September 2021 - Recent Cases in Australian Criminal Law
A collection and summary of some of September's interesting cases.
Here it is - the second edition of Recent Cases in Australian Criminal Law.
We had aimed to have this out by mid-October, but alas, as suspected, life and work (and lockdown) all got in the way.
Hello and welcome to our subscribers - we’ve had a lot of subscribers since our first edition and we all hope that this is a useful and interesting resource for students, academics, practitioners, journalists as well as those just interested in criminal law.
The cases this month have been collated and summarised by @mchlftzgrld1977, @jeremy_gans, @fchralph, @BabbyUnit and @juliakretz.
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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.
New South Wales
Court of Criminal Appeal
Conviction
Long (a pseudonym) v The Queen [2021] NSWCCA 212.
The Court of Criminal Appeal (Batson JA and Adamson and Campbell JJ) dismissed an appeal against convictions for child sex offences. The Court rejected several criticisms of the trial judge’s directions, holding that it sufficed to give statutory directions about video evidence at the start of the trial rather than immediately before that evidence was played (at [7] and [74]), that jurors would have understood the correct use of complaint evidence despite an incorrect description of that evidence as ‘independent’ of the complainant (at [11] and [78]) and that a comment on whether witnesses ‘made appropriate concessions’ was adequately cleared up by the judge’s response to jury questions about that comment (at [87].)
The Court held (at [82] and [147]) that the trial judge appropriately responded to a jury request for ‘video transcripts’ by arranging for them to rewatch the videos in court, with Campbell J adding (at [150]) that the option of providing them with the transcripts would also have been permissible. Finally, the Court held (at [18] and [96]) that a lone acquittal was explicable because the child testified that the alleged anal penetration only hurt a ‘little bit’ and that the convictions were not otherwise unreasonable.
Seifeddine v The Queen [2021] NSWCCA 214.
The Court of Criminal Appeal (McCallum JA, Garling and Cavanough JJ) allowed an appeal against firearms convictions. The prosecution relied on the accused working at the premises where the firearms were, CCTV footage of him accessing the cavity where the firearms were found and his DNA on the firearms and related items. The Court held (at [25]) that, in light of the accused’s explanation that he accessed the cavity searching for an extension cord and was unaware of the firearms, the DNA evidence was crucial to the prosecution case; and that it was reasonably possible that the police had transferred the DNA to the firearms from surfaces or items that the accused could have innocently touched (at [49]). The Court ordered the accused’s immediate release at the end of the hearing.
Gage v The Queen [2021] NSWCCA 222.
A majority of the Court of Criminal Appeal (Bathurst CJ and Beech-Jones J, Fagan J dissenting) allowed an appeal against convictions for sexual intercourse without consent. The jury, in between finding the accused not guilty on three counts of indecent or actual assault and guilty on six counts of sexual intercourse without consent, had sent a note describing a disagreement on consent and stating ‘Some in the group are not satisfied beyond reasonable doubt that consent was granted.’ The Court unanimously dismissed a complaint that the two sets of verdicts were inconsistent, citing (at [100], [102], [105]) potential doubts on whether the physical elements of the assaults or knowledge of non-consent were established for the first set. However, the majority held (at [13]–[15], [31]–[34]) that the trial judge should have corrected the last sentence of the note, as it went beyond mere poor language and occurred in the context of a disagreement about the six counts. The Court ordered a new trial.
JT v The Queen [2021] NSWCCA 223.
The Court of Criminal Appeal (Bathurst CJ and Rothman and Garling JJ) dismissed an appeal against convictions for sexual intercourse without consent. The Court rejected (at [87]–[90]) a complaint that the jury was not warned that a video of the complainant’s evidence played during deliberations did not include the cross-examination, as the required warning was given during the trial and the jury was given a full transcript of the complainant’s testimony. The Court also rejected (at [124] and [134]) criticisms of the procedure for permitting and taking a majority verdict, because the judge’s short questioning of a juror and failure to encourage the jury to pursue a unanimous verdict should be read in the context of earlier jury notes describing an entrenched disagreement.
Sentence
Ozan v The Queen [2021] NSWCCA 231.
The Court of Criminal Appeal (McCallum JA, Rothman and Ierace JJ) allowed an appeal against a sentence for the offences of supplying a prohibited drug and recklessly dealing with proceeds of crime. The sentence of imprisonment of 4 years, with a non-parole period of 1 year and 6 months, was imposed in circumstances where the applicant was serving a sentence of imprisonment imposed by a Western Australian court.
The effect of the New South Wales sentence was that the applicant’s non-parole period was extended by 6 months, and his total sentence by 12 months. The resulting ratio of his overall non-parole period to his cumulated total sentence was 83 per cent – in excess of the statutory ratio provided for by s 44 of the Crimes (Sentencing Procedure) Act 1999. The applicant contended that the increment to his non-parole period infringed the totality principle.
As noted by Ierace J at [90], the Western Australian sentences “were fixed according to a sentencing scheme that differs quite significantly from that which applies in this state as to how the non-parole period is fixed.” That scheme tended to result in proportionately higher non-parole periods. The sentencing judge had expressed the view that some increment to the existing non-parole period was necessary, to ensure that the applicant was punished for the additional criminality of the New South Wales offences.
However, Ierace J held, even though the Western Australian non-parole period was already proportionately higher than the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999, it was still a significant exercise of discretion to exceed the statutory ratio further by partial accumulation of the non-parole period. Error was made out, because the statutory ratio was significantly exceeded and the sentencing judge had not considered the applicant’s rehabilitation while undergoing sentence.
In re-sentencing, Ierace J ordered ‘complete concurrency’ between the new and existing non-parole periods, noting that this outcome “does the least offence to the statutory regime that applies in this state” (at [93]).
Mourtada v The Queen [2021] NSWCCA 211.
The Court of Criminal Appeal (Basten JA, Adamson and Campbell JJ]) dismissed an appeal against an aggregate sentence of imprisonment for two Commonwealth offences relating to tobacco importation. The aggregate sentence was partially suspended by means of a recognizance release order. The applicant’s appeal related to the sentencing judge’s failure to make an intensive correction order, which was allowable under Commonwealth sentencing law: Crimes Act 1914 (Cth), s 20AB. Under New South Wales legislation, an intensive correction order can only be made if a court ‘has sentenced an offender to imprisonment’: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 7. However, when an intensive correction order is imposed for a Commonwealth offence, there is no requirement to first sentence the offender to imprisonment.
Basten JA rejected an argument that the sentencing judge had failed to apply s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His judgment assumes that s 66 has the same application to a Commonwealth offender – in the absence of a requirement to first sentence the offender to imprisonment – as it would in other cases. In particular, the sentencing court is still to consider which of an intensive correction or full-time imprisonment is more likely to address the offender’s risk of reoffending: s 66(2).
In this case, it was not in error for the sentencing judge to take into account, when deciding not to impose an intensive correction order, considerations (such as general and specific deterrence) that might also be relevant to the decision as to whether a sentence of imprisonment is required and as to the length of such a sentence (at [23]–[26]). An intensive correction order involves a significant element of leniency, as compared with full-time custody, and there is no error in a sentencing judge taking into account general deterrence in determining that a period of full-time custody is required to ensure the offender is adequately punished for the offence: [26].
Nasrallah v The Queen [2021] NSWCCA 207.
The Court of Criminal Appeal (Bell P, Price and Hamill JJ) allowed an appeal against a sentence for armed robbery. The appeal succeeded on a ground relating to pre-sentence custody, for which the applicant’s sentence had not been backdated. The applicant also argued that the sentencing judge had failed to give full weight to her deprived background when applying the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. In particular, it was argued that the sentencing judge had wrongly discounted the applicant’s background, because – although she had experienced traumatic events – it did not “disclose an environment of systemic or endemic sexual, physical or psychological abuse, alcoholism and substance abuse or of any particular social disadvantage or deprivation”: at [14].
Bell P and Price J rejected this ground of appeal, finding that the sentencing judge had taken the applicant’s background into account in mitigation of sentence, and was entitled to find that the deprivations to which the applicant had been subject were not as chronic or as profound as seen in some other cases. The nature and degree of an offender’s background of deprivation will vary, and the boundaries of the Bugmy principles have not been clearly definitively delimited: at [8], [11].
Bell P observed that there may be a conceptual distinction between an environment in which a child has been subject to a traumatic event, and one in which social disadvantage and exposure to alcohol abuse and alcohol-fuelled violence are endemic: at [11]. It was not necessary or desirable to consider the precise boundaries of the Bugmy principles in the present case, including the extent to which individual traumatic events engage those principles: at [21].
In a lengthy dissent on this issue, Hamill J held that the sentencing judge had placed undue emphasis on the question whether the applicant’s childhood deprivation was ‘profound’, and commented that the majority judgment underestimated the psychological impact of the applicant’s traumatic experiences: at [111].
Jones (a pseudonym) v The Queen [2021] NSWCCA 225:
The Court of Criminal Appeal (McCallum JA, Hamill and Cavanagh JJ) allowed an appeal against a sentence of imprisonment for drug supply offences. The sentence imposed was 9 years and 3 months, with a non-parole period of 6 years and 9 months. The applicant complained that he had been denied procedural fairness, in that he was not permitted an opportunity to view material provided to the sentencing judge in relation to the nature and extent of his assistance to law enforcement authorities.
The sentencing judge had applied a reduction of 10% to the applicant’s sentence on the basis of his assistance to authorities, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The material relevant to the applicant’s assistance was provided to the sentencing judge, without having been seen by the applicant’s counsel. Neither party made any submissions on the assistance material. When the applicant’s counsel requested to inspect it, the prosecutor informed the court that this could not occur without consultation of an interstate agency. The sentencing judge informed counsel that he could await the outcome of that consultation, but that the material was strongly favourable to the applicant; counsel did not press the request to inspect it.
The applicant’s appeal relied on the decision in HT v The Queen [2019] HCA 40, which had been handed down after the sentencing hearing. The respondent attempted to distinguish HT on the basis that the applicant’s counsel had elected not to see the material. According to Cavanagh J, this was not a case in which counsel was offered the material during the sentencing proceedings but declined to view it. There was a risk of adjournment, and the judge had indicated that the material was very favourable. Counsel was not faced with a real choice based on a full understanding of the material: [65]. The discount applied by the sentencing judge was at the lower end of what might be considered the general range. The applicant had not been able to make submissions as to the content of the material or determine whether it would warrant a substantial discount in penalty, as it had not been provided prior to or during the sentencing proceeding, and there was thus a denial of procedural fairness: [66]. The matter was remitted to the District Court for sentencing.
Bail
Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232.
The Court of Criminal Appeal (Bathurst CJ and Beech-Jones CJ at CL and Adamson J) dismissed a detention application in respect of a charge of membership of a terrorist organisation. The Supreme Court had found there were exceptional circumstances that permitted a grant of bail, citing the difficulties of proving membership (as opposed to mere support), the length of time since the accused allegedly swore allegiance and the availability of (and the accused’s amenability to) community de-radicalising services.
The Court of Criminal Appeal found exceptional circumstances for a different reason – the likelihood that the accused’s remand period would exceed any eventual non-parole period (at [6], [69]–[70]) – and held (at [7], [79]) that any risk of terrorist acts arising from the accused’s access to materials about bomb-making was low and could be managed by conditions. Beech-Jones CJ at CL observed (at [5]) that ‘the acts taken by the applicant [sic] to effect, and in furtherance of, his alleged membership appear to involve nothing more than using his own mobile phone in his bedroom’.
Supreme Court of New South Wales
Common Law
Director of Public Prosecutions (NSW) v Wright and the Local Court of New South Wales [2021] NSWSC 1086.
The Supreme Court (Bellew J) set aside a dismissal of a charge of sexual touching without consent. After finding that the complainant and accused had given consistent and trustworthy accounts of the accused touching the complainant’s breast after she had rejected his earlier sexual advances, the magistrate’s ex tempore reasons concluded: ‘This is a case where I do have a real concern in relation to the evidence and in relation to whether the prosecution has been able to prove the element of the lack of consent beyond reasonable doubt.’
Justice Bellew held (at [67]) that the magistrate’s reasons were ‘bereft of a clear articulation of any factual finding(s) in respect of either aspect of the issue of consent’ and were ‘bereft of the exposition of any reasoning process at all’. Justice Bellew also held (at [69], [72], [74]) that the magistrate erred in commenting that the accused may ‘have interpreted’ his touching the complainant’s breast ‘as being some sort of permission to continue’ (as communication is not required for non-consent) and that the accused was ‘trying his luck’ (as recklessness suffices for this offence, and the magistrate’s language was demeaning to the complainant.)
Finally, the Court held (at [78]) that the magistrate’s reasons do not reveal consideration of whether or not the accused took steps to ascertain consent. The charge was remitted to the Local Court.
Application by Lucy Patricia Klewer pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)1 [2021] NSWSC 1225.
The Supreme Court (N Adams J) refused an application for an inquiry into convictions for assault and intimidation. Justice Adams held (at [35]-[37]) that the applicant, a declared vexatious litigant, did not need leave as an application for an inquiry is not a ‘proceeding’ under the Vexatious Litigants Act 2008 (NSW), noting that the decision whether or not to inquire is administrative in nature and does not involve calling any court decision into question. In dicta, the Court added (at [56]) that the application is not within the Act’s exemption for ‘criminal proceedings’. Justice Adams further held (at [58]) that the application should not be dismissed on the basis of non-exhaustion of appeal rights, as the applicant would need leave to seek a judicial review of her convictions, Justice Adams nevertheless refused the application (at [108]) as there was no doubt about the applicant’s guilt.
Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230.
Button J dismissed an application arising out of committal proceedings in the Local Court. The applicants had been charged with offences against s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), for publishing or broadcasting the name of a child who had been the subject of Children’s Court proceedings. The applicants contended in the committal proceedings that s 105 was constitutionally invalid because it impermissibly burdened the implied freedom of political communication. The magistrate rejected that submission, and the applicants sought prerogative relief in the Supreme Court.
Applying Comcare v Banerji (2019) 267 CLR 373, Button J found that the implied freedom was not impermissibly burdened by the provision. The provision did not prohibit discussion of the system for dealing with children in Children’s Court proceedings, nor did it prohibit criticism of that system or its implementation (at [72]–[75]).
Although the prohibition on identification of a child does impose a burden on political communication (for instance, a person engaging in communication with the intention of having the law changed would not be able to make their point by publicising the specifics of a particular case if doing so identified a child indirectly), the burden was a reasonably slight one: at [77]-[81]. That burden was justified, in that its purpose – identified as the protection of potentially vulnerable children and their families from publicisation of their involvement in proceedings that may be intrinsically private and intrusive – was consistent with a system of responsible and representative government: at [91]–[99].
The provision was suitable, in that it was rationally capable of realising its purpose through deterrence: at [102]–[104]. It was ‘necessary’, in that no less burdensome alternative had been proffered by the plaintiffs, and a regime that required proof of motivation or intention would not be practicable as it would lead to difficulties of proof which would impair the deterrent purpose of the provision: at [107]–[112].
Finally, the provision was ‘adequate in its balance’, as the benefits sought to be achieved – the protection of children and their parents from potentially irreparable harm, by way of the publicisation of their involvement in litigation that would very often raise sensitive and distressing details about their personal lives – was not manifestly outweighed by its effect on the implied freedom: at [116]–[119]. As the provision was reasonably appropriate and adapted to its purpose, the burden on the implied freedom was not impermissible and the provision was not constitutionally invalid.
Victoria
Court of Appeal
Conviction
Stuart (a pseudonym) v The Queen [2021] VSCA 260.
The Court of Appeal (Beach, McLeish and Walker JJA) granted leave to appeal convictions for offences of incest and indecent acts with a child under 16 and an extension of time, but dismissed the appeal. The applicant argued that the jury verdicts were unreasonable or could not be supported having regard to the evidence.
The Court rejected the contention that the lack of recollection exhibited by the complainant at the special hearing rendered the jury’s verdict as unreasonable. The Court said that the VARE was closer in time to the final event that constituted the offending (at [44]), that the questions asked at the VARE were not leading and no objection was taken to the VARE (at [45]), the complainant confirmed at the outset of the special hearing that what she said in the VARE was the truth (at [46]), and this was not a case where the complainant recanted the allegations made in the VARE nor where her answers at the special hearing were contradicted by what was said in the VARE (at 47]).
The Court said that the fact that the complainant could no longer identify with clarity during cross-examination the details of various acts did not render the account she gave in the VARE as unreliable or the convictions as unsafe and unsatisfactory (at [48]). The Court also said that this was not a case where the complainant’s evidence in the VARE contained discrepancies, inadequacies, was tainted or otherwise lacked probative force and that the limitations were fully explored before the jury (at [52]).
Goodfellow v The Queen [2021] VSCA 262.
The Court of Appeal (Niall, Emerton and Sifris JJA) allowed an extension of time, granted leave to appeal and set aside the conviction of the applicant.
The applicant was convicted at trial of an aggravated home invasion and theft, the central issue in the trial was identity. The prosecution’s case was largely based on three pieces of circumstantial evidence: the applicant’s palm print on the outside of the rear window of a car linked to the offending, an empty medication bottle found inside the car which had been prescribed to the applicant and the applicant’s DNA (in combination with at least two contributors) on a grey hoodie located at the crime scene.
The Court said that the handprint on the car showed the applicant may have been in or near it at some point, but there was no evidence linking the applicant to the car at any particular time (at [64]). Similarly, although the DNA evidence meant that the applicant came in contact with the hoodie at some point, it was impossible to tie that contact to the night of the offending (at [65]). The Court said the three pieces of circumstantial evidence tied the applicant to the car and to the hoodie, but it did not tie the applicant to the car or hoodie on the night in question (at [67]). Having regard to all the evidence as a whole, there was a reasonable possibility that the man in the grey hoodie was someone other than the applicant (at [72]).
Sentence
Matamata v The Queen [2021] VSCA 253.
The Court of Appeal (Kyrou and McLeish JJA) allowed a sentence appeal for obtaining financial advantage by deception, on the basis that the sentencing judge erred in not having regard to the risk of the applicant losing the opportunity to settle in Australia and that the sentence was manifestly excessive. The applicant pleaded guilty to a number of theft and obtaining financial advantage by deception offences and was sentenced to a total effective sentence of 12 months’ imprisonment and a 2-year CCO. He had initially been refused leave to appeal by a single judge and renewed his application for leave to appeal pursuant to s 315(2) of the Criminal Procedure Act.
Shortly prior to the hearing, the applicant sought to reformulate his grounds of appeal to include a ground that the sentencing judge erred in failing to have regard to the fact that a sentence of 12 months’ imprisonment could result in the applicant permanently losing the opportunity to settle in Australia and that the total effective sentence was manifestly excessive having regard to the prospects of deportation. The respondent opposed the application for leave to reformulate the grounds of appeal on the basis that it was an abuse of process.
The Court of Appeal granted leave (at [44]–[57]) because, among other things the grounds had sufficient merit to warrant the granting of leave and refusal would significantly prejudice the applicant (with no prejudice to the Crown). The Court said it did not need to decide how the nature of the right conferred by s 315(2) informed the discretion on whether leave to amend should be granted, because in effect the amendments sought were a reformulation of the existing grounds (at [52]). The Court said that the sentencing judge did not err in failing to take the risk of deportation into account (at [74]–[80]). The Court held that the sentence was manifestly excessive and that there was a failure to give sufficient weight to the applicant’s rehabilitation (at [90]–[93]) and resentenced the applicant to a total effective sentence of 10 months’ imprisonment (at [97]). The Court said the CCO imposed by the judge was appropriate and the CCO was affirmed (at [97]).
Lam v The Queen [2021] VSCA 241.
The Court of Appeal (Priest and Niall JJA) allowed a sentence appeal for trafficking in a large commercial quantity of a drug of dependence and knowingly dealing in proceeds of crime, on the basis that the sentencing judge erred by finding that the hardship imposed on the applicant’s son did not amount to exceptional circumstances and that there had been a breach of the principle of parity.
The applicant had lived in Australia since she was 17, but was not an Australian citizen. She had a son, who was six years old, who was an Australian citizen. As nobody was able to care for her son when the applicant was taken into custody, her son was sent to China to be cared for by his maternal grandmother. The son’s Chinese visa was due to expire and it was unclear what the attitude of the authorities in China was. Whether he would be deported to Australia was speculative, but, if he were to be, there would be no family to care for him in Australia and he would be in foster care. The Court said that the plea for mercy in the circumstances was irresistible and the effect of the applicant’s incarceration on her son was exceptional. The judge finding otherwise was not reasonably open and in that respect there was an error in the sentence imposed (at [31]–[32]) and that the case was exceptional (at [34]). The Court also said that as part of the resentencing exercise (and separate from family hardship, although related), it will take into account the applicant’s state of anxiety during her incarceration that she will be deported upon the completion of her sentence and that this deportation will be additional punishment, as it will destroy any opportunity for her to continue to reside in Australia (at [38]).
The applicant had been sentenced to a total effective sentence of 10 years and six months’ imprisonment with a non-parole period of seven years and her co-offender was sentenced to seven years and four months’ imprisonment with a non-parole period of three years and nine months. The Court of Appeal said that neither the circumstances of the offending or of the applicant and her co-offender warranted the disparity between their sentences (at [39]). The Court said that resentencing was problematic as the sentence imposed on Orlic was manifestly inadequate and because the Director of Public Prosecutions did not appeal against the sentence, that inadequacy could not be remedied (at [40]). The Court said the principle of parity could not operate in a way to permit a manifestly inadequate sentence on the applicant and the Court’s only option was to reduce the applicant’s sentence, but not to an extent that would result in complete alignment with the co-offender’s (at [40]). The Court said it was not open for the sentencing judge to find that the co‑offender had a lesser role than the applicant (at [46]–[52]). The applicant was resentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years.
Nachar v The Queen [2021] VSCA 242.
The Court of Appeal (Priest JA, Emerton agreeing) allowed a sentence appeal for the offence of rape on the basis that the sentence imposed was manifestly excessive. Priest JA said that given the psychiatric report there was little doubt that Verdins applied (at [34]–[35]). His Honour said that the authorities make clear that the moral culpability of an offender with a serious mental illness or disorder will in most cases be lessened due to the reduced capacity to reason in respect of the wrongfulness of their conduct (at [38]). His Honour also said that general deterrence should also often be of little weight where the offender was not an appropriate vehicle for general deterrence (at [38]). Similarly, His Honour confirmed that denunciation and just punishment were often inappropriate considerations where the offender has impaired mental functioning (at [38]). Priest JA said that given the appellant’s chronic psychotic disorder and its likely causal connection to the offending, in light of the authorities it was difficult to see how the judge could have viewed denunciation, just punishment and protection of the community as primary sentencing purposes (at [39]). The appellant was resentenced to six years’ imprisonment with a non-parole period of three years and six months (at [42]).
Emerton JA agreed with the disposition and reasons by Priest JA (at [43]). Her Honour added that community protection was an important factor in the sentencing synthesis, given the distressing nature of the case, the life-long challenges faced by the complainant and the profound impact it has had on her life (at [44]). Her Honour said that given the psychological and psychiatric material, community protection was best served by putting in place conditions where the appellant could receive proper and ongoing treatment, as well as support, for his mental illness (at [45]). This was best achieved by a long period of parole, where there would be intense supervision and where breaches may result in the appellant’s loss of liberty (at [45]).
Al Janabe v The Queen [2021] VSCA 252.
The Court of Appeal (Priest JA, Kennedy JA agreeing) granted leave to appeal and allowed an appeal for offences including trafficking in not less than a commercial quantity of methylamphetamine, on the basis that the sentence there was error and the sentence was manifestly excessive. The applicant had been sentenced to 11 years and 10 months’ imprisonment with an eight year non‑parole period for offences including trafficking in not less than a large commercial quantity of a drug of dependence. The first successful ground of appeal was that the sentencing judge had erred in sentencing the applicant on the basis that there was an intention to cause injury to the proposed victim and that the scope of the agreement could be assessed by reference to an intercepted telephone call, where it was said that the effect of the assault would be that the victim could no longer hold scissors in his hands. Priest JA said that the sentencing judge had made the same error as occurred in Farah v The Queen [2019] VSCA 300, with the sentencing judge effectively sentencing the applicant for a different and more serious offence that the one he was charged with (at [14]).
Priest JA also said that the individual sentences on the related summary charges were manifestly excessive, with there being no justification for imposing 50% of the maximum sentence available for those charges (at [17]–[20]). His Honour also said the individual sentences did not give adequate recognition to the pleas of guilty and an aggregate sentence of six months’ imprisonment should be substituted (at [21]). The second ground of appeal was not upheld (at [22]–[34]).
The applicant was resentenced to a total effective sentence of 10 years and six months’ imprisonment, with a non-parole period of 7 years (at [36]).
160 Leicester Pty Ltd v Melbourne City Council [2021] VSCA 250.
The Court of Appeal (Priest, Beach and Jaye JJA) refused leave to appeal against a sentence imposed for contempt of VCAT on a company and its directors. On 15 October 2016, the Corkman Hotel, which was located at 154-160 Leicester Street, Carlton was demolished. The demolition was unlawful as there had been no planning permit obtained. The property was owned by 160 Leicester Pty Ltd. The directors of 160 Leicester were Stefce Kutlesovsi and Raman Shaqiri.
The Melbourne City Council and Minister for planning commenced proceedings against the company at VCAT, which were settled shortly prior to the hearing. The settlement included an agreement that by 30 November 2019, the company would clear the site of all demolition material and existing building fabric, that the Council be provided with evidence that the condition of the site was suitable for ‘informal outdoor recreation’ and that the company provide to the Council for approval a plan of the interim works required for the site to be used for interim informal outdoor recreation. The first order was not complied with and as a result on 16 July 2020, the Council and the Minister commenced contempt proceedings against the company and the directors. The company and directors were found guilty of contempt by VCAT. The company was fined $150,000 and each director was sentenced to a term of imprisonment of one month.
The Court agreed with the Tribunal that the contempts committed by the company and the directors were wilful and defiant, that it was difficult to find a case where the circumstances were as grave and the behaviour as blatant (at [52]). The Court also agreed with the Tribunal that any monetary penalty would most likely have been regarded as the ‘cost of doing business’ and that monetary penalties would therefore not have vindicated the authority of the Tribunal (at [55]). The Court also said that the attitude of the directors and company was that they were free to ignore the enforcement orders and the fact that neither put on evidence about their capacity to pay financial penalties led to the conclusion that they were well-resourced and well-positioned to pay whatever financial penalty imposed, which effectively mandated that terms of imprisonment be imposed on the directors (at [56]).
The Court said, in the absence of any evidence of the contemnors’ financial means and because the company expressly stated to the Tribunal that it was not submitting that it did not have the capacity to pay a financial penalty, it could not be said any financial penalty was manifestly excessive because it failed to take into account any lack of means of any contemnor to pay the penalty (at [58]). There was no basis for contending that the financial penalty, order for costs and/or the terms of imprisonment gave rise to any penalty that was manifestly excessive (at [60]).
The Court said that the new evidence submitted by the company and directors did not change that the contempts were deliberate, wilful, flagrant and blatant and that the exceptional circumstances of the case called for terms of imprisonment for the directors and a substantial financial penalty for the company (at [66]).
Panourakis v The Queen [2021] VSCA 259.
The Court of Appeal (Priest and Kaye JJA) granted leave to appeal and allowed a sentence appeal for an applicant who was sentenced to two years and six months’ imprisonment for the offence of failing to stop after an accident.
The applicant had argued that the sentencing judge had erred in how he approached the resolution of a factual issue and erred in finding that the applicant’s licence status had a role to play in her decision not to stop following the accident.
The Court said that there were a number of difficulties with the conclusion reached by the sentencing judge that the effect of any feelings of agitation, distress and fear felt by the applicant had dissipated and that the applicant’s licence status was related to her response at a critical point (at [48]–[49]). The Court said it was improbable that in a short period of time the applicant’s intense feelings of fear and distress would have dissipated to the extent that they were no longer the main cause of her leaving the accident (at [49]). The Court said it was significant that when she was spoken to by a witness, the applicant said she was pregnant and stressed, that the victim had approached her vehicle in an angry manner and that she was scared (at [49]). The Court also said that the applicant’s mother recounted the applicant’s state when she reached her house, including that she was in a sheer panic and said to her mother that she had feared for her own safety and the safety of her unborn child (at [50]).
The Court said the evidence of the applicant’s state after the accident was relevant as it demonstrated the level of distress which according to expert evidence did not dissipate after the accident, but intensified (at [54]). Based on these matters, the Court said it was not reasonably open for the sentencing judge to conclude beyond a reasonable doubt that at the time she left the scene of the accident, the applicant’s main concern was her licence status (at [55]).
The applicant was resentenced to 10 months’ imprisonment with a community correction order for two years (at [60]).
Peers v The Queen [2021] VSCA 264.
The Court of Appeal (Niall and Sifris JJA) granted leave to appeal and allowed a sentence appeal for the offence of dangerous driving causing death, on the basis that the sentencing judge had erred in finding that the applicant did not satisfy the requirements set out in s 5(2H) of the Sentencing Act.
The Court said that in respect of whether the applicant would be subject to a substantially and materially greater burden of imprisonment, in circumstances where the applicant had established long standing and severe mental health conditions, it was extremely difficult for the applicant to prove a negative (ie that the treatment she would receive in prison would be inadequate) (at [52]–[53]). The Court said that the evidence adduced as to the type of treatment the applicant would receive in custody was extremely general and went little further than to establish that there was a mental health unit (at [53]). The Court said without more, it was difficult to see how the existence of a unit would ameliorate the risk of the applicant’s mental health declining in custody (at [54]). The Court also said the sentencing judge made no findings on the evidence of a psychologist in respect of the concerns that she had about the applicant’s mental health and lack of appropriate care for the applicant in custody, and that the evidence of the mental health unit did not mean the evidence of the psychologist could be rejected at [55]–[56]). The Court said that the underlying medical conditions of the applicant, her grief and inability to access her support dog mean that imprisonment would result in her being subject to substantially and materially greater burden of imprisonment (at [58]). The Court also said that the sentencing judge’s conclusion that the mental health unit in custody would not be insufficient to ameliorate the risk of declining mental health was not open on the evidence (at [58]).
In respect of the second ground of appeal, the Court said that the judge treated the applicant as having an onus which was in error and the Court was not able to say the error had no impact on the judge’s decision that s 5(2H)(e) was not satisfied (at [68]).
The Court said that this was a difficult sentencing exercise given the seriousness of the offending and the applicant’s particular mental health conditions (at [72]–[73]). The Court said that for offending of this kind, even where the accused has no prior record, there is no risk of reoffending and there is remorse, an immediate term of imprisonment is a necessary reality (at [73]). The Court said that was the effect of the offence being a category 2 offence and was due to the need for general deterrence, although other sentencing principles are not to be considered as irrelevant (at [73]).
The applicant was resentenced to 20 months’ imprisonment with a non‑parole period of 8 months.
DPP v Currie; DPP v Daniels [2021] VSCA 272.
The Court of Appeal (Beach, McLeish and Walker JJA) dismissed a challenge to the validity of notices of appeal under s 288(2) of the Criminal Procedure Act. The respondents to two crown appeals (one in respect of rape and one in respect of two offences of culpable driving causing death) contended that the appeals had not been validly commenced because the Director of Public Prosecutions did not personally affix her signature to the notices of appeal, but instead authorised her associate to affix her electronic signatures to the documents.
The Court said that the use of a signature (whether writing it or otherwise affixing it) was an acknowledgement by the signatory that they adopt the document as their own, which is capable of being done by electronic signature just as well as traditional means (at [27]). The statutory purpose of s 288(2) was to be an assurance or certification that the Director, rather than a delegate of the Director, had personally considered the matters in s 287 and decided that the appeal should be commenced (at [43]). The Court did not accept that the Director was required to affix the signature in person in order to advance that purpose more effectively (at [43]).
The Court also did not accept that the construction proposed by the respondents reduced the risk of uncertainty or ambiguity as to the validity of a notice of appeal. This was because such a requirement would mean that a person who wanted to be certain of the validity of a notice of appeal would be required to look behind the notice. The Court said such a construction would in fact operate to undermine the utility of a notice of appeal as a certification that the Director had formed the requisite state of mind described in s 287 (at [44]). The Court held that s 288(2) does not require that the Director be the person who is physically responsible for writing or affixing the signature and that the better view is that s 288(2) simply requires that the notice of appeal bears the personal signature of the Director (at [46]).
Evidence
Saad v Commissioner of AFP [2021] VSCA 246.
The Court of Appeal (Walker JA, Beach and Sifris JJA agreeing) dismissed an application for leave to appeal in respect of an order made pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (POCA). The applicant had applied for revocation of the order made pursuant to s 18, on the basis that the evidence that had been adduced in support of the application was inadmissible because the affidavits that were relied upon in the application did not disclose the source of the hearsay evidence. The applicant had argued this was not consistent with s 75 of the Evidence Act 2008 (Vic). The application for revocation was dismissed by the trial judge.
The application for leave to appeal was focused on three issues (at [6]):
1. Did s 75 of the Evidence Act play any role in determining the admissibility of the affidavit filed in support of an application for an order under s 18?
2. If s 75 did play a role, was the requirement in the section fulfilled by the affidavits filed by the respondent? In particular, was a general introductory statement that identified the sources of information by reference to the entities (but without identifying particular individuals) sufficient for the purposes of s 75?
3. Can the admissibility of the affidavit material be relied upon when challenged on an application for revocation or can such a challenge only occur by appealing the restraining order?
Walker JA (Beach and Sifris JA agreeing), referred to Mai v Commissioner of the Australian Federal Police [2020] VSCA 38 and confirmed that a critical step in the making of a restraining order under either s 18 or s 19 of the POCA is that an authorised officer deposes by an affidavit that they hold the relevant suspicion and state the grounds for those suspicions (at [28]). Her Honour also said that the trial judge was correct to conclude that s 75 of the Evidence Act did not require the deponents of the relevant affidavits to identify the individuals that were the source of the hearsay material upon which their suspicions were based, in order for that material to be admissible (at [84]). This is because the hearsay material in the affidavits was not included to prove the existence of the representations, but to inform the Court about the matters to the deponents considered when forming their suspicion, irrespective of the truth or otherwise of the representations (at [84]).
In respect of the three issues, Her Honour said:
1. Section 75 of the Evidence Act has no application to the evidence to which the applicants objected to (at [122]). This was because what is being ‘proved’ by the affidavit was not the existence of the facts asserted by the deponent, but the basis upon which the deponent formed the relevant suspicion (at [129]). Therefore, even where the grounds for a suspicion set out in an affidavit under s 18(3) include hearsay evidence, s 59 of the Evidence Act does not render them inadmissible and s 75 of the Evidence Act is not engaged (at [132]). It is not necessary that when putting forward grounds for a reasonable suspicion, that those grounds be proven (at [137] to [139]).
2. Issue 2 did not need to be decided due to the finding on issue 1 (at [7]).
3. The terms of s 42(5) of the POCA are sufficiently broad to permit issues of admissibility of evidence to be relied upon in a re‑hearing of a restraining order (at [154] and [156]).
Her Honour also said that where hearsay evidence is relied upon, a failure to identify the source of the evidence is not irrelevant, as a court can conclude that an affidavit does not adequately disclose the reasonable grounds (at [140]).
Supreme Court of Victoria
Judicial Review
Dudley v Secretary to the Department of Justice and Community Safety [2021] VSC 567.
The Supreme Court (Cavanough J) dismissed an application for judicial review brought by a prisoner who had applied to prison authorities for a remission of his sentence under s 58E of the Corrections Act 1986 (Vic) and reg 100 of the Corrections Regulations 2019 (Vic). The legislative scheme refers to ‘emergency management days’ and empowers the Secretary to the Department of Justice and Community Safety to reduce a prisoner’s sentence by up to four days for each day on which an emergency exists in a prison, if the prisoner has suffered disruption or deprivation because of that emergency.
The plaintiff’s sentence had been partially reduced due to COVID-19 measures in his prison, and he had been granted parole, but he had applied for and been refused an additional remission. He argued that s 58E imposed an enforceable duty to consider a request for a remission, and if the decision-maker was satisfied that the statutory pre-conditions for a grant had been met, the decision-maker was obliged to grant a remission. The defendant argued that, as the repository of the power, she could never be under a legal duty even to consider whether to grant a remission to prisoner under s 58E, and would not be under a duty to grant a remission even if satisfied of the statutory pre-conditions.
Cavanough J held that s 58E does not create an entitlement to any remission of a sentence on account of ‘emergency management days’, even if the decision-maker accepts that pre-conditions have been met. The legislation provides for a discretionary power to grant a remission (at [40]–[42], [45]). The plaintiff’s challenge to the refusal to grant ‘emergency management days’ in his case therefore failed (at [48]).
In obiter dicta, Cavanough J went on to consider the defendant’s argument that she could never be under a duty to grant or consider granting ‘emergency management days’ under s 58E, and the exercise of her power was therefore immune from judicial review or relief in the nature of certiorari, mandamus or declaration. Without expressing a concluded view, Cavanough J indicated that he held considerable doubts as to the correctness of the defendant’s argument (at [59]). He noted that the power was reposed in a public officer, for public purposes, and was therefore apt to imply the existence of a duty to determine any application made by a prisoner: [65]–[69]. Such a duty would not be an ‘intolerable burden’ on the repository of the power, as there was a broad power of delegation (at [72]). The decision-maker’s discretion was as to the outcome of the exercise of the power, not as to whether to reach a conclusion at all (at [74]). It would be a radical and surprising result if both action and inaction under s 58E were effectively unreviewable (at [80]).
The Supreme Court (Beale J) found that a magistrate erred in ruling that particular charges did not disclose an offence known to the law and were invalid. He also found that the particulars of the charges were sufficient. His Honour also said that if the charges were invalid, he found that they were capable of amendment (at [3]).
The respondent was charged with four charges of unauthorised disclosure of police information. Instead of the charges stating that the accused was “under a duty not to disclose”, the charges stated that the accused was “not under a duty to disclose” the information.
Beale J said that the charges were not invalid and that a reasonable accused “striving conscientiously” to understand the charges would have understood that it was impliedly alleged that they were under a duty not to disclose the relevant information without reasonable excuse (at [31]–[37]).
His Honour also agreed with the magistrate that each charge provided reasonable information as to the nature of the charge (at [38]).
Beale J said that when considering whether the charge could be amended under s 8(4)(a) of the Criminal Procedure Act — that is whether the charge-sheet sufficiently disclosed the nature of the offence — regard can be had to the charge-sheet itself, including whether the charge-sheet referenced the relevant statutory provision (at [45]). His Honour said that in this case, the charge-sheet described the offending sufficiently to disclose the nature of the offence (at [52]).
Beale J disagreed with Ginnane J’s judgment in Glenister v Magistrates’ Court of Victoria [2014] VSC 265 that the failure of a charge to aver an essential element of an offence meant that the charge-sheet failed to sufficiently disclose the nature of an offence, because (a) it gave insufficient regard to the textual differences between a valid charge and the preconditions for the existence of a power to amend an invalid charge; (b) the restrictive view gives the word “sufficiently” in s 8(4)(a) no work to do; (c) the restrictive view would mean a major erosion of the power of amendment that had existed under the previous statutory framework as explained in DPP v Kypri [2011] VSCA 257, despite an absence in s 8(4) of clear language that compelled such a restrictive view; (d) the restrictive view is not in the interests of justice (at [59]).
Beale J also disagreed with the analysis by Zammit J (as Her Honour then was) in Walters v Magistrates’ Court of Victoria [2015] VSC 88 of Kypri and the scope of power after the expiration of the limitation period, though he agreed with Her Honour that the power of amendment under the Criminal Procedure Act is the equivalent to the former power of amendment under the previous act (at [64]).
Smith v Thompson (No 2) [2021] VSC 632.
Ierodiaconou AsJ allowed the plaintiff to inspect a Magistrates’ Court file that related to the issuing of a search warrant at the plaintiff’s residential address. The file included an affidavit that supported Victoria Police’s application for a warrant. The warrant was issued and items were seized (and then returned), but the plaintiff was not charged with any offence relating to them. Victoria Police opposed inspection of the Magistrates’ Court file on the basis that there was no legitimate forensic purpose for the production of the affidavit and that the affidavit was subject to public interest immunity. The plaintiff was seeking judicial review of the Magistrates’ decision to issue the search warrant and applied to inspect the Magistrates’ Court file in that context.
Ierodiaconou AsJ said that the affidavit appeared to be the basis upon which the Magistrates’ decision was made and the parties will need to address this issue at trial. Victoria Police had the affidavit and the plaintiff didn’t, which was a sufficient ground to grant the inspection. Her Honour also said there was a legitimate forensic purpose for the same reasons (at [15]).
In respect of confidentiality, Ierodiaconou AsJ said that it was not evident on the file that there were any confidentiality or suppression orders restricting access, nor was it submitted that the Magistrates’ Court had made such orders (at [17]).
Ierodiaconou AsJ said that there was an issue of competing public interests in this case (at [27]) when considering matters under s 130 of the Evidence Act. Her Honour said the document was of central importance in the proceeding (at [31]) and the affidavit related to Victoria Police’s application for a warrant (at [34]). Contrary to the submission of Victoria Police, Her Honour said that she could not identify any particular police methodology which could be regarded as confidential and she rejected the suggestion that the form of the affidavit (how it is drafted) was itself a confidential matter which would reveal police methodology (at [37]). Her Honour said that the assertion that disclosure of the information in the affidavit would reduce the effectiveness of lawful methods used by police investigation and the detection of crime was vague and was rejected (at [37]).
Her Honour also said that the substance of the information in the affidavit had already been disclosed in an affidavit filed by Victoria Police in the judicial review proceedings (at [41]). The public interest in protecting police methodology and information was outweighed by the public interest in disclosure of the affidavit (at [42]).
County Court of Victoria
Appeal
Bain (a pseudonym) v Gebbie [2021] VCC 1287.
The County Court (Judge Blair) allowed an application for leave to appeal a sentence out of time pursuant to s 263 of the Criminal Procedure Act. On 8 January 2021, the applicant had pleaded guilty to a consolidation of charges, including three offences of a sexual nature. The plea proceeded and there was no application by police, nor any mention of, any application under s 11 of the Sex Offenders Registration Act (SORA). The sentence proceeded in the Bacchus Marsh Magistrates’ Court on 22 January 2021, with again no application nor mention of any application pursuant to s 11. The applicant also did not receive or sign any documents, nor was there any explanation by the Magistrate as to the consequences of failing to comply with an order, as was required by s 50 of the SORA. Neither the applicant nor his solicitor were made aware that any order had been made pursuant to the SORA.
The applicant’s solicitor had initially advised the applicant not to appeal the sentence. About a week after the sentence, the applicant received a letter from the Magistrates’ Court that he must report to police, which he did. The applicant was charged with new offending in about mid-April 2021 and was remanded. In late April 2021, his solicitor became aware that there were charges that included failing to comply with SORA and she was not aware where these charges came from. After further inquiries made by the applicant’s solicitor and receipt of the recording of the sentencing hearing, it was confirmed there was no mention of any SORA registration by anyone, including the Magistrate. There was delay in the lodging of the appeal notice, including by reason of the applicant being in custody and reliant on the Magistrates’ Court to generate the appeal paperwork.
Judge Blair accepted the evidence of the applicant and his solicitor that there was no application or mention of any SORA order either at the plea or sentencing hearings in January 2021 and that the applicant’s solicitor did not become aware that a SORA order had been made until April 2021. Judge Blair said the consequences of being placed on the Sex Offenders Register for a period of 8 years was extremely onerous and that it would be an injustice if the order were allowed to stand, when there was no proper hearing of any application or determination in accordance with the law (at [34]). Her Honour also queried the validity of the order, given the prosecution had not formally made any application (at [35]), though she did not need to determine this for the purposes of the application for leave.
Queensland
Court of Appeal
Court of Appeal
The Court of Appeal (Morrison JA with Mullins JA and North JA agreeing) refused an appeal against conviction and sentence.
The case involved a trial where the appellant was charged with 25 sexual offences, committed against two complainants. The trial judge directed acquittals on 6 charges. Of the remaining 19 charges he was convicted on 6 and acquitted on 13. The appellant argued there was a miscarriage of justice on two grounds being (a) a juror had conducted investigations and other jurors did not report the conduct; and (b) there was misconduct because a juror did not disclose a stated bias. The appellant also sought a sentence appeal.
A juror, on the day after the verdict was given, gave the following note (partially reproduced):
“1. At the beginning of the trial – one juror adamantly stated that he would not convict, as he had a legal dealing regarding his interactions with a 13 yr. old child when he was young. He openly and honestly disclosed that to us.
2. On Monday this week, during deliberations, he discussed some willingness to a verdict of carnal knowledge – AND that this was based on his internet research on the weekend – w.r.t lighter sentencing for such.”
An investigation into bias was conducted by the Sheriff of Queensland pursuant to s 70(7) of the Jury Act 1995 (Qld). Ultimately, after that investigation the trial judge concluded that the sentence could continue as “the jury’s verdicts still had legal efficacy and were appropriately taken”. At the start of the trial, the trial judge’s usual warnings to the jury were clear and detailed. The Sheriff's report can be read at [16] to [22]. It was unclear on the evidence whether the juror in question had conducted a search on the internet with respect to carnal knowledge and sentencing practices.
The Court said that the conduct of the juror demonstrated his outward bias and was to be deplored, but that the material before the Court showed that there was no miscarriage of justice, as the verdicts remained true for the whole jury (at [50]).
Sentence
R v Gibbs; Ex parte Attorney-General (Qld) [2021] QCA 191.
The Court of Appeal (Sofronoff P, Mullins JA and Crow J) dismissed a Crown sentence appeal.
The respondent had been sentenced for strangulation domestic violence offences committed by him against his wife. The respondent had previously been found guilty of threatening to kill his wife. The offending involved significant violence with medical evidence showing that the injuries received were consistent with non-fatal strangulation.
The defendant was an Iraq war veteran, having spent 22 years as a sniper for the SASR. The defendant had PTSD, a new relationship and was part of a support network for fellow veterans with numerous references. He was sentenced to three years and given a fixed parole release date on the date of the sentence. The defendant was also ordered to pay compensation of $5000 to the Registrar of the District Court within 12 months, with those monies being transferred to the victim. The Crown appealed the sentence on the basis of manifest inadequacy.
The Court said at [43] that the case did not raise any matter of principle, that the respondent’s personal circumstances were relevant, including that the PTSD affected him at the time of sentence and played a part in the offending. The respondent had undergone lengthy rehabilitation and treatment since the offending to which he was still committed and which would be impeded by imprisonment. The sentence imposed on the respondent took into account all the circumstances and did not detract from the focus on deterrence, punishment and denunciation.
Conviction
The Court of Appeal (Sofronoff P, Morrison and Mullins JJA) allowed a conviction appeal for rape, set aside the conviction and ordered a retrial. The appellant was a medical practitioner who had been found guilty of rape in respect of a pap smear performed on the complainant. The appellant argued the jury had been misdirected.
The issue on appeal is that a pre-text conversation was relied upon by the prosecution, where the word “sorry” was used by the appellant. The appellant was of Yoruban ethnicity, and evidence was given by a professor in linguistics that the word “sorry” does not have the exact same meaning in Yorubian language and culture. The prosecution at trial raised the fact that the expert relied upon by defence had been disciplined in his previous role as a real estate agent.
The Court held that the trial judge misdirected the jury (at [17]). The Court said the trial judge should have directed the jury as follows: “even if the jury finds the expert evidence called by the defence to be doubtful, if that evidence nevertheless raises a reasonable doubt, then the evidence remains a factor in the jury’s consideration – although its ultimate significance and weight as a single piece of evidence is a matter for the jury to determine in the context of all of the other evidence.” (at [16]).
The Court said at [18] that “[t]he power of the proffered explanation as a pathway to acquittal was significantly reduced by the jury being told, in direct terms, that they could use the evidence if they accepted it and, implicitly, not otherwise.”
The Court of Appeal (McMurdo JA, Sofronoff P and Mazza AJA agreeing) dismissed a sentence appeal for an applicant who had pleaded guilty to two charges of manslaughter.
The applicant was sentenced to concurrent sentences of 12 years’ imprisonment. Another co-offender was found guilty, after trial, of two counts of manslaughter and an additional two counts of torture. That co-offender was sentenced to 13 years’ imprisonment. The sentencing judge had described that co-offender’s involvement as “significantly more” than that of the appellant.
The applicant sought leave to appeal on the grounds of disparity between his sentence and the sentence of his co-offender.
McMurdo JA held at [27] held the difference in the level of participation was significant and did warrant a lower sentence in the applicant’s case and that the assessment of that extent involved a qualitative and discretionary judgment by the sentencing judge. However, Her Honour said that although it was open to the sentencing judge to impose a lower sentence than 12 years, but the applicant had not demonstrated that the sentencing judge was obliged to do so (at [27]).
Western Australia
Court of Appeal
Conviction
Turner v The State of Western Australia [2021] WASCA 158.
The Court of Appeal (Buss P, Mitchell JA and Morrison AJA) dismissed a conviction appeal of an appellant convicted of murder.
The circumstance of the murder occurred at Jooondalup Magistrates’ Court during a mediation. The appellant armed himself with a knife and killed his ex-partner by stabbing her immediately after a mediation and property settlement. The appellant stabbed the victim six times with a concealed kitchen knife, to her face, head, neck and shoulder. One stab wound to the neck struck the carotid artery, causing the victim’s death.
The appellant’s sole defence at trial was that he suffered from dissociative seizures and had done so at the time of the murder. The defence sought to prove on the balance of probabilities that he was of unsound mind for the full 45 minutes he took from arming himself to committing the criminal act. Two experts at trial gave evidence, only one of whom was an expert in dissociative seizures. That expert was unable to conclude that he was suffering from dissociative seizures at the time.
The appellant argued while the jury might not have been satisfied on the balance of probabilities that he was suffering from a dissociative state, the evidence may have given rise to a reasonable doubt as to whether he had one of the specific intents (at [53]). The appellant argued that the jury was misdirected.
The Court said that due to s 26 of the Criminal Code 1913 (WA), the appellant was considered sane, until the contrary is proven. The Court said in light of that presumption of sanity, having regard to all of the evidence the only reasonable inference open was that the appellant was acting purposefully, with the necessary intention and did not kill whilst in a dissociative state. The Court said there was no miscarriage of justice (at [108]).
Bol Bol v The State of Western Australia [2021] WASCA 163.
The Court of Appeal (Buss P, Mazza and Mitchel JJA) granted leave to adduce additional evidence but dismissed a conviction appeal for offences of unlawfully doing grievous bodily harm.
This case primarily concerned evidence that was not adduced at trial. The Court considered the difference between “new” and “fresh” evidence (at [53]–[54]). The Court said “new” evidence is evidence that existed and could have reasonably been adduced at trial and “fresh” evidence is evidence which either did not exist at the time of trial and could not, with reasonable diligence, have been discovered.
The Court held that the additional evidence sought to be relied upon was “new” evidence, it did not alter the outcome of the trial in a material way. The appeal to allow new evidence was allowed, but it was ultimately dismissed (at [61]).
Sentence
Jansen v The Queen [2021] WASCA 160.
The Court of Appeal (Buss P, Murphy and Mazza JJA) allowed a sentence appeal for an appellant who had been sentenced for dishonesty offences.
The appellant was sentenced after a fast-track plea of guilty to two counts of under-declaring and failing to declare employment income to Centrelink. The appellant was sentenced to 2 years and 6 months’ imprisonment and ordered to be released on recognisance after 22 months. The complaint at appeal was that 22 months of imprisonment to serve was manifestly excessive.
The total amount of deception was $67,053.64 with the offending occurring between July 2013 and January 2019. The appellant had a personal history of family violence and alcohol abuse and was placed into foster care at the age of 12. The appellant had a short criminal history and was economically disadvantaged at the time of the offending. The appellant had made restitution of $8,700.00.
The Court examined the range of fraud sentences for offences between the ranges of $40,000 and $100,000 at paragraphs [31] to [36]. After examination of the personal particulars of the appellant the Court agreed that the non-parole period was too high, and reduced it to 16 months (at [41]).
South Australia
Court of Appeal - Criminal
Sentence
The Court of Appeal (Livesey P, Doyle J and David J) allowed a crown appeal in respect of an offender who had pleaded guilty to two counts of cultivating a commercial quantity of cannabis and one count of cultivating a large quantity of cannabis.
The Crown appealed the sentence o the basis that there was no “good reason” under s 96(1)of the Sentencing Act 2017 (SA) for the sentencing judge to suspend the sentence.
The respondent was an Italian citizen from Albania and he was sentenced to five years, two months and 16 days’ imprisonment, which was wholly suspended due to his imminent deportation. Less than two weeks later, the respondent was repatriated to Italy.
The respondent, understandably, did not appear against the appeal and a contradictor was appointed. The Court held that it did not matter if the respondent was going to be deported or that he was a non-citizen, especially when the sentence was so disproportionately low.
The Court said the imposition of a suspended sentence with no supervision effective meant there was no sentence imposed at all. The Court said to exercise the sentencing discretion in this way was disproportionate to the seriousness of the offending and undermines public confidence in the administration of justice (at [73]).
Cuong v The Queen [2021] SASCA 89.
The Court of Appeal (Lovell and Bleby JJA, Livesy JA dissenting) dismissed a sentence appeal on the basis of manifest excess for an appellant who was sentenced for drug trafficking offences.
The appellant was sentenced to 10 years and 6 months’ imprisonment, with a non-parole period of 8 years.
Lovell and Bleby JJA said they were not convinced that the sentence was manifestly excessive, given there were three separate incidents of drug trafficking, which was done to support his addiction, as well as make a modest profit (at [13]). Their Honours said the third incident in particular was a serious escalation in offending and and was motivated principally by profit, while the appellant was on bail after having spent some time in custody, which elevated specific deterrence as a sentencing consideration (at [14]).
Livesey JA dissented and found that the sentence was manifestly excessive and would have allowed the appeal (at [60]) and resentenced the appellant to 9 years’ imprisonment with a non-parole period of 7 years, two months and 13 days.
Tasmania
Court of Criminal Appeal
Sentence
Murtagh v Tasmania [2021] TASCCA 7.
The Court of Criminal Appeal (Blow CJ, Pearce J and Martin AJ) dismissed a sentence appeal for an appellant who had been involved in breaches of suspended sentences for a number of dishonesty offences, as well as two offences of aggravated assault against police officers.
The sentencing judge activated a suspended 6 month term of imprisonment and imposed a single sentence of 21 months’ imprisonment in respect of the offences of dishonesty. His Honour ordered that the sentence of 21 months be served cumulatively upon the activated six month sentence. The sentencing judge sentenced the appellant to 27 months imprisonment for the aggravated assaults, which was cumulative to the other sentences imposed. The total effective sentence imposed on the appellant was 4 years and 6 months’ imprisonment with a non-parole of 2 years and 6 months. The appellant stated that this was manifestly inadequate with an amended ground arguing that the sentence offended the principle of totality.
Martin AJ (Blow CJ and Pearce J agreeing) held at [63] that having regard to the total criminal conduct and the appellant’s appalling record of offending, the total period to be served was a “just and appropriate measure of the totality of criminal behaviour” and the sentence was far from “crushing”
Martin AJ also said that the severity of the total sentence was ameliorated by the fixing of a non-parole period which the sentencing judge described as of "some significance". His Honour said that the appellant could not reasonably have complained if the sentencing judge had fixed a significantly longer non-parole period (at [64]).
Australian Capital Territory
Court of Appeal
Conviction
The Court of Appeal (Burns, Loukas-Karlsson and Charlesworth JJ) allowed an appeal from a decision of the Supreme Court dismissing an appeal against a conviction imposed in the Magistrates Court. The conviction was for a charge of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT). The complainant’s evidence was that, without her consent, the appellant (her landlord) had given her a hug during which he kissed her and touched her buttocks and her breasts. The appellant had been found not guilty of a charge of common assault against the complainant that was alleged to have occurred on an earlier occasion (the allegation was that he had grabbed her face and pulled it towards him).
On appeal to the Court of Appeal, the appellant applied for leave to rely on grounds that were “framed as a second appeal from the Magistrate’s decision” (Burns and Loukas-Karlsson JJ at [23]). The Court of Appeal allowed this. At [117], Charlesworth J described the instances in which this would be allowed as rare, but said this was such a case because a miscarriage of justice had occurred, and the errors of law were only not raised on the initial appeal because of inadvertence.
The Court dealt with the grounds of appeal in sets. The first set of grounds asserted that the Magistrate took into account an irrelevant matter (the evidence relating to the charge for which the appellant was found not guilty) in making findings as to the credit of the complainant and the appellant. Burns and Loukas-Karlsson JJ explained (at [42]) first that Garrett v The Queen [1977] HCA 67 does not require that evidence given in relation to the dismissed charge is inadmissible but only that the acquittal may not be called into question. Secondly, their Honours explained that the evidence had not been used in that way; the Magistrates’ findings had not referred to the alleged conduct that had been said to constitute the assault (Burns and Loukas-Karlsson JJ at [45]). The relevance of the evidence was also indicated by the appellant having referred to it in submissions going to the appellant’s state of mind at the time of the act of indecency (at [46)]. These grounds of appeal therefore failed (Charlesworth J agreeing at [83]).
The second set of grounds impugned two findings by the Magistrate: first, that the complainant had said “no” at the time of the indecent act; secondly that the appellant had said there was no contact with the complainant during a particular period of time. As to the first finding, the complainant had given evidence that she did not say anything. As to the second matter, the appellant had given evidence of such contact and this evidence had not been challenged. The prosecution conceded that these findings were erroneous but contended that there had been no miscarriage of justice because the appellant had not lost a chance of being acquitted that was fairly open to him (Mraz v the Queen [1955] HCA 59). Charlesworth J explained (at [106], [112] and [116]) that the error regarding the first finding undermined “the whole of the fact-finding process” because it went to a critical issue, and the error regarding the second finding reflected the Magistrate proceeding as if the appellant had not given evidence that he in fact had, and so the errors had deprived the appellant of a chance at an acquittal. This set of grounds were made out (Burns and Loukas-Karlsson JJ agreeing at [55] and [64]).
The remaining grounds (that the Magistrate’s verdict was unreasonable, and that the Magistrate had failed to apply Liberato v The Queen [1985] HCA 66 which requires merely preferring the complainant’s evidence does not conclude the issue of whether the charges are proven) were not considered by Charlesworth J (at [122]) and were rejected by Burns and Loukas-Karlsson JJ (at [70] and [80).
The appeal was allowed and a retrial was ordered.
Supreme Court of the Australian Capital Territory
Sentence
R v Hurt (No 2) [2021] ACTSC 241.
The Supreme Court (Mossop J) sentenced an offender for various child abuse material offences contrary to the Criminal Code 1995 (Cth). The sentencing was subject to the mandatory minimum sentence regime introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). Two issues were contested.
The first issue was whether the legislature’s chosen mandatory minimum sentence was to be treated as reflecting a legislative judgment about what sentence is appropriate for the least serious case (i.e. whether it created a new “floor” for the sentencing discretion) or whether it merely requires the court to impose that sentence where otherwise the court would impose a lesser sentence. The former approach was attributed to Bahar v The Queen [2011] WASCA 249, and the latter to Dui Kol v The Queen [2015] NSWCA 150. Mossop J stated that he considered he was obliged to follow the approach in Bahar despite not being satisfied that it was correct. His Honour explained that “the uniform acceptance of that approach by other intermediate courts of appeal” compelled him to follow it (at [94]). His Honour offered eight distinct reasons why Bahar might be wrong (at [77]–[92]), all of which treat the problem as one of statutory interpretation. The reasons range from the text of the statute, to extrinsic materials, to the principle of legality.
The second issue was whether the amendment made by the 2020 Act to the maximum penalty applied in relation to all the material that was the subject of the possession offence, where some of it had been acquired before the amendment. Mossop J held that the amendment only applied in relation to material acquired after the amendment was made (at [106]). This turned on the wording of the transitional provision, which applied the amendments to “conduct engaged in on or after [the amendments]” and the fact that the conduct that the offence provision fixed on included the conduct of accessing the material - see [103] and [104].
R v Rosewarne [2021] ACTSC 217.
The Supreme Court (Murrell CJ) sentenced an offender who had pleaded guilty to 50 offences, including property offences, drug offences, and offences against the person. The offender was young and came from a background of “severe disadvantage” (at [165]). The relevance of the offender’s drug use arose for consideration during sentencing. Murrell CJ observed that “[t]he voluntary consumption of drugs by an adult may explain but cannot excuse criminal conduct” (at [157]). However, it was submitted for the offender that the drug use was “not truly voluntary” because “from early childhood, substance abuse had been ingrained”, and so the offender’s culpability was “somewhat reduced” (at [157]). Murrell CJ accepted this submission, observing that “[p]arental substance abuse and domestic violence can have an intergenerational effect, making intergenerational substance abuse almost inevitable and normalising violent behaviour and crime within a family or community” (at [158]).
Trial
R v McIver; R v Williams [2021] ACTSC 227.
The Supreme Court (Elkaim J) tried an accused (McIver) by judge alone and acquitted him of the offences charged. First, however, His Honour “split” the hearing of the cases against each accused without formally severing them (at [23]). This unusual course was taken in the context of the other accused (Williams) failing to appear on the second day of the hearing and ultimately obtaining several adjournments for medical reasons, the latest of which had the “ultimate purpose that a verdict of Not Guilty by reason of mental impairment be entered in her case” (at [19]). The procedural result was that “the evidence already before the Court in respect of Ms Williams will remain if there is any need to resume the hearing against Ms Williams” despite the fact that the trial in respect of the McIver has proceeded to verdict (at [24]). The decision to “split” the cases in this way was made in part because “both the Crown and Mr McIver wished to proceed with Mr McIver’s case” and in the context of the most recent psychiatric report regarding Williams conceding her presence during the offences, which she had previously disputed (at [22]).
Elkaim J explained that “it became obvious that there was only one issue to be decided”: whether Mr McIver was “knowingly concerned” in the offences,noting that “in this case it is quite obvious…that it was Ms Williams who actually committed the offences” (at [86]). The case was thus one in which complicity, under s 45 of the Criminal Code 2002 (ACT) was alleged. Noting that there was no ACT jurisprudence on the meaning of the phrase “knowingly concerned” as it appears in that section (at [88]), His Honour ultimately applied the approach in R v Tannous (1987) 10 NSWLR 303 which required that the accused “do something to connect himself or involve himself”. Elkaim J ultimately decided that the prosecution case was “essentially that [McIver’s] mere presence in the vehicle [involved in the offence] is an indication of his guilt” and decided that this conclusion was unavailable (at [101]).
Northern Territory
Court of Criminal Appeal
Conviction
Willcocks v The Queen [2021] NTCCA 6.
The Court of Criminal Appeal (Grant CJ, Kelly and Blokland JJ) granted an application for leave to appeal against a conviction of sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT), but dismissed the appeal. The offence concerned a “dildo show” performed by the complainant as part of a sexual performance at a buck’s party. The complainant conceded that on similar occasions she had allowed men to place dildos in her vagina, and that this had possibly happened on this occasion. During the show the applicant inserted the neck of a beer bottle into the complainant’s vagina.
The first ground of appeal asserted that the jury could not have been satisfied beyond reasonable doubt that the fault element regarding consent was established. The Court explained the three ways that this fault element could have been established (at [17]): the applicant must have known the complainant was not consenting; or the applicant must have been aware of a substantial risk that she was not consenting but unjustifiably took that risk; or the applicant did not give any thought as to whether the complainant was consenting. The applicant argued that “contextual evidence” (regarding whether other men had been allowed to inserted dildos, and whether the complainant had announced a “no touching” rule), and the applicant’s surprise and apology when the complainant reacted negatively, meant none of these alternatives was available; indeed, the applicant argued that the evidence established a reasonable possibility that he had judged that consent had been given - to him, the bottle was equivalent to a dildo. The Court accepted (at [25]) that “it may legitimately be argued that the jury ought to have entertained a doubt” regarding the first two ways that the fault element could be established. However, the Court rejected this ground of appeal, holding (at [25] to [27]) that the evidence did not require the jury to conclude that the applicant had actually turned his mind to the question of consent. It was open to the jury to regard the applicant’s evidence of his state of mind at the time as “a mixture of reconstruction and ex post facto reasoning”.
The second and final ground of appeal was premised on s 43AW of the Code, which abrogates criminal responsibility where a mistaken belief or ignorance of facts negates a fault element. The applicant argued that mistaken belief ought to have been put to the jury. This ground was also rejected. The Court explained (at [30] and [34]) that, in this case, “a state of satisfaction on the part of the jury … that the [applicant] did not give any thought to whether or not the complainant was consenting]” was necessarily incompatible with the applicant having a mistaken belief of the kind to which s 43AW applies. The Court held (at [40]) that the trial judge’s directions to the jury explained this adequately. The Court explained (at [41]) how the proposition that s 43AW is theoretically capable of being relevant to an offence against s 192(3) was irrelevant in this case for two reasons. First, the applicant’s evidence was not that he had held the relevant mistaken belief at the time of the offence; secondly, the “relationship and interactions” between the applicant and the complainant “were not of such nature or duration as could foster” the asserted mistaken belief.
Supreme Court of the Northern Territory
Evidence
The Queen v ML (No 2) [2021] NTSC 67.
The Supreme Court (Kelly J) made several rulings in a case in which the accused was charged with 11 counts of sexual offences against his step-daughter between 2006 and 2010, when she was aged between 13 and 18. These rulings were: a refusal to sever various counts, and rulings that certain evidence be admitted as tendency evidence, context evidence, and coincidence evidence.
The accused applied to sever one set of charges in the indictment from the remainder, on the basis that the first set were for offences during which the step-daughter was under 16 (“the under 16 offences”), and the remainder were for offences during which the stepdaughter was 16 to 18 years old (“the over 16 offences”). The Criminal Code Act 1983 (NT), at s 341A of Sch 1, provides a rebuttable assumption that sexual offences are to be tried together. Kelly J at [9] cited The Queen v AW [2018] NTSC 29 as authority for the proposition that “[i]f the evidence on the various charges is cross-admissible, that is a factor that points strongly to the conclusion that the charges should be tried together”.
The Crown contended that evidence of the over 16 offences (along with some evidence of uncharged acts) was tendency evidence for the purposes of the under 16 offences. Kelly J applied s 97A of the Evidence (National Uniform Legislation) Act 2011 (NT) (“Evidence Act”) and held, at [31], that “on the assumption that the jury accepts the evidence, the evidence set out in the tendency notice strongly supports proof of a tendency in the accused to have a sexual interest in KW which he was prepared to act upon”. Kelly J rejected an argument that a tendency to be sexually interested in the complainant once she had reached the age of 16 was significantly different from being sexually interested in before that age, having regard to the fact that the later offences were alleged to pertain to non-consensual conduct, and hence would be unlawful irrespective of her age (at [35]). One exception was evidence of a Valentine’s Day card sent to the complainant by the accused; His Honour ruled that this evidenced infatuation, which was different from sexual interest (at [39]). His Honour applied the test at s 101 of the Evidence Act and determined that the significant probative value of the evidence outweighed the danger of unfair prejudice, and that for this purpose too there was no distinction to be drawn between the under 16 offences and the over 16 offences. His Honour also held that the evidence in the tendency notice was relevant to the over 16 offences as context and relationship evidence because it is relevant to the issue of consent (at [49]) and as explanation of why the complainant did not complain at an earlier time (at [50]).
There was also a question of whether sexualised photographs of the complainant over the age of 16 (including photographs of the accused sexually abusing her) were relevant as coincidence evidence and tendency evidence. Critically, the context surrounding these photographs was that the complainant had reported, when she was 13, that the accused had taken sexualised photographs of her. The objection regarding the photographs being used as tendency evidence for the under 16 offences was dismissed for the same reasons that Kelly J declined to distinguish between the offences on the basis of age for the purposes of the other tendency rulings (at [64]). His Honour also ruled (at [61]) that they were admissible as coincidence evidence: “What are the odds that a 13-year old would make up a story about her step-father taking photographs of her genitals being manipulated by her step-father and that exact thing happening many years later?”
In the light of these rulings on cross-admissibility, the application for severance was refused.
Sentence Appeal
Firth v Namarnyilk [2021] NTSC 75.
The Supreme Court (Barr J) dismissed a prosecution appeal against a sentence of 10 days imprisonment (wholly suspended) following a plea of a guilty to a charge of contravening a domestic violence order, contrary to s 120(1) of the Domestic and Family Violence Act 2007 (NT).
The appeal was brought on the basis that s 121(5) of that Act had not been complied with. Section 121 sets out the penalty for contravention of a DVO; subsection (5) provides that “The court must not make an order for a person who has previously been found guilty of a DVO contravention offence if the order would result in the release of the person from the requirement to actually serve the term of imprisonment imposed.” The issue in the case was whether this was a free-standing restriction on sentencing (in which case the sentence was erroneously imposed) or whether it only applied where the court was bound by s 121(2), a mandatory sentencing provision that did not apply in this case.
The appellant cited obiter remarks in Arnott v Blitner [2020] NTSC 63 as authority for the proposition that s 121(5) was a free-standing provision. Ultimately, Barr J considered himself bound “as a matter of judicial comity and precedent” (at [36]) to follow this obiter and hold that s 121(5) was not limited to circumstances in which s 121(2) applied. His Honour did this despite being of the opinion that there provisions were linked in that way, because the matter was not sufficiently “clear-cut” as to compel His Honour to say that Arnott v Blitner was plainly or clearly wrong (at [37]). The reasons why Barr J thought the provisions were linked were textual (at [19] to [21]), based in extrinsic materials (at [22] to [24]), and based in a desire to avoid an unreasonable result by which a court unconstrained by the lead mandatory sentencing provision (and hence able to choose from many sentencing options) would be bound by “an illogical fetter” should it choose imprisonment (at [25]).
Despite finding that s 121(5) should have been applied, but was not, Barr J dismissed the appeal on the basis that no miscarriage of justice had occurred, because “it would be inappropriate to require the respondent to be returned to prison more than ten months after being released on a suspended sentence, to serve a period of nine days” (at [38]).