August 2021 - Recent Cases in Australian Criminal Law
A collection and summary of some of this month's interesting cases.
Welcome to the first edition of Recent Cases in Australian Criminal Law!
The idea behind the blog/newsletter is to collate and summarise interesting recent cases in Australian criminal law. We’ve tried to cover each jurisdiction and picked a few cases from each.
The cases are collated and summarised by @mchlftzgrld1977, @jeremy_gans, @fchralph, @BabbyUnit and @juliakretz.
The focus of the newsletter is mostly on cases from intermediate appellate courts and the High Court, though we will also including other interesting lower court decisions. We’ve taken a broad approach to what falls into the “criminal law” and we will include relevant judicial review matters, public law cases with a criminal touch, quasi-criminal matters, evidence judgments as well as sentence and conviction appeals.
Be mindful that many of these cases deal with difficult subject matters and serious crimes, so they can be difficult reading at times.
We will try to publish the previous month’s cases about mid-way through the current month, work/life allowing.
Enjoy the post and let us know what you think!
If you see an interesting case for September, you can let us know at: recentcasesincrimlawau@gmail.com.
You can also follow the account on Twitter: @AusCrimLawCases and let us know there.
And of course, subscribe to the newsletter!
Commonwealth
High Court of Australia
Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26. The High Court of Australia (Gageler, Gordon and Steward JJ and Edelman J; Kiefel CJ, Keane and Gleeson JJ dissenting) has held that recklessness, in s 17 of the Crimes Act 1958 (Vic) (which makes it an indictable offence to recklessly cause serious injury), requires that the accused foresaw that serious injury would probably result from the act or omission that caused it (Gageler, Gordon and Steward JJ at [51]–[59]; Edelman J at [65]–[66]). That interpretation of recklessness was established by the Victorian Court of Appeal in R v Campbell [1997] 2 VR 585. The majority held that this long-standing decision had been relied upon by the legislature and should continue to be followed. The majority declined to adopt the different interpretation of recklessness expressed in Aubrey v The Queen [2017] HCA 18, which held that, in a similar offence in New South Wales, recklessness required that the accused foresaw the possibility of the injury inflicted. A principal issue in the case was the extent to which the Victorian Parliament ought to be taken to have relied on Campbell in the enacting of various pieces of legislation.
R v Rolfe [2021] HCATrans 137. Gleeson J ordered a stay of the decision of the Full Court of the Supreme Court of the Northern Territory in The Queen v Rolfe (No 5) [2021] NTSCFC 6 (summary of that decision below). Her Honour said that the construction of s 148B of the Police Administration Act 1978 (NT) was a matter of great public importance and that the Crown had substantial prospects of obtaining a grant of special leave to appeal. On 10 September 2021, Kiefel CJ, Keane and Gleeson JJ referred the application for special leave for consideration by the Full Bench of the High Court and that the application will be a full argument, as on appeal.
New South Wales
Court of Criminal Appeal New South Wales
Ke v The Queen [2021] NSWCCA 177: The Court of Criminal Appeal (Brereton JA, Adamson and Bellew JJ) allowed an appeal against a sentence for the offence of recklessly dealing with proceeds of crime. The sentence of imprisonment 2 years and 3 months, with a non-parole period of 18 months, was imposed in circumstances where the prosecution had accepted the applicant’s offer to plead guilty to that offence prior to being committed for trial, but at that time the prosecution had been unwilling to accept the offer. The applicant had offered to plead guilty to that offence prior to being committed for trial, but at that time the prosecution had been unwilling to accept the offer. The offer was later accepted. Under the legislative ‘Early Appropriate Guilty Plea’ scheme, a guilty plea entered prior to committal for trial would have attracted a 25% reduction in sentence. Under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999, a timely plea offer ‘recorded in a negotiations document’ would, if ultimately accepted by the prosecution, result in the same discount. However, at the applicant’s plea hearing the sentencing judge was not informed of the pre-committal plea offer, and applied only a 10% reduction in accordance with the parties’ submissions. On appeal, the applicant submitted that her sentence was excessive by reference to ‘the real and substantive utilitarian value’ of the guilty plea: at [307]. In opposing the appeal, the Crown submitted that the pre-committal plea offer had not been ‘recorded in a negotiations document’ within the meaning of the Crimes (Sentencing Procedure) Act 1999. A ‘negotiations documents’ under s 25B of that Act is defined as a ‘case conference certificate … filed in committal proceedings’ or, following committal for trial, ‘any other document that records an offer’. The applicant’s pre-committal plea offer, which had been made by email, had not been recorded in the case conference certificate. However, s 75 of the Criminal Procedure Act 1986 (NSW) required that the case conference certificate contain ‘any offers’ made by the accused or prosecution. The intent of the Criminal Procedure Act 1986 (NSW) is that all pre-committal offers must be included in the case conference certificate: at [58]–[59], [338]. Brereton JA (Bellew and Adamson JJ concurring) held that the omission of the applicant’s plea offer was a mistake, and the idea that an accused should be disadvantaged by a mistaken omission should not be attributed to the legislature: at [62]. Therefore, s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 is to be construed as capturing an offer which was recorded, or was required to have been recorded, in a negotiations document: at [63], [339]. Accordingly, the applicant was entitled to a 25% reduction in sentence and error was demonstrated. The applicant was re-sentenced to imprisonment for 1 year and 10 months, with a non-parole period of 14 months.
Parker v The Queen [2021] NSWCCA 175: The Court of Criminal Appeal (Davies, Hamill and Wilson JJ) allowed an appeal against a sentence for multiple sexual offences of which the applicant had been found guilty by jury. The applicant was, at the time of the offending, foster carer to the complainant (who was aged between 11 and 13 at the time). The offending consisted of multiple charges of grooming, indecent assaults and acts of indecency, and one charge of aggravated sexual intercourse. An aggregate sentence of ten years (on the basis of indicative sentences for each charge), with a non-parole period of six years and six months, was imposed. The applicant appealed against sentence on the ground, inter alia, that the sentencing judge “erred in failing to assess the objective criminality of counts 2 to 11” on the indictment. Most of those counts carried standard non-parole periods. Davies J (with whom Hamill J agreed) held that the trial judge failed to separately assess, expressly or implicitly, the objective seriousness of all but the first charge on the indictment, with the result that the sentencing proceedings miscarried: at [113], [146]. The sentencing judge detailed a number of objective considerations with reference to the offending generally, but it was difficult to discern from that analysis where the individual offences (other than the first charge on the indictment) lay in the range of seriousness: at [113]–[114]. The applicant was therefore entitled to be re-sentenced. Wilson J, dissenting, found that there was no failure to assess the objective gravity of the offences for which the applicant faced sentence, and the failure to assign an individual label or place in a range of seriousness to each count did not denote a failure to make the assessment required: at [150]–[153].
GP (a pseudonym) v The Queen [2021] NSWCCA 180: The Court of Criminal Appeal (Brereton JA, N Adams and Cavanagh JJ)) allowed an appeal against a sentence for an offence of maintaining an unlawful sexual relationship with a child. The applicant had pleaded guilty and the original sentence – of 13 years and 6 months’ imprisonment, with a non-parole period of 9 years and 9 months – was imposed on the basis of agreed facts. As particularised, the applicant’s offence consisted of four specified acts of penile-vaginal intercourse. The agreed facts recorded that there had been ejaculation on one of the four occasions; on other occasions, the agreed facts stated that the complainant was uncertain as to whether ejaculation had occurred. Ejaculation was an aggravating circumstance of the offence and could only be taken into account adversely to the applicant if established beyond reasonable doubt: at [3], [54]–[55]. In his remarks on sentence, the sentencing judge had stated that the applicant ejaculated on some occasions. There was no evidence in the agreed facts to support a conclusion in those terms. The error was not an immaterial misstatement of the facts, as it had the capacity to affect the sentencing outcome: at [3], [70]–[72]. Cavanagh J (with whom Brereton JA and N Adams J agreed) held that the Court of Criminal Appeal was therefore required to resentence the applicant, whose sentence was reduced to 12 years’ imprisonment with a non-parole period of 8 years and 7 months.
Rossall v The Queen [2021] NSWCCA 200: The Court of Criminal Appeal (Bathurst CJ, Rothman and Garling JJ) allowed an appeal against an aggregate sentence of imprisonment for 2 years and 4 months, with a non-parole period of 14 months. The sentence had been imposed for offences of indecent assault and intimidation; an offence of common assault was taken into account on a Form 1. The sentence was appealed on the ground that a miscarriage of justice had resulted from the failure of the applicant’s legal representatives to obtain and present expert evidence on his mental health. On the plea, an unsworn statement by the applicant was tendered, and referred to the fact that the applicant’s parents had been murdered when he was aged 10 and he had turned to substance abuse later in life. A submission that he was ‘suffering some form of psychological disorder’ at the time of the offence, possibly a drug-induced psychosis, was advanced. On appeal, the applicant adduced two expert reports from a forensic psychologist. The reports diagnosed the applicant with Complex Post-Traumatic Stress Disorder, Persistent Depressive Disorder, and disorders related to substance abuse (in remission). The author’s opinion was that the primary disorders would have impaired his judgment and executive functioning to a very significant degree. The applicant’s solicitor knew of the applicant’s history of trauma and that he was psychologically disturbed at the time of the offending, but made a unilateral forensic decision that the applicant’s plea should focus on “the positive changes he was making” in his life. Garling J (with whom Bathurst CJ and Rothman J agreed) held that the applicant’s history was of obvious relevance to the sentencing proceedings, and the applicant’s case should have been adequately and properly presented to the sentencing judge: at [78], [86]. The material presented on appeal would have provided clear evidence of the applicant’s much reduced moral culpability, of his mental disorders having a compelling connection with his offending such that the role of general deterrence was much reduced, and of the likely impact of those disorders upon him whilst imprisoned: at [91]. The mere fact that more fulsome material could have been presented to a sentencing judge is not of itself and without more, sufficient to result in a successful appeal: at [87]. However, the absence of the material in this case had the result that the appellant’s sentencing process was significantly unfair to him and that a miscarriage of justice occurred: at [93]–[94]. The appellant was therefore entitled to be re-sentenced, and a new sentence of 1 year and 6 months’ imprisonment with a non-parole period of 9 months was imposed.
Azari v The Queen [2021] NSWCCA 199: The Court of Criminal Appeal (Bathurst CJ, Adamson and Bellew JJ)) dismissed an appeal against a sentence of 18 years’ imprisonment, with a non-parole period of 13 years and 6 months. The sentence related to two terrorism offences. In addition, the sentencing judge had taken into account two admitted offences pursuant to s 16BA of the Crimes Act 1914 (Cth). The admitted offences related to money transfers to the Islamic State group, and they were taken into account with respect to a charge offence which also related to terrorism funding. The applicant submitted that the sentencing judge had erred in the manner in which the admitted offences were taken into account, firstly, in referring to the need for retribution for the admitted offences, rather than for the principal offence; and secondly, by taking the admitted offences into account in the total sentence, when they had already been taken into account in fixing the sentence for the terrorism funding offence. In relation to the first argument, Adamson J (with whom Bathurst CJ and Bellew J agreed) found that the sentencing judge’s reference to “the community’s entitlement to extract retribution in the form of punishment for the admitted offence” (emphasis added) was a mere slip and not an error of principle: at [57]–[60]. In relation to the second argument, the sentencing judge had referred, when addressing the totality principle, to the fact that ‘a further two offences [were] to be taken into account’ in relation to one of the offences for which the applicant fell to be sentenced. Adamson J rejected the submission that this reference indicated error of principle or double-counting. The sentencing judge had taken the admitted offences into account when fixing the individual sentence for the funding offence. Therefore, that individual sentence already had built into it an unquantified uplift for the s 16BA offences. The principle of totality only affected the degree of concurrency or cumulation between the individual sentences for the charged offences, and there was no indication that the admitted offences were taken into account again or that there was any aspect of double-counting: at [62]. Leave to appeal was granted but the appeal dismissed.
Kelly v The Queen [2021] NSWCCA 205: The Court of Criminal Appeal (Macfarlan JA, RA Hulme and Wright JJ) dismissed an appeal against a sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 1 years and 9 months. That sentence related to an offence of aggravated ‘carjacking’ (assault upon a person in possession of a motor vehicle with intent to take and drive the motor vehicle). At the time, the applicant was on bail for domestic violence offences, and was sentenced to imprisonment for those offences prior to his sentencing for the carjacking offence. In order to take into account the totality principle, the sentencing judge ordered that the subsequent sentence be backdated to commence six months after the sentence for the domestic violence offences. The applicant sought leave to appeal on the ground that the sentencing judge had erred in taking into account the breach of bail when assessing the objective seriousness of the carjacking offence, for the purposes of applying the standard non-parole period for the offence pursuant to ss 54A to 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge had stated, in the remarks on sentence, that the breach of conditional liberty was an aggravating factor. Conditional liberty is a subjective factor, irrelevant to the assessment of objective seriousness: at [13]. The remarks on sentence disclosed that it had been taken into account in arriving at a finding that the offence was “just below the midrange of objective seriousness”. However, that finding was more favourable than the finding which had been sought by the applicant. RA Hulme J (with whom Macfarlan J and Wright J agreed) therefore upheld the ground of appeal, and determined that the applicant was entitled to be re-sentenced, despite “misgivings about the necessity to do so”, as well as misgivings about permitting the applicant to contend for a more favourable finding as to objective seriousness than he had submitted should be made in the sentencing proceedings: at [16], [18]. In re-sentencing, RA Hulme J concluded that the offence was in the midrange of objective seriousness and that a sentence at least as much as that imposed by the sentencing judge was appropriate. It therefore dismissed the appeal.
Hunt v The Queen [2021] NSWCCA 192: The Court of Criminal Appeal (McCallum JA, Rothman and Wright JJ) allowed an appeal against an aggregate sentence of 11 years’ imprisonment for sexual and domestic violence offences. One ground of appeal alleged error in the sentencing judge’s approach to a period of pre-sentence custody. The applicant had been arrested for the offences in June 2017 and granted bail in March 2018. He was found guilty a jury and remanded in custody following his trial in October 2019. Sentence was passed in July 2020. The sentencing judge took the approach of backdating the sentence to October 2019, under s 24(1)(a) of the Crimes (Sentencing Procedure) Act (NSW); she then purported to “take into account” the first period of pre-sentence custody, from June 2017 to March 2018, when fixing the sentence. The sentencing judge gave no reasons for taking this approach. Wright J (with whom McCallum JA and Rothman J agreed) affirmed that the preferable course to adopt in order to give an offender credit for pre-sentence custody is to backdate the sentence by a period equivalent to the pre-sentence custody; and that this is so even where the pre-sentence custody is not continuous: at [29]. When pre-sentence custody is not taken into account by backdating, the sentencing judge should clearly state the reasons for doing so. Whether a failure to give reasons for not backdating a sentence establishes error depends on whether it can be determined that the relevant periods in custody have been taken into account: at [29]. There was no explicit explanation of how the applicant’s first period in custody had been taken into account, particularly in the context of an aggregate sentence involving the determination of indicative sentences and the application of the principle of totality: [30]–[34]. The absence of reasons meant that the Court of Appeal could not be satisfied that the first period of custody had been taken into account in accordance with the requirements of ss 24 and 47 of the Crimes (Sentencing Procedure) Act (NSW). Error was therefore established and the applicant was re-sentenced to an aggregate sentence of 9 years and 6 months’ imprisonment, with a non-parole period of 5 years and 8 months.
Parker v The Queen [2021] NSWCCA 175. The Court of Criminal Appeal (Davies, Hamill and Wilson JJ) dismissed an appeal in respect of child sexual offences. In respect of the defendant’s argument that the jury’s verdict was unsafe, Davies J observed that the complainant’s testimony was angry, contradictory in parts and conflicted, but that is expected of a 15-year-old trying to recall events three years earlier that may seem illogical to an adult (at [43]–[44]). Each judge separately held that the guilty verdict was open to the jury, with Davies J (at [92]) and Hamill J (at [144]) noting that evidence of a text conversation between the accused and the complainant about masturbating with a ‘plastic pussy’, which the accused did not convincingly explain, supported the general honesty and reliability of the complainant’s account.
Ke v The Queen [2021] NSWCCA 177. The Court of Criminal Appeal (Brereton JA and Adamson and Bellew JJ) refused leave to appeal a conviction in respect of a charge of recklessly dealing with proceeds of crime. The defendant had pleaded guilty to that charge in respect of baby milk powder she had received. In respect of her complaint that she had not known the powder was stolen and was told that it would suffice if she was aware of that possibility, the Court held that those things correctly described the offence she pleaded guilty to (at [43]). In respect of her complaints that her guilty plea was due to improper conduct by the prosecutor and her lawyer, the Court held that there was nothing improper about the Crown offering to accept the pleas as part of a package that included dropping charges against the defendant’s children (at [212]) and that there was no doubt that the plea was a voluntary one based on legal advice that she was likely to be convicted (at [45]).
Irmak v The Queen; Dagdanasar v The Queen [2021] NSWCCA 178. The Court of Criminal Appeal (Johnson, Wilson and Cavanagh JJ) dismissed an appeal against a conviction in respect of multiple charges of aggravated sexual intercourse without consent, including one conviction for recklessly causing actual bodily harm at the time of the sexual intercourse. The Court held that the prosecution was wrong to leave a variety of injuries suffered by the complainant (including to her frenulum and hymen) to the jury in a ‘nebulous way’ in respect of all the charges, as there could be no certainty that the jurors would agree that the same injury had been inflicted at the same time (at [148]–[150]). However, it found that the jury, by only convicting the defendant of recklessly causing actual bodily harm with respect to one count (of anal intercourse), had carefully considered the evidence on harm, including the complainant’s account of subsequent pain in her anus (at [151]). The Court also observed that the prosecution initially wrongly conflated the complainant’s lack of capacity to make a rational decision (due to intoxication) with a lack of consent (at [194); however, it found that the error was later corrected by both the prosecution and the trial judge, and that the evidence of lack of consent was overwhelming (at [196]–[199], [203]–[208]). Finally, the Court rejected complaints by both defendants concerning the mixed verdicts returned by the jury with respect to charges of acting in company (at [223], [225]).
Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184. The Court of Criminal Appeal (Hoeben CJ at CL and Bellew and Beech-Jones JJ) dismissed an appeal against conviction in respect of a charge of contravening a condition of a licence for taking water from the Darling River. The disputed issue was the flow in the river when the water was taken. The Court held that, despite the absence of direct evidence from the person who gauged the level of flow, the trial judge could find the level of flow beyond reasonable doubt by relying on expert evidence of the accuracy of the gauging process (at [157]–[163]). The Court also held that evidence about the gauging process was not governed by the opinion rule, fell within a presumption governing machine-produced business documents and did not require discretionary exclusion (at [175]–[196]). The Court rejected criticisms of the trial judge’s conclusion that that level of flow was established beyond reasonable doubt as a condition for the approval to take water from the river (at [214]–[223]).
Sakhra v The Queen [2021] NSWCCA 187. The Court of Criminal Appeal (Leeming JA and Wilson and Ierace J) allowed an appeal against conviction in respect of two charges of armed robbery. In respect of the defendant’s complaint that the jury’s conviction was unsafe, the Court observed that, given that there was no objective evidence linking the accused to the robberies and that eyewitnesses had failed to identify or implicate the accused, the case against the defendant rested on a prosecution witness who had pleaded guilty to being the driver at the series of robberies (at [87(1)]). The Court held that (at [87(2)–(4),(6)]), given that that witness was declared hostile after denying involvement at some of the robberies, was poorly interpreted at the trial, conceded that his memory was affected by drug use and gave inconsistent testimony, there was real doubt about the jury’s verdicts despite the jury’s advantages. The Court entered acquittals on both charges.
Rummukainen v The Queen [2021] NSWCCA 188. The Court of Criminal Appeal (Simpson AJA and N Adams J, Garling J dissenting) dismissed an appeal against conviction in respect of a charge of dangerous driving occasioning death. The defendant, whose car had crossed onto the wrong side of the road, had no memory of the incident and did not testify, but his counsel argued in closing that he may have made an innocent mistake or fallen asleep. The majority observed that a statutory provision allowing the prosecution to give a supplementary address after the defence’s closing address did not apply (as no new facts were asserted), so, the defence’s closing address was unfair to the prosecution and created difficulties for the trial judge (at [62]–[63]). The majority held that the trial judge correctly told the jury that there was no evidence to support defences of honest and reasonable mistake or involuntariness (at [41]–[59]]). The dissent held that the trial judge’s direction prevented the jury from considering whether there was a reasonable hypothesis consistent with the defendant’s innocence (at [75]).
Chia v Ku-ring-gai Council [2021] NSWCCA 189. The Court of Criminal Appeal (Hoeben CJ at CL and Harrison and Wilson JJ) allowed an appeal against conviction in respect of a charge of injuring preserved trees without consent. The issue is whether the defendant is vicariously liable for damage done by his contractors to 74 preserved trees. The trial judge found that, because the defendant had only directed the contractors to comply with a rule on vegetation clearing, he was vicariously liable for their breaches of other laws. The Court held that the trial judge had failed to consider whether the defendant’s instruction meant that he had also directed the contractors to comply with all relevant regulations and legislation, including the ban on injuring preserved trees without consent (at [72]). The Court ordered a retrial.
Turnbull v Office of Environment and Heritage [2021] NSWCCA 190. The Court of Criminal Appeal (Hoeben CJ at CL and Harrison J and Button J) dismissed an interlocutory appeal relating to a charge of illegal land clearing. The trial judge had refused to exclude evidence given by the defendant at an earlier civil injunction proceeding brought by the same prosecutor, where the defendant had responded to the prosecutor’s claim that he had cleared 506 hectares of land by arguing that he had only cleared 30 hectares. The Court held that the accusatorial principle did not prevent the prosecutor from using the defendant’s partial concession to support a charge of illegal land clearing, noting that Parliament had chosen to give the prosecutor dual civil and criminal roles, the prosecutor had acted in good faith in both proceedings and courts should be cautious about extending earlier rulings on the accusatorial principle (e.g. rulings staying civil proceedings until after criminal ones) (at [81]–[91]).
R v BA [2021] NSWCCA 191. The Court of Criminal Appeal (Brereton JA and Fullerton and Adamson JJ) allowed a Crown appeal against a directed acquittal in respect of a charge of break and enter. The trial judge had directed an acquittal on the basis that the defendant, although no longer living in the apartment he had broken into, was still on the lease and therefore had a right to enter it. Brereton JA and Fullerton J held that the charge of break and enter depended, not on whether the defendant breached his lease with the property’s owner, but rather whether his entry was contrary to the wishes of the property’s occupant (his former partner) (Brereton JA at [5]–[10], [21]–[30], Fullerton JA at [41]–[46]). By contrast, Adamson J held that a breach of the lease was required, but that the defendant’s use of force to break the apartment’s door sufficed (at [62]–[64]). Noting that there was a public interest in prosecuting the accused and providing general guidance on the issue the case raised, and that the incorrect directed acquittal had been requested by the defence, the Court unanimously ordered a retrial.
Waters v Secretary of the Attorney-General’s Department (Cth) [2021] NSWCCA 193. The Court of Criminal Appeal (Macfarlan JA and Davies and Beech-Jones JJ) dismissed an interlocutory appeal relating to charges of conspiracy to import and possess prohibited drugs. The trial judge had set aside parts of a subpoena from the defendant seeking documents from the respondent to support his argument that his extradition from Serbia was an abuse of process. The Court found, given the absence of evidence of any abuse of process, the subpoena was a ‘fishing expedition’ (at [54], [62]). Specifically, in relation to an argument that the substitution of conspiracy charges for importation charges breached the requirement of speciality, Davies J and Macfarlan JA held that the defence had not provided evidence of an abuse of process in relation to the Serbian court’s consideration of specialty (at [28]–[29]), while Beech-Jones J noted that the question of whether a subpoena could support an application under Australia’s provisions on speciality was not before the Court (at [61]).
Fuller v The Queen [2021] NSWCCA 194. The Court of Criminal Appeal (Johnson, Price and Davies JJ) refused leave to appeal a conviction in respect of a charge of murder. The defendant sought a retrial on the basis of an expert report that he had a mental illness at the time of the killing that could support a defence of diminished responsibility. The Court held that, because the expert report was primarily based on a new account of the killing from the defendant detailing an account the defendant had always believed but had not originally disclosed, the expert report was new (not fresh) evidence (at [138]–[166]). Noting various issues about the credibility of the accused’s new account, the Court found that the expert report did not cast the accused’s murder conviction into doubt.
El-Badawi v The Queen [2021] NSWCCA 196. The Court of Criminal Appeal (Hoeben CJ at CL and Campbell and Hamill JJ) dismissed an appeal against conviction in respect of a charge of wounding with intent to cause grievous bodily harm. Campbell and Hamill JJ each found that the jury ought to have concluded that the defendant may have believed he needed to shoot the complainant to stop the complainant attacking his sister; however, they held that, in light of other evidence including the alternatives available to the defendant, it was open to the jury to find that the prosecution had proved beyond reasonable doubt that the defendant’s belief was not a reasonable one in the circumstances (at [211]–[216]). Hoeben CJ at CL held that, in light of the defendant’s decision to arm himself ahead of a meeting to resolve a dispute between the defendant and the complainant, it was open to the jury to reject the defendant’s claim that he shot the complainant in order to defend his sister (at [182]–[184]).
Court of Appeal of New South Wales
Lunney v Director of Public Prosecutions [2021] NSWCA 186. The Court of Appeal (Meagher, White and McCallum JJA) dismissed a summons seeking a judicial review of the District Court’s dismissal of an appeal with respect to a charge of breaching a domestic violence order. The issue was whether the District Court, in conducting a rehearing based on the evidence before the Local Court, was required to review all of the evidence in order to form an independent view about the defendant’s guilt. The Court held that, because the defendant only argued in the District Court that his magistrate misstated the burden of proof and had failed to correctly determine whether the defendant acted in self-defence, the District Court was not otherwise required to review all of the evidence before the Local Court (Meagher JA at [4], McCallum JA at [44], White JA agreeing at [8]).
Victoria
Court of Appeal
Hinch (a pseudonym) v The Queen [2021] VSCA 214. The Court of Appeal (Priest, Beach and Emerton JJA) allowed a conviction appeal in respect of a charge of sexual penetration of a child under the age of 12. The issue was whether the evidence proved beyond a reasonable doubt that the appellant sexually penetrated the victim. The Court (on the urging of the DPP, with no objection by the appellant) viewed the VARE. Upon viewing the VARE, the Court found that the jury’s verdict of guilty was not open on the evidence (at [35]–[38]) and that the evidence of sexual penetration was ambiguous. The Court was however satisfied that there was an ‘abundant evidence’ that the appellant sexually touched the victim. In that circumstances, the Court substituted a verdict of guilty for sexual assault under s 277(1)(c) of the Criminal Procedure Act 2009 (Vic) (at [39]). The appellant was resentenced to 18 months’ imprisonment on each charge of sexual assault, with six months cumulation. The total effective sentence was 2 years’ imprisonment with a non-parole period of 12 months (at [43]).
Nguyen v The Queen [2021] VSCA 211. The Court of Appeal (Maxwell P and Sifris JA) dismissed a sentence appeal for cultivating a commercial quantity of cannabis. The appellant had been granted leave to appeal the sentence by Weinberg JA who said that there had been no case before the Court in recent times where the individual sentence was so high (at [42] of Weinberg JA’s judgment) and that he was troubled by the length of the sentence (at [44] of Weinberg JA’s judgment). The appellant had argued that his sentence was manifestly excessive on the basis of parity, the plea of guilty, the lack of prior convictions, probably deportation, isolation in jail and the confiscation of his lawfully acquired assets (see at [3]). There were 405 plants of cannabis that weighed 246 kilograms at one location and 81 plants weighing 40 kilograms at another location (combined weight of 286 kilograms). There was also a plea to two counts of theft of electricity – valued at $29,509.21 and $1,772.18. The Court of Appeal said that the sentence of 5 years and 6 months imprisonment for cultivating cannabis was not manifestly excessive (at [33]). The Court said the appellant was significantly involved with the offending, it took place for over 4 months at two separate locations, the amount of cannabis was towards the higher end of a commercial quantity and the motivation was for financial gain (at [30]–[33]). The Court of Appeal also noted that despite repeated indications from the Court that the sentences for commercial cultivation needed to increase, sentencing practice has remained basically unchanged (at [44]). The Court said that this case highlighted the problem with current sentencing practices (at [46]) and that the Director of Public Prosecutions should consider bringing appeals if ‘inadequate sentencing persists’ (at [48]).
Fariah, Farhan v The Queen [2021] VSCA 213. The Court of Appeal (Priest and Beach JJA) allowed an appeal on the basis that the sentencing judge erred in the application of s 5(2H)(e) of the Sentencing Act 1991 (Vic) (which outlines the exception to the mandatory sentencing provisions if there are ‘substantial and compelling circumstances that are exceptional and rare and justify’ not making an order for mandatory imprisonment). The Court of Appeal said that the sentencing judge erred in considering that the applicant bore an onus on the balance of probabilities to satisfy the court that there were substantial and compelling circumstances that are exceptional and rare (at [24]). The Court also said that the mere fact that some individual circumstances might be commonly encountered by sentencing judges does not by itself meant that they cannot be substantial and compelling circumstances that are exceptional and rare (at [25]). The Court also said that the overall sentence was manifestly excessive, having regard to the applicant’s youth, his deprived background, the early plea of guilty (entered during the pandemic), his prospects of rehabilitation, the threat of deportation and his family support (at [30]).
Matovic v The Queen [2021] VSCA 212. The Court of Appeal (Kyrou and McLeish JJA) allowed a sentence appeal on the basis that it was manifestly excessive. The applicant had been sentenced to a total effective sentence of 20 years and 6 months’ imprisonment on 2 indictments and in respect of two summary offences. The applicant was self-represented and brought the appeal on the sole ground that the orders for cumulation and the total effective sentence was manifestly excessive. The Court said that in cases where there are a large number of offences, the principle of totality is an ‘important safety valve to ensure that the overall sentence does not become disproportionate to the overall offending’ (at [55]). The Court said that the orders for cumulation exceeded the level of what was reasonably required to satisfy the punitive and mitigatory aspects of the sentence (at [58]) and said that the overall sentence was manifestly excessive (at [60]). The applicant was resentenced to 18 years’ imprisonment with a 14 year non-parole period (at [63]).
DPP v Kumas [2021] VSCA 215. The Court of Appeal (Maxwell P, T Forrest and Walker JJA) allowed a manifest inadequacy appeal in respect of a large commercial quantity of methylamphetamine and cocaine. The amount of drugs was 1.3777 kgs of methylamphetamine and 84.3 grams of cocaine (1.9 times a large commercial quantity). The respondent had been sentenced to a total effective sentence of 10 years’ imprisonment with a 6 year non-parole period for offences including trafficking in not less than a large commercial quantity, disposal of a traffickable quantity unregistered firearms, possessing firearms, possessing a drug of dependence. The Director of Public Prosecutions appealed each of the individual sentence for trafficking and firearms. The Court of Appeal considered Gregory v The Queen [2017] VSCA 151, where the Court said (at [98] of Gregory) that a sentence of double figures would have been intended by Parliament if the quantity approached the large commercial quantity threshold (at [38]). The Court noted that the amount in this case exceeded a large commercial quantity. The Court also referred to the offence having a ‘standard sentence’ of 16 years and the difficult task there exists for courts in respect of standard sentence offences where there is a quantitative threshold and where the quantity of drugs is central to determining the gravity of the offence (at [47]–[48]). Specific deterrence was also important in this case due to the respondents convictions for firearms offences, which were committed after he had been served with a Firearms Prohibition Order (at [52]–[56]), though the Court said care has to be taken in respect of double punishment (at [61]). The respondent was resentenced to a total effective sentence of 14 years’ imprisonment with a 10 year non-parole period. There was also a conviction appeal where charge 8 was described as ‘a charge of possessing anabolic and androgenic steroids’. The Court referred to Taylor v The Queen [2020] VSCA 50 at [78] where the Court held that steroids like that were ‘a class of drugs of dependence’ not a ‘drug of dependence’ (at [12]). Pursuant to s 165 of the Criminal Procedure Act 2009, the Court amended charge 8 to refer to the correct particulars (at [13]).
Stevens v The Queen [2021] VSCA 218. The Court of Appeal (Priest and Kennedy AJA) allowed an appeal on the basis that the original sentence was manifestly excessive. The appellant had pleaded guilty to offences including aggravated burglary, theft, contravening a prohibition order, obtaining property by deception, common assault and recklessly causing injury. He was sentenced to a total effective sentence of 10 years and 9 months’ imprisonment with a non parole period of 8 years and 4 months. The appellant had a number of relevant prior convictions. The appellant had an intellectual disability with an IQ of 60 (at [1]). Leave to appeal had been granted on the basis that the sentencing judge had failed to properly apply the principle of totality and that the sentence on each individual charge of aggravated burglary was manifestly excessive (at [6]). The Court said that in light of Veen [No 2] and Bugmy it was legitimate to take into account the factual circumstances of the prior offending (at [22]–[27]). The Court also referred to Muldrock and said that an intellectual disability will in most cases mean that an offender’s moral culpability be lessened, though not necessarily eliminated (at [31]) as well as moderate general and specific deterrence (at [32]). Although the Court considered the offences serious (at [34]–[35]), it said that when giving full weight to the appellant’s deprived background and intellectual disability it found that there was error in the original sentencing exercise (at [37]). The Court, referring to Veen [No 1] and Veen [No 2] also said that community protection can only operate within the confines of the principle of proportionality (at [40]). The Court found that the individual sentences were within range (at [41]), but that the orders for cumulation were not within range and produced a sentence that was manifestly excessive (at [42]–[43]). The appellant was resentenced to a total effective sentence of 9 years imprisonment with a 6 year non-parole period.
Alexander (a pseudonym) v The Queen [2021] VSCA 217. The Court of Appeal (Kyrou and McLeish JJA) granted leave to appeal and allowed an appeal on the basis that the original sentence was manifestly excessive. The applicant had previously been refused leave to appeal by Niall JA. At the time of the offending, a forensic psychiatrist gave evidence at the applicant’s plea and said that the applicant was in a ‘floridly disorganised psychotic state’ that was induced by methamphetamine (at [16]–[19]). The psychiatrist said in evidence that the applicant’s mental state meant that she did not have any insight or appreciation into how methamphetamine was contributing to her mental state and that she did not have any appreciation that what she was experiencing was abnormal (at [19]). In considering the manifest excess ground, the Court referred to Martin v The Queen [2007] VSCA 29 and how in some circumstances an offender’s drug induced psychosis might lessen their culpability, depending upon whether they had foreknowledge (at [43]). The sentencing judge had accepted that the appellant did not appreciate that her use of methamphetamine contributed to her psychotic state and in those circumstances the Court said that the sentencing considerations of denunciation, general deterrence and specific deterrence, played a small, if any, role in the exercise of the sentencing discretion (at [46]). The application of Verdins meant that the sentence imposed was wholly outside of the range of sentencing options reasonably open in this case (at [48]).
Kelly v The Queen [2021] VSCA 216. The Court of Appeal (Priest and Beach JA) dismissed an appeal even though the Court found that there had been a denial of procedural fairness. The appellant had pleaded guilty and after a plea in mitigation was held and the matter adjourned to a date to be fixed, with the appellant’s bail extended. In that time, the appellant travelled to Queensland to see his children and to make arrangement in respect of his business affairs. The sentencing court listed the matter with two days’ notice to the appellant, who could not get back to Victoria in time for the sentence. The travel to Queensland was not in breach of the appellant’s bail. The sentencing judge was displeased by this and when he sentenced the appellant took the travel to Queensland into account in determining the appellant’s prospects of rehabilitation. The Court of Appeal found that the appellant was denied procedural fairness with the sentencing judge making findings on acceptance of responsibility, insight and rehabilitation by reference to the appellant’s travel to Queensland (at [37]). However, the Court was not of the view that a different sentence should be imposed (at [38]–[40]).
Bufton v The Queen [2021] VSCA 228. The Court of Appeal (Priest, Kyrou and McLeish JJA) dismissed a conviction appeal. Leave to appeal had previously been granted by Maxwell P on the basis that the conviction was unsafe and unsatisfactory or cannot be supported by the evidence. The appellant also renewed her application for leave to appeal the sentence, which had previously been refused. The appellant had been convicted of murder, on the basis of hitting the deceased with her car. The appellant argued that the issue of causation had been withdrawn from the jury. The Court of Appeal said that aspects of the trial judge’s directions were dubious (at [36]) and conflated the issue of voluntariness of the driving versus the voluntariness of hitting the deceased with the car (at [39]). However, the Court of Appeal dismissed the conviction appeal because the trial judge made clear to the jury that the issue in the case was whether the act of running over the victim was an accident or deliberate (at [41]–[43]). The Court of Appeal also found that the verdict was not unsafe and unsatisfactory or could not be supported by the evidence (at [63]–[64], [66]–[68], [73], [74]–[75]). The Court of Appeal did allow the sentence appeal on the basis that the sentence imposed by the trial judge was manifestly excessive (at [85]) and resentenced the appellant.
Hutchison v The Queen [2021] VSCA 235. The Court of Appeal (Kyrou, Emerton and Sifris JA) dismissed a conviction appeal in respect of a charge of recklessly causing injury but allowed a sentence appeal. The appellant had previously been granted leave on the papers. The appellant argued that the sentencing judge had erred in convicting him of both the offence of recklessly exposing an emergency worker to risk and recklessly causing injury, which constituted impermissible double punishment. The Court of Appeal said that the conduct, while arising from the same reckless driving, was not a single inseparably act (at [55]). The Court also said that the elements of the offences were not the same, while there was an overlap, that overlap was not complete (at [56]). The Court also said the De Simoni, Newman and Turnbull did not prevent the sentencing judge from considering the injury when sentencing the appellant for the offence contrary to s 317AE of the Crimes Act and the separate offence of causing injury recklessly (at [77]). The Court of Appeal did find that the sentence imposed was manifestly excessive, when giving proper weight to the plea of guilty, youth, lack of prior convictions, remorse, hardship in custody, prospects of rehabilitation and reduced moral culpability (at [103]) and that it was not reasonably open for the sentencing judge to conclude that the appellant did not have an impaired mental state at the time of the offending (at [108]).
Lindsey v The Queen [2021] VSCA 230. The Court of Appeal (Maxwell P, Kyrou and Niall JJA) dismissed an interlocutory appeal on the basis that third party conversations were admissible. The Court allowed the review application and found that it was not reasonably open for the judge not to certify the decision. The Court agreed with the trial judge that there was “reasonable evidence” in accordance with s 87(1)(c) of the Evidence Act of the appellant’s participation in a criminal enterprise (at [36]–[50]). The Court said that when considering whether to certify a decision for an interlocutory appeal pursuant to s 295(3)(a) of the Criminal Procedure Act, there was only a single question that the judge needed to consider, ie whether the decision concerned the admissibility of evidence that, if ruled inadmissible, would substantially eliminate or weaken the prosecution case (at [54]).
Erickson (a pseudonym) v The Queen [2021] VSCA 234. The Court of Appeal (Kyrou, Niall and Emerton JJA) allowed an interlocutory appeal and ruled that particular tendency evidence was not admissible. The prosecution sought to rely on photographs for a tendency that the accused had a sexual interest in his step-daughter, however the photos had been lost and no copies had been made. The prosecution sought to call evidence of two witnesses to describe the photographs. The Court of Appeal said that the evidence about the photographs did not establish a strong sexual interest in the complainant (at [55]). The Court also said that the did not strongly support the allegations that he sexually assaulted his step-daughter and was not significantly probative (at [59]). The Court found that the probative value also did not substantially outweigh the prejudice (at [66]).
Ellis v The Queen [2021] VSCA 229. The Court of Appeal (Kennedy JA with whom Priest JA agreed) allowed a sentence appeal on the basis that the sentencing judge did not apply Bugmy v The Queen. Kennedy JA said that there was no reference to Bugmy in the sentencing remarks and the principles from Bugmy had to be considered on their own, quite apart from the principles in Verdins (at [63]).
Bolton v The Queen [2021] VSCA 237. The Court of Appeal (Kyrou and Kennedy JJA) granted leave to appeal a conviction out of time and allowed the appeal. The applicant had previously applied for leave to appeal, which was refused by Niall JA. The applicant sought to challenge one conviction of incest, on the basis that the evidence did not establish penetration. Although the Court of Appeal found the delay in filing the was inordinate and not satisfactorily accounted for (at [22]). The Court also said that the concession by the prosecution that the proposed ground was reasonably arguable was properly made (at [24]). However, the Court said despite the public interest in finality of criminal proceedings, this public interest had less force where it was common ground between the parties that if the applicant were successful a new trial would not be required (at [25]). The Court said it was a fundamental tenet of our criminal justice system that no person should be convicted unless the evidence established beyond a reasonable doubt and that what flows from that is an accused who has been convicted of an offence that could not be supported by the evidence was entitled to apply to the Court for an order expunging the wrongful conviction (at [26]). The Court granted an extension of time (at [27]) and granted leave to appeal (at [28]).
Abukar v The Queen [2021] VSCA 238. The Court of Appeal (Kyrou, McLeish and Emerton JJA) dismissed a conviction appeal. The applicants had been tried together with two other accused for murder and a jury was empanelled for all three. After the commencement of the trial, one of the accused pleaded guilty to the charge of manslaughter. The record of interview of that accused had already been played to the jury. The applicants applied for a discharge of the jury on the basis that the record of interview contained irrelevant matters in it which were highly prejudicial to them. The Court found that there was little substance to the aspects of prejudice that the applicants had argued existed due to the record of interview (at [100]–[108]). The Court also said that it was relevant that no severance application had been made on the basis of prejudice prior to the commencement of the trial (at [111]), nor sought any redactions to the record of interview of the co-accused (at [112]). The Court said that it would have been open to counsel to make the application pursuant to s 137 of the Evidence Act in respect of aspects of the record of interview (at [113]–[114]). The Court said that once one of the accused pleaded guilty, the trial did not become more unfair, but became fairer to the applicants (at [117]) and that by the time the jury began its deliberations the record of interview would have receded from the jury’s consciousness (at [121]).
Supreme Court of Victoria
Cotterill v Romanes [2021] VSC 498. Justice Niall found that directions made under the Public Health and Wellbeing Act were not invalid on the basis that the directions impermissibly burdened the implied freedom of political communication. The plaintiff received an infringement notice in September 2020 which alleged that she had been in breach of directions made under the Act. The plaintiff argued that at the time she was outside of her home she was both exercising and protesting and that the directions were ultra vires as they failed to provide a lawful means for a person to leave their premises and engage in political communication. Section 199 of the Act allows the Chief Health Officer (CHO) to authorise the exercise of certain powers. Section 200 of the Act outlines the particular emergency powers. Niall JA said that in order for the CHO to grant authorised officers the power to exercise emergency powers, the CHO must believe it is necessary to grant the authorisation in order to eliminate or reduce a serious risk to public health (at [53]). Niall JA said that s 200(1)(d) also required a reference to the state of mind of the authorised officer and whether the officer considered the giving of any particular direction was reasonably necessary to protect public health (at [55]). However, he said that ss 200(1)(a) to (c) did not require a reference to the state of mind of the authorised officer, that nothing in the Act said that the skills of the authorised officers must relate to health and that they may involve enforcement powers (at [56]). His Honour said that s 200(1)(b) should not be interpreted as requiring an authorised officer who restricted movement to first consider whether the restriction was reasonably necessary to protect public health by reducing or eliminating a serious risk to public health (at [57]). Niall JA said that directions which restricted leaving home for a permitted reason meant that the only purpose for which a person can leave their residence is for a permitted reason not a combination of a permitted and non-permitted reason (at [78]–[81]). Niall JA found that the plaintiff had standing, despite the infringement notice being withdrawn, because even without the infringement she was required to stay home due to the directions (at [132]–[143]). His Honour said that the principles relevant to the implied freedom of political communication must be applied to the statute, not the directions made under the Act (at [205]–[218]). In considering whether the Act impermissibly burdened the implied freedom of political communication, Niall JA applied the test from McLoy v New South Wales (2015) 257 CLR 178 (at [219]–[253]) and found that the provisions of the Act were valid (at [254]). His Honour also applied the test to the directions themselves (at [255]–[302] and found that the directions were also valid (at [303]).
Secretary to the Department of Justice and Community Safety v TA [2021] VSC 530. Justice Taylor refused an application for a supervision order under the Serious Offenders Act 2018. The Secretary argued that the respondent posed an unacceptable risk of committing a serious violence offence if a supervision order were not made. The Secretary sought a number of core conditions, including an intensive treatment and supervision condition that would have required the respondent to live at Rivergum Residential Treatment Centre. Taylor J said that the experience of one expert of 20 years’ in assessing violent (and sexual offenders) was neither more or less relevant to the 30 years’ forensic and clinical psychology experience (which included the assessment of violent offenders) of another expert (at [295]). That one expert report was peer reviewed was also of little relevance because the reviewer was not a party to the interview with the respondent, there was no evidence before the Court by which the peer review process could be evaluated and it was not clear if the peer reviewer read all of the documentation or just the report (at [296]). A 2012 assessment of the respondent when he was 22 years old was also not ‘highly corroborative’ of the respondent being a ‘high risk’ when the levels of maturity had the potential to significantly change between then and the respondent now, at the age of 30 years (at [297]). The evidence that the risk assessment tool used internally by corrective services was not recommended for clinical use, was not challenged (at [297]). The Court found that the evidence of the Secretary’s expert was at times ‘rigid and lacking in nuance’ (at [298]) and the basis of two of the opinions remained unclear (at [299]), although the preference of the respondent’s expert evidence did not mean that all of the expert evidence of the Secretary was rejected (at [300]). Ultimately in the circumstances, the Court was not persuaded that the Secretary had demonstrated a high degree of probability that the respondent was an unacceptable risk of committing serious violence offence if no supervision order were made (at [312]). Taylor J said that the intention of the Act cannot mean that the likelihood of a particular magnitude of harm is sufficient to mean that the risk of it occurring is unacceptable and that the decision to be made under s 14 of the Act is not to be made by reference to a generalised scale of offending (at [315]). The Court also said that an intensive treatment condition was effectively an order for detention (at [319]). Her Honour said that the evidence of the Secretary did not meet the threshold of satisfying the Court that this condition was necessary to reduce the risk of the respondent committing a serious violence offence and that less restrictive means of managing the risk had been tried and considered (at [320]–[321]).
Queensland
Court of Appeal
R v APP [2021] QCA 162. The Court of Appeal (Morrison and Bond JJA and Callaghan J) dismissed a conviction appeal where the appellant was convicted on judge alone trial from the Children's Court of Queensland. The appellant was convicted of two counts of indecent treatment of a child under 12 years. The appellant argued that there had not been a direction pursuant to s 21AW of the Evidence Act 1977 (Qld), which required the trial judge to give a direction, among other things, that the pre-recording of evidence was a routine practice and that the evidence could not be given greater or lesser weight because of that. Although it was accepted that the direction ought to have been given, the Court held that the proviso applied (Morrison JA at [52]–[53], Callaghan J at [84]–[96]). There was a DNA mixed profile found on complainant's underwear greater than 100 billion times that appellant is the contributor. The appellant argued that the trial judge had erred by accepting the DNA evidence as corroborative and not considering the alternative theory of DNA transference. Morrison JA (Bond JA and Callaghan J agreeing) said that there was no evidentiary basis upon which the conclusion of indirect transference could be confidently based (at [57]). Morrison JA (Bond JA and Callaghan J agreeing) also said that that the inconsistencies in the complainant’s evidence was not sufficient to reduce the probative value of the evidence and the convictions were not unsafe (at [75]–[77]).
R v Hawke [2021] QCA 179. The Court of Appeal (Sofronoff P and McMurdo JA and Applegarth J) allowed a sentence appeal on the basis that the sentence was manifestly excessive. The applicant was sentenced for drug charges to three years’ imprisonment with a non-parole period of 12 months. The applicant was an otherwise successful woman with three children, the youngest twelve. Her husband was injured and had no income protection, which resulted in mounting financial pressure and she started using ice. There was an early plea of guilty and significant steps towards rehabilitation. The plea occurred half-way through residential rehabilitation with COVID-19 delays and her counsel had asked for deferral of sentence part-heard to continue to engage with rehabilitation. The sentencing judge said that "it's too much methyl amphetamine...for me to accede [to] your submission". The Court referred to the use that can be made of comparable cases (Applegarth J at [94]–[113], Sofronoff P and McMurdo JA agreeing). Applegarth J said time served was appropriate. His Honour said that "A period of actual custody substantially less than 12 months was required in order to: (a) reflect in a tangible way the applicant's self-rehabilitation to a point where she was drug-free and well on the way to resuming life as a productive member of society; and (b) allow her to resume the residential rehabilitation program on which she had progressed or similar programs in the community" (at [119]). His Honour also said that the non-parole period should have been shorter (at [120]) and in the circumstances the sentence was manifestly excessive (at [121]).
R v Cooper [2021] QCA 169. The Court of Appeal (Morrison and Bond JJA and Callaghan J) dismissed a sentence appeal on the basis the sentence imposed was not manifestly excess. The applicant was convicted of one count of attempted arson. She was sentenced to 4 year’ imprisonment after pleading not guilty and being found guilty. The applicant was a woman in financial distress at the time of burning her own newsagency and the attempted arson occurred in a shopping centre. The majority concluded that the sentence was not manifestly excessive (at Morrison JA at [34], Bond JA at [51]–[56]). Callaghan J dissented and would have allowed the appeal on the basis that it was an attempted arson and he would have sentenced the applicant to three years’ imprisonment to be suspended after a period of 15 months with an operational period of three years (at [85]).
Western Australia
Court of Appeal
Rajakovic v The State of Western Australia [2020] WASCA 98. The Court of Appeal (Quinlan CJ, Mazza JA and Buss P) held by majority that there was a miscarriage of justice on appeal due to a failure on the part of the trial judge to outline to the jury the permissible (and impermissible) use of post-offence conduct. The trial was a circumstantial drug case involving firearm possession where Crown relied heavily on alleged “evidence of flight” where the appellant absconded on bail. There was a use of "data access orders" to obtain access to encrypted communications and the accused had at time of arrest placed his phone in a toilet bowl. The Court considered the relationship of data access orders to post offence conduct (at [109]). There was also DNA evidence found on a Stevens .243 Winchester bolt-action rifle, relating to secondary transfer and inadequate DNA exhibit handling procedures. The Court said the evidence of DNA expert not led at trial, and when not exculpatory, was unable to be used at the appeal (at [147]). While post-offence conduct can be used as evidence, the jury must be warned about how it can be used (at [86]). The post-offence conduct ground was enough to establish retrial (at [90]).
Nannup v The State of Western Australia [2021] WASCA 140. The Court of Appeal (Mazza JA, Mitchell JA and Beech JA) allowed a sentence appeal on the basis that the sentence imposed was manifestly excessive. An 18 year old was sentenced to a custodial sentence for an aggravated burglary. The Court examined Foetal Alcohol Spectrum Disorder ('FASD') as a mental impairment, referring to Krijestorac v The State of Western Australia (at [59]) and said that the apellant’s FASD and other mental impairments diminished moral culpability (at [65]). In resentencing the appellant, the court referred to Churnside at [74] where it was held that long term community protection may be promoted where arrangements in the community can offer a better prospect than imprisonment in breaking the cycle of offending which threatens to characterize the life of a young Aboriginal man with a significant mental impairment and disadvantaged background.
LNE v The State of Western Australia [2021] WASCA 146. The Court of Appeal (Buss P, Mazza JA and Beech JA) allowed a conviction appeal on the basis that the jury was misdirected as to other conduct evidence and as to the credibilty of the complainant. The trial was a sexual offence trial involving two minors whose credibility challenged by the accused. The trial judge had directed the jury that if they found the evidence of other conduct evidence truthful they could consider it along with all other evidence to decide if the State proved the charges. The Court said that that it was undesirable for a direction to include this, when it did not inform how the jury might use this evidence (at [21]). The trial judge also directed the jury that if they did not accept aspects of the complainants’ evidence this was not likely to influence the jury’s assessment of their credibility. This ground of appeal was conceded by the Crown, which the Court said was a proper concession (at [19]). The Court said that if the jury did not believe, or had doubt, about the credibility or reliability of the complainant’s evidence that was a matter that would properly be taken into account in considering the complainant’s specific allegations (at [19]). The Court said that because the second direction was about the jury’s evaluation of the complainants’ credibility, the proviso did not apply (at [20]) and a retrial was ordered.
South Australia
Court of Appeal - Criminal
Rigney v The Queen [2021] SASCA 74. The Court of Appeal (Kelly P, Doyle and Peek JJ) dismissed a conviction appeal for murder. The Court said that it was not clear that the abolition of the common law felony murder rule and the enactment of the statutory equivalent required that there be an offence which required violence as an element (Peek AJA at [94]–[97] with whom Kelly P agreed, Doyle J at [5]–[6], [10]). The Court also said that it was not necessary that in the case of joint criminal enterprise, that the accused must contemplate the that another party may perform an act which causes the death of another (Peek J at [124] with whom Kelly P agreed, Doyle J at [10]–[18]). The Court also dismissed grounds of appeal that the trial judge erred in refusing a discharge of the jury and in allowing a witness to give evidence via CCTV link.
Measures v The Queen [2021] SASCA 82. The Court of Appeal (Livesey and Bleby JJ) allowed a sentence appeal on the basis it was manifestly excessive. The appellant had been sentenced to a term of 12 months’ imprisonment, reduced by 30% for the guilty to 8 months and one week’s imprisonment for a third offence of driving whilst disqualified. The Director of Public Prosecutions conceded that the sentence was manifestly excessive. The Court referred to relevant authorities, including Chilton, Nissen and Cadd (at [17]–[23]) and said that general deterrence was an important sentencing consideration when dealing with offences of driving whilst disqualified and that even for first time offenders this mean that imprisonment was appropriate (at [24]). The Court said that the length of the sentence must nevertheless be determined by the maximum penalty and the general course of authority (at [26]). The Court said that although the appellant had no compelling reason to drive and her disregard for the law mean that there were no grounds for leniency, the starting point of half of the available maximum was manifestly excessive (at [27]–[28]) and the appellant was resentenced to 10 weeks’ imprisonment reduced by 30% for the plea of guilty to 7 weeks’ imprisonment.
R v Kokotis [2021] SASCA 80. The Court of Appeal (Kelly P, Bleby JA and Blue AJA) allowed an appeal brought by the Director of Public Prosecutions against sentence. The respondent had pleaded guilty to an aggravated offence of threatening harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). It was agreed by the prosecution and accused that there were baseball bats used as offensive weapons but there was a dispute as to the whether the second weapon was a firearm. The sentencing judge viewed a video recording of the offence and concluded that he could not be satisfied beyond a reasonable doubt that the item in the respondent’s hand was a firearm. The DPP sought permission to appeal on the basis that the sentencing judge had failed to apply the definition of “imitation firearm” in s 5 of the Act. The Court said that it was satisfied that the sentencing judge did not apply the definition of “imitation firearm” when considering the evidence (at [58]–[71]). The matter was remitted to the District Court for resentencing.
Tasmania
Supreme Court of Tasmania
Tasmania v Taylor [2021] TASSC 39. The Supreme Court of Tasmania (Wood J) considered whether s 110A of the Firearms Act 1996 (Tas) contained a rebuttable presumption as to trafficking. Her Honour considered the relevant authorities and said that they highlight that whether a provision, which appears deeming on its face, creates a rebuttable presumption is a matter of statutory construction and examination of the legislature’s intention (at [21]). Wood J considered the section’s words as well as legislative history (at [23]–[48]) and concluded that the provision did create a rebuttable presumption (at [49]). The plea of guilty entered was vacated and a plea of not guilty was entered, with submissions being invited as to how the matter should be disposed of.
Australian Capital Territory
Court of Appeal
Evans v The Queen [2021] ACTCA 19. The Court of Appeal (Mossop and Thawley JJ, Refshauge AJ) allowed a sentence appeal on the basis that the sentence imposed was manifestly excessive. The appellant had been sentenced along with a co-offender. The co-offender appealed her sentence on the basis that the sentencing judge made a finding that the two co-accused had made an arrangement prior to arriving at the place of the offending: Stott v The Queen [2021] ACTCA 18. In the co-accused’s case, the Court of Appeal held that there was no evidence for the finding made by the sentencing judge. The appellant in this case was unrepresented at the time of filing the notice of appeal and at the hearing of the appeal. The Crown accepted that the same error had occurred in the appellant’s case, with which the Court of Appeal agreed (at [17]) and resentenced the appellant.
Supreme Court of the ACT
R v Page [2021] ACTSC 207. The Supreme Court of the Australian Capital Territory (Burns J) sentenced an offender to two years’ imprisonment (wholly suspended) and a Good Behaviour Order on a charge of maintaining a sexual relationship with a young person (to which the offender pleaded guilty). The victim was 15 and the offender was 19, and the offending took place over a period of about 9 months, while the victim and offender were in a relationship. The Court described that as a relationship in which “[the offender] had a degree of genuine affection for the victim and she also had a degree of affection for [the offender”], and one in which “there is little to suggest manipulation or predatory conduct” (at [23]). The offending resulted in the victim becoming pregnant and giving birth. The Crown alleged, as a circumstance of aggravation, that one instance of sexual intercourse occurred without the victim’s consent. This was disputed by the offender, and the Court was unable to be satisfied that the circumstance was made out, having regard to contemporaneous communications between the victim and the offender (at [9]).
R v Whittaker [2021] ACTSC 189. The Supreme Court of the Australian Capital Territory (Murrell CJ) sentenced an offender for various sexual offences involving sexual and indecent acts with children; the production, possession and transmission of child exploitation material; and failure to store firearms properly. It was submitted that the offender was entitled to a sentencing discount for cooperating with law enforcement authorities by providing passwords that enabled access to the child exploitation material (at [95]). The Court held (at [96]) that no such entitlement arose because the offender was legally required to provide the passwords, drawing an analogy with Will v The Queen (No 2) [2021] ACTCA 14 in which providing material pursuant to a subpoena was similarly held not to give rise to an entitlement to a discount.
Northern Territory
Full Court of the Supreme Court of the Northern Territory
The Queen v Rolfe (No 5) [2021] NTSCFC 6. The Full Court of the Supreme Court of the Northern Territory (Southwood, Kelly and Blokland JJ; Mildren and Hiley AJJ) answered a series of questions referred to the Full Court by Mildren AJ in advance of a trial of a Northern Territory police officer on a charge of murder for shooting a young Aboriginal man. The questions concerned (1) statutory provisions that provide protection against civil and criminal liability for police officers for various acts; (2) the defence of self-defence under the Criminal Code 1983 (NT); and (3) the defence of reasonable conduct under the Criminal Code. A further question (4) was later referred as to whether the accused has a defence under s 148B of the Police Administration Act 1978 available to him, which states that “a person was not civilly or criminally liable for an act done by the person in good faith in the exercise of a power or performance of a function under the Act”. The questions concerned, among other things, whether and how the various statutory defences affected each other, what needed to be proved for each, and whether various of them are available and arise for the jury’s consideration. There was a preliminary question, where the defence had argued that with the exception of question 1, the Full Court should not answer the other questions as they involved a factual dispute (Southwood J and Mildren AJ at [22]). This issue was determined by both parties agreeing that the answer to questions 1 and 2 was “no”. Southwood J and Mildren AJ said questions 3 and 4 could be answered (at [25]). Question 3 was redrafted by the Crown as whether it would be open for the jury to find that in firing the second and third shots, the accused was acting in the exercise or purported exercise of a power or performance of a function under the Police Administration Act so that the question of “good faith” under s 148B arises (at [99]). Southwood J and Mildren AJ answered question 3 as “yes” (at [100]–[127]) and question 4 as “yes” (at [128]–[141]), so that the defence of “good faith” under s 148B arose in the circumstances of the case. Kelly, Blokland and Hiley JJ answered question 3 by saying that the protection of s 148B applied to the performance of functions under s 5 of the Police Administration Act and that it was reasonably possible that the accused was performing, exercising and/or purporting to exercise a power and that he was doing so in good faith (at [204]). Kelly, Blokland and Hiley JJ answered question 4 as “yes” so that the defence of good faith under s 148B of the Police Administration Act was available to the accused (at [233]).
Supreme Court of the Northern Territory
Courtney v Narjic [2021] NTSC 61. The Supreme Court of the Northern Territory (Grant CJ) allowed a Crown appeal against a sentence imposed by the Local Court of the Northern Territory for two aggravated assaults. Statutory provisions had required the Local Court to impose a minimum sentence of three months’ actual imprisonment unless satisfied the circumstances of the case were ‘exceptional’. The Local Court held that exceptional circumstances applied in this case for reasons that the Supreme Court described as “[t]he combination of youth, a modest criminal history, compliance with bail and the possibility of rehabilitation” (at [14]). The Supreme Court held that this does not “as a matter of law constitute ‘exceptional circumstances’ in the relevant sense” because such circumstances are commonplace rather than being special or uncommon (at [14]).