Golding v The King
[2024] NSWCCA 129
Para 97
…ibility that the applicant has lost a real chance of acquittal, [and therefore] it is necessary to address the merits of the ground”: Golding v R [2024] NSWCCA 129 at [50]. That is the approach I have taken, by addressing each of the grounds of appeal. That analysis satisfies me that no errors of the kind alleged by…
Geraghty v R
[2023] NSWCCA 47
Para 63
…e fact that the matters are “interrelated means that they are not necessarily to be addressed by a two-stage enquiry”: Geraghty v R [2023] NSWCCA 47 at [45] (‘ Geraghty ’).…
Bektasovski v The the King
[2022] NSWCCA 246
Para 59
…e consequence that the trial miscarried. However, in approaching the matter in this way, leave to appeal is required: Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [56].…
TL v The King
[2022] HCA 35
Para 63
…t to be proved by the evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (‘ Hughes ’); TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28] (‘ TL ’). The fact that the matters are “interrelated means that they are not necessarily to be addressed by a two-stage enquiry”: Geraghty v R [2023]…
Greenaway v R
[2021] NSWCCA 253
Para 143
…d to confirm that the indicative sentence in the present case was consistent with the indicative sentences in those decisions. Thus, in Greenaway v R [2021] NSWCCA 253 (‘ Greenaway ’), the offender committed what was described as “non-sexual physical assaults and…sexual assaults” upon young female inmates whilst he…
Kirby v R
[2021] NSWCCA 162
Para 139
…ot] the aggregate sentence reflects the totality of the criminality involved”: JM at [40]; Kerr v R [2016] NSWCCA 218 at [114]; Kirby v R [2021] NSWCCA 162 at [45].…
Sydney Trains v Batshon
[2021] NSWCA 143
Para 126
…pon the particular circumstances and the matters in issue. Although made in a different context, the remarks of Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [48] remain apposite: “[n]o mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important…
Kelly v R
[2021] NSWCCA 154
Para 141
…ed upon were insufficiently comparable or like the present matter. This can be demonstrated by reference to two of the decisions, being Kelly v R [2021] NSWCCA 154 (‘ Kelly ’) and Boatswain v R [2019] NSWCCA 238 (‘ Boatswain ’), that the applicant argued could be used to demonstrate the error in connection with the…
R v Bektasovski
[2021] NSWDC 304
Para 59
…the trial miscarried. However, in approaching the matter in this way, leave to appeal is required: Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [56].…
Aryal v R
[2021] NSWCCA 2
Para 154
…ly open, in my view. The aggregate sentence is within the range of sentences that reflect “the totality of [the] criminality involved”: Aryal v R [2021] NSWCCA 2 at [50], citing JM at [40]. There is nothing in the reasons of the trial judge, nor the outcome itself, suggestive of (or capable of supporting an infere…
Taitoko v R
[2020] NSWCCA 43
Para 136
…monstration of (patent) error may serve to explain why the sentence is excessive: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]; Taitoko v R [2020] NSWCCA 43 at [64].…
Rahman v R
[2020] NSWCCA 13
Para 147
…ght, to sentence”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304]; Hili at [54]; Rahman v R [2020] NSWCCA 13 at [29] (‘ Rahman ’).…
Franklin v R
[2019] NSWCCA 325
Para 144
…of the indicative sentence for count 4 with sentences indicated in similar cases may also be illustrated by reference to the decision in Franklin v R [2019] NSWCCA 325 (‘ Franklin ’), another sentencing decision relied upon by the applicant. In that case, the offender pleaded guilty to two counts of rape involving h…
R v Cattell
[2019] NSWCCA 297
Para 160
…It should be noted that the approach of the parties, in this Court and before the trial judge, was that, consistent with the decision in R v Cattell [2019] NSWCCA 297; (2019) 280 A Crim R 502 at [122](f), the non-parole period is set by applying s 44 of the CSP Act as it operated at the time of sentencing.…
Boatswain v The Queen
[2019] NSWCCA 238
Para 141
…resent matter. This can be demonstrated by reference to two of the decisions, being Kelly v R [2021] NSWCCA 154 (‘ Kelly ’) and Boatswain v R [2019] NSWCCA 238 (‘ Boatswain ’), that the applicant argued could be used to demonstrate the error in connection with the indicative sentence, and the manifestly excessive se…
R v Holder
[2019] SASCFC 73
Para 151
…an aggregate sentence, must assess whether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. The principle o…
R v Bauer
[2018] HCA 40
Para 66
…to assume that the jury will accept it: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52] (‘ IMM ’); R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69] (‘ Bauer ’); TL at [28]. The second is that no question of the credibility or reliability of the evidence can arise. That is clear from what was sa…
Kresovic v R
[2018] NSWCCA 37
Para 139
…g behind the aggregate sentence”, an indicative sentence may be suggestive of error in the assessment of the aggregate sentence: Kresovic v R [2018] NSWCCA 37 at [42]; JM at [40]. Nevertheless, even if an indicative sentence is considered excessive, that is not determinative as the ultimate question remains “whethe…
Obeid v R
[2017] NSWCCA 221
Para 4
…a real chance of acquittal”, nor has a “necessary element of a fair trial according to law [been] overlooked”: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]-[25] (at [96]-[99]).…
Hughes v The Queen
[2017] HCA 20
Para 63
…tendency is probative of the charged offences or the fact or facts sought to be proved by the evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (‘ Hughes ’); TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28] (‘ TL ’). The fact that the matters are “interrelated means that they are not…
Kearsley v R
[2017] NSWCCA 28
Para 114
…The trial judge took the “significant subjective factors” into account but, citing Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233 at [14], was mindful that “such subjective factors must not allow inadequate weight to be given to the objective gravity of the offending in the sentencing synthesis” (J[89]).…
Kerr v R
[2016] NSWCCA 218
Para 139
…timate question remains “whether [or not] the aggregate sentence reflects the totality of the criminality involved”: JM at [40]; Kerr v R [2016] NSWCCA 218 at [114]; Kirby v R [2021] NSWCCA 162 at [45].…
IMM v The Queen
[2016] HCA 14
Para 66
…uires the Court to take the proposed evidence at its highest – that is, to assume that the jury will accept it: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52] (‘ IMM ’); R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69] (‘ Bauer ’); TL at [28]. The second is that no question of the credibility o…
R v Harris
[2015] NSWCCA 81
Para 136
…he explanation for that approach lies in the fact that demonstration of (patent) error may serve to explain why the sentence is excessive: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]; Taitoko v R [2020] NSWCCA 43 at [64].…
JM v R
[2014] NSWCCA 297
Para 139
…t, it should be noted that, although an appeal does not lie against an individual indicative sentence, but is against the aggregate sentence ( JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (‘ JM ’)), it is accepted that, particularly given the “function performed by the indicative sentences is to set out…
Kentwell v The Queen
[2014] HCA 37
Para 148
…it follows that a range of sentences in a given case may be said to be ‘warranted in law’” ( Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]), so that “there will be a range of possible sentences that could be imposed without error”: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].…
Zreika v R
[2012] NSWCCA 44
Para 161
…Putting to one side that these submissions were not advanced before the trial judge (which is of itself disentitling: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]), no authority was advanced to support them. I do not accept that there are “principles” of this kind that mandate their application by s…
Caristo v R
[2011] NSWCCA 7
Para 163
…judgment”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [53] (‘ Simpson ’); R v Cramp [2004] NSWCCA 264 at [31]; Caristo v R [2011] NSWCCA 7 at [28]-[31].…
Hili v The Queen
[2010] HCA 45
Para 147
…sought to be derived is consistency in the application of legal principle, rather than mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] (‘ Hili ’). To this end, it has been said that the range of sentences that have been fixed does not fix “the boundaries within which future j…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194
Para 147
…oundaries within which future judges must, or even ought, to sentence”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304]; Hili at [54]; Rahman v R [2020] NSWCCA 13 at [29] (‘ Rahman ’).…
Cahyadi v R
[2007] NSWCCA 1
Para 151
…requires an assessment of whether the “sentence for one offence [can] comprehend and reflect the criminality for the other offence”: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] (‘ Cahyadi ’).…
R v MMK
[2006] NSWCCA 272
Para 151
…regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. The principle of totality, which determines whether sentences should be imposed concurrently or consecutively,…
R v Cramp
[2004] NSWCCA 264
Para 163
…in the formulation of a discretionary judgment”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [53] (‘ Simpson ’); R v Cramp [2004] NSWCCA 264 at [31]; Caristo v R [2011] NSWCCA 7 at [28]-[31].…
Johnson v The Queen
[2004] HCA 15
Para 151
…ether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. The principle of totality, which determines whether sen…
R v Simpson
[2001] NSWCCA 534
Para 163
…e, a “wide variation in the range of legitimate opinion in the formulation of a discretionary judgment”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [53] (‘ Simpson ’); R v Cramp [2004] NSWCCA 264 at [31]; Caristo v R [2011] NSWCCA 7 at [28]-[31].…
Wong v The Queen
[2001] HCA 64
Para 148
…e result arrived at below is markedly different from other sentences that have been imposed in other cases”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (‘ Wong ’). That this is so reflects (at least) a number of the principles earlier referred to in Geraghty at [95], including the principle that…
Regina v Simpson
[1999] NSWCCA 367
Para 163
…there can, and will be, a “wide variation in the range of legitimate opinion in the formulation of a discretionary judgment”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [53] (‘ Simpson ’); R v Cramp [2004] NSWCCA 264 at [31]; Caristo v R [2011] NSWCCA 7 at [28]-[31].…
AB v The Queen
[1999] HCA 46
Para 148
…]), so that “there will be a range of possible sentences that could be imposed without error”: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].…
[2023] NSWDC 68
[2023] NSWDC 68
…ymised in these reasons as LS, GS and RS. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2023] NSWDC 68 Date of Decision: 24 March 2023 Before: Mahony SC DCJ File Number(s): 2020/00179479…