Friday, 29 July 2016
Weekly Criminal Law Review
Editor - Richard Thomas of Counsel
A Weekly Bulletin listing Decisions
of Superior Courts of Australia covering criminal
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Executive Summary
Erazo v The Queen (NSWCCA) - criminal law - severity appeal - multiple sexual offences upon
step daughter - last offence resulted in pregnancy which was terminated - aggregate sentence
imposed 14 years, NPP of 10 years - whether sentence manifestly excessive - sentencing judge
erred in finding family home constituted an aggravating factor - authorities should be revisitedappeal dismissed
Director of Public Prosecutions (NSW) v Tilley (NSWSC) - criminal law-appeal from
magistrate dismissing charge - duty to give reasons - reasons insufficient to expose magistrates
reasoning process - appeal allowed - matter remitted - costs
R v Obeid (No. 11) (NSWSC) - Criminal law - wilful misconduct in public office - recklessness trial ruling on elements of common law offence - offence made out where accused is reckless
Singh v The Queen (VSCA) - criminal law - conviction appeal - defence of mistake under
Commonwealth Criminal Code - availability of alternative offence - failure to obtain particulars
and require prosecution to identify act of dealing relied upon - applicant deprived of opportunity
to be convicted of lesser offence - appeal allowed & applicant resentenced
Bayley v The Queen (VSCA) - criminal law - conviction appeal - identification evidence appellant identified from Facebook and by photo board - appellant, already serving life sentence
for murder of Gillian Meagher, sentenced of 18 years with non-parole period of 43 years after 3
further trials - whether verdicts unsafe and unsatisfactory - conviction based upon identification
evidence quashed - IMM v The Queen applied - new non-parole period of 40 years imposed
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Haddara v The Queen (VSCA) - criminal law - severity appeal - trafficking in
methylamphetamine (“ice”) and cannabis - applicant suffering from PTSD and major
depression - sentenced to 2 years, NPP 14 months - sentencing judge erred by having regard
to the harmful effects of ice (R v Pidoto and O’Dea (2006) 14 VR 269) - prevalence of trafficking
in ice relevant to determination of general deterrence - sentence lenient - appeal dismissed
Poole v Edwards (ACTSC) - criminal law - driving while disqualified - honest and reasonable
mistake of fact-conviction appeal - appellant disqualified for 12 months - appellant mistakenly
believed period was 6 months and drove - appellant was charged as a repeat offender,
convicted and sentence to 3 year Good Behaviour Order and disqualified - appellant’s mistake
was one of law - appeal dismissed - mistake relevant on sentence - resentenced, no conviction
recorded
Summaries With Link (Five Minute Read)
Erazo v The Queen [2016] NSWCCA 139
New South Wales Court of Criminal Appeal
Ward JA, Davies J, R S Hulme AJ
Criminal law - severity appeal - multiple sexual offences upon step daughter - 6 counts of
aggravated sexual intercourse without consent, 6 other offences taken into account on a From 1
- offences committed between 2000 and 2005 - last offence resulted in pregnancy which was
then terminated - aggregate sentence imposed 14 years, NPP of 10 years - whether sentence
manifestly excessive - whether applicant’s good character prior to offending relevant on
sentence - whether offences occurring in the family home constituted an aggravating factor appeal lodge out of time - application for extension of time to appeal - application opposed by
Crown - held: the prospects of success on an appeal are relevant on an application to extend
time (Kentwell v The Queen (2014) 252 CLR 601) - here the explanation for the delay was
inadequate - the factual findings were amply open to the sentencing judge - psychological and
emotional damage to children from sexual abused can be assumed (R v Tuala [2015] NSWCCA
8; R v Gavel (2014) 239 A Crim R 469; R v MJB [2014] NSWCCA 195) - on the present state of
the law in NSW (R v Comert [2004] NSWCCA 125; Ingham v R [2010] NSWCCA 88) the
sentencing judge’s finding that it was an aggravating factor that the offence took place in the
family home constituted error - the authorities should be revisited - the way good character is
employed in sentencing considered - (Ryan v The Queen 206 CLR 267) applied - here the
applicant’s prior good character should have been a mitigating factor to a “small extent” - here
the offending was very serious and no lesser sentence that that imposed by the sentencing
judge was appropriate - extension of time granted, leave to appeal granted, appeal dismissed.
Erazo
Director of Public Prosecutions v Tilley [2016] NSWSC 984
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New South Wales Supreme Court
Bellew J
Criminal law - appeal from magistrate dismissing charge-duty to give reasons - defendant
charged with failing to report contrary to s17(1) Child Protection (Offenders Regulation) Act
2000 (NSW) - Director appealed (Crimes (Appeal and Review) Act 2001 (NSW)) seeking orders
setting aside magistrate’s order and remitting the matter to the Local Court-grounds of appeal
that magistrate failed to provide adequate reasons and erred in dismissing the proceedings held: when a magistrate determines to dismiss a charge there is an obligation to give such
reasons as will enable a proper understanding of the basis upon which the decision has been
reached - such reasons are necessary to enable a party to exercise a right of appeal and it is
unsatisfactory for an appeal court to be required to examine exchanges between bench and
counsel in order to ascertain the reasons for a decision - a failure to give reasons may itself
disclose error of law - taking into account the restrictions of a busy list it is sufficient if the
reasons expose the reasoning on critical points - DPP v Sadler [2013] NSWSC 718; DPP v
Illlawarra Cashmart Pty Limited (2006) 67 NSWLR 402; DPP (NSW) v Wililo [2012] NSWSC
713 approved - here the magistrate failed to identify either the elements of the offence which he
considered had not been established, or the findings of fact and the legal principles he relied
upon-error relied upon by the Director made out - appeal allowed-order of magistrate Holmes
set aside-matter remitted to Local Court - submissions on costs to be made.
Tilley
R v Obeid (No. 11) [2016] NSWSC 974
New South Wales Supreme Court
Beech-Jones J
Criminal law - wilful misconduct in public office - recklessness-trial ruling on elements of
common law offence - accused argued that actual knowledge of wrongdoing required - UK,
Australian and Hong Kong authorities considered (R v Quach (2010) 201 A Crim R 522; Obeid v
R [2015] NSWCCA 309; Shum Kwok Sher v HKSAR [2002] HKCFA 27; Attorney-General’s
Reference (No 3 of 2003) [2005] QB 73, Sin Kam Wah v HKSAR [2005] HKCFA 29) - clear
position in UK and Hong Kong that recklessness is sufficient - held: the common law offence of
wilful misconduct in public office is made out where the accused is reckless as to whether their
act or omission was in breach of the duties and obligations attaching to their office.[Editor’s
note: Crown case outlined in Obeid v R (No.2) [2015] NSWSC 1380].
Obeid
Singh v The Queen [2016] VSCA 163
Victorian Court of Appeal
Ashley, Kyrou & Ferguson JJA
Criminal law - application to appeal conviction and sentence - convicted of dealing with money
valued at more than $100,000 reasonably suspected of being proceeds of crime (s400.9(1)
Criminal Code 1995 (Cth)(Code)) - sentenced to 14 months, with release on recognizance after
serving 9 months, to be of good behaviour for 2 years - at trial, prosecution relied on applicant’s
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act of receiving the money and on his act of possessing it, as the “dealing” sufficient to satisfy
s400.9(1)(a) - defence counsel did not require Crown to elect - particulars were not requested or
provided - applicant relied on partial defence of mistake (s400.10), arguing that when he
received the money he believed its value was less than $100,000 and that it was not the
proceeds of crime - held: the physical elements in paras (b) & (c) of s400.9(1) do not have a
fault element - to satisfy s400.9 (1)(c) the prosecution must prove that at the time of the dealing
the value was $100,000 or more and it was not required to prove that the accused knew that
was the value - s400.9 (1)(b) does not require contemporaneity between the dealing and the
accused’s suspicion (DPP v Pastras (2005) 11 VR 449 applied) - s400.10(1) imposes an
evidential burden on the accused and once that burden is discharged, s13.1(2)places the legal
burden of disproving the matters set out in s400.10(1) upon the prosecution - where the partial
defence (s400.10) is enlivened, the jury may convict the accused of an alternate offence with a
lower maximum penalty - the phrase “at or before” in s400.10 is a composite expression
meaning at any time up to and including the time of the act of dealing - if there is evidence that
the accused had a mistaken, but reasonable belief, that the value was less than $100,00 at the
time of its receipt (the commission of the offence) the evidentiary burden will be discharged- the
trial judge’s ruling that s400.9(1) establishes a continuing offence was in error-here, due to the
unparticularised charge and the failure to request prosecution elect between receipt and
possession, the applicant was deprived of an opportunity to be convicted of an offence carrying
a substantially lower penalty - application for leave to appeal conviction granted, appeal allowed
and conviction set aside-in lieu, conviction entered for alternative offence against s400.9 (1A) of
the Code (s 277(1)(c) Criminal Procedure Act 1009) - resentenced to 10 months, to be released
on recognizance after 6 months, to be of good behaviour for 2 years.
Singh
Bayley v The Queen [2016] VSCA 160
Victorian Court of Appeal
Warren CJ, Weinberg & Priest JJA
Criminal law - conviction appeal - identification evidence - appellant identified from Facebook
and by photo board (the first trial) - admissibility of telephone and CCTV records (the third trial) whether verdicts unsafe and unsatisfactory - application for leave to appeal sentence - whether
non-parole period manifestly excessive - applicant had been sentenced to life imprisonment for
the rape and murder of Gillian Meagher (NPP 35 years) and subsequently faced 3 further trials
for offences perpetrated against 3 other complainants - appellant convicted in each trial and
sentenced to 18 years with new non-parole period of 43 years-appellant appealed verdicts of
guilt and argued non-parole period manifestly excessive - held: (IMM v The Queen (2016) 330
ALR 382) identifies the correct approach to the admissibility of the identification evidence - in
assessing the probative value of the evidence the trial judge must assume the jury will accept
the evidence and no question arises as to credibility or reliability - here the Facebook
identification by the complainant was made from a single photograph, 12 years after the attack the photo was taken 11 years later and the complainant knew that the individual in it had been
charged with rape and murder - the problematic aspects of identification evidence, including the
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“displacement effect”, considered - authorities considered at length - here the identification was
no better than a “dock identification” - the photo board identification was even less worthy of
credence as it was made after the Facebook identification - no matter what directions were
given, the danger of unfair prejudice was substantial - the evidence should have been excluded
- the convictions sustained in the first trial quashed and verdicts of acquittal entered - leave to
appeal convictions in third trial granted, appeals dismissed - a new non-parole period of 40
years set.
Bayley
Haddara v The Queen [2016] VSCA 168
Victorian Court of Appeal
Redlich, Priest & Beach JJA
Criminal law - severity appeal - trafficking in methylamphetamine (“ice”) and cannabis additional counts including obtaining by deception and possession of prohibited weapon applicant suffering from PTSD and major depression - discount for early plea-sentenced to 2
years, NPP 14 months - main ground of appeal that sentencing judge erred by having regard to
the harmful effects of ice - held: the sentencing judge erred by taking into account that ice has
“addictive quantities”, leads to violence and that its impact on the community cannot be
overestimated - this approach constituted error - (R v Pidoto and O’Dea (2006) 14 VR 269
applied - Adams v The Queen (2008) 234 CLR 143 and R v Pham 325 ALR 400) approved - the
increased prevalence of the offence of trafficking in ice is a proper matter for a sentencing court
to take into account when assessing the weight to be given to general deterrence - here it would
be inappropriate to take into account that increased prevalence as it was not a matter raised
before the sentencing judge - need for legislative reform considered - leave to appeal granted
on ground that sentencing judge erred by having regard to the harmful effects of ice - sentence
lenient - it was for the applicant to demonstrate that there was a real connection between his
mental disorder and the offending - no connection demonstrated - appeal dismissed.
Haddara
Poole v Edwards [2016] ACTSC 159
Supreme Court of the Australian Capital Territory
Refshauge J
Criminal law - driving while disqualified-honest and reasonable mistake of fact-conviction appeal
- appellant’s licence suspended on accrual of 12 demerit points (s18 Road Transport (Driver
Licensing) Act 1999) - appellant drove and was charged with driving whilst suspended appellant convicted and automatically disqualified for 12 months - appellant unrepresented and
peripatetic - Notice of Disqualification sent to mother’s address - appellant did not receive
notice and drove - appellant believed Order applied only for 6 months - appellant arrested and
charged as repeat offender (s32(1)(a) Magistrates Court Act 1930) - convicted, sentenced to 3
year Good Behaviour Order, disqualified for 2 years-grounds of appeal manifest severity &
sentencing magistrate failed to properly consider appellant’s defence of Honest & Reasonable
Mistake - court procedure was to post Notice of Disqualification to offender’s address - no
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evidence appellant advised of disqualification - application to adduce further evidence on appeal
- jurisdiction and principles regulating appeals from Magistrates Court considered (Peverill v
Crampton [2010] ACTSC 79) - consideration of principles regulating the receipt of further
evidence on appeal (s214 Magistrates Court Act 1930 ; r5193 Court Procedure Rules 2006;
Grooms v Toohey (2012) 7 ACTLR 1) - held: while the offence was one of strict liability the
appellant was entitled to raise by way of excuse an honest and reasonable mistake of fact
(Proudman v Dayman (1941) 67 CLR 536; Pallett v Paul [2007] WASC 290; s36 Criminal Code
2002) - here the period of disqualification was imposed by virtue of the legislation and the
appellant’s mistake was one of law - the excuse of honest and reasonable mistake was not
open to him - appeal against conviction dismissed - appellant’s mistake was relevant on
sentence - appellant’s conduct not contumacious - a non-conviction order imposed (s17 Crimes
(Sentencing ) Act 2005).
Poole
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Piano
by D.H. Lawrence
Softly, in the dusk, a woman is singing to me;
Taking me back down the vista of years, till I see
A child sitting under the piano, in the boom of the tingling
strings
And pressing the small, poised feet of a mother who smiles
as she sings.
In spite of myself, the insidious mastery of song
Betrays me back, till the heart of me weeps to belong
To the old Sunday evenings at home, with winter outside
And hymns in the cosy parlour, the tinkling piano our guide.
So now it is vain for the singer to burst into clamour
With the great black piano appassionato. The glamour
Of childish days is upon me, my manhood is cast
Down in the flood of remembrance, I weep like a child for
the past.
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