IMPORTANT RECENT DECISIONS
Costs:
De Verda v Constable Stengord
(NSW Police) [2011] NSWSC 868.
Costs in Summary Proceedings – ss211 – 219
CPA, in particular s214 – Jurisdictional error by
Magistrate in applying the wrong test in deciding
whether to award costs to the defence after
dismissing the charge.
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The Magistrate failed to get over the first jurisdictional
hurdle, s32 (1), as the treating doctor’s report had stated “he
does suffer from a mental condition…” [per the 3rd proviso in
s.32(1)] but failed to add the remaining words of the section,
being “…for which treatment is available in a mental health
facility.”
The Court made it clear that if the defence is relying on s.32
(1)(a)(iii) to bring a matter within the jurisdiction of s.32, then
all three elements of that section must be specified in the
report, being:
 Suffering from a mental condition;
 For which treatment is available in a mental health
facility;
 But is not a mentally ill person.
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Although an appeal relevant to a sentence in
the District Court for an offence that carried a
standard non-parole period, this decision
reaffirms the correct approach to sentencing
in all types of cases as set out in Markarian v
The Queen (2005) 228 CLR 357, “instinctive
synthesis”. It is also a valuable judgement
when considering sentence for an accused
suffering from an intellectual disability.
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Deemed Supply (20 Ecstasy tablets, small amount
of cannabis on a Form1) dealt with in District
Court by a 2 year S10 Bond.
Crown Inadequacy appeal dismissed as NSWCCA
found “Her Honour’s sentence in this case was
not manifestly inadequate”
Per Harrison J “Considerations of extra curial
punishment may be relevant to the exercise of
the discretion conferred by section 10”
R v KNL [2005] NSWCCA 260
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If the seriousness of the present offence and the
need for denunciation and general deterrence are
important considerations, they are to my mind
more than adequately contemplated in this case
by both the terms and the duration of the bond
that has been imposed. The respondent has been
made subject to a judicially sanctioned
requirement that he be of good behaviour for a
period of 2 years. There are onerous
consequences that apply if he fails to observe
that requirement
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Drugs/S.12:
A 9 month Section 12 Suspended Sentence was
imposed in the DC for PPD(14.95 gms MDMA)
following a trial for Deemed Supply
The sentence was quashed in CCA and 9 month
Section 9 Bond imposed.
Analysis of sentencing for these types of matters:
“ It is not apparent from the mere nature and
circumstances of the offence that a sentence of
imprisonment was automatically called for. Nor when
one adds to the nature and circumstances of the
offence, the particular subjective of circumstances of
the applicant, is it at all obvious why a sentence of
imprisonment would be the only appropriate option
in the circumstances of the case”(at page 12, par71).
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“The quantity merited careful consideration as to
whether, in the light the fact that the jury had
accepted that the applicant was found in
possession of the drugs for his personal use, a
term of imprisonment was either warranted at all,
let alone whether it was the only appropriate
option in the circumstance of this case” (par 70,
p11)
“Accordingly it must be inferred that his Honour
increased the appropriate sentence of
imprisonment, if any period were appropriate,
because he was suspending the sentence. That
course was impermissible” (par 14, p15)
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Robbery Whilst Armed
Mental Illness/Cause of Drug Addiction:
Error in failing to take into account the
defendant’s mental state in assessing
objective gravity of the offence.
Error in characterising the defendant’s
addiction to prescribed medication as a
matter of personal choice
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“Addiction to illegal drugs is not generally a mitigating
factor, however, “there can be no doubt that addiction to
prescription drugs, albeit that they may be properly
described as “illicit” in circumstances in which they are not
appropriately prescribed, falls into a different category.
While there is usually an assumption that addiction to
illegal drugs commenced with unlawful activity resulting
from personal choice, the same cannot be said of the
offender’s addiction in the present case. His circumstances
should evoke a degree of sympathy, which, while not
excusing serious criminal misconduct, diminishes the level
of his moral responsibility to an extent and the need for a
response involving retribution or a significant level of
general deterrence” (Basten J par5,p4)
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Also quoted
Spigelman CJ “To the extent that mental
illness explains the offence … then an
offender’s inability to understand the
wrongfulness of his actions, or to make
reasonable judgements, or to control his or
her faculties and emotions, will impact on the
culpability of the offender, even where the
illness does not amount to an excuse at law”
R v Israil [2002] NSWCCA 255
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Dysfunctional Background:
A type of “Fernando” judgement that relates to any offender
who appears for sentence and has had a “tragic and
dysfunctional childhood”. Per Simpson J. at page 13, line 69:
I am not prepared to accept that an offender who has the
start in life that the respondent had bears equal moral
responsibility with one who has had what might be termed a
"normal" or "advantaged" upbringing. Common sense and
common humanity dictate that such a person will have fewer
emotional resources to guide his (or her) behavioural
decisions. I should not be taken as implying that such a
person bears no moral responsibility; but I consider that the
DPP's submission significantly underestimates the impact of a
dysfunctional childhood.
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R v AB [2011) NSWCCA 229:
“The utilitarian value flowing from a guilty plea is
not a fixed element, and can be eroded because of
the manner in which the sentencing hearing is
conducted…This acknowledges the fact that what
may be gained in utilitarian terms as a result of the
avoidance of a trial may be lost by way of a
protracted sentencing hearing involving the
adducing of evidence and the consumption of
public resources for a purpose ultimately
determined adversely to the offender …”
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Lawson v Dunleavy [2012] NSWSC 48
Decision of Justice Garling – analysis of what Bail
conditions can and can’t be – here the requirement
was “to submit to a breath test when requested to
by a Police Officer”. The Court found that such a
condition did not comply with legislative purpose.
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Overturns the decision in Blackwell v R
[2011] NSWCCA 93
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Only now need to have foresight of actual
harm as opposed to foresight of actual
bodily harm
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Amendments operate as of 21 June 2012
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RTA v Tamara O’Sullivan and others [2011] NSWSC
1258
If a Magistrate wishes to take into account the
period of licence suspension a defendant has had,
then the Magistrate must specify that in their
sentence that the period of suspension will form
part of the disqualification period, otherwise the
RTA will date the full period of disqualification
from the Court date.
Compellability: LS v DPP & Anor [2011] NSWSC
1016
Expert Evidence - Body Mapping: Morgan v R
[2011] NSWCCA 257
Expert Evidence – Lack of Impartiality by
Expert: Wood v R [2012] NSWCCA 21
Breach of Prosecutor’s Duties: Wood v R, supra
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Williams v DPP
[2011] NSWSC 1085
Held that Police not acting in the execution of
their duty when conducting an arrest in
breach of s. 99(3) of LEPRA.
S99 A police officer must not arrest a person for the purpose of
taking proceedings for an offence against the person
unless the police officer suspects on reasonable grounds that it
is necessary to arrest the person to achieve one or more of the
following purposes:
3(a) to ensure the appearance of the person before a court in
respect of the offence,
(b) to prevent a repetition or continuation of the offence or the
commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence
relating to the offence,
(d) to prevent harassment of, or interference with, a person who
may be required to give evidence in proceedings in respect of
the offence,
(e) to prevent the fabrication of evidence in respect of the
offence,
(f) to preserve the safety or welfare of the person.
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Covertly Recorded: ARS v R [2011] NSWCCA 266
The complainant covertly recorded a
conversation with the accused where he made
admissions of sexual abuse. There was no
error in allowing this evidence to be adduced
as a general admission.
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To Support Person:
JB v R [2012] NSWCCA 12
Admissions were made by JB to a support
person – these were admissible, and the
support person’s relationship with the
juvenile is not a protected relationship. The
admission of the evidence was not unfair
within s.90 EA.
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Juvenile Admissions – Not Recorded: CL v DPP
[2011]
NSWSC 943
CL charged with Agg.BE&S and Police relied on
admissions recorded in a Police notebook.
The Magistrate erred in holding that s281 only
applied to offences dealt with on indictment in
admitting evidence of the admissions when they
did not comply with s281 of the CPA. This section
requires that admissions be tape recorded for
indictable offences “other than an indictable
offence that can be dealt with summarily without
the consent” of the accused.
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DPP v Abouali [2011] NSWSC 110
Failure to give adequate reasons for its
findings constitutes an error of law.
DPP v Elskaf [2012] NSWSC 21
Red light case – Magistrate found no Prima
Facie case – found that her finding that
Witness evidence is unreliable without
analysis does not discharge judicial
obligation to give reasons.
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DPP v Wililo and Anor [2012] NSWSC 713
In dismissing the charge of assault the Magistrate
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failed to:
To distinguish between prima facie case
and whether, as a question of fact, the
charge had been proven;
Make any (or coherent) findings of fact; and
Set out any legal principles including the
elements of the offence charged, or to
apply those principles to the facts of the
case.
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FB v R [2011] NSWCCA 217: "...the
circumstances in which a trial judge may
legitimately intervene in a criminal trial
conducted without a jury will be wider [than
one with a jury]. In my opinion, it would be
quite inappropriate to restrict the capacity of
a trial judge sitting without a jury to clarify
matters, within legitimate or proper limits,
where that clarification is relevant to the
resolution of the issues before the court."
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DPP v Wililo & Anor, [2012] NSWSC 713:
Johnson J reiterated this principle when
delivering his decision to justify remitting this
matter for hearing in the Local Court to a different
Magistrate from that who first heard the matter:
“It is a fundamental principle of the law that, where
the Supreme Court decides a point of law on an
appeal from a Magistrate, that decision is binding
on all inferior courts in the State, with judges of a
court inferior in the hierarchy not being at liberty
to regard themselves as not bound by the decision
of the higher court. “ (at 157).
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Scissors are not a ‘knife” within the meaning
of
s3 (definition of blade)
and
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s11C (definition of knife)
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of the Summary Offences Act 1988