asked to do some housework for the applicant. She had cleaned part of the house & was in the 3rd bedroom when she heard a zip. She ignored it for a while, then turned around & saw the applicant with his underpants & trousers around his knees & his penis exposed. The applicant then asked the victim if she wanted to have sex with him & she replied in the negative. The applicant pulled up his trousers, grabbed the victim by her upper arm & dragged her to the bed. They struggled & after a short time there was a noise in the house & the applicant went to investigate. The victim then ran out of the house. The applicant called after her not to tell anyone. Some 10 days later, the victim told a school friend & they then told the school principal. Police were notified & the applicant was arrested 2 days later.
Use of standard NPP when plea of guilty - error in using standard NPP as starting point for calculation of sentence - error in taking into account prior convictions as an aggravating factor - whether sentence manifestly excessive.
Appeal allowed: resentenced to 5y 2m with a NPP of 3y. |
|
442
|
WILSON, Michael John - CCA, 30.11.2005
Studdert, Whealy & Howie JJ
Citation: R v Wilson [2005] NSWCCA 414
Crown appeal.
1 x use copy of false instrument.
3y suspended sentence.
The respondent was a professional valuer. He valued a property at Lidcombe & attached a false document certifying that he had professional indemnity insurance when, in fact, his insurance had lapsed. The document was relied upon by the lender, who lost approximately $250,000 because the borrower & owner of the property was a fictitious person. The sentencing judge held that the respondent was not part of the wider fraud involving the fictitious owner & there was no finding that he had knowledge of the fraud. It was important to the approval of the loan that the respondent held professional indemnity insurance cover. There was evidence at trial that the lender would not have advanced the loan had it been known that the certificate given by the respondent was false.
Aged 54 - in a stable
de facto relationship - suffered ill-health - chronic pancreatitis - no direct financial benefit accruing to respondent - at time of above offence, respondent was on conditional bail awaiting sentence for 2 false statement offences in respect of which he was later granted a s.558 recognizance - no previous imprisonment.
Whether error in determining sentence should be suspended before determining appropriate length of sentence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with a NPP of 12m, to be served by way of PD. |
|
443
|
ABDALLAH, Mohamed - CCA, 16.11.2005 -
157 A Crim R 219
Simpson, Johnson & Rothman JJ
Citation: R v Abdallah [2005] NSWCCA 365
Conviction and sentence appeal.
Maliciously shoot at a person with intent to do grievous bodily harm - 8y with NPP of 5*y;
Fire firearm in a public place - 3*y FT;
Fire firearm in a public place - 1 *y FT.
Total sentence of 8y with a NPP of 5*y.
The conviction appeal related only to the charge of maliciously shoot at a person with intent to do GBH.
Applicant, his younger brother & some friends were at a club when a disturbance occurred on the dance floor. Several security guards escorted the applicant's brother & at least one other friend from the premises. A fight then ensued. The applicant's brother removed his shirt & a gun fell to the floor. The applicant retrieved the gun & hid it in his clothing. When a security guard became involved in a fight with the applicant's brother, the applicant fired the gun into an external awning. He then fired a 2nd shot that hit the security guard in the ankle. A 3rd shot was fired from outside the premises towards the club. The applicant left the scene with others in a taxi. The incident was recorded on CCTV.
Aged 20 at time of offences - special circumstances found - no priors.
Expert evidence - videotape with time-counter - still photographs taken from videotape as evidence - whether verdict unreasonable - whether miscarriage of justice resulted from failure to direct jury - indispensable facts of Crown case - meaning of 'shoot at'- evidence referred to in summing up - obligation of trial judge - subjective circumstances - contrition/remorse - criminality - youth - guilty pleas - pre-trial custody - whether sentences excessive.
Conviction appeal dismissed.
Sentence appeal allowed insofar as sentences restructured to take into account pre-sentence custody. |
|
444
|
MWJ - HCA, 7.12.2005 -
80 ALJR 329
Citation: MWJ v The Queen [2005] HCA 74
On appeal from the SC of South Australia.
Judge alone trial - appellant convicted of 3 sexual offences against a person under the age of 17 years - supposed inconsistencies between evidence of complainant & her mother concerning complaints that complainant made to her mother - whether manner in which trial judge dealt with supposed inconsistencies involved error.
Rule in
Browne v Dunn (1893) 6 R 67 - application of rule to an accused in a criminal trial - supposed inconsistencies between evidence of complainant & her mother not put to complainant in cross-examination - whether complainant should have been re-called - consequences for trial judge's decision-making.
Appeal dismissed. |
|
445
|
DIAB, John - CCA, 28.9.2005
McClellan CJ at CL, Grove J, Smart AJ
Citation: R v Diab [2005] NSWCCA 341
Sentence appeal.
B&E with intent to steal; enter building with intent to steal; larceny; Form 1 (larceny).
Total sentence of 3y 7m with a NPP of 2y 7m.
Applicant entered commercial premises by removing 3 ceiling panels & jemmying a door. A female worker heard noises & when she confronted the applicant he claimed to be a cleaner going to get a vacuum cleaner. He walked away & left the premises. Applicant also entered commercial premises & stole 4 laptop computers. Applicant forced the front door of other commercial premises with a long-bladed screwdriver & then unsuccessfully attempted to force an interior door. The applicant was identified by DNA & CCTV footage.
Aged 32 at time of offences - pathological gambling problem - recent offending motivated by need for money - remorse/contrition - some prospects of rehabilitation - caring for ill mother & deaf father - on parole at time of 1st offence - multiple priors - previous imprisonment.
Errors in application of s.21A
Crimes (Sentencing Procedure) Act - insufficient allowance for special circumstances - whether sentence excessive.
Appeal dismissed. |
|
446
|
IESE, Dors (Dawers) - CCA, 6.12.2005
Grove, Studdert & Whealy JJ
Citation: Iese v R [2005] NSWCCA 418
Sentence appeal.
1 x robbery; 1 x attempt aggravated robbery: + Form 1 (1 x aggravated robbery with corporal violence).
Total sentence of 2*y with a NPP of 15m.
The offences on the indictment arose out of a single incident. The applicant accosted a young man who had alighted from a train at Berala Station & was waiting for his father. The victim was robbed of his mobile phone. Credit cards were taken from him. He was then escorted by the applicant & 2 others to a nearby ATM. On the way there, the victim's silver neck chain was removed. Although he was not armed, the applicant threatened to stab the victim if he failed to reveal his PIN number. Attempts to obtain money from the ATM failed. Shortly thereafter, the victim managed to escape. The Form 1 offence was committed 6 months later when the applicant was on bail. It also involved the robbery of a mobile phone at a railway station, during which the applicant punched the victim, who was known to him.
Error in taking into account as aggravating factor that count 1 offence committed in company - delay between commission of offences & sentencing - failure to have adequate regard to applicant's intellectual disability.
Appeal dismissed. |
|
447
|
|
|
448
|
SKONDIN, Mark Shane - CCA, 8.12.2005
Studdert, Whealy & Howie JJ
Citation: Skondin v R [2005] NSWCCA 417
Conviction appeal.
Malicious wounding.
3y FT.
The offence occurred at night in Arthur Park, Kings Cross. The victim was stabbed & sustained multiple injuries involving a kidney, his spleen & his liver. Both sides of the victim's stomach were affected, as well as both sides of his colon & his diaphragm. The victim identified the appellant as the attacker & the Crown also relied upon a DVD surveillance recording movement at the doorway of a newsagency in which recording the victim asserted that a person who appeared was the appellant. According to the victim, he entered that newsagency after meeting the appellant in the street shortly before he was stabbed. The appellant gave evidence at trial to the effect that he knew the victim but had not stabbed him. He denied being in Arthur Park on the date in question. The issue at trial was whether or not the appellant was the attacker. The victim's companion did not identify the appellant as the attacker.
Failure to request or direct the calling of a witness - error in refusing to permit evidence of alibi to be called - fresh evidence - whether verdict unreasonable - intervention of trial judge - restriction of cross-examination - whether trial miscarried.
Appeal allowed: verdict of guilty quashed absolutely; no new trial ordered. |
|
449
|
RN - CCA, 2.12.2005
Grove, Sully & Howie JJ
Citation: R v RN [2005] NSWCCA 413
s.5F appeal by the Crown against a ruling upon an evidentiary issue in a current trial in the DC.
Respondent is standing trial on 12 counts alleging serious sexual offences against his stepdaughter. As part of its case at trial, the Crown proposed to lead evidence from the complainant's mother. Before a jury was empanelled, the trial judge was told about this proposed Crown evidence. Counsel for the respondent took objection on the basis that there was a real prospect of concoction between the complainant & her mother. A hearing on the
voir dire was conducted. Brief evidence was given by both the complainant & her mother & various statements were tendered. At the conclusion of submissions by the Crown & the respondent's counsel, the trial judge reserved his decision. The reserved decision was subsequently handed down, wherein the trial judge excluded the particular evidence of the complainant's mother.
Admissibility of evidence - coincidence evidence - probative value - prejudicial effect - failure to given adequate reasons for determination.
Crown appeal allowed: challenged ruling set aside. |
|
450
|
KRSTIC, Dusan - CCA, 10.11.2005
Sully, Hulme & Latham JJ
Citation: R v Krstic [2005] NSWCCA 391
Sentence appeal.
1 x possess prohibited firearm (pistol); goods in custody; possess ammunition; possess steroids; possess methylamphetamine.
Total of 2y 8m with a NPP of 2y; + a fine of $50 on each of possess steroids & possess methylamphetamine.
Police observed applicant driving from his home to the Wollongong Police Station, where he was required to report, pursuant to conditions imposed by the Department of Immigration. The applicant was arrested as he entered the foyer of the police station. His vehicle was searched & police found a Colt .45 calibre self-loading hand gun, with 7 bullets loaded in the magazine. They also found a Motorola portable radio that had been stolen during a break-in at the Helensburgh Fire Station. Later that day, police searched applicant's residential address & found a number of items, including a firearm magazine containing a .45 calibre bullet, one Winchester box containing twelve .45 calibre bullets, one 20ml bottle of stanazol, one 10ml bottle of stanazol, other bottles containing a prescribed restricted substance (steroids) & 4 small yellow tablets (methylamphetamine). The applicant was interviewed by police & declined to make any comment regarding his knowledge of the firearm. At the time, the applicant was on conditional release from the Villawood Detention Centre, having entered Australia illegally. Following his arrest, bail was refused.
Whether error in assessment of objective gravity of firearm offence - failure to find special circumstances.
Appeal dismissed. |
|
451
|
MURPHY, Michelle Leanne - CCA, 2.12.2005 -
158 A Crim R 375
Studdert, Whealy & Howie JJ
Citation: Murphy v R [2005] NSWCCA 412
Sentence appeal.
1 x conspire to commit armed robbery with offensive weapon.
4y 3m with a NPP of 3y.
The Crown case was based upon intercepted telephone calls between applicant, Wayne Davis (applicant's
de facto) & Peter Wilson, during which plans were made to commit a robbery of a Chubb security vehicle. Wilson was the principal organiser. He had access to information regarding Chubb movements, had access to the ATM's, had firearms in his possession & had initiated most of the telephone calls. Davis was Wilson's right-hand man, responsible for hiring people & advising on logistics to carry out the robbery. He was also in attendance at the proposed scenes of armed robbery & had undertaken surveillance in company with the applicant. The applicant's role was limited & was less than that of Davis. However, she was aware of most of the arrangements & Wilson was quite happy to deal with her when Davis was not available. She was present with Davis when he undertook surveillance of the intended locations & she drove him on a number of occasions on errands associated with the conspiracy. The Crown accepted that there was no evidence that the applicant was going to personally or directly participate in any robbery. Wilson was sentenced to 5y 5m with a NPP of 4y. Davis was sentenced to 4*y with a NPP of 3y.
Aged 37 at time of sentence - early guilty plea - gave birth to 1st child 6 weeks prior to sentencing - sexually assaulted twice in the past - victim of a home invasion - suffered from post-traumatic stress disorder - considerable criminal record - previous imprisonment.
Parity - sense of grievance - error in taking into account prior criminal history - whether sentence excessive.
Appeal allowed: resentenced to 3*y with a NPP of 2y 3m. |
|
452
|
GIANG, Son - CCA, 10.11.2005
Sully, Hulme & Latham JJ
Citation: R v Giang [2005] NSWCCA 387
Sentence appeal.
Ongoing supply of heroin; + Form 1 (goods in custody; possess heroin).
3y 3m with a NPP of 1y 9m.
On each of 4 occasions, applicant sold to an undercover police officer a small foil package or balloon containing heroin in return for $50. The weight of the heroin supplied varied between 0.14 & 0.2 grams.
Aged almost 23 at time of offending - unco-operative with authorities - lied extensively during interview with police - involved in selling heroin to fund own addiction - minor criminal record - had held no gainful employment - had been involved with limited study - caring & supportive family - since incarceration had been drug-free for 7 months - attended anger management, alcohol & other courses in prison.
Parity - whether sentence manifestly excessive.
Appeal dismissed. |
|
453
|
MOORE, Christopher - CCA, 2.12.2005
Simpson, Adams & Hoeben JJ
Citation: Moore v R [2005] NSWCCA 407
Sentence appeal.
1 x robbery with corporal violence; 1 x armed robbery (with steak knife).
Total sentence of 25m with a NPP of 14m.
A telephone order for a home delivery was received at Dominos Pizza in Queanbeyan at about 6pm. At about 6:30pm, the young pizza delivery man attended the nominated address. At the time, he was carrying approx $120 in cash. When he got out of his car, he was met by the applicant at the bottom of the driveway. As the victim turned towards the front of his car to illuminate a receipt in the headlights, the applicant grabbed him around the neck from behind & wrestled him to the ground. The victim fought back, whereupon the applicant said words to the effect, 'Don't struggle I've got a knife where's the money'. The victim then handed over the $120.
Applicant & 2 males got into a taxi & directed the taxi driver to an address in Queanbeyan. When the taxi came to a stop at the nominated address, the applicant placed his left arm around the victim's throat & pulled his body back in the seat. He then produced a steak knife & held it in front of the victim's face. The applicant & one of the males, who was sitting in the front passenger seat, demanded money from the taxi driver. The applicant & the 2 males took the victim's wallet & the bag containing his receipts for the night, then disappeared into nearby bushland. Some weeks later, applicant phoned the Queanbeyan Police Station & admitted his involvement in both offences.
Applicant received 35% discount for surrendering himself to police.
Aged 18 years 3 months at time of offences - mother an alcoholic - applicant & his brother raised by grandmother since infancy - father a heroin addict & had spent long periods in gaol for drug offences - applicant's first contact with father was at age 17 - effect of that visit was to turn a formerly law-abiding young man into a person who became addicted to amphetamines & cannabis - no priors.
Whether error in treating offences as aggravated on basis of emotional harm caused to victims - whether error in taking into account as aggravating factor that offence committed in company - failure to have proper regard to circumstances of applicant's drug addiction/rehabilitation - error in adopting mathematical approach to sentencing exercise - failure to consider whether sentences should have been suspended.
Appeal dismissed. |
|
454
|
JACKSON, Ian - CCA, 30.11.2005
Spigelman CJ, Sully & Hulme JJ
Citation: Jackson v R [2005] NSWCCA 411
Conviction appeal.
2 x sexual intercourse without consent; 1 x indecent assault.
No details of sentence stated.
The appeal followed a retrial.
Each of the 2 complainants accused the appellant of sexual misconduct. Each had sought the services of the appellant in his capacity as an alternative healer.
The appellant's case essentially rested upon the cross-examination of each complainant. Much of the defence closing address concentrated upon highlighting discrepancies & inconsistencies in the complainants' evidence, with special emphasis on the evidence of each complainant at the 1st trial compared with that given at the re-trial.
Misdirections on coincidence evidence - failure to properly direct on issue of consent - whether miscarriage.
Appeal dismissed. |
|
455
|
MOHAMAD, Rami - CCA, 28.11.2005
Sully, Hidden & Hall JJ
Citation: Mohamad v R [2005] NSWCCA 406
Sentence appeal.
Not being a licensed firearms dealer, attempted to purchase 18 firearms from other persons who were themselves not licensed firearms dealers.
Provision for the completed offence is found in s.51A(2)
Firearms Act 1996. The sentencing judge treated the attempt as carrying the same maximum term.
A sentence of 2y with a NPP of 15m was imposed.
Aged 21 at time of offence - guilty plea - only 1 prior conviction (receive large number of mobile phones) for which a suspended sentence of 2y was imposed.
Challenge to findings of fact by sentencing judge - one finding contrary to Crown concession - whether sentence should have been suspended.
Appeal dismissed. |
|
456
|
MEARNS, Richard Norman - CCA, 8.12.2005
Brownie AJA, Buddin & Latham JJ
Citation: R v Mearns [2005] NSWCCA 396
Conviction and sentence appeal.
4 x aggravated indecent assault; 1 x aggravated sexual intercourse without consent.
Total sentence of 6y with a NPP of 4y.
The appellant lived with the complainant's mother in a
de facto relationship between 1991 & late 2000. That relationship commenced when the complainant was 3 years old. The complainant's evidence was that when she was between the ages of 11 & 15, the appellant touched her on the breasts & on the vagina, pushed his fingers into her vagina & exposed his penis to her on various occasions.
Adequacy of
Murray direction - direction on contextual or relationship evidence inadvertently raising tendency - whether risk of misuse of that evidence by jury - conduct of trial by counsel - whether sentence excessive.
Appeal dismissed. |
|
457
|
SMIT, Shiree Anne - NSW SC, Latham J, 8.12.2005
SMIT, Steven Charles
TARRANT, Donna Clare
Citation: R v Smit, Smit & Tarrant [2005] NSWSC 1277
Remarks on Sentence.
Murder.
This was a retrial following a successful conviction appeal: see
R v Smit & Ors [2004] NSWCCA 409.
Police received a number of anonymous phone calls & went to the deceased's home to investigate. They found the naked body of the deceased wrapped in 2 blankets & within the blankets were 2 bloodstained jumpers & a cricket bat. There were large amounts of blood & blood staining throughout the flat. On a lounge chair, police found 3 knives, another was found under a lounge chair & yet another on a bed. Some of the knives & other items within the flat were stained with blood, identified as that of the deceased. The pathologist who performed the post mortem testified that death was principally caused by a blow to the throat which fractured the larynx, caused swelling, which in turn deprived the victim of oxygen. There were 12 stab wounds, 2 of which could have contributed to the death, one of which was a wound penetrating the lung. The body also displayed numerous signs of trauma. There were 14 areas of bruising, 58 abrasions, 10 lacerations & 8 scratches. There were in excess of 100 injuries, ranging from minor to very serious.
Steven Smit: Aged31 - active participant - long-term drug abuse - history of drug related offences - some evidence of rehabilitation.
Shiree Smit: Aged 31 - active participant - criminal record - long-term drug addiction from emotional trauma - has 4 children - evidence of rehabilitation.
Tarrant: Aged 29 - lowest level participant - lengthy record, including assaults - long-term drug abuse resulting from significant trauma.
Joint criminal enterprise.
Sentences:
Steven Smit: 16y with a NPP of 12y.
Shiree Smit: 16y with a NPP of 12y.
Donna Tarrant: 16y with a NPP of 12y. |
|
458
|
COOPER, Jamie Joseph - CCA, 12.12.2005
Hodgson JA, McClellan CJ at CL, Barr J
Citation: Cooper v R [2005] NSWCCA 428
Sentence appeal.
1 x aggravated BE&S (in company); 1 x possess firearms (2 pistols, 3 revolvers) without being authorised to do so by licence or permit; 1 x dispose of same firearms.
Total of 3*y with a NPP of 2y.
Applicant had been staying with relatives & other people at various houses in Dubbo. While he was staying at one of the houses (No.23 O'Donnell St), he became aware that firearms were kept in the house next door (No.21). He & his 15 year old cousin broke into No.21, forced open safes & took the firearms. The applicant then left some rifles at No.23 & told the wife of the occupant that he would return to collect them. She, however, informed the police & they attended. The 5 handguns were never recovered. Applicant had been in a relationship with a woman who gave birth to their baby boy, however, the baby died in tragic circumstances when he was 3 months old. This had a very bad effect on the applicant. He tried to hang himself & entered a period of very heavy drug use.
Aged 26 at time of offences - guilty plea - difficult upbringing - illegal drug use - little insight into offending - history of blackouts when angry - major depression - post-traumatic stress disorder - need for counselling - 'very negative attitude'- priors - no previous imprisonment.
Whether sentence excessive - sentencing statistics.
Appeal dismissed. |
|
459
|
KAWASAKI, Noritaka - NSW SC, Barr J, 14.12.2005
Citation: R v Kawasaki [2005] NSWSC 1298
Judgment.
1 x murder; 1 x malicious wounding.
Judge alone trial.
The accused was a 27 year old Japanese man who had travelled to Australia some 8 months prior to the offences. He had been staying in Queensland & on the North Coast of NSW before moving to a hostel in Avalon. The accused smoked cannabis about 5 times a day. The deceased resided at the hostel & worked locally. He was an easygoing young man, very popular with the other residents. The victim of the malicious wounding was the night manager of the hostel. On the weekend before the offences occurred, the accused went in the company of others to a dance party at Shepparton, Victoria. One of his companions bought ecstasy tablets & supplied some to him. By the final day of the concert, he had begun to behave strangely. His companion became concerned & told him to stop taking the tablets. When he returned from the trip, occupants of the hostel noticed a change in him. He became withdrawn, uncommunicative, anxious & stressed, in contrast to his previous demeanour, which was described as happy & friendly. His mannerisms became unusual, laughing inappropriately, crying, making unusual gestures, facial expressions & noises. In the early hours of the morning of 3.12.2004, the accused attacked the deceased & stabbed him in the chest & other parts of the body. The night manager intervened & tried to pull the accused off the deceased, but it was too late. The deceased died before the ambulance arrived. The night manager's injuries consisted of lacerations to a forearm & a finger.
Deliberate killing - persecutory delusional beliefs & auditory hallucinations - persistent cannabis abuse, probably aggravated by ecstasy abuse - symptoms of psychosis.
Special verdict of not guilty by reason of mental illness. Order made for detention in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law |
|
460
|
DANG, Ngoc Hiep - CCA, 14.12.2005
Studdert, Whealy & Howie JJ
Citation: R v Dang [2005] NSWCCA 430
Crown appeal.
Supply commercial quantity cocaine - 6*y with a NPP of 4y.
Police intercepted phone calls wherein respondent spoke to a supplier & a buyer. Respondent was arrested following police surveillance & was found to be in possession of 893gms of cocaine (82.5% pure).
Aged 24 at time of offending - guilty plea - born in Vietnam - came to Australia with family in 1989 - obtained HSC - completed Diploma in IT - gained employment as computer technician but was dismissed when a computer was stolen from his employer - losing his job a devastating experience - unable to secure further employment in the industry - became increasingly depressed, demoralised, anxious - partner became pregnant - psychological vulnerability - drug use - on bond at time of offending.
Relevance of standard NPP after plea of guilty - whether offence mid-range of seriousness - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 9y with a NPP of 5y. |
|
461
|
WOOLWORTHS Ltd (Robinson v) - CCA, 14.12.2005
Basten JA, Barr & Hall JJ
Citation: Robinson v Woolworths Ltd [2005] NSWCCA 426
Appeal by way of a stated case from the District Court under s5B of the
Criminal Appeal Act 1912 (NSW).
The Department of Health procured minors to purchase cigarettes from retailers as part of its investigation into compliance with s59(1) of the
Public Health Act 1991 (NSW) which prohibits the supply of cigarettes to minors. An employee of Woolworths sold cigarettes to a minor so procured by the departmental officers. The issue for determination by the CCA was whether the conduct of the officers in obtaining the evidence of the minor purchasing the cigarettes was 'improper' for the purposes of s138 of the
Evidence Act 1995 (NSW).
EVIDENCE - s138 of the
Evidence Act 1995 (NSW) - improperly obtained evidence - whether prosecuting authority acted 'improperly' in procuring minors to purchase cigarettes as part of 'compliance testing' - extent to which common law principles of
Ridgeway v the Queen survive the
Evidence Act 1995 (NSW) - consideration of whether statements made in Second Reading Speech for the
Public Health Act 1991 (NSW) that 'prosecution is used by public health units and the department as a last resort' informed the propriety of the conduct of the Department of Health for the purposes of s138.
The Court answered the questions asked in the case stated as follows: Q1: Did I err in holding that, for the purposes of s 138(1) of the
Evidence Act 1995 (NSW), the prosecutor's conduct was improper? A: The conduct of the informant was not capable of constituting 'an impropriety' for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a), of the
Evidence Act 1995 (NSW).
Q2: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the
Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?
A: Inappropriate to answer. Q3: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the
Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in
Ridgeway v The Queen (1994) 184 CLR 19?
A: Inappropriate to answer. |
|
462
|
ZHANG, Anna - CCA, 14.12.2005 -
158 A Crim R 504
Basten JA, Simpson & Buddin JJ
Citation: R v Zhang [2005] NSWCCA 437
Conviction and sentence appeal.
Attempt import large quantity crystal methylamphetamine; possess trafficable quantity crystal methylamphetamine.
Total of 20y with a NPP of 13y 4m.
The offence of attempted importation was committed with Tony Tu, who was tried separately. The appellant ran a company importing foodstuff from China. Bags of the above drug were found by Customs officers in a consignment of foodstuffs from China. The drugs the subject of the possession count were found in a cupboard in the appellant's bedroom. The appellant's case at trial in relation to the attempted importation charge was that Mr Tu had, without her knowledge, used her food importation business to import the narcotics. In relation to the possession charge, her case was that Mr Tu had asked her to mind the bag in which the narcotics were located. She claimed she had no knowledge of the contents of the bag when she took possession of it. The trial judge, utilising the coincidence evidence rule under s.98 of the
Evidence Act 1995 (NSW), allowed the evidence of the attempted importation to be used by the jury in relation to the possession & vice versa. On appeal, the appellant argued that the evidence was improperly used as coincidence evidence. A separate ground of appeal was that the trial judge undermined the criminal standard of proof in his summing up by using the phrase 'it was likely that she knew'.
Sections 98 & 101 of the
Evidence Act 1995 (NSW) - coincidence evidence - attempted importation of narcotics - possession of narcotics - whether evidence of importation admissible in relation to count of possession & vice versa - whether 2 or more related events established under s.98 - consideration of 'related events' - whether evidence had significant probative value - whether substantial miscarriage of justice - standard of proof - whether reference in summing-up to 'it was likely that she knew' undermined standard of proof of 'beyond reasonable doubt' - whether sentence manifestly excessive.
Appeal dismissed. |
|
463
|
HARRIS, Frederick O'Neil - CCA, 14.12.2005 -
158 A Crim R 454
Grove, Studdert & Whealy JJ
Citation: Harris v R [2005] NSWCCA 432
Conviction appeal.
Manslaughter.
7*y with a NPP of 4y 11m.
The deceased died on 7.10.2002, but the injuries sustained by him & which the jury found caused death occurred on 30.9.2002 at the Hurstville RSL Club. The injuries sustained included fractures to the lower outside part of the left eye socket & haemorrhages later detected established traumatic injury to the brain. A post-mortem revealed that death was caused by a subdural haemorrhage from head injury.
Admissibility of statement by deceased victim - whether made 'shortly after' asserted fact - whether unlikely that the representations a fabrication - self-defence - whether jury sufficiently alerted as to need for Crown to exclude reasonable possibility of appellant having acted in self-defence.
Appeal dismissed. |
|
464
|
HOLTEN, Wayne Daniel - CCA, 28.11.2005
Hulme, Hidden & Latham JJ
Citation: Holten v R [2005] NSWCCA 408
Sentence appeal.
The offences arose from 3 separate incidents.
1st incident: 2 x armed robbery.
2nd incident: 1 x armed assault with intent to rob; + Form 1 (common assault, affray).
3rd incident: 1 x armed robbery; 1 x specially aggravated kidnapping; + Form 1 (1 x aggravated car-jacking; 3 x obtain money by deception).
Total sentence of 11*y with a NPP of 8y.
Aged 18 at time of offences - guilty pleas - longstanding addiction to drugs & alcohol - disturbing criminal record - difficult background - supportive parents - previous imprisonment.
Youth of offender - length of effective NPP - sentencing judge's approach to aggravating factors under s.21A
Crimes (Sentencing Procedure) Act - whether sentences excessive.
Appeal allowed: resentenced to a total of 10*y with a NPP of 7y. |
|
465
|
CARR, Peter John - CCA, 12.12.2005
Hodgson JA, McClellan CJ at CL, Barr J
Citation: Carr v R [2005] NSWCCA 439
Conviction appeal.
Armed robbery with wounding.
8y with a NPP of 5y.
While working in his convenience store in Lewisham, the victim was attacked by 2 men, one of whom was armed with a pair of scissors.
The appellant did not give evidence at trial. His defence essentially involved challenging the Crown's identification evidence.
Adequacy of directions concerning identification evidence - unbalanced presentation of essential issue for jury's determination.
Appeal dismissed. |
|
466
|
BRAITHWAITE, Jarrett - CCA, 16.12.2005
Hodgson JA, McClellan CJ at CL, Hall J
Citation: Braithwaite v R [2005] NSWCCA 451
Sentence appeal.
1 x supply amphetamine, total weight 20.89 grams; 1 x supply MDMA (ecstasy), total weight 17.78 grams; + Form 1 (possess cannabis leaf, goods in custody).
Total sentence of 3y with a NPP of 1y.
On 20.8.2004, applicant was detected by a police sniffer dog at Kings Cross railway station. Police searched his backpack & located a set of electronic scales, a lockable box & an open bag of Glucodin glucose powder.
Aged 21 at time of sentencing - guilty plea - 25% discount allowed - minor criminal record.
Whether youth & immaturity significant - approach to suspending sentence - whether sentences manifestly excessive.
Appeal allowed: resentenced to a total of 2y with a NPP of 8m. |
|
467
|
WEISS - HCA, 15.12.2005 -
224 CLR 300; 80 ALJR 444
Citation: Weiss v The Queen [2005] HCA 81
On appeal from the SC of Victoria.
Murder.
Creation & promotion of false alibi by applicant & his
de facto - misconduct of defence counsel at trial - judge's interventions in course of cross-examination & examination-in-chief - whether either or both occasioning miscarriage of justice - whether trial judge erred in admitting evidence of age of female with whom applicant allegedly having affair as at time of separation from his I - application of proviso - s. 568(1).
Crimes Act 1958 (Vic) - substantial miscarriage of justice.
Appeal allowed: matter remitted to the Court of Appeal, Victoria for further consideration. |
|
468
|
BANDITT - HCA 15.12.2005 -
224 CLR 262; 80 ALJR 421
Citation: Banditt v The Queen [2005] HCA 80
On appeal from the SC of NSW.
Sexual assault.
Sections 61I, 61R(1)
Crimes Act (NSW)- recklessness as to consent to sexual intercourse - whether trial judge erred in his directions to the jury on recklessness - whether recklessness for purposes of offence of sexual intercourse without consent established simply by proof that the accused was aware there was a possibility the other person was not consenting - whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent - whether appropriate to direct juries to apply an ordinary understanding of "recklessness".
Appeal dismissed. |
|
469
|
TABER, Peter David - NSW SC, Studdert J, 15.12.2005
STYMAN, Ian Craig
Citation: R v Taber & Styman [2005] NSWSC 1292
Remarks on Sentence.
Manslaughter; aggravated B&E & commit serious indictable offence (robbery).
The accused were originally convicted upon charges of murder & aggravated B&E & commit serious indictable offence (robbery), for which they each were sentenced to life imprisonment (see
R v Taber; R v Styman; R v Styman [2003] NSWSC 93). They subsequently appealed against their convictions. The appeals were allowed in part, the verdicts of guilty of murder were quashed & an order was made for a new trial of each appellant upon the charge of manslaughter (see
R v Styman; R v Taber [2004] NSWCCA 245). Each was successful in his appeal against sentence for the aggravated B&E offence & directions were made for the further filing of submissions & for a hearing date to be fixed. It fell upon the sentencing judge in the instant case to also sentence each accused for the aggravated B&E offence.
The deceased was a 71 year old woman living alone. Offenders bound & gagged her, then perpetrated the robbery. When they decamped, they left the woman bound & gagged. Ian Styman made a telephone call to the 000 emergency services number some 24 minutes later, however, the emergency services operator failed to relay the message to police. The deceased died from dehydration
Each sentenced to a total of 18y with a NPP of 13*y. |
|
470
|
HAMSHERE, Terry John - NSW SC, Hall J, 15.12.2005
Citation: R v Hamshere [2005] NSWSC 1319
Remarks on Sentence.
Manslaughter.
The accused & the deceased were friends & were drinking at the accused's premises. Two people who gave eyewitness evidence at trial arrived at the premises & noticed that both the deceased & the accused appeared to be intoxicated. Soon after the 2 witnesses arrived, the deceased & the accused began to wrestle. At first this was done in jest, however, it soon escalated into something more serious & both men became more aggressive. When the 2 witnesses began to protest at them fighting, the accused suggested to the deceased that they go outside. The deceased walked outside via the rear door of the premises & removed his shirt. The accused walked to the kitchen sink & obtained a large black handled kitchen knife before going outside. When the deceased saw the knife in the accused's hand, he tried throwing a punch towards the accused. The accused raised his right arm upwards & stabbed the deceased in the neck. One witness phoned for an ambulance, but the deceased collapsed moments later.
Guilty plea entered at first available opportunity - affected by intoxicating liquor at the time - did not act with intent to kill - cognitive & motor functions impaired - contrition - good prospects of rehabilitation - special circumstances.
Sentenced to 5y with a NPP of 3y. |
|
471
|
DBN - CCA, 14.12.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v DBN [2005] NSWCCA 435
Sentence appeal.
1st indictment:
1 x take & drive conveyance; 1 x aggravated B&E with intent to steal (in company); 2 x malicious damage.
2nd indictment:
1 x robbery in company; 1 x aggravated stealing from the person; 3 x steal from the person.
Form 1 offences (12 x steal from the person, 2 x attempt obtain benefit by deception, 2 x steal MV).
Sentenced to a total of 8y with a NPP of 6y.
Use of aggravating factors under s.21A
Crimes (Sentencing Procedure) Act - special circumstances - whether sentence excessive.
Appeal dismissed. |
|
472
|
LIU, Piu Man - CCA, 25.10.2005
McClellan CJ at CL, Adams & Hoeben JJ
Citation: R v Liu [2005] NSWCCA 378
Sentence appeal.
Import commercial quantity heroin.
8y with NPP of 4y.
Applicant & her partner arrived at Sydney Kingsford Airport on a flight from Hong Kong wearing body packs containing packages of white powder, subsequently analysed as heroin. The total weight of pure heroin imported by the applicant was 1,582 grams. The pure heroin imported by her co-accused totalled 1,222.8 grams. The applicant was to receive no financial benefit from importing the heroin & was caught up in the enterprise by threats of violence to pay off her partner's gambling debts.
Aged 26 at time of offence - pregnant to co-accused at time of arrest - gave birth in custody - Initially separated from child but since admitted into Mother's and Children's Residential Program - major depressive disorder - does not speak English - submissive personality - poor background - no priors.
Guilty plea - delay - hardship caused by separation from son - hardship caused to son - whether justifiable sense of grievance when considering sentence imposed on co-accused - whether sentence manifestly excessive.
Appeal dismissed. |
|
473
|
CONNOR, Allan Brian - CCA, 14.12.2005 -
158 A Crim R 389
McClellan CJ at CL, Studdert & James JJ
Citation: Connor v R [2005] NSWCCA 431
Sentence appeal.
5 x aggravated BE&S (in company).
Total of 4y 8m with a NPP of 3*y.
The applicant & his co-offender broke into the Nambucca Heads Golf Club & the Coffs Harbour Golf Club. A 3rd offender joined them in breaking into the Cloncurry Sports Club, the Taree Golf Club & the Smithtown Bowling Club. Money was stolen from poker machines at each of the clubs. The total amount of money stolen was $3,454 & the damage to property totalled $1,960.
Whether justifiable sense of grievance after co-offender resentenced on appeal (
R v Andrews [2005] NSWCCA 199) - whether compensation order oppressive/excessive - compensation direction - principles applicable to co-offenders.
Appeal allowed only for sentence on one count, resulting in a total sentence of 4y with a NPP of 3y. |
|
474
|
DIAMANTIS, Lucas - CCA, 16.12.2005
Windeyer & Hislop JJ, Smart AJ
Citation: Diamantis v R [2005] NSWCCA 433
Sentence appeal.
Aggravated BE&S (in company); + Form 1 (2 x receive stolen property; 2 x make false statement; 2 x dispose of stolen property).
6y with a NPP of 4y.
In the early hours of the morning, the applicant & another man broke into a shop in York Street, Sydney & stole a quantity of computer equipment, then left in a stolen van.
Whether error in determining standard NPP applied to applicant's case - whether insufficient regard to subjective case - failure to find special circumstances - whether sentence manifestly excessive.
Appeal dismissed. |
|
475
|
TRINDALL, Carol Anne - CCA, 14.12.2005
Hodgson JA, McClellan CJ at CL, Hall J
Citation: R v Trindall [2005] NSWCCA 446
Sentence appeal.
2 x steal from the person (s.94
Crimes Act 1900); 1 x assault (s.61
Crimes Act 1900).
Total of 4y with a NPP of 2y.
The applicant had earlier been charged with an offence under s.95 of the
Crimes Act 1900. However, the Crown subsequently accepted the applicant's guilty pleas in respect of the offences under s.94 & 91 in satisfaction of the indictment.
Offences under s.94 & s.61 could have been dealt with summarily in the LC.
Appeal allowed: resentenced to a total of 3y with a NPP of 18m, to commence on 7.3.2004. Order made for applicant to immediately be released to parole. |
|
476
|
GJ - CCA, 16.12.2005
Grove, James & Simpson JJ
Citation: GJ v R [2005] NSWCCA 447
Sentence appeal.
Aggravated incite person under age of 16 to commit act of indecency.
2*y with a NPP of 1y 3m.
The applicant was at home with his 2 daughters. His wife was out. The 11 year old complainant & her younger sister were watching TV. The applicant called the complainant into his bedroom. He was lying on the bed naked. He told the complainant to shut the door & undress. She complied. The applicant told the complainant to sit on the side of the bed & touch his penis. She again complied. She masturbated the applicant to ejaculation. He told her to return to the living room & watch TV, which she did. The applicant told a Probation and Parole officer that what he did was 'a silly experiment' to hurt his wife. He said that he had told the complainant to tell her mother what had happened. He denied committing the offence for sexual gratification.
Aged 46 at time of offence - guilty plea - born in Iraq of Armenian & Assyrian parents - came to Australia with parents at age 11 - good, happy upbringing - relatively significant criminal record but no conviction for any comparable offence - record largely consisted of drug-related offences - addicted to heroin between ages of 22 & 28 - had long since overcome addiction - continued use of marijuana - pre-sentence report - little insight into offending behaviour - little if any appreciation of impact of offence upon daughter - need for treatment to reduce risk of re-offending.
Whether sentence manifestly excessive - whether necessary to show exceptional circumstances for non-custodial sentence - whether custodial sentence called for - whether starting point too high - whether motivation for offence was an aggravating feature - general deterrence.
Appeal dismissed. |
|
477
|
OKEKE, John Kala - CCA, 16.12.2005
Mason P, Barr & Hall JJ
Citation: Okeke v R [2005] NSWCCA 444
Sentence appeal.
2 x attempt possess trafficable quantity cocaine.
Total sentence of 9y with a NPP of 6y.
On 9 & 10 February 2003, two packages from Brazil were intercepted by Customs at Kingsford Smith Airport. One was addressed to a person by the name of Moore, the other to a person named Phopson. Upon analysis, the Moore package was found to contain 190.3 grams of pure cocaine & the Phopson package 195.8 grams of pure cocaine. The cocaine was removed & the packages reconstructed in order for a controlled delivery to take place. On 11 & 13 February, a man with an African accent phoned the Strawberry Hills Post Office on 3 occasions to make enquiries about the packages. He made arrangements to collect both packages on 14 February. The applicant drove a courier van. He asked another driver from the same organisation to collect the packages from the post office & take them to him. He supplied this driver with a letter purporting to be an authority signed by Moore. This man, who was completely innocent, obliged & collected the packages, then delivered them to the applicant at the courier depot. The applicant put them into his own van & drove to the car-park of a restaurant & phoned a co-offender. The co-offender met the applicant there & the applicant handed the Moore package to him. Police arrested the co-offender in the street. A short time later they stopped & searched the applicant's vehicle. The contents of the reconstructed package were found in the vehicle, together with the remains of the wrappings. The co-offender was subsequently sentenced to 5y with a NPP of 3y 4m.
Parity - whether justifiable sense of grievance - Insufficient weight given to subjective features - whether sentence manifestly excessive.
Appeal dismissed. |
|
478
|
OBLACH, Renato - CCA, 15.12.2005 -
65 NSWLR 75; 158 A Crim R 586
Spigelman CJ, Sully & Hulme JJ
Citation: Oblach v R [2005] NSWCCA 440
Conviction and sentence appeal.
Import trafficable quantity cocaine.
Sentence not stated.
At trial, there was no dispute that appellant had entered Australia carrying 728.2 grams of cocaine hidden in his clothing. An issue at trial was the defence of duress. Appellant did not testify but relied upon answers he had given to police in a recorded interview. During that interview, he indicated that threats of violence had been made against him & his ex-wife if he did not do as he was told.
Directions - duress - proper interpretation - s.10.2
Commonwealth Criminal Code - meaning of 'reasonably believes'- whether error in directing jury to have regard to objective belief of accused - whether proper to have regard to circumstances as perceived by accused - whether error in not having regard to evidence of threats - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: sentence quashed, matter remitted to DC for further consideration on sentence. |
|
479
|
KAUFUSI, Moli - CCA, 26.9.2005
McClellan CJ at CL, Hislop & Rothman JJ
Citation: R v Kaufusi [2005] NSWCCA 434
Conviction and sentence appeal.
Maliciously inflict GBH.
3y with a NPP of 15m.
The appellant & the victim (his girlfriend) had an argument in a restaurant, which escalated once they moved out into the car-park when the victim attacked the appellant both physically & verbally, whereupon the appellant retaliated. The appellant chased after the victim, sat on top of her & banged her head against the concrete surface. This attracted the attention of people in neighbouring buildings & the incident was reported to police. The appellant & the victim then got into a car & drove off. After a short distance, the appellant got out of the car & started walking away. The victim also got out of the car & attempted to seek assistance from passers-by. A car eventually stopped & she was given a lift. One of the passengers in the car spoke to her & noticed blood on her clothing & head. Upon closer inspection, the passenger noticed that part of her ear was missing. The victim told that person & later told a number of other people, including an ambulance officer, a nurse, police officers & doctors, that the appellant had bitten off part of her ear.
Requirement to direct jury on self-defence - no reasonable hypothesis for self-defence - Rule 4
Criminal Appeal Rules - whether verdict unreasonable & not supported by evidence - whether sentence excessive.
Appeal dismissed. |