Friday, 21 October 2016 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary Cross v R (NSWCCA) - criminal law - sentence appeal - applicant attempted to influence prosecution witness to change her evidence - attempts made by telephone from prison - many calls unanswered - whether sentencing judge erred by considering an irrelevant matter - whether sentence imposed manifestly excessive - no specific error identified but starting point too high - sentence manifestly excessive - resentenced to 3 years 6 months, NPP 2 years R v Bragias (NSWCCA) - criminal law - conviction appeal - applicant convicted of taking a motor vehicle with assault - incident arose out of a dispute over payment of a restaurant bill - complainant lied to police and would not give evidence at trial - whether conviction unsafe - test to be applied considered-whether jury s advantage relevant - no doubt as to guilt raised on the evidence - jury s advantage relevant - appeal dismissed He v R (NSWCCA) - criminal law - sentence appeal - applicant was charged with importation and possession of ephedrine - sentenced to effective term of 3 years - no non-parole period specified even though special circumstances found - sentencing judge took into account possibility of deportation - on appeal, Crown conceded errors but argued sentence warranted - appeal allowed, applicant resentenced to effective term of 3 years, minimum custodial period 2 years, released on recognizance R v Stanford, Vincent (NSWSC) - criminal law - murder - aggravated sexual assault - sentence - principles relevant to the imposition of a life sentence considered and applied - murder in the worst category - life sentence imposed Page 1
R v Lazar (NSWSC) - criminal law - bail - show cause application - show cause demonstrated - applicant s mental health deteriorating and requiring treatment outside custodial setting - no unacceptable risk - bail granted on conditions R v Pratsch (NSWSC) - criminal law - murder - deceased killed in own home by offender known to him - location of offence not an aggravating factor (s21a(2)(eb) Crimes Sentencing Procedure Act 1999 (NSW)) - application of s21a(2)(eb) currently under consideration by full bench - plea entered on day 2 of trial - serious breach of trust - offender with drug and mental health issues - sentence of 22 years 6 months, NPP 16 years 10 months imposed DPP v Laban (VSC) - criminal law - murder - sentence - offender, a daily user of ice, brutally attacked and killed a stranger he met by chance - likely to be deported and prospects of rehabilitation guarded - need for specific and general deterrence - just punishment required - sentence of 21 years, NPP 17 years, imposed Ashley v The Queen (VSCA) - criminal law - conviction appeal - applicant charged with two offences alleging acts of indecency with a child in 2002 - complaint not made until 2013 - indictment referred to child s age as 16 or 17 - in 2002 the statutory offence required the prosecution to prove the child was 16 - whether the indictment was invalid - whether verdict was unsatisfactory - indictment incorrect, but properly particularised - appeal dismissed DPP (Cth) v Thomas (VSCA) - criminal law - Crown leniency appeal - whether discount for utilitarian benefit of plea of guilty available for Commonwealth offences - sentences imposed for drug importation offences - whether sentences manifestly inadequate - authorities extensively considered - discount to be allowed - authorities to contrary should not be followed - sentences manifestly inadequate - respondents resentenced Kim v The Queen (VSCA) - criminal law - sentence appeal - money laundering - aiding and abetting dealing in proceeds of crime worth $50,000 or more - Div 400, Criminal Code 1995 (Cth) - sentencing principles identified - applicants entitled to a discount for the utilitarian benefit of plea - whether sentences manifestly excessive - appeal dismissed Summaries With Link (Five Minute Read) Cross v R [2016] NSWCCA 214 Court of Criminal Appeal of New South Wales Beazley P, Garling J & Hidden AJ Criminal law - sentence appeal - applicant charged with domestic violence offences upon his partner was remanded in custody - while in custody he used the correctional telephone Page 2
facilitates to communicate with his partner, attempting to persuade her not to give evidence against him - the telephone calls were recorded and he was charged with an offence of interfering with a prosecution witness with the intention of procuring an acquittal on serious indictable offences (ss323(a) & 324 Crimes Act 1900 - there were a large number of telephone calls, but not all of them were answered - the applicant pleaded guilty and without giving evidence on sentence, was sentenced to 5 years, NPP 3 years, accumulated on the sentence for the primary offence - a discount of 25% was allowed for an early plea - the sentencing judge found the offence was objectively serious and noted that there was no evidence of remorse or contrition - applicant applied for leave to appeal the sentence, arguing that the sentencing judge erred by taking into account the telephone calls which were not answered and that the sentence was manifestly excessive - held: the unanswered telephone calls were matters of context and appropriately remarked upon by the sentencing judge and there was no material justifying a conclusion that they were impermissibly taken into account in determining the sentence - to succeed on the ground that the sentence was manifestly excessive the applicant was required to demonstrate that the sentence was unreasonable or plainly unjust (Hili v The Queen; Jones v R (2010) 242 CLR 520) - the applicant accepted that there was no single correct sentence and that it was not a matter for the appeal court to substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently (R v Vuni [2006] NSWCCA 171) - the applicant principally relied upon other decisions and accepted that the applicable principle is identified in Barbaro v R; Zirilli v R (2014) 253 CLR 58 (at [41]), requiring identification of the unifying principles those other decisions reveal and reflect - the applicant argued that he had received the most severe sentence among the identified cases and Judicial Commission statistics - the applicant was subject to s9 bonds (Crimes (Sentencing Procedure) Act 1999 ) however the calls were not accompanied by any threats of violence and he had not previously committed a similar offence, so that starting point identified and applied by the sentencing judge was high - while no specific error was identified the sentence exceeded what was reasonable in the circumstances - leave to appeal granted - sentence quashed - applying the 25% discount, the applicant, who had demonstrated prospects of rehabilitation so that the risk of re-offending was lessened, was resentenced to 3 years 6 months, NPP 2 years. Cross R v Bragias [2016] NSWCCA 219 Court of Criminal Appeal of New South Wales McCallum, R A Hulme & Schmidt JJ Criminal law - conviction appeal - applicant was charged with two offences arising out of a dispute over the payment of a substantial restaurant bill incurred during a weekend at a hotel - the applicant had paid the bill, the complainant agreeing to pay his contribution at a later time, but later refusing to do so - the applicant pressed the complainant for payment and a meeting was arranged to finalise the matter - the complainant did not produce any money at the meeting and he was then threatened with a knife and his car was taken - the complainant, with a witness, reported his car stolen and full statements were then made to the police - at trial the Page 3
complainant and his witness claimed general amnesia and their statements were admitted for all purposes - the applicant was charged (on a joint indictment) with (1) robbery in company with wounding (s98 Crimes Act 1900 (NSW)) and, alternatively (2) taking a motor vehicle with assault (s154c(2) Crimes Act 1900) - he was convicted on the second count and sentenced (including for 2 unrelated matters) to an aggregate term of 4 years 2 months, NPP 2 years 9 months - on appeal against conviction, the applicant argued that the jury s verdict was unreasonable, relying in part upon evidence showing that the complainant had lied to police - held: where it is argued that the jury s verdict is unreasonable, or cannot be supported by the evidence, the question the appellant court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty 181 CLR 487) - the appellant court has to make an independent assessment of the evidence, both as to its sufficiency and its quality and the test is not to be confused with the legal question whether a verdict of guilty was open on the evidence, nor is it to be confused with the function of the jury to determine whether the offence was proved beyond reasonable doubt - citing M v The Queen at [9]: It is only where a jury s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred - accepting that the complainant s various accounts of the events included deliberately false statements, his account of having been assaulted and of having his car stolen was open to be accepted by the jury and was compelling and the fact that he was injured sealed the case against the applicant - the evidence did not lead to a doubt as to the complainant s guilt - further, the jury was able to assess the complainant s demeanour - the fact that the witnesses would not give evidence against the accused was an aspect that reinforced the Crown case - the court was not persuaded that the jury ought to have entertained a doubt - leave to appeal granted - appeal dismissed. Bragias He v R [2016] NSWCCA 220 Court of Criminal Appeal of New South Wales Meagher JA, Harrison & R A Hulme JJ Criminal law - sentence appeal - applicant was charged with (1) importation of ephedrine (s233baa(4) Customs Act 1901 (Cth)) and (2) possession of ephedrine (s10 Drug Misuse and Trafficking Act 1985 ) - applicant pleaded guilty - sentenced to an effective term of 3 years with no parole or conditional release period - applicant was married with one child - sentencing judge found applicant was not merely a drug courier, but was somewhere up the chain - applicant remorseful - a discount of 25% allowed - the sentencing judge found special circumstances and assumed the applicant would be deported - the applicant appealed, arguing error in taking into account the likelihood of deportation, in failing to give effect to the finding of special circumstances and in the application of the totality principle - the Crown conceded the first two grounds of appeal, but argued that no lesser sentence was warranted (s6(3) Criminal Appeal Act 1912 ) - held: the Crown conceded (1) that taking into account the prospective deportation of the applicant so as to deny him any period of parole or equivalent, constituted error (The Page 4
Queen v Shrestha (1991) 173 CLR 48) and (2) the failure to incorporate a non-parole period constituted error (s44 Crimes (Sentencing Procedure) Act 1999 ) requiring applicant to be resentenced and consideration of other grounds of appeal not required - leave to appeal granted - appeal allowed and sentences quashed - resentenced to an effective term of term of 3 years, with a minimum custodial component of 2 years - applicant entitled to be released immediately upon entering into a recognizance. He R v Stanford, Vincent [2016] NSWSC 1434 Supreme Court of New South Wales R A Hulme J Criminal law - sentence - murder & aggravated sexual assault - the offender, who was employed as a casual cleaner at Leeton High School, raped and murdered Stephanie Scott one week before her marriage - the offender disposed of the body and attempted to destroy it by setting fire to it - he also disposed of her rings and took photographs of the corpse - on sentence, an agreed statement of facts also disclosed various stalking behaviour by the offender directed towards three other females - evidence disclosed that he met the criteria for a diagnosis of Autism Spectrum Disorder - murder carries a maximum penalty of imprisonment for the term of a person s natural life (s19a Crimes Act 1900 (NSW)) - if a life sentence is imposed (see s61(1) Crimes (Sentencing Procedure) Act 1999 (NSW)(CSPA)) no non-parole period can be set, however if a lesser term is imposed a standard non-parole period of 20 years is prescribed - aggravated sexual intercourse without consent carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years (s61j Crimes Act 1900) - held: s61(1) CSPA provides that a court is to impose a sentence of life imprisonment if satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence, can only be met through the imposition of such a sentence - it is the combined effect of the finding concerning those 4 criteria that must be considered (R v Merritt 59 NSWLR 557 - the Crown must prove beyond reasonable doubt that a case falls within ss61(1) & 21(1) CSPA requires the court to determine on the objective facts if the level of culpability is so extreme that it warrants the imposition of a life sentence and to then determine whether the subjective factors are capable of displacing the prima facie need for the imposition of the maximum penalty (R v Miles [2002] NSWCCA 276) - in considering whether to impose the maximum penalty the common law is to be applied - at common law the maximum penalty is reserved for cases falling within the worst case category (R v Harris (2000) 50 NSWLR 409; Ibbs v The Queen (1987) 163 CLR 447 - factors relevant to the determination of the appropriate sentence identified, the offender s future dangerousness being a highly relevant factor (cf Fardon v Attorney General (Qld) 223 CLR 575 concerning the difficulty of predicating the future) - here, the case was of great heinousness and brutality - the offender is very disturbed - his Autism Spectrum Disorder did not reduce his moral culpability, except perhaps marginally, his actions demonstrating that he was well capable of making well-considered choices - he will present a considerable danger to the community for a considerable period - the murder falls within the worst category - the protection of the community can only be served by Page 5
the imposition of a life sentence - life sentence imposed - a sentence of 15 years imposed for the aggravated sexual assault. Stanford, Vincent R v Lazar [2016] NSWSC 1462 Supreme Court of New South Wales Harrison J Criminal law - bail - release application (s49 Bail Act 2013 (NSW) - applicant charged with one count of use of a carriage service to threaten serious harm (s474.15(2) Criminal Code Act 1995 (Cth); one count of use of a carriage service to threaten to kill (s474.15(1) Criminal Code Act 1995); two counts of dishonestly obtaining financial advantage/causing disadvantage (s192e(1)(b) Crimes Act 1900 (NSW) - offences alleged to have been committed while applicant was on bail in respect of other offences - applicant having spent 5 months on remand after 18 months on bail - applicant s case unlikely to be heard for further 12 months - held: applicant required to show cause why his continued detention not justified - this is the first part of a two stage test - whether applicant has shown cause is to be determined on the balance of probabilities (see R v S [2016] NSWCCA 189; DPP (NSW) v Tikomaimaleya [2015] NSWCA 83; Bail Act s32) - relevant factors: applicant without significant prior record; applicant having a sick child and a partner with coping difficulties; time spent on remand and expected future delay in finalising the matter; applicant s mental health deteriorating - show cause demonstrated - in considering the second step the charges were very serious and it was of concern that they were alleged to have been committed while the applicant was on bail - however the evidence demonstrated that his mental health was deteriorating and that he would experience difficulties in dealing with the voluminous prosecution materials if he remained on remand - his mental health required treatment and oversight outside a custodial setting and as his criminal conduct was partly referable to his mental condition, he should be afforded the opportunity to address his mental health issues - bail granted on conditions. Lazar R v Pratsch [2016] NSWSC 1466 Supreme Court of New South Wales Wilson J Criminal law - murder - sentence - offender pleaded guilty to murder on the second day of her trial - deceased had suffered brain injury when aged 6 as the result of a motor vehicle collision, leaving him with motor and cognitive deficits - he was 50 years old at the time of his murder and experienced speech difficulties and he was largely illiterate and innumerate and required daily assistance - he also struggled with alcoholism - he had been tied to a bed in his home and stabbed a number of times - evidence on sentence showed that the offender had suffered childhood trauma, domestic violence, alcohol abuse, illicit drug use including ice, heroin and cannabis and experienced unstable moods, leading to an assessment of Polysubstance Abuse Disorder, PTSD and Borderline Personality Disorder - held: objectively the gravity of the offence was very high - the deceased was a particularly vulnerable individual and the offender, who was Page 6
known to him, had been invited into his home and her actions constituted a most terrible breach of trust - while the offence occurred in the deceased s home that was not an aggravating factor - there was delay in entering the plea of guilty, but a discount of 10% allowed - the offender demonstrated remorse - the judge declined to find special circumstances (s44(2) Crimes (Sentencing Procedure) Act 1999), finding that in the circumstances no greater parole period than would ordinarily apply was required - sentence of 22 years 6 months, NPP 16 years 10 months imposed. [Editor s note: The application of s21a(2)(eb) Crimes (Sentencing Procedure ) Act 1999 is currently under consideration by a five judge bench of the NSW Court of Criminal Appeal. See also: R v Ingham [2011] NSWCCA 88; Melbom v R [2013] NSWCCA 210; Montero v R [2013] NSWCCA 214; Aktar v R [2015] NSWCCA 214; Erazo v R [2016] NSWCCA 139]. Pratsch DPP v Laban [2016] VSC 612 Supreme Court of Victoria Hollingworth J Criminal law - murder - sentence - offender, who had prior convictions for property related offences, but who had not served any period of imprisonment, with a history of heroin addiction and daily use of ice, brutally and ferociously attacked a stranger he encountered by chance - the attack involved kicking and punching the deceased who was lying helpless on the ground - the offender had consumed cannabis and ice before the attack - no evidence that offender was suffering from any mental illness or impairment - offender s son and supporters living in Australia - held: the attack, while spontaneous, was deliberate, protracted, brutal and entirely unprovoked upon an unarmed and defenceless man - plea of guilty at the first directions hearing demonstrating remorse, together with some recent conduct demonstrating remorse directly - knowledge that offender may be deported back to NZ likely to make imprisonment more burdensome - guarded prospects of rehabilitation - need for both specific and general deterrence, denunciation and just punishment - sentenced to 21 years, NPP 17 years. Laban Ashley v The Queen [2016] VSCA 245 Court of Appeal of Victoria Redlich, Weinberg & Hansen JJA Criminal law - conviction appeal - applicant pleaded not guilty to two offences alleging that in 2002 he committed an act of indecency with a child under 16 years under his care, supervision or authority (s49(1) Crimes Act 1958 (Vic)) - the complainant made a statement to police in 2013 - applicant was convicted of one charge and found not guilty on the other and was sentenced to 12 months imprisonment - appeal grounds alleged verdicts inconsistent, conviction unsafe and unsatisfactory and that the indictment was invalid as alleging an offence not known to law - held: the relevant count in the indictment alleged that the applicant committed an indecent act with a 16 year old child between dates in 2002 and then referred to the heading in the Crimes Act Indecent act with a 16 or 17 year old child contrary to s49(1) of the Crimes Act 1958 - in 2002, s49 required the child to be aged 16 years, but the section Page 7
was amended in 2006 to include a child aged 16 or 17 years - while the indictment was required to accurately identify the offence charged (s159(3)(c) Criminal Procedure Act 2009 (Vic)), s166 provides that an indictment is not invalid by reason only of a failure to comply with that requirement - here, the way in which the charge was particularised required the prosecution to establish that the child was 16 at the time of the alleged offence - the statement of the offence was incorrect as it included the expression or 17, but in the absence of evidence, it could not be concluded that defence counsel was under any apprehension, or was misled - the inclusion of the words or 17 did not cause the trial to miscarry - the verdict on count 1 was not unsafe and unsatisfactory as the jury could not have had a reasonable doubt that the first incident occurred when the complainant was 16 - leave to appeal granted, appeal dismissed. Ashley DPP (Cth) v Thomas [2016] VSCA 237 Court of Appeal of Victoria Redlich, Santamaria & McLeish JJA Criminal law - Crown leniency appeal - sentences imposed (upon Thomas & Wu) for attempted possession and importation of methamphetamine - Thomas pleaded guilty to attempting to possess a commercial quantity of a border controlled drug (approximately 3.6kg of pure methamphetamine) contrary to ss 11.1(1), 307.5(1) Criminal Code 1995 (Cth) - he was sentenced to 5 years (NPP 3 years) - Wu pleaded guilty to importing a commercial quantity of a controlled drug (methamphetamine with a street value of between $2.97 million and $3.96 million) contrary to s 307.1(1) Criminal Code 1995 - he was sentenced to 6 years 6 months (NPP 3y 6m) - two appeal issues raised (1) whether a person who pleads guilty to a Commonwealth offence is entitled to a discount on sentence for the utilitarian benefit of the plea (see s16a(2)(g) Crimes Act 1914 (Cth)); (2) whether the sentences imposed were manifestly inadequate - held: [1] on the entitlement to a discount for the utilitarian benefit of a plea of guilty :s16a(2)(g) Crimes Act 1914 should be construed as requiring a sentencing court to allow a discount for the utilitarian benefit to the administration of justice for a plea of guilty - in some cases there may be a material difference between a discount for willingness to facilitate the course of justice and a discount for the utilitarian benefit - Cameron v The Queen ((2002) 209 CLR 339) was not concerned with a Commonwealth offence and did not consider the construction of s16a(2)(g) - R v Tyler ((2007) 173 A Crim R 458) and other intermediate appellate decisions that have not given a discount for the utilitarian benefit of the plea of guilty for Commonwealth offences should not be followed - a willingness to facilitate, or cooperate in the course of justice, is manifested by an offender s plea of guilty, which by its nature constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment and that willingness vindicates the course of justice and saves the community the expense of a trial - these considerations provide the primary basis for the discount for the plea - as a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest, or the absence of remorse - accordingly, s16a(2)(g) required the sentencing judge to take account of Page 8
the utilitarian benefit of the plea of guilty entered by each respondent - appeal ground 1 cannot be sustained; [2] on whether the sentences were manifestly inadequate: this ground does not depend upon the attribution of specific error (see Dinsdale v The Queen (2000) 202 CLR 321; DPP v Terrick (2009) 24 VR 457) - comparable cases serve to provide guidance as to the identification and application of relevant sentencing principles and they yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence (R v Pham (2015) 325 ALR 400) - if a table or schedule of comparable cases is to be employed, it is essential that the contents offer considerably more than numerical information about sentences in past cases (duty of prosecutor to assist the court and Commonwealth Crown s duty to conduct itself as a model litigant, referred to) - propositions applicable to sentencing for drug importation offences considered [192] 205 A Crim R 106) - an examination of comparable decisions demonstrates that the sentences imposed were manifestly inadequate - considering the residual discretion, no sufficient reason having been advanced as to why the court should decline to intervene, each respondent resentenced: Thomas - 9 years, NPP 6 years 3 months; Wu - 10 years 6 months, NPP 7 years 6 months. Thomas Kim v The Queen [2016] VSCA 238 Court of Appeal of Victoria Redlich, Santamaria & McLeish JJA Criminal law - Mae Ja Kim, who was not a licensed sex worker and was prohibited from deriving a material benefit from the earnings of sex workers (s10, Sex Work Act 1994 (Vic)), provided sex workers to various brothels, taking a percentage of the monies paid to the workers - the applicants (Kim & Fang) assisted her in dealing with these monies - they pleaded guilty to aiding and abetting dealing with the proceeds of crime worth $50,000 or more (s400.5(1) Criminal Code 1995 (Cth)) - Kim was sentenced to an effective term of 3 years 2 months (NPP 2 years) and Fang to 3 years 8 months (NPP 2years 3months) - various grounds of appeal were raised - one ground argued that the sentencing judge erred in his approach to whether a discount was appropriate for the utilitarian value of pleas of guilty - other grounds raised issues of parity and manifest excess - held: these applications were heard shortly after argument in the Crown appeals in Thomas (see DPP (Cth) v Thomas ([2016] VSCA 237) - for the reasons given in Thomas the applicants were entitled to reduced sentences by virtue of the utilitarian benefit flowing from their pleas of guilty - no error disclosed in sentencing judge s approach to this issue - there is nothing in the sentencing reasons to support the inference that the judge failed to take into account the applicants lack of prior convictions - no marked or manifest disparity in their sentences demonstrated such as to give either a justifiable sense of grievance - in considering whether sentences for money laundering offences are manifestly excessive, reference to previous decisions, while offering no more than a broad indication of developing sentencing practice, are of assistance in identifying relevant principles - principles identified from authorities stated [61] - here the judge was satisfied the quantum of money involved was in the upper range of $50,000 to $100,000 and that the offending involved repeated, rather than isolated, acts - the sentences imposed have not been shown to be manifestly excessive - leave Page 9
to appeal granted - appeals dismissed. Kim Page 10
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