October 2021 - Recent Cases in Australian Criminal Law
A collection and summary of some of October's interesting cases.
And we’re back! Does publication on 27 November mean that the October cases are still recent? We think so!
There are some very interesting decisions this month, including some interesting pronouncements of principle. There have been a lot of judgments in October to go through — seems like the Courts are ramping up their publication of judgments towards the end of the year, so that everyone is able to enjoy a nice break after another full on year!
Thank you again to @mchlftzgrld1977, @jeremy_gans, @fchralph, @BabbyUnit, Erik Dober and @juliakretz for collating and summarising this month’s judgments.
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When reading the post, please be mindful that many of these cases deal with difficult subject matters and serious crimes, so they can be difficult reading at times.
Commonwealth
High Court of Australia
Edwards v The Queen [2021] HCA 28.
A 5-member bench of the High Court (Kiefel CJ, Keane, Edelman, Steward and Gleeson JJ) unanimously dismissed an appeal against a decision of the Court of Criminal Appeal of NSW, dismissing an appeal against convictions on six counts of aggravated sexual intercourse with a person aged above 10 and under 14 years of age. The appeal had been brought on the basis that the verdict was affected by a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) because of inadequate disclosure of certain information by the prosecution before trial.
When the appellant was arrested, police seized his mobile phone and made a copy of the data on it. Section 141 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) requires the prosecution “to give notice of the prosecution case to the accused person”. Section 142 of the CPA specifies what “the prosecution’s notice is to contain”. The extracted data was not contained in the notice.
The majority (Kiefel CJ, Keane and Gleeson JJ) noted (at [23]) that these provisions were not the sole source of the prosecutor’s obligation to disclose, but observed that it would have been good practice to disclose the data in this case. Nevertheless, the majority held (at [25], [27] and [29]) that the failure to disclose the data did not contravene s 141 because it was not a kind of information specified in s 142; specifically, the appellant had not identified how anything in the data could “reasonably be regarded as relevant to the prosecution case or the defence case” or be “relevant to the reliability” of the complainant. The majority further held (at [30]) that late delivery of a related statement may have contravened the provisions but “it has not been shown that the fairness of the appellant’s trial was thereby prejudiced.” Finally, the majority noted (at [31]) that because the defence had already been put on notice by an earlier supplied exhibit list, that the prosecution had the data, the defence could have called for production of it.
The minority (Edelman and Steward JJ) held (at [73]) that the failure to contain the data in the notice contravened s 141(1)(a) because s 142(1)(i) required disclosure of “a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person”. However, the minority held (at [35]) that there had been no miscarriage of justice because the appellant had not identified anything in the data that “was capable of providing the defence with any advantage at trial”.
New South Wales
Court of Criminal Appeal
Conviction
Khorami v The Queen; R v Khorami [2021] NSWCCA 228.
The Court of Criminal Appeal (Bell P, Johnson J and Cavanagh J) dismissed an appeal against convictions for aggravated indecent assault. Each judge (at [11], [258] & [426]) rejected the defendant’s argument that ten of his nineteen convictions were unsafe due to the uncertainties of CCTV footage of those incidents, after carefully reviewing and being taken through that footage in court.
Bell P (at [7]) and Johnson J (at [203]) noted that tendency evidence had substantial work to do in this case due to the close proximity of the defendant’s acts (including unchallenged convictions) over a six week period, so it was important not to allow a focus on the CCTV evidence to minimise the other evidence.
Mura v The Queen [2021] NSWCCA 240.
The Court of Criminal Appeal (Macfarlan JA, Davies J and Beech-Jones J) dismissed an appeal against convictions for participating in child prostitution. The Court rejected the defendant’s arguments that each conviction was unsafe.
In respect of his argument that one child had retracted her claim to have told him her age when she was cross-examined, the Court found (at [44]) that she was simply confused about which conversation she was asked about. In respect of his argument that the second child had testified that she told the defendant a false age (younger than her actual age), the Court found (at [50]-[51]) that the discrepancy did not give rise to a doubt about her evidence.
Finally, the Court held (at [57]) that the trial judge could rely on evidence that one child told the accused her age after some instances of prositution to infer that he was aware of her age before then (citing Heydon’s Cross on Evidence on ‘retrospectant evidence’), also noting (at [58]) that the conversation could be considered alongside evidence (derived from the other count) that the defendant had a tendency to engage in prostitution with minors.
Hughes v The Queen [2021] NSWCCA 238.
The Court of Criminal Appeal (Payne JA, Wilson J and Fagan J) dismissed an appeal against a rolled-up conviction for obtaining financial advantage by deception, holding that the statement of facts tendered at sentencing after the defendant’s guilty plea, which described her making false statements into accounting software over a period of time while misappropriating funds, was compatible with her guilt..
Payne J observed (at [25]) that, because a guilty plea is an admission of all elements of an offence, a court cannot draw inferences from a statement of facts that is compatible with guilt to determine whether or not the defendant actually was guilty.
Payne J and Fagan J held (at [37]–[39] and [66]) that the statement of facts was capable of supporting the element of causation as the false statements into the accounting software may have preceded each instance of misappropriation, true statements in that software would have led to the misappropriations being detected and those statements were not her only fraudulent conduct. Payne J also held (at [48] & [50]) that the statement of facts was capable of supporting the element of deception as there is no requirement for direct evidence that the defendant’s employers were actually deceived and the overwhelming inference was that they were.
Fagan J added (at [65]) that a defendant who has pled guilty cannot later insist on particulars of deception and causation and then argue that they are incapable of supporting the charge, observing (at [70]) that the appeal was unsatisfactory given the defendant’s clear acceptance when she pled guilty that she had dishonestly obtained large sums of money for seven years.
Shiv v The Queen [2021] NSWCCA 245.
The Court of Criminal Appeal (Leeming JA, Hamill J and Lonergan J) allowed an appeal against a conviction for sexual intercourse without consent, where the jury had acquitted the defendant of four other counts in relation to the same complainant on the same evening.
The Court rejected (at [4] and [149]) the defendant’s complaint that the trial judge directed his jurors that they ‘would have to’ (rather than ‘must’) consider doubts about the complainant’s credibility arising from one count when deciding other counts, as the difference was merely one of emphasis and expression.
The Court also held (at [120] and [123]) that the defendant’s conviction was consistent with acquittals on the first occurring count (as the jury could have accepted the complainant’s testimony while being left in doubt as to the defendant’s knowledge of her non-consent) and the final two occurring counts (as intervening events rendered those counts so unlikely that the jury may have accepted that the complainant was confused about timing.)
However, the Court held (at [124]-[132]) that the conviction (on a count involving cunnilingus) was inconsistent with the remaining acquittal (involving a count of sexual penetration minutes later) as the complainant gave unambiguous testimony of both, noting that the sole forensic difference between the counts (the absence of evidence of semen) was too inconclusive to distinguish them. At [136]-[141], the court noted that the jury’s inconsistent verdicts may have been due to them accepting that he committed an uncharged crime (his claim of consensual digital penetration in circumstances suggesting non-consent) and that the jury returned its conviction on the cunnilingus count while it was still undecided about the penetration count (a point raised by the court but not adopted by the parties.)
Finally, the Court commented (at [129]) on the difficulties of the trial, including divergent accounts from multiple witnesses three years after the events; the fact that most witnesses spoke Nepalese and were imperfectly translated; and the illegibility and lack of translation of significant social media messages (including a key word obscured by a camera flash), noting that the imperfections of the transcript made it difficult to assess the jury’s thinking.
Pratten v The Queen [2021] NSWCCA 251.
The Court of Criminal Appeal (Gleeson JA, Johnson J and Beech-Jones J) has dismissed an appeal against a conviction for the federal offence of dishonestly obtaining a financial advantage by deception.
The Court held (at [91]–[92], [111] and [137]) that the trial judge’s direction: made it clear that deception and dishonesty were separate elements of the offence; correctly told the jury to consider whether allowable deductions meant that undeclared income did not produce a financial advantage; and correctly directed the jury on the tax law relating to ‘income’.
The Court held (at [161], [178] and [184]) that the defendant was not prejudiced by a mid-trial change in the Crown’s characterisation of five initial payments that were undeclared; that the five payments were used as relationship and rebuttal evidence rather than tendency evidence; and that evidence that the payments weren’t declared as income disproved a possible argument that they were a source of the defendant’s wealth.
The Court held (at [217], [233] and [241]) that, although the defence was not ambushed by evidence that the tax office disagreed with the defendant’s assessments of his income; and that the trial judge’s direction that the tax office ‘has powers beyond those of mortal men’ included context that made it clear that the tax office’s view was irrelevant, the evidence should still have been excluded as irrelevant.
Finally, the Court held (at [278], [305]–[308] and [321])) that the prosecution did not have to prove beyond reasonable doubt that the defendant fully controlled two companies to prove that his control sufficed to establish the offence; that, putting aside the irrelevant evidence about the tax office assessment, it would not be dangerous to allow the convictions to stand; and that the strength of the Crown’s case meant that the incorrect admission of that evidence did not cause a substantial miscarriage of justice.
Sentence
Perry v The Queen [2021] NSWCCA 244.
The Court of Criminal Appeal (Bathurst CJ, Garling and Wright JJ) allowed an appeal against a sentence of four years’ imprisonment for the offence of reckless wounding. The appeal was allowed on the basis of manifest excess. The applicant also complained that the sentencing judge had breached the De Simoni principle, by taking into account facts that would have warranted a conviction for recklessly causing grievous bodily harm. The Agreed Facts on Sentence, the Crown Sentence Summary, and the applicant’s written submissions in the sentencing proceedings had been prepared on the basis that the applicant would plead guilty to the more serious offence. The errors had been brought to the sentencing judge’s attention at the beginning of the sentence hearing.
The applicant’s conduct had resulted in the victim suffering a scalp laceration, but also a large haematoma which required an emergency craniotomy. Wright J held that this brain injury went beyond wounding and amounted to grievous bodily harm, and therefore the Crown could not have relied, or asked the sentencing judge to rely, on that fact to render the applicant liable to a more serious penalty: at [58]-[59].
However, the sentencing judge was aware of the principle in De Simoni, took steps to rectify the problem created by the parties’ putting incorrect documentation before him: at [60]. In particular, the sentencing judge was entitled to take into account the brain injury as a collateral consequence of the wounding; and was entitled to use all of the injuries suffered by the victim to assess the seriousness of the wounding: at [60].
Zreika v The Queen [2021] NSWCCA 243.
The Court of Criminal Appeal (Bell P, Price and Hamilton JJ) allowed an appeal against an aggregate sentence for the offences of dangerous driving causing death and dangerous driving causing grievous bodily harm. The Court unanimously found that the sentencing judge had erred in assessing the objective seriousness of the offences, by taking into account matters personal to the applicant.
In particular, the fact that the applicant’s driving licence was suspended at the time of the offences was not properly taken into account as part of the assessment of objective seriousness, as it was not causative of or related to the applicant’s driving: [55]. Although the applicant’s licence suspension may have had some relevance in the sentencing process, and may have factored into general moral culpability, it did not bear on the objective seriousness of the offence: [53]. The applicant was therefore entitled to be resentenced.
Pham v The Queen [2021] NSWCCA 234.
The Court of Criminal Appeal (Beech-Jones CJ at CL, RA Hulme and Wilson JJ) allowed an appeal against a sentence of 6 years’ imprisonment with a non-parole period of 4 years, for the offences of supplying a prohibited drug and possessing a prohibited weapon. The applicant had pleaded guilty to those offences, and two further offences had been taken into account on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
However, the procedural requirements for taking further offences into account had not been complied with. In particular, the Form 1 misdescribed one of the further offences as possession of methamphetamine; and the Agreed Facts on Sentence stated that the methamphetamine offence was one of supply, not possession.
Additionally, the sentencing judge had not asked the applicant personally whether he wanted any further offences taken into account, as required by s 33(1). RA Hulme J also noted that the Form 1 purported to have been signed by the applicant on a date on which he had appeared by audio-visual link. English was also not the applicant’s first language.
In the circumstances, RA Hulme J held that there was a doubt whether the applicant himself understood what the judge was being asked to do: [30]. It was therefore no answer to say that there had been compliance, in substance, by the conduct of his counsel, and RA Hulme J noted that the requirement to question the offender personally is expressed more strictly in the NSW provision (’is to ask’) than in s 16BA of the Crimes Act 1914 (Cth) (‘may ask’): [28].
Although he upheld a ground of appeal complaining that the aggregate sentence was manifestly excessive, the errors in the Form 1 procedure meant that the matter had to be remitted to the District Court.
Chartres-Abbott v The Queen [2021] NSWCCA 239.
The Court of Criminal Appeal (Brereton JA, Campbell and Hamill JJ) allowed an appeal against an aggregate sentence of 14 years’ imprisonment with a non-parole period of 8 years and 6 months, for large commercial drug supply and firearms offences. The Court upheld a complaint that the aggregate sentence was manifestly excessive. After considering the principles applicable to manifest excess appeals against aggregate sentences, the Court held that it was reasonable to proceed on the basis that the ‘starting point’ sentence, but for the applicant’s plea of guilty, was in the order of 18 years and 8 months: [23].
Comparable cases indicated that substantially shorter sentences had been imposed in matters involving similar quantities of drugs, and that shorter sentences had been imposed in matters involving quantities many times larger than the amount supplied by the applicant. The process of instinctive synthesis must be informed by an awareness of sentences imposed in like cases; otherwise it would be entirely idiosyncratic: [31]. The complaint of manifest excess was upheld and the applicant was resentenced to 10 years’ imprisonment, with a non-parole period of 6 years.
Abbas Elzein v The Queen; Ahmad Elzein v The Queen; Bilal Doughan v The Queen [2021] NSWCCA 246.
The Court of Criminal Appeal (Bell P, Walton and Bellew JJ) allowed appeals against sentence brought by two participants in a tobacco importation enterprise. A third appeal was dismissed.
The applicant Doughan complained that the sentencing judge had erred in refusing to make an intensive correction order (‘ICO’), and in failing to consider the matters in s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Doughan’s counsel had submitted specifically that an ICO should be imposed, but the reasons for sentence did not address the submission or the matters in s 66 (although the same sentencing judge had made an ICO in the case of two co-offenders). Bellew J distinguished Mourtada [2021] NSWCCA 211, on the basis that a specific submission in support of an ICO had been made in this case, and therefore the sentencing judge was obliged to engage with that submission (which required consideration of s 66) and express a conclusion in relation to it: [325].
The obligation to consider making an ICO may be enlivened where a cogent argument is advanced for taking that course: [326]. Error was made out, as the reasons for sentence made no reference at all to the submission that an ICO should be made: [328].
The applicants Abbas Elzein and Ahmad Elzein complained that the sentencing judge had failed to take into account their prospects of rehabilitation. Each of them had relied on evidence of a low risk of re-offending and each had made detailed submissions to the effect that his prospects of rehabilitation were favourable. The sentencing judge made no finding as to their prospects of rehabilitation.
The obligation to engage with submissions and reach a conclusion was not discharged simply by making reference to the evidence, nor by indicating that greater weight had been given to rehabilitation in the case of co-offenders who had “something to rehabilitate from”, such as an addiction: [235]. Consideration of rehabilitation is not confined to rehabilitation from (for example) a drug addiction. It necessarily extends to rehabilitation from the very criminality of which that offender stands to be sentenced, and the fact that an offender does not suffer from an addiction does not render his or her efforts at rehabilitation irrelevant: [236].
Error was made out, as the sentencing judge had not discharged the obligation to consider the submissions which had been made, reach a conclusion on the issue, and explain such conclusion as had been reached: [236]. After considering the re-sentencing of the three applicants, the Court dismissed the appeal of Abbas Elzein as it was not satisfied that a lesser sentence was warranted.
SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233.
The Court of Criminal Appeal (Beech-Jones CJ at CL, RA Hulme and Wilson JJ) allowed two appeals against orders of the District Court declining to award costs in favour of the appellant. In each case the appellant had successfully prosecuted the respondent for an offence under the Work Health and Safety Act 2011 (NSW). In each case, the District Court was informed that the appellant’s costs had been ‘agreed’ and orders for costs were not opposed, and the judge was aware that the liability to pay the prosecutor’s costs could be taken into account in determining the monetary penalty to impose on the respondent, particularly when there was evidence of limited capacity to pay such penalty.
In the Williams Timber case, the sentencing judge found that the respondent would have difficulty paying a fine, and determined that costs should be waived in order to balance sentencing considerations against the respondent’s ‘somewhat limited capacity to pay’. In the Easy Fall Guttering case, the sentencing judge reasoned that the seriousness of the offence had to be reflected in the penalty imposed, and to reduce the fine significantly would not provide the appropriate level of specific and general deterrence; rather than reduce the fine, the judge declined to order costs.
The appellant complained that it had been denied procedural fairness, in that the sentencing judge declined to make orders agreed by the parties, without putting the appellant on notice that the sentencing court might depart from the agreed position.
Wilson J agreed that in each case the appellant had a reasonable expectation that a costs order would be made in the terms agreed: [30]-[33]. In the course of submissions, the sentencing judge had said nothing that indicated any uncertainty as to whether an order would in fact be made: [32]. Procedural fairness required that the judge warn the parties that she might depart from the agreed position, and invite them to provide any relevant evidence, and any submissions in support of or against such an order: [32].
The appellant further complained that the judge had misapprehended the function and purpose of a costs order by treating it as part of the punishment imposed upon the convicted defendant. Wilson J observed that, although it may feel like an additional punishment, a costs order under s 257B of the Criminal Procedure Act 1986 (NSW) is not made to penalise an offender; it is made to compensate the prosecuting authority for its legal expenses: [37]. Where capacity to pay is an issue, the correct approach is to reduce the fine to be paid by the offender, rather than to reduce the amount awarded as costs in favour of the prosecutor: [41].
Wilson J held that the sentencing judge had erred in using the refusal to make a costs order as a means of ameliorating penalty where there was evidence of limited capacity to pay; amelioration should have been delivered by mitigation of the fine, rather than waiver of costs: [45]. However, the Court exercised its residual discretion not to intervene, on the basis that it would be unfair to the respondents if they were ordered to pay costs without a corresponding amelioration of the fines imposed by the District Court: [54].
Victoria
Court of Appeal
Conviction
Tawfik v The Queen [2021] VSCA 289.
The Court of Appeal (McLeish and T Forrest JJA, Maxwell P agreeing) refused conviction appeals for co-offenders for conspiracy to import a commercial quantity of a border controlled drug, but allowed a sentence appeal on the ground of manifest excess.
Maxwell P summarised some of the relevant considerations in respect of parity and that consistency in sentencing was a matter of equal justice (at [5]–[13]). In particular, His Honour said that when it comes to considering parity, the equal justice principle is not concerned with immaterial factual consequences, but what is relevant is whether the cases are different in a relevant respect, or are relevantly identical (at [11], citing Wong v The Queen [2001] HCA 64). His Honour also said that parity considerations were not just matters for co-offenders but that every offender was entitled to equal justice and that comparable cases were the most effective means of ensuring the principle is complied with (at [14]).
In respect of the conviction appeal, McLeish and T Forrest JJA said that it was reasonably open for the jury to find that there was a conspiracy to import a commercial quantity of drugs, given that the applicants had conceded they agreed to import something that was carried by the relevant ship, which had boat contained 186 blocks of cocaine. They said this was no more than inferential reasoning (at [106]–[109). Their Honours also dismissed arguments that reasonable hypotheses consistent with innocence were not eliminated by the prosecution (at [110]–[141]).
The Court also dismissed grounds of appeal related to errors made by the prosecution in closing arguments (at [143]–[152]) and a purported error made by the trial judge in summing up (at [153]–[158]).
Tawfik had been sentenced by the trial judge to 25 years’ imprisonment with a non-parole period of 16 years and 9 months and Saputra had been sentenced to 18 years’ imprisonment with a non-parole period of 12 years. The Court said that the sentence imposed on Tawfik was manifestly excessive, having regard to comparable cases (at [198]–[214]) and that he was neither the ultimate purchaser nor the original supplier (at [217). He was resentenced to 20 years’ imprisonment with a non-parole period of 14 years (at [228]). The Court dismissed Saputra’s sentence appeal grounds (at [219]–[225]), however, as they allowed Tawfik’s sentence appeal, Saputra was also resentenced to 14 years’ imprisonment with a non-parole period of nine years and six months (at [228]).
Nichols (a pseudonym) v The Queen [2021] VSCA 273.
The Court of Appeal (Beach, Kaye and Macaulay JJA) allowed a conviction appeal for rape on the basis that a substantial miscarriage of justice occurred.
The applicant’s first ground of appeal was that there was a substantial miscarriage of justice because there was an unacceptable risk that the jury did not understand his evidence due to his language difficulties. The applicant accepted that the choice not to use an interpreter during the trial was a forensic one (at [50]). The Court dismissed this ground saying that there was a good forensic reason for his counsel not to use an interpreter and the trial had not been rendered unfair (at [58]). The Court did say that there were difficulties in understanding the applicant’s evidence and that it would have been preferable for the trial judge to invoke the power under s 355 of the Criminal Procedure Act 2009 (Vic) and required the provision of a competent interpreter, although it was not an error not to do so (at [59]).
The Court allowed the conviction appeal on the second ground that evidence of prior consistent statements was not led by the applicant’s trial counsel. The Court said the evidence was admissible under both s 66 and s 108 of the Evidence Act 2008 (Vic) (at [96]–[98]) and the evidence was not led due to a misunderstanding of the ruling by trial counsel (at [100]–[101]) and there was no rational forensic basis for the decision not to lead prior consistent statements (at [102].
The Court also said that a submission made by the trial prosecutor that there had been ‘extreme collusion’ between the applicant and a witness should not have been made and that it was not put to the applicant in cross-examination with the same force it was in the closing argument (at [108]. However, the Court said there was no objection was taken by trial counsel in respect of this and they would not have granted leave to appeal on this ground (at [109]).
The Court ordered a retrial.
Awad v The Queen [2021] VSCA 285.
The Court of Appeal (McLeish and Niall JJA, Priest JA dissenting) granted leave to appeal convictions for the offence of attempting to possess a commercial quantity of a border-controlled substance but dismissed the appeal.
A number of grounds of appeal were advanced by the applicants, with the main contentious ground being that the trial judge directed the jury in a way that breached s 44J of the Jury Directions Act 2015 (Vic).
McLeish and Niall JJA agreed with Priest JA that there was a clear contravention of s 44J by the trial judge (at [142]), but said that the impugned direction could not have been taken by the jury as an invitation to determine two possible alternatives - guilt or innocence, or that it recast the burden of proof (at [170]). McLeish and Niall JJA summarised some of the relevant principles in respect of whether a substantial miscarriage of justice has occurred and when the proviso applied (at [143]–[154]).
Priest JA, in dissent, summarised the common law position prior to the enactment of s 44J (at [58]–[64]) and the reasons for the enactment of s 44J (at [65]–[68]). His Honour said that a direction that a ‘guilty person might choose to tough out cross-examination’ was seriously problematic (at [69]), that it has the potential to undermine the presumption of innocence and onus of proof (at [70]), and that it is offensive to principle to confront the jury with two mutually exclusive categories of guilt and innocence (at [71]). His Honour said this kind of invitation may invite a jury to disbelieve an accused (at [72]). Priest JA would have allowed the appeal for both applicants on the ground that related to s 44J (at [84] and [88]).
Sentence
Barbaro v The Queen [2021] VSCA 277.
The Court of Appeal (Kaye and T Forrest JJA) allowed a sentence appeal for drug trafficking offences, on the basis that the sentencing judge failed to take into account the appellant’s dysfunctional upbringing and limited intellect as mitigating factors. In particular, the failure to mitigate the sentence for the process of ‘parentification’, by which a child implicitly takes on the role of parent because his or her parents cease to function as predictable and safe attachment figures. The appellant’s father was, himself, a convicted drug trafficker.
The appellant had been sentenced to a total effective term of 7 years and 10 months imprisonment for trafficking MDMA in a commercial quantity, and trafficking cannabis and methylamphetamine. He entered a plea of guilty to those charges, as well as firearm and proceeds of crime offences. The charges arose from a search warrant executed on the Appellant’s address during the course of an investigation into his father.
Evidence was led at the plea that the appellant was raised in a chronically dysfunctional household, where his father was a drug addict and suffered significant relationship issues with the appellant’s mother. The appellant had a close attachment to his father. He also had a limited intellectual capacity. These circumstances led him to self-medicate with cannabis and eventually amphetamines. The sentencing judge found that the appellant’s drug addiction, the effect of ‘parentification’, and his undiagnosed issues of depression did not diminish his moral culpability.
The Court of Appeal held that, in the circumstances of this case, the appellant’s dysfunctional and erratic upbringing, combined with his limited intellectual function, played a significant causative role in the appellant’s drug use and offending (at [58]). The Court applied the reasoning in Bugmy to conclude that the circumstances mitigated the appellant’s moral culpability for his offending (at [61], [64]).
In re-sentencing, the Court took into account that the appellant is, for medical reasons, not able to be vaccinated against COVID-19. As a result, while in the prison system (and afterwards), he will be more vulnerable to severe infection from the virus. The Court accepted that imprisonment would weigh more heavily on the appellant as a result (at [73]).
Sawyer v The Queen [2021] VSCA 282.
The Court of Appeal (Priest and T Forrest JJA) dismissed a sentence appeal that raised multiple grounds of specific error, including a ground that there was double punishment between a stalking offence and criminal damage offences against the same victim.
The appellant had been sentenced for offending spread across four indictments, with some matters being guilty pleas and others conviction by jury. On the first indictment, the appellant was sentenced for stalking one of his neighbours, as well as a series of criminal damage charges against that neighbour and the neighbour’s father.
One of the grounds of appeal was that there was double punishment as between the stalking charges and the criminal damage, which were part of the course of conduct constituting the stalking. While some particulars of the stalking constituted separate charges, others did not. There was not complete overlap (at [47]). While some of the physical elements of stalking and the criminal damage aligned, they were not the ‘same act’ within the meaning of s 51 of the Interpretation of Legislation Act 1958 because the intent element was different (in the case of stalking, the course of conduct must be to cause harm or apprehension) (at [55]). The Court held that stalking is an offence concerned with interfering with the victim’s mental state, whereas criminal damage is an interference with property rights (at [58]).
Jawahiri v The Queen; Eser v The Queen [2021] VSCA 287.
The Court (Priest and T Forrest JJA) upheld a sentence appeal for Eser, where the sentencing judge made a critical finding at odds with the agreed factual basis of the plea.
The victim walked to the rear of an apartment complex where the applicant and two co-offenders were loitering. The three offenders attacked the victim. One of the co-offenders produced a meat cleaver as he walked behind the other two men. He struck the victim five times. The applicant and other co-offender punched and kicked the victim. The victim sustained life threatening injuries.
It was controversial at the plea hearing when the applicant became aware that his co-offender possessed the meat cleaver. It was the basis of the resolution, however, that the applicant was not aware of it before that attack.
The sentencing judge expressed disapproval of this agreed factual basis at the hearing. The prosecutor maintained the position. Nonetheless, the sentencing judge found beyond reasonable doubt that the applicant knew of the meat cleaver before the fight started, and was party to an agreement to attack the victims in that knowledge.
The Court of Appeal considered the evidence that was before the sentencing judge, particularly CCTV footage. The Court did not find it was open to conclude that the applicant knew of the meat cleaver before the attack (at [59]). The CCTV footage was inconclusive, in their view. Since this was a critical sentencing fact, the ground was made out and the applicant fell to be resentenced (at [62]).
While it was not necessary for the Court to determine because of the conclusion it reached on the evidence, they added ‘this was not a case where the sentencing judge should have intervened in the agreed factual basis for the plea’ (at [63]).
The Court also made some observations at [73] in respect of the Bugmy principles.
Judicial Review
Patton v Mareangareu [2021] VSCA 295.
The Court of Appeal (Priest, McLeish and Kennedy JJA) granted leave to appeal the decision of an associate judge to grant relief to the respondent to have his application for reinstatement reconsidered and allowed the appeal.
The respondent had been a police officer for about nine years and held the rank of senior constable. While on duty, the respondent encountered two youths and as a result of an altercation with the youths was charged with intentionally causing injury, false imprisonment, attempt to pervert the course of justice and perjury. The other officer with whom he was on duty was charged with false imprisonment, attempt to pervert the course of justice and perjury. After a trial by jury, the respondent was convicted of common assault (as a purported alternative to intentionally cause injury), and attempt to pervert the course of justice, but was acquitted of all other charges. His co-accused was acquitted of all charges. On appeal to the Court of Appeal, the respondent was successful and had both his convictions quashed and verdicts of acquittal entered.
Following the successful appeal, the respondent sought to be reinstated as a police officer pursuant to s 136 of the Victoria Police Act 2013 (Vic), but the Chief Commissioner of Police’s delegate refused the application for reinstatement. The respondent sought judicial review of the decision in the trial division, where he was successful. The Chief Commissioner sought leave to appeal on the basis that the associate judge had erred in finding that in determining whether the respondent was of good character and reputation, the Chief Commissioner was not permitted to take into account any conduct which formed the basis of the criminal convictions that had been set aside.
The Court of Appeal said that s 136(3): does not provide for automatic reinstatement (at [61]); since reappointment is not automatic, it requires some action for it to occur and the power that is to be exercised is discretionary (at [62]); and the section does not simply clarify the Chief Commissioner’s powers otherwise at their disposal to reappoint a police officer (at [63]). The Court said that the power in s 136(3) was a broad discretionary power and was unfettered by the constraint identified by the associate judge (at [84]). The Chief Commissioner’s power to reappoint involves the exercise of a discretion and it permits that the subject matter of the charge that lead to the officer’s dismissal be considered (at [84]).
Interlocutory Appeal
Alfarsi (a pseudonym) v The Queen [2021] VSCA 283.
The Court of Appeal (Priest and Kaye JJA and Lasry AJA) allowed an interlocutory appeal in respect of ss 182 and 183 of the Criminal Procedure Act 2009 (Vic) and said that the defence response filed on behalf of an accused was adequate.
The applicant was facing a charge of murder in the Trial Division and the trial judge had ruled that neither the third or fourth defence responses were adequate and did not comply with s 183(2) of the Criminal Procedure Act.
The Court said that s 183(2) requires no more of an accused than to point out the facts, acts, matters and circumstances in the prosecution opening with which he or she disagrees and to provide a reason for that disagreement. However, the section does not require the accused to make any statement of positive fact in relation to any act, fact, matter or circumstance (at [31]). The Court said that on a sensible reading of the third defence response, it sufficiently pinpointed the matters that were in dispute by reference to the relevant paragraphs of the prosecution opening and by stating that the credibility of the main crown witness was in issue and that the accused was not criminally responsible for the death of the victim (at [32]).
Dun (a pseudonym) v The Queen [2021] VSCA 286.
The Court of Appeal (Walker JA, Maxwell P and Kaye JA agreeing) dismissed an interlocutory appeal on the basis that the refusal to sever charges of incest for two complainants was reasonably open.
The applicant had previously been convicted of the charges and his convictions were quashed on appeal on the basis that a substantial miscarriage of justice had occured.
Walker JA said that the trial judge was correct to consider the matter of severance afresh and not to rely on the comments made in the reasons of his earlier appeal (at [34]). Her Honour said that the fundamental question was whether a severance was required in order for an accused to have a fair trial and if a fair trial could not occur without severance, then it would not have been open for the trial judge to refuse the application for severance (at [36]).
Her Honour said it was open for the trial judge to refuse the severance and that any risk of impermissible tendency or coincidence reasoning would be dealt with by directions of the trial judge (at [40]–[57]).
Magistrates’ Court of Victoria
Victoria Police v Lewis [2021] VMC 13.
The Magistrates’ Court of Victoria (Magistrate Bryant) has held that a ‘veggie cannon, spud gun, fruit cannon or lemon bazooka’ are not firearms within the meaning of the Firearms Act 1996 (Vic).
The accused had been charged with two counts of possessing a Category E longarm and two additional counts of possessing a firearm whilst a prohibited person. The device in question was described as ‘two pieces of connected PVC pipe with one section of larger diameter being described as the combustion chamber, and the other of smaller diameter but longer in length being described as the barrel of the device’ at ([4]).
After summarising a the history of firearms briefly (at [28]–[32]), the use of organic material as a projectile (at [33]–[35]) and the history of regulation of firearms (at [36]–[39]), Magistrate Bryant found that the phrase ‘other missile’ in s 6 of the Firearms Act required the consideration if the object fell into the genus of shot or bullet (at [64]). This required asking (a) whether the object was sufficiently dense to be capable of causing death or real and appreciable harm; and (b) whether the object was capable of being discharged at a velocity commonly seen with a shot or bullet (at [64]). His Honour said that the Act did not intend to extend the meaning of the word missile to ‘any object’ that was capable of being discharged by the means of combustion or the expansion of gases (at [65]).
The charges against the accused were dismissed (at [66]) although the Magistrate warned that ‘[t]his decision should not be interpreted as a green light for the citizens of Victoria to arm themselves with these type of devices for any purpose’ and that the objects should, as a minimum, be categorised as ‘dangerous articles’ under the Control of Weapons Act 1990 (at [68]).
Queensland
Court of Appeal
Sentence
The Court of Appeal (Sofronoff P, Morrison JA and Flanagan J agreeing) allowed a sentence appeal of an appellant convicted of a home invasion involving multiple co-accused where the accused was armed with a machete.
The victim was injured and brutalised for 10 minutes, suffering (amongst other injuries) broken bones. The appellant was a 24-year-old man, with an unhappy childhood involving disadvantage from a broken home and drug abuse. He had lengthy criminal history involving incarceration, including a period of time on a Drug Supervision Order.
The appellant was sentenced to 8 years’ imprisonment with a non-parole of 4 years. The pre-sentence detention was declared incorrectly by the sentencing court below. The second limb of the appeal was that due to the constellation of disadvantage (including loss of a child during the course of a previous Drug Treatment Order) that the appellant should be given a chance on parole due to his age.
Sofronoff P agreed. He did not amend the head sentence but (a) amended the amount of pre-sentence detention to the correct amount; and (b) changed the non-parole period to “one third of the term of 8 years”.
Sofronoff P held that due to the mitigating circumstances, the applicant should be afforded a real opportunity to demonstrate his ability to build a life, which had been severely damaged by a drug to which he became addicted at an age at which he lacked the experience to know the seriousness of the danger posed to him by methylamphetamine. His Honour said the applicant had been the subject of an almost crushing series of sentences while still a very young man. Sofronoff P said that the actual presentence custody should be given full effect and the applicant should also be given the full benefit of his acknowledgement of his responsibility which he has shown by his pleas of guilty: at [14].
The Court of Appeal (Fraser JA, McMurdo JA and Mullins JA agreeing) refused an appeal against sentence for the offence of possessing a quantity of drugs.
The appellant was 30 years old at the time of the offending, without a criminal record (except for some speeding offences). He was a Canadian citizen who was caught with 3.2 grams of MDMA, 1.969 grams of cocaine, 2.115 of psilocybin mushrooms, 2 grams of cannabis and 58 millimetres of cannabinol oil. He possessed these drugs on his way to a music festival.
The appellant was sentenced to 18 months’ imprisonment on one count of possession of dangerous drugs in excess of two grams and concurrent terms of one month’s imprisonment for each other possession charge. He was immediately released on parole.
The appellant was sentenced on the fact that all the drugs were personal use with no indicia of trafficking. There were 17 months between the arrest and plea with nine urine tests in that time that showed he had not consumed drugs. The appellant had moved to Australia, and 7 months prior to the offending his partner who he was a carer for about 12 – 15 months sadly died.
This case involved the argument from the appellant that if 12 months or more of imprisonment was imposed, he would be deported under the character test under the Migration Act 1958 (Cth). However, counsel for the appellant conceded at the plea that this was not a relevant factor if the appellant was sentenced to an actual term of imprisonment.
The applicant contended that the sentencing judge did not place sufficient weight on the applicant’s personal circumstances, including his grief at his partner’s death, and the possibility of deportation looming large.
Fraser JA said that the prospect of deportation was “speculative” and held that due to the appellant’s age that the sentence was not manifestly excessive and that the sentencing judge took into account all the personal factors. Whilst a suspended sentence was open, it was not outside the range so the appeal was dismissed.
The Court of Appeal (McMurdo and Bond JJA and Kelly J) allowed an appeal against sentence for an armed robbery of a pharmacy.
The appellant robbed a pharmacy and was armed with a tomahawk at the time. His intention was to steal drugs and sell them for money. Upon being caught he made immediate admissions to the police and expressed remorse for his actions. He admitted that he wanted to return to prison; such was the state of his life.
At the time of sentence, he had already served 14 months pre-sentence detention. The sentenced judge set the parole day as the day of the sentence, despite being well aware of significant delays in the Queensland Parole system.
The Court said that the effect of the delays in the parole system was that that the sentencing judge should have recognised the substantial risk that the delay would be of such significance that the applicant would have to serve a period of actual custody, which would deprive him of the substantial benefit of his early plea of guilty: at [28].
Court said that the sentencing judge’s approach was to say that he was limited to fixing a parole eligibility date and that the delays in considering parole applications was beyond his control, which was incorrect: at [29]. The Court said the sentencing judge was required to consider whether the appropriate mitigation of the sentence could be achieved by a different order and that an alternative available to him was to suspend the sentence: at [29].
The appellants’ sentence was suspended by the Court immediately for an operational period of 4 years.
The Court of Appeal (Williams J, Sofronoff P and Davis J agreeing) allowed an appeal against sentence for one court of armed robbery in company with personal violence, two counts of armed robbery and one count of threat to kill.
The applicant was a 15 year old child at the time of the offending, having been sentenced at the age of 17 at the Southport Children’s Court. The applicant was sentenced for the armed robbery with personal violence to six months’ detention with immediate release on a Conditional Release Order for one month, with conviction. On the other two armed robbery charges and the threat to kill charge he was sentenced to two years probation with no conviction.
The applicant had a criminal history with five prior sentences in the Children’s Court. The offending involved the complainant being robbed in their own backyard with a serrated knife after a demand for money was made with the knife being held to the throat of the complainant. The applicant then demanded that two other complainants take off their bags and shoes and hand over a phone. A threat to kill was issued warning them not to call the police.
The applicant had a highly prejudicial upbringing, he had intellectual impairments and was a regular user of methamphetamine. The applicant had otherwise been going well on bail but due to the seriousness of the charges, the original sentencing judge concluded that only an order of detention was appropriate.
Williams J said at [62] that while some factors had been generally considered as part of the sentencing discretion, they were not considered in determining whether a conviction should be recorded. Some of the factors, such as the applicant having a diagnosed intellectual impairment were of such a nature that they should have been specifically considered when deciding whether or not a conviction should be recorded.
Williams J also said that the amount of time the child had been on “conditional bail” engaging with youth justice services for 200 days was a “compelling” factor: [65]. Ultimately, Her Honour said that the positive steps shown by the applicant meant that no conviction should be recorded in respect of count 1 in the circumstances: at [67].
Western Australia
Court of Appeal
Conviction
Kan v Western Australia [2021] WASCA 182.
The Court of Appeal (Buss P, Mazza and Mitchell JJA) dismissed an appeal of a man who had previously filed a discontinuance in his application to appeal a conviction for child sexual offending.
In 2018, the appellant had been convicted of child sexual offences in respect of offending against his step-daughter. After being sentenced, he filed an appeal notice to appeal his convictions. In July 2021, the appellant filed an application to discontinue his appeal. The appellant sought to set aside that discontinuance and applied for an extension of time within which to appeal his convictions.
The appellant said that at the time of the discontinuance he did not have legal advice, and the effect of his evidence was that he thought that the discontinuance merely paused the proceeding. T
here were four main reasons that the bench did not accept this. First, the text of the discontinuance itself highlights the effect of the document. Secondly, at the directions hearing before the discontinuance the court at that time merely asked for “movement” in the case. Thirdly, the court did not accept the credibility of the witness. Fourthly, there was an inconsistency between the appellant’s affidavit and correspondence sent at the time of the discontinuance. The Court did not allow the withdrawal of the discontinuance as they found that there was no nullity.
The Court held at [41] and [42] that the appellant understood that by filing the discontinuance notice in the appeal he was bringing the appeal to an end and that he did not assert any material misunderstanding about the nature of the appeal. The Court said that the mere fact that he did not appreciate that he could not institute a second or subsequent appeal after filing the discontinuance did not mean that the discontinuance was a nullity.
Sentence
VRE v Western Australia [2021] WASCA 185.
The Court of Appeal (Buss P and Mazza JA) dismissed an application for leave to appeal a sentence for sexual penetration of a child aged under the age of 13, by cunnilingus. The appellant also applied for bail pending the hearing of the appeal, which was also dismissed.
The appellant was 19 years old at the time and the complainant was between 6 and 7 years old and his stepsister. The appellant received 18 months’ imprisonment argued the sentence was manifestly excessiveand that his sentence ought to have been suspended.
The appellant argued that he had a difficult upbringing, the offending was for a short period of time and the appellant claimed that the offence was “so minor”. These submissions were rejected and the Court held that “[s]uch a characterisation fails to have regard to the very young age of the victim, her vulnerability and the impact of the offending upon her…”: at [34].
The Court said that whilst the offending was opportunistic, the appellant took advantage of his stepsister who had been entitled to his protection. The Court acknowledged the appellant’s communication difficulties, which were given considerable weight in mitigation at sentence. The Court rejected the notion that the offending has had little effect upon the victim. (at [34] and [35]).
Bramble v Western Australia [2021] WASCA 191.
The Court of Appeal (Mazza and Beech JA and Hall J) allowed a sentence appeal for the offence of failing to stop after an accident and resentenced an appellant.
The appellant was 18 years old at the time of the offending and was driving back from a Christmas lunch as the designated driver. In the car with her was her partner and his parents. As they were driving, they noticed the victim who was in a heated physical dispute on the side of the road with his partner and child.
The passengers left the appellant’s vehicle and approached the victim to try and diffuse the situation however he reacted negatively, and a physical fight ensued between the appellant’s partner and his father and the victim. The passengers retreated to the car and the victim was issuing threats. In a panic, the appellant drove away and hit the victim who was standing on the road. The victim was left with an ABI that affected his ability to walk, talk and do daily activities. He lost his sense of smell and experienced changes in his personality. The appellant was sentenced to 18 months’ imprisonment with a non-parole period of 9 months.
The appellant put forward a number of grounds of appeal, including that the sentence was manifestly excessive, which was the ultimately successful ground.
The Court said that the sentencing judge had placed considerable emphasis on the seriousness of the injuries of the victim, despite there being no evidence that the appellant was aware of the seriousness at the time. The Court said that there was no reason to think that the appellant was deliberately seeking to frustrate an investigation by driving off. The Court also said that her youth was an important factor, that she had no priors and committed no offence between the time of the incident and the trial (a period of about 2 and a half years): at [46] and [47].
The Court allowed the appeal and sentenced her to a total effective sentence of 12 months’ imprisonment wholly suspended for 12 months (at [53]).
South Australia
Court of Appeal: Criminal
Conviction
Quist v The Queen [2021] SASCA 106.
The Court of Appeal (Kelly P, Livesy and Bleby JJ) allowed a conviction appeal for arson on the basis that there had been a miscarriage of justice.
The case involved an allegation of arson and that a fire was deliberately lit in a toilet block of a shopping centre. The case against the appellant was a circumstantial case.
During jury deliberations, a note was given to the judge by a juror which revealed that one of the jurors had discussed the case with their mother and the mother advised that the accused could not be found guilty. Defence applied for a mistrial, which the prosecution opposed. The trial judge refused a mistrial saying that if it goes wrong for the accused, then the accused can deal with it accordingly. The trial judge gave a warning to the jury instead of discharging it.
The appellant was convicted and after the conviction, the trial judge was informed an appeal had been filed and said that she would not sentence the appellant until after the appeal had been determined. The trial judge said to defence counsel at that time that she refused a mistrial as she was anticipating an acquittal.
The appellant appealed on a number of grounds arguing that the trial judge had erred in saying there was a case to answer (ground 1); the Crown failed to particularise the ignition of the fire (Ground 2); the verdict was unreasonable taking into account the evidence (Ground 3); and that there had been a substantial miscarriage of justice occasioned by a juror discussing the matter outside of deliberations and the judge’s refusal to order a mistrial.
Ground 1 was abandoned by the appellant, permission to appeal on ground 2 was allowed but grounds 2 and 3 were dismissed. The Court allowed the appeal on Ground 4.
The Court held that the judge’s reliance on anticipation of a not guilty verdict was impermissible, that the warning was insufficient to cure the tainted jury members (at [77]–[97].
Sentence
Pateras v The Queen [2021] SASCA 107.
The Court of Appeal (Lovell, Livesy and Bleby JJ) allowed a sentence appeal for trafficking in a controlled drug. The appellant was resentenced by the Court of Appeal to two years, two months and 29 days’ imprisonment with a non-parole period of 10 months and 11 days. The sentence was suspended on the condition that the appellant enter into a good behaviour bond with conditions.
The appellant was found with 7.39 grams of methylamphetamine and was charged with trafficking in a controlled drug. A District Court judge sentenced the appellant to three years and seven months’ imprisonment with a non-parole period of two years.
The appellant had entered into the plea of guilty one month before trial. The core of the complaint was that the learned judge erred in the interpretation of s 40(3)(e) of the Sentencing Act 2017 (SA) which is the lowest rung of the sentencing discount available in South Australia. That section allows a sentencing judge to reduce a sentence up to 5% if the sentencing judge thought there was good reason to do so. The sentencing judge in this case was not satisfied that there was a good reason.
The Court of Appeal said that in deciding whether there was good reason to give a discount, the sentencing judge should have regard to utilitarian benefit of the plea (at [48]).
Director of Public Prosecutions (SA) v Jones [2021] SASCA 114.
The Court of Appeal (Livesy P, Doyle and Bleby JJ) refused the Director’s appeal that the sentence imposed on the respondent for one charge of aggravated cause harm with intent to cause harm was manifestly inadequate.
The victim was the respondent’s 5 year old nephew. Because the respondent’s sister and his father were unfit to care for the child, the child was in the respondent’s care. The circumstances of the offending were that child had been playing with his dog, when the dog became entangled in his leash and began choking. To punish the victim, the respondent placed the leash around the victim’s neck and hung him from a clothesline. He ceased when the child’s eyes began to bulge.
The respondent was an intellectually disabled man who was sentenced to a term of imprisonment of 12 months with a 6 year non-parole period, which was suspended upon entry into a good behaviour bond for 12 months in the sum of $100.
The respondent had a serious intellectual disability and could not read or write, his IQ was less than 70. His non-verbal abilities were equivalent to a four year old child and his verbal abilities equivalent to a nine year old child. A psychological report found that the respondent could not pass a basic test to demonstrate his parenting abilities. Nonetheless, there was no issue that the respondent and the child had a loving relationship. The respondent had no priors for violence and had never breached a good behaviour bond.
The Court said that whilst the sentence was unquestionably lenient, it was not so lenient that it would warrant intervention from the Court. The Court said most cases of this kind would ordinarily attract the imposition of a sentence and bond that was much longer. The respondent’s intellectual disability made this an inappropriate case through which to address general sentencing standards: at [19].
The Court said that it is important that prosecution appeals should not be allowed to unduly circumscribe the sentencing discretion of judges. The Court also said that there must always be a place for mercy in circumstances where the the judge’s sympathies are reasonably excited by the circumstances of the particular case. The Court also said that there must be a place for leniency, even for offenders with a bad record, where the sentencing judge forms the intuitive view that leniency at that point of the offender’s life might lead to reform: at [2].
The Court said the proper role of prosecution appeals is to enable the courts to establish and maintain adequate standards for sentences, to enable the correction of idiosyncratic views of individual judges for particular crimes or types of crimes and to occasionally correct a sentence which is so disproportionate to the gravity of the crime that it would shock the public’s consciousness: at [2].
Tasmania
Supreme Court of Tasmania (Court of Criminal Appeal)
Sentence
Director of Public Prosecutions v Kendall [2021] TASCCA 10.
The Court of Criminal Appeal (Blow CJ, Pearce J and Marshall JA) allowed a sentence appeal brought by the Director of Public Prosecutions on the ground that a sentence for fraud was manifestly inadequate.
The respondent was employed as a bookkeeper for a butchery company and over a period of 21 months she misappropriated just over $400,000 from her employer. She pleaded guilty and was sentenced to 3 years’ imprisonment with 2 years and 6 months of that sentence suspended on the condition that she commit no other offences for two years and that she complete 100 hours of community service.
The Court said that the circumstances of this case were serious including because of the amount of money that was defrauded, the position of trust the respondent was in, that it was unlikely that the majority of the money would be recovered or repaid, the effect on the victim and that the business had to go into liquidation: at [9].
The Court also said that some of the common mitigating factors were absent in this case, including that she was not youthful, had only stopped because she was caught and did not provide assistance to uncover the fraud: at [10].
The Court said that in a case such as this, partly suspending the sentence and ordering community service was unusual, though it was not inherently inappropriate: at [21].
The Court said that a head sentence of 3 years in a case such as this was manifestly inadequate, that the suspension of nearly all of the head sentence exacerbated that inadequacy and this was not ameliorated by the requirement to undertake community service: at [25].
The Court said that there was also a possible issue in that the sentencing judge did not order the respondent pay compensation within 28 days, which was required under the Sentencing Act and the Monetary Penalties Enforcement Unit was concerned this would make the order unenforceable: at [32].
The appeal was allowed and the respondent was resentenced to 4 years’ imprisonment with 12 months of that sentence suspended on the condition that she commit no further offences for 2 years after her release from prison. The non-parole period was set at 18 months and it was ordered that she pay compensation within 28 days: at [33].
Australian Capital Territory
Court of Appeal
Conviction
Garay v The Queen [2021] ACTCA 30.
Elkaim J dismissed an application for a stay of a criminal proceeding in which the offender had been tried by judge alone, and several guilty verdicts had been entered, but the sentence hearing had not yet been held. The applicant (who was the offender in that proceeding and who was on bail pending sentence) filed a notice of appeal against the convictions, and then made the application for a stay, seeking that sentencing not occur until the appeal against conviction had been determined.
Elkaim J cited (at [9]) Wilson v The Queen [2016] ACTCA 56 as authority for the proposition that “a stay of sentence should not be ordered merely because an appeal against conviction has been commenced”, and said (at [12]) that the question on the application for the stay was whether there were exceptional circumstances that justify granting it. The applicant’s argument (described at [20]) was that “the reasons for decision in the present matter were thus so insufficient, so “complete a failure”, that the merits of the appeal were strong and, in turn, amounted to good reasons to grant a stay.”
Elkaim J noted (at [22]) that the Crown’s response to the applicant’s arguments were “equally valid”, and explained that ultimately this went to the eventual outcome of the appeal, and did not justify a stay.
The applicant had also argued for the stay by reference to the appeal being “rendered nugatory” if the stay were not granted, citing Samani v The Queen [2016] ACTCA 48 (see [13]). Elkaim J explained (at [23] to [27]) that this was not the case here. The applicant was on bail, and may even be granted bail between sentence and appeal. Given this, the seriousness of the offences, and the anticipated delay before both the handing down of sentence and the hearing of the appeal, the appeal would not be pointless if it were to occur following sentence.
Sidaros v The Queen (No 3) [2021] ACTCA 31.
The Court of Appeal (Burns, Elkaim JJ and McWilliam AJ) determined an appeal against findings of guilt made by Mossop J on a trial by judge alone. The appellant had been convicted of six counts (comprising various crimes against the person and property crimes) and acquitted of one count of attempted murder.
Burns, Elkaim JJ and McWilliam AJ would each have decided the appeal in different ways. Burns J (at [60]) would have acquitted the appellant of count 3, otherwise dismissed the appeal, and restructured the appellant’s sentence. Elkaim J (at [107]) would have allowed the appeal in its entirety and acquitted the appellant on each count. McWilliam J (at [184]) would have dismissed the appeal in its entirety. Elkaim J’s decision was based on the first ground of appeal (regarding whether particular evidence permitted a particular conclusion) which made it unnecessary for His Honour to consider the second ground (regarding verdicts being unreasonable), on which Burns J and McWilliam AJ disagreed (see [108]).
Elkaim J explained (at [107] and [108]) that the Court’s final orders would be ‘designed to reach the “highest common denominator” in the sense described by Bathurst CJ inHawi v R [2014] NSWCCA 83”. Accordingly, Elkaim J concurred in the orders proposed by Burns J, which allowed the appeal to a more limited extent than Elkaim J would have done. In the result, the final orders reflected Burns and Elkaim JJ’s preferred outcome regarding count 3, and Elkaim J and McWilliam AJ’s preferred outcome regarding the remaining counts.
Supreme Court of the ACT
Application for Stay
Mossop J dismissed an application for a stay of a criminal proceeding in which a charge was to be dealt with under s 68D(2) of the Supreme Court Act 1993 (ACT), which requires the Court to deal with certain charges at the conclusion of a trial for an indictable offence. The Court is required to do so if it considers that it is in the interests of justice. The charges that must be dealt with this way are those that (a) the Magistrates Court could deal with (because they are summary offences, or indictable offences triable summarily), and (b) arise from substantially the same circumstances as the indictable offence that was the subject of the trial.
The applicant has been acquitted by a jury of the indictable offence of aggravated burglary. The charge that was to be dealt with as described above (as a charge for a “related offence”) was a charge of minor property damage. Six co-accused had been charged with aggravated burglary by joint commission; only one was convicted, meaning that the jury must have found that the offence had not been committed jointly, but by the offender alone (see [6]). The applicant argued for a stay on the basis that dealing with him for the property damage offence was an abuse of process because the jury must have been satisfied that he was not present (see [5] and [7]).
Mossop J cited (at [12] and [13])R v Carroll [2002] HCA 55 as describing when an abuse of process arises because a charge seeks to controvert an acquittal. The cited passages explain that this is to be discerned by comparing the elements of the two offences, and rarely by reference to the evidence at trial. Mossop J gave another way of looking at this (at [19]): if both charges had been determined by a jury, would they have been necessarily inconsistent? His Honour explained that that was not so in this case, because the acquittal could not be said to have necessarily rested on a finding that the applicant was not present at the time of the offending (see [18]).
Sentence
Adams v Navaratnam [2021] ACTSC 256.
Loukas-Karlsson J dismissed an appeal against sentence brought by the informant following a proceeding in the Magistrates’ Court. In that proceeding, the offender had pleaded guilty to driving with a prescribed concentration of alcohol in breath, and the Magistrate had dismissed the charge without conviction by making a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). It was conceded by the offender that the Magistrate had erred in failing to afford the informant procedural fairness by first indicating an intention to take a different course, but then not providing an opportunity to make submissions against the making of such an order (see [4]). Loukas-Karlsson J stated that this concession was properly made (at [28]) having first cited the authorities supporting the proposition that where submissions are not made because an intention to take a contrary course is indicated (but resiled from), this will amount to a breach of procedural fairness (see [25], quoting Dang v R [2014] NSWCCA 47).
Nevertheless, Loukas-Karlsson J used the Court’s residual discretion, unders 219F(5) of the Magistrates Court Act 1930 (ACT), to dismiss the appeal. This discretion is exercisable “if the court considers that no substantial miscarriage of justice has happened”. His Honour opined (at [39]) that this discretion was analogous to the equivalent discretion available when the appeal was from the Supreme Court to the Court of Appeal. Noting (at [42]) that the “primary purpose of prosecution appeals is to lay down principles for the governance and guidance of the courts with the duty of sentencing convicted persons”, and further noting (at [41]) that the parties both submitted that the court should do no more than note the error, His Honour dismissed the appeal (at [43]).
Northern Territory
Supreme Court of the NT
Conviction
Brownhill J dismissed an appeal against a conviction imposed by the Local Court for an offence of aggravated unlawful assault. The complainant was the appellant’s domestic partner. The appeal was brought on the ground that the conviction was unsafe and unsatisfactory because the Local Court should have held a reasonable doubt that the appellant assaulted the complainant for various reasons, chief among which was that the complainant had sought to withdraw her statement before the charge was heard, and gave clear evidence that the assault had not occurred.
Brownhill J noted that the complainant’s evidence at trial (regarding whether the assault occurred, and regarding her level of intoxication at the time) resulted in the hearing Judge finding that the complainant was doing her best to paint the appellant “in a good light” (see [21]). Her Honour cited Morluk v Firth [2017] NTSC 91 in explaining how victims recanting at trial in domestic violence matters is not uncommon. The two central questions (see [43]) were: first, “whether the inconsistencies in the evidence went to the essential features of the complainant’s account of the offences”; and secondly, “whether those inconsistencies were explicable in a manner that did not provide a basis for them to reflect on the complainant’s credit”.
Her Honour noted that the authorities did not make clear whether an affirmative answer to the first question compels the finding that there is a reasonable doubt (see [53]). Ultimately, Her Honour held (at [54]) that while the two questions were important, an affirmative answer to either did not necessitate the existence of a reasonable doubt. An affirmative answer to the first may be surmountable by reference to the totality of the evidence, and an affirmative answer to the second may be surmountable because the doubt introduced regarding credibility may not rise to the level of a reasonable doubt.
Her Honour ultimately held (at [55] to [57]) that there was a basis to explain the inconsistencies (namely, the unexceptional nature of a victim of domestic violence to withdraw complaints and experience conflicting emotions), and, consistently with Morluk v Firth, the rejection of parts of a complainant’s evidence did not necessitate holding that the initial complaints had been unreliable.