Short Notes are compiled by Lyn Wilson

Case Index Subject Index Case Law Short Notes Directory

1	BEARD, Stephen - CCA, 7.12.99 Citation: R v Beard [1999] NSWCCA 392 Sentence appeal. Corruptly receive benefit as an inducement for providing confidential information. MT 1y, AT 1y. The appellant was employed as a subpoena clerk in the records & administration department of a bank. Whilst he was in gaol, bail refused, he was approached by a man who passed on information about him to a person known as “Bill”. Bill told a man named Curut, who phoned the applicant at work, then subsequently met him. He persuaded the applicant to pass on information to him about the bank’s male clients. This the applicant agreed to do in return for payment. The information passed on formed part of a fraudulent scheme whereby money was withdrawn from accounts of clients whose details had been passed on, totalling approx $95,000. Curut’s role was to pretend he was the client of the bank on each occasion on which money was withdrawn. Parity - substandard investigation by police - initial statement not signed by applicant - state of health - coercion into commission of offence. Leave to appeal refused.
2	KARAMAN, Haykel - CCA, 17.12.99 Citation: R v Karaman [1999] NSWCCA 412 Sentence appeal. Robbery in company; robbery with corporal violence & wounding; steal MV; use offensive weapon to resist arrest; + possess stolen goods & possess weapons for protection taken into account. MT 7½y, AT 3y. Applicant, armed with 2 screwdrivers & a knife, entered a pawnbroker’s shop with 2 co-offenders. After demanding money, applicant cut 1st victim in the neck with screwdriver, 2nd victim was stabbed in the neck. Applicant then threatened a 3rd victim with the knife. 1st victim further injured while attempting to prevent offenders from escaping. The 3 victims fled the store. Offenders fled in a stolen vehicle driven by another co-offender. Applicant & 2 co-offenders approached 3 young men as they were leaving a game arcade & threatened them with death, demanding their wallets & other valuables. Applicant forcibly removed victims’ jewellery & watches. 2 victims sustained serious injuries. Aged 19 at time of sentence - guilty plea -low-average intelligence range - barely functional literacy - subject to peer influence - drug habit - propensity to violence. Priors as a juvenile beginning at age 15. Insufficient weight given to assistance to authorities & future assistance - error in concluding applicant dangerous - insufficient weight given to subjective circumstances - whether sentences manifestly excessive - parity. Appeal dismissed.
3	GUPTA, Yateender Kumar - CCA, 2.12.99 Citation: R v Gupta [1999] NSWCCA 384 Sentence appeal. 7 x knowingly make a report which was false in a material particular (s.15 Financial Transaction Reports Act 1998 (Cth)). Aggregate head sentence of 2y, no NPP. Applicant was an accounts manager & later Company Secretary. He received money on behalf of his employer & overstated by $4.7 million the amounts of money received by making false declarations in order to assist company clients evade paying tax. Aged 32 at time of offence - mature man with family support - performed voluntary humanitarian work while awaiting sentence - no priors. Remissions - totality. Appeal dismissed.
4	CAMUS, Yves - CCA, 15.12.99 Citation: R v Camus [1999] NSWCCA 425 Crown appeal. Possess commercial quantity prohibited imports (ecstasy) MT 5y, AT 3y. Respondent was found in a hotel room with 736.5 grams of ecstasy. He was acting as a middleman for a person from Bali. Likely earnings of $40,000 from participation in the venture. Argentinian - offence motivated by greed - priors unknown. Appeal allowed: resentenced to MT 6y, AT 4y.
5	KHAMAS, Danny - CCA, 25.11.99 - 108 A Crim R 499 Citation: R v Khamas [1999] NSWCCA 436 Crown appeal. 2 x attempt armed robbery; 1 x assault. 2y PD. All 3 counts arose out of the once incident when the respondent & a co-offender sought to obtain the takings of a McDonald’s restaurant from the female manager & a security guard, using a replica semi-automatic pistol. The security guard was punched & kicked. Appeal allowed: resentenced to 3y PD.
6	RYAN, Shannon - CCA, 16.12.99 Citation: R v Ryan [1999] NSWCCA 432 Sentence appeal. 8 x BE&S - MT 2y, AT 2y; 3 x receiving - concurrent FT 2y. Planned & deliberate. Worked from a ‘shopping list’ & list of target properties. Offences committed with one co-offender over 1 month period. Estimate value of property stolen $30,000, about half recovered. Appeal based upon parity with a co-offender whose sentence had been reduced by an earlier decision of the CCA. Held: some adjustment justified by reason of parity. Appeal allowed on BE&S charges: MT reduced to 1½y, AT 2y; on receiving charges FT 1½y..
7	VAN DEN AKKER, Brigette Anne - CCA, 15.12.99 Citation: R v Van Den Akker [1999] NSWCCA 426 Sentence appeal. Attempt export prohibited export (ecstasy - 324.8 grams); export further quantity of ecstasy (18.8 grams). 7½y with NPP of 4½y. The applicant’s co-offender had been under police surveillance for some time. They had obtained a telephone intercept & listening device warrant for his hotel room at Sebel Town House. The telephone intercepts revealed him telephoning the applicant & arranging for her to transport drugs from Sydney to Amsterdam via Bali. The applicant was subsequently searched by Australian Customs Service officers at Sydney airport. The search revealed 3 A4 sized packages located on the thigh region of both her legs & 3 smaller packages about her groin area. Total number of tables approx 5,000. Co-offender received 8y with NPP of 5y, however, the Crown appealed & the sentence was increased to 10y with NPP of 6y. Submitted on appeal that sentence passed falls within range for offences of importation but not necessarily appropriate for offences of exportation or attempted exportation - parity. Appeal dismissed.
8	TAMOTSU, Sekine - CCA, 26.11.99 - 109 A Crim R 193 Citation: R v Tamotsu [1999] NSWCCA 400 Conviction and sentence appeal. Import trafficable quantity heroin - 7y; import trafficable quantity heroin - 11½y with NPP of 7½y. Appellant arrived in Sydney on a flight from Tokyo. Customs officers detained him & he was found to be wearing a body pack around his waist, the compartments containing 18 separate packages of white powder which, upon analysis, were found to be heroin (1,481.5 grams). He claimed in a ROI that he did not know he was carrying heroin, believing it to be contraceptive pills. He admitted to travelling to Australia in almost identical circumstances in 1996. Whether insufficient evidence of elements of offence - whether probative value of coincidence evidence outweighs prejudice - whether sentence appropriate - parity with co-offender. Conviction appeal dismissed. Sentence appeal allowed: resentenced to 7y on 1st count; 10y 3m on 2nd count, NPP of 6y 3m.
9	HOUDA, Fady - CCA, 22.11.99 Citation: R v Houda [1999] NSWCCA 372 Conviction appeal. Sexual assault without consent. A young woman was at an RSL club with friends & was dancing with a friend when she noticed a man, who she did not know, dancing in a circle around her. He asked her to go outside with him for a talk & she agreed. Outside the club he kissed her & gave her a love bite, then led her past a bowling green to a church verandah. He pushed her onto the ground & took his clothes off, then tried to remove her underpants & she tried to pull them back up. He had sexual intercourse with her. The complainant tried to get away by grabbing onto a fence & pulling away from him. She was dragged along the ground & she told him to stop & tried to yell out for help but the appellant threatened to shoot her. Afterwards he threatened to shoot her if she told anyone. She told her friends & her mother & the police were called. She was taken to hospital & medically examined. The doctor found evidence consistent with the facts she related, including abrasions to her left elbow & buttocks & a bruise consistent with a love bit on the front of her neck. Appellant denied he was the perpetrator. Use of lies as showing a consciousness of guilt - proper directions. Appeal dismissed.
10	KEMP, Kevin James - CCA, 6.12.99 Citation: R v Kemp [1999] NSWCCA 404 Sentence appeal. Supply prohibited drug (heroin) - FT 5y; supply commercial quantity prohibited drug (methylamphetamine) + 10 further offences, including offences involving drugs, failure to appear & fraudulent impersonation - MT 6y 9m, AT 2y 3m. Applicant responsible for distribution of large amounts of heroin in Port Macquarie & neighbouring areas. Payments totalling approx $306,000 were received by applicant & were put into one or other of 3 bank accounts which he had opened in false names, using false or forged documents. The supply methylamphetamine charge arose when the applicant was stopped by police & was seen to drop 2 packages containing heroin on the roadway. He was searched & cocaine was found in his pocket & on the floor of the car. The police also found a suitcase containing 262 grams of methylamphetamine & 2 packages containing 28 grams of heroin at residential premises in a bedroom that had been occupied by the applicant. Aged 46 at time of sentence - Aboriginal descent - disadvantaged childhood - had been in institutions or gaols for a substantial part of his life - substantial criminal record, including armed robberies & supply drugs - motivation greed. Whether sentence for supply methylamphetamine manifestly excessive - guilty plea - appropriate sentences - assistance to authorities - rehabilitation - special circumstances Appeal dismissed.

11	SIMPSON, Peter Frederick - CCA, 10.9.99 Citation: R v Simpson [1999] NSWCCA 367 Crown appeal. Aggravated dangerous drive occasioning death. MT 3½y, AT 1½y. Respondent was driving a table-top truck which overtook a coach at a speed only slightly in excess of the speed limit. The truck hit a concrete barrier then crossed to the other side of the road, colliding with an oncoming vehicle, resulting in the death of one person. Age 43 - guilty plea - extreme contrition - driving for 20 years - no priors. Appeal dismissed.
12	HASHMI, Naeem Raza - CCA, 13.8.99 Citation: R v Hashmi [1999] NSWCCA 439 Sentence appeal. Import commercial quantity heroin. 5y with NPP of 3y. Appellant arrived at Sydney Airport from Pakistan with 2.35 kilograms of heroin (1.881 kgs pure) strapped to his body. He admitted his role in the importation & said he was due to return to Pakistan 2 days later. A controlled delivery was carried out by the authorities & a co-offender, an Australian citizen, was apprehended. The co-offender was on work release whilst under sentence for the importation. Pakistani national - mature age - legal background - motivated by desire to provide dowry for his daughter - aware of risks involved. Significant assistance to authorities resulting in 50% discount - alleged threats by co-offender whilst in prison - no priors. Appeal dismissed.
13	NGUYEN, Paul Phuoc Duoc - CCA, 21.10.99 Citation: R v Nguyen [1999] NSWCCA 333 Conviction and sentence appeal. Manslaughter - MT 6y, AT 4y; 2 x malicious discharge of firearm with intent to avoid lawful apprehension - concurrent FT 4y; kidnapping - concurrent FT 4y. Appellant, armed with a rifle & other items, went to home of ex-de facto intending to confront her in relation to money. He tied up his ex-de facto’s mother & gagged her. When the 2nd daughter returned home the appellant also tied her up. She later escaped & alerted police. When police arrived the mother had died as a result of asphyxiation. Police forced entry to the house & an exchange of gunfire resulted, one police officer receiving minor wounds. Vietnamese - aged 42 at time of offence - refugee prior to coming to Australia - self-employed - special circumstances - no priors. Appeal dismissed.
14	PONFIELD, Robert George - CCA, 16.12.99 Citation: R v Ponfield [1999] NSWCCA 422 Crown appeal. 3 x BE&S; + an offence of possess implements capable of entering & driving a conveyance & an offence of failing to appear taken into account on Form 1. 18m GBB. Respondent had a significant criminal record for BE&S & associated crimes. After being arrested & charged when he was found to be in possession of the loot from one of the BE&S offences, he was released on bail, but then failed to appear. A year later he was arrested after another BE&S. Efforts at rehabilitation. Whether sentence manifestly inadequate. Appeal allowed: sentenced to MT 6m, AT 18m.

15	WHITE, Ricky James - CCA, 20.10.99 Citation: R v White [1999] NSWCCA 366 Conviction and sentence appeal. Aggravated indecent assault; 2 x aggravated sexual intercourse with child by person in authority; + 3 charges of aggravated indecent assault concerning another complainant taken into account. MT 5y, AT 3y. Complainant was a friend of the daughter of the appellant’s de facto wife. She was aged 11 at the time & was staying at the appellant’s home while the appellant’s de facto was staying in hospital with a sick child. The appellant’s step-daughter was also sexually assaulted. The appellant told the complainant that if she ever told her mother or her mother’s boyfriend what had happened, then terrible things would happen to them. The appellant’s step-daughter, being a witness to the assaults on the complainant, was subpoenaed, however, her reaction was so extreme when told of this, including threatened suicide, that medical opinion was obtained & she did not give evidence. Alleged inconsistencies in Crown case - claim of bias - whether sentence excessive - no issue of principle. Appeal dismissed.
16	BLANCH, Peter - CCA, 23.11.99 Citation: R v Blanch [1999] NSWCCA 389 Sentence appeal. Extension of time. Malicious wounding with intent to do GBH - FT 4y; escape lawful custody - MT 2y, AT 3y cumulative upon the sentence for malicious wounding; steal of MV - concurrent FT 1y. The applicant & 2 co-offenders were prisoners in the same correctional institution from which they escaped. They then made their way to a motel & while there they broke into the room of another guest at the motel who was assaulted by each of the offenders &stabbed a number of times by one of the applicant’s co-offenders. The assaults were carried out over a period of time. This was done to get his PIN number. The victim underwent surgery. Sentencing judge described the assaults as brutish & dreadful in their consequences to the victim. Parity - whether sentence excessive. Appeal dismissed.
17	TARANTO, Graham John - CCA, 16.12.99 FREEMAN, Janice Margaret Freeman (aka KELLY) Citation: R v Taranto & Freeman [1999] NSWCCA 396 Conviction appeals. Taranto: malicious wounding with intent to do GBH - MT 10y, AT 4y. Freeman: malicious wounding - MT 2y, AT 1½y. The Crown witness claimed to have seen Taranto shoot the complainant & it was from his evidence that it was inferred Freeman knew Taranto was armed. Both appellants complained that the trial judge failed adequately to warn the jury that the evidence might be unreliable. The witness had a substantial criminal record, including the use of firearms. He was a registered police informer & he acknowledged having gained a benefit for a charge he faced because of his willingness to give evidence against the appellants. Whether Crown witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - failure to give “accomplice direction”: s.165(1)(d) Evidence Act - no reasons given for that decision - whether direction to jury required. Appeals allowed: convictions quashed, new trial ordered.
18	CARTER, Kevin Carter - CCA, 24.11.99 Citation: R v Carter [1999] NSWCCA 376 Sentence appeal. Robbery in company. MT 2y, AT 2y. Victim assaulted & robbed of $150 in cash in the early hours one morning by 3 young men, one of whom was the applicant. Victim subsequently admitted to hospital with numerous facial cuts requiring stiches. Also suffered extensive facial bruising, as well as bruising & soreness to his torso. Delay - leniency - parity - sentencing of co-offender - material differences. Appeal dismissed.
19	HUDD, Patrick - CCA, 16.12.99 Citation: R v Hudd [1999] NSWCCA 382 Conviction appeal. Conspire to pervert the course of justice. Crown case was that the appellant was stopped by police who carried out a search but found nothing. They took him to his house & they found a considerable quantity of heroin there. The appellant was charged with supply heroin. The appellant then set about recruiting people to give false evidence at his trial. Part of the Crown’s evidence were documents, that were written by the appellant but pertaining to be witness statements, tendered before the court. Fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice. Appeal dismissed.
20	JOHNSON, Jason Lisle - CCA, 16.12.99 Citation: R v Johnson [1999] NSWCCA 431 Sentence appeal. 7 x BE&S; + 18 similar offences taken into account. MT 3y, AT 3y. Ongoing criminality - no actual details given for above charges. Aged 26y 5m at time of sentence - substantial criminality - extensive criminal record extending back to when he was 16y - prior imprisonment. Dysfunctional person & familial background - guilty plea - well-entrenched heroin addiction - rehabilitation. Applicant submitted that sentencing judge wrongly failed to take into account the requirements of the Drug Court Act 1998. Appeal dismissed.
21	WATSON, Peter Malcolm - CCA, 21.12.99 Citation: R v Watson [1999] NSWCCA 417 Conviction and sentence appeal. Supply commercial quantity prohibited drug (amphetamines). MT 6y, AT 2y. Undercover police operation. Misdirecting and/or failing to direct jury adequately as to essential ingredients of offence - adequacy of directions on common purpose, joint enterprise, ordinary meaning of “supply”, evidence relied upon by Crown as to supply, facts upon which certain inferences were to be made - visual identification - voice identification - inconsistent verdicts - miscarriage of justice - whether sentence excessive. Conviction appeal allowed: new trial ordered.
22	MURRAY, James Francis - CCA, 17.12.99 - 108 A Crim R 430 Citation: R v Murray [1999] NSWCCA 402 Conviction appeal. Robbery in company. MT 2½y, AT 2½y. A policeman was involved in an incident with a car & recorded a description of the driver & traced the registration of the car to a de facto couple who told him the car had been stolen. The female initially said she did not know who stole the car but subsequently named a woman & gave detailed description of the appellant & supplied his name. Police compiled a video tape of 15 photographs of males including the appellant & this was viewed by the male & 2 policemen. An identification parade was not conducted because the officer-in-charge of the case considered the evidence of the de facto couple was recognition rather than identification evidence owing to their prior acquaintance with the appellant. The identification of the appellant pre-dated the Evidence Act & therefore its identification provisions did not apply. Identification evidence - photographs - prospect of corruption of identification by de facto couple - cross examination improper. Appeal dismissed.
23	MacDONALD, Peter Graeme - CCA, 3.2.2000 - 110 A Crim R 238 Citation: R v MacDonald [2000] NSWCCA 1 Conviction appeal. 4 x supply commercial quantity prohibited drug (methylamphetamine). Plea of guilty entered. During sentence proceedings, the court was invited to deal with four outstanding offences with which the appellant had been charged at the time of his arrest for the drug offences. There was discussion as to the appropriate mechanism by which they might be disposed of & ultimately the four matters were dealt with pursuant to the provisions of Pt 10 of the Criminal Procedure Act 1986. Counsel appearing for the appellant contended that the court did not have jurisdiction so to do. Whether plea of guilty on arraignment constitutes ‘conclusion of the trial of an accused person for an indictable offence’. Appeal allowed: convictions & sentences on each of the four charges quashed. “In a case where an accused pleads guilty upon arraignment the provisions of Pt 10 (now Pt 2 Div 4) do not apply and the court does not have the jurisdiction to deal with back-up and related offences other than by means of taking such offences into account on a Form 1 pursuant to s.21 (now s.161) of the Act” (per Bell J, p.12, para.26).
24	McDERMOTT, Lance - CCA, 24.11.99 (aka MAXWELL, Lance) Citation: R v McDermott @ Maxwell [1999] NSWCCA 379 Sentence appeal. Receiving (motor car parts); + offences taken into account:- supply prohibited drug ($20 bag of cannabis) plus a further 2 bags of the drug. Applicant pleaded guilty to the charge of receiving, however, he failed to appear for sentence & a bench warrant was issued. The applicant had gone to the United States where he was apprehended for trafficking in cocaine (12 grams) & served a sentence in South Carolina. Following imprisonment, he was held in detention awaiting his deportation to Australia. Whilst in detention, he notified the Australian Federal Police that he would be returning to Australia & that he wished to clear up outstanding matters. On arrival in Australia, he was apprehended by Federal Police. Totality - failure to find special circumstances - whether sentence manifestly excessive. Appeal dismissed.
25	BK - CCA, 8.2.2000 - 110 A Crim R 298 Citation: R v BK [2000] NSWCCA 4 s.5F appeal against interlocutory judgement refusing application for stay of proceedings. Refusal to grant stay based on Dietrich principle - appellant indigent - appellant had taken all steps in his power to secure legal aid but had been unsuccessful - appellant not the cause of any delay in failure of charges to be heard at trial - trial judge concluded public interest must prevail over difficulties of the appellant. Appeal dismissed, interlocutory order affirmed.
26	KALACHE, Leslie - CCA, 4.2.2000 - 111 A Crim R 152 Citation: R v Kalache [2000] NSWCCA 2 Crown appeal. 1. Knowingly take part in manufacture large commercial quantity methylamphetamine - FT 6y; 2. Knowingly take part in supply large commercial quantity methylamphetamine - FT 6y; 3. Knowingly take part in supply commercial quantity cocaine - FT 3y; 4. Knowingly take part in supply commercial quantity ecstasy - FT 3y; 5. Knowingly take part in supply cannabis leaf - FT 3y; 6. Knowingly take part in manufacture large commercial quantity methylamphetamine - FT 5y; 7. Act with intent to pervert the course of justice - MT 1½y, AT 2½y. Sentences on first 6 charges to be served concurrently. Other matters taken into account. Respondent the lynch-pin of a well organised, high-volume & high-profit drug trafficking network. “Appalling background of antecedent drug-related crime.” Guilty pleas - co-operation with authorities. Whether sentences manifestly inadequate. Appeal allowed: resentenced as follows:- Count 1 - FT 18y. Count 2 - MT 20y, AT 3y. Count 3 - FT 12y. Count 4 - FT 12y. Count 5 - FT 5y. Count 6 - FT 14y. Count 7 - FT 2y.
27	KMD - NSW SC, 1.12.99 Citation: R v KMD [1999] NSWSC 1171 Judgement: 2 x robbery with corporal violence. The prisoner & 6 others went to the home of a Mr Nguyen intending to buy heroin from him. A Mr Do was visiting there at the time. The prisoner & his co-offenders purchased & smoked heroin then one of them suggested they rob Mr Nguyen & Mr Do, to which they all agreed. Mr Do was punched by one of the co-offenders & knocked across the room, then he was punched & kicked & lay unconscious. Mr Nguyen was kicked & punched in the face & in the head, his attackers removed his wallet. He was then kicked in the chest. Some offenders began removing property from the unit & Mr Nguyen managed to get away. During the course of the robbery, another friend (Mr Doan) of Mr Nguyen entered the unit & he was forcibly carried into a bedroom & attacked until he lost consciousness. One of the co-offenders found a large knife, stabbed both Mr Do and Mr Doan. Mr Do died of his wounds & Mr Doan was seriously hurt. He had to have 37 sutures to the head & also underwent surgery to remove a blood clot from his brain. Prisoner aged 16½y when offences were committed. Sentence: On the one count of robbery with corporal violence, received MT 1y 9m, AT 3y; On the other offence of robbery with corporal violence released on probation for a period of 18m.
28	TRAN, Son Thai - NSW SC, 1.12.99 Citation: R v Tran [1999] NSWSC 1146 revised - 3/12/99 Sentence: Manslaughter; malicious wounding. Prisoner broke into the home of his estranged wife by smashing the window to the bedroom where his wife, mother-in-law & son were sleeping. The mother-in-law attempted to contact police by telephone, the prisoner took hold of the phone & the mother-in-law ran from the room. The prisoner followed her into the hallway of the house & stabbed her repeatedly with a broken pair of scissors. The prisoner’s wife attempted to intervene & sustained a stab wound to the back of her left shoulder. The deceased walked back to the bedroom where she collapsed & died. The prisoner then tied up his wife & young son. After a number of hours, the wife said she would tell police there had been a home invasion & intruders had killed her mother & also suggested the prisoner should wipe all surfaces to remove his fingerprints. He did this & then left. The wife & son broke free & sought assistance from neighbours. The wife was admitted to hospital. Initially she gave police an account that 3 men invaded the home, but 2 days later she supplied them with a statement nominating her husband as the killer. Born in South Vietnam - aged 37 at time of sentence. Aged 14y when government of North Vietnam came to power in South Vietnam. After he left school he was placed in a labour camp & remained there for more than 5 years. Following his marriage, he was re-arrested after an unsuccessful attempt to leave Vietnam & spent a further year in custody. Following his release from prison, he & his wife & child escaped from Vietnam in a refugee boat. Substantial impairment by abnormality of mind. Manslaughter: MT 3½y, AT 2½y. Malicious wounding: FT 12m.
29	PHILLIPS, Tracey Louise - NSW SC, 17.12.99 Citation: R v Phillips [1999] NSWSC 1175 Judgement on admissibility of evidence. Murder of infant child. Crown sought to lead evidence surrounding the deaths of 2 of the accused’s other children. Evidence - tendency & coincidence - whether probative value substantially outweighs prejudicial effect. Voir dire - admission of evidence rejected.
30	MINOGUE, Rodney Joseph - CCA, 27.10.99 Citation: R v Minogue [1999] NSWCCA 427 Sentence appeal. BE&S; take conveyance without consent of owner; + an offence of possess prohibited drug taken into account. Aggregate MT 2y, AT 8m. Applicant broke window of business selling bicycles, placed a bicycle into a nearby MV & was about to load a 2nd bicycle when he was apprehended by police. Combined value of bicycles $16,400. Some marijuana found in his pocket at time of arrest. MV used by applicant reported stolen 9 days earlier. Aged 32 - institutionalised at early age - long history of drug & alcohol abuse - compulsive nature - need for counselling - extensive criminal history. Priors for drug offences, property offences, violent offences, driving offences. Imprisoned on 4 previous occasions. Appeal dismissed.
31	MRW - CCA, 10.12.99 - 113 A Crim R 308 Citation: R v MRW [1999] NSWCCA 452 Conviction appeal. 1 x indecent assault of girl under age of 16y. 3y GBB with supervision component. The appellant had gone to trial on 2 counts of indecent assault upon the same complainant, however, the jury acquitted him of one count. Admissibility of complaint evidence - admissibility of prior consistent statement - conduct of Crown prosecutor - duty of fairness - improper address - contrary to standards of fairness, Bar Rules and Prosecution Guidelines - consideration of principles referred to in Kneebone [1999] NSWCCA 279 - substantial miscarriage of justice - discretion to order new trial where miscarriage fault of Crown prosecutor. Appeal allowed: verdict of acquittal entered.
32	DUONG, Minh - CCA, 8.12.1999 Citation: R v Duong [1999] NSWCCA 448 Crown appeal. 10 x receiving; + a further 25 charges of goods in custody taken into account. 400 hours CSO. Respondent was a hairdresser who supplemented his income by dealing in stolen goods, purchasing them in large quantities from known shop-lifters & known drug addicts. Police found stolen goods at his shop, at his house & his de facto’s house. He had bought these goods for about one-third their value. Guilty plea. Whether sentence inadequate. Appeal allowed: Total aggregate of MT 3y, AT 2y 11m.
33	JACKSON, Wilfred - CCA, 2.12.99 Citation: R v Jackson [1999] NSWCCA 387 Conviction appeal. 1 x unlawfully took girl from custody of her parent. MT 1y 3m, AT 1y 3m. The girl was under the age of 16 years at the time. The appellant had also been charged with having sexual intercourse with the girl & carnally knowing her but was acquitted of those offences. Nature of offence - effect of girl voluntarily leaving - comparison with other offences - necessity for accused to take some active role in depriving custodial parent of possession - issue for jury - necessity to put defence in summing up - new trial or acquittal - criteria for exercise of discretion - recommendation for reform of relevant offences. Appeal allowed: verdict of acquittal entered.
34	BLAKEMAN, Kerry Vernon Short - CCA, 9.9.99 Citation: R v Blakeman [1999] NSWCCA 415 Sentence appeal. Conspiracy to import narcotic goods (ecstasy). 3½y with NPP of 2y 3m. 296 tablets containing 25.4 grams pure drug, well in excess of trafficable quantity. Applicant had arranged with co-conspirator to have drugs sent from Germany, concealed in 3 packages of cassette tapes & sent to 2 different addresses. The applicant posted the articles himself whilst on holiday. Aged 37 - served in NZ armed forces - married - father of 6 - safety supervisor - had been traumatised when a victim of armed robbery - injured in MV accident. Priors for self-administration of prohibited drug; possession of drug administration equipment. No convictions recorded. Appeal dismissed.
35	SIMON, Edward Roy - CCA, 15.9.99 Citation: R v Simon [1999] NSWCCA 418 Sentence appeal. Escape lawful custody; steal MV; damage property; larceny; stealing; use offensive weapon to avoid lawful apprehension. Aggregate MT 6y, AT 2y. Appellant escaped from industrial Complex at Long Bay while serving sentence for AOGBH. While at liberty he committed a series of offences in Kings Cross area. When police tried to apprehend him for stealing a woman’s bag, he drove the vehicle he had stolen the previous evening directly at the police. Aged 23 - lengthy criminal history - Aboriginal descent - disadvantages childhood. Priors: sexual offences, property offences, violent offences, driving offences. Previous imprisonment. Appeal allowed: resented to aggregate consisting of MT 2½y, AT 5y.
36	HAWKINS, Alfred - CCA, 20.8.99 Citation: R v Hawkins [1999] NSWCCA 276 Sentence appeal. BE&S; 3 x larceny. On BE&S & 2 larceny offences received 12m PD; on 3rd count of larceny received 3y GBB. Applicant breached requirements of GBB by committing 2 further offences: failure to pay for hotel accommodation & larceny. On a number of occasions he failed to report to the PD centre & his PD order was cancelled & he was sentenced to 44w full-time imprisonment. The sentencing judge declined to fix a MT & AT. Aged 22 - air-conditioner mechanic - history of gambling - marital breakdown. Priors: BE&S, larceny, MV offences, multiple dishonesty offences, tax evasion, breach PD, breach recognizance, fine default. Appeal allowed: resentenced to MT 36w, AT 8w.
37	JAWOROWSKI, Zigmunt Bruno - CCA, 29.10.99 - 108 A Crim R 489 Citation: R v Jaworowski [1999] NSWCCA 430 Sentence appeal. Dangerous drive causing death in circumstances of aggravation. MT 6y, AT 2y. Note: This offence was considered to be worse than Jurisic. Applicant drove vehicle out of his driveway & collided with a motorcycle which came to rest under the vehicle. Applicant attempted to move his vehicle but was stopped by a passing motorist. He became agitated & went into his house to make a phone call & on his return it appeared he had consumed a quantity of alcohol. When police arrived he informed them he had consumed a brandy & dry ginger ale earlier in the day. A breath test returned a reading of .240. A later breath test conducted at the police station returned a reading of .270. Aged 43 - well educated, intelligent - unemployed - divorced - disqualified driver at time of offence - previous major depressive illness - severe depression at time of present offence - remorse. Prior driving offences. Appeal allowed: sentence restructured as MT 5y, AT 3y.
38	MUSSETT, Michael - CCA, 15.9.99 Citation: R v Mussett [1999] NSWCCA 419 Sentence appeal. BE&S; carried in a conveyance without consent. Aggregate MT 2y, AT 2y. Applicant was a passenger in a MV stolen the previous day by his co-offender. Police pursued & stopped the vehicle & arrested both men. Co-offender had accelerated & driven the MV in a dangerous way, injuring the police officer standing beside the car. Earlier in the day, the co-offender had broken & entered a residence & stolen property while the applicant waited outside in the stolen MV. Aged 24 - unemployed - single - trade qualifications - drug dependence - subject to 2 recognizances at time of offence. Prior offences: violence - drugs - sexual - property - fraud/dishonesty - MV/drive. Previously imprisoned on 3 occasions. Appeal allowed: MT 1½y, AT 2y.
39	FRANCE, Darren John - CCA, 29.10.99 Citation: R v France [1999] NSWCCA 428 Sentence appeal. Malicious wounding. MT 2½y, AT 2½y. Applicant called his girlfriend from public telephone & an argument took place during which he was heard swearing loudly & observed hitting the handset against the side of the booth & kicking at an advertising stand nearby. When asked to lower his voice & modify his language, an altercation ensued resulting in a head injury to the victim which required medical attention. Aged 19 - single - unemployed - alcohol & drug abuse - criminal activity to support drug habit - on drugs at time of offence - surrendered to police - demonstrated prospects of rehabilitation. Prior offences: drugs - property - violence - driving. Previously imprisoned. Special circumstances. Appeal allowed: resentenced to MT 1y 9m, AT 1y 9m.
40	BULLING, Steven Shane - CCA, 29.10.99 Citation: R v Bulling [1999] NSWCCA 429 Sentence appeal. 2 x demand money with intent to steal. MT 3y, AT 1y. Applicant entered convenience section of service station, giving console operator the impression he was armed with a weapon & demanded money. He was given $355. Two days later he stole $155 & cigarettes. At time of 2nd offence applicant was affected by alcohol. Aged 40 - unemployed - in breach of recognizance at time of offences - unstable & dysfunctional childhood - long criminal history - long-standing problem with alcohol. Prior offences: sexual, fraud/dishonesty, property, violence. Previously imprisoned on 6 occasions. Tasks of sentencer - reliance on counsel. Special circumstances. Appeal allowed: sentences restructured as MT 2y, AT 2y.
41	BARRY, Maxwell Raymond - CCA, 17.9.99 s.5F(3) appeal against interlocutory judgement refusing application for permanent stay. Homosexual intercourse with male above age of 10y & under age of 18y. Complainant born on 10.9.1968, offences said to have occurred between 16.10.1985 & 9.9.1986 (the day before he reached 18y). Submissions made that evidence of the complainant was not such as to be capable of satisfying a jury beyond reasonable doubt that offences in fact occurred before he reached 18. Another submission was that a jury would not be able to decide as to whether s.79 or s.78K Crimes Act was the appropriate section upon which it was to deliberate. Leave to appeal refused.
42	MASTRONARDI, Fabian - CCA, 16.2.2000 - 111 A Crim R 306 Citation: R v Mastronardi [2000] NSWCCA 12 Crown appeal. 1 x armed robbery - 3y GBB; 1 x concealing serious offence - 3y GBB. Offences arose out of 2 incidents in which respondent accompanied 2 co-offenders who demanded money from taxi drivers. During 1st incident, co-offenders produced a knife & a syringe; during 2nd incident a knife was produced. No prior convictions - guilty plea - some attempts to overcome drug problem. Failure to consider PD - sentencing judge erroneously applied principles relating to young offenders to 27 year old offender - whether sentences manifestly inadequate. Appeal allowed: resentenced for armed rob to 3y PD; & for conceal serious offence to 1y PD.
43	NICHOLAS, Jason - CCA, 14.2.2000 Citation: R v Nicholas [2000] NSWCCA 11 Sentence appeal. Robbery in company; + a Form 1 matter of BE&S.. MT 4y, AT 3y. Robbery was committed on a bank with 3 other males, one of whom jumped the counter to gain access to the staff area. That co-offender successfully appealed his sentence which was reduced from MT 3y AT 3y to MT 2y 3m AT 2y 9m. At time of offence, applicant was subject to recognizance whereas the co-offender was not. Parity with co-offender whose sentence was reduced on appeal. Appeal allowed: resentenced to MT 3y, AT 2½y.
44	ARMSTRONG, Darren - CCA, 14.2.2000 Citation: R v Armstrong [2000] NSWCCA 16 Sentence appeal. Armed robbery (syringe). MT 3y, AT 3y. Guilty plea. Robbed service station proprietor whilst armed with a syringe. Unclear whether syringe was filled with blood. Applicant told police he was an intravenous drug user & had been desperate for access to drugs at time of robbery. Robbery committed to get money to buy drugs. Assistance to authorities. Appeal dismissed.
45	THOMPSON, Karen Ann - CCA, 14.2.2000 Citation: R v Thompson [2000] NSWCCA 15 Sentence appeal. Assault & rob with offensive weapon. MT 1½y, AT 2½y. Applicant approached taxi driver & threatened him with a small folding knife, demanding money. The driver got out of the cab & the applicant said she was going to bite him & that she had AIDS. Taxi driver struggled with her & sought assistance from a nearby hotel security guard. A struggle ensued & the applicant kicked the victim & managed to free herself, dropping the knife. However, she did not flee the scene & the police came and she was arrested. Fairly extensive record - personal, social & family life sad & deficient. Guideline judgement of Henry applies retrospectively to offences committed before its promulgation. Whether plea of guilty adequately considered. Appeal dismissed.
46	BIGIC, Bogdan - CCA, 11.2.2000 Citation: R v Bigic [2000] NSWCCA 9 Sentence appeal. Import prohibited imports (methorphan & methylamphetamine). 9y with NPP of 6y. Applicant’s role was to pick up 3 co-offenders from Sydney airport when they arrived from Los Angeles. The 2 female co-offenders were carrying a large quantity of methorphan & methylamphetamine (approx 2,255 grams worth between $474,000 & $1.1 million). They were accompanied by a male who was the principal in the enterprise. When the 3 co-offenders were apprehended at Sydney airport, the 2 women immediately admitted their involvement & co-operated with authorities. Applicant was arrested 3 weeks later as he was attempting to leave for Los Angeles. The female co-offenders were sentenced to 3½y with NPP of 18m. Application of guideline sentence concerning “high-range” drugs - parity - “mid-level” involvement in enterprise. Appeal dismissed.
47	MARCHANDO, Thomas Dale - CCA, 11.2.2000 - 110 A Crim R 337 Citation: R v Marchando [2000] NSWCCA 8 Appeal against refusal to grant withdrawal of plea of guilty. Import prohibited drug (methorphan & methylamphetamine). Sentence not stated in judgement. Applicant pleaded guilty to being knowingly concerned in importation of prohibited drug. He travelled on the same flight to Australia as 2 women who were carrying a quantity of methorphan & methylamphetamine & had allegedly coached them. When apprehended, the 2 women immediately admitted their involvement & co-operated with authorities. Applicant initially pleaded not guilty but changed his plea after the trial judge admitted evidence taken by video link from a Los Angeles travel agent who identified applicant as collecting the tickets for himself, the 2 women & another co-accused (see R v Bigic [2000] NSWCCA 9). Applicant said he did not intend to admit guilt and submitted that the judge erred in refusing to permit change of plea & that he erred in admitting video link evidence. Appeal dismissed.
48	EVANS, Jason Jeffrey - CCA, 21.2.2000 Citation: R v Evans [2000] NSWCCA 20 Sentence appeal. Aggravated armed robbery. MT 6y, AT 3y. 50% discount given for assistance to authorities which led to arrest & prosecution of very serious major offenders. No details of actual offence given in judgement. Appellant became acquainted with a gang of criminals through his friendship with a young girl, as a result of which he came under the influence of the girl’s father who was an active member of a gang involved in serial armed robberies. When spoken to by police, the appellant made a full confession & gave them all the information at his disposal. Aged 27 - no priors - significant assistance to authorities - ongoing assistance to authorities - early plea of guilty - circumstances of involvement - truly remorseful - on witness protection requiring re-location upon release. Whether sentence excessive. Appeal allowed: resentenced to MT 5y, AT 2½y.
49	HUGHES, Peter Charles - CCA, 15.2.2000 Citation: R v Hughes [2000] NSWCCA 3 Conviction appeal. 6 x buggery. MT 3y, AT 3y. The above offences were related as having occurred in 1979, 4 of which were alleged to have occurred in the appellant’s grocery shop in Vaucluse. The complainant gave graphic evidence at trial of the circumstances surrounding the crimes & the fact that they were committed whilst he was employed in the appellant’s shop There was some dispute about the time and place the offences were alleged to have taken place. Time & place of offence - made essential to guilt by conduct of trial - absence of new evidence causing miscarriage. Appeal allowed: new trial ordered.
50	RYAN, Jodie Ann - CCA, 24.2.2000 - 110 A Crim R 262 Citation: R v Ryan [2000] NSWCCA 5 Sentence appeal. Maliciously inflict GBH with intent to do GBH. MT 3y, AT 3y. Condition of parole be that applicant attend a residential drug rehabilitation place such as Guthrie House. Applicant, believing victim had stolen drugs & $500 from her, hit victim very heavily on the head with a wheel lock. Victim suffered large, deep laceration & depressed skull fracture which required surgery. Sentencing judge also dealt with an appeal by applicant against a sentence which had been imposed by a magistrate, consisting of MT 10m, AT 3m, involving a violent assault on another female in a dispute over money & drugs. Sentencing judge vacated the orders of the magistrate & sentenced the applicant to FT 10m for that offence. Long criminal history - mainly property offences & minor drug offences - long-term drug addiction - long-standing depression. Inadequate weight as to attempts at rehabilitation & psychological factors - taken steps to further her education. Appeal dismissed.
51	KAMA, Torrence - CCA, 14.2.2000 - 110 A Crim R 47 Citation: R v Kama [2000] NSWCCA 23 Crown appeal. Maliciously inflict GBH. MT 9m PD, AT 18m. Vicious assault by respondent, then aged 17y 8m, & a co-offender, then just under 16y. A 3rd person involved in the attack acted as a lookout. Evidence of an eyewitness accepted by sentencing judge. Respondent & co-offender stomped on the victim’s head continuously, and also punched him on the head. Photographs available which confirmed part of the eyewitness’ account & showed the foot of the respondent coming into contact with the head of the victim on a number of occasions. Victim suffered severe head injuries & brain injuries consistent with evidence of attack & was diagnosed as having permanent brain injury. Sentence manifestly inadequate - double jeopardy. Appeal allowed: resentenced to MT 2y PD, AT 1y PD.
52	S - CCA, 24.2.2000 - 111 A Crim R 225 Citation: R v “S” [2000] NSWCCA 13 Crown appeal. Knowingly take part in manufacture of large commercial quantity prohibited drug (amphetamine). MT 18m, AT 18m. Respondent involved in the organisation & transport of equipment & chemicals, the commencement of the drug manufacturing process as well as the recruitment of others to assist. The respondent was involved in the storage of chemicals & equipment, the transhipment of some chemicals & regular attendance at the premises to monitor & assist & also manufactured at least one of the items of equipment himself. Whether sentence manifestly inadequate. Appeal allowed: resentenced to MT 3y, AT 1y.

53	HAMILTON, William Edward - CCA, 16.2.2000 Citation: R v Hamilton [2000] NSWCCA 31 Crown appeal. 4 x armed robbery. MT 1y, AT 3y. The robberies were committed over a period of little more than one month. 1st offence occurred when respondent entered a service station armed with a large knife. He took $300 in notes & apologised to the female attendant, saying he was “desperate”. 2nd offence committed upon same service station, respondent armed with large knife. On his departure, respondent asked male attendant to give cops a “shitty description of me”. 3rd offence took place when the respondent, armed with large knife, entered another service station & took $60. 4th offence occurred when respondent, armed with small knife, entered yet another service station. He pushed a young boy who was being served out of the way, then pushed the female employee against a brick wall, held the knife at her waist & removed $350 from the till. Special circumstances - double jeopardy. Whether sentence manifestly inadequate. Appeal allowed: resentenced to MT 2y, AT 3y.
54	MORGAN, Raymond George - CCA, 25.2.2000 Citation: R v Morgan [2000] NSWCCA 7 Conviction appeal. Robbery with corporal violence. Robbery of a St George Bank was carried out by 2 people who were seen by a number of persons who were either bank employees, customers in the bank at the time or persons near the bank either immediately before or immediately after the robbery. An accomplice was seen waiting in the car. Photographs of the 2 offenders were taken by a security camera within the bank. Photographs taken by the security camera were later shown to witnesses & only one eye witness identified the appellant as one of the offenders. An expert in the field of photogrammetry (a science of taking measurements from photographs) gave evidence that if his calculations of the offender’s height were correct, the offender was not the appellant. Conviction unreasonable - Crown failed to inform appellant & his legal advisers that a Crown witness had been charged with attempt pervert course of justice - fresh evidence - wrongful admission into evidence of photographic identification - cross-examination of witness about different conclusions reached by another witness in another case - cross-examination about matters not in evidence. Appeal allowed: new trial ordered.
55	KOERT, Beatrice - CCA, 18.2.2000 Citation: R v Koert [2000] NSWCCA 21 Sentence appeal. Import commercial quantity prohibited drug (cocaine - 2,435.4 grams pure - estimated wholesale value $325,000). MT 3y, AT 2y. On arrival from Chile & prior to her arrest, appellant was seen walking awkwardly at Sydney Airport. When asked, she denied carrying anything on her legs. A search revealed body packs containing cocaine. Later in the day, she agreed to assist the authorities & booked into a hotel to await a phone call from someone who would collect the cocaine from her. Over a period of 5 days, although she received phone calls, none were to do with the drugs & the operation was terminated by the Federal Police. Guilty plea - full co-operation with police - information of moderate value - South African citizen - traumatic childhood - traumatic marriage - husband had tried to murder her - she ran away to Brazil to escape his abuse, leaving her 2 children with her husband’s parents whom she trusted - was missing children, decided to return to South Africa but had not funds & a friend introduced her to people who could “help” her obtain funds. No priors - depression - appellant appeared for herself - said she saw little difference between her sentence & that imposed on directors of drug syndicates. Appeal dismissed.
56	VAN DEN BROEK, Martin Gerritt - CCA, 10.2.2000 Citation: R v Van Den Broek [2000] NSWCCA 10 Conviction appeal. Dangerous drive causing death. MT 3y, AT 3y. Basis of appeal was admission into evidence by trial judge of evidence from 2 police officers that appellant had admitted to them that he was the driver of the MV. One police officer attending the scene of the accident at a time when the person killed was still trapped in the passenger side of the vehicle said he had spoken to the appellant & the appellant had admitted being the driver. The 2nd police officer attended the scene but only spoke to the appellant some hours later when the appellant was in hospital that night. He also gave evidence that the appellant had admitted being the driver. There was also evidence from others of having seen the appellant in the driver’s seat. However, some time before the accident, another driver saw the car stopped on the side of the road & gave evidence that at that stage the appellant was in the passenger seat. Evidence from a doctor, who treated the appellant in hospital, that the appellant had told him he was the driver. Appeal dismissed.
57	TAUMAIALO, Keli - CCA, 18.2.2000 Citation: R v Taumaialo [2000] NSWCCA 14 Conviction and sentence appeal. 2 x sexual assault without consent in circumstances of aggravation. At the conclusion of the trial for the above offences, the appellant appeared for sentence after pleas of guilty to AOABH & larceny contained in a separate indictment. Appellant & complainant had been acquainted for a short time before offences, he then aged 20y & she 14. Complainant went with appellant to his home, intending to go to church with his family & friends. A number of the family proceeded to the church & while waiting at the home for the car to return for them, the appellant took the complainant into his room where forced penile intercourse & an act of fellatio took place. Evidence - discretionary exclusion - summing up - directions on delay in complaint - mild intellectual disability - whether sentence excessive. Appeal dismissed.
58	McINTYRE, Stuart James - CCA, 24.2.2000 - 111 A Crim R 211 Citation: R v McIntyre [2000] NSWCCA 6 Conviction appeal. 1 x B&E & maliciously damage property by fire; 1 x steal MV. Substantive issue at trial was whether Crown could prove that the fire had been started by the appellant & whether Crown could prove that the appellant was not a part-owner of the vehicle & that he had no bona fide claim of right to drive it. Whether trial miscarried by reason of trial counsel’s conduct & incompetence - criticism of appellant by judge - directions upon appellant’s case - directions to consider whether payment by appellant of $400 towards purchase of a MV may have been by way of a gift. Appeal allowed: new trial ordered.
59	LOCKE, Shane Morris - CCA, 21.2.2000 Citation: R v Locke [2000] NSWCCA 19 Sentence appeal. Aggravated robbery; + offences on a Form 1 taken into account (driving offences & offence of failure to appear). MT 2y, AT 1½y. Appellant had missed the last train of the evening & the victim offered him a lift in his car. Appellant, his young nephew (aged 11) & victim were in the car when the victim said that, rather than transporting them that night, he could offer them overnight accommodation whereupon he took them to a house which had no electricity & at the house the victim made remarks which were clearly & understandably taken by the appellant to indicate that the victim was sexually interested in the appellant’s young nephew. The appellant became upset & attacked the victim, then robbed him & took his car. Evidence before the court showed the reason for the robbery & taking the car was very much provoked by the appellant’s perceived need to take his nephew away from danger. Possibility that appellant’s vulnerability to becoming upset was enhanced by his prior ingestion of intoxicating liquor. Guilty plea - aged 39y - Aboriginal background - desire to address alcohol problem - special circumstances. Appeal allowed: resentenced to MT 18m, AT 12m.
60	GOONAN, Patrick Michael - CCA, 8.2.2000 Citation: R v Goonan [2000] NSWCCA 25 Conviction and sentence appeal. Armed robbery - MT 10y, AT 3y 4m. At a separate trial: escape from lawful custody - FT 1y 9m; possess shortened firearm - MT 3y 9m, AT 2y 9m. After sentence for the armed robbery, appellant appealed. The appeal was heard on 19.3.93 & dismissed. Recently appellant lodged a petition under s.474 Crimes Act seeking a review of his conviction & on 22.11.99 the AG referred the matter to the CCA to be dealt with as an appeal under the Criminal Appeal Act. Principal foundation for appellant’s petition arose from the fact that 2 of the police officers who gave evidence at his trial & during the course of his appeal (one ground was that fresh evidence had become available) have been shown to be guilty of dishonesty. Earlier appeal records show that Crown case at trial relied solely upon admissions alleged to have been made by appellant to police officers & admissions recorded in a signed ROI. Appellant’s case was that he had made no admission but had signed the ROI because police told him if he didn’t do so they would charge him with a number of other robberies & charge his wife with being an accessory to them. Present ground of appeal was a claim there had been a miscarriage of justice because one of the robbers who had pleaded guilty was not available to give evidence at the appellant’s trial, having been threatened by police that if he did so, they would “load him” with another armed robbery. Appellant has already served more than the MT for the armed robbery. Conviction appeal allowed for the armed robbery offence & a verdict of acquittal entered. Sentence appeal for other offences allowed insofar as sentences backdated to date they were imposed.
61	HUYNH, Ding Khoung - CCA, 14.2.2000 LAM, Tuan Van TA, Non Huu Citation: R v Huynh, R v Lam, R v Ta [2000] NSWCCA 18 Crown appeals. Affray. Early pleas of guilty. Lam: 3y GBB; Ta: 2y GBB; Huynh: 2y GBB. There was a brawl in the vicinity of a roller skating rink between 2 groups of young men, mostly of Vietnamese origin. Eye witnesses estimate up to 30 persons involved. One youth was stabbed to death, a 2nd sustained a broken leg & other injuries, the respondent Huynh sustained a knife wound to his left wrist. All participants in the brawl were of Asian appearance, a number of them were armed with machetes & other weapons, including a tomahawk. Some climbed on vehicles & smashed them with machetes. Described by trial judge as a “frightening melee”. Whether sentences manifestly inadequate. Appeals dismissed.
62	PRESTA, Bruno - CCA, 21.2.2000 Citation: R v Presta [2000] NSWCCA 40 Sentence appeal. 5 x kidnapping; 21 x aggravated sexual assault; + 10 offences taken into account on Form 1. Aggregated MT of 14y 3m, AT 9m. Principal charges involved 5 victims, offences on Form 1 involved 2 further victims, one of an AOABH & another of homosexual intercourse without consent on person aged 15y. Elements of sadism involved. Insufficient weight given to plea of guilty - failure to comply with s.439(2) Crimes Act - insufficient weight given to fact that appellant will serve his sentence in protective custody - contrition - forfeiture of house - rehabilitation - whether sentence manifestly excessive. Appeal dismissed.
63	RASO, Mario - CCA, 16.2.2000 Citation: R v Raso [2000] NSWCCA 22 Conviction appeal 2 x indecent assault on female under 16; 1 x sexual intercourse without consent on female under 16 & in the alternative 1 x sexual intercourse with female under age of 16. Appellant found not guilty on first 3 counts but guilty on the 4th charge. 2y PD. Appellant was married to complainant’s sister. Complainant alleged that on one occasion he grabbed her breast, on another he tried to kiss her & was touching her around the breasts & vaginal area. She spoke to one of her teachers about the incidents. Some months later, the complainant said the appellant raped her. The following day she told a friend about it. Another time, the appellant was dragging her towards the bedroom when her sister came in. Her sister took her to the police station & she spoke to a female police officer but couldn’t remember making a formal statement. She spoke to two school counsellors & then some months later went to the police. Inconsistent verdicts - unsatisfactory nature of complainant’s evidence - verdict “unsafe & unsatisfactory”. Appeal dismissed.
64	PULIDO, Alfonso - CCA, 2.12.99 Citation: R v Pulido [1999] NSWCCA 438 Sentence appeal. Possess trafficable quantity prohibited import (cocaine). MT 4½y, AT 2y. Applicant agreed to receive a parcel sent by post from Columbia. It was intercepted & found to contain 600 grams pure cocaine. He pleaded guilty to an offence contrary to s.233B(1) Customs Act. Whether head sentence outside range appropriate for offence - whether NPP excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing. Leave to appeal refused.
65	TRAN, Van Dung - CCA, 23.12.99 Sentence appeal. Manslaughter. MT 4½y, AT 1y 5m. Applicant had pleaded not guilty to murder & following an adjournment in which the prosecution carried out some ballistic tests, he was reindicted. He maintained his plea of not guilty to murder but pleaded guilty to manslaughter. Applicant killed his brother who was some years younger & in Year 12 at the time. He suspected his young brother of stealing money, gold and jewellery from their mother in order to buy marijuana. He claimed to have wanted to scare his brother, however, he gave 3 versions: “of not intending to shoot; an intention to shoot; & an intention to shoot but he shot at a time at which he did not have an intention to shoot”. He also claimed his brother moved & the bullet hit him in the upper right side of his head. Priors for driving offences - no previous imprisonment. Contrition - sentencing discretion. Appeal dismissed.
66	McNALLY, Garry Michael - CCA, 6.12.99 Citation: R v McNally [1999] NSWCCA 449 Sentence appeal. 1 x affray - MT 2y 3m; 1 x assault - FT 6m (concurrent). Applicant had been employed on a property & had left personal effects & furniture on the property. He returned, along with friends, to collect his possessions. On being admitted to the property, the owners were harassed and terrorised, one of the friends producing a gun & pointing it at the owners. The applicant engaged in verbal abuse directed towards the owners & also threatened to strike the male owner with a crowbar. The harassment & threatening went on for some hours. Weight - attributing greater role & criminality to applicant than to co-offender - parity - failure to find special circumstances. Appeal dismissed.
67	HA, Bao Vinh - CCA, 26.11.99 Citation: R v Ha [1999] NSWCCA 385 Sentence appeal. Knowingly concerned in importation of trafficable quantity heroin; possess trafficable quantity prohibited imports (heroin). MT 8y, AT 4y. Born in Vietnam, came to Australia in 1987 aged 17, now an Australian citizen. Maintained ties with Vietnam & opened a coffee lounge in Ho Chi Minh City, also became involved in another business venture in that city. He travelled frequently between Australia & Vietnam & sent a quantity of heroin from Vietnam to Australia by post. The heroin was in heat-sealed plastic bags contained in envelopes addressed to one or other of 2 post office boxes, one in applicant’s name, the other in his fiancee’s name. Police intercepted 20 such envelopes between March & June 1997, the gross weight of heroin in them was 449.7 grams, average purity of 70.7%, yielding a total of 317.9 grams pure heroin. When searching applicant’s home in Sydney, police found 15 heat-sealed plastic bags containing 123 grams heroin, purity 70.8%, yielding 87.72 grams pure heroin. They also found a glass jar with a further 206.3 grams heroin, purity 67.4%, yielding 138 grams pure heroin. The total gross weight of heroin seized was 779.9 grams, yielding 544.6 grams pure heroin. Aged 28 - no prior convictions - good education & employment record - continuing support of family & fiancee - remorse. Whether sentence manifestly excessive. Appeal allowed: resentenced to 10y, with NPP of 6½y.
68	BELL, Trevor Dean - CCA, 27.10.99 Citation: R v Bell [1999] NSWCCA 423 Sentence appeal. Aggravated BE&S. MT 4½y, AT 1½y. Applicant smashed the bedroom window of a house & he and his de facto wife entered & began to collect a large amount of property. In smashing the window, applicant injured his hand & while the two of them were in the house, he shed a good deal of blood & onto the property of the occupants. Police arrived & no property was in fact removed from the house, but a great deal was damaged as a result of the blood shed by the applicant. The female occupant of the premises estimated the damaged property to be valued at about $3,000. Plea of guilty. Long criminal history (70 prior offences, 9 of which were BE&S & enter with intent to commit felony) - Aboriginal descent - history & background with many of the characteristics & features described in R v Fernando (1992) 76 A Crim R 58 - from age of 7 lived in institutions or with relatives because of instability arising from parents’ alcohol abuse - addicted to heroin. Parity - insufficient attention paid to circumstances of early life & drug addiction - remark by sentencing judge stereotyping Aboriginal community. Appeal allowed: MT 2½y, AT 2½y.
69	NGUYEN, Kiet Huu - CCA, 25.2.2000 Citation: R v Nguyen [2000] NSW CCA 44 Sentence appeal. Demand money with menaces. MT 3½y, AT 1y 2m. Organised attempt at extortion from operators of a brothel. A group of men attended to enforce demand, some of them were armed. Inferences of knowledge available to sentencing judge. Leave to appeal refused.
70	MURCHIE, Richard - CCA, 27.10.99 - 108 A Crim R 482 Citation: R v Murchie [1999] NSWCCA 424 Sentence appeal. Robbery in company; assault; malicious damage; + a count of possess prohibited article taken into account. MT 3y, AT 3y. Offence of robbery in company committed when, in the company of 3 other young men, applicant entered a bank, jumped the counter & opened staff access door, permitting 2 of his co-offenders to enter the staff area. They removed cash amounting to $16,610. Photographs taken from video surveillance equipment showed customers present in the bank who were subjected to a degree of violence or threats of violence by the offenders. One of the men said he was going to shoot somebody. Police executed a search warrant at applicant’s home & after questioning the applicant about a good deal of material they found there, the applicant picked up a sword which was lying on the table & pointed it towards one of the police officers, claiming to be crazy & he threatened to stab the police officer. The 2 officers backed out of the room & shut the door & the applicant stabbed the sword into the back of the door 5 times. A can of pepper spray was found in the applicant’s room during the search. Sentence excessive - parity - failure to take into account pre-sentence custody. Appeal allowed: resentenced to MT 2y 3m, AT 2y 9m.
71	CLOGHER, Sandra - CCA, 8.12.99 Citation: R v Clogher [1999] NSWCCA 397 Conviction appeal. 3 x recklessly make statements false in material particular with intent to obtain monies for another. Appellant was the secretary of a company & both she & her husband were directors. The company entered into 2 contracts with the Department of Public Works. Under those contracts the company was entitled to claim progress payments at the end of each month & 14 days after the claim the Department would issue a progress payment certificate & 14 days thereafter was required to pay the specified amount. Under clause 43 of the contracts, the Department required statutory declarations that all workers, sub-contractors & suppliers had been paid all monies for work performed. These statutory declarations were made, however, complaints were received from sub-contractors & suppliers that they had not received payment. When contacted, the appellant indicated the company had been experiencing cash flow problems. The company was placed into provisional liquidation. There was evidence that sub-contractors, suppliers & workmen were owed substantial amounts of money at the time the appellant made each of 3 statutory declarations. Statements made to ensure compliance by another with contract - not necessary under the contract for payment of monies - nature of materiality - directions to jury. Appeal dismissed.
72	GRIGGS, Lee Jason - CCA, 29.2.2000 - 111 A Crim R 233 Citation: R v Griggs [2000] NSWCCA 33 Crown appeal. Robbery in company. 2y GBB. Respondent & 2 co-offenders equipped themselves with balaclavas, a kitchen knife each, gloves, & masking & wrapping tape & entered a mixed business store just before closing time. They forced 2 male staff members to the floor & used tape to tie their hands behind their backs, then they took more than $600 from 3 tills & 18 packets of cigarettes. Respondent was arrested a week later & co-operated with police, admitting his role in the offence. Co-offenders received 150 hours Community Service. Aged 19 at time of offence - minor record in Children’s Court - truthful witness - marijuana use - voluntarily entered a rehabilitation programme - supportive family. Appeal allowed: resentenced to 18m PD.
73	S.D. - CCA, 25.2.2000 Citation: R v S.D. [2000] NSWCCA 43 Sentence appeal. 6 x armed robberies; + a further 25 offences taken into account (20 armed robs, 5 assault with intent to rob whilst armed). MT 7y, AT 3y. In 4 cases, the offensive weapon used was a knife & in 2 cases a blood-filled syringe. No other details about the armed robberies provided. Offences committed shortly after release on parole for similar offence. Long criminal history. Particular discount available to offender - substantial assistance to authorities - special circumstances found by sentencing judge. On appeal: sentences imposed did not sufficiently reflect leniency to which applicant was entitled for providing evidence against himself where the Crown case would have otherwise failed & the discount for valuable assistance to the authorities. Appeal dismissed.
74	ALLBON, Nathan Grant - CCA, 25.2.2000 Citation: R v Allbon [2000] NSWCCA 41 Sentence appeal. 1st indictment: malicious wounding with intent to inflict GBH; 2nd indictment: BE&S + malicious damage by fire taken into account. MT 4y, AT 4y. Guilty pleas. Applicant broke into a pie shop & stole $180 & then set fire to paper bags under a counter. He was on bail for this matter when he committed the malicious wounding. He entered the victim’s home through a closed but unlocked wire screen door & removed a knife from a drawer. The victim was a severely handicapped person & sight impaired. He was sitting in a darkened room with the TV going & the applicant stabbed him 15 times, causing grievous injury to a number of parts of the man’s body. He left the premises, having washed the knife & replaced it in the drawer. He pulled the door shut which activated a deadlock. The applicant’s mother, who was visiting somebody in the same block of units, heard sounds of distress & ambulance officers were called & were able to break into the flat & take the victim for treatment. Applicant born with cerebral palsy - intellectually & physically disabled - long criminal history - some 90 appearances in courts for offences - because of being handicapped, has been treated with a considerable amount of leniency. Too much weight given to general deterrence - rehabilitation. Appeal allowed in part to adjust commencement date of sentences.
75	LIPOHAR & WINFIELD v THE QUEEN - HC, 9.12.99 - 200 CLR 48574; 74 ALJR 282 Jurisdiction. Conspiracy to commit fraud. The appellants unsuccessfully sought orders under the Supreme Court Criminal Rules 1992 (SA), r.8, to quash & stay proceedings on the informations charging them with conspiracy on the grounds that the informations did not disclose an offence triable in South Australia. The basis of this contention was that the conspiracy was formed wholly outside the territorial boundaries of South Australia and, as such, there was no offence against any law of the State and the Local Court lacked jurisdiction to receive the informations. Whether triable in State court - where conspiracy formed outside State - connection between State and subject of offence. Appeal dismissed.
76	PUCKERIDGE - HC, 21.12.99 - 74 ALJR 373 Crown appeal. Murder. Respondent was acquitted by the CCA of NSW which held that the verdict of guilty of murder was not supported by the evidence. The Court determined that the Crown had not excluded the possibility that the victim’s death was unrelated to the attack perpetrated by the respondent. Whether evidence capable of satisfying jury beyond reasonable doubt that act of defendant caused death of victim. Appeal allowed: decision of the CCA reversed.
77	PETERSON, Jason Andrew Peterson - CCA, 25.2.2000 Citation: R v Peterson [2000] NSWCCA 47 Sentence appeal. Sexual intercourse without consent; malicious wounding; steal from the person. MT 6y 9m, AT 2y 3m. Applicant attacked a young woman, had forcible sexual intercourse with her, stripped her & took her clothes. He also took her purse. At one point, he wounded her. Applicant left & his victim was found naked & unconscious in a public place near a railway station. Both applicant & victim affected by alcohol at the time. Aged almost 30 at time of appeal - Aboriginal - poor prior record - many offences of violence committed in domestic context. Significance of violence to individual counts - status of history given to psychiatrist as evidence. Appeal dismissed.
78	GREY, Anthony Stephen - CCA, 3.3.2000 - 111 A Crim R 314 Citation: R v Grey [2000] NSWCCA 46 Conviction appeal. 5 x steal MV; 4 x dispose of stolen MVs. MT 3y, AT 2y. Appellant involved in systematic theft & “re-birthing” of Ford motor vehicles & their subsequent re-sale. All offences alleged to have been committed between April & November 1992. Crown presented its case on circumstantial basis, relying on doctrine of recent possession. Appellant did not dispute possession or disposal of vehicles, but denied stealing them & converting them or knowing they had been stolen. He claimed to have received 4 vehicles from another (who was a Crown witness) & that he had purchased the 5th vehicle & given it to that man to repair. Witness - disclosure of prior convictions - defence aware that witness was police informer but not that he had received consideration for such in his own sentencing proceedings - whether absence of cross examination led to miscarriage. Appeal dismissed. Note: High Court appeal allowed: convictions quashed, a new trial ordered on all counts.
79	CONSTANTINOU, Sam - CCA, 3.3.2000 Citation: R v Constantinou [2000] NSWCCA 42 Appeal against redetermination of life sentence under s.13A Sentencing Act 1989. 3 x murder - sentence at 1st instance: concurrent life sentences; 5 x robbery with striking & wounding - sentence at 1st instance: 10y. Application was made for redetermination of life sentences & on 4.6.99 James J granted the application & resentenced the appellant on each of the 3 counts of murder to concurrent MT 30y, AT life. At the time of that application, the sentences on the robbery counts had expired. All crimes involved mugging selected older male victims by attacking them from behind. At trial, Crown relied alternatively upon reckless indifference to human life or upon felony/murder as an ingredient for proof of murder in each case. Trial judge found that appellant should be regarded as having committed felony/murder. Psychiatric or psychological assessment not provided to primary judge inhibiting findings of future prospects - new evidence tendered on appeal. Appeal allowed: resentenced to MT 25y, AT 10y.
80	APORO, Mita - CCA, 23.2.2000 Citation: R v Aporo [2000] NSWCCA 48 Sentence appeal. 2 x assault; 1 x assault police officer in the execution of his duty; 1 x threaten witness. In respect of first 3 counts: FT (actual sentence not mentioned, except that at the time of the hearing of the appeal, it had expired); 4th count: MT 2½y, AT 1½y. The above offences involved violence in & about a hotel in Manly. The sentencing judge erroneously made orders concerning parole, overlooking that the power of the court to order parole is limited to sentences of 3 years or less. Recidivist - priors for assault, AOABH, affray - described in the CCA as “something of a thug”. Impositions for related assaults served within encompassing term - pattern of sentence - statistics kept by Judicial Commission relevant. Whether sentence manifestly excessive. Appeal allowed: resentenced to MT 1½y, AT 6m.
81	DE GRUCHY, Matthew Wayne - CCA, 2.3.2000 - 110 A Crim R 271 Citation: R v De Gruchy [2000] NSWCCA 51 Conviction appeal & application for leave to appeal against sentence. 3 x murder. On each count: concurrent MT 21y, AT 7y. Appellant was convicted of the murder of his mother, his sister & his brother, each killed in the family home. All suffered multiple head wounds. The mother & sister were found in their beds, the brother in the garage. As well as the wounds to the head, the brother had also suffered wounds to his torso. He smelled strongly of petrol & his arms were blistered. His shirt & short were soaked in petrol. Directions to jury - whether case for accused put fairly - whether verdict unreasonable having regard to evidence - sufficiency of directions concerning comments by Crown - whether summing up unbalanced. Conviction appeal dismissed; application for leave to appeal against sentence refused.
82	KHATTER, Naresh - CCA, 29.2.2000 Citation: R v Khatter [2000] NSWCCA 32 Crown appeal. Dangerous drive causing death. 2y PD. The deceased, his wife & daughter were visiting the respondent’s home. The 2 men began to consume alcohol in the early evening. After a meal, the men left in the respondent’s car at about 11.30 pm, the respondent driving & the deceased in the front passenger seat. They were travelling to Bankstown to visit a friend of the deceased & were on a 6-lane, well lit, almost deserted highway. The respondent lost control of the vehicle which failed to take a bend. It struck the median strip, travelled across the wrong side of the road, mounted the far kerb, collided with a fence, rolled several times & collided with a tree & continued a further 51 metres before coming to a halt on its roof in the front yard of a house. The vehicle had travelled 112 metres from the point where it first struck the median strip. The deceased died instantly. Appeal allowed: resentenced to FT 3m.
83	NGUYEN, Minh Hieu - CCA, 16.2.2000 Spigelman CJ, Hulme J, Smart AJ Citation: R v Nguyen [2000] NSWCCA 45 Sentence appeal. Manslaughter. MT 3y, AT 1y. Pre-sentence custody taken into account. Applicant was arrested & charged with murder & he was subsequently convicted. He appealed against his conviction & a new trial was ordered. He was again indicted for murder & pleaded not guilty to murder but guilty to manslaughter. The plea was accepted on the basis of an unlawful & dangerous act, namely striking the deceased with a baseball bat around the neck & head. The Crown case was that the applicant was engaged in a common criminal enterprise to assault & attack the deceased. Many of the facts were in dispute & the judge made detailed findings, all of which were open & justified by the evidence. Act out of character - solid family ties - reasonable employment record - guilty plea. Ratio of AT to MT - special circumstances. Appeal dismissed.
84	ELOMAR, Khaled - CCA, 21.2.2000 Hidden J, Carruthers AJ Citation: R v Elomar [1999] NSWCCA 459 Sentence appeal. Supply prohibited drug (cannabis); + offences on a Form 1 - 2 x possess heroin, 1 x goods in custody, 3 x unlawfully possess prescribed restricted substance. MT 9m, AT 1y 9m. Police, acting on information received, executed a search warrant at the applicant’s premises & located a plastic bag containing a block of cannabis & 26 small resealable plastic bags, each containing cannabis. A further search located items which gave rise to the Form 1 matters. 23 prior offences, including robbery (either alone, in company or armed); dishonesty and/or violence - on parole at time of subject offence. Matter could have been dealt with in the LC - whether sentence manifestly excessive. Appeal allowed: MT 9m, AT 1y 3m.
85	MURRAY, Denis Michael - CCA, 8.2.2000 Hulme J, Carruthers AJ Citation: R v Murray [1999] NSWCCA 457 Sentence appeal. 1 x indecent assault on child under 16 by person in authority; 4 x aggravated indecent assault. Aggregate: MT 18m, AT 18m. Applicant in de facto relationship with complainant’s mother who had a child from a previous relationship. Complainant was a little over 5y old when the indecent assault was committed. The other offences took place over a period until the child was aged almost 12. When the child was a little over 6y, she told her mother about the incidents that had occurred & the mother separated from the applicant, but she returned to him after 6 months on his promise that the misconduct would cease. However, the conduct continued for a further 5 years. Aged 58 years - no prior record - shameful of conduct - remorse - prior good character - attempts at rehabilitation. Applicant appeared for himself n the CCA. His grounds of appeal were as follows: “My counsel failed to use materials supplied for leniency to its fullest benefit. Failed also to use term of reference provided. My counsel appeared rather antagonistic towards me and failed to represent me as I expected.” Appeal dismissed.
86	MRISH, Nabil - CCA, 8.2.2000 Spigelman CJ, Hulme J, Carruthers AJ Citation: R v Mrish [2000] NSWCCA 17 Sentence appeal. Possess firearm - FT 18m; 2 x pervert course of justice - MT 2y 3m, AT 9m on 1st of these counts & FT 2y on 2nd. Applicant was arrested with respect to the 2 pervert course of justice charges & during the course of the execution of a search warrant on his home, a firearm & ammunition were discovered. The counts of pervert the course of justice arose from the applicant’s conduct with respect to a murder charge against his brother, George Mrish. Whether sentence excessive - failure to identify special circumstances - failure to take into account time spent in custody. Appeal dismissed.
87	ZAIA, Karen Marie - CCA, 23.2.2000 Grove, Greg James JJ Citation: R v Zaia [2000] NSWCCA 52 Sentence appeal. Armed robbery; + 1 x BE&S on a Form 1 taken into account. MT 3y, AT 2y. Appellant, wearing a baseball cap & sunglasses, entered small shop & accosted the operator with a kitchen knife. She took approx $145. When she left, she dropped the knife. The owner of the shop pursued her & she was later handed to police. The Form 1 offence occurred one month before the appellant appeared for sentence. Aged almost 30 - no priors - drug addiction - rehabilitative steps - severance of relationship with co-offender who introduced appellant to heroin - special circumstances.. Appeal allowed: resentenced to: MT 2y, AT 2y.
88	STANLEY, Peter Kenneth - CCA, 16.2.2000 Sully J, Carruthers AJ Citation: R v Stanley [1999] NSWCCA 460 Sentence appeal. Armed robbery (knife). MT 4y, AT 3y. On being released from gaol for a prior offence, applicant consumed excessive amounts of alcohol & ingested some drugs. He wanted more drugs & was misinformed that the male occupant of the house next door had drugs on the premises. He went to those premises, armed with a 14cm knife. The occupant was not there, however, a young 18 year old friend of his was & the applicant punched him in the throat & cheek area, asking for drugs. The victim eventually was able to satisfy the applicant that he knew nothing about drugs & gave him $20 from his wallet to get rid of him. The applicant took the money & left the house. Applicant unrepresented in CCA - aged 32 - Aboriginal - itinerant life - convictions in NSW, NT & other States - prior record commenced when aged 16 - dysfunctional family background - lived on streets in Melbourne - addicted to drugs & heavy consumption of alcohol - sexually abused as a child - on recognizance at time of subject offence. Reference to Judicial Commission statistics - whether sentence excessive. Appeal allowed: resentenced to MT 3y, AT 2y.
89	ARMAND-ISKAK, Sheon Alexander - CCA, 10.12.99 Beazley JA, Newman, Greg James JJ Citation: R v Armand-Iskak [1999] NSWCCA 414 Sentence appeal. Maliciously inflict ABH with intent to have sexual intercourse; + 2 charges of common assault taken into account on a Form 1. MT 6y, AT 5y. Applicant had been drinking & boarded a westbound train at Bondi Junction. His female victim boarded the train at Town Hall station. Having noticed the applicant staring at her, she changed carriages at Redfern. The applicant followed her & after the train left Redfern station he approached her & told her to take her pants off, then he grabbed her by the hair. He told her again, but she refused. The applicant then punched her on the forehead & face. The applicant continued to attack the victim & she continued fighting him off. At one point he had her on the floor but she managed to kick him in the groin & free herself, then the train stopped at Burwood station & she jumped off. The applicant continued to pursue her & some other passengers & station staff gave chase. Two passengers were hurt by the applicant before he was restrained & police arrived & arrested him. Significant criminal history, including 2 similar offences, one involving armed robbery as well, the other robbery & larceny. Remark by sentencing judge of dangerous propensity to prey on young women - insufficient weight given to plea of guilty - whether sentence manifestly excessive. Appeal dismissed.
90	K - CCA, 24.2.2000 Grove, Sully, Simpson JJ Citation: R v K [2000] NSWCCA 24 Crown appeal. Manslaughter. 4y GBB with conditions. Respondent & deceased first met at Central Railway Station. By November 1995, respondent was living in deceased’s one-bedroom unit. Before August 1996, that arrangement came to an end. Late August 1996, respondent resumed living in deceased’s unit for a period of 2 months when he was not roaming the streets, committing offences & abusing drugs. Deceased had access to drugs & would pass them on to the respondent. Respondent claimed deceased had sodomised him about a week or two prior to the killing. He said he returned to the unit to collect his personal belongings & claimed that while there, the deceased made sexual advances. Being afraid of being sexually attacked, he went to the kitchen, took a kitchen knife & attacked the deceased. The wounds included a 135 mm cut to the throat, a stab wound to the head, penetrating the skull & 4 stab wounds to the upper part of the deceased'’ back, varying in depth between 90 & 100 mm, 3 of them penetrating bones. All 4 wounds to the back penetrated one of the deceased’s lungs. Sentencing judge found provocation, diminished responsibility. Greater part of remarks on sentence devoted to evidence concerning respondent’s subjective circumstances, being so deeply affected by them as to have given them a weight impermissibly disproportionate to the objective gravity of the offence. Tragic upbringing - developmentally delayed in 1st year of life due to lack of care by alcoholic mother - removed from her - gross behavioural, emotional, educational & cognitive problems by age of 6 - inadequacies in persons with whom he was fostered - placed in Bernardos, then in other foster care, then back to his mother - mother could not cope & he was removed from her care. Institutionalised, then rejected once again by his mother - lived on the streets. Aged 16y 9m at date of killing - aged 19y 8m at time of sentence - some criminal antecedents - remorse. Appeal dismissed.
91	KORKMAZER, Yilmaz - CCA, 6.12.99 Fitzgerald JA, Newman, Greg James JJ Citation: R v Korkmazer [1999] NSWCCA 454 Conviction appeal. Very short judgment. Appellant convicted for an offence against s.33 Crimes Act 1900, whereas he pleaded guilty to an offence against s.35 of the Act. Agreed appropriate course was that the appeal should be upheld. Appeal allowed: conviction quashed.
92	HENMAN, Gregory Charles - CCA, 8.3.2000 Fitzgerald JA, Abadee, Barr JJ Citation: R v Henman [2000] NSWCCA 58 s.5F application for leave to appeal against orders declining to stay certain proceedings, or, alternatively, granting a conditional stay pending appropriate medical examination of complainant. Complainant an alleged victim in sexual assault proceedings. Whether discretion miscarried - whether applicant unable to receive fair trial. Leave to appeal refused.
93	BLICK, Jesse David - CCA, 14.3.2000 - 111 A Crim R 326 Sheller JA, James, Dowd JJ Citation: R v Blick [2000] NSWCCA 61 Conviction appeal. Robbery (armed). Some cash & a bum bag were stolen during a robbery. The victim gave the police a description of the offender as a man with a goatee beard. A week later he was shown a bum bag which he identified as his & he was also shown photographs of 12 men, including one of the appellant. The photograph of the appellant was the only one of a man with a goatee beard. At trial, appellant pleaded not guilty. Basis of Crown case rested on identification evidence. Trial judge refused appellant’s application to have photographic identification evidence excluded under s.137 Evidence Act. Probative value of evidence - danger of unfair prejudice - judicial discretion - weight to be given - residual discretion. Appeal allowed: judgment & verdict of acquittal entered.
94	BJW - CCA, 14.3.2000 - 112 A Crim R 1 Sheller JA, James, Dowd JJ Citation: R v BJW [2000] NSWCCA 60 Crown appeal. 5 x sex offences (indecent assault, carnal knowledge, sexual intercourse); 1 x AOABH. Aggregate MT 2y, AT 8m. Complainant was the respondent’s step-daughter & she was aged between 9 & 23 at the time of the offences. Evidence at trial that respondent suffered chronic lower back pain, epilepsy & migraine attacks, requiring regular medication. Medical evidence that long-term imprisonment might contribute to depression. Sentencing judge gave effect to medical evidence & substantially reduced sentence. Trial judge gave little details of the facts & circumstances of the offences & nothing was said of the impact of the respondent’s conduct upon the complainant. General deterrence - position of trust - child sexual abuse within family unit - respondent’s health - overly generous discount. Appeal allowed: resentenced to aggregate MT 3y 9m, AT 1y 3m.
95	CHAMI, Bassam - NSW SC, Studdert J, 8.12.99 Citation: R v Chami [1999] NSWSC 1268 Sentence: Manslaughter. Deceased, aged 34, celebrating Anzac Day with friends at Auburn Village Tavern. About midnight deceased became involved in an argument in the tavern. Security staff intervened, then a fight erupted between security staff & a number of persons near the doorway of the tavern. The incident was recorded on video within the tavern. The deceased went outside & became involved in a fight on the footpath. Shortly after, the prisoner approached the deceased & stabbed him in the left side of his chest with a knife. Sentenced to: MT 5½y, AT 3y.
96	RISTESKI, Steve - NSW SC, Dunford J, 13.12.99 Citation: R v Risteski [1999] NSWSC 1248 Sentence: Manslaughter (unlawful & dangerous act). The prisoner & a group of friends went to the Sydney Harbour Casino to watch a televised World Cup qualifying soccer match between England & Italy. An argument broke out between prisoner’s group & some English fans. The prisoner was recorded on video as having punched the victim to the side of his neck. The victim then staggered, walked a short distance & collapsed unconscious to the floor. As the victim was falling to the floor, the prisoner threw a punch, then he kicked at the head area of the victim while he was on the floor in an unconscious state. Special circumstances. Sentenced to: MT 3y 4m, AT 2y (2m pre-sentence custody taken into account).
97	FORRESTER, Helen - CCA, 7.3.2000 Sheller JA, James, Dowd JJ Citation: R v Forrester [2000] NSWCCA 66 Crown appeal. Robbery in company. 2y GBB. Reduced sentence because of undertaking to assist law enforcement authority. Respondent failed to fulfil that undertaking. Respondent went before another judge for sentence on a charge of assault with intent to rob in company & wounding. The judge was invited by the Crown to deal with the breach of recognizance & the respondent was sentenced to FT 6m. It was against this sentence that the Crown appealed. Notice of appeal in respect of order by one judge but Crown case directed to sentence pronounced by another judge. Appeal misconceived. Appeal dismissed.
98	GIRI, Nitin - NSW SC, Studdert J, 21.12.99 - 109 A Crim R 499 KARKI, Ivesh R v Giri & Karki [1999] NSWSC 1269 Sentence: Murder. Deceased subjected to violent assault after he left a nightclub. It seems the reason for the assault was because the deceased had laughed at the way the prisoner Kiri’s brother was dancing. The deceased was knocked to the ground & kicked. According to one witness, he was also stomped upon. He sustained severe head injuries. He was unconscious when admitted to hospital & later died. Each sentenced to: MT 12y, AT 5y.
99	MARKAR, Kiriakos - CCA, 10.3.2000 Beazley JA, Newman, Greg James JJ Citation: R v Markar [2000] NSWCCA 72 Sentence appeal. Obtain possession of commercial quantity prohibited import (cocaine). MT 4½y, AT 1½y. Net weight 2.635 kgs pure cocaine, street value approx $1.5 million. Customs intercepted an Express Mail Service package addressed to an electronics communications company in Sydney. Inside the package was a satellite receiver & the cocaine was located within the receiver. Inappropriate weight given to plea of guilty - sentencing ratio - whether sentence manifestly excessive. Appeal dismissed.
100	WADE, Douglas James - CCA, 10.3.2000 Fitzgerald JA, Barr J, Smart AJ Citation: R v Wade [2000] NSWCCA 56 Conviction appeal; application for extension of time within which to appeal against conviction. Murder - sentenced to life imprisonment; sexual intercourse with child under 10 - sentenced to FT 10y. Atrocious sexual assault on deceased child who was the 22 month old daughter of the appellant’s girlfriend. The injuries which killed her were inflicted on her during a period of 15-30 minutes when she was alone in the house with the appellant & her 3 year old brother. Application for extension of time filed little less than 9 years after sentence - whether admission of “relationship” evidence constituted miscarriage of justice - sufficiency of evidence of penetration - directions on necessary mental elements. Extension of time refused.
101	CAPPER, Wayne Bradley - CCA, 14.3.2000 Fitzgerald JA, Abadee, Barr JJ Citation: R v Capper [2000] NSWCCA 63 Sentence appeal. Knowingly concerned in importation of trafficable quantity ecstasy. MT 3y, AT 2y. Ecstasy imported was 478.8 grams gross, equivalent to 167.1 grams pure. Effect of sentence on applicant’s children - applicant in sole parenting role, their mother having been hospitalised with a mental illness - whether taken into account by sentencing judge - children now made wards of the State - whether Court should show mercy. Leave to appeal refused.
102	AZAR, Maurice Joseph - CCA. 21.2.2000 Grove, Greg James JJ Citation: R v Azar [2000] NSWCCA 26 Sentence appeal. 2 x BE&S; 1 x receiving; + 16 matters taken into account on a Form 1. MT 9y, AT 3y. Sentence imposed in light of applicant’s extensive prior record. Sentencing judge referred to frank evidence of applicant that he was by occupation a thief & has had little or no other work throughout his life. Prior criminal record commenced in 1972 when he was a child. Some offences committed whilst on parole. Problem with drugs - on methadone programme - engaging personality - cannot keep hands off other people’s property. Fresh evidence - medical condition of much greater seriousness than known at time of sentencing - effect of condition on trial judge’s assessment of prospects of recidivism. Appeal allowed: resentenced to aggregate MT 7y, AT 3y.
103	SHERRY, Stephen - CCA, 29.2.2000 Sully J, Carruthers AJ, Smart AJ Citation: R v Sherry [2000] NSWCCA 35 Crown appeal. Manslaughter. MT 2½y, AT 2½y (special circumstances found). Respondent indicted for murder. Found not guilty of murder but guilty of manslaughter. Respondent & deceased had been living in a de facto relationship for 6-7 years & had 2 children. Relationship very volatile, marked by outbursts of violence & drunkenness. In 1997, they separated & the deceased had custody of the 2 children, respondent visited them regularly. During a very violent altercation, respondent grabbed victim’s throat & pushed her head forcefully against a wall, then punched her in the head a number of times. He took a large kitchen knife & pointed it at her chest. Victim was stabbed below her right ear & died as a result. Aged 36 - lengthy criminal record but not previously imprisoned - progress toward rehabilitation. Double jeopardy - special circumstances. Appeal allowed: resentenced to MT 3½y, AT 2½y.
104	PRIEST, James Phillip - CCA, 21.2.2000 Grove, Greg James JJ Citation: R v Priest [2000] NSWCCA 27 Sentence appeal. Malicious damage of property by fire. MT 2½y, AT 1½y. After consuming alcohol, applicant & his partner had an argument. Applicant became very angry after his partner left & told a neighbour he was going to burn down the house. After checking the house was unoccupied, he gave his partner' cats to a neighbour, set fire to the house then sat on a verandah of a neighbouring house. The fire engulfed the house & all property inside was lost. Applicant knew the house was not insured. No-one was injured. Asserted provocation - remorse & contrition - many previous offences including B&E, stealing. Whether sentence excessive. Appeal dismissed.
105	VAN DYK, Shane Hermanus - CCA, 17.3.2000 Meagher JA, Simpson J, Smart AJ Citation: R v Van Dyk [2000] NSWCCA 67 Conviction appeal. A number of sexual offences including sexual intercourse without consent; carnal knowledge. MT 3y, AT 1y. Offences allegedly occurred in 1983 & 1984 when complainant was 14 & 15 but trial did not take place until October 1998. Complainant did not report the matter to police until September 1996 when she was aged 26 & in her 3rd year of a primary school teaching course at university studying a subject called ‘Children at Risk’. On 26 September 1984, when complainant was 16 weeks pregnant she had undergone an abortion. Admissibility of evidence going to complainant’s conduct & attitude towards accused - leaving of alternative verdicts of carnal knowledge - correct construction of ss.61D, 61G & 78 Crimes Act - directions as to complaint, delay - unique case where accused denied acts of indecency or intercourse but admitted consensual intercourse - alternative case of consent not put - competence of trial counsel - summing up did not fairly put defence case - failure of defence counsel to obtain ruling from judge as to whether evidence of appellant’s prior conviction admissible in event that defence adduced evidence of good character in a particular respect. Appeal allowed: new trial ordered on Counts 3,4,5,7,8 & 9.
106	ATTIE, Fred - CCA, 17.3.2000 Simpson , Barr JJ Citation: R v Attie [2000] NSWCCA 70 Sentence appeal. Escape lawful custody. MT 5y, AT 8m. Applicant was serving a sentence for robbery at the John Morony Correctional Centre at Windsor. He & another prisoner were involved in the care & maintenance of a wildlife centre there & were permitted to go into bushland to collect branches for aviaries. They stole a car & got away from the area. Someone recognised the applicant more than 3 weeks later & he was recaptured. Exceptional case - his case file, containing entirely false information about him, stating he was an informant, had been shown to other prisoners. As a result, the applicant suffered assaults & threats to both himself & his family. When he approached the gaol authorities a uniformed member of the Intelligence Department told him he would receive assistance if he would inform on Lebanese inmates. He refused & never received help. General deterrence - criminality in escaping significantly mitigated by circumstances. Appeal allowed: resentenced to 3y GBB.
107	SLR - CCA, 25.2.2000 Hidden J, Carruthers AJ Citation: R v SLR [1999] NSWCCA 464 Sentence appeal. 1 x steal from the person - FT 3m; 1 x AOABH - FT 6m; 1 x steal from a dwelling - FT 3m; 1 x steal from the person - MT 4m, AT 2y. Custodial sentences were imposed with a direction they be served in a juvenile detention centre. 18 year old female, pregnant at time of sentence - fresh evidence that facilities unavailable for appellant to keep child after confinement in juvenile centre - such facilities available in adult prison under Mothers and Children Programme. Appeal allowed: order varied to provide for appellant to serve her sentence in a juvenile centre until she gives birth to her child & thereafter be transferred to an adult prison.
108	LILLEY, Ronald S - CCA, 10.3.2000 - 111 A Crim R 468 Fitzgerald JA, Barr J, Smart AJ Citation: R v Lilley [2000] NSWCCA 57 Crown appeal. Knowingly take part in supply commercial quantity heroin - 2½y PD; attempt pervert course of justice & supply heroin - 3y GBB. 2 further offences were taken into account (goods in custody, possess cannabis leaf). Guilty plea - pre-sentence custody. Circumstances of offence of supply confused & respondent’s role & intended role unclear. Sentencing judge gave no indication whether he considered respondent was unable, or did not intend, to supply the commercial quantity of heroin which he agreed or offered to supply. Long criminal history stretching back for decades involving previous drug offences - reasons for leniency extended are of minimal weight: ie, support by marital partner, poor health, inability to tolerate prison at his age are all of little significance in relation to intention to supply commercial quantity & attempt to pervert the course of justice. Sentences must reflect objective gravity of offences. Appeal allowed: resentenced to aggregate MT 3y, AT 2y.
109	COCKING, Keith Alan - CCA, 14.2.2000 Sully J, Carruthers AJ Citation: R v Cocking [1999] NSWCCA 463 Sentence appeal. 12 x indecent assault. Overall MT 4½y, AT 2½y. The offences were upon females under the age of 16. An additional 28 allegations of sexual assault contained in statements of complainants were tendered to the Court. Complainants were from 2 generations of applicant’s extended family & also included children of some of the complainants. Over the period of the offences, applicant was aged between 25 & 55. Aged 68 at time of sentence - no prior convictions. Fresh evidence that at the time of sentence the appellant was, unknown to him, suffering from prostrate cancer & other medical conditions - whether additional evidence should lead to a reduction in sentence. Appeal allowed: MT varied on Count 5 to commence a year earlier, thereby reducing the sentence to MT 3½y, AT 2½y.
110	BOWHAY, Adam John - CCA, 14.3.2000 - 111 A Crim R 271 Stein JA, Hulme & Greg James JJ Citation: R v Bowhay [2000] NSWCCA 54 Conviction and sentence appeal. Murder. MT 16y, AT 7y. Victim paid undue attention to appellant’s female companion & appellant asked victim to go with him to a party in order to move him away from the female. A fight broke out outside & the appellant threw the victim to the ground, strangled him & punched him in the head, stabbed him in the throat several times, jumped on victim’s chest & head & kicked him in the ribs. Aged 19 at time of offence - grossly affected by alcohol, cannabis, amphetamines & heroin - no priors. Whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing-up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen (1997) 191 CLR 334- s.6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - whether sentence manifestly excessive. Appeals dismissed.
111	WATERMAN, Nelson - CCA, 23.2.2000 Grove & Greg James JJ Citation: R v Waterman [2000] NSWCCA 29 Sentence appeal. Dispose of stolen property; escape lawful custody. Aggregate MT 1½y, AT 1y. At time of escape, applicant serving sentences for BE&S, steal from dwelling & breach of recognizances. During the escape, applicant came into possession of a considerable quantity of electrical goods, a Medicare card & a Bankcard. He was arrested whilst trying to pawn the goods, using the cards for identification. Age unknown - priors - previously imprisoned. Parity - special circumstances. Appeal allowed: sentence reduced.
112	RAL - CCA, 25.2.2000 Grove J, Smart AJ Citation: R v RAL [2000] NSWCCA 53 Sentence appeal. Carnal knowledge; rape; buggery; indecent assault; AOABH; common assault. Aggregate MT 12y, AT 4y. Offences upon 7 victims, all members of applicant’s family. The criminal conduct spanned some 27 years & included anal intercourse with his step-daughter causing her serious injuries & pain; penile-vaginal intercourse with his 8 years old step-daughter & when she screamed he placed his hand over her mouth & prevented her from breathing until he had finished; anal intercourse with step-son aged between 7 & 9; penile-vaginal intercourse with female aged 4 & to prevent her screams he placed a pillow over her head until he had finished; kicked female child aged between 10 & 12 while wearing steel-capped boots, victim rendered unconscious & could not attend school for several months; attacked his 9 year old natural daughter & persisted despite her screams; grabbed his 8 year old son by the hair, dragged him to the bathroom, put his head down the toilet; when the same victim was aged 4 he was forced to commit acts of depravity with the family dog; the same victim was also subjected to acts of fellatio. Aged 31 at time of first offence - aged 71 at time of sentence - victims suffered extreme emotional, psychological & physical torment - no relevant priors. Delay in detection of offences - age of appellant. Appeal dismissed.
113	LAY, Siew-Long Riew - CCA, 23.2.2000 Grove, Greg James JJ Citation: R v Lay [2000] NSWCCA 30 Sentence appeal. 2 x armed robbery with wounding; 11 x armed robbery; + offences on a Form 1 (assault with intent to rob, use heroin, possess heroin, possess unlicensed firearm). Aggregate MT 5y, AT 5y. Weapons involved in principal charges were knives with blades 15-20 cms in length. General modus operandi was for applicant to present a small item at the counters of various services stations & when the victim turned to the register, a knife was produced, the victim threatened & ordered to hand over monies. One wounding occurred when victim attempted to disarm applicant & his hand was cut, the other wounding occurred when victim opened the register & applicant ran behind the counter, waved the knife around & victim received a cut to the hand. Aged 19 at time of offence - early admission of guilt - on bail at time of offences - heroin addiction - self-directed efforts toward rehabilitation - special circumstances - priors for armed robbery - not previously imprisoned. Appeal allowed in part insofar as Order under s.19 Children (Criminal Proceedings) Act 1987 varied to allow service of sentence in detention centre until end of MT or date of release.
114	CROCKER, Gordon James - CCA, 14.3.2000 Sheller JA, Dowd, Barr JJ Citation: R v Crocker [2000] NSWCCA 79 Sentence appeal. Rob & inflict GBH - MT 12y, AT 3y; Steal MV - FT 15m (concurrent); Maliciously destroy MV by fire - FT 15m (concurrent); Murder - MT 10y, AT 5y (cumulative). The appellant, in company with 2 friends, went to a park with the intention of mugging someone. Appellant attacked & hit a man with a steering lock, hitting him between 10 & 16 times & only stopped when pushed away by one of his friends. They took the victim’s keys & opened his car, took his wallet & shared the contents amongst themselves. They returned later, took the car to an isolated place & burnt it. They left the victim in the park. 10 days later, appellant armed himself with a screwdriver & attacked another man in a park, pushed the screwdriver into the man’s throat & then stabbed him about the throat, face & head 47 times. He took a credit card that had a slip of paper with a PIN number on it & withdrew $200 from the deceased’s account. Whether ‘statutory norm’ - relationship between MT & AT - whether statutory requirement to give reasons for so-called departure from conventional sentencing structure - mitigating effect on sentence of guilty plea & absence of past violence where crimes horrific - regard to enormity of criminal conduct. Appeal dismissed.
115	HANLON, Bradley James - CCA, 16.2.2000 Sully J, Carruthers AJ Citation: R v Hanlon [2000] NSWCCA 55 Sentence appeal. Aggravated dangerous drive occasioning death. MT 3y 9m, AT 1y 3m. As appellant’s vehicle was rounding a bend towards a bridge, he lost control of the vehicle & crossed the double lines into oncoming traffic & there was a head-on collision. Appellant’s passenger (his brother) was killed in the crash. Aged 25 at time of offence - early plea of guilty - remorse - high range PCA - special circumstances - no significant priors. Appeal allowed: resentenced to MT 3y, AT 2y.
116	WATKINS, Kenneth William - CCA, 29.3.2000 Sheller JA, Hulme, Dowd JJ Citation: R v Watkins [2000] NSWCCA 76 Conviction appeal. 6 x sexual intercourse with person under 16y (aged between 10 & 12). Concurrent MT 18m, AT 6m on each count. Complainant the only Crown witness. Trial took place almost 16 years after alleged offences. Each offence alleged to have been perpetrated by the father of the complainant’s friend & alleged to have occurred during the night when complainant stayed overnight at friend’s house. Whether miscarriage of justice. Whether verdict unreasonable & unsupported by evidence - where complainant’s evidence wrong in relation to when offences committed & where significant feature of occasion in which offences committed wrong - where trial judge directed jury to return same verdict on every count - no direction that each could only relate to one event - possibility of conviction for matter not charged. Appeal allowed: verdict of acquittal entered on each count.

117	BAKER, Kelly Anne - CCA, 17.3.2000 Spigelman CJ, Grove, Hidden JJ Citation: R v Baker [2000] NSWCCA 85 revised - 28/03/2000 Crown appeal. Malicious damage by fire. MT 3m, AT 9m. Respondent was on bail pending prosecution for armed robbery at the time of the subject offence. The act constituting the subject offence was throwing a “fire bomb” (a glass bottle containing inflammable substance with tightly-rolled piece of cloth that had been lit) against a garage roller door. The garage adjoined an occupied dwelling owned by the Department of Housing. Four days before the offence, the respondent had made threats to the female occupant that she was going to fire bomb the cars belonging to the occupants of the dwelling. In his judgment, the CJ said that Crown appeals are too frequent, especially when no error is relied upon other than being manifestly inadequate. Whether sentence manifestly inadequate - “weight” - “special circumstances”. Appeal dismissed.
118	PAGETT, Melissa Dianne - CCA, 23.2.2000 Hidden J, Carruthers AJ Citation: R v Pagett [1999] NSWCCA 466 Sentence appeal. 1 x armed robbery. MT 18m, AT 2½y. Guilty plea - co-offenders. On 22.11.96, applicant was sentenced to MT 18m, AT 2½y for earlier offences of armed robbery. Applicant was released to parole when MT expired, however, she failed to comply with certain parole conditions, failed to inform Probation & Parole Service of her change of address & failed to report. On 24.11.98, unaware of the applicant’s location, Parole Board revoked applicant’s parole & ordered her to serve the balance of the AT of 1y 11m & 2d. The applicant decamped after the subject offence was committed & she was eventually taken into custody on 24.2.1999 to commence the balance of the AT. Parity - whether sentencing judge should have taken into account that an offender required by the Parole Board to serve an AT by reason of breach of parole conditions might well expect an early review of that direction. Appeal dismissed.
119	GIARRATANO, Anthony - CCA, 14.2.2000 Sully J, Carruthers AJ Citation: R v Giarratano [1999] NSWCCA 455 Sentence appeal. 6 x make false instrument; 8 x use false instrument; 13 x steal valuable security; + 57 similar matters on a Form 1 taken into account. Aggregate MT 2y, AT 2y. Applicant was employed by a company as a clerk & he would prepare cheques for payment to the company’s creditors. The cheques were marked “Not Negotiable” & appropriate signatures were obtained from officers of the company. Applicant would then alter a number of these cheques by adding the words “Petty Cash” and, as Carruthers J said in his judgment, “For some extraordinary reason, bank tellers then handed cash to the applicant,…” This criminal conduct continued for almost 2 years & involved a total of $367,000. The Commonwealth Bank repaid all monies to the company. Sentences imposed close to lower end of range - surprising Crown did not appeal. Application for leave to appeal based purely on subjective grounds - finding gaol hard - missing his wife & 3 children - efforts at rehabilitation during incarceration. Leave to appeal refused.
120	MITCHELL, Michael John - CCA, 14.2.2000 Sully J, Carruthers AJ Citation: R v Mitchell [1999] NSWCCA 465 Sentence appeal. 1 x possess housebreaking implements; 1 x B&E with intent to commit a felony; + a number of matters taken into account under two Form 2s, including matters of dishonesty & larceny. MT 3y, AT 1y. “Ad misericordiam” application, based on subjective circumstances. Applicant appeared for himself in the CCA. Guilty plea - aged 35 at time of sentence - long criminal record - long addiction to drugs - brain damage caused by very serious MV accident - undertaken drug & alcohol counselling - attends narcotics anonymous meetings - now on a stable dose of methadone - started a building studies course by correspondence with TAFE - thought he would have been an ideal candidate for the Drug Court at Parramatta - supportive wife & family. No error demonstrated in sentencing process. Appeal dismissed.
121	ROBINSON, Melissa Anne - CCA, 25.2.2000 Hidden J, Carruthers AJ Citation: R v Robinson [1999] NSWCCA 468 Sentence appeal. 89 x obtain benefit by deception. MT 18m, AT 2½y. Special circumstances found by sentencing judge regarding hardship caused to applicant’s 3 young children. Applicant in custody in NSW, while her family reside in Western Australia, her mother-in-law looking after the 3 children. Applicant was employed by a company; duties included bookkeeping, collection of monies, maintaining company records, preparing wages & banking. Her employer would sign blank cheques & she would, by making the cheques payable to cash, appropriate the money for her own use. A total of $85,131 was stolen from her employer. Priors include 11 x larceny as a clerk; & breach of recognizance Subjective circumstances - gambling addiction - whether sufficient weight given to hardship upon applicant’s immediate family, particularly her children. Consideration by the CCA of administrative & legislative facilities available to mitigate hardship. Appeal dismissed.
122	LEONARD, Alfred Archibald - CCA, 23.2.2000 Grove, Greg James JJ Citation: R v Leonard [2000] NSWCCA 28 Sentence appeal. 1 x accessory after the fact to robbery - MT 12m, AT 4m; assault on police officer - FT 6m. Applicant accepted a lift with a friend in a stolen car, not knowing the vehicle was stolen. He was sitting in the car when his friend robbed an elderly lady of her handbag. When his friend returned to the car, the applicant drove them both away from the scene. When pursued by police, he abandoned the vehicle & was chased by a police officer. He struck the officer in the right eye with his fist. Long and appalling criminal record - aged 34 at time of offence - early guilty plea - assistance to authorities - prospects for rehabilitation. Parity - special circumstances - rehabilitation. Appeal allowed on count 1: resentenced to MT 7m, AT 3m.
123	EVERETT, Kylie - CCA, 21.2.2000 Hidden J, Carruthers AJ Citation: R v Everett [1999] NSWCCA 467 Sentence appeal. 2 x dangerous drive occasioning death; + 2 offences taken into account on a Form 1 (being an unlicensed driver, self-administer prohibited drug). MT 2y, AT 2y. Applicant was driving a Ford Fairlane when she lost control of the vehicle & collided with a large road sign. Her husband & her 2 year old son from a previous relationship were killed, her 4 year old daughter survived. Heroin, syringes & other equipment concerned with the injection of heroin were located in the vehicle by police officers. An examination of a blood sample from the applicant revealed that at the time of the accident, she was under the influence of morphine & cannabis within a toxic to lethal range. Guilty plea - history of addiction to heroin & other drugs - priors for 9 offences of being an unlicensed driver & other driving offences - has never held a licence. Subjective circumstances - has dependent 4 year old daughter - consideration by CCA of administrative & legislative facilities available to mitigate hardship. Appeal dismissed.
124	WHEELER, Matthew - CCA, 16.2.2000 Sully J, Carruthers AJ Citation: R v Wheeler [2000]SWCCA 34 Sentence appeal. 4 x robbery; 1 x attempted robbery; 2 x robbery in company; + matters on a Form 1 taken into account (2 x assault, 4 x theft of MV). Aggregate MT 9y, AT 3y. The 7 principal matters were committed on 7 separate days over a period of some 5 months & involved 5 banks, a branch of the NRMA & a branch of a credit union, each accompanied with threats of shooting, although no weapon was produced. In total, some $28,000 was taken. Aged 21 at time of sentence - offences committed whilst on parole & whilst in breach of a 3y GBB. Principle of totality - error in sentencing process - sentence measurably beyond upper limit of range. Appeal allowed: resentenced to aggregate MT 6y, AT 2y.
125	SHAUER, Valadu Leon - CCA, 17.3.2000 Simpson, Barr JJ Citation: R v Shauer [2000] NSWCCA 91 Sentence appeal. Maliciously inflict GBH - MT 1½y, AT 1½y; AOABH - concurrent FT 1½y. After an altercation at a bowling club wherein the applicant was hit by a man, the applicant went away & returned with a long piece of wood & swung it in a full baseball swing to the head of the man who had hit him, & then he hit the man’s friend on the head. Aged 24y - no relevant criminal history - prior good character - delay in matter going to trial - delay in sentencing after verdict caused by need to wait for preparation of pre-sentence report - good rehabilitation - not likely to re-offend. Whether sentences excessive - could have been dealt with by way of CSO or PD - provocation Appeal allowed: resentenced on 1st count to FT 10m; on 2nd count to concurrent sentence of 6m. No need for additional period.
126	MITCHELL, Timothy Mervyn - CCA, 20.3.2000 Abadee, James JJ Citation: R v Mitchell [2000] NSWCCA 103 Sentence appeal. AOABH - MT 2y 3m, AT 1y 6m; assault - concurrent FT 8m; malicious damage - concurrent FT 8m. Applicant became involved in an argument with female complainant. He pushed her from the veranda, then kicked her a number of times while she was on the ground. Her boyfriend tried to pull him away. The applicant elbowed him to the head & punched him a number of times to the head. The female got up & tried to push the applicant away, then she & her boyfriend got into her car. The applicant started bashing in the bonnet of her car with an iron bar. The female got out of the car & approached the applicant to try & take the iron bar away from him. The applicant struck her on the head with the iron bar & she fell unconscious to the ground. The boyfriend then managed to drag her into the car & he drove to the police station & reported the incident. Female complainant suffered extensive injuries. Whether sentence excessive - guilty plea - unsatisfactory legal representation - rehabilitation. Leave to appeal refused.
127	HANNA, Sassine - CCA, 20.3.2000 Abadee, James JJ Citation: R v Hanna [2000] NSWCCA 102 Sentence appeal. Cultivate commercial quantity cannabis; supply commercial quantity cannabis. MT 3y 4m17d, AT 1y 3m. 594 mature cannabis plants discovered growing in applicant’s market garden, planted in rows directly into the ground & irrigated. Applicant admitted growing them & was arrested. Police searched a shed at the rear of applicant’s dwelling & located 131 polystyrene foam vegetable boxes, each containing cannabis leaf, plus a number of hessian bags which were found to contain cannabis leaf. The gross weight from the boxes and bags yielded in excess of 219 kgs. Small bags of cannabis leaf were found in applicant’s home under his bed. Some $14,500 was found secreted in different parts of the home. Guilty plea - first offender - favourable character evidence - ipso facto marriage & birth of child - assistance to authorities. Special circumstances - statutory ratio. Leave to appeal refused.
128	DAVIES, Travers Jamie - CCA, 4.4.2000 Sheller JA, Hulme, Dowd JJ Citation: R v Davies [2000] NSWCCA 84 Conviction and sentence appeal. Dangerous drive causing death. MT 18m, AT 18m. Collision with a pedestrian at an intersection. Some witnesses gave evidence that the lights in the direction in which the appellant was travelling were red, whilst others, including a police officer, stated that the lights for the pedestrian crossing were red. Whether verdict unreasonable - whether sentence excessive. Appeals dismissed.
129	McDOWALL, Catherine - CCA, 24.3.2000 Abadee, James JJ Citation: R v McDowall [2000] NSWCCA 95 Sentence appeal. 1 x supply prohibited drug (heroin); + on a Form 1 possess prohibited drug (amphetamine). MT 3y, AT 1y. Police approached 2 women whose car was parked in the driveway of a service station & searched their MV. They located a black Adidas backpack on the floor of the front passenger seat. Inside was a small red cash tin containing a number of plastic satchels. 3 of these satchels contained white rock & white powder. The women were arrested & cautioned & a further search of the bag revealed a small set of electronic digital scales & a cigarette packet containing small balloons. There were some other items found in a lady’s purse for which the co-offender was charged. Sole parent in receipt of Social Service income - drug addiction - stress of caring for her dying mother - attempts to improve her education in order to find worthwhile employment. Powerful subjective features - procedural fairness - erroneous finding by sentencing judge. - special circumstances. Appeal allowed: resentenced to MT 18m, AT 18m.
130	KOVACS, Lajos - CCA, 31.3.2000 - 111 A Crim R 374 Beazley JA, Simpson J, McInerney AJ Citation: R v Kovacs [2000] NSWCCA 74 Conviction appeal & Crown appeal. Attempt obtain possession of commercial quantity prohibited drug (heroin). MT 9y, AT 4y. An aggravating circumstance was that he had previously (in 1993) been convicted on a charge of importing a trafficable quantity of heroin & at the time of the attempt obtain possession offence, he was at liberty under a work release programme. A Pakistani national arrived at Sydney Airport with several packages of heroin strapped to his body - total gross weight was 2.5 kgs, yielding 1.881 kgs pure heroin. He co-operated with authorities & was installed in a hotel room, under police surveillance, awaiting contact from someone from the Australian end of the enterprise. The appellant arrived at the hotel room some days later & the heroin & some money changed hands. Tendency evidence - discretion - irrelevant considerations - failure to give adequate weight to material considerations - directions - Crown submitted sentence manifestly inadequate. Conviction appeal dismissed. Crown appeal allowed: resentenced to MT 10y, AT 5y.
131	MUAVAE, Peter - CCA, 24.3.2000 Abadee, James JJ Citation: R v Muavae [2000] NSWCCA 88 Sentence appeal. MT 3y 9m, AT 1y 3m. 2 x robbery in company; 2 x steal MV; 1 x armed robbery; + a Form 1 matter (negligent drive). Applicant was in Sydney on holiday from New Zealand & met a school friend who introduced him to drug use & supplied him with drugs. Over the period during which the offences were committed, both offenders engaged in significant drug & alcohol use. The offences were committed upon taxi drivers. Guilty plea - no priors. Parity - special circumstances - lesser culpability than co-offender. Appeal allowed: resentenced to MT 2y 9m, AT 2y 3m.
132	HAWKINS, Luke John - CCA, 16.2.2000 Sully J, Carruthers AJ Citation: R v Hawkins [1999] NSWCCA 462 Sentence appeal. Robbery in company. MT 1y, AT 2y. Applicant & co-offender, wearing balaclavas, robbed a food bar. As the applicant reached to take the money, one of the victim’s managed to pull the balaclava off his head & was able to identify him as a customer of the shop. The co-offender then struck the victim over the head with a large stick & both offenders ran off. Another person, together with a number of other men, confronted the applicant & his co-offender shortly after the offence & the applicant was struck in the face, the money taken by this person, some of it he returned to the victim but he retained some for himself as well. He was later arrested & charged with demanding money with menaces & concealing a serious offence. Applicant aged 18 at time of offence - full admissions - assistance to authorities - an only child - mother a chronic alcoholic, heavily dependent upon applicant - left school aged 15 - worked in several jobs - unemployed at date of robbery - full-time employment at time of appeal - offer to pay compensation. Appellant entitled to benefit of assistance to authorities - alleged lack of parity with co-offender who was a juvenile. Appeal allowed: MT 6m, AT 1½y.
133	ZREIKA, Abdul Hakim - CCA, 23.2.2000 Hidden J, Carruthers AJ Citation: R v Zreika [2000] NSWCCA 75 revised - 17/03/2000 Sentence appeal. Conceal serious offence - FT 3m; Pervert the course of justice - MT 9m, AT 15m; Threaten witness - FT 12m. The applicant knew that a certain person had committed an offence of robbery on a supermarket but failed to report it. He subsequently requested that a certain female conceal information from the police in relation to the robbery. The applicant also made threats to another female with the intent to influence her against giving evidence in a judicial proceeding. On bail at the time of 2 of the offences - priors. Young offender - 17y 9m at time of 1st offence, 18y 7m at time of 2nd offence, & 19y 13d at time of 3rd offence - whether sentences excessive. Appeal dismissed.
134	BIKIC, Nedjelko - CCA, 30.3.2000 - 112 A Crim R 300 Stein JA, Sully, Kirby JJ Citation: R v Bikic [2000] NSWCCA 106 Crown appeal brought pursuant to s.5F Criminal Appeal Act 1912 (NSW). Appeal sought to have an interlocutory order vacated. An order was made by Hidden J that the respondent be granted a separate trial. The respondent was one of 7 persons the Crown proposed to indict jointly upon an indictment of having murdered 2 victims. CCA came to the decision that the material before Hidden J was insufficient to justify his decision to grant a separate trial. Crown appeal allowed: separate trial vacated.
135	QUANSAH, Sonny - CCA, 31.3.2000 Fitzgerald JA, Abadee, Barr JJ Citation: R v Quansah [2000] NSWCCA 64 Crown appeal. Import trafficable quantity cocaine. MT 2y 6m, AT 2y 2m. Respondent arrived in Sydney on a flight from Tahiti. In his luggage was a wooden statue containing 2.985 kgs cocaine mixture, yielding 643.7 grams pure cocaine. At first he denied concealing the drug, but later admitted that the contents were cocaine & said he had paid $2,000 for the statue & at the time of purchase was told that it contained 1-1½ kgs. He maintained it was for his own use. He said he had started using the drug some 2 years previously. Whether sentence manifestly inadequate. Appeal allowed: resentenced to MT 4y, AT 2y.
136	K - CCA, 17.3.2000 - 111 A Crim R 116 Simpson, Barr JJ Citation: R v K [2000] NSWCCA 73 Sentence appeal. Escape lawful custody - FT 3y; knowingly take part in manufacture of large commercial quantity prohibited drug (ecstasy) - MT 2y, AT 3y cumulative upon the FT. At time of escape, applicant was serving a term of imprisonment for manufacture prohibited drug, knowingly concerned in importation of LSD & possess unlawfully imported narcotic goods. He was attending Meadowbank TAFE pursuant to pre-release arrangements but failed to return to the prison & was apprehended by police more than 10 months later. During an ERISP he admitted to being involved in the manufacture of ecstasy whilst in prison & his escape had been engineered to allow a greater level of participation because of a lack of success on the part of those more closely engaged in the operation. Prior drug offences - previous imprisonment. Discount - substantial assistance to authorities - whether sentence excessive. Appeal allowed: escape lawful custody FT 2y; drug offence concurrent MT 4y, AT 2y.
137	MASON, Stuart William - CCA, 22.3.2000 Abadee, James JJ Citation: R v Mason [2000] NSWCCA 82 Sentence appeal. Supply prohibited drug (methylamphetamine). MT 3y, AT 1y. An undercover police operative attended the home of the applicant & his de facto to purchase amphetamine & the transaction was completed. He was charged on the basis of having supplied 3.1 grams methylamphetamine. Applicant had agreed to supply further quantities of the drug, however, the further supply was not the subject of any charge. Applicant was a small cog in a sophisticated dealing operation. Sentencing judge made reference to an earlier sentence imposed on 10.9.1998 for 2 x AOABH. At that time, applicant had not been charged with the supply offence. There was a delay in charging him with that offence. Six months of the sentence for the drug charge ran concurrent with the pre-existing & unrelated sentence. Error in applying wrong maximum penalty for offence charged - offence could have been dealt with in the LC. Appeal allowed: resentenced to MT 12m, AT 6m.
138	LE, Vinh - CCA, 7.3.2000, Sully, Hulme & Hidden JJ Sully, Hulme, Hidden JJ Citation: R v Le [2000] NSWCCA 49 Conviction appeal. Various sexual offences, including sexual intercourse without consent, assault with act of indecency upon person under age 16y, sexual intercourse without consent upon person under 16y; as well as assault charges. The above offences were perpetrated upon three victims. The three victims had been subjected to a pattern of abuse over a period of about 6 months. The appellant pleaded not guilty to each count & was found not guilty on 2 counts, & convicted on 8 remaining counts. Directions to jury - evidence of sexual abuse - whether trial judge erred in directions to jury with regard to use to which they should put evidence - complaint evidence - tendency evidence - whether verdicts unreasonable or cannot be supported by the evidence. Appeal dismissed.
139	AG - CCA, 31.3.2000 RJM Spigelman CJ, Ireland, Simpson JJ Citation: R v AG and RJM [2000] NSWCCA 86 Conviction appeal. A number of sexual offences, consisting of assault with intent to commit buggery & indecent assault. All offences perpetrated against young boys. The one boy was RJM’s son, who was living with him. Also living with RJM were RJM’s daughter, his grandmother & AG. AG & RJM shared a bedroom. The jury returned verdicts of guilty on each count against AG & 3 counts against RJM. They acquitted RJM on 1 count & were unable to agree & were subsequently discharged in respect of 2 counts. The sole ground of appeal by each appellant was that the verdicts could not be sustained, having regard to what was said to be the unsatisfactory nature of the evidence. Appeals dismissed.
140	PATSALIS, Michael - NSW SC, Kirby J, 23.2.2000 SPATHIS, Alexios Citation: R v Patsalis & Spathis [No.22] [1999] NSWSC 1320 Remarks on Sentence: Murder. The victim had a small business restocking cigarette vending machines. Patsalis discussed with the victim the prospect of obtaining cheap cigarettes. He arranged for the victim to meet him one evening, supposedly to buy contraband cigarettes. The victim was carrying $58,500 on him. After travelling in two vehicles from Bankstown to Marrickville (a truck driven by the victim with Patsalis, the other vehicle driven by Spathis) Spathis parked his car & entered the truck & drove to Botany, the victim between Spathis & Patsalis. Whilst parked, the victim was stabbed & his money removed. His body was eventually taken to Terrey Hills where it was doused with petrol & set on fire. The truck was taken to Chester Hill where it was set alight. Sentencing felony murder - assistance to authorities - s.442B Crimes Act 1900 - special circumstances. Sentenced to: Patsalis - MT 16y, AT 5½y. Spathis - MT 14y, AT 5y.
141	JOLLEY, Scott Martin - CCA, 15.3.2000 Simpson, Barr JJ Citation: R v Jolley [2000] NSWCCA 69 Sentence appeal. 15 x armed robbery; 2 x robbery. MT 9y, AT 3y. Offences committed over a period of 7½m & at the time the applicant was already serving a 2½y sentence for a robbery that was committed shortly after the last of the above offences. The new sentences were accumulated upon that term. Applicant made full admissions to authorities. Without his assistance, the Crown would only have been able to charge him on 2 counts. Sentences outside range of sentencing discretion - strong subjective features - need for extended period on probation - deep-seated psychological problems. Appeal allowed: resentenced to MT 5y, AT 3y.
142	POWELL, Christopher John - CCA, 13.3.2000 Simpson J, Smart AJ Citation: R v Powell [2000] NSWCCA 108 Sentence appeal & extension of time in which to appeal. Malicious wounding - MT 3y, AT 1½y (special circumstances found); 2 x common assault - concurrent FT 6m on each count. A further offence of breach apprehended violence order upon victim of the malicious wounding was taken into account. The appellant, an Aboriginal man, brandished 2 knives at 2 friends of his girlfriend, after becoming jealous of the male whom he believed was making advances towards his girlfriend. His girlfriend locked herself in the bedroom & he kicked the door in & stabbed her twice in the lower back. He told police that she had fallen onto the knife on two occasions. Offences unprovoked - minor prior offences - guilty plea - remorse - disadvantaged & unsettled upbringing - health problems associated with alcoholism - attempted suicide - relationship formed late in life - escalation of depressive illness - compelling special circumstances. Sentencing judge should have applied principles in Fernando. Appeal allowed on malicious wounding count: resentenced to MT 2½y, AT 2y.
143	HOUGHTON, John Robert - CCA, 10.3.2000 Fitzgerald JA, Abadee, Barr JJ Citation: R v Houghton [2000] NSWCCA 62 Crown appeal. 26 x fraudulently apply company property. Concurrent MT 18m, AT 6m on each count. Respondent was the managing director of a company managing mainly superannuation funds. His whole working history involved working in the superannuation industry. He eventually set up his own business in 1977 & he was responsible for investment of monies received & he would invest in speculative endeavours. He started gambling heavily in 1991. He used trust monies to feed his gambling habit, as well as making personal loans to members of his family. The owners of the money lost nothing as it was all insured. Offences committed over a period of 3½ years. Guilty plea - aged 54 years - man of prior good character - history of high blood pressure - onset of diabetes. Whether sentence manifestly inadequate. Appeal dismissed.
144	PERA, Benjamin - CCA, 17.3.2000 Spigelman CJ, Grove, Hidden JJ Citation: R v Pera [2000] NSWCCA 109 Crown appeal pursuant to s.5F Criminal Appeal Act challenging rulings made in the DC that indicated the intended rejection of evidence of visual identification of respondent by a witness, as well as evidence of a subsequent identification of respondent by the same witness from a photographic display shown to him by police about 4½ months later. Pre-trial ruling in DC - exclusion of some identification evidence - other evidence available to Crown - whether appeal against interlocutory ruling lies. Appeal dismissed.
145	ROBINSON, Dennis Noel - CCA, 31.3.2000 - 111 A Crim R 388 Fitzgerald JA, BarrJ, Smart AJ Citation: R v Robinson [2000] NSWCCA 59 Conviction appeal. 2 x indecent assault; 1 x sexual intercourse without consent. Aggregate MT 4½y, AT 1½y. Appellant acquitted of 2 counts of sexual intercourse without consent. Crown case depended on uncorroborated evidence of complainant, who was aged 13 at the time of the alleged offences & who did not complain until some 13 years later. All offences alleged to have been committed on the same complainant in a single period of little more than 3 months. Whether verdicts of guilty consistent with verdicts of acquittal - whether verdicts ‘merciful’ - whether verdicts compromised - whether verdicts reasonable. Appeal allowed: convictions on 1st, 2nd & 3rd counts quashed, new trial ordered.
146	GLC - CCA, 31.3.2000 Sully, Simpson JJ, Carruthers AJ Citation: R v GLC [2000] NSWCCA 99 s.5F appeal against refusal of an application for separate trials. Sexual offences against 2 complainants, occurring some 4 or 5 years apart. Sexual conduct could not be classified as bearing striking similarities - 5 year age difference between complainants. Crown sought to rely upon tendency & coincidence evidence - consideration of appropriate procedure where question of possible concoction may arise between complainants in charges of sexual misconduct involving more than one complainant - such questions should be dealt with by the trial judge. Appeal dismissed.
147	DURSUN, Durak - CCA, 7.3.2000 - 111 A Crim R 460 Sheller JA, James, Dowd JJ Citation: R v Dursun [2000] NSWCCA 68 Crown appeal. MT 2½y, AT 2½y. Supply commercial quantity prohibited drug (cocaine); + 4 other offences taken into account (supply cocaine, possess unlicensed pistol, possess cannabis leaf). Respondent & a co-offender supplied 990 grams of cocaine to undercover police officers. Priors: BE&S, drug offences, possess prohibited imports, conspire to import prohibited imports - previously imprisoned for lengthy period. Aged 33 at time of offence - late guilty plea - assistance to authorities - married with several children - gambling problem - drug addiction - special circumstances. Whether sentence manifestly inadequate. Appeal allowed: resentenced to MT 3½y, AT 1½y.
148	HOWARD, Stuart John - NSW SC, Bell J, 17.12.99 Citation: R v Howard [1999] NSWSC 1228 Remarks on sentence: Manslaughter. Pleaded not guilty to murder - jury returned a verdict of guilty of manslaughter. Aged 31 at date of offence. Had been friendly with deceased, who was also aged in early 30s. Both lived with their de facto partners in a block of units. There was a deterioration in the relationship between the 2 men, the deceased having borrowed a guitar from the prisoner’s partner which he subsequently pawned. He also borrowed money from her, the bulk of which had not been repaid. Deceased’s younger brother had a falling out with him & moved into the prisoner’s flat. On the night of the killing, the deceased knocked on the prisoner’s door, the door was opened & the deceased forced his way into the premises, knocking the prisoner to the floor. The deceased was in an aggressive mood & threatened the prisoner. The prisoner got up, walked to his kitchen & returned to the lounge area with a carving knife. He was observed by his friend & the deceased’s brother to run towards the deceased & stab him. The deceased suffered 2 stab wounds, one of which was fatal. Provocation - remorse - good prospects of rehabilitation. MT 5y, reduced by 38 days to take pre-sentence custody into account; AT 1½y.
149	LIDDICOAT, Michelle - CCA, 13.3.2000 Simpson J, Smart AJ Citation: R v Liddicoat [2000] NSWCCA 111 Sentence appeal. Carried in a conveyance without consent of owner - FT 12m; assault with intent to rob in circumstances of aggravation - MT 3y, AT 1y. Applicant & a co-offender were travelling in a MV which had been stolen 4 days earlier. The co-offender was driving. The vehicle stopped outside the Petersham fire station & the applicant alighted from it & approached a middle-aged woman who was about to enter the fire station. The applicant took hold of the woman’s handbag & they both struggled over the bag. The co-offender shouted at the applicant to get in the vehicle, which she did, & the woman remained in possession of her bag. The applicant had a knife at the time which she said was for the purpose of cutting the strap of the bag. Almost 32 at time of offences - long-standing drug problem - mother of 4 children but had custody of none of them - lengthy criminal record - ongoing attempts at rehabilitation. Parity - special circumstances. Appeal allowed: resentenced on charge of assault with intent to rob to MT 2y, AT 2y.
150	PAUL, Christopher Peter - CCA, 17.3.2000 Simpson, Barr JJ Citation: R v Paul [2000] NSWCCA 117 Sentence appeal. Attempted aggravated sexual assault. MT 7½y, AT 2½y. The victim was a 13 year old girl walking on a footpath in a country town. The applicant grabbed her by the shoulders, punched her to the head 4 times, demanded money, threw her to the ground, removed her shorts, removed his own pants & attempted to have sexual intercourse with her. The victim was crying & pleading with him. Extensive criminal record - aged 49 at time of offence - priors, including aggravated rape - addicted to heroin for 30 years - chronically dysfunctional. Whether sentence was manifestly excessive - whether sentencing judge in error in failing to find special circumstances. Appeal dismissed.
151	BELLORINI, Dora - CCA, 7.3.2000 RUIZ, Evelyn Grove, Sully, Simpson JJ Citation: R v Bellorini and Ruiz [2000] NSWCCA 50 Sentence appeals. Four US nationals arrived from Argentina via NZ, 2 of them were the offenders. Each person was carrying a backpack containing 4 kilograms of pure cocaine. Ruiz: Import commercial quantity cocaine. MT 4y 9m, AT 3y. Guilty plea - assistance - admitted not isolated offence - remorse - good prospects of rehabilitation - 2 young children distressed by her absence - no recent history of drug use - incarceration in foreign country - no priors in Australia or the US. Appeal dismissed. Bellorini: Import commercial quantity cocaine; possess commercial quantity cocaine. MT 6y, AT 3y. Aged 62 at time of offence - late guilty plea - admitted not isolated offence - familial considerations - no priors in Australia or the US - parity. Appeal allowed - resentenced to MT 5y, AT 3y.
152	RAT - CCA, 24.3.2000 - 111 A Crim R 360 Dunford, Hulme, Barr JJ Citation: R v RAT [2000] NSWCCA 77 Conviction appeal. 2 x indecent assault; 1 x carnal knowledge. Appellant stood trial on the above counts, as well as a further 3 counts of carnal knowledge. At the close of the Crown case, the trial judge directed the jury to return a verdict of not guilty on the one carnal knowledge count & the jury subsequently found the appellant not guilty on another 2 counts of carnal knowledge. The appellant was the complainant’s step-father. Complainant’s evidence essential on each count - different verdicts on different counts - appellant acquitted on counts where complainant’s evidence could be tested - appellant convicted on counts where complainant’s evidence could not be tested - whether guilty verdicts unreasonable. Appeal allowed: verdict of acquittal entered.
153	SPILLER, Daniel Patrick - CCA, 21.2.2000 Hidden J, Carruthers AJ Citation: R v Spiller [2000] NSWCCA 36 Sentence appeal. 3 x aggravated indecent assault. Aggregate MT 2y, AT 2y. Offences committed upon stepdaughters when aged between 6 & 9 years. Evidence that the 3 counts were not isolated incidents but were part of a pattern of indecent behaviour over a 3 year period. Applicant had been living in a de facto relationship with the mother. Aged 30 at time of appeal - priors for unrelated offences - made full admissions - brain damage as a result of an accident - past heavy drinker & user of heroin. Whether sentence manifestly excessive. Appeal dismissed.
154	SWAN, Anthony Dean - CCA, 22.3.2000 Abadee, James JJ Citation: R v Swan [2000] NSWCCA 114 Sentence appeal. Robbery in company; + 3 matters taken into account on a Form 1 (stealing mobile phone, common assault, failure to appear). MT 2y, AT 2y. On the same day, co-accused pleaded guilty to the same offence & asked that a breach of a 4y recognizance for stealing from the person be taken into account. She was sentenced to MT 18m, AT 18m with a direction that no action be taken on the breach of recognizance because of the penalty imposed in relation to the robbery. Applicant, his girlfriend & nephew approached the victim (aged 13) as he walked through a vacant lot near his home. Applicant offered to sell a pair of sports shoes to the victim for $20, he was then punched & when he fell to the ground, the applicant stole $50 from him. Victim received cuts & minor injuries to his lips. Aged 24 at time of offence - Aboriginal - unemployed - priors - parity - special circumstances. Appeal allowed: resentenced to MT 18m, AT 18m.
155	BMT - CCA, 15.3.2000 Simpson, Barr JJ Citation: R v BMT [2000] NSWCCA 112 Sentence appeal; application for extension of time & to go behind abandonment of an application for leave to appeal filed earlier (leave & extension granted). Aggravated sexual assault; + an offence of malicious damage taken into account. MT 9y, AT 3y. Victim was applicant’s cell-mate’s partner. Applicant had met her when she visited her partner in gaol. When he was released on parole, he went to the victim’s house & subjected her to degrading & violent sexual acts lasting 3½ hours, all the time threatening her. He was armed with a large carving knife. The victim’s 3 year old son was present at the time of the offences. The victim eventually managed to escape with her child to a nearby house. Aged 48 at time of offence - alcoholic & violent father - violent mother - slow learner - number of attempts at suicide - a beating in gaol caused brain damage - lengthy criminal history including buggery, assault with act of indecency, sexual intercourse without consent, rape, indecent assault on female, aid & abet AOABH, maliciously inflict GBH with intent to murder. Whether sentence excessive. Appeal dismissed.
156	HARRIDEN, David George - CCA, 22.3.2000 Powell JA, Hulme, Dowd JJ Citation: R v Harriden [2000] NSWCCA 118 Conviction appeal. Malicious wounding. 400h CSO. During a street disturbance outside a tavern in Queanbeyan, a police constable had arrested a man & was struggling with him on the road. While in this situation, his baton was removed from his belt & he was struck twice over the head, causing wounds, one of which bled profusely & required stitching. Shortly thereafter the appellant, carrying a baton, moved in the direction of the tavern where he was apprehended by 2 doormen on duty at the tavern. Both doormen were firm in their evidence that they had seen the appellant remove the baton & strike the constable with it & that they had kept their eyes on the appellant until they apprehended him. Verdict unreasonable - Court also asked to take into account a comment made in Crown Prosecutor’s address about failure of appellant’s legal advisers at trial to call appellant’s brother. Appeal dismissed.
157	REGINA, Josef Richard - CCA, 20.3.2000 Abadee, James JJ Citation: R v Regina [2000] NSWCCA 100 Sentence appeal. Escape from lawful custody. MT 2y, AT 1y. Applicant was sentenced for 2 x BE&S, 1 x cultivate prohibited plant, 1 x supply prohibited drug. He appealed against those sentences, the CCA allowed the appeal & he was resentenced. He was then transferred to the Grafton Correctional Centre. Whilst there, a prisoner with whom he was sharing a cell & with whom he had become friendly was seriously assaulted by other prisoners. The applicant was transferred to a minimum security correctional centre at Glen Innes, having signed an undertaking not to escape or attempt to escape if he was transferred. Three days after the transfer, he simply walked out of the centre & hitchhiked to Queensland. Some time later he went to the Northern Territory & whilst there committed an offence of cultivate a commercial quantity of cannabis. His sentence of 2y was reduced by one-third by reason of remissions. After completion of this sentence, he was not extradited to NSW and was finally arrested in Queensland almost 4 years later when he was charged with possess dangerous drug & possess tainted property. Whether sentence excessive. Appeal dismissed.
158	CASSELL - HC, 10.2.2000 - 201 CLR 189; 74 ALJR 535 Appellant gave evidence before an Assistant Commissioner at a hearing of the ICAC & was subsequently charged & convicted of giving false evidence. A hearing de novo appeal against conviction & sentence was held in the DC where a no case submission was made by counsel for the appellant. This submission was turned down & a stated case was made to the CCA. Main ground of appeal before the HC questioned the validity of the hearing conducted by ICAC on the ground that there was no evidence to prove that the Commissioner “determined” that the Assistant Commissioner would hear the ICAC proceedings & therefore the Crown had not proved every element of the offence. Federal & State investigative authorities (NSW) - ICAC - determination by Commissioner that Assistant Commissioner would hear case - validity of purported hearing - sufficiency of evidence to prove valid hearing - burden of proof Appeal dismissed..
159	HEARD, John Edward - CCA, 5.4.2000 Simpson J, Smart AJ Citation: R v Heard [2000] NSWCCA 107 Sentence appeal. Supply commercial quantity amphetamine. MT 3y, AT 4y. Applicant part of the Kalache drug organisation. Although not close to the centre of the Kalache operation, he was known to Kalache. Applicant’s association led back to Watkins, who was closely linked to Kalache. Applicant entered an early guilty plea, whereas many within the Kalache group did not plead guilty at such an early stage. Sentence imposed on Watkins out of balance with that imposed upon applicant. Sentence imposed upon Watkins was 5½y, with MT 3y. Parity. Appeal allowed: resentenced to MT 2y 2m, AT 2y 10m.
160	BOND - HC, 9.3.2000 - 201 CLR 213; 74 ALJR 597 Applicant pleaded guilty to 2 charges of failing to act honestly in his capacity as company director with intent to defraud that company & shareholders. He was sentenced in the SC of WA to a total maximum of 4 years to be served cumulatively upon a sentence he was then serving. The Cth DPP appealed against this sentence on the ground that it was manifestly inadequate & the CCA of WA increased the sentence to 7 years to be served cumulatively. Applicant applied for special leave to the HC on the ground that the respondent did not have the legal and constitutional power or authority to institute the appeal against sentence. Inconsistency of laws - power of states to vest functions in officers of the Cth - applicability of de facto officers doctrine. Appeal allowed.
161	SUN, Sio Meng - CCA, 17.3.2000 Simpson, Barr JJ Citation: R v Sun [2000] NSWCCA 87 Sentence appeal. AOABH; kidnapping. Aggregate MT 3y, AT 2y. Chinese national, in Australia on a student visa, lured by a colleague of the applicant to a karaoke bar on pretext that 2 of his friends wanted to meet him there. He went in & a waiter took him to a private room where applicant and others were waiting. Applicant was known to victim as they had attended school together. He was badly beaten by applicant & his friends. They took his money, a keycard & visa card & asked him for his PIN number. When he told them he did not know the number, he was again viciously assaulted & told he would be killed if he did not tell them. One of the assailants said he might really not have the number. He was tied to a chair & left alone in a room & about 5.30 the next morning the applicant & one of the others returned & told him to write down details of his family in Hong Kong, which he did. He was also told he would have to go to a bank to withdraw a large sum of money. Some time later, all 4 assailants returned & took him to a bank & ordered him to withdraw the money & sent him inside. He had been given a jumper to cover up his bruises. Instead of asking for money, the victim asked for help & the police were called & the four kidnappers were caught. Parity. Appeal dismissed.
162	KYRIACOU, Jack - CCA, 17.3.2000 Simpson, Barr JJ Citation: R v Kyriacou [2000] NSWCCA 115 Sentence appeal. B&E with intent to steal; resist police officer; assault police officer; larceny of MV. Aggregate MT 3y, AT 2y. Offender obtained a stolen MV & with a co-offender broke into & entered a tobacconist’s store. They were attempting to remove goods from the premises when police apprehended them. Offender & co-offender escaped. Offender drove the stolen MV at high speed, causing a police officer to have to jump aside. He was arrested shortly afterwards away from the vehicle & the vehicle was recovered. A large number of packets of cigarettes were found in the vehicle. Aged 42 at time of offence - heroin addict - need for fund for drugs - on parole at time of offences - lengthy criminal history, including drug, fraud/dishonesty, property & driving offences - previously imprisoned on 7 occasions. Appeal dismissed.
163	REGINA, Josef Richard - CCA, 20.3.2000 Abadee, James JJ Citation: R v Regina [2000] NSWCCA 100 Sentence appeal. Escape from lawful custody. MT 2y, AT 1y. Applicant was sentenced for 2 x BE&S, 1 x cultivate prohibited plant, 1 x supply prohibited drug. He appealed against those sentences, the CCA allowed the appeal & he was resentenced. He was then transferred to the Grafton Correctional Centre. Whilst there, a prisoner with whom he was sharing a cell & with whom he had become friendly was seriously assaulted by other prisoners. The applicant was transferred to a minimum security correctional centre at Glen Innes, having signed an undertaking not to escape or attempt to escape if he was transferred. Three days after the transfer, he simply walked out of the centre & hitchhiked to Queensland. Some time later he went to the Northern Territory & whilst there committed an offence of cultivate a commercial quantity of cannabis. His sentence of 2y was reduced by one-third by reason of remissions. After completion of this sentence, he was not extradited to NSW and was finally arrested in Queensland almost 4 years later when he was charged with possess dangerous drug & possess tainted property. Whether sentence excessive. Appeal dismissed.
164	GLEESON, Jamie Paul - CCA, 20.3.2000 Abadee, James JJ Citation: R v Gleeson [2000] NSWCCA 101 Sentence appeal. 2 x dangerous drive occasioning GBH. MT 18m, AT 6m: + disqualified from holding a driving licence for 3y. Applicant lost control of the vehicle he was driving & it spun into the path of an oncoming vehicle. The passenger in the applicant’s car & the driver of the other car both suffered extensive injuries & required lengthy hospitalisation. Excessive speed - blood alcohol concentration of 0.149 grams per 100 mls of blood - previous convictions for driving with low range prescribed concentration of alcohol in 1991 & 1995 for which applicant had been fined. Subjective features - de facto wife in prison - young child fostered out - applicant’s desire to be released to look after his daughter. Leave to appeal refused.
165	LUCK, Neville John - CCA, 12.4.2000 AMADIO, Leon John Ireland, Hidden JJ, Carruthers AJ Citation: R v Luck and Amadio [2000] NSWCCA 119 Sentence appeals. Luck: maliciously inflict GBH with intent; common assault - MT 5y, AT 2½y. Amadio: maliciously inflict GBH with intent - MT 4y, AT 2½y. A brutal attack by the applicants upon a man in the toilets of an RSL Club, resulting in severe & permanent brain damage to the victim. The common assault perpetrated by Luck was upon another man who tried to stop the attack. Whether sufficient weight given to subjective circumstances - common ground that sentences were in the upper range for the offence. Appeals dismissed.
166	MAIN, Robert Michael - NSW SC, Adams J, 19.11.99 Citation: R v Main [1999] NSWSC 1174 revised - 15/02/2000 Redetermination of life sentences under s.13A Sentencing Act 1989. Murder; assault & attempt to rob whilst armed (.375 magnum revolver) - sentenced to concurrent terms of life imprisonment on each count. Whilst in prison he committed another murder (a contract killing) & was sentenced to life imprisonment for that crime. Continued drug use whilst in prison - repeated failure of drug tests - not yet rehabilitated. Purpose of s.13A Sentencing Act 1989 - element of retrospectivity - significance of rehabilitation - relevance of Victims’ Impact Statements. Application dismissed: applicant not to reapply for a period of 2 years.
167	IDDLES, Matthew - CCA, 10.4.2000 Dowd, Hulme JJ Citation: R v Iddles [2000] NSWCCA 128 Sentence appeal. Robbery in company. MT 18m, AT 18m. Applicant & a co-offender stole $550 from a supermarket. The applicant pushed an employee & took the money from the till. Motivated by drug addiction. Aged 19 at time of offence - early guilty plea - remorse - co-operation with authorities - extensive record. Special circumstances. Appeal allowed insofar as sentence corrected to direct release at end of NPP.
168	ABOU-JIBAL, Faouzi - CCA, 10.4.2000 Dowd, Hulme JJ Citation: R v Abou-Jibal [2000] NSWCCA 127 Sentence appeal. Aggravated robbery (maliciously inflict ABH). MT 2y, AT 18m. On the day of the offence, the applicant gambled away $5,000 which was a deposit that should have been given to his father. He discussed with another person (who was not identified) his intention to commit a criminal offence & then the applicant waited outside a bank & as the victim walked up the stairs, he grabbed hold of her handbag. The victim resisted, resulting in her being pulled down the stairs. She was admitted to hospital suffering from a fractured left collar bone, a swollen left ankle, sore left side, sore ribs & abrasions. Not a simple bag snatching - not a spur of the moment offence. Serious gambling addiction - prior convictions - undertaken education courses - Victorian suspended sentence current at time of offence. Whether sentence excessive. Appeal dismissed.
169	RPS - HC, 3.2.2000 - 199 CLR 620; 74 ALJR 449 Appellant was convicted of 4 counts of unlawful sexual intercourse with his daughter. The prosecution case was based largely on the complainant’s evidence & the accused opted to give no evidence at trial. Comment by judge on accused’s failure to give evidence - suggestion of guilty - misdirection & non-direction. Appeal allowed: new trial ordered.
170	SLATER, Darren Alan - NSW SC, Sully J, 26.11.99 MICHAEL, Nathan Isaac Citation: R v Slater and R v Michael [1999] NSWSC 1144 Redetermination of life sentences under s.13A Sentencing Act 1989. Both prisoners, at the age of 18, met a young female outside a night club & drove her to a deserted area. They put her out of the car when she refused to have sex with Michael. Slater punched her & asked Michael to hand him a baseball bat. Slater used the baseball bat to strike the victim across the back of the head, he then removed her jeans & boots with Michael’s assistance. Both prisoners then drove away with some of the victim’s clothes. A short time later they returned, fearing the victim might have been able to identify their vehicle. They picked her up & drove her to a deserted area near Flat Rock Creek Dam. While she was still alive, they dragged her to the edge of the dam & pushed her over an observation deck. She sustained gross head & brain injuries & a broken neck & died almost immediately. Slater: Application granted: resentenced to MT 18y, AT 6y. Michael: Application granted: resentenced to MT 16y, AT 5y.
171	AJL - CCA, 12.4.2000 Powell JA, Hulme, Dowd JJ Citation: R v AJL [2000] NSWCCA 104 Conviction appeal. 3 x assault and commit act of indecency. 400h CSO. Appellant an ordained minister of religion & at the time of the alleged offences was a teacher at a private school. The complainant was aged 16 & was in Year 10 at the time. Complaints - whether “fresh in the memory” of the complainant - long delay - admissibility. Appeal allowed: new trial ordered.
172	CLARKE, Rodney Thomas - NSW SC, Newman J, 15.12.99 Citation: R v Clarke [1999] NSWSC 1225 Redetermination of life sentence under s.13A Sentencing Act 1989. 1 x murder - life imprisonment; 2 x unlawful sexual intercourse - two head sentences of 20y with NPP of 18y; 1 x unlawful sexual intercourse - 10y with NPP of 8y. Prisoner forced entry into young girl’s bedroom, had vaginal & anal intercourse with her whilst smothering her. Application dismissed: applicant not to reapply for a period of 3 years.
173	LUONG, Loan Phuong - CCA, 14.4.2000 Priestley JA, Foster AJ, Smart AJ Citation: R v Luong [2000] NSWCCA 139 Crown appeal. 1 x supply commercial quantity heroin. MT 8m, AT 2y 10m. Respondent was in joint possession of the heroin with her de facto in a car that was stopped & searched. Both were resident in Melbourne & the respondent was 6 months pregnant at the time. The heroin was found secreted under the back seat. The sentencing judge found that greed was the reason for the offence but thought it was probable that it was the husband’s greed, the respondent having assisted him because of their relationship. The respondent’s husband was a heavy gambler. Whether sentence manifestly inadequate. Appeal dismissed.
174	LE, Hiep Van Em - NSW SC, Michael Grove J, 20.8.99 Citation: R v Le [1999] NSWSC 993 Redetermination of life sentence under s.13A Sentencing Act 1989. Applicant showing signs of recovery from alcoholism - Applicant diligently applied himself to work conducted in gaol. Application allowed: resentenced to MT 12y, AT 8y.
175	BIJKERK, Roy Anthony - CCA, 14.4.2000 - 111 A Crim R 443 Grove, Sully, Simpson JJ Citation: R v Bijkerk [2000] NSWCCA 122 Conviction appeal. Conspiracy to import commercial quantity drugs (cocaine). MT 4y, AT 2½y. Appellant & 2 others agreed to import 4 kgs cocaine from the USA. Appellant undertook 2 dummy runs. 2 cartons of coffee granules, with drugs hidden in the cartons, were shipped from the USA. A faked Australian Customs stamp was affixed to an invoice prior to export in order to circumvent inspection of the cartons once they arrived in Australia. Police were aware of the plans to import the drugs as they had the co-offenders under surveillance. The drugs were intercepted upon arrival & were substituted & the appellant arrested at the place where delivery was made. Police informant - entrapment - correctness of interlocutory ruling in DC - discretion - ‘unwary innocent’ test - error in distinguishing Ridgeway - evidence - ‘competing desirabilities’. Appeal dismissed.
176	ORTH, Phillip James - CCA, 10.4.2000 Dowd, Hulme JJ Citation: R v Orth [2000] NSWCCA 126 Sentence appeal. 2 x sexual intercourse without consent; 1 x attempt sexual intercourse without consent. MT 6y, AT 3y. Applicant followed the victim as she was walking along a city street at 5 am on a Sunday morning on the way to join her friends at a nightclub. The victim became aware of him & tried to get away, however, the applicant grabbed her, placed his hand over her mouth & threatened to kill her. He dragged her into a doorway, ripped off her clothes & sexually assaulted her. A security guard across the street observed the assault, the victim called out to him & the offender fled. The security guard gave chase &, with the help of 2 council workers, caught the applicant who was hiding under a truck. Police were called & he was arrested. Aged 26 - early guilty plea - lack of premeditation - good character - prior traffic offence - not previously imprisoned. Totality - intoxication. Appeal dismissed.
177	AMBATSIDIS, John - CCA, 14.4.2000 Simpson, Barr JJ Citation: R v Ambatsidis [2000] NSWCCA 125 Sentence appeal. 2 x supply commercial quantity heroin. Aggregate MT 3y 9m, AT 2y 3m. Applicant agreed to supply an undercover police operative with 1 kg of heroin. This agreement was never completed. Applicant travelled from Melbourne to Sydney to supply a .22 gram sample of heroin to the same undercover police operative. Aged 30 at time of offences - immature & dependent personality - heroin addition - supportive family - priors include property, drug & firearm offences - not previously imprisoned. Special circumstances - weight - whether sentence excessive. Appeal dismissed.
178	DUMA, Paul - CCA, 19.4.2000 Simpson J, Smart AJ Citation: R v Duma [2000] NSWCCA 132 Sentence appeal. Robbery with corporal violence; 1 x aggravated robbery; being carried in conveyance without consent of owner; assault police officer in execution of his duty. Aggregate MT 3y, AT 1y. Applicant, 2 males & a female tore 2 gold chains from victim’s neck. They knocked victim to the ground then punched & kicked him. They stole his wallet, cigarettes & lighter. Victim suffered bruises & pain. Co-offenders were juveniles. Applicant & others stole a car & drove to a bank where they told staff & customers to lie on the floor. They stole $40,000 then fled in a stolen car. One customer had been knocked unconscious. Applicant was later pursued by police in a high speed chase. He struggled with police whilst being apprehended & the police officer suffered minor injuries. Aged 18 at time of 1st offence - gambling problem - priors include malicious wounding, conceal serious offence, dangerous drive - previous imprisonment. Special circumstances - youth - Henry considered. Appeal allowed in part: resentenced to aggregate MT 2½y, AT 1½y.
179	TOOMALATI, Kaisarina Rosalita - CCA, 22.3.2000 Powell JS, Dowd, Hulme JJ Citation: R v Toomalati [2000] NSWCCA 105 Crown appeal. Maliciously inflict GBH. 3y GBB. Respondent, accompanied by 2 friends, confronted victim at her place of work about having an affair with respondent’s husband. An argument developed & applicant tried to grab the victim but her friends restrained her. The friends told her to leave the victim alone, but she ignored this & when the victim turned to leave, applicant grabbed her & punched her in the face. A stranger tried to intervene but the applicant used an implement which she used to stab the victim in the left side of the face causing injury to her eye & the victim fell to the ground, bleeding from the eye. Respondent kicked the victim in the face then left with her friends. Victim underwent surgery & her left eyeball was removed. Pacific Islander - aged 28 - mother of 4 young children - separated from husband - violent & disruptive childhood - violent marriage - depression - attempts at suicide - need for anger management - receiving treatment - supportive family - remorse - on recognizance at time of offence - priors (3 x offences of violence) - not previously imprisoned. Adequacy of sentence. Appeal dismissed.
180	MAHER, Craig - CCA, 12.4.2000 Hulme, Dowd JJ Citation: R v Maher [2000] NSWCCA 147 Sentence appeal. Sexual assault - 3y FT. Aggravated sexual assault - cumulative MT 5y, AT 3y. Applicant smashed window of a caravan, unlocked the door & sexually assaulted the female occupant. Applicant knocked on the door of another caravan & when the woman living inside opened the door, he pushed her backwards so that she struck her head on the refrigerator. Applicant forced the woman to lie on the floor & punched her in the eye when she tried to stand, again causing her to strike her head. The applicant then sexually assaulted her. Aged 41 at time of 1st offence - prior for property offence - not previously imprisoned. Discount - likelihood of re-offending - recidivism scale - mental capacity - general deterrence. Appeal dismissed.
181	RUSH, Shayne Charles - CCA, 1.5.2000 Stein JA, Dunford, Simpson JJ Citation: R v Rush [2000] NSWCCA 134 Crown appeal. 2 x kidnapping; 1 x act of indecency; 1 x aggravated sexual assault; + Form 1 offences (3 x stealing, goods in custody, act of indecency). Aggregate MT 6y, AT 3y. Respondent mistakenly charged under s.61N(1) instead of s.610(1). All offences were committed in two shopping centres & were perpetrated upon a 9 year old girl, a 12 year old girl and a 19 year old woman. Aged 33 at time of 1st offence - no contrition - no pre-sentence report - psychiatric examination refused - long criminal history including stealing, driving offences, possess prohibited drug, malicious damage - previous imprisonment. Whether sentences manifestly inadequate. Appeal allowed in relation to 2 counts: resentenced to aggregate MT 7½y, AT 3½y.
182	DWIGHT, Rodney John - CCA, 14.4.2000 Hulme, Dowd, JJ Citation: R v Dwight [2000] NSWCCA 164 Sentence appeal. 4 x armed robbery; + Form 2 matters taken into account (8 x armed robbery, 1 x BE&S, 2 x steal MV). Aggregate MT 8y, AT 4y. The 4 armed robs involved a liquor outlet, 2 newsagencies & an RSL Club, the property stolen was $7,000, $18,300, 88 cartons of cigarettes & $12,500 respectively. It was in the course of leaving the scene of the last offence that the applicant was arrested. Aged 23 at time of sentence - had been a difficult child - father physically & emotionally abusive towards him - relationship with mother close - feelings of guilt & shame - priors include self-administer prohibited drug, dishonesty & assault - previous imprisonment. Failure to take mental condition into account - failure to give appropriate discount for pleas of guilty & admissions of guilt - whether sentence excessive. Appeal dismissed.
183	REID, David Charles - CCA, 5.5.2000 Hulme J, Carruthers AJ Citation: R v Reid [2000] NSWCCA 166 Sentence appeal. 1 x accessory after the fact to steal from a person; 1 x larceny of MV. Aggregate MT 18m, AT 2y. Applicant & co-offender broke into a car at Beecroft Railway Station carpark & drove off in it. Near West Pennant Hills Shopping Centre, co-offender leaned out the passenger side of the MV & grabbed a handbag from a woman. The 2 then drove off, the applicant driving. The victim’s husband followed them & then the police. Offenders managed to get away. Later in the day, the applicant was found hiding in the backyard of a nearby house. Guilty plea - drug addiction - removed from Aboriginal family at age 2 & placed in white foster care at age 3 - identifies strongly with Stolen Generation - left foster home at age 15 - began a series of detentions in juvenile centres before entering adult correctional system. Parity - objective circumstances - antecedents - whether sentence manifestly excessive. Leave to appeal refused.
184	R - CCA, 14.4.2000 Hulme & Dowd JJ Citation: R v “R” [2000] NSWCCA 163 Sentence appeal. Count 1: robbery in company - FT 2y; Count 2: robbery in company; Count 3: attempt robbery in company - MT 2y, AT 2½y cumulative upon the sentence imposed on count 1. Unremarkable robberies involving the applicant & 2 co-offenders wherein on 2 occasions they approached 2 separate women in the street & on each occasion demanded money. The third offence occurred when one of the co-offenders made an unsuccessful attempt at grabbing a woman’s handbag. The 1st offence netted $4, the second offence $27. In each case, a knife was produced & the victims threatened. Aged 20 at time of offences - heroin addiction - alcohol problem - addiction related to trauma of sexual abuse for a number of years up to age 12 - priors - on recognizance at time of subject offences. Full admissions - assistance to authorities - contrition - well motivated towards rehabilitation. Totality - special circumstances. 1st count: appeal dismissed. 2nd count: appeal allowed, resentenced to NPP 6m. 3rd count: appeal allowed: MT 6m, AT 2y.
185	SUTTON, William Lewis - CCA, 12.4.2000 Hulme & Dowd JJ Citation: R v Sutton [2000] NSWCCA 145 Sentence appeal 1st matter: 3 x BE&S; 1 x possess housebreaking implements; 1 x enter land with intent to commit offence. MT 1y 3m, At 2y 9m. 2nd matter: receiving (multiple); obtain benefit by deception. All offences committed prior to his arrest for the charges in the 1st matter - aggregate MT 2y, AT 10m. Overall effect: MT 3y 3m, AT 3y. The offences dealt with in the 2nd matter were the subject of the appeal to the CCA. Guilty plea - long criminal history going back almost 30 years for dishonesty offences - drug addiction - alcohol problem - genuine & concerted attempt to overcome these problems. Principle of totality. Appeal dismissed.
186	RYAN, Keith Wayne - CCA, 22.3.2000 Abadee, James JJ Citation: R v Ryan [2000] NSWCCA 98 Sentence appeal. 2 x armed robbery; + offences taken into account (2 x armed robbery, 2 x goods in custody, 1 x possess prohibited drug). Aggregate MT 6y, AT 4y. Robberies of a TAB branch & a post office as well as a service officer in the post office. All offences, both in the indictment & the form, were committed whilst on parole. Hand gun & syringe used as weapons. Aged 41 at time of sentencing. Aboriginal descent - numerous convictions, both as a child & as an adult - tragic personal features - severely deprived background - alcohol & drug dependency - institutionalised - since adulthood, in total has spent only 4 years out of gaol - lacking life skills of either his own people or society generally - cognitive defects. Whether sentence manifestly excessive. Appeal dismissed.
187	DUTHIE, Trevor Charles - NSW SC, Newman J, 15.12.99 Citation R v Duthie [1999] NSWSC 1224 revised - 01/01/2000 Remarks on sentence Manslaughter. Indicted on a charge of murder but Crown accepted plea of guilty to manslaughter. The basis upon which the Crown accepted the plea was that at the time of the killing, the accused’s responsibility for his actions was diminished by an abnormality of mind. The accused claimed he & his cell-mate made a pact to commit suicide. They tried suffocation but this did not work, so the accused used a shoe lace to tie up the deceased’s arms & legs & then strangled him with another shoe lace. The accused claimed to the authorities that he was assisting his cell-mate to die. He failed to carry out his own suicide. He then went to sleep & some hours later alerted prison authorities. Earlier in the evening, both the accused & his cell-mate had been given Valium to calm them down on their admission, as both had been ingesting drugs & were in a disturbed state when admitted. Aged 35 at time of sentence - long criminal history, including offences of violence - spent good portion of adult life in custody - hepatitis C positive - drug addiction - chronic schizophrenic - borderline intelligence. Sentenced to: MT 3y 8m, AT 3y.
188	WILSON, Darryl Grant - NSW SC, Newman J, 3.12.99 Citation: R v Wilson [1999] NSWSC 1235 Remarks on sentence. Manslaughter. Accused indicted for the murder of his father, to which he pleaded not guilty but guilty of manslaughter. The Crown accepted this plea in full satisfaction of the indictment. One Sunday morning, accused & his father met at The Spit to change the oil in their boat, after which the deceased made comments which the prisoner took as threats against his girlfriend, believing his father would be prepared to kill his girlfriend & force accused to return to his wife & children. Both had consumed a small amount of alcohol. Accused hit his father, resulting in lacerations to the back of his head, bruising to his right shoulder, a laceration to the bridge of his nose & grazes to the rear of his shoulders. After feeling & listening for the deceased’s heart & breath, he wrongly concluded that his father was dead, lifted him over the side of the boat & threw him into the water. Aged 42 at time of sentence - solicitor by profession - no prior record - excellent character - guilty plea. At the time of the killing, the deceased was on bail on a charge of conspiracy to murder the male partner of his former de facto. He had been convicted of aggravated sexual assault on a minor & convicted for threatening a witness, but successfully appealed both convictions. Strong degree of provocation - exceptional case of manslaughter. Sentenced to 3y GBB.
189	GILBERT - HC, 23.3.2000 - 201 CLR 414; 74 ALJR 676 Murder - appeal against conviction - misdirection by trial judge - failure to leave manslaughter to jury - whether jury properly instructed would necessarily have returned verdict of guilty of murder - whether no substantial miscarriage of justice actually occurred - whether failure to leave manslaughter to jury constitutes substantial miscarriage of justice where jury’s verdict of guilty of murder consistent only with satisfaction of elements of offence of murder. Appeal allowed: conviction set aside, new trial ordered.
190	FRASER, Gregory - CCA, 24.3.2000 Abadee, James JJ Citation: R v Fraser [2000] NSWCCA 97 Sentence appeal. 22 x obtain property by deception; 1 x stealing; 2 x make false instrument & then use false instrument. MT 3y, AT 2y. Applicant obtained goods or services by proffering valueless cheques, drawn by him on an account with insufficient funds, in most cases drawn on the account of a business. No attempt to conceal his true identity. Where cheque drawn on account of the business, applicant represented himself as a director & produced his own driver’s licence. Total value of goods & services obtained $107,078. Goods to the value of $12,252 recovered. Ultimate net loss $94,826. Assistance to authorities in prosecution of another offender - not in position of trust - method of operation not elaborate - offences committed because of gambling addiction, not greed - guilty plea - remorse - already commenced own rehabilitation. Special circumstances - whether sentences manifestly excessive. Appeal allowed: resentenced to MT 2y 3m, AT 1y 3m.
191	MASTERS, Catherine - CCA, 10.4.2000 Hulme & Dowd JJ Citation: R v Masters [2000] NSWCCA 146 Sentence appeal. BE&S; use weapon to resist arrest (knife); + Form 1 matters. Aggregate MT 18m, AT 2y. Applicant entered a house intending to steal. An occupant of the house & some others confronted her & she told a false story as to why she was there. She was told to remain in the house while the police were called, however, she grabbed a knife & threatened to use it before running from the house with the knife. Priors include stealing, receiving, assault, malicious damage, malicious wounding, possess prohibited drug - previously imprisoned. Aged 22y at time of offence - drug problem - clean for 2 years - performance in response to previous CSO & supervision orders unsatisfactory - starting to take control of her life. Whether sentence excessive. Appeal dismissed.
192	RIDDELL, John - CCA, 10.4.2000 Hulme & Dowd JJ Citation: R v Riddell [2000] NSWCCA 144 Sentence appeal. Escape lawful custody. MT 5m, AT 4m. Sentencing judge found that the escape was really a cry for help, rather than an attempt for personal freedom, arising from the applicant’s concerns about the welfare of his wife who had threatened to commit suicide. He had made some attempts earlier in the day to talk to some gaol authorities with a view to having some compassionate latitude extended to him but apparently was unable to talk to them. The escape occurred at a place where the applicant was liable to be seen & was seen & he suffered injuries from the razor wire. Prison warders found him a very short distance from the gaol, walking along the road & he made no further attempt to escape & offered no resistance to them. He acknowledged guilt at the first opportunity. Aged 46 at time of offence - priors - previously imprisoned. Special circumstances - appropriate sentences. Appeal allowed: sentence confirmed - Parole Order made.
193	SMIROLDO, Shane Anthony - CCA, 14.4.2000 - 112 A Crim R 47 Sheller JA, Hulme & Dowd JJ Citation: R v Smiroldo [2000] NSWCCA 120 Sentence appeal. Supply prohibited drug (methylamphetamine). MT 2½y, AT 2y. On 4 separate occasions, within a 30 day period, the applicant sold a quantity of methylamphetamine to an undercover police officer. Quantities sold were 0.37, 0.49, 0.86 & 26.6 grams for $50, $50, $100 & $900 respectively. Aged 21 at time of first offence - addicted to cocaine, amphetamines & alcohol since death of his son (aged 6 weeks) - steps taken to change lifestyle. Priors include BE&S, B&E with intent, goods in custody, stealing, offensive language, driving offences - no previous drug offences - previously imprisoned. Whether sentence excessive. Appeal dismissed.
194	SMITH, Timothy Edward - CCA, 10.4.2000 Hulme & Dowd JJ Citation: R v Smith [2000] NSWCCA 148 Sentence appeal. Sexual intercourse without consent. MT 4½y, AT 2½y. Applicant, who had been drinking heavily, & the victim had been watching a movie together. Victim went to the toilet & on her way back to the lounge, the applicant intercepted her & had sexual intercourse with her without her consent. There were also allegations of other acts of sexual intercourse. Aged 40 - Aboriginal - problems with alcohol since early age - contrition & remorse. Priors include sexual assault, possess prohibited weapon, assault, assault police, stealing, false pretences, B&E, fail to leave licensed premises, maliciously inflict GBH, offensive behaviour, resist police, fail to appear, escape, carry offensive implement, intimidation. Previously imprisoned. De Simoni principle considered. Appeal allowed in part: sentence confirmed - Parole conditions quashed.
195	SOK, Samantha - CCA, 14.4.2000 Hulme & Dowd JJ Citation: R v Sok [2000] NSWCCA 121 Sentence appeal. Robbery in company; + Form 1 matters. MT 3y, AT 2y. Applicant armed with a Stanley knife & co-offender armed with a meat cleaver, entered the premises of the 72 year old victim with the object of robbing her. Two children aged 6 & 3½ were also in the house. Co-offender put his arm around the victim’s neck & held the meat cleaver at her throat. The 6 year old was clinging to her during the attack. The applicant took $200 concealed beneath the victim’s clothing. The victim later required resuscitation with oxygen because of her terror. Aged 21 at time of offence - likelihood of psychological deficiency - expressed remorse - heroin addict - alcoholic & abusive father - in DOCS care since age 12 or 13. Priors include receiving, trespass, use of prohibited drug. Not previously imprisoned. Henry considered - Jurisic considered - secondary role. Appeal dismissed.
196	BURKE, Roslyn Kay - NSW SC, Greg James J, 28.4.2000 Citation: R v Burke [2000] NSWSC 356 Remarks on Sentence: Murder. Guilty plea. Plea accepted by the Crown on the basis that at the time of the act causing death, the offender had an intent to cause GBH but that the Crown was unable to discharge the necessary onus to show an intention to kill or a foresight of that consequence. Intellectual & personality impairment - intoxication - use of knife - tragic life - Aboriginality - special circumstances. Sentenced to 9y with NPP of 5y.
197	O’CONNOR, Todd Anthony - CCA, 14.4.2000 Priestley JA, Simpson J, Foster AJ Citation: R v O’Connor [2000] NSWCCA 124 s.5F appeal by the Crown against decision to grant permanent stay. Drug offences. Respondent’s trial was aborted without any fault on his part or his legal representatives. Crown intended to arraign respondent & a co-accused for a joint trial. Complexities of the trial included the unfitness of one of the police witnesses to give evidence, the use of material from the Police Royal Commission, & voice identification of 250 telephone intercepts. Respondent applied for legal aid but was refused. He sought a stay of proceedings on the basis of the asserted unlikelihood of a conviction or, alternatively, on the basis of the principles discussed in Dietrich (1992) 177 CLR 292. He provided evidence that he was unable to fund legal representation from his own resources. The trial judge found he met the Dietrich indigency test & granted a permanent stay. On appeal, Crown submitted that evidence of respondent’s financial position insufficient to permit conclusion he was unable to fund his own representation. In the alternative, the respondent was entitled to a temporary stay. Appeal allowed: order for permanent stay quashed - trial to be stayed until legal representation available to respondent or until further order made by the DC.
198	LEVY, Barrie Ronald Bruce - NSW SC, Dowd J, 31.3.2000 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder. Applicant & deceased had been involved in criminal activity for some time, having been co-offenders in a B&E in 1965 when they stole 77 furs. Both received prison sentences for that offence. Once released from prison, the applicant became involved with another man, Barnhart, in criminal activities. Applicant & Barnhart planned to blow safes & went to the deceased’s residence to induce him to join in the enterprise. The deceased agreed to take part. They drove to a site & while outside looking at a building, the applicant knocked the deceased to the ground & then started hitting him with a wrench. Barnhart tried to stop him, but the applicant pointed a pistol at Barnhart & told him to keep out of it. The applicant then proceeded to beat the deceased with a mattock. Barnhart gave evidence that the applicant went "off his head". Barnhart was then told to dig a grave between 2 concrete blocks & both the applicant & Barnhart placed the deceased’s body in the grave. Applicant broke the deceased’s legs with a mattock to get them to fit in the grave. Good rehabilitation - undertaken educational studies - employed as a librarian within the prison - assists inmates with legal or procedural problems within the gaol system. Application allowed: sentenced to MT 30y 10m 20d, AT 5y.
199	ADLER, George - CCA, 8.5.2000 Grove, Hidden & Greg James JJ Citation: R v Adler [2000] NSWCCA 152 Conviction appeal. Multiple counts of obtain by deception. At the commencement of the trial (16 February) appellant was represented by senior & junior counsel & a solicitor. On 2 March, representation ceased. Trial judge ruled that the trial would continue & the appellant conducted his defence without legal representation. The trial lasted 3 months. Withdrawal of legal representatives - continuance - whether trial unfair - indictment - duplicity - content of charge to jury - sufficiency of evidence on particular count - probative value - unfair prejudice Appeal dismissed.
200	DALLY, Craig Brookes - CCA, 11.5.2000 - 115 A Crim R 582 Sully J, Carruthers AJ, Smart AJ Citation: R v Dally [2000] NSWCCA 162 Conviction and sentence appeal. Manslaughter. MT 5y 3m 13d, AT 2y (time spent in custody taken into account). Jury returned verdict of not guilty of murder but guilty of manslaughter. Appellant & deceased shared a flat, appellant paying deceased for accommodation & food. Both men had a lot to drink on the day of the killing & an argument developed, resulting in deceased telling appellant to get out. Appellant declined unless deceased refunded rent paid in advance. The argument continued, then appellant went into the kitchen & got a long carving knife. Deceased continued haranguing & abusing appellant, then he went over to appellant & started pushing & pulling at him. Appellant stabbed deceased once, the knife going through the coronary sac, aorta & lung. Death estimated to have followed in a couple of minutes. Appellant phoned for an ambulance & the police. Self-defence raised. Directions - unanimity in respect of manslaughter - intoxication. Sentencing on basis of manslaughter by provocation - sentence unduly harsh & severe. Jury agreement as to manslaughter does not require basis or variety of manslaughter to be agreed. Appeal dismissed.
201	CJB - CCA, 5.5.2000 Hulme J, Carruthers AJ Citation: R v CJB [2000] NSWCCA 161 Sentence appeal. 1 x carnal knowledge - FT 3y. 7 x sexual intercourse with child between 10 & 16 - cumulative MT 4y, AT 3y. The applicant was the complainant’s stepfather. The complainant gave birth to 4 children fathered by the applicant. Aged 39 at time of sentence - schizoid personality - lack of self-confidence - dependent attributes - antisocial attributes. Complaint that carnal knowledge count different in name only, not different in type - whether sentence excessive. Leave to appeal refused.
202	HUTCHISON, Derek John Wayne - CCA, 22.3.2000 Abadee, James JJ Citation: R v Hutchison [2000] NSWCCA 113 Sentence appeal. Use offensive weapon with intent to prevent lawful apprehension (a motor vehicle); + offences taken into account (drive in dangerous manner, drive whilst disqualified, possess prohibited drug, dispose of stolen property, obtain property by deception). MT 2½y, AT 2y; disqualified from driving a MV for 5 years. Applicant arrested by police after a high-speed chase which covered a distance of approx 120 kilometres & involved the applicant driving in a dangerous manner at high, excessive speeds. At times he drove on the wrong side of the road. He ignored traffic signals, as well as repeated requests from his passenger to stop the car. At one point, the applicant side-swiped a police vehicle. Applicant appeared for himself at the hearing of the appeal & claimed he agreed to plead guilty only after his counsel & the Crown agreed he would not receive a sentence longer than 18m. He claimed that rather than him directing his vehicle towards the police, “they were trying to ram me”. Claimed he had been treated more severely than similar offenders & asserted he should have received PD or home detention. Whether sentence excessive. Leave to appeal refused.
203	MASSART, Phyllis - CCA, 1.5.2000 Dunford J, Foster AJA, Smart AJ Citation: R v Massart [2000] NSWCCA 150 Crown appeal. 2 x supply methylamphetamine; 3 x supply amphetamine. Five concurrent sentences of MT 1y, AT 3y. Strong Crown case. Respondent supplied the drugs to a man who then supplied the drugs to an undercover police officer. No evidence that respondent higher in hierarchy of criminal activity than the man. Priors for goods in custody & receiving. On CSO at time of instant offences. Schizophrenia or schizo-affective disorder - respondent suffering from delusions & disturbed judgment - tactile hallucinations - exceptional case. Whether sentences manifestly inadequate. Appeal dismissed.
204	KIRKWOOD, Rita Rose - NSW SC, Bell J, 3.3.2000 Citation: R v Kirkwood [2000] NSWSC 184 Remarks on Sentence: Manslaughter. Pleaded not guilty of murder but guilty of manslaughter in full discharge of the indictment. Accused & deceased had known one another for 4 to 5 years. They had a sexual relationship although they maintained separate homes. The relationship was a volatile one, with them fighting & arguing over petty things. Both drank substantial quantities of alcohol. During an argument, the deceased took a 12” knife from a kitchen drawer & held it in his hand. The accused took hold of the knife by the blade, then she poked the knife at the deceased’s chest & it went in, penetrating the upper lobe of his lung & going into his pericardium. The depth of the wound was 15cm. Aged 63 - part-Aboriginal - little formal schooling - itinerant lifestyle & loving relationship with parents - married - had 7 children - a number of family deaths over the years, including some of the accused’s children - admission to psychiatric hospital for 6 months in 1972. Marriage break-up - dependence on alcohol - formed another relationship - de facto died of cancer. Sentenced to MT 12m, AT 18m.
205	CARROLL, Lee Dean - NSW SC, Greg James J, 19.5.2000 Citation: R v Carroll [2000] NSWSC 410 Remarks on Sentence: Indicted for murder, but pleaded guilty to manslaughter on basis of diminished responsibility. Two other offences were taken into account (assault & possess shortened firearm). Accused, carrying a green cloth bag containing a loaded shotgun, went to visit a woman in a unit. When told by flatmate that she wasn’t there, he sat in the lounge room. Another man present at the time & sitting in the lounge room, asked the accused what his name was. The accused took exception to this & removed the shortened shotgun from the bag & shot the man in the throat & upper chest. He then told the female to lie on the floor or he would shoot her as well. The deceased subsequently died in hospital. Aged 25 at time of sentence - Aboriginal - long history of depression - alcohol & drug abuse - family considered committing him to a mental hospital - suicidal - youngest of 11 children - limited education - family has tragic history involving mental illness - epileptic - history of severe self-mutilation - borderline personality disorder - prone to violence - special circumstances. Sentenced to 12y with NPP of 7½y.
206	K - CCA, 18.5.2000 Mason P, Heydon JA, Smart AJ Citation: R v K [2000] NSWCCA 200 Sentence appeal. Import trafficable quantity heroin. 7y with NPP of 4y. Applicant arrived in Sydney by plane from Indonesia, with 999.5 grams heroin mixture concealed at the bottom of his briefcase - purity 72.1%, net weight 720.6 grams pure heroin, estimated street value $1 million - $1.5 million. Assisted authorities with controlled delivery. Guilty plea. Born in 1974 - family moved to France - parents separated when applicant was 8 - his mother became ill with AIDS when he was 12 & died when he was 17. Father had moved to Brussels & remarried & had a 3 year old son. Three days prior to the death of the mother, the father collected the applicant & his brother & took him to live with them. Applicant got on with his stepmother & stepbrother, but felt he did not belong in that family setting. No sense of belonging anywhere - few emotional attachments of any significance - little insight - emotionally under-developed - no priors in Australia. Whether sentence excessive. Appeal allowed: resentenced to 5y with NPP of 3y.
207	MM - CCA, 24.5.2000 - 112 A Crim R 519 Powell JA, Hulme & Dowd JJ Citation: R v MM [2000] NSWCCA 78 Conviction appeal. 14 x sexual assault offences, including assault & commit act of indecency, buggery, sexual intercourse, incite to commit act of indecency, AOABH. Aggregate MT 6y, AT 2y. All offences were alleged to have been committed against the appellant’s son, who was aged above 10 & under 16 at the time of such offences. Complainant accused of fabricating evidence & cross-examined to demonstrate motive. Accused not cross-examined to demonstrate absence of motive. What, if any, direction to jury called for or permissible. Relationship evidence - tendency evidence - similar facts - admissibility - prior sexual acts between complainant & accused - directions. Appeal allowed: new trial ordered.
208	KEIR, Thomas Andrew - NSW SC, Adams J, 29.2.2000 Citation: R v Keir [2000] NSWSC 111 Remarks on Sentence: Murder. Deceased was married to the accused. Accused became extremely possessive of his wife & jealous of her relationships, not only with other male friends or acquaintances but also with male members of her own family. Evidence that from time to time, the accused threatened to kill her if she ever left him for another man. Intent to cause GBH - gravity of “domestic” murder - use of Victim Impact Statement. Sentenced to: MT 18y, AT 6y.
209	CAMPBELL, Brendan Bernard - CCA, 1.5.2000 Hulme J, Carruthers AJ Citation: R v Campbell [2000] NSWCCA 154 Sentence appeal. Multiple offences including obtain money by false or misleading statements, use false instrument, BE&S, receiving; + matters on a Form 1. Aggregate MT 4½y, AT 1½y. Applicant opened a bank account in a false name using a number of false documents, then he applied for a merchant facility & was granted one. He drew 9 cheques & cashed 6 of them. The total amount fraudulently withdrawn was $95,487.10. Applicant also stole property valued at $15,000 from a residence. He bought a TV set, stereo, walkman & printer from a man who had left some other property at his unit which the applicant believed to be stolen. Aged 30 at time of offences - early guilty plea - assisted police fully - drug addiction - alcohol abuse - history of hypomania. Priors for assault, malicious injury, BE&S, stealing, AOABH, unlawful entry, malicious wounding, resist arrest - appalling record for dishonesty offences -. Previous imprisonment. Alleged failure to allow discount for assistance to authorities - sentence allegedly manifestly excessive - special circumstances. Appeal allowed to adjust sentence to comply with Pearce - overall sentence not disturbed.
210	SMITH, Henry William - CCA, 1.5.2000 - 114 A Crim R 8 Dunford J, Foster AJA, Smart AJ Citation: R v Smith [2000] NSWCCA 140 Crown appeal. 5 x fraudulently omit to account; + further 14 similar offences taken into account on a Form 1. Counts 1,2,4&5 - FT 3y. Count 3 + matters on Form 1 - MT 3y, AT 2y. Over a period of 3 years, respondent (a solicitor) received money from several clients for the purpose of investing it on registered first mortgages. Instead of using the money for this purpose, he used it to finance his practice, make “interest” payments to other clients & to cover general living expenses. He prepared false mortgages, certificates of title & epitomes of mortgage to complete the deception. His practising certificate was suspended in Queensland for similar activity. He relocated to NSW & continued the frauds. When his practising certificate was suspended in NSW, he used another solicitor’s practising certificate to commit similar frauds. Aged early 50s - early plea - co-operated with police - devoted family man - depressive illness - unlikely to re-offend - no priors. Whether sentences manifestly inadequate. Appeal allowed on count 3: sentence increased to 6½y with NPP of 4½y.
211	PLAYER, Adam - CCA, 12.4.2000 Priestley JA, Foster AJ, Smart AJ Citation: R v Player [2000] NSWCCA 123 Stated case concerning admissibility of certain evidence tendered by Crown in a prosecution case. The charges resulted from a drunken aggressive & destructive rampage in the early hours of a Saturday morning. Later events closely related in time & place to alleged offence. Not propensity evidence but admissible as going to appellant’s state of mind. Question in stated case: “Did I err in law in admitting evidence of the appellant kicking over two rubbish bins and attacking a “for sale” sign, either by way of karate chop, kick or both as referred to in paragraph 1 of the case?” Answer: “No.”
212	ZONEFF v THE QUEEN - HC, 25.5.2000 - 200 CLR 234; 74 ALJR 895 Correctness of a direction given by a judge of the DC of SA in a criminal trial with respect to evidence of the appellant in his trial which the jury could have inferred to be false. Directions to jury - lies by defendant - whether going to credibility or indicating guilt - comments by trial judge raising consciousness of guilt - proviso - circumstances for application in strong Crown case. Appeal allowed: convictions on counts 2-7 quashed, retrial ordered.
213	EASTMAN v THE QUEEN - HC, 25.5.2000 - 203 CLR 1; 74 ALJR 915 Constitutional law - appellate jurisdiction of HC - appeal from FC - whether HC has power to receive new evidence in an appeal from FC - whether power to receive new evidence is different in appeals from Federal & State courts - interpretation - relevance of historical background to Constitution. Fitness to plead - issues not raised at trial - fundamental failure of trial process. Whether material before appeal court suggested trial judge erred in failing to raise issue as to applicant’s fitness to plead. Appeal dismissed.

214	NAUDIN, Eric - NSW SC, Dowd J, 4.2.2000 Citation: R v Naudin [2000] NSWSC 18 Remarks on Sentence: Manslaughter. Accused pleaded not guilty to murder but guilty to manslaughter by unlawful & dangerous act. Both the deceased & the accused, who were friends & who were both chefs, had been drinking wine since 9.00 am the previous morning. At about 1.00 am on the day of the killing, an argument broke out between the 2 men concerning a game of cards they were playing. The deceased evidently then took one of his chef’s knives & held it close to the prisoner’s face, whereupon the prisoner asked him to put the knife down. The deceased continued to hold the knife, touching the point with his thumb & abusing the accused. The accused said he managed to take the knife away from the deceased then he “put it into him”. An ambulance was called & the deceased was taken to hospital, however, he died at 2.20 am. Frank & open admissions - endeavoured to assist deceased - untreated psychotic illness - alcohol abuse - several admissions to detoxification centres - high average intelligence - social judgement affected by persecutory beliefs. Sentenced to: MT 3y, AT 3y.
215	SAXON, Ian Hall - CCA, 14.7.2000 Meagher JA, Grove & Bergin JJ Citation: R v Saxon [2000] NSWCCA 268 Sentence appeal. Escape from lawful custody. Whether error in finding escape was well planned; whether insufficient weight given to assistance. Appeal dismissed.
216	WATKINS, Tracey Narelle - CCA, 3.5.2000 Dunford J, Foster AJA, Smart AJ Citation: R v Watkins [2000] NSWCCA 151 Crown appeal Count 1: Knowingly take part in manufacture large commercial qty methylamphetamine - 3y GBB; Count 2: Knowingly take part in supply of commercial quantity ecstasy - MT 6m, AT 12m. Respondent part of the Kalache organisation. Police investigation involving monitored telephone calls & captured listening device conversations, as well as physical & video surveillance, & forensic chemistry provided evidence of respondent’s part in offences. Respondent pleaded guilty at earliest opportunity, however, asserted she only had a minor role in the commission of the offences & there were significant subjective factors to be taken into account. There was a dispute as to her level of involvement, resulting in the trial judge receiving evidence & making findings. Aged 30 at time of sentence - deeply entrenched in the criminal element - ability and/or willingness to extricate herself in doubt - sees herself as a “victim” - priors for stealing, larceny, possess prohibited drug, goods in custody - not previously imprisoned. Appeal allowed: 1st count: resentenced to MT 1y, AT 18m; 2nd count: sentence varied to a FT of 6m.
217	TULLOH, Mark Andrew - CCA, 3.5.2000 TAYLOR, Karen Lee Hulme J, Carruthers AJ Citation: R v Tulloh & Taylor [2000] NSWCCA 179 Sentence appeals. Tulloh: Supply heroin; knowingly take part in supply of heroin - MT 2y 9m, AT 11m. Taylor: Supply heroin; knowingly take part in supply of heroin - MT 2y 9m, AT 11m; conspire to defraud Australian Postal Corporation - 3y GBB. Guilty pleas. Both heroin addicts. They followed a practice of placing coded telephone calls to a George Scripcariu, ordering various amounts of heroin, driving from Goulburn to Sydney on a daily basis where an exchange of money & heroin would take place & then going back to Goulburn & selling the heroin from their residence to persons who would call in to purchase it - they had approx 10 sales per day. During the period covering 1st charge, about $18,150 was paid to Scripcariu, estimated weight of heroin between 60 & 90 grams. 2nd charge involved making arrangements with person named Bourke to purchase ½ ounce heroin for $4,000 on behalf of a 4th person, Swan, who was flying to Brisbane; attendance at Sydney & purchasing that heroin from Scripcariu then passing it over to Swan. The 3rd charge against Taylor involved her obtaining Australian Post money orders in amounts of $10, fraudulently altering the amounts to $710 or $810 & cashing them. In total, she obtained approx $2,300 which was used to purchase heroin. Whether sentences excessive. Appeals dismissed.
218	RYAN, Kevin Sean - CCA, 9.5.2000 Spigelman CJ, James & Ireland JJ Citation: R v Ryan [2000] NSWCCA 184 s.5F appeal. Demand money with menaces. Whether permanent stay of proceedings available due to delay of trial. Reluctance of Court on appeal to interfere with exercise of trial judge’s discretion to refuse stay. Appeal dismissed.
219	RLS - CCA, 1.5.2000 Hulme J, Carruthers AJ Citation: R v RLS [2000] NSWCCA 175 Sentence appeal. 3 x armed robbery (twice with .22 calibre shortened rifle, once with knife); 1 x assault with intent to rob whilst armed with a knife; + 13 offences on a Form 1 (4 x armed rob, 2 x larceny of MV, 1 x larceny from a MV, escape lawful custody). During the course of the escape on the Form 1, applicant committed 2 further offences (AOABH, maliciously inflict GBH). Aggregate MT 4½y, AT 4½y. Sentencing judge ordered that until expiration of MT, the sentences be served in a detention centre. Aged 16 at time of offences - long criminal record - previously subjected to control orders resulting in him being in custody for 9 months - became addicted to alcohol at age 12 & to heroin at age 14½. Recent significant efforts at rehabilitation - completed a bricklaying course - participating in painting & decorating course - actively sought drug, alcohol & psychological counselling - supportive parents & family. Failure to adequately take subjective features into account - whether sentence excessive. Appeal dismissed.
220	OSBORNE, Leonard Rappley - CCA, 1.5.2000 Hulme J, Carruthers AJ Citation: R v Osborne [2000] NSWCCA 158 Application to set aside summary dismissal of application for leave to appeal against sentence. 2 x BE&S; maliciously damage property by fire or explosives; steal MV; + 25 offences on a Form 1; + 1 other offence on a 2nd Form 1. Aggregate MT 4y, AT 16m. During episode of above criminal conduct, applicant was twice granted bail & on each occasion committed further offences. Very bad record - criminal career commenced when he was 17 - thereafter continuously before the courts - drug addiction - “exemplary” efforts at rehabilitation whilst in prison. Whether failure to set aside could or would lead to a miscarriage of justice. Application refused.
221	MURRAY, Eric Leonard - CCA, 3.5.2000 Hulme J, Carruthers AJ. Citation: R v Murray [2000] NSWCCA 159 Sentence appeal. Receiving. Aggregate MT 3y, AT 18m. Guilty plea. Police executed a search warrant as a result of information obtained from telephone intercepts between applicant & another. They located a blue plastic bag containing items of jewellery & jewellery pouches. Following the execution of a 2nd search warrant, police found other items. Aged 68 - prior criminal record - dysfunctional family - received little formal education or training - some time spent employed as bell boy, barman, ship’s steward & employed on the wharves - employment intermittent in recent years - married to same wife for 45 years. Poor health - severe head injury at an early age requiring restorative surgery - diminished cognitive skills which may be due to head injury, meningitis - suffered heart attack 4 years ago - suffers from circulatory & gastrointestinal disease with periods of internal bleeding - occlusion of carotid artery. Relevance of fact that matters could have been dealt with in the LC. Appeal dismissed.
222	LONDON, Darren Robert - CCA, 5.5.2000 Hulme J, Carruthers AJ Citation: R v London [2000] NSWCCA 165 Sentence appeal. Armed robbery; armed robbery with wounding; + Form 1 containing 22 offences, many of them violent. Aggregate MT 12y, AT 4y. Applicant entered second-hand dealer’s shop, produced a gun & demanded money. Shop owner said there was none & opened the till to show him. Applicant made more demands & received same response. He threatened to shoot shop owner in the leg, then the head & to kill him. He shot the shop owner in the leg then ran from the shop. Applicant, armed with a gun, bailed up employees in a hotel & demanded that they open the safe. He shot an employee, who was opening the safe, in the arm. Aged 26 at time of first subject offence - thrown out of home at 14 due to misbehaviour - lived on streets for a number of years - drinking problem - drug user - severely clinically depressed - showing insight into past behaviour - priors - previously imprisoned. Subjective circumstances - objective circumstances - R v Morgan, R v Pearce & R v Henry considered. Leave to appeal refused.
223	MITCHELL, Gary Thomas - CCA, 26.5.2000 Spigelman CJ, James & Sperling JJ Citation: R v Mitchell [2000] NSWCCA 188 Conviction appeal. 1 x sexual intercourse without consent. The issue at trial was whether the complainant had consented to sexual intercourse. She said she did not, while the appellant said she did. The jury accepted the complainant’s evidence. The question on appeal was whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent. Whether verdict unreasonable - whether misdirection - relationship - guilty passion - no question of principle. Appeal dismissed.
224	CARRION, Roy - CCA, 26.5.2000 - 49 NSWLR 149; 113 A Crim R 39 Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ Citation: R v Carrion [2000] NSWCCA 191 Crown appeal. Knowingly take part in supply of ecstasy; knowingly take part in supply of cannabis leaf. 3y PD on each count. Police surveillance, including use of listening devices directed at a flat occupied by Leslie Kalache. Respondent & his brother visited the flat on 10 occasions in less than a month. On one occasion when the respondent visited alone, conversations were recorded. Evidence that respondent involved in selling drugs. Sentencing judge found that respondent & his brother had both spent lengthy periods in gaol; respondent under the influence of his brother; fears of security in gaol arising out of a belief of a fate similar to that of his brother who was murdered after his return to prison; taped evidence from listening device that respondent did not want to become involved; Kalache had preyed upon respondent’s brother with intention of recruiting him & this in turn drew the respondent into them. Guilty plea - remorse - proven rehabilitation in relation to drug use demonstrated by series of clear urine tests. Whether sentence manifestly inadequate. Appeal allowed: resentenced to concurrent 3y with NPP of 2y 3m.
225	UNG, Heeng - CCA, 29.5.2000 - 112 A Crim R 344 Smart AJ, Ireland & Hulme JJ Citation: R v Ung [2000] NSWCCA 195 Conviction and sentence appeal. Knowingly concerned in importation of commercial quantity heroin. 16½y, with NPP of 11y. 800 boxes of tins of canned pineapple were imported into Australia. Seven boxes contained 78.073 kgs heroin (pure form 54.504 kgs) concealed in the tins. Wholesale value in Australia $14.5 million, street value $110 million. Federal police arranged a controlled delivery, with a Federal Agent posing as the truck driver’s assistant. Evidence was obtained from a listening device in one of the boxes & by a camera/microphone concealed under the truck. At trial, the Crown tendered an edited videotape which was admitted into evidence. Admissibility of evidence of knowledge of appellant & co-offender - statements made out of court - whether hearsay - purpose for which evidence admitted - circumstantial evidence directions - directions as to use of co-offender’s evidence - no request for warning. Appeal dismissed.
226	MANLEY, Jonathon Harold - CCA 26.5.2000 - 49 NSWLR 203; 112 A Crim R 570 Wood CJ at CL, Sully & Simpson JJ Citation: R v Manley [2000] NSWCCA 196 Application for an order for costs pursuant to s.2 Costs in Criminal Cases Act 1967 (NSW). Applicant was convicted of murdering his infant son & received a substantial term of penal servitude. Whether present Bench of the CCA has jurisdiction to grant the application - whether, if such jurisdiction exists, it should be exercised in favour of the applicant. Pursuant to Supreme Court Rules part 52A r5, the Court may “exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings”. Those rules do not apply to the Court in the exercise of its criminal jurisdiction (SCR Pt75 r2 and s.17 Supreme Court Act) or to the Court of Criminal Appeal. No comparable provision exists in the Criminal Appeal Rules. Question of interpretation not free from doubt - legislation unclear - may not have given effect to intention expressed. Statutory provisions set out & relevant principles discussed. Certificate granted (by majority). By reason of s.17 of the Court of Criminal Appeal Act, no costs can be awarded in relation to the appeal or in relation to this application. See also: R v Johnston [2000] NSWCCA 197.
227	JOHNSTON, Bernard Lawrence - CCA, 26.5.2000 Wood CJ at CL, Sully & Simpson JJ Citation: R v Johnston [2000] NSWCCA 197 Application for an order for costs pursuant to s.2 Costs in Criminal Cases Act 1967 (NSW). Applicant was convicted of 3 x sexual intercourse without consent in circumstances of aggravation. He appealed against those convictions, the appeal was upheld, & a verdict & judgment of acquittal was entered. Whether present Bench of the CCA has jurisdiction to grant the application - whether, if such jurisdiction exists, it should be exercised in favour of the applicant. Application refused. See also: R v Manley [2000] NSWCCA 196
228	JONES, Leslie Carl - CCA, 23.5.2000 JONES, Leslie Shane Spigelman CJ, Hulme J, Carruthers AJ Citation: R v Jones & Jones [2000] NSWCCA 186 Conviction appeal. Conspire to supply prohibited drug (cannabis leaf). Leslie Carl Jones: MT 2y 348d, AT 358d; Leslie Shane Jones: MT 3y 341d, AT 15m 23d. Crown case wholly circumstantial - the conspiracy to be inferred primarily from evidence of duly authorised intercepted telephone conversations involving the alleged conspirators. Evidence incapable of establishing conspiracy alleged by Crown - trial judge’s directions as to elements of offence inadequate & misleading - failure to warn jury not to speculate about evidence - failure to specify scope of conspiracy that had to be proved - failure to discharge jury after Crown prosecutor, in his closing address, made a submission that the accused would have been expected to call 2 co-offenders, that their failure to do so was unexplained & therefore the jury could infer that any evidence from them could not assist the case. Sufficiency of evidence of agreement as distinct from expectation - failure to call witness. Appeal allowed: convictions and sentences quashed.
229	RICHMOND, Paul Stephen - CCA, 3.5.2000 Dunford J, Foster AJA, Smart AJ Citation: R v Richmond [2000] NSWCCA 173 Crown appeal. Hindering investigation. 300 hours CSO. Respondent was a passenger in a BMW which went through a red light & collided with a minibus. The BMW was travelling at a speed in excess of 60-70 kph. The driver of the minibus was killed & another occupant seriously injured. The driver of the BMW left the scene. The respondent was wedged in the car & had to be removed. He was in hospital for 5 days, suffering from fractured ribs & bruising. At the scene, he stated he was the driver & asserted the light was green & he was driving very slowly. When questioned by police, he maintained this story. Two years later, he forwarded a statement to police indicating the real name of the driver. He said he had lied in order to conceal from his wife a sexual relationship with the driver of the vehicle. Aged 36 at time of offence - suffering depression - lost his business - now employed in responsible position & doing well - priors for driving under the influence - not previously imprisoned. Appeal dismissed.
230	WOOD, Martin - CCA, 3.5.2000 Hulme J, Carruthers AJ Citation: R v Wood [2000] NSWCCA 155 Sentence appeal. Robbery in company (3y PD). PD order later cancelled & unexpired portion ordered to be served as custodial sentence of MT 17m, AT 10m 3w. Applicant (an employee of a service station) & co-offender robbed an employee of $21,620, being the property of the service station owner. Co-offender was armed with a long knife & applicant was aware of this fact. Co-offender used the knife to terrify & subdue the employee who was tied to the door handle of a room in the service station. Applicant used his knowledge of the security system to remove money from a safe. Aged 24 at time of offence - alcohol & drug addiction - supportive family - assistance to authorities - remorse - contrition - impressive attempts at rehabilitation - priors for steal from the person, carry cutting weapon, stealing - prior PD. Special circumstances. Appeal allowed: sentence restructured to MT 17m, AT 10m 3w PD.
231	CLARKE, Jade Lillian - CCA, 5.5.2000 Hulme J, Carruthers AJ Citation: R v Clarke [2000] NSWCCA 160 Sentence appeal. 1 x robbery in company; + 2 offences on a Form 1 taken into account (armed with intent to commit indictable offence, larceny). MT 3y, AT 2y. Applicant & another, who was armed with a knife, entered a service station shortly after 1.00 am & confronted an employee who was working alone. Co-offender pushed the man in the back, causing him to fall against a display cabinet, then placed the blade of the knife against the man’s throat & threatened to cut him if he didn’t open the cash register drawer. The employee refused. Applicant reached over the counter & removed cash stored underneath the counter then she attempted to open the register. The co-offender continued to threaten the employee until he opened the register & the applicant removed all the notes from the till, then ran from the store. Aged 18 at time of offence - co-operated with authorities - early guilty plea - pregnant - drug addiction - excellent prospect of rehabilitation - no priors. Alleged failure by sentencing judge to achieve parity of sentence between co-offenders - appellant pregnant at time of sentence. Appeal dismissed.
232	MASON, Daniel - CCA, 29.5.2000 Sully & Adams JJ Citation: R v Mason [2000] NSWCCA 207 Sentence appeal. 1 x aggravated assault with intent to rob. MT 4y, AT 1y 4m. Applicant on parole at time of subject offence which occurred 3 days after his release from prison after serving a sentence for maliciously inflicting ABH with intent to have sexual intercourse. He was staying at Somersby House at the time. He asked a carer (a 58 year old woman) to make some sandwiches for him. She did this & took them to his room & gave them to the applicant. As she turned to walk back to the dining room, he asked her where the billiard cues were kept & she walked with him to the pool room & pointed to the cues standing against a wall. After further conversation, the applicant grabbed the carer in a headlock, with his hand over her mouth & dragged her towards the toilet. The carer struggled to free herself & the applicant punched her in the mouth & her left eye, then he locked her in a toilet. Some time later another carer arrived & released the victim. Totality - special circumstances - application & substance of R v Henry (1999) 46 NSWLR 345. Appeal allowed: resentenced to MT 3y, AT 2y 4m.
233	WALKER, Michael Shand - CCA, 23.3.2000 Spigelman CJ, Ireland & Simpson JJ Citation: R v Walker [2000] NSWCCA 130 Conviction appeal. Murder. MT 14y, AT 5y. Appellant got into a taxi & asked female driver to take him to a number of destinations. At one stage she activated an alarm indicating that she felt under threat, then she drove towards the nearest police station. The appellant aimed a gun, concealed by a towel, at her back & discharged the gun, killing the taxi driver. He then attempted to drive the taxi away but was unsuccessful & was caught by police. Whether error in allowing certain evidence of a police informer into evidence - verdict of guilty of murder unreasonable. Appeal dismissed.
234	BARRY, Dale Wesley - CCA, 13.4.2000 Stein JA, Dunford & Sperling JJ Citation: R v Barry [2000] NSWCCA 138 Sentence appeal. Murder - MT 18y, AT 6y; malicious wounding - concurrent FT 12y. Applicant & victim married but separated. Violent relationship. On day of killing, applicant, who had been drinking, entered the family home & he & the victim argued. Applicant told the victim to lie on the floor, then he stabbed her at least 4 times & beat her around the face with a padded stool. He then stabbed his step-daughter in the upper abdomen, the wound penetrating some 6-7 cm into her hepatic artery & portal vein. Aged 39 at time of offences - abnormality of mind - depression - mood & personality disorders - alcoholism - violent childhood - excellent work record - contrition. Priors include 3 assaults - previous recognizance, CSO, AVOs. Totality - delay. Appeal dismissed.
235	HOON, Jade Elizabeth - CCA, 19.4.2000 POUOA, Aigailetai Stein JA, Dunford & Simpson JJ Citation: R v Hoon & Pouoa [2000] NSWCCA 137 Crown appeal. Hoon: supply prohibited drug on 3 or more occasions within 30 days - MT 8m, AT 6m. 19 at offence - heroin addiction - link between addiction & offence - age & addiction made her vulnerable - parents separated when she was 3 - assaulted by stepfather - slight chance of rehabilitation - assistance to police - priors - not previously imprisoned. Pouoa: supply prohibited drug on 3 or more occasions within 30 days - MT 8m, AT 6m. 18 at offence - heroin addiction - reason for participation - age & addiction made her vulnerable - good rehabilitation prospects - admissions - raised in hardship - priors - not previously imprisoned. Hoon sold 0.25 grams heroin to undercover police officer for $80. Pouoa sold balloon cap of heroin to undercover police officer for $80 on 3 separate occasions. Both offenders supplied drugs on daily basis. General deterrence - double jeopardy - parity. Appeal dismissed.
236	HANSELL, Jerry Leslie - CCA, 14.4.2000 Priestley JA, Foster AJA, Smart AJ Citation: R v Hansell [2000] NSWCCA 141 Conviction and sentence appeal. Armed robbery. MT 4½y, AT 1½y. In car park, appellant approached 2 women putting shopping into their car. Threatened to stab one woman in the stomach unless she gave him her handbag. She took off her backpack, he picked it up, then approached the other woman who was sitting inside the car with her legs outside the car & made the same threat. She refused, he cut the straps, took it, then he drove off. Aged 32 at offence - suffered severe emotional disturbance with death of his son - depression - involved in charity work - disability from back condition - no contrition - poor record - priors for dishonesty, stealing, drugs, assault, malicious injury, possess offensive weapon, drive manner dangerous, etc - previous imprisonment. Identification evidence not sufficient to be satisfied of appellant’s guilt beyond reasonable doubt - R v Henry distinguished - whether sentence excessive. Conviction appeal dismissed. Sentence appeal allowed: resentenced to 5y with NPP of 3y 9m.
237	GEOGHEGAN, Margaret - CCA, 21.2.2000 Hidden J, Carruthers AJ Citation: R v Geoghegan [2000] NSWCCA 93 revised - 12/05/2000 Sentence appeal. Armed robbery; + Form 1 offences (demand money with menaces, larceny). MT 2y, AT 2y. No facts provided. Aged 32 - severe anaemia - priors for 9 x larceny, drive whilst cancelled - not previously imprisoned. Fresh evidence - physical illness - imprisonment more burdensome. Appeal allowed: sentence restructured to MT 21m, AT 2y 3m.
238	STEENSON, Robin John - CCA, 5.5.2000 Stein JA, Dunford & Simpson JJ Citation: R v Steenson [2000] NSWCCA 143 Conviction appeal. 2 x sexual intercourse without consent. The jury returned verdicts of not guilty on the 1st count & guilty on the 2nd Count. FT 12m. Appellant & complainant had been living together in de facto relationship characterised by verbal abuse & physical violence. He awakened her one evening & penetrated her vaginally with his penis whilst she indicated her lack of consent. Following this he inserted his penis into her anus. She suffered bruising to her body & a discharge of blood & mucus from her anus. Verdicts inconsistent - verdict of guilty unreasonable. Jones (1997) 191 CLR 439 distinguished. Appeal dismissed.
239	KENNY, Ryan - CCA, 23.2.2000 Hidden J, Carruthers AJ Citation: R v Kenny [2000] NSWCCA 92 Sentence appeal. Supply prohibited drug (methylamphetamines); + Form 1 offence related to principal offence. MT 12m, AT 12m. No details of case given. Aged 24 - admitted having dealt in drugs - drug abuse - role of user/dealer - stable de facto relationship - good work record - special circumstances - no priors. Appeal allowed: resentenced to MT 6m, AT 12m.
240	DESBOROUGH, Rodney - CCA, 1.5.2000 Hulme J, Carruthers AJ. Citation: R v Desborough [2000] NSWCCA 170 revised - 17/05/2000 Sentence appeal. 1 x sexual intercourse with person between age of 10 & 16; aggravated indecent assault. Aggregate MT 1½y, AT 1y 9m. Applicant intoxicated & sitting in bed watching TV. His daughter came into the room & they started to tickle each other. Applicant pulled daughter’s undies off & performed cunnilingus on her, then took his underpants off & placed his penis adjacent to her vagina. Both agreed what he did was wrong & replaced their clothes. Applicant called his wife & confessed, then put the daughter on the phone to talk to her mother. Applicant later called the Child Abuse Prevention Centre & told them of the incident. Aged 40 at offence - daughter 11 - admissions to police - early guilty plea - genuine contrition & remorse - alcohol a substantial factor - abuse of trust - immediately desisted - no priors. Whether too much weight given to general deterrence. Appeal allowed: resentenced to FT 12m, Court declining to set NPP.
241	BURKE, Roslyn Kay - NSW SC, Greg James J, 28.4.2000 Citation: R v Burke [2000] NSWSC 356 Remarks on Sentence: Murder. Guilty plea. Plea accepted by the Crown on the basis that at the time of the act causing death, the offender had an intent to cause GBH but that the Crown was unable to discharge the necessary onus to show an intention to kill or a foresight of that consequence. Intellectual & personality impairment - intoxication - use of knife - tragic life - Aboriginality - special circumstances. Sentenced to 9y with NPP of 5y.
242	JANS, Gunter Detlef - NSW SC, Michael Grove J, 14.6.2000 Remarks on Sentence: Manslaughter. Partial defence of diminished responsibility. Guilty plea. Accused stabbed his wife with a kitchen knife. He reported the killing & made reference to the location of his car near Sydney University (where he worked on the maintenance staff). When police arrived there, they found the accused on the roof of the 12 storey Fisher Library, his behaviour considerably distressed. He was coaxed down & arrested. Accused was subjected to taunts & accusations by his wife over an extended period. She had had a mastectomy & chemo therapy for cancer & her family thought her odd behaviour was associated with this. Eldest son, a professional nurse, spoke to a number of people about her behaviour & suggestions were made of the development of paranoid schizophrenic tendencies. There was evidence that the victim’s father had Huntington’s Chorea & her mother a significant psychiatric condition. Highly likely that at the time of death, the victim was suffering from Huntington’s Chorea, which is genetic in origin & associated with a single autosomal dominant gene with virtually 100% rate of manifestation. Aged 55 - likelihood of re-offending remote - support from 3 sons. Sentenced to 4y GBB.
243	TOWERS, Kevin Walter - NSW SC, Michael Grove J,18.5.2000 Citation: R v Towers [2000] NSWSC 420 Remarks on Sentence: Malicious wounding. The original charge of murder was abandoned. The wounding occurred during an extended binge drinking. Accused assaulted the victim with broken glass as a consequence of the victim allegedly making sexual advances on a female. Guilty plea - alcohol & drug addiction - low intelligence. Sentenced to: 3y GBB.
244	GALEA, Raymond - NSW SC, Michael Grove J, 12.4.2000 YEO, Keng Kwee Citation: R v Galea & Yeo [2000] NSWSC 301 Remarks on Sentence: Yeo: murder. Galea: accessory after the fact to murder. Galea did not participate in the actual commission of the murder. His culpability arose from his knowledge that Yeo had committed the murder and, with that knowledge, acted with the intention of assisting her to escape detection or prosecution. Yeo & Galea had been in a de facto relationship. However, Yeo left Galea & entered into a sexual relationship with the victim while working as a nurse in a psychiatric hospital. The victim was a patient in that hospital. Yeo obtained a pistol from Galea & shot the victim in the head & neck, killing him. She confessed the killing to Galea & both Yeo and Galea dismembered the body for disposal. Yeo: sentenced to 24y with NPP of 18y. Galea: 8y with NPP of 6y.

245	ESPOSITO, Guiseppina - NSW SC, Dunford J, 23.3.2000 Citation: R v Esposito [2000] NSWSC 284 Remarks on Sentence: Manslaughter. Originally indicted for murder. At arraignment, accused pleaded not guilty to murder but guilty to manslaughter. That arraignment followed an earlier trial where the jury found the accused guilty of murder but the CCA allowed her appeal & ordered a new trial. The killing occurred as a result of the accused stabbing a man in the street. The accused was in the company of 2 males at the time. The 2 males left the scene after the killing. The accused later sold 2 gold rings apparently belonging to the deceased & used the money to buy heroin. Aged 34 - guilty plea - priors - drug problems. Computer skills acquired whilst on remand awaiting trial - multi-drug dependency - somewhat less than successful attempts at rehabilitation - needs significant period of conditional liberty with close supervision - special circumstances. Sentenced to MT 8y, AT 4y.
246	McGRATH, Andrew Mark - NSW SC, Michael Grove J, 18.5.2000 Citation: R v McGrath [2000] NSWSC 419 Remarks on Sentence: Murder. This was a revenge killing. Accused suffocated the victim with a wet towel. The victim was the accused’s former girlfriend’s partner. The accused was the natural father of his former girlfriend’s 2 children. The children referred to the victim as father. The victim sexually assaulted the children. Sentenced to: 18y with NPP of 13y.
247	DUNN, Robert Joseph - CCA, 15.5.2000 Sully J, Foster AJA, Carruthers AJ. Citation: R v Dunn [2000] NSWCCA 171 s.5F appeal. Multiple charges of paedophilia. The police raided the home of the accused 13 years ago & confiscated videos showing accused in sexual acts with teenage boys. The accused paid police officers $40,000 to recover the videos. The accused was given indemnity when corrupt police were investigated. Whether indemnity extended to acts of paedophilia recorded in videos. Indemnity from prosecution - Application to strike out charges. Appeal dismissed: indemnity related to act of bribery, not paedophilia.
248	DANN, Nicholas Trevor - CCA, 19.5.2000 Spigelman CJ, Heydon JA, James J. Citation: R v Dann [2000] NSWCCA 185 Conviction appeal. 2 x homosexual intercourse with 7 year old stepson (fellatio, anal intercourse) The victim was the appellant’s step-son & was aged 17 at time of offences. Stepson performed fellatio upon accused. Accused had anal intercourse with step-son. All events took place in the family home. Expert evidence should have been rejected - evidence of uncharged conduct inadmissible and/or should have been excluded - failure to direct jury regarding unreliability of complainant. Appeal allowed: new trial ordered.
249	GOFF, Craig Leslie - CCA, 11.5.2000 - 112 A Crim R 485 Grove, Ireland & Adams JJ Citation: R v Goff [2000] NSWCCA 194 Conviction appeal: 1st indictment: Manslaughter; + 2 offences taken into account (AOABH, BE&S). Appellant & another asked victim to leave their home & a fight ensued. The fight continued outside the house. Appellant last saw victim walking down driveway. Cause of death found to be bleeding into the abdomen. Victim also suffered multiple rib fractures. MT 6½y, AT 5½y. Sentence appeal: 2nd indictment: AOABH; assault; possess shortened firearm. Fixed terms subsumed by sentences in 1st indictment. Appellant joined in an argument between 2 couples. He approached one man & punched him. The man retaliated by hitting & kicking him. Appellant produced a rifle & pointed it at the man, threatening to shoot him, then hit the man on the head & shoulders with the butt of the rifle. He also threatened bystanders with the rifle. The rifle was not loaded. Aged 31 - guilty plea - multiple priors - previously imprisoned. Failure to direct jury on issue of self defence - obligation cannot be extinguished by waiver of counsel - expression beyond reasonable doubt - caution against definition in other terms - observations on response to jury enquiry during deliberation. Conviction appeal allowed on 1st indictment: new trial ordered. Sentence appeal allowed on 2nd indictment: aggregate 3y with NPP of 2y 3m.
250	GPP - CCA, 19.5.2000 Dunford, Hulme & Barr JJ Citation: R v GPP [2000] NSWCCA 181 Conviction appeal & leave to appeal against sentence. Multiple sexual offences against 4 children. The Crown presented a separate indictment for each complainant & the 4 trials were heard consecutively. Aggregate MT 6y, AT 2y. Complainants aged 13, 8, 9, 10 at time of offences. Aged 22 at 1st offence - offences committed over lengthy period - obese - long-standing back injury - angina - to serve sentence on protection - lack of contrition. Directions - complaint evidence - corroboration - delay - whether verdict unreasonable - whether sentences excessive. Conviction appeal dismissed. Leave to appeal against sentence refused.
251	SMITH, Samuel William - CCA, 1.5.2000 Hulme J, Carruthers AJ Citation: R v Smith [2000] NSWCCA 178 Sentence appeal. 2 x armed robbery; 1 x steal conveyance; 1 x aggravated armed robbery; + Form 1 matters taken into account. Aggregate MT 4y, AT 2y. No facts provided. Youth aged 18 - guilty pleas - hard life without benefit of stable & supportive family - early involvement with alcohol & drugs - priors dealt with in Children’s Court (driving offences, assault, offensive language, unlawful entry, drug & property offences, escape, resist arrest). Subjected to control orders but not previously imprisoned in adult gaol. R v Henry considered. Whether sentence excessive. Appeal dismissed.
252	SOLOMONS, Gregory John - CCA, 13.6.2000 - 114 A Crim R 89 Mason P, Heydon JA, Smart AJ Citation: R v Solomons [2000] NSWCCA 215 Sentence appeal. 2 x knowingly concerned in importation of prohibited drug (ecstasy) - 8y with NPP of 5½y; supply cannabis - FT 9m. The appeal was against the sentence on the ecstasy count only. Two packages containing a total amount of 572.3 grams ecstasy tablets, yielding 146.5 grams pure ecstasy were intercepted & the Australian Federal Police monitored a controlled delivery of each of the packages. This surveillance led the police to the appellant & they further observed him going to a storage unit which was rented in his name. There they found $115,000 in cash, shopping bags containing cannabis, a flick knife, knuckle duster, as well as electronic scales, a Vac Seal heat-sealing machine, hydroponic equipment, lamps, lights, fertiliser & other material. Total quantity of cannabis in the storage unit was 3,209 grams. Distinction between principal & courier - whether sentence excessive. Appeal dismissed.
253	GEE, Stephen Robert - CCA, 26.5.2000 - 113 A Crim R 376 Spigelman CJ, Grove & Hidden JJ Citation: R v Gee [2000] NSWCCA 198 Conviction appeal. 5 x armed robbery. Appellant was acquitted by direction of 3rd count after Crown prosecutor conceded there was insufficient evidence on that count. Robberies committed on one occasion against a bank & on all other occasions against building societies, all occurring between June & August 1997. On each occasion appellant acted alone. The only issue at trial was whether the appellant was that man. Co-incidence evidence - adequacy of directions to jury - recognition evidence - admissibility of out of court recognition from photographs - Crown witnesses’ evidence unfavourable. Appeal dismissed.
254	FOWLER, Warwick - CCA, 23.5.2000 Wood CJ at CL, Hulme & Barr JJ Citation: R v Fowler [2000] NSWCCA 142 Conviction appeal. Murder. The deceased was shot & killed by 3 bullets. He was the appellant’s brother-in-law. Rejection of defence evidence - directions to jury - error in directing witness - error in directing on lies - sufficiency of directions on motive - whether McKinney direction or warning required - providing the jury with transcript of trial - sufficiency of directions concerning lies - leave to cross examine witnesses under s.38 Evidence Act - use of term “dock statement” - whether Weissensteiner direction appropriate. Appeal allowed: new trial ordered.
255	NANAI, Satuala - CCA, 23.5.2000 Grove, Greg James & Bell JJ Citation: R v Nanai [2000] NSWCCA 204 s.5F appeal. Application made to trial judge that appellant’s employment was in danger of being terminated as a result of the necessity that he interrupt it for the purpose of attending his trial. Application for bail during course of hearing or, alternatively, application to dispense with bail - inability to excuse. Appeal incompetent: dismissed.
256	HOUVARDAS, Michael - CCA, 18.5.2000 Mason P, Heydon JA, Smart AJ Citation: R v Houvardas [2000] NSWCCA 203 Sentence appeal. 4 x knowingly concerned in principal offences committed by his wife (1 x false pretences; 3 x imposition). MT 9m, AT 9m. Applicant prepared false tax return for his wife for 1992 tax year & enclosed photocopy of a group certificate, signed by him, stating his wife had earned $104,000 in the tax year & that tax instalments of $38,650 had been deducted. The ATO issued a refund cheque in the amount of $38,650, which was banked by the wife. The money was used in their business. In fact, the wife had not been paid any salary in that tax year & no tax instalments had been deducted. Group certificates signed by the applicant were enclosed in tax returns for years 1990, 1991 & 1993. They falsely recorded tax instalment deductions from the supposed salary paid to his wife. Neither the salary payments nor the tax deductions had taken place. No refunds were paid in respect of these returns. Parity. Appeal dismissed.
257	JCW - CCA, 6.5.2000 - 112 A Crim R 466 Spigelman CJ, Ireland & Simpson JJ Citation: R v JCW [2000] NSWCCA 209 Sentence appeal. Counts 1 & 2: carnal knowledge of girl under 10 (6) - s.67 Crimes Act; Counts 3 & 4: carnal knowledge of girl under 16 (13/14 & 14/15) - s.71. At time of sentencing, counts 1 & 2 carried a maximum of life imprisonment & counts 3 & 4 carried a maximum of 10 years’ imprisonment. Count 1: MT 10y, AT 2y; Counts 2, 3 & 4: concurrent FT 4y. At time of offences in counts 3 & 4, s.78 prohibited prosecution after expiration of 12 months, if victim aged between 14 & 16. Applicant pleaded guilty to all counts. Basis upon which sentences were imposed was that the charges were representative of a number of similar incidents which occurred over a period of time. Applicant admitted as much. However, charges for counts 3 & 4 based upon incorrect legislation & applicant’s conviction for those charges could not be sustained. CCA had to decide what was an appropriate sentence in relation to counts 1 & 2. Offences barred from prosecution by statute - sentencing on basis that pleas of guilty representative of other similar acts of sexual misconduct - weight given to guilty plea - weight given to fact that applicant himself sexually abused as a child. Appeal allowed, applicant resentenced: count 1 - 10y with NPP of 8y; count 2 - concurrent 4y FT.
258	MOFFATT, Anthony - CCA, 23.5.2000 - 112 A Crim R 201 Wood CJ at CL, Foster AJA, Adams J Citation: R v Moffatt [2000] NSWCCA 174 Conviction. Murder. MT 6y, AT 5y. Trial by judge alone. Appellant had been drinking excessively & argued with the victim. During the argument, he struck the victim with a hammer & then strangled him. The victim was in poor health due to advanced cardiac disease & alcoholism. Role of CCA - causation - whether death of deceased caused by act of appellant - where more than one possible cause of death - where constitutional defect - admissibility of admissions - confabulation - reliability of admissions. Appeal dismissed.
259	ISMAIL, Khodr - CCA, 8.6.2000 Giles JA, Grove & Greg James JJ Citation: R v Ismail [2000] NSWCCA 217 Conviction and sentence appeal. Malicious wounding with intent to do GBH. Indictment included 2 counts pleaded in the alternative to that upon which appellant was convicted. As the jury found a verdict of guilty upon the principal count, verdicts were not taken on these alternatives which charged, in the 2nd count, use offensive weapon with intent to hinder member of the police force from investigating an act, and the 3rd count, malicious wounding. All counts related to the same incident & were directed against the same victim. The charges related to a deliberate wounding of a female police officer by running her down with a motor vehicle. Express pleading of alternative of malicious wounding - sufficiency of charge to jury - comment by judge concerning issue actually being contested. Conviction appeal dismissed. Leave to appeal against sentence refused.
260	PEARSON, William Edward - CCA, 13.6.2000 - 114 A Crim R 80 Dunford J, Foster AJA, Smart AJ Citation: R v Pearson [2000] NSWCCA 149 Conviction appeal. Dishonestly destroy property with a view to making a gain. Appellant was the owner of a smash repair business & the prosecution case alleged that he deliberately started a fire in the premises. There was no dispute that the fire commenced before 7.30 pm & that the appellant had left the premises shortly before the fire was noticed. He was the last to leave the premises. The Crown relied upon expert evidence pointing to the fire having been deliberately lit. Business in financial difficulties at the time - appellant in dispute with landlord. Possibility of spontaneous combustion or electrical malfunction - failure to give directions to jury - failure to discharge jury - inadvertent contact of solicitor with 2 members of the jury - failure to disclose contents of an MFI. Appeal allowed: new trial ordered.
261	RAMOS, Alan De Silva - CCA, 26.5.2000 - 112 A Crim R 339 Grove & James JJ Citation: R v Ramos [2000] NSWCCA 189 Crown appeal. 4 x supply prohibited drug (methylamphetamine, ecstasy). MT 6m, AT 18m. Respondent supplied methylamphetamine on 4 separate occasions in 1 month to an undercover police officer, selling 4.9 grams for $250 on the 1st occasion & 27.4 grams for $800 on another occasion. Respondent indicated to undercover officer that he could also supply ecstasy tablets. On the final occasion, the undercover officer purchased 100 ecstasy tablets & 4 ozs methylamphetamine & 100 tablets (26.6 grams) containing traces of methylamphetamine & caffeine. Aged 19 at offences - early guilty plea - subject to bond & CSO at time of sentence - arrogant attitude to the law - employed as a capable & energetic apprentice mechanic - supportive family - priors - not previously imprisoned. Objective gravity - general deterrence. Appeal dismissed.
262	R - CCA, 31.5.2000 Sully & Adams JJ Citation: Citation: R v R [2000] NSWCCA 212 revised - 20/07/2000 Sentence appeal. Aggravated armed robbery; discharge firearm in manner likely to endanger life. Aggregate MT 4y, AT 2y. Applicant, wearing a balaclava & armed with a loaded .44 calibre magnum revolver, entered a nursery shop & demanded money from a 57 year old woman. She turned to run, he grabbed hold of her & threw her to the ground, struck her on top of the head with the revolver butt causing a fracture to her skull, took money from the till, searched for more money, then ran from the store whilst removing his balaclava. A passing motorist saw him & pursued him into the grounds of a nearby school. He approached the applicant, who fired one round from his revolver towards the feet of the man causing a ricochet which struck him on the ankle. Applicant demanded the man’s car keys but was refused. He started walking towards the car, then fired a further round at the man but missed. The man rushed the applicant & struggled with him & a further round was fired whilst he attempted to disarm the applicant. During the struggle the applicant kicked him in the head. Two men nearby intervened & a further struggle ensued, during which one of those men was kicked in the head. Police arrived shortly thereafter. Guilty plea - aged 35. Whether sentence manifestly excessive. Appeal dismissed.
263	WILLIAMS, Stephen Michael - CCA, 14.4.2000 Priestley JA, Foster AJA, Smart AJ Citation: R v Williams [2000] NSWCCA 136 Sentence appeal. Manslaughter. MT 6y, AT 2y. Applicant lived with his mother, a woman in her early 70s. She was frail & suffered from ill health, spending a great deal of time in bed. After consuming a large quantity of alcohol, the applicant struck his mother a number of times about the head & face, causing significant bruising & a subdural haematoma which resulted in her death. Aged 39 at time of offence - solitary & unhappy life - drinking problem - father had history of drinking, was violent towards mother - no significant remorse or contrition - prior offence of assault - not previously imprisoned. Appeal against declining to find special circumstances - whether sentence manifestly excessive. Appeal dismissed.
264	CHUNG, Wai Fung - CCA, 20.4.2000 Priestley JA, Sperling J, Foster AJA Citation: R v Chung [2000] NSWCCA 153 Sentence appeal. Knowingly concerned in importation of commercial quantity heroin. 14y with NPP of 9y. Australian Federal Police intercepted 2 express post packages which arrived on a flight from Thailand & found 4.775 grams of pure heroin concealed within 23 stereo speakers. They removed the bulk of the heroin & substituted another substance then delivered the packages to the address indicated & 2 co-offenders took possession of the packages. The co-offenders took the packages to the address of another co-offender & then departed. The applicant arrived shortly thereafter. A listening device had been planted in the package & it recorded the applicant opening the packages, discussing their contents & indicating that he was superior in the chain of command to the other man. Aged 41 - suffered from rheumatic valvular disease - clearly the person in control - priors not known. Appeal dismissed.
265	ALI, Yeakub - CCA, 17.5.2000 Priestley JA, Foster AJA, Sperling J Citation: R v Ali [2000] NSWCCA 177 Conviction appeal. 1 x act of indecency towards person under 16; 1 x indecent assault; 3 x sexual intercourse without consent. Complainant was the daughter of the appellant’s de facto wife. Offences alleged to have occurred during period December 1991 to March 1994. Complainant 11 at commencement of that period & 13 at the end of it. She was 18 at the time of trial. The offences involved appellant masturbating himself in the complainant’s presence; touching her breast on the outside of her nightie; penile-vaginal intercourse on 3 separate occasions. Use of evidence as to credit as evidence of fact - point not taken below - no miscarriage of justice - evidence to re-establish credit - rational answer to attack on credibility. Prior inconsistent statement - complaint evidence. Appeal dismissed.
266	LAWSON, Leslie Harold - CCA, 14.6.2000 Stein JA, Dunford & Sperling JJ Citation: R v Lawson [2000] NSWCCA 214 Conviction appeal. Sexual intercourse with child under 10. The complainant was 8 years of age & living with her mother at the time of the offence. Her natural father was not living with them, although she saw him from time to time. The appellant, a friend of the complainant’s mother, stayed with them temporarily. There was no suggestion of an intimate relationship between the complainant’s mother & the appellant. The mother was admitted to hospital & the complainant stayed overnight with a friend of the family before going on to stay at an institution for a time. The appellant took the complainant to her home to collect clothing & it was alleged that the offence was committed there on that occasion. The appellant was aged 40 at the time. Complaint evidence - sexual assault history taken by doctor - evidence as to truth of history - discussion of R v Welsh - restriction of cross-examination under s.409B(3)(c) Crimes Act - incompetence of counsel - whether miscarriage of justice. Appeal dismissed.
267	AHMED, Sam - CCA, 15.5.2000 Spigelman CJ, Heydon JA, James J Citation: R v Ahmed [2000] NSWCCA 199 Conviction appeal. Armed robbery. MT 3y, AT 3y. Appellant approached the driver of a van that had been loaded with cigarettes. He sprayed the driver in the face, blinding him in the right eye & partially blinding him in the left eye. He demanded the keys from the driver & raised his arm as if to spray the driver’s face again. The driver began to run away & the appellant chased him, then the driver threw the keys down & the offender picked them up, got into the van & drove away. Another vehicle followed the van. In dispute at trial was whether the Crown could establish that it was the appellant who had committed the armed robbery. The victim of the armed robbery was unable to identify the appellant as being the robber & hence the Crown case was a circumstantial one. Whether Crown failed to prove case against appellant - error in not dismissing jury when one of its members was absent due to long adjournment of trial because of judge’s illness - error in summing up. Appeal dismissed.
268	RELIC, Luba v DPP - NSW Court of Appeal, 26.4.2000 Beazley JA, Stein JA, Heydon JA Citation: Relic v DPP & Anor [2000] NSWCA 84 Convicted & fined for contravening restriction in AVO. Unsuccessful appeal to the DC. Summons seeking order that orders made in DC be quashed. Whether error of law on the face of the record - whether jurisdictional error - whether judge should have warned more onerous sentence was contemplated. Although a judge has power under Justices Act 1902 s.125 to increase a sentence imposed by a magistrate, the judge is obliged to give the complainant a warning of the sentence contemplated & the opportunity to seek leave to withdraw the appeal. Conviction confirmed, order that sentence be quashed & proceedings be remitted to DC to resentence.
269	BARBARO, Pasquale - CCA, 26.5.2000 - 112 A Crim R 551 ROVERE, Carmelo Spigelman CJ, Wood CJ at CL, Grove J Citation: R v Barbaro & Rovere [2000] NSWCCA 192 Conviction appeal. Barbaro: knowingly take part in cultivation of large commercial quantity cannabis plants - MT 3½y, AT 14m. Rovere: conspire to cultivate large commercial quantity cannabis plants - MT 5m 25d, AT 2y. Cannabis was grown, concealed within a large crop of corn. The cannabis crop consisted of about 20,000 plants. Witness evidence - identification - cross-examination by Crown of its own witness - refusal of separate trials - refusal of stay of proceedings - evidence of observer - hearsay - quality of identifying or similarity testimony - photographic selection for identifying purposes - fairness of selection - discretion to order new trial - verdict unreasonable. Appeals allowed: Barbaro - new trial ordered. Rovere - judgment of acquittal entered.
270	WATTS, Michael Arthur - CCA, 14.4.2000 Dowd & Hulme JJ Citation: R v Watts [2000] NSWCCA 167 Sentence appeal. Possess offensive weapon with intent to commit indictable offence; use offensive implement with intent to commit indictable offence. Aggregate MT 6y, AT 2y Applicant approached a family at a small fire at a campsite & asked a woman if he could join them at the fire. She refused & he asserted his right to sit near the fire & was asked to leave by the woman’s husband. The applicant refused & got into a fight with 2 men, hitting one of them before he left. He returned with a rifle & pointed it at the head & then the genitals of one man, asking him how he would like it if he blew these parts of his anatomy off. He was then disarmed by other members of the family. After repeatedly demanding the return of his gun, he drove through the campsite a number of times in a dangerous manner aiming his vehicle at two members of the group near the camp. Aged 43 - serious alcohol problem - multiple priors - previously imprisoned. Totality - whether sentence excessive. Appeal allowed: resentenced to aggregate MT 4y, AT 2y.
271	BEATTIE, John Patrick - CCA, 15.5.2000 Spigelman CJ, Heydon JA, James J Citation: R v Beattie [2000] NSWCCA 201 Application for extension of time in which to appeal against conviction and sentence. 1 x BE&S. MT 1y, AT 2y. Victim & his family returned home from a holiday & victim noticed signs of a forced entry through a window at the rear of the house. A number of items of property were missing. A police fingerprint expert succeeded in developing fingerprints on 2 pieces of glass from the window. Another police fingerprint expert compared photographs of the fingerprints with fingerprints taken from the applicant & found that they matched. This fingerprint evidence was the basis of the prosecution case against the applicant. At a sentence indication hearing, applicant accepted indication. He was later indicted & pleaded guilty. Three further offences were taken into account & he was convicted & sentenced in February 1994. On appeal, applicant claimed he did not intend pleading guilty & only did so as a result of pressure from his solicitor. Application for extension of time refused.
272	SCOTT, John Herbert - CCA, 23.5.2000 - 112 A Crim R 543 Wood CJ at CL, Hulme & Greg James JJ Citation: R v Scott [2000] NSWCCA 187 Conviction appeal. Supply commercial quantity prohibited drug (heroin). Appellant had also been charged with supplying a large commercial quantity of that drug but the jury had returned a verdict of not guilty to that charge. Sentencing judge defined the offence charged as potentially including the receiving of the heroin for supply, the possession of the heroin for supply & the sale or distribution of the heroin. The quantities of heroin allegedly resulted from the accumulation of various smaller quantities acquired by the appellant & a co-offender, processed by them & distributed in numerous transactions. Asserted failure by accused to call witnesses - directions to jury - application of Jones v Dunkel principle to case of accused occasioning miscarriage. Appeal allowed: new trial ordered.
273	SMITH, Arthur Stanley - CCA, 14.6.2000 Stein JA, Dunford & Sperling JJ Citation: R v Smith [2000] NSWCCA 202 Conviction and sentence appeal. Murder. Deceased was found buried in the sand at Foreshore Beach, Botany. Approx 6 months before the body was discovered, the appellant told a prison informer that he had killed the deceased. The confession was recorded by a lawful listening device. The Crown alleged that on the night of the deceased’s disappearance, he was shot dead by the appellant on the beach at Botany. He then directed an associate who was with him at the time to bury the body. The associate later gave evidence at the appellant’s trial. Failure to give Jones v Dunkel direction - inconsistent evidence - alternative scenario put to jury - directions - motive to lie - failure to exclude evidence of taped conversations - agent of the State - failure to discharge of the jury - error in finding murder fell into worst category - unreasonable conviction - whether sentence manifestly excessive. Appeal dismissed.
274	HJS - CCA, 9.6.2000 Spigelman CJ, Ireland & Simpson JJ Citation: R v HJS [2000] NSWCCA 205 Conviction appeal. 10 x sexual assault upon person under 16 years. All offences were committed against appellant’s own 4 daughters, 5 counts being with female under the age of 16, and 5 counts with female under 10 with an incident occurring when one of the daughters was about 6, another daughter said she was about 4 or 5 when she was first abused by her father. The mother claimed she was unaware of the sexual abuses until she was told when the daughters were grown up & had left home. No error on the part of the trial judge in refusing application for separate trials - erroneous introduction of name of unrelated complainant, an irregularity without miscarriage of justice - whether Crown entitled to lead evidence in reply - duty of judge to give directions on consumption of alcohol, regardless of the views of counsel - complaint evidence wrongly admitted under s.66 Evidence Act 1995 & which may not have been admitted under s.108(3) - nevertheless no miscarriage of justice Appeal dismissed.
275	PRFN - CCA, 21.6.2000 Giles JA, Grove J, Greg James J Citation: R v PRFN [2000] NSWCCA 230 Conviction and sentence appeal. Manslaughter. MT 3y, AT 3y. Issues of provocation & diminished responsibility were left to the jury, but the trial judge rules that the issue of self-defence should not be left to the jury. Appellant was aged 14 when he was raped by the deceased & this had a profound psychological effect on the appellant. He believed that there would be a further sexual assault & was also fearful of the safety of his baby nephew. The killing of the deceased was carefully implemented. Role of immediacy of threat to appellant - no realistic hypothesis that appellant could have believed on reasonable grounds that killing necessary in self-defence. Appeal in relation to conviction on sole ground that issue of self-defence should have been left to the jury. Whether provocation established by law - motivation - revenge - rehabilitation - whether sentence manifestly excessive. Appeal dismissed.
276	TANG, Joshua Li Chao - CCA, 13.6.2000 - 113 A Crim R 393 Grove, Ireland & Adams JJ Citation: R v Tang [2000] NSWCCA 219 Conviction appeal. Supply large commercial quantity prohibited drug (heroin). MT 5y 3m, AT 1y 9m. Police conducted a search of premises at which appellant was staying, finding packages of heroin secreted in the wardrobe & under the bed cover. Appellant denied any knowledge of the heroin. Possession of heroin found in premises - whether premises jointly occupied - whether appellant had possession - effect of failure to mention other occupant on arrest - appellant alleged he did mention, denied by police - whether jury can take omission into account - Petty & Maiden (1991) 173 CLR 95 distinguished. Appeal dismissed.
277	DOBACZEWSKI, Janusz - NSW SC, Barr J, 20.4.2000 Citation: R v Dobaczewski [2000] NSWSC 344 Remarks on Sentence: AOABH. Originally charged with manslaughter & AOABH, however, the accused pleaded guilty to AOABH which the Crown accepted in full discharge of the indictment. Accused became involved in a fight with the victim at a birthday party, both were affected by alcohol. The victim died in hospital over 2 months later. The accused was also injured in the fight. Long addiction to alcohol. 5y GBB.
278	LEMON, Christopher Michael - CCA, 19.6.2000 Grove & Newman JJ Citation: R v Lemon [2000] NSWCCA 232 Sentence appeal. 15 offences, including BE&S; receiving; dispose of stolen goods; steal from a dwelling; + 9 offences taken into account. MT 4½y, AT 2½y. Special circumstances were found by the sentencing judge because of the appellant’s age, having been born in 1977. No details provided about offences, other than that they were persistent & continuing offences of dishonesty. Fresh evidence of effects of syndrome reducing ability to resist impulse - syndrome of long standing and recognised in childhood - long record of offending - no assessment different from first instance imposition. Appeal dismissed.
279	GLASBY, Gary Zane - CCA, 22.6.2000 - 115 A Crim R 465 Stein JA, Hulme & Greg James JJ Citation: R v Glasby [2000] NSWCCA 83 Conviction and sentence appeal. Murder. Life imprisonment. Crown case that appellant committed the murder at instigation of deceased’s wife in consideration for the payment of a large sum of money & that both appellant & his wife had been involved in the murder, the appellant as principal in the 1st degree, having actually done the killing; & his wife as a principal in the 2nd degree, having been present at the time & place of the killing. Appellant’s wife was arrested for the murder on the same day as the appellant & she gave sworn evidence at her own sentencing & was called by the Crown in the appellant’s trial. Grounds of appeal relate to circumstances in which the wife came to give evidence generally & particularly her evidence of what the appellant had said to her & the admissibility of particular matters the appellant told her. Compellability of spouse - statutory interpretation - common law presumptions - s.18 Evidence Act 1995 - s.407 Crimes Act 1900 - whether jury misdirected - representations of what accused told witness not evidence of truth of those representations - Lee v The Queen (1998) 195 CLR 594 - s.6 Criminal Appeal Act 1912 - whether accused denied fair chance of acquittal - ‘accepting’ the accused’s evidence - failure to discharge jury - maximum sentence - worst category - parity. Appeal dismissed.
280	PUCKERIDGE, Roy Robert - CCA, 5.6.2000 Heydon JA, James & Bell JJ Citation: R v Puckeridge [2000] NSWCCA 193 Conviction and sentence appeal. Murder. MT 15y, AT 5y. Appellant first appealed against conviction in 1998, the CCA allowed the appeal & the conviction was quashed. The High Court granted the Crown special leave to appeal from that decision, the Crown appeal was allowed & the matter remitted to the CCA. Appellant lived in the same block of flats as the victim. Victim’s body was discovered buried in a shallow grave in a garden near the unit occupied by the appellant. Appellant made admissions to fellow inmates that he had entered the victim’s unit through a window. When she woke up, he assaulted her, dragged her from her bed, bashed her head against a wall a number of times until her head bled & then he strangled her. Whether error in directions - upon cause of death - failing to adequately direct - onus & standard of proof. Appeal dismissed.
281	WATT, Raymond Gordon - CCA, 22.3.2000 Grove, Hidden & Greg James JJ Citation: R v Watt [2000] NSWCCA 37 Conviction and sentence appeal. Knowingly take part in supply of commercial quantity methylamphetamine (total weight approx 400 grams). MT 2½y, AT 1½y. On 4 occasions a man, who was acting on behalf of the appellant, supplied amphetamine to an undercover police officer. The applicant provided the drug & received the proceeds of the sale. In conversation, the man supplying the amphetamine mentioned the applicant to the undercover officer. Whether error in admitting conversation evidence - identification evidence - possession - whether verdict unreasonable. Appeal dismissed.
282	SUA, Jack - CCA, 23.2.2000 Hidden J, Carruthers AJ. Citation: R v Sua [2000] NSWCCA 94 Sentence appeal. Armed robbery. MT 3y, AT 2½y. Applicant entered a private hotel where he forced his way into manager’s private premises, threatened the manager with a pistol & demanded money. He tied the manager to the bed in the room & took approx $140 in cash. He held the pistol against the manager’s head & threatened to blow his head off if he didn’t tell him where the money was. The manager told him that the money was not in the room. The appellant ransacked the room then left. Samoan - left parents when he was 10 to come to Australia with uncle & aunt - uncle subjected him to abusive behaviour - left home & lived on streets & was then fostered out to a woman who had one son. A violent home invasion occurred at the foster home & his foster mother’s natural son received severe injuries, which had an enormous effect upon appellant. Aged 16 at time of offence & subject to probation at the time - priors - not previously imprisoned - whether sentence excessive - R v Henry (1999) 46 NSWLR 346 distinguished. Appeal allowed: resentenced to MT 2½y, AT 2½y.
283	HONG, Lu - CCA, 20.4.2000 LAM, Vi LAM, Vi Priestley JA, Foster AJA, Sperling J Citation: R v Hong & Ors [2000] NSWCCA 213 Crown appeal; and appeal against sentence by Lam. A third man, who had appealed against sentence, abandoned that application. Conspire to supply large commercial quantity heroin; possess commercial quantity heroin; import commercial quantity heroin; money laundering. Lam: MT 13½y, AT 4½y. Hong: MT 13½y, AT 4½y. This was a major commercial enterprise. At Lam’s home, police found 5.88 kgs heroin, $700,000, jewellery to the value of approx $2,500 & other valuable items. A locked room was found to be fully adapted for the reception & processing of heroin for sale. Documentation found supporting money laundering charge. At Hong’s house, police found a number of packages of heroin weighing 11.2 kgs with a total pure weight of nearly 8 kgs, a number of sauna bath units which had been built so that they had the capacity to contain concealed heroin (one of which did in fact contain heroin), $23,000 in cash & documents supporting money laundering charge. He made a number of admissions in relation to his involvement with the operation. Seriousness of offence - weight - whether manifestly inadequate. Parity. Appeals dismissed.
284	FISHER, Steven Andrew - CCA, 31.5.2000 Sully & Adams J Citation: R v Fisher [2000] NSWCCA 218 Sentence appeal. Malicious wounding; use offensive weapon with intent to prevent lawful apprehension & the lawful apprehension of another who was with him; B&E dwelling house; stealing; + Form 1 matter taken into account. Aggregate MT 4y, AT 16m. Applicant & female accomplice broke into a residence & removed property. After about 15 minutes they were disturbed by the occupant of the house & her son returning home. Applicant & female ran off, discarding some of the stolen articles as they went. Occupants pursued them. A neighbour chased as well & caught up with the female & asked her to surrender. Applicant shoulder-charged the neighbour then stabbed him with a stolen knife, the applicant was punched in the face & he then stabbed the neighbour a 2nd time. The fight continued & he stabbed the neighbour again, in the area of the spleen. This injury was serious & the neighbour underwent surgery & spent 10 days in hospital. Aged 28 - drug addiction since age 12 - offences committed whilst on parole - sexually abused at a young age - priors - previously imprisoned. Whether sentence excessive. Appeal dismissed.
285	BUCKSATH, Glenn Paul - CCA, 17.4.2000 - 114 A Crim R 1 Stein JA, Dunford & Simpson JJ Citation: R v Bucksath [2000] NSWCCA 135 s.5F appeal by DPP, challenging orders made staying proceedings on an indictment against the respondent. The stay was granted on the basis of an abuse of process by the Crown & was expressed to be conditional upon the payment by the Crown of the costs of the accused thrown away on an indemnity basis. Appeal allowed in part: order varied to provide that stay of proceedings on indictment be until certain costs be paid to respondent by Crown; such costs to be agreed, or failing agreement, to be in such amount as assessed by a judge of the DC.
286	KATOA, Sosefina - CCA, 2.6.2000 Sully & Adams JJ Citation: R v Katoa [2000] NSWCCA 223 Sentence appeal. Drive in manner dangerous. MT 8m, AT 10m, licence disqualified for 3y. Applicant drove 4-wheel drive MV west along a road & approached an intersection controlled by traffic lights, intending to make a right-hand turn. Victim riding motorcycle travelling east along same road. As applicant turned, the side of her vehicle collided with the front of the motorcycle, victim was thrown from his motorcycle & suffered injuries which were fatal. The traffic lights had a green round light & a green arrow, but only the green round light was showing at the time the applicant moved into her right-hand turn. Aged 37 - no alcohol or excess speed - more than momentary inattention - substantial & compelling subjective case - priors not known - previously imprisoned - family obligations. Bottom end of scale of culpability - appellant in an unusual situation justifying matter not being used as a precedent without caution. Applicant had already served 1 month of her sentence. Appeal allowed: length of sentence & disqualification of licence confirmed, however, remaining 7m of the MT to be served by way of PD.
287	CAMPBELL, Scott John - CCA, 3.5.2000 Dunford J, Foster AJA, Smart AJ Citation: R v Campbell [2000] NSWCCA 157 Crown appeal. Armed robbery with wounding. MT 4½y, AT 2y. At 12.30am, co-offender knocked on door of victim’s house & told him her car had broken down. She asked for some water. Victim gave her some & she went to the car & appeared to put it into the radiator. She got into the front passenger seat & the car drove away. At 1.15am, victim was watching TV, heard his dog barking, opened the front door & saw the co-offender who said her car had broken down again, she asked if she could use the phone. He gave her permission. As he turned back towards the front door, he saw respondent holding a sawn-off shotgun & pointing it at his head. Respondent ordered victim to lie face down on floor, sat on his back, placed barrel of gun to back of his head & demanded money. Victim said he had only $1. Respondent taped victim’s hands behind his back, taped his legs together & placed tape around his mouth. He told co-offender to steal the video recorder. Victim’s brother heard the voices & opened his bedroom door. Respondent pointed gun at the brother, told him to lie down or he would shoot him. The brother said he would go back into his room, which he did & closed the door. Respondent fired a shot at closed door, penetrating it & striking brother in upper chest & chin. Brother sustained 3 puncture wounds to right pectoral region & 1 to right side of chin, as well as some grazes. Long criminal history - prone to violence - drug use - previously imprisoned. Home invasion - Henry distinguished - worst category - double jeopardy - relevance of statistics. Appeal allowed: resentenced to MT 5½y, AT 2y.
288	ELEMES, David Paul - CCA, 2.6.2000 Sully & Adams JJ Citation: R v Elemes [2000] NSWCCA 235 Sentence appeal. 1 x BE&S. MT 2½y, AT 2½y. Offence involved a “ram raid” of a store, the applicant & 2 other accomplices each stealing a motorcycle. All 3 motorcycles were recovered, 2 of them in reasonable condition. Applicant appealed on grounds that sentencing judge acted upon wrong principle regarding absence of contrition; sentencing judge gave excessive weight to absence of contrition; sentence manifestly excessive. Appeal dismissed.
289	JS - CCA, 25.2.2000 Hidden J, Carruthers AJ Citation: R v JS [2000] NSWCCA 38 Sentence appeal. 2 x aggravated indecent assault; + a similar offence on a Form 1. MT 18m, AT 18m. Victim of offences was applicant’s 13 year old stepdaughter. The 2 offences in the indictment occurred on the same day. On each occasion applicant & victim engaged in “a friendly wrestle”, when applicant seized victim’s breasts & touched her vaginal area on the outside of her clothing. The Form 1 matter occurred the following month when the applicant approached the victim & placed his hand on her bare breast beneath her dressing gown. All three incidents isolated. No evidence they were part of a wider pattern of abuse. 2 days after the Form 1 offence, applicant was served with an interim AVO & he left the home. Now aged 53 - no criminal record - creditable background - excellent worker - good husband & father - well-behaved whilst in prison - undertaken educational activities in prison. Whether sentence manifestly excessive. Appeal allowed; resentenced to MT 12m, AT 12m.
290	SWEETMAN, Donald Conrad - CCA, 31.5.2000 Sully & Adams JJ Citation: R v Sweetman [2000] NSWCCA 228 Sentence appeal. Robbery. MT 12m, AT 18m. Applicant entered a 711 store & his actions whilst there were recorded by a video camera. Statements were obtained from the owner/manger of the store & from the cashier. The applicant came into the store, ran behind the counter towards the register, which was open at the time, pushed the cashier out of the way & took money out of the register. All the time he had his right hand beneath his shirt, giving the impression that he was holding a weapon. Sentencing judge accepted the incident was “probably a spur of the moment situation" & that applicant was affected by alcohol at the time Guilty plea - remorse - undertaking alcohol counselling. Application that sentencing judge fell into error by reason of his perception the only thing that could justify a non-custodial sentence was a finding of “exceptional circumstances” - whether sentence excessive. Appeal dismissed.
291	ROBINSON, Jason Heath - CCA, 21.6.2000 Priestley JA, Foster AJA, Smart AJ Citation: R v Robinson [2000] NSWCCA 182 Crown appeal. BE&S; escape lawful custody; + Form 1 matter (assault). Aggregate MT 9m, AT 9m. Respondent smashed a panel of the front door of a house & removed goods in excess of $20,000 whilst his girlfriend kept watch. Respondent placed the goods in his car. The female occupant of the house returned unexpectedly while the respondent was making trips from the house to the car & caught the respondent’s girlfriend by the wrists. The girlfriend called for assistance & the respondent threatened the female occupant with a hammer, repeatedly threatening to kill her. Respondent & his girlfriend made their escape in the car, along with the stolen goods. Aged 24 - early guilty plea - heroin habit - remorse - offence committed to get money for heroin - multiple priors - previously imprisoned. Whether sentence manifestly inadequate. Appeal allowed: resentenced to 2y with NPP of 18m.
292	LAWSON, Brett Alan - CCA, 14.6.2000 Giles JA, Dunford & Greg James JJ Citation: R v Lawson [2000] NSWCCA 221 Crown appeal. Larceny as a servant. 450h CSO. Respondent, employed in a butcher shop, obtained the combination for a safe from 2 employees in another store which was operated by the same employer. He took $24,000 from the safe & divided it with the other 2 employees, retaining $12,000 for himself & giving each of the other two $6,000. The other 2 employees confessed their part in the offence. Aged 31 - leader in offence - sense of grievance against employer - remorse - contrition - early guilty plea - supporting wife & child - walks to place of employment as cannot afford fare - degree of planning of offence - priors for assault - not previously imprisoned - restitution - unique circumstances. Whether sentence manifestly inadequate. Appeal dismissed.
293	STEER, Brian James - CCA, 19.6.2000 Grove & Newman JJ Citation: R v Steer [2000] NSWCCA 233 Sentence appeal. 3 x armed robbery. Aggregate MT 4y 9m, AT 2y. No facts of offence provided. Aged 29 - guilty plea - on GBB at time of first offence - offences provoked by greed - priors - not previously imprisoned. Appeal dismissed.
294	TORO-MARTINEZ, Alejandro Arturo - CCA, 7.6.2000 - 114 A Crim R 533 Spigelman CJ, Newman & Adams JJ Citation: R v Toro-Martinez [2000] NSWCCA 216 Conviction appeal; and Crown appeal against inadequacy of sentence. Knowingly concerned in the importation of a trafficable quantity of cocaine (guilty plea). 3½y with NPP of 2y. 23 envelopes, despatched in Colombia & Chile & addressed to 5 addresses in Australia, were intercepted by the NCA following information from a police informer. Each envelope contained documents & a number of coloured plastic folders. There were 58 folders in all, weighing 9.539 kgs, within which was impregnated 3.574 kgs pure cocaine. The mode of impregnation required a chemical process to extract the cocaine. Appellant’s involvement in the enterprise limited to 3 particular days in which a trafficable quantity of 655.2 grams was involved. This was the quantity in the controlled delivery which the authorities permitted to occur. Conviction appeal: Appellant low in hierarchy - conviction appeal after guilty plea in extreme circumstances - typographical error in date on certificate granted under s.15M Crimes Act - whether authorities involved in the case played any material role in the conduct of the appellant - admission of evidence. Conviction appeal dismissed. Crown appeal: Notwithstanding appellant’s low level of involvement in the importation, sentence was manifestly inadequate & out of line with pattern of sentencing for this offence: R v Wong (1999) 108 A Crim R 531 referred to. Crown appeal allowed: resentenced to 6y with NPP of 3y.
295	HOLLIER, Rodney David - CCA, 15.6.2000 Spigelman CJ, Newman & Greg James JJ Citation: R v Hollier [2000] NSWCCA 225 Conviction appeal. 1 x malicious wounding. The Crown case was that the appellant & his co-accused went to the victim’s home to discuss money owed by the victim to the appellant. A verbal altercation occurred between appellant & victim. Appellant moved away from or behind the co-accused & the co-accused produced a shortened firearm & shot the victim in the upper right thigh. Appellant then left the scene. Appellant convicted of accessory to malicious wounding by shooting, acquitted of complicity in possession of firearm. Asserted miscarriage from failure to discharge jury - inconsistent verdicts - acquittal of complicity in possession of firearm practically inconsistent with guilt as accessory to malicious wounding by shooting - principles applicable to ordering new trial discussed. Appeal allowed: new trial ordered.
296	GLEN, David Jack - NSW SC, Wood CJ at CL, 1.10.99 Citation: R v Glen [1999] NSWSC 1018 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder. Has now served 14 years of the life sentence imposed. Applicant was 19 at the time of the killing. He sexually assaulted & murdered his young cousin aged 10. Wood CJ at CL described it as a ‘hideous killing’, a ‘sustained, deliberate and sadistic violation of an innocent young girl for which no rational explanation exists’. Total lack of contrition; callous attitude towards victim’s parents; lack of insight into & acceptance of his wrongdoing. Refusal to discuss his sexual attitudes & state of mind when carrying out the sexual violation of the victim with psychologists & psychiatrists. At this point in time, Wood CJ at CL of the view that the applicant a grave danger to the community, particularly young children. Application dismissed.
297	COVILL, Kevin John - CCA, 21.6.2000 - 114 A Crim R 111 Giles JA, Grove & Greg James JJ Citation: R v Covill [2000] NSWCCA 231 Conviction and sentence appeal. Trial 1: wound with intent to do bodily harm - MT 9y, AT 4y. Trial 2: wound with intent to do bodily harm - FT 6y; possess shortened firearm - FT 6y; armed robbery - FT 4y; all sentences concurrent with that imposed in Trial 1. 1. Appellant & a woman were in a McDonald’s restaurant when the victim approached the woman & an argument ensued. When the woman told the appellant about the argument, he went over to the victim & stabbed him. 2. Appellant went to victim’s residence & pointed a shotgun at him & told the victim that he had to sort things out with the appellant’s girlfriend. He forced the victim to go to meet with the girlfriend. When the victim arrived, the appellant’s girlfriend attempted to attack him. Both slipped & as the victim was regaining his balance, the appellant stabbed him. Aged 21 - multiple priors - previously imprisoned. Trial 1: Failure to discharge jury - appellant’s election not to give evidence - error in directions - verdict unreasonable. Conviction appeal allowed: new trial ordered. Trial 2: Error in directions as to unreliability of witnesses - failure to direct on availability of self-defence - miscarriage of justice due to cross examination of appellant as to motive for Crown witness to lie - verdict unreasonable. Conviction appeal dismissed. Sentence appeal upheld, remitted to DC for resentencing.
298	BRUCE, Malcolm Harry - CCA, 25.2.2000 Hidden J, Carruthers AJ Citation: R v Bruce [2000] NSWCCA 39 Sentence appeal. Supply commercial quantity methadone; supply commercial quantity cocaine; supply commercial quantity ecstasy. MT 3y 9m, AT 1y 3m. Associate of Leslie Kalache. No further facts. Aged 59 - early guilty plea - stopped drug abuse - substantial progress towards rehabilitation - good prospects of rehabilitation - multiple priors - not previously imprisoned. Special circumstances. Appeal dismissed.
299	MARSHALL, Robert John - CCA, 15.5.2000 - 113 A Crim R 190 Spigelman CJ, Heydon JA, James J Citation: R v Marshall [2000] NSWCCA 210 Conviction appeal. Armed robbery (with a knife). The victim, the proprietor of a liquor shop, was robbed of about $1,400 in cash. The appellant was arrested on a separate offence. The victim identified the appellant whilst the appellant was in custody. The appellant was handcuffed at the time of identification. Whether evidence of identification admissible - identification highly prejudicial - identification evidence of limited probative value. Appeal allowed: verdict of acquittal entered.

300	BOSTON, Anthony Craig - CCA, 19.5.2000 Heydon JA, James & Bell JJ Citation: R v Boson [2000] NSWCCA 227 Conviction and sentence appeal. Possess unlicensed firearm; fail to take precautions to ensure safekeeping of firearm; possess ammunition without licence - fail to pay for meal or accommodation. Aggregate FT 9m. No facts provided. Aged 29 - priors - previously imprisoned. Sentencing judge had no jurisdiction to record convictions in respect of summary offences. No examination undertaken as to whether summary offences were related offences within the meaning of Part 10 Criminal Procedure Act 1986. Appeal allowed: convictions and sentences quashed.
301	COLIN, Eric Giles - CCA, 9.6.2000 Spigelman CJ, Newman & Adams JJ Citation: R v Colin [2000] NSWCCA 236 Crown appeal. Supply cocaine 2y GBB + a fine of $4,000. Respondent was arrested during a police operation which was targeting the person for whom he worked. Respondent, through no fault of his own, was not dealt with in the DC for some 5 years. He co-operated with police from the time of his arrest & pleaded guilty at the earliest opportunity. In continuous employment - since arrest had stopped using cocaine - in a stable relationship - had changed his circle of friends. Low level offender - effect of delay. Whether sentence manifestly inadequate. Appeal allowed: resentenced to 12m PD.
302	LANGBEIN, Michael Wayne - CCA, 29.5.2000 Sully & Adams JJ Citation: R v Langbein [2000] NSWCCA 237 Sentence appeal. Agree to supply of methylamphetamine - MT 3y, AT 2y; supply methylamphetamine (13.8 grams) - MT 2y, AT 1y. Appellant & his son met with undercover police operative & another person at a hotel. After some conversation the appellant supplied the operative with 13.8 grams methylamphetamine. Arrangements were made for the future supply of a pound of amphetamine for $12,000 which was to occur the following week. When police attended to purchase the drugs, the appellant did not appear. In a later telephone conversation, appellant arranged for the purchaser (undercover operative) to go to his house for the drugs. The police went to the appellant’s premises & arrested him. No drugs were found on the premises. Aged 53 - guilty plea - entered transactions for financial gain - accepted full responsibility for the offences - claimed to have been influenced to enter them by an acquaintance who owed him money. Entrapment - failure by sentencing judge to refer to submission by appellant that he did not have any real intention of supplying the pound of amphetamine - insignificant criminal history - substantial steps towards rehabilitation - family commitments - special circumstances. Appeal allowed for offence of agreeing to supply: resentenced to MT 2y, AT 2y.
303	DAVIS, Stephen John - CCA, 10.7.2000 Giles JA, Adams J Citation: R v Davis [2000] NSWCCA 244 Sentence appeal. 4 x supply prohibited drug (heroin); + 8 additional charges taken into account:- 5 x possess prohibited drug (cannabis, opium, Rohypnol & Physeptone), 1 x self-administer heroin, 2 x possess unlawfully obtained cash. Aggregate MT 3y, AT 3y. Applicant admitted selling heroin to support his own habit which he said was costing him between $200 & $300 a day. Small individual amounts of drugs supplied, eg 3.0, 1.6, 0.2, 0.02 & 0.25 grams. The total weight of heroin encompassing all offences was 5.36 grams. Aged 41 - extensive criminal history - commission of offences whilst on recognizance & on bail. Weight given to sentencing factors - objective criminality - subjective factors - error in sentencing process - contrition - rehabilitation - full admissions. Appeal allowed: resentenced to MT 2y, AT 2y.
304	JOHNSTONE, Dean Andrew - CCA, 12.4.2000 Dowd & Hulme JJ Citation: R v Johnstone [2000] NSWCCA 129 Sentence appeal. 3 x armed robbery. 1st count: MT 3½y, AT 2y; 2nd count: MT 4y, AT 2½y; 3rd count: MT 4½y, AT 3y. The offences involved the applicant being armed with a blood-filled syringe & robbing his victims of cash. When applicant was arrested for the 3rd offence, he informed arresting officers of the first 2 offences & made full confessions Principles in R v Pearce applied in sentencing. Failure to take into account applicant’s voluntary admissions in relation to first 2 offences - failure to apply principles in R v Ellis (1986) 6 NSWLR 603. Appeal allowed on first 2 counts: 1st count - MT 3y, AT 1½y; 2nd count - MT 3½y, AT 2y.
305	KELLY, Francis Reginald - CCA, 14.4.2000 Dowd & Hulme JJ Citation: R v Kelly [2000] NSWCCA 168 Sentence appeal. 27 x sexual intercourse with child under 16; 9 x indecent assault. MT 5y, AT 3½y. Offences occurred over a period of approximately 5 years & were committed against 3 sisters who were children of the applicant’s friends. During the period of the offences, the eldest victim was aged between 8 & 13 - 28 of the offences charged related to offences against her; 6 offences involved the second girl; & 2 offences involved the youngest girl. At the end of this period, the offences began to play on the applicant’s conscience & he confessed to his wife & the parents of the girls. Aged 58 at time of conviction - married with children of his own at the time of the offences. Delay between offences & charging of applicant - insufficient weight given to guilty plea. Appeal dismissed.
306	MALONE, Tyrone - CCA, 14.4.2000 Dowd & Hulme JJ Citation: R v Malone [2000] NSWCCA 156 Conviction appeal. 1 x armed robbery in company; 1 x robbery in company; 1 x armed robbery using offensive weapons; an offence of stealing from a dwelling taken into account on a Form 1. Aggregate MT 2y, AT 2½y. Early guilty plea taken as an indication of contrition. Each offence involved pizza delivery persons who were contacted & asked to deliver a pizza. When they arrived at the delivery address, the applicant attacked them. In all 3 offences, a knife was used. Aged 20 at time of offences - vulnerable victims - degree of planning - use of personal violence considerable. Facts of offences as related by sentencing judge on 2 counts take in features not reflected in charges - application of Henry. Appeal dismissed.
307	KELVIN, Wilfred H.C. - CCA, 18.5.2000 Mason P, Heydon JA, Smart AJ Citation: R v Kelvin [2000] NSWCCA 190 Sentence appeal. 6 x defraud Commonwealth. 2½y with NPP of 18m. Applicant was a certified practising accountant & a registered tax agent. He removed tax stamps from documentation provided by his clients & then used them in his own tax returns & in the tax returns of his former de facto wife, resulting in a refund on each occasion. Offences occurred over a period of some 4 years. The offences came to the notice of the Australian Tax Office when an employee reported the applicant. Guilty plea. Strong Crown case. Shortly before sentencing proceedings, applicant paid reparation of $97,000 which was sought by the Tax Office. Aged 54 at time of sentencing - divorced - lived alone - little contrition - maintained his staff committed the offences. No specific error of principle asserted by applicant. He claimed that insufficient weight had been given to various relevant factors. Whether sentence excessive. Appeal allowed: resentenced to 2y with NPP of 12m.
308	VALENTINE, Warwick James - CCA, 19.5.2000 Beazley JA, Hulme & Barr JJ Citation: R v Valentine [2000] NSWCCA 169 Conviction appeal. Maliciously damage property by means of fire. 2y GBB; appellant also required to pay compensation in the sum of $49,358. Evidence relied upon by the Crown was circumstantial. Appellant had had a relationship with a woman for a few years & he was angry when she broke it off. On 2 occasions he threatened to get her. The woman moved from Gymea to a block of units in Caringbah & did not inform the appellant of her new address. He asked a friend working at NRMA to obtain her address for him. The car the appellant had been using was seen in the vicinity of the block of units at about the time of the fire, which had been lit in a garage of the units. Error in not directing a verdict of not guilty at end of Crown case - error in failing to clearly direct jury on duty to acquit if a rational inference reasonably open that another may have lit the fire - whether verdict unreasonable. Appeal dismissed.
309	ROMERO-CEPEDA, Jorge - CCA, 9.6.2000 Spigelman CJ, Newman & Adams JJ Citation: R v Romero-Cepeda [2000] NSWCCA 229 Sentence appeal. Knowingly concerned in importation of commercial quantity prohibited drugs (3.5739 kgs pure cocaine). 11y with NPP of 6½y. 23 envelopes sent to various addresses in Australia were intercepted by the NCA following information from a police informer. Each envelope contained coloured plastic folders. There were 58 folders in all, within which was impregnated 3.5739 kgs pure cocaine. The mode of impregnation required a chemical process to extract the cocaine. The applicant was the chemist involved in this process. Applicant claimed there was a marked disparity of sentence when compared with sentences imposed upon other persons involved in the criminal enterprise, referring to Lowe (1984) 154 CLR 606 & Postiglioni (1997) 189 CLR 295. Appeal dismissed.
310	ENGLISH, Jason Wayne - CCA, 16.6.2000 Giles JA, Adams J Citation: R v English [2000] NSWCCA 245 revised - 11/07/2000 Sentence appeal. Robbery in company. MT 18m, AT 6m. Guilty plea. Applicant was sentenced on the basis that he only stood by & it was his male co-offender who had wielded the knife used in the robbery of a female working in a florist & gift shop. However, the co-offender was later sentenced on the basis that he, the co-offender, was the one who only stood by, the sentencing judge not being able to find beyond a reasonable doubt that it was the co-offender who wielded the knife. Applicant represented himself on appeal - submitted he “did not deserve the same time as the man who held the knife …” - need to address drug problem. Crown raised further matter that applicant may not have received the benefit of his pre-sentence custody. Appeal allowed insofar as to take pre-sentence custody into account: sentence adjusted to 2y less 7d, with NPP of 18m less 7d.
311	WRIGHT Noel Andrew - NSW SC, Dunford J, 22.6.2000 Citation: R v Wright [2000] NSWSC 568 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder. Applicant offered to sell marijuana to the victim & the victim was to pay him $12,000. After making arrangements to meet in a secluded area for the transaction to take place, the applicant told the victim the marijuana was in his car & when the victim was near the boot of the car, the applicant shot him in the back. The victim fell to the ground & the applicant then approached him & from a distance of approximately half a metre he shot him in the head. He then went to the vehicle the victim had been using & removed the money, as well as the victim’s 2 wallets. He picked up the victim’s rifle from the floor of the vehicle, walked back to where he was lying & shot him in the chest. Remorse - acceptance of responsibility for actions - feelings of guilty - positive attempts whilst in prison to acquire literacy, numeracy & trade skills - attended drug & alcohol, as well as psychological counselling. Application allowed: sentenced to 22y with NPP of 15y.
312	SZABO, Laszlo - CCA, 11.7.2000 Heydon JA, James & Bell JJ Citation: R v Szabo [2000] NSWCCA 226 Conviction appeal. Murder (of wife). Appellant & deceased had been married for about 8 years, he was 70 at the time of the death & she was 52. Both had been married before. Appellant had 2 sons from his former marriage, deceased had 2 daughters. Evidence there had been friction in the marriage for some years, involving arguments about money, as well as verbal & physical abuse. Appellant admitted killing his wife. There was evidence she died as a result of extensive head injuries caused by repeated blows with a brick. Appellant had suffered minor head injuries. Appellant called evidence from 2 psychiatrists, his former wife, his sons & a friend as to his mental state & relationship with the deceased, but did not give evidence himself. Contention that trial judge failed to adequately & properly direct the jury in relation to defence of provocation under s.23 Crimes Act 1900. Further, that there were irregularities in the conduct of the trial, resulting in the jury being mistaken or misled & that the consequent finding that the appellant was guilty of murder was a miscarriage of justice. Appeal dismissed.
313	HARVEY, Arthur Frank - CCA, 13.7.2000 - 113 A Crim R 434 Fitzgerald JA, Sperling & Whealy JJ Citation: R v Harvey [2000] NSWCCA 253 Sentence appeal. Attempt obtain possession of trafficable quantity prohibited import (amphetamine). 5y with NPP of 2y 30w. A parcel was intercepted at Melbourne airport & was found to contain amphetamine tablets in plastic bags (1,508 tablets, weight 403 grams, 51.3 grams pure - street value $42,000). Federal Police officers substituted iron & calcium tablets, placed fluorescent powder on the substituted packets, as well as placing a listening device inside. A police officer, masquerading as an Australia Post employee, delivered the package to the applicant & on the same day police raided his premises. The parcel had been opened & there were yellow spots on the accused’s hands from the powder. He was then arrested. Trial judge held that although not a “bare courier” applicant’s criminality was broadly similar to that of a courier. Whether high-range/mid-range drug a relevant distinction - applicability of Wong & Leung [1999] NSWCCA 420 to mid-range drug importation offences - whether sentence manifestly excessive.. Appeal dismissed.
314	BULL, KING & MAROTTA v THE QUEEN - HC, 11.5.2000 - 201 CLR 443; 73 ALJR 265 Appellants convicted of 4 sexual offences. Complainant’s evidence was that following a telephone call to one of the appellants, she went to his home. When she arrived there, all 3 appellants & another man were there. She said she was later handcuffed & sexually assaulted. Appellants alleged she consented to the sexual activity & was never handcuffed. They sought to cross-examine the complainant on the appellant’s version of the telephone conversation that caused the complainant to go to the house, arguing that this conversation tended to prove the complainant came to the house for the express purpose of having sexual intercourse & giving effect to her sexual fantasies. Trial judge rejected the evidence pursuant to s.36BA Evidence Act 1906 (WA) & subsequent appeal to the WA CCA was dismissed. Disposition or experience - res gestae - Evidence Act 1906 (WA), ss.36B, 36BA. Appeal allowed: convictions quashed, new trial ordered.
315	LALOUM, Laurent Bruno - CCA, 7.7.2000 Fitzgerald JA, Sperling & Whealy JJ Citation: R v Laloum [2000] NSWCCA 248 Crown appeal. Import commercial quantity cannabis (624 kgs). 9y with NPP of 4½y; a forfeiture order was made pursuant to s.19 Proceeds of Crime Act 1987 in respect of money & other property. A 20 foot shipping container containing used furniture was sent from South Africa to Australia by sea. The cannabis was concealed in the used furniture. Sophisticated operation in which the respondent was directly involved. Aged 40 at time of sentencing - born in Algeria of French parents. Sentencing judge’s failure to reflect objective seriousness of respondent’s offence - error in approach by sentencing judge - whether sentence manifestly inadequate. Appeal dismissed.
316	GHALE, Nima Tsering (aka Ram Sharan Mahat) - CCA, 7.7.2000 Fitzgerald JA, Sperling & Whealy JJ Citation: R v Ghale [2000] NSWCCA 249 Crown appeal. Knowingly concerned in importation of commercial quantity heroin. 7y with NPP of 4y 3m. The gross weight was approximately 3.4 kgs, yielding a net weight of approximately 2.4 kgs with a street value of $4m to $5m. Respondent arrived in Australia on a Nepalese diplomatic passport in the name of a former member of the Nepalese government. The passport had been falsified. The respondent travelled on that passport from Nepal to Bangkok where he obtained possession of a bag containing heroin, then he came on to Australia. Once in Sydney, he booked into a hotel & 2 days later was contacted by a person who was also involved in the enterprise & later that day he delivered part of the heroin to a 3rd person. Shortly after respondent’s arrest, the balance of the heroin, the false passport & other material were seized. Initially respondent maintained he was the person referred to in the passport & he was imprisoned & committed for trial in that name. The indictment on which he was convicted was presented in his correct name. Courier - low in hierarchy of organisation. Whether sentence manifestly inadequate. Appeal dismissed.
317	MAJDALAWI, Hoss - CCA, 13.6.2000 - 113 A Crim R 241 Spigelman CJ, Newman & Adams JJ Citation: R v Majdalawi [2000] NSWCCA 240 Conviction appeal. Murder (of wife). Appellant shot his wife a number of times outside the Family Court in Parramatta, the last shot was at close range to her head. Defence at trial was of diminished responsibility. Supporting evidence from 2 psychiatrists, one of whom was engaged by the Crown although he was ultimately called in the defence case. Only ground of appeal that verdict unreasonable having regard to the medical evidence which established defence of diminished responsibility. Appeal dismissed.
318	VEEN, Robert Charles - NSW SC, Sully J, 7.7.2000 Redetermination of life sentence under s.13A Sentencing Act 1989. Manslaughter (stabbing). Significant criminal history. Antecedents involved the non-fatal stabbing of his landlady, another involved the fatal stabbing of a man. At present aged 45 - taken from his mother at 1 year of age & placed in the Aboriginal Welfare system until he was fostered by the Veen family when he was 2 years of age, his natural mother not consenting to any formal adoption. He was 1 of a total of 5 children in that family & was raised within the family for some 15 years, with some problems and absences from age 11 to 17. He suffered sexual abuse (from age 11) as well as other abuse in various boys' homes. In 1997 applicant’s classification within the prison system was relaxed from a B to a C1 classification. Efforts at rehabilitation - very real natural gift for graphic art. Application allowed: sentenced to MT 20y, AT balance of natural life.
319	McMILLAN, Michael Ivan David - CCA, 16.6.2000 Giles JA, Adams J Citation: R v McMillan [2000] NSWCCA 241 Sentence appeal. MT 3y, AT 3y. Knowingly take part in manufacture of large commercial quantity prohibited drug (1-Phenyl 2-Nitropropylene - 1,830.5 grams). Applicant an unwilling & reluctant recruit to the enterprise had been threatened with his life if he didn’t participate. He pleaded guilty, thereby foregoing any defence of duress. His role was to obtain chemicals required to produce amphetamine. He was used as the “public face” of the operation & had to sign leases, prepare premises, pay rent, purchase chemicals & apparatus, as well as set up companies under fake names. He tried to sabotage or slow down production of amphetamine by failing to order proper chemicals, dropping apparatus, etc. This was ultimately ineffectual & a large quantity of 1-Phenyl 2-Nitropropylene (precursor to manufacture of amphetamine) was produced. He became more & more concerned with the seriousness of the crime & increasingly reluctant to participate in it. He decided to have nothing more to do with it & broke equipment & tried to destroy a quantity of drugs. He left the premises & phoned police to inform them there had been a break-in, hoping they would find the laboratory & remaining drugs. However, what he did caused a fire. The fire brigade extinguished it & found the laboratory, etc. Police were called in. Amount of drug found would have yielded 10-15 grams amphetamine, street value of approx $10m. Police found a document prepared by the applicant setting out in a very detailed way the process by which the laboratory had been set up & functioned. He did this to assist police & left it there deliberately for that purpose. Whether sentence manifestly excessive. Appeal allowed: resentenced to 3y with NPP of 18m.
320	GEORGIOU, Constantine - NSW SC, Dowd J, 10.3.2000 HARRISON, Bruce Malcolm Citation: R v Georgiou & Harrison Remarks on Sentence: Each convicted of 3 x murder; 1 x attempted murder. The offences related to the shooting of 4 members of the Bandido Outlaw Motor Cycle Club by a member and an ex-member of the Rebel Club in the basement of the Black Market Café, Chippendale. The shootings were carried out at close range with the intention to kill. There was insufficient evidence to establish that they were either contract or execution killings. Georgiou: Young child - good character evidence from friends & family. Harrison: Young daughter - held positions of responsibility in gaol. Each sentenced to aggregate MT 28y, AT 5y. Georgiou received a concurrent sentence for contempt as a result of refusing to answer questions in cross examination & failure to adhere to the directions of the court.
321	SHAFIEI, Ali - CCA, 14.7.2000 - 115 A Crim R 45 Fitzgerald JA, Sperling & Whealy JJ Citation: R v Shafiei [2000] NSWCCA 254 Conviction and sentence appeal. Possess trafficable quantity prohibited import (opium). 6½y with NPP of 3½y. At DHL Worldwide Express, Customs officials opened a parcel which had come from Bulgaria & within which were 2 wooden icons. The recipient’s name appeared on the shipment airway bill, the contents described as “copies of wooden icons” with a declared value of $10.00. The icons were examined & Federal Police were called when a sample of organic substance was tested showing the presence of an opiate substance. Federal Police found packages inside the icons containing a black sticky substance which upon analysis was found to be opium weighing just over 2 kilograms. A controlled delivery took place with a Federal Police Agent masquerading as a DHL officer delivering the parcel to the appellant’s home. The appellant’s wife signed the delivery record. Later that day, Federal Police executed a search warrant & found the parcel in the ceiling of the appellant’s premises. Appellant’s case at trial was that he was unaware of the contents of the items delivered to his home. Misdirection regarding element of “not less than a trafficable quantity” - whether sentence manifestly excessive. Appeal allowed: new trial ordered.
322	WANG, Joyes Hong - NSW SC, Adams J, 23.5.2000 Citation: R v Wang [2000] NSWSC 447 Remarks on Sentence. 2 x manslaughter. Accused strangled her husband & poisoned her 1 year old daughter. She attempted to kill herself & was unconscious when found by police. Both she & the baby were dressed in red when found. Accused claimed to have accidentally killed her husband trying to keep him from preventing her from killing her daughter & herself. Accused was suffering a severe depressive illness at the time of the offences. Accused’s daughter suffered from cerebral palsy & the accused was worried that no-one would look after her once the accused had killed herself. Her husband had once told her that should she die, he would send the child to China to be put into a centre for orphans. Accused had seen a documentary on TV about orphans in China & she said she couldn’t bear her baby being sent there & being subjected to torture & suffering. Substantial impairment of mental capacity - depression - attempted suicide - relevance of general & personal deterrence - totality. Total aggregate MT 4y, AT 2y.
323	PHAN, Vinh Ngoc - NSW SC, Sully J, 26.5.2000 Citation: R v Phan [2000} NSWSC 426 Remarks on Sentence. Murder. The deceased was found in the driver’s seat of a MV. He had been shot 3 times. The weapon used was never found. The bullet causing the 1st wound was recovered, the bullet causing the 2nd wound was not found & only fragments of the bullet causing the 3rd wound were found. The accused was alleged to have fired at least one shot. There was no evidence of prior acquaintance with the deceased or of motive. Although a serious crime, sentencing judge did not consider it called for a life sentence to be imposed. Sentenced to 13y 35w with NPP of 10y 9w.
324	HOSWELL, Clint - CCA, 21.6.2000 Grove & Newman JJ Citation: R v Hoswell [2000] NSWCCA 250 Sentence appeal. 3 x BE&S; possess implement capable of being used to enter conveyance; take & drive conveyance; + Form 1 matters taken into account. MT 2½y, AT 10m. No details of offences provided. Aged 24 - lengthy criminal history - drug problem - inability to cope with stresses in life. Rehabilitation - applicant submitted his AT of 10m was too short & requested his sentence be adjusted. No special matter of principle. Appeal dismissed.
325	FIU, Ema - NSW SC, Ireland J, 1.6.2000 Remarks on Sentence. Manslaughter. The accused was put on trial for murder after the Crown rejected a guilty plea to manslaughter. The accused stabbed her lover when he told her that he did not love her & would not marry her. The killing was provoked by the fact that the deceased had used the accused for sexual gratification. She attempted to kill herself. West Samoan - genuine remorse - depression and other mental problems - high order of impairment to mental responsibility. Issue at trial was partial defence of diminished responsibility & provocation. Sentenced to 7y with NPP of 3½y.
326	ILBAY, Osman - CCA, 21.6.2000 Grove & Newman JJ Citation: R v Ilbay [2000] NSWCCA 251 Sentence appeal. Supply heroin; + 5 further supply heroin on a Form 1. MT 2½y, AT 1y. Applicant pleaded guilty after a voir dire hearing some months prior to being sentenced. There was delay due to the fact that shortly after being charged, the applicant absconded from Australia, returning voluntarily many years later. His co-offender had been dealt with some 11 years previously. Co-offender higher in hierarchy of drug enterprise than applicant. Co-offender had a poor criminal record, whereas applicant had no prior convictions. Co-offender dealt with prior to the Sentencing Act 1989. Parity - justifiable sense of grievance - discrimination in overall criminality - different multiple offences - no special matter of principle.. Appeal dismissed.
327	HUANG, Chin Ming - CCA, 9.6.2000 - 113 A Crim R 386 Spigelman CJ, Newman & Adams JJ Citation: R v Huang [2000] NSWCCA 238 Sentence appeal. Attempt obtain possession of trafficable quantity prohibited import (heroin). 8y with NPP of 5y. Applicant a citizen of Taiwan, resident in Hong Kong, made a number of short visits to Australia. During one such visit, a Singaporean national travelling on a false passport arrived in Brisbane & was detained by Customs officers. A little over 1 kg of heroin admixture (809.5 grams pure) was found divided between pouches inserted in each of his shoes. Acting with Australian Federal Police he phoned a contact in Thailand & was told to travel to Sydney. Federal Police officers accompanied him together with a controlled delivery sample & booked into a hotel. He phoned his contact in Thailand to let him know his whereabouts. A little while later, his contact phoned & told him a person would be coming to collect the package. A little over an hour later, he received a phone call from the applicant. When the applicant arrived, he told the man he didn’t have any money & would return the following day. Police followed the applicant & he was seen to make a number of telephone calls & drive to various places in the city. Over 2 hours later, applicant again contacted the man & told him he was returning to pick up the package. When he got to the man’s room, the applicant handed him $3,000 in Australian currency & $5,000 in Singaporean currency & then took possession of the bag & left. Police followed him for some time & eventually observed him throwing a bag out of his car window as he negotiated a turn. However, as he did so, the bag caught against the indicator lever & tore, spilling powder over the front seats & over the applicant. The car mounted the curb, collided with a pole & white powder was spread across the driveway. Courier - gambling problem - financial difficulties - depression - markedly passive - limited English - no friends or family able to visit - whether sentence xcessive. Appeal dismissed.
328	ROBINSON, Harry - NSW SC, Barr J, 16.6.2000 Citation: R v Robinson [2000] NSWSC 541 Remarks on Sentence: Deceased was serving a sentence following his conviction for sexual offences on schoolchildren within his charge & that fact came to be suspected by the inmates of the gaol. Inmates obtained papers from the deceased’s cell which confirmed their suspicion & a discussion took place about giving the deceased a hiding & getting rid of him from that part of the gaol. The accused said he would do it. He & another inmate went to the deceased’s cell & punched & kicked him, with the accused concentrating on the deceased’s head, delivering a large number of kicks. The cause of death was blunt force head injury. There were a number of fractures, ie to the right side of the jaw bone & to the nose as well as extensive bruising of the skin over the right cheek & jaw. There was a tear beneath the upper lip, teeth were broken & there was bleeding on the inside of the skull & over the surface of the brain. At the time of the attack, the accused had an injured knee & afterwards said he was sorry he hadn’t been able to stomp harder on the deceased’s head because of his knee injury. Aggressive behaviour in gaol - use of alcohol & illegal & prescription drugs in gaol - attempted suicide - self-mutilation - psychiatric care - suffered violence & sexual assaults as a child - severe personality disorder with anti-social & borderline traits - hatred of homosexual men. Sentenced to 22y with NPP of 15y.
329	CHALMERS, Maxwell John - CCA, 29.5.2000 Sully & Adams JJ Citation: R v Chalmers [2000] NSWCCA 206 Sentence appeal. Supply heroin. MT 3y 8m, AT 1y 3m. Applicant claimed wife’s drug addiction played big part in him committing offence, proceeded to recount what trial judge described as a “most incredible story”. Proceedings at trial disjointed & confusing, with trial judge not receiving coherent & focused assistance from either counsel. Doubt & confusion as to existence of person named in evidence. Applicant’s counsel pointed out judge incorrect in his understanding concerning existence of that person. No re-evaluation or re-assessment by judge of his earlier remarks, which was not helped by fact there was no cross examination of applicant or his wife. Whether sentence proceedings miscarried by reason of applicant not having had an opportunity to present his case fully & to have it properly tested. Power of CCA to deal with matter - suggestion applicant should appeal to Court of Appeal for prerogative relief. Matter stood over generally with liberty to restore to list on 7 days’ notice in writing.
330	ROBERTSON, Hayden Robert - CCA, 14.7.2000 Meagher JA, Grove & Bergin JJ Citation: R v Robertson [2000] NSWCCA 266 Crown appeal. Knowingly concerned in importation of prohibited import (Methyldioxin Methylamphetamine - known as “ecstasy”). 3y PD, to be suspended after 1y. Respondent used marijuana from time to time; first started using it when at boarding school. Respondent was living in a flat with fiancee & in order to obtain his supply of marijuana, he came into contact with Capper. Whilst under the influence of marijuana, Capper put a proposition to him in which respondent would act as a “post box” for material arriving from overseas. Respondent later admitted he knew drugs were involved, although evidence showed he had no idea of what drugs were involved nor the quantities. Some mail was collected by respondent & his fiancee & as they were on their way to delivery it to Capper, they were stopped by Federal Police. Respondent was in a desperate situation at the time, both he & his fiancee had become unemployed & the fiancee had a medical condition which required periodic treatment for psychotic episodes; debts were mounting up. Aged 22 - no priors - adopted at 1m of age - recently had first contact with birth mother - exceptional circumstances - minor role Whether sentence inadequate - sentence of PD within discretionary bounds in exceptional circumstances of the case. Appeal dismissed.
331	WEBSDALE, Geoffrey Ian - NSW SC, Studdert J, 6.7.2000 Citation: R v Websdale [2000] NSWSC 636 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder. Life. Applicant went on a shooting spree, killing 2 people & wounding 2 others, one of whom was rendered a quadriplegic. The applicant worked as an apprentice of a team of shearers which included 3 of the victims (2 females, 1 male), the other victim (male) not being a member. Having armed himself with a semi-automatic rifle, applicant kicked open the door of the women’s quarters & observed the 2 women lying on the beds, each accompanied by a male. Applicant commenced firing his weapon. Aged 20 at time of offence - need to address anger - need to pursue violence prevention course - contrition - deterrence - protection of the community - need for further drug & alcohol counselling. Application allowed: resentenced to 25 with NPP of 18y 9m.
332	WHITE, David Timothy - NSW SC, Studdert J, 22.6.2000 Citation: R v White [2000] NSWSC 555 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder; sexual intercourse without consent. Life. A vicious attack upon a 53 year old woman in her home. A post mortem showed numerous stab wounds, one wound passing through her right eye into the orbital plate above it & then into the brain; 16 stab wounds along the front of her neck including penetration of the major carotid artery; extensive bruising to the head & a fractured skull which was caused by a piece of wood with which the applicant beat the deceased. Once she was dead, the applicant had sexual intercourse with the deceased. Deceased’s body was eventually found lying in her bedroom, semi-naked, her clothing pulled over her chest & neck. Applicant aged 29 at time of s.13A hearing - numerous convictions whilst in prison, some for offences of violence - low IQ (with a 30 point difference between verbal & non-verbal scores) - numerous behavioural problems whilst in custody - undertaken various courses whilst in prison - still denies guilt. Application allowed: resentenced to 22y with NPP of 16½y.
333	CHEN, Xin - CCA, 14.7.2000 Meagher JA, Grove & Bergin JJ Citation: R v Chen [1000] NSWCCA 267 Sentence appeal. Conspire to take part in bringing unlawful immigrants into Australia. 15m with NPP of 12m, with a 3y GBB upon release. At the time of the offence, the maximum sentence available was 2y with and/or a fine of $13,200. The maximum sentence has been increased in recent times. A ship set sail from Hong Kong with 14 crew members on board & 69 people secreted in living quarters between the steel hull of the ship & internal bulwarks. It arrived on the eastern seaboard of Australia. Applicant was an active participant with a vital role in the landing of the illegal immigrants, although he was not an organiser of the venture. He had received funds for the purchase of a boat to ferry people from the ship to the shore, but due to an error he damaged the vessel & it was not able to be used to ferry the people. Ratio between MT & AT - whether sentence excessive. Appeal dismissed.
334	GUZMAN, Maria Cecillia - CCA, 20.4.2000 HENAO, Orlando Leon Priestley JA, Sperling J, Foster AJA Citation: R (Cth) v Guzman & Henao [2000] NSWCCA 261 revised - 19/07/2000 Sentence appeal. Knowingly concerned in importation of commercial quantity prohibited import (cocaine - 2,635 grams); knowingly concerned in importation of trafficable quantity prohibited import (cocaine - 1,249 grams). Henao also had offence of being in possession of money which could be reasonably suspected of being proceeds of crime taken into account. Packages containing computers in which cocaine was concealed intercepted by Australian Customs personnel. Recorded conversations revealed appellants involved as principals. Henao: 17½y with NPP of 13½y. Whether sentences excessive - couriers - reference to Wong & Leung guideline - aged 55 would spend almost rest of life in prison - error in fixing NPP (approx 75% of head sentence). Appeal allowed: resentenced to 17½y with NPP of 12y. Guzman: 12½y with NPP of 9½y. Allowance for guilty plea made at wrong stage - error in fixing NPP (approx 75% of head sentence). Appeal allowed: resentenced to 12½y with NPP of 7½y.
335	BABLANIAN, Sam - CCA, 14.7.2000 Adams & Bell JJ Citation: R v Bablanian [2000] NSWCCA Sentence appeal. 2 x robbery in company; 1 x BE&S; 3 x car stealing. MT 3½y, AT 3½y. All offences occurred within a few days, a few weeks before applicant’s 21st birthday. During one of the robbery in company offences, unknown to the applicant, his 2 accomplices were armed with samurai swords which were used to terrify the occupants of premises they invaded in order to steal various items & cash. The 2nd count involved the robbery of a post office. The commission of both those offences involved using stolen MVs. The 3rd count involved B&E a house in order to steal, however, they were disturbed by the return of the owner whereupon they stole his vehicle & escaped. Living on the streets at time of offences because of being ejected from his home due to him stealing from his family in order to feed his drug habit. Inadequate weight given to assistance to authorities - significance of below average intelligence - borderline mentally retarded range for ability - rehabilitation - family support - whether sentence manifestly excessive. Appeal allowed: resentenced to 5y with NPP of 2y.
336	BRIGHT, Marion Ann - CCA, 25.7.2000 - 114 A Crim R 466 Meagher JA, Grove & Kirby JJ Citation: R v Bright [2000] NSWCCA 258 Conviction appeal. B&E with intent to commit malicious damage; armed with intent to commit assault (tomahawk). Alleged that appellant was one of a number of people who had encircled a house, yelling abuse & making threats against its occupants. Objects, including pot plants, were thrown through the window & they broke down the front door & invaded the house. The female occupant & her small children fled in terror & hid in the rear of the house. A tomahawk was used to chop through a bedroom door before the group retreated. Information conveyed to jury by court attendant - whether contamination of jury - reasonable apprehension jury might not have brought an impartial & unprejudiced mind to resolution of issues. Appeal allowed: new trial ordered.
337	AUSSEM, Reiner - CCA, 9.6.2000 Spigelman CJ, Newman & Adams JJ Citation: R v Aussem [2000] NSWCCA 220 Crown appeal & sentence appeal. Import commercial quantity cocaine (4.666 kgs with pure weight of 2.96 kgs). 8y with NPP of 2½y. Respondent apprehended at Sydney airport carrying the cocaine on his body. German extraction - living in South America for a number of years - full co-operation with Customs authorities. Respondent placed at personal risk, having had conversations with one of the conspirators which were recorded by way of a recording device on his body, leading to the apprehension of the contact man in Australia, who is now serving a sentence relating to the importation. Whether error in sentence judge’s remarks on sentence relating to imposition of head sentence. Past & future assistance to authorities - calculation of discount for future assistance. Appeal allowed: resentenced to 6y with NPP of 3y.
338	DHANHOA, Kamaljeet Raju - CCA, 20.7.2000 Priestley JA, Foster AJA, Sperling J Citation: R v Dhanhoa [2000] NSWCCA 257 Crown appeal. Dangerous drive occasioning death. MT 12m, AT 2y; disqualified from driving for 2y. Respondent, aged 21, & his passenger, aged 16, had been at a New Year’s Eve party & had consumed a large quantity of alcohol. The accident happened about 5 am on New Year’s Day. Whilst travelling into a left-hand bend, the car crossed to the wrong side of the road, crossed back to the correct side of the road, then left the road & hit a tree on the driver’s side. The car then caught fire. Some people tried to put out the fire & after some time the respondent was removed from the driver’s seat. The deceased was not noticed in the passenger seat as the car was filled with smoke. After the bush fire brigade put out the fire, the deceased’s incinerated remains were found. Roadway dry & in good repair - weather fine - no-one witnessed accident - skid marks of 78 metres leading to point of collision. Whether sentence inadequate. Appeal dismissed.
339	LA PRAIK, Scott Bruce - CCA, 6.7.2000 Sheller JA, James & Adams JJ Citation: R v La Praik [2000] NSWCCA 273 Conviction appeal. Malicious wounding with intent to do GBH. Violent altercation in a hotel. A fight broke out between the appellant & the victim, during which the appellant cut the victim’s face with a broken glass. Appellant’s case was that he acted in self-defence. An altercation also occurred between friends of both the appellant & the victim. Error in refusing to discharge jury - whether trial miscarried when inadmissible & prejudicial material relating to appellant’s friend was admitted into evidence. Appeal dismissed.
340	ARCHER, Mathew - CCA, 11.7.2000 Priestley JA, Foster AJA, Smart AJ Citation: R v Archer [2000] NSWCCA 176 Crown appeal. Robbery in company. MT 1y, At 2y. Respondent & another man approached victim sitting in a park & demanded his wallet. Respondent held a knife at victim’s throat. Sentencing judge accepted respondent kept his thumb between the blade of the knife & victim’s throat & was satisfied respondent did not intend to use the knife to inflict ABH, however, he recognised that use of the knife was intended to frighten victim. Respondent & co-offender took credit cards, forcing victim to give them PIN numbers, with co-offender kneeing him in the groin & face & punching him. They then told victim it had all been a joke. Victim asked for his wallet back & they left in on the ground, saying everything was still in it, then left. Victim noticed 2 cash cards were missing & contacted police. They drove around until they found offenders in a car park. Vulnerability of victim - whether sentence inadequate. Appeal dismissed.
341	DOUGLAS, Barry - CCA, 28.7.2000 Mason P, Sully & Sperling JJ Conviction appeal. 17 counts, including weapons offences, armed robbery & maliciously inflict ABH. Aggregate MT 12y, AT 4y. Appellant pleaded not guilty. Directed verdict of not guilty on one count, appellant found guilty on remaining counts. On day of arrest, appellant participated in 2 lengthy ERISPs & made full admissions in relation to firearm offences & several robberies. In a later ERISP, he made admissions to several other robberies. Admissions during ERISP - police held accused incommunicado during search of home - denial of access to lawyer - onus of establishing illegality - evidentiary overlap between counts - directions to jury that each count be considered separately - whether unfair prejudice arising. Appeal dismissed.
342	ELFAR, Karim John - CCA, 21.7.2000 - 115 A Crim R 64 Mason P, Sully & Sperling JJ Citation: R v Elfar [2000] NSWCCA 255 Conviction and sentence appeal. Knowingly take part in manufacture of commercial quantity amphetamine. MT 2y 4m, AT 2y 6m. Appellant & co-offender involved in a joint venture to manufacture amphetamine. Indictment presented against them charged an intended manufacture of not less than the commercial quantity. Ample evidence at trial linking appellant with factory premises that were fitted out as a laboratory, that he had ordered equipment for use in the manufacture, that co-offender had purchased chemicals for the manufacture. Point taken on appeal was that trial judge fell into error by not directing jury as to alternative verdict open to them pursuant to s.24(3), appellant’s contention being that evidence at trial was so imprecise as to relevant quantities that it remained open for the jury to be satisfied beyond reasonable doubt that appellant had knowingly taken part in manufacture but not be satisfied beyond reasonable doubt that amount in question had been not less than the prescribed commercial quantity of 250 grams. Whether sentence excessive. Appeal dismissed.
343	BURRELL, Wayne Ronald - CCA, 21.7.2000 - 114 A Crim R 207 Mason P, Sperling J, Smart AJ Citation: R v Burrell [2000] NSWCCA 262 Crown appeal. Supply commercial quantity methylamphetamine; supply cannabis leaf. 3y GBB with a $3,000 fine on each count in the indictment. Telephone intercepts & physical surveillance provided evidence that respondent was one of many people involved in a drug distribution network organised by Leslie Kalache. Police intercepted telephone calls relating to the purchase of prohibited drugs. Respondent was observed driving a vehicle which, when searched by police, contained separate plastic bags of 440.3 gms & 400.1 gms amphetamine; 1,018 gms & 1,002 gms compressed cannabis. Aged 50 - had been a T12 paraplegic for over 20 years - weighed 21 stone - needed help with dressing, showers, etc - needed regular medical supervision for hypertension, bladder problems, obesity, bowel dysfunction, urinary tract infections - required 24 hour care - had to self-catheterise - significant risk full-time custody would result in complications & infection. Whether sentence inadequate. Appeal dismissed.
344	THOMAS, Vernon Mark - CCA, 12.7.2000 James & Bell JJ Citation: R v Thomas [2000] NSWCCA 265 Application for extension of time for leave to appeal against sentence. Sexual intercourse without consent in circumstances of aggravation; indecent assault; common assault. Aggregate MT 5y 3m, AT 1y 9m. All offences committed by applicant against the same victim on 24 May 1993 in a cell the applicant & victim were sharing at Goulburn Gaol. Sentences were imposed in August 1994. At the time of sentence, applicant was already serving a sentence for armed robbery. At time of offences, applicant was 38 & victim 20 years of age. Sentencing judge remarked: “how the penal system in a civilised country can require a twenty year old minor thief to be locked in a cell overnight with a major offender twice his age, with Hepatitis B and prior convictions for offences of violence and sexual assault raises grave questions indeed.” Sentencing judge noted applicant had a criminal history running into 5 pages of computer print-out - showed no remorse - psychiatric report that he had a personality ravaged by his early deprived childhood. Application for extension of time to appeal against conviction only was lodged on 24 May 1999 with sole ground it had not become apparent until February 1999 that applicant was medically unable to sustain an erection. On 12 May 2000 a notice of abandonment of appeal against conviction was lodged, however, it was stated that applicant wished to proceed with appeal against sentence. Principle of totality - special circumstances. Application refused.
345	THOMPSON, Graham Allan - CCA, 5.7.2000 Mason P, James & Whealy JJ Citation: R v Thompson [2000] NSWCCA 243 Conviction appeal. Supply trafficable quantity prohibited drug (methylenedioxymethylamphetamine). 350h CSO. Found in the appellant’s residence, which he shared with another man, was the appellant’s glasses case, inside which were 18 tablets in a plastic bag & $950 in cash. On analysis the tablets were found to contain more than the trafficable quantity of the prohibited drug. Crown case at trial was that appellant was guilty of offence of supply by virtue of having been in possession of a quantity of the prohibited drug being not less than the trafficable quantity. At trial, appellant disputed that he had been in possession of any amount of the drug. Verdict of guilty unreasonable. Appeal dismissed.
346	SAAVEDRA, Lily - CCA 9.6.2000 Spigelman CJ, Newman & Adams JJ Citation: R v Saavedra [2000] NSWCCA 234 Sentence appeal - leave to appeal out of time. Conspire to import large commercial quantity prohibited import (cocaine - 50 kgs). 7y with NPP of 4½y. Applicant’s participation in conspiracy not that of mere courier or a person low down in the hierarchy. Applicant’s participation vital to the conspiracy, being the person making contact with persons in Bolivia for the supply of the cocaine. Ultimately, the venture resulted in failure, the conspirators unable to obtain the drug from the South American suppliers. Sentencing principles not affected by failure of conspiracy. Parity of sentence - whether justifiable sense of grievance. Appeal dismissed.
347	COSSEDDO, Francesco - NSW SC, Studdert J, 25.5.2000 Citation: R v Cosseddo [2000] NSWSC 446 revised - 25/05/2000 Following a special hearing conducted in accordance with provisions of Mental Health (Criminal Procedure) Act 1990, jury found on limited evidence available that accused committed the crime of murder. The victim was his wife. Nomination of “limiting term” - principles applicable - Mental Health (Criminal Procedure) Act, ss.23, 24. “Limiting term” 14y.
348	DARGIN, William Roy - NSW SC, Ireland AJ, 6.7.2000 Citation: R v Dargin [2000] NSWSC 710 Remarks on Sentence. Murder; + aggravated sexual assault taken into account on a Form 1 (of the murder victim). Victim, a married woman aged 72, died as a result of multiple head & neck injuries, the autopsy report disclosing multiple, gross comminuted fractures to both lower & upper jaw, neck injuries included bilateral fractures of the hyoid bone & damage to the thyroid cartilage, as well as injuries to her genital area. Intent of grievous bodily harm - guilty plea - intoxication. Accused aged 24 - Aboriginal - interrupted education - behavioural problems at school; - alcohol problem - below average intelligence - spent much of his youth in & out of boys’ homes, including Minda & Mt Penang - criminal history included numerous entries of offences of dishonesty with episodes of violence, also robbery in company, extending over 8 years. Sentenced to 19y with NPP of 14y.
349	RYAN, Michael James - NSW SC, Adams J, 14.7.2000 Citation: R v Ryan [2000] NSWSC 724 Remarks on Sentence. Manslaughter. Originally charged with murder. Pleaded not guilty to murder but guilty to manslaughter. Truck driver intentionally drove his truck across the median strip onto the wrong side of the road & then aimed the truck at oncoming cars. Most cars were able to avoid the truck, however, two cars were hit head-on, the drivers of both cars killed. The truck driver claimed that he wanted to die & was affected by amphetamine at the time. Sentenced to aggregate 7y 10m with NPP of 5y 10m.
350	MURRELL, Lloyd Anthony - NSW SC, Studdert J, 5.7.2000 Citation: R v Murrell [2000] NSWSC 618 Remarks on Sentence. Murder. The victim was shot & killed inside his home. Joint criminal enterprise - common purpose - intention to inflict GBH. Aged 29 - lengthy criminal record, including offences of violence - excellent behaviour whilst in prison - good rehabilitation prospects - undertaken various studies - highly motivated to improve education abilities - assisted in orientation of new inmates - volunteered his services during an industrial dispute of prison officers - undertaken various studies in Peer Mentor Programme. Sentenced to 17y with NPP of 12y 9m.
351	NGUYEN, Hoang Minh - NSW SC, Dunford J, 7.7.2000 Citation: R v Nguyen [2000] NSWSC 563 Application to withdraw plea of guilty to murder. The plea of guilty was allegedly entered as a consequence of depression & confusion. Plea of self-defence allegedly open to applicant - plea of guilty not evidence of consciousness of guilt. Application dismissed.
352	THOMSON, David John - CCA 17.8.2000 - 49 NSWLR 383; 115 A Crim R 104 HOULTON, Edward Joseph Curtis Citation: R v Thomson & Houlton [2000] NSWCCA 309 Guideline judgment on guilty pleas. Sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate no weight given to plea. Sentencing judge should quantify discount as far as is appropriate in the circumstances. Utilitarian value of plea (value of plea in saving state time & money) is 10-25%, judge to consider primarily the timing of the plea, but also the complexity of the issues & evidence involved. Such factors as remorse & the benefit to witnesses of a guilty plea are not included in the guideline. There may be additional discount for these factors depending upon the circumstances. Admissions to police must be considered the earliest possible timing for a plea of guilty. In some cases it will not be appropriate to give a discount for a plea (eg where a life sentence is appropriate). In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed ( eg: full time to Periodic Detention). Does not apply to Commonwealth cases.
353	SPIES - HC, 3.8.2000 - 201 CLR 603; 74 ALJR 1263 Citation: Spies v The Queen [2000] HCA 43 (3 August 2000) Appellant convicted of s.176A Crimes Act 1900. On appeal to CCA (NSW) conviction quashed & appellant convicted of s.229(4) Companies Code, an alternative charge on the indictment. This was done under s.7(2) Criminal Appeal Act 1912 which allows CCA to substitute verdict on alternative charge where jury must have been satisfied of facts which proved the appellant guilty of the alternative offence. HC allowed appeal & ordered new trial on alternative charge. Discussion as to appropriate use of substitution power under s.7(2). s.7(2) most likely exercisable where 'other offence' is one which is wholly within the ultimate facts of the offence of which the accused has been convicted & the Court set aside. Where the ground for setting aside the conviction is lack of evidence, wrongful admission of evidence, misdirection or failure to direct on an issue in the trial, s.7(2) only applies where jury must have been satisfied of some fact/facts underlying the conviction which are unaffected by the error & which constitutes another offence. No scope for s.7(2) where wrongful rejection of evidence, unreasonable verdicts or miscarriage of justice. Caution needed when deciding whether jury satisfied of facts constituting another offence. Concluded various cases from NSW, SA & England where substituted verdicts entered by appeal courts wrongly decided. Jury must be satisfied of facts proved by admissible evidence & in accordance with proper direction. Appeal Court must be satisfied "to the point of certitude' that jury satisfied of relevant facts.

354	CHANNELL, Alan Douglas - CCA, 4.8.2000 Beazley JA, Grove & Kirby JJ Citation: R v Channell [2000] NSWCCA 289 Conviction appeal. Buggery. Local newspaper published an article on the 2nd day of the trial referring to charges of indecently assaulting 11 different children and the possibility of up to 5 separate trials. The trial judge discharged the jury due to the potential prejudice of the article. The matter was adjourned to the following day when a new jury was struck. Potential prejudice - whether miscarriage of discretion. Appeal dismissed.
355	HELMHOUT, Pieter Egbert - NSW SC, Bell J, 22.6.2000 HELMHOUT, Mark William Remarks on sentence. Murder. The offenders & the victim were under the influence of alcohol & marijuana following the funeral of the offenders’ brother. The deceased continued to refer to the dead brother, which irritated one of the offenders. He told him to shut up but the deceased continued to talk about the dead brother. This angered the offender & he assaulted the deceased. The deceased, however, continued to talk about the brother some time later. The other offender joined in the assault on the deceased & they eventually strangled him. Various acts of degradation were performed on the body after death & the body was dumped in nearby bush. Intent to kill. Both sentenced to 18y with NPP of 13y 6m.
356	KELLY, Amos Charles - NSW SC, Graham Barr J, 13.7.2000 Citation: R v Kelly [2000] NSWSC 701 Remarks on Sentence: Manslaughter. Originally charged with murder, but pleaded guilty to manslaughter in full satisfaction of the indictment. The offender stabbed the victim during an altercation in the kitchen. The victim had started the fight & had pushed the offender to the ground, causing him to sustain a wound to his head. The offender feared a further assault might have caused his death because of a brain injury he suffered in an accident some years before. He took hold of a fishing knife & stabbed the victim 7 times in the chest & abdomen. Intent to do really serious injury - culpability - immediate assistance to victim - confession to police - genuine remorse. Sentenced to: 7y with NPP of 3½y.
357	ATTARD, Frank - NSW SC, Hulme J, 9.6.2000 SHARAH, Michael Bernard Citation: R v Attard & Sharah [2000] NSWSC 511 Redetermination of life sentence under s.13A Sentencing Act 1989. Murder; robbery with wounding. The 2 applicants robbed 3 males waiting in a shop. During a struggle, one male was shot dead by Attard. Attard: mixed behaviour in gaol - convicted of 10 offences - good educational progress & substantial rehabilitation. Application allowed: sentenced to 21y with NPP of 15y. Sharah: Poor prison record - continuing problem with drugs. Application refused - need to achieve rehabilitation.
358	SETTE, Maria Giulia - NSW SC, Barr J, 6.7.2000 Citation: R v Sette [2000] NSWSC 648 Remarks on Sentence Manslaughter. Offender removed her 1 year old son from his adoptive parents during an access visit, put him in her car & drove away. She stabbed him to death & then concealed his body in a dam. She had been forced into giving the child up for adoption by her family. Impulsive killing - significant depressive illness for long period of time - dissociated state of mind at time of killing. Support of family - remorse - rehabilitation. 2y suspended for 2y.
359	SERRATORE, John - NSW SC, Kirby J, 20.7.2000 Citation: R v Serratore [2000] NSWSC 696 Remarks on sentence. Murder. Retrial. Accused was convicted of killing or arranging the killing of his girlfriend after she had indicated an intention to break off their relationship. Her decomposed body was found several days after her disappearance. Evidence of a violent relationship. Good prospects of rehabilitation - discount for onerous bail conditions. Sentenced to 20y with NPP of 14y.
360	FORD, Glen Ian - NSW SC, Barr J, 21.7.2000 Citation: R v Ford [2000] NSWSC 713 Remarks on Sentence. Murder. Accused stabbed victim in a fight, becoming angered when victim made racist jokes. He had armed himself with a knife before provoking the fight. Evidence that he intended to kill the victim, having pursued him persistently over some hours, as well as making threats about stabbing him in the chest. Criminal history showing priors for offences of violence - effects of excessive consumption of alcohol & use of illegal drugs a major factor in offending - previously gaoled for short periods - offended less frequently in recent years than in his youth - personality showing a desire to dominate & control others. Sentence to 16y with NPP of 12y.
361	LO, Wai Hung Anthony - NSW SC, Barr J, 21.7.2000 - 115 A Crim R 53 Citation: R v Lo [2000] NSWSC 714 Remarks on sentence. Murder; conspiracy to murder; + 11 drug-related offences taken into account. A group of men, who were tow truck operators & involved with drugs, recruited the accused to kill the deceased because he was to give evidence against an associate of theirs. This was a contract killing to pay for drugs - killing carefully planned by accused. Accused later assisted in an attempted murder by luring the victim to his residence. Aged 29 - guilty plea - heavily in debt over drug transactions- various drug & weapon offences. Whether in worst category of case - whether offender entitled to lesser sentence for assistance to authorities. Conspire to murder: 18y commencing on 7.4.1999, expiring 6.4.2017 (declined to fix NPP). Murder: 32y commencing on 7.4.2003; with NPP of 23y.
362	KAY, Graham James - NSW SC, 26.7.2000 Citation: R v Kay [2000] NSWSC 716 Remarks on sentence. 4 x sexual intercourse without consent in circumstances of aggravation; + 4 further offences taken into account, 2 of which were identical with the principal charges, the other 2 of threatening to inflict ABH with intent to have sexual intercourse. The sexual assaults were committed on 8 victims covering a period of 12 months. All of them occurred late at night. In each case, the victim had been threatened with a knife & subjected to digital or penile penetration. No significant physical injuries were inflicted. Offences premeditated & planned - observed by police stalking other women - significant risk of re-offending. Sentenced to: 20y with NPP of 15y.
363	CLAYTON, Regie - CCA, 4.8.2000 Newman J, Sperling J. Citation: R v Clayton [2000] NSWCCA 311 Sentence appeal. Steal from the person; + 2 further offences taken into account (stealing a wallet; AOABH). 1½y with NPP of 1y. At time of offence, applicant was aged 18 & on probation under supervision of Juvenile Justice Office following 3 stealing matters dealt with in the Children’s Court. Query as to relevance of alternative of summary proceedings in LC - otherwise no question of principle. Subjective considerations - appropriate weight to offence charged - age of applicant - change in behaviour - sentence manifestly excessive. Appeal allowed: resentenced to FT just short of 8m. Applicant released at 12 noon on day of appeal.
364	SANDO, Scott Ronald - CCA, 11.8.2000 Beazley JA, Wood CJ, Greg James J. Citation: R v Sando [2000] NSWCCA 301 Sentence appeal. Attempt obtain possession of trafficable quantity prohibited import (cocaine). 6y with NPP of 3y. A courier arrived in Australia carrying a canister of baby powder containing cocaine (624 grams, pure weight 156 grams). She assisted police, was provided with a substitute canister of baby powder & arranged to meet the applicant in a motel room. The applicant, noting the canister was made in Australia, left the room & was subsequently arrested. At first he refused to discuss the matter with police. When he appeared in court he relied upon his admission to police of a long-term addiction to heroin & also being a heavy steroid user. Guilty plea - prior convictions. Asserted error in assessing comparative culpability with courier co-accused. Appeal dismissed.
365	KINNY, Mark Ivan - CCA, 5.7.2000 Mason P, James & Whealy JJ. Citation: R v Kinny [2000] NSWCCA 278 Conviction appeal. Drive in manner dangerous occasioning death; drive in manner dangerous occasioning GBH. Two vehicles collided at an intersection, the deceased was the passenger of the car & the appellant & his de facto were in a truck. The de facto was the victim in the 2nd count. Evidence from the de facto was that both she & the appellant had consumed quantities of wine & injected a cap of cocaine each. After the accident, they walked to their home nearby & once there the de facto said she would say she was driving, thinking “they’d go easier on me”. When police arrived, she told them she was the driver. She went to hospital shortly afterwards & initially told the nurse she was the driver, but once she learned of the other driver’s death, she told the nurse & police that the appellant was the driver. She denied in court that shortly before the accident, she had switched from the passenger’s to the driver’s seat. She had bruising to the left side of her neck & bruising & tenderness to the left collarbone, consistent with her evidence of her claims that the seat belt caused the injuries. The appellant was not wearing a seat belt. Issue as to driver. Appeal dismissed.
366	HUXLEY, John Frederick - CCA, 17.8.2000 Mason P, Sperling J, Smart AJ Citation: R v Huxley [2000] NSWCCA 314 Conviction appeal. 6 x indecently assault female under 16y of age. Offences alleged to have occurred between January 1965 & December 1969. The complainant was the appellant’s niece. He was acquitted of Count 6 which also alleged indecent assault. The victim was born in September 1957. Appellant contended that verdicts were inconsistent & that they were unreasonable & not sufficient supported by evidence. 30 year delay - uncorroborated complaint - conduct inconsistent with documents - flashbacks. Appeal allowed: convictions & sentences quashed, verdicts of acquittal entered.
367	MURPHY, Leslie Joseph - CCA, 23.8.2000 Spigelman CJ, Grove & Kirby JJ. Citation: R v Murphy [2000] NSWCCA 297 Conviction & sentence appeal. 2 x sexual intercourse without consent. MT 4y, AT 2y. Evidence of complainant conflicting with evidence of witnesses. Complainant a young “street kid” aged 14 at the time of the alleged offences. She alleged that the offences occurred in a 1-roomed unit in Bondi. Complainant had been declared “an uncontrollable child” by the Children’s Court & an order had been made committing her to the care of The Paddington Refuge. Trial without jury - need for judge to canvas evidence & argument, giving reasons - error of law: s.17(2) & s.17(3) Criminal Procedure Act 1986. Appeal allowed: new trial ordered.
368	LEROY, John - CCA, 17.8.2000 GRAHAM, Colin Kenneth Stein JA, Dunford & Simpson JJ Citation: R v Leroy & Graham [2000] NSWCCA 302 Conviction and sentence appeal. Affray; maliciously inflict GBH; AOABH. Appellants were members of the Cambridge Park Rugby League team & were in Forster for a weekend football competition. After the games, a number of players from various teams attended the club at Forster. At the end of the evening, there was some rowdy behaviour by a group from the Cambridge Park team & an employee of the club approached them & asked them to leave. He was punched, fell to the ground & was then kicked several times, as a result of which he lost an eye & suffered other injuries. A fracas developed & other staff members, including the club manager, were assaulted. Admissibility of identification evidence - no identification parade held - highly probative value outweighed prejudicial effect. Whether verdict unreasonable or cannot be supported - whether special circumstances - whether sentences manifestly excessive - whether appropriate to impose cumulative sentences - relationship between MT & AT. Conviction appeal dismissed. Sentence appeal dismissed.
369	THOMSON, David John - CCA 17.8.2000 Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ Citation: R v Thomson [2000] NSWCCA 294 Crown appeal. 1 x knowingly take part in manufacture of prohibited drug (amphetamine). 2y PD. The respondent, wishing to manufacture amphetamine, contacted a person living in Brisbane who, he believed, knew how to manufacture amphetamine. Unknown to the respondent, this person was a registered police informant & advised police & officers of the NCA of this contact. A number of meetings took place between the respondent & the informant, as well as on one occasion with another man. These were monitored by police & officers of the NCA. The respondent registered a fictitious business, then negotiated the lease of some semi-rural land which was used for the manufacture of amphetamine. He told the informant of this & the informant passed that information on to the authorities. Ultimately, police obtained a search warrant & went to these premises where the respondent was observed supervising the manufacturing operations. Guilty plea. Whether sentence manifestly inadequate. Appeal dismissed.
370	HOULTON, Edward Joseph - CCA, 17.8.2000 Spigelman CJ, Wood CJ at CL, Foster AJA, Grove & James JJ Citation: R v Houlton [2000] NSWCCA 183 Crown appeal. 5 x fraudulent misappropriation; + 80 similar offences on a Form 2. 3y PD on the 1st count, taking into account matters on Form 2; 5y GBB on the remaining 4 counts. Respondent ordered to pay reparation of $120,000 to reimburse, in part, the Fidelity Fund of the Law Society of NSW for monies paid out of the fund to the respondent’s defrauded clients. Guilty plea. At the time of the commission of the offences, respondent was a practising solicitor. Each offence involved misappropriation of monies held in trust for clients. The total amount involved was approx $347,000. As a result of selling some real estate, this amount had been reduced to approx $250,000 by time of trial. Whether sentence manifestly inadequate. Leave to appeal refused.
371	SUTCLIFFE, Sean Robert - NSW SC, Adams J, 18.8.2000 McGOLDRICK, Sean McGOLDRICK, Liam Citation: R v Sutcliffe, McGoldrick & McGoldrick [2000] NSWSC 825 Remarks on Sentence. Manslaughter. Rocks were thrown from a bridge onto the M5 freeway at Menangle. Two rocks crashed through the windscreen of the deceased’s vehicle, with at least one of them striking him in the chest, causing massive injuries & severing his aorta, causing almost immediate death. His vehicle went out of control, crossed over 2 northbound lanes & travelled up an embankment, eventually coming to rest near a large tree. Intellectual deficit - rehabilitation - discount for plea of guilty. Sentenced to: Sutcliffe - 5y 3m, with NPP of 3y; McGoldrick (Sean) - 4y 5m, with NPP of 2y 3m; McGoldrick (Liam) - 2y 6m PD.
372	CHEATHAM, Stephen Darcy - CCA, 4.8.2000 Spigelman CJ, James & Sperling JJ. Citation: R v Cheatham [2000] NSWCCA 282 Conviction appeal. 2 x murder; 1 x attempted murder. At trial, the only issue was the defence of insanity. Appellant believed he was dying of AIDS, that he had infected his wife & children. He stabbed his wife 6 times while she was sleeping; then stabbed his 3y old daughter 20 times before wrapping her body in a towel & placing her on the bed next to his dead wife. He then stabbed the 3m old baby daughter twice, but failed to kill her. He made a 000 call & reported a “murder/suicide”, after which he stabbed himself a number of times & hit himself on the head with a hammer in an attempt to commit suicide. He was located some time later hiding in a garden shed, whereupon he admitted to the murders & attempted murder. Defences - insanity - second limb of the M’Naghten test - diminished responsibility - requirement of trial judge to direct jury - conduct of trial judge - verdicts not supported by evidence. Appeal allowed: new trial ordered.
373	BARNETT, Arthur James - CCA, 1.8.2000 Foster AJA, Dunford J, Smart AJ Citation: R v Barnett [2000] NSWCCA 283 Conviction appeal. 2 x carnal knowledge of a minor. MT 4y, AT 2y. Had stood trial for 6 counts (3 x carnal knowledge; 2 x indecent assault; 1 x rape). The case against the appellant consisted of evidence from the complainant & a statement from her mother (since deceased) which was read to the jury, along with evidence of the police officer in charge of the case. Appellant’s case consisted of his evidence & that of his ex-wife who was also the sister of the complainant. Delay in complaint. Verdicts unreasonable and not supported by evidence - inconsistent verdicts. Appeal allowed: conviction & sentences quashed, verdicts of acquittal entered.
374	LEACH, Patrick James - CCA, 10.7.2000 Studdert & Bell JJ Citation: R v Leach [2000] NSWCCA 247 Sentence appeal. B&E dwelling and maliciously inflict GBH on occupant. MT 4y 5m 13d, AT 3y (special circumstances found). Victim conducted an engineering business in a lonely locality & was living in a large manufacturing shed while building a house nearby. Applicant was one of 5 offenders involved in the offence charged. Applicant & another offender assaulted the victim. Victim’s hands were then tied behind his back & a hessian bag placed over his head. He was beaten about the head & body & demands were made as to the location of cannabis. Victim told them where to find it, he was then dragged to the house that was still under construction, tied to a timber wall with his hands above his head & one of the offenders then dislocated the victim’s middle finger. They left the victim tied up in his injured condition & took a quantity of cannabis with them, as well as a rifle belonging to the victim. Whether sentence excessive - whether sentencing judge fell into error in approaching sentencing upon basis that applicant was principal perpetrator. Appeal allowed: resentenced to 6y 8m 13d, with NPP of 3y 11m 13d.
375	D’AMICO, Traceylee - CCA, 2.8.2000 Newman & Sperling JJ Citation: R v D’Amico [2000] NSWCCA 290 Sentence appeal. Knowingly take part in supply of commercial quantity of heroin. 6y with MT of 4y. Applicant employed 2 runners to deliver drugs for her. Applicant & her runners were heroin users. Over a 60 day period applicant bought a total of 350 grams of heroin, used 60 to 90 grams herself & paid her runners with 60 grams. The balance was sold to retail customers for cash. Main function of the business was to support applicant’s habit. Guideline judgment of Henry applied. Guilty plea - sentence towards upper end of range of sentences. Whether appropriate weight given to subjective considerations - hardship on applicant’s 4y old child - special circumstances - insufficient weight given to need for rehabilitation. Appeal dismissed.
376	ZANZE, Anthony - CCA, 31.7.2000 Newman & Sperling JJ Citation: R v Zanze [2000] NSWCCA 308 Sentence appeal. 4 x receiving; + 5 x good in custody taken into account. 2y 8m, MT 2y. The goods in the receiving charged included a watch, a mobile phone, power tools, cameras & a radio cassette player. All had been stolen from property broken into. Aged 33 at time of sentencing - long criminal records for similar offences - previously imprisoned - subject offences committed whilst on parole Sentencing discretion - charges could have been dealt with in the LC - whether sentence manifestly excessive - failure to find special circumstances. Appeal dismissed.
377	HERON, Michael - CCA, 17.8.2000 Priestley JA, Foster AJA, Simpson J Citation: R v Heron [2000] NSWCCA 312 Conviction and sentence appeal. Murder. MT 14y, AT 4y. Crown case was that appellant had stabbed the deceased during a fight in a hotel pool room. Evidence from witnesses was that appellant was seen with a knife in his hand. Appellant’s case was that it was likely that a shard of glass had accidentally caused the fatal wound. Exercise of discretion - prejudicial comment - judge’s own opinions made known to jury - directions - whether verdict “unsafe and unsatisfactory”. Conviction appeal dismissed. Sentence appeal dismissed.
378	BOYD, Gregory Stuart Boyd - CCA, 10.8.2000 Powell JA, Hulme & Dowd JJ Citation: R v Boyd [2000] NSWCCA 110 Conviction appeal (permission to withdraw guilty plea). Supply trafficable quantity heroin. Appellant searched & arrested by 2 police officers outside a methadone clinic. At the time of the subject offence, appellant was on a methadone course. Appellant’s wife had recently died, and he claimed that the reason for pleading guilty was that he believed he would not face a custodial sentence by so doing & therefore would be in a position to look after his 3 young children. Age 38 - long-term drug user - addicted to heroin one & off for about 20y - numerous convictions for possess drugs & supply heroin - small-time user/dealer - supply activities to finance own addiction. Fresh evidence. Appeal dismissed.
379	GUST, Colin Alfred - CCA, 4.8.2000 Dunford & Hidden JJ, Smart AJ Citation: R v Gust [2000] NSWCCA 287 Application to re-open appeal. Applicant was convicted of sexual intercourse without consent. He subsequently appealed on a number of grounds & also applied for leave to appeal against sent