Friday, 16 September 2016
Weekly Criminal Law Review
Editor - Richard Thomas of Counsel
A Weekly Bulletin listing Decisions
of Superior Courts of Australia covering criminal
Search Engine
Click here to access our search engine facility to search legal issues, case names, courts and
judges. Simply type in a keyword or phrase and all relevant cases that we have reported in
Benchmark since its inception in June 2007 will be available with links to each case.
Executive Summary
Clapham v R (NSWCCA) - criminal law - sentence appeal - failure of lawyers to adequately
prepare and present applicant’s case on sentence - failure to verify prosecution drug analysis
or to show applicant Crown Statement of Facts - sentence quashed, remitted for sentence
Des Rosiers v R (NSWCCA) - criminal law - Muldrock and Kentwell errors - proper approach
on re-sentencing - appellant already on parole - relevance of post release conduct and delay to
re-sentencing
Olivieri v R (NSWCCA) - criminal law - murder - circumstantial case - conviction appeal extension of time - appeal some 8 years after conviction - appellant convicted of murdering a
solicitor - police conducted a controlled operation (ss6 &8 Law Enforcement (Controlled
Operations) Act 1997 (NSW)) - false story published during operation argued subterfuge
rendered evidence obtained inadmissible - extension of time granted, appeal dismissed
R v Hosseiniamraei (NSWSC) - criminal law - murder - sentence - offender murdered
estranged wife in ferocious attack because she had “violated ”the “rule of marriage” - objective
seriousness above mid-range - general deterrence significant - sentenced to 21 years, NPP 15
years 9 months
Osman v DPP (No2) (NSWSC) - criminal law - judicial review (s69 Supreme Court Act 1970
(NSW)) - interlocutory appeal from decision of Local Court - costs-plaintiff charged with 5
offences - one offence indictable - prosecution failed to elect within time - leave granted by LC
Page 1
with respect to all offences - no explanation for delay - plaintiff sought judicial review - LC order
limited to summary offences - plaintiff to pay costs
R v Stanford, Marcus (NSWSC) - criminal law – sentence - accessory after the fact to murder offender’s twin brother murdered Stephanie Scott - offending at lower end - no purpose in
setting parole period-fixed term 1 year 3 months
Short v The Queen (VSCA) - criminal law - conviction and sentence appeal - applicant involved
at the high end of a large drug syndicate - pleaded guilty to trafficking in a drug of dependence
(methylamphetamine) and 5 summary offences - effective sentence of 8 years 6 months, NPP 5
years, 6 months - error in transferring indictable charges to County Court - sentence manifestly
excessive - resentenced
Wilson v DPP (VSCA) - criminal law - bail - show cause (s4(4)(c) Bail Act 1977 (Vic)) appellant suffering from Schizophrenia attempted to murder her mother - defence of mental
impairment open - bail refused - appellant at risk of losing her entitlement to housing if bail
refused - whether the appellant posed an unacceptable risk - no error disclosed - appeal
dismissed
Phillips v Police (SASC) - criminal law - conviction appeal - stalking (s19AA Criminal Law
Consolidation Act 1935 (SA)) - whether “apprehension or fear” limited to physical harm - s19AA
not limited to physical harm - appeal dismissed
Summaries With Link (Five Minute Read)
Clapham v R [2016] NSWCCA 198
Court of Criminal Appeal of New South Wales
Price, Davies & Garling JJ
Criminal law - sentence appeal - failure of lawyers to adequately prepare and present
applicant’s case on sentence - applicant pleaded guilty to 4 counts - possession of loaded
firearm in public place (s93G(1)(a)(i) Crimes Act 1900 (NSW), aggravated possession of
unregistered firearm (s931(2) Crimes Act 1900 , malicious damage property by fire (s195(1)(b)
Crimes Act 1900, deemed supply large commercial quantity of prohibited drug (s25(2) Drug
Misuse and Trafficking Act 1985 (NSW) - sentenced to 16 years, NPP 10 years - 3 grounds of
appeal relied upon - ground 3 alleged applicant’s solicitor and counsel failed to adequately
prepare and present applicant’s case on sentence - ground 3 conceded by Crown - held:
applicant sentenced on basis that he had between 95,230 and 119,037 theoretical doses of
prohibited drug 251 - NBOMe with a street value of $ 381,000 - $1.4 million - applicant
instructed his lawyers that he paid $60 for 3 grams of the drug and that the balance was sugar his lawyers failed to have the prosecution drug analysis verified - applicant’s lawyers failed to
show him the Crown Statement of Facts - applicant had a significant case in mitigation that was
Page 2
not put before the sentencing judge and which was relevant to the assessment of the objective
seriousness of the offending - this was an exceptional case where compelling material was
available on sentence and not adduced, causing a miscarriage of justice - leave to appeal
granted - sentence quashed - matter remitted for sentence.
Clapham
Des Rosiers v R [2016] NSWCCA 196
Court of Criminal Appeal of New South Wales
MacFarlan JA, Hall & Bellew JJ
Criminal law - Muldrock and Kentwell errors - proper approach on re-sentencing - 24 February
2005 appellant sentenced to periods of imprisonment on pleas of guilty on 4 counts (plus Form
one matters) of supply large commercial quantity, indictable quantity, trafficable quantity and
supply - LSD, MDMA and cannabis - ss25(1) & 25(2) Drug Misuse and Trafficking Act 1985 - on
count one the appellant was sentenced to 18 years - on 10 February 2006 an appeal against
sentence was allowed, but the overall sentence and NPP period remained unchanged following the High Court decision in Muldrock (Muldrock v The Queen (2011) 244 CLR 120) the
appellant applied under s78(1) Crimes (Appeal and Review) Act 2001 for his case to be referred
to the Court for further appeal - this application was refused - relying upon Kentwell v The
Queen ((2014) 252 CLR 601), Buttrose v Attorney General ((2015) 324 ALR 562) and
Muldrock, the appellant made a further successful application and his case was referred to the
Court to be dealt with as an appeal - the appeal was limited to count one, the appellant having
been released on parole on 20 April 2016 - the Crown conceded that the decision on 10
February 2006 was inconsistent with Muldrock - this error vitiated the exercise of the sentencing
discretion and in accordance with Kentwell that discretion had to be re-exercised - held: the
Muldrock error arose in treating subjective factors as relevant to the Court’s assessment of
objective seriousness - a re-sentencing court must make its own assessment of the appropriate
sentence, without allowing the original sentence to dictate, or guide, the exercise of its
discretion (Thammavongsa v R [2015] NSWCCA 107) - the Court must then compare the
appropriate sentence with that originally imposed and if it is less than the latter substitute it for
the latter(s6(3) Criminal Appeal Act 1912 ) - if it is more, the appeal should be dismissed - if
findings of fact made when the sentence was first imposed are not challenged on appeal, there
is no reason why the court should not adopt them in re-sentencing – count one was somewhat
in excess of the mid-range of seriousness - appellant’s post release conduct and the delay
were relevant matters on re-sentencing - a discount of 25% applied - taking into account the
importance of general deterrence and the appellant’s strong subjective case - appeal allowed sentence quashed - re-sentence on count one to 14 years, NPP 10 years 6 months - appellant
eligible for parole on 19 October 2014.
Des Rosiers
Olivieri v R [2016] NSWCCA 169
Court of Criminal Appeal of New South Wales
Leeming JA, Johnson & Harrison JJ
Page 3
Criminal law - murder - conviction appeal - extension of time - appeal some 8 years after
conviction - appellant convicted of murdering a solicitor who had discovered a fraud committed
by his accountant - Crown case was that the accountant, Norman, arranged for the appellant to
commit the murder - Crown case circumstantial - no fingerprints, DNA of forensic evidence
linking appellant to murder - time of death established by telephone records - police conducted
a controlled operation (ss6 & 8 Law Enforcement (Controlled Operations) Act 1997 (NSW)) argued the controlled operation certificate was invalid being produced for an improper purpose argued that the controlled operation deliberately induced in appellant a guilty state of mind by
the publication of a false storey designed to obtain statements capable of being used as
admissions - held: extension of time granted due to seriousness of matter, length of sentence
and concession by Crown - leave also granted (s5(1)(b) Criminal Appeal Act 1912 (NSW)) to
the extent necessary to deal with appeal on its merits - the operation of the Law Enforcement
(Controlled Operations) Act is authoritatively stated in (Gedeon v NSW Crime Commission 236
CLR 120) - subterfuge is an accepted part of police investigation and an inherent part of
undercover operations - to the extent that the controlled operation led to the discovery of
relevant significant evidence, it was not unfair to use that evidence against the appellant - no
error disclosed in the admission of intercepted conversations made after publication of the false
storey - other grounds of appeal failed to disclose error and were largely misconceived - appeal
dismissed.[Editor’s note: sentence hearing is reported at R v Olivieri; R v Norman [2006]
NSWSC 882].
Olivieri
R v Hosseiniamraei [2016] NSWSC 1181
Supreme Court of New South Wales
R A Hulme J
Criminal law - murder-sentence - offender murdered estranged wife in ferocious attack because
she had “violated ”the “rule of marriage” - held: while the attack on the deceased was not
seriously planned, it was ferocious and the offender’s intention was to kill his estranged wife the objective seriousness above mid-range - offender’s moral culpability less due to mental
condition, but he killed the deceased in a callous and brutal manner in the context of physical
violence and threats to kill her - no genuine remorse - 25% discount - general deterrence is a
matter great significance in matters of this kind - personal deterrence and adequate punishment
are important here - sentenced to 21 years, NPP 15 years 9 months.
Hosseiniamraei
Osman v DPP [2016] NSWSC 1222
Supreme Court of New South Wales
Campbell J
Criminal law - judicial review (s69 Supreme Court Act 1970 (NSW)) - interlocutory appeal from
decision of Local Court - plaintiff charged with 5 offences - possessing prohibited drugs, dealing
with proceeds of crime, supply (s10(1) Drug Misuse and Trafficking Act 1985 (NSW)) (DMT);
s193(c)(1) Crimes Act 1900 (NSW); s25(1) (DMT) - except for the s25(1) (DMT) offence which
Page 4
was indictable, the other offences were summary matters - the DPP was required to elect to
prosecute on indictment by 22 July 2015, but failed to do so (s263(1) Criminal Procedure Act
1986 (NSW)) (CP), cl 5.3 Practice Note LC Crim 1 - the prosecution subsequently sought leave
to make the election, but in its submissions failed to distinguish between the summary and the
indictable offences - no explanation was provided for the delay - the Deputy Chief Magistrate
granted leave (s263(2) (CP)) with respect to the 5 offences charged - the plaintiff challenged the
decision, seeking judicial review pursuant to s69 Supreme Court Act 1970 - held: the decision
under s263(2) is suffiently connected with the ultimate decision of the plaintiff’s guilt and its
consequences to have a discernible effect upon his legal rights (Hot Holdings Pty Ltd v Creasey
(1996) 185 CLR 149 applied) - the plaintiff asserted jurisdictional error and error on the face of
the record - see Craig v South Australia (1995) 184 CLR 163 - the decision of Hall v R ([2015]
NSWCCA 298) deals with the proper construction and application of s263 (2) - paragraphs [40]
to [62] of Hall are “binding dicta”, binding courts below the CCCA (Farah Constructions Pty Ltd v
Say-Dee Pty Ltd (2007) 230 CLR 89) - an explanation for the non-compliance with s263(1) is a
requirement that the Local Court is bound to take into account in making a decision under the
section - the need for “special circumstances” required some explanation for the relevant delay
to justify a favourable decision under s263(2) - here, no explanation was provided by
inadvertence - the Deputy Chief Magistrate erred by treating all charges as susceptible to a
grant of leave-this constituted jurisdictional error as an implicit misconstruction of the statute the failure to identify the need for an explanation for the delay constituted error on the face of
the record, but this error did not have operative effect - here there was ample evidence of
special circumstances - relief granted to limit the effect of the order, granting leave to proceed
with respect to the indictable charge only - plaintiff to pay defendant’s costs [Editor’s note:
earlier proceedings Osman v DPP [2016] NSWSC 959].
Osman
R v Stanford, Marcus [2016] NSWSC 1174
Supreme Court of New South Wales
R A Hulme J
Criminal law - sentence - accessory after the fact to murder - offender’s twin brother murdered
Stephanie Scott - offender received 2 rings belonging to the deceased and a driver’s licence
from his brother, failed to reveal his receipt of the items to the police and subsequently deposed
of them - held: R v Johnson identifies matters relevant in assessing the moral culpability of
offenders and the seriousness of offences of accessory after the fact to murder - here, although
the act of disposing of the rings was appalling, the offending was towards the lower end of the
range - no prior record-no genuine remorse - 25% discount applied - no practical purpose in
allowing for a parole period - sentenced to fixed term of 1 year 3 months.
Stanford, Marcus
Short v The Queen [2016] VSCA 210
Court of Appeal of Victoria
Weinberg & Hansen JJA
Page 5
Criminal law - conviction and sentence appeal - applicant involved at the high end of a large
drug syndicate - applicant pleaded guilty to trafficking in a drug of dependence
(methylamphetamine) and 5 summary offences - effective sentence of 8 years 6 months, NPP 5
years, 6 months - argued sentencing judge erred in imposing a sentence of 9 months on one
summary charge when the maximum available penalty was 5 penalty units - argued sentencing
judge gave too great a weight to the needs for denunciation and general deterrence and erred
in characterising the seriousness of the offending - held: the imposition of a sentence of 9
months on the summary charge constituted error - further, two charges were indictable and
applying Nguyen v The Queen ((2012) 272 FLR 58) neither could be transferred under ss145 or
243 Criminal Procedure Act 2009 to the Country Court - sentence imposed on one count
manifestly excessive - application for leave allowed, summary charges remitted to Magistrate’s
Court - applicant re-sentenced, effective term 6 years 10 months, NPP 4 years 3 months.
Short
Wilson v DPP [2016] VSCA 204
Court of Appeal of Victoria
Redlich, Kaye JJA & Cavanough AJA
Criminal law - bail - show cause - appellant, a long term suffer of Schizophrenia requiring
medication, suffered a relapse and attempted to murder her mother - she was arrested and
charged with 4 offences, including attempted murder and bail was refused - her mental
condition supported a defence of mental impairment - if she was refused bail then she would
lose her right to housing provided by Woman’s Housing Limited and her mental health would
be significantly affected if she was rendered homeless - the appellant was required to show
cause why her detention was not justified (s4(4)(c) Bail Act 1977 (VIC) - held: the right of appeal
of an accused person (or the DPP) in respect of a refusal of bail is well established (Dale v DPP
[2009] VSCA 212) - to succeed the appellant must show material error of law or that the primary
judge relied on a finding of fact, or reached a conclusion, not open on the evidence (Fernandez
v DPP [2002] VSCA 115; Robinson v The Queen [2015] VSCA 161) - whether there is an
unacceptable risk is determined by whether there is a sufficient likelihood of the occurrence of
the risk which makes it unacceptable - it was necessary for the judge to determine whether it
was likely the appellant would be released on a non-custodial supervision order if she
established a defence of mental impairment - the determination that a custodial supervision
would be made was open on the evidence - the primary judge appropriately addressed the
issue of the effect a refusal of bail might have on the appellant’s housing entitlement - there
was ample evidence justifying the judge’s conclusion that there was a unacceptable risk that he
appellant would cause harm to her mother and possibly others if released on bail - the
“protective factors” identified by the appellant did not sufficiently alleviate the gravity of the risk
- appeal dismissed.
Wilson
Phillips v Police [2016] SASC 135
Supreme Court of South Australia
Page 6
Kourakis CJ
Criminal law - conviction appeal - the appellant and victim trained young cyclists - the victim
heard rumours that the appellant had behaved inappropriately towards a young woman whom
he was training and he passed on the information - the appellant was suspended from training
cyclists - the victim then became a police officer and he received a series of private Facebook
posts from the appellant alleging that he had an unlawful sexual relationship with another young
cyclist and threatened to inform the police - the appellant then posted public Facebook posts
which included statements referring to the victim as a corrupt police officer who broke the arm of
a person in custody - the appellant was convicted of stalking (s19AA Criminal Law
Consolidation Act 1935 (SA) (CLCA)) and appealed-the primary issue was whether the words
“apprehension or fear” in the definition of stalking (s19AA CLCA) are limited to the apprehension
or fear of physical harm - held: s19AA is directed to the mischief of wide ranging psychological
consequences and there is no textual basis for reading into the section words limiting it to the
fear or apprehension of physical harm - Sleeman v Police 199 LSJS 420 distinguished-here, the
communications were reasonably capable of causing an apprehension that false accusations
would continue to be made against he victim for the purpose of having him charged and
imprisoned - having regard to the victim’s position as a police officer the making of the
communications was likely to cause serious apprehension and fear of adverse consequences the appellant admitted that that was his intention - appeal dismissed.
Phillips
Page 7
November Night
By Adelaide Crapsey
Listen.
With faint dry sound,
Like steps of passing ghosts,
The leaves, frost - crisp'd, break from the trees
And fall.
Click Here to access our Benchmark Search Engine
Page 8
Powered by TCPDF (www.tcpdf.org)