Director of Public Prosecutions v KS (a pseudonym) (No 2)
[2023] ACTSC 298
Para 1
…tick”, including ACT decisions of R v Lee [2017] ACTCA 30, R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) and R v Tuifua [2023] ACTSC 298, and R v O’Donnell [2009] NSWSC 42 which could be distinguished on its facts. So far as the nonparole period is concerned, it was submitted that the offe…
Director of Public Prosecutions v Taylor
[2023] ACTSC 39
Para 1
…As Mossop J recently observed in the decision of DPP v Taylor [2023] ACTSC 39, at [15]:…
DPP v Ledlin
[2022] VSC 826
Para 1
…of Public Prosecutions (DPP) v AK [2019] VSC 852. Other decisions submitted to be “analogous” were R v Athuai [2007] VSCA 2 and DPP v Ledlin [2022] VSC 826, as well as an ACT decision of R v Tuifua [2021] ACTSC 298. As it transpires, as analysed later, the “interstate” sentences relied upon by the Crown provide…
Cooke (a pseudonym) v The Queen
[2022] ACTCA 44
Para 1
…e context of evaluating the utilitarian value of the plea of guilty, I do not accept this submission, particularly as Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204, at [80]-[83] held that per s 35 of the Sentencing Act , when considering utilitarian value, “the strength – or weakness – of the prose…
R v Tuifua
[2021] ACTSC 298
Para 1
…decisions submitted to be “analogous” were R v Athuai [2007] VSCA 2 and DPP v Ledlin [2022] VSC 826, as well as an ACT decision of R v Tuifua [2021] ACTSC 298. As it transpires, as analysed later, the “interstate” sentences relied upon by the Crown provide not a great deal of helpful comparison for a number of reas…
MT v The Queen
[2021] ACTCA 26
Para 1
…ishment” are highly significant, absent the application of other provisions in the Act, particularly Part 8A ( MT v The Queen [2021] ACTCA 26).…
R v Kourpanidis
[2021] ACTSC 112
Para 1
…within ACT and interstate for comparative purposes. Cited in this respect are the observations in this regard of Elkaim J in R v Kourpanidis [2021] ACTSC 112, at [47]:…
Culbert v R
[2021] NSWCCA 38
Para 1
…Victim Impact Statements can be used to establish aggravating factors ( Culbert v R [2021] NSWCCA 38, at [119]-[120]) such as “substantial harm” to a primary victim, but the relevant harm must be shown to be greater or more deleterious than can be ordinarily expected for the offence in question ( R v Youkhana [2004…
Forster-Jones v The Queen
[2020] ACTCA 31
Para 1
…ns for reaching (a view of the matter) so that each party can understand the basis of the court’s decision” ( Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]). This I will attempt to do. I accept as was stated in R v Kilic [2016] HCA 48; 259 CLR 256, at [19], that unless the maximum penalty is to be imposed…
Director of Public Prosecutions v Ak (Sentence)
[2019] VSC 852
Para 1
…t doubt this proposition. The Crown claimed that the most “analogous case” was a Victorian decision of Director of Public Prosecutions (DPP) v AK [2019] VSC 852. Other decisions submitted to be “analogous” were R v Athuai [2007] VSCA 2 and DPP v Ledlin [2022] VSC 826, as well as an ACT decision of R v Tuifua [202…
Blundell v The Queen
[2019] ACTCA 34
Para 1
…of the plea enabled a discount within the range of 15 to 20 percent for a plea of guilty following Criminal Case Conferencing ( Blundell v The Queen [2019] ACTCA 34 at [12]).…
Dawson v The Queen
[2019] ACTCA 9
Para 1
…tice in this jurisdiction. That is how “current sentencing practice” has been applied by ACT courts, as suggested in Dawson v The Queen [2019] ACTCA 9, at [5]. That passage however is not explicit on that issue. It is submitted that the sentencing range in any jurisdiction will incorporate a range of principles r…
Lyddy v The Queen
[2019] VSCA 35
Para 1
…The Crown noted similar observations in Lyddy v The Queen [2019] VSCA 35 at [62], and in Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354, at [38]-[40], reflecting upon the need for “caution” in this regard, particularly where it is sought to rely upon the plea of guilty itself alone representing evidence of…
R v Hawkins
[2019] ACTSC 10
Para 1
…ubmitted that a relevant consideration in determining where the discount should fall within that range is the strength of the Crown case: R v Hawkins [2019] ACTSC 10 at [3]. In the context of evaluating the utilitarian value of the plea of guilty, I do not accept this submission, particularly as Cooke (a pseudonym…
R v Lee
[2017] ACTCA 30
Para 1
…eference was made to a number of authorities said to be either comparable or providing a relevant “yardstick”, including ACT decisions of R v Lee [2017] ACTCA 30, R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) and R v Tuifua [2023] ACTSC 298, and R v O’Donnell [2009] NSWSC 42 which could b…
Imbornone v R
[2017] NSWCCA 144
Para 1
…t the Court wanted to hear in order to get a more lenient sentence. An authority cited in oral submissions by the Crown was Imbornone v The Queen [2017] NSWCCA 144, at [57], per Wilson J, where her Honour summarised the principles relating to consideration of “untested out of court statements made to third parties”,…
Beniamini v Craig
[2017] ACTSC 30
Para 1
…seriousness, without necessarily stating where the objective seriousness of the matter falls within the spectrum of offending (e.g. Beniamini v Craig [2017] ACTSC 30, at [117]-[122], per Refshauge J). I have taken those authorities into account. It is not my responsibility to set aside the jurisprudence that has d…
R v Kilic
[2016] HCA 48
Para 1
…t’s decision” ( Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]). This I will attempt to do. I accept as was stated in R v Kilic [2016] HCA 48; 259 CLR 256, at [19], that unless the maximum penalty is to be imposed, I have to consider where the facts of the particular offence and offender lie on the “spec…
Martin v The Queen
[2015] ACTCA 38
Para 1
…ilitation are concerned, that matter could be reflected in the nonparole period, citing Bugmy v The Queen (1990) , approved in Martin v The Queen [2015] ACTCA 38, at [96], counsel submitting that a shorter nonparole period could still serve the purposes of sentencing.…
R v Tuala
[2015] NSWCCA 8
Para 1
…o be greater or more deleterious than can be ordinarily expected for the offence in question ( R v Youkhana [2004] NSWCCA 412, at [26]; R v Tuala [2015] NSWCCA 8, at [77]). This is not the case here. As noted later in respect of the Crown submission in relation to the effect upon third parties, sadly and tragicall…
Monfries v The Queen
[2014] ACTCA 46
Para 1
…y or indirectly sentencing standards. In this context, reliance is placed upon the decision of then Chief Justice Murrell in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80, particularly at [91], where it was noted, in the context of considering ‘interstate’ sentences, that sentencing outcomes in the ACT may…
Bugmy v The Queen
[2013] HCA 37
Para 1
…s in 1999) in Henry , earlier cited. Although this is not a case that excites consideration of “Bugmy“ principles ( Bugmy v The Queen [2013] HCA 37; 249 CLR 571), particularly as set out at [40]-[44] of the judgment, primarily because of the absence of material deprivation or living in an environment providing n…
R v Dean
[2013] NSWSC 1027
Para 1
…s of the offending of the case at bar, within the range of offending that constitutes murder. The Crown particularly cited two decisions R v Dean [2013] NSWSC 1027 and R v Crabbe (1985) 156 CLR 464, one NSW authority on sentencing for murder by “reckless indifference to human life”, the other a High Court authority…
CD v The Queen
[2013] VSCA 95
Para 1
…e Crown noted that s 33(1)(w) of the Sentencing Act requires the Court to have regard to any demonstration of remorse. The Crown cited CD v The Queen [2013] VSCA 95, in which the Victorian Court of Appeal observed (at [36]) that:…
Barbaro v The Queen
[2012] VSCA 288
Para 1
…The Crown noted similar observations in Lyddy v The Queen [2019] VSCA 35 at [62], and in Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354, at [38]-[40], reflecting upon the need for “caution” in this regard, particularly where it is sought to rely upon the plea of guilty itself alone representing evidence of…
Muldrock v The Queen
[2011] HCA 39
Para 1
…accordance with the principles in R v Way [2004] NSWCCA 131; 60 NSWLR 168 since overturned by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120) which does not apply here. The Crown also produced a lengthy schedule of cases in other jurisdictions which was not discussed in submissions beyond the…
R v O'Donnell
[2009] NSWSC 42
Para 1
…Lee [2017] ACTCA 30, R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) and R v Tuifua [2023] ACTSC 298, and R v O’Donnell [2009] NSWSC 42 which could be distinguished on its facts. So far as the nonparole period is concerned, it was submitted that the offender should be given the opportunity…
KT v R
[2008] NSWCCA 51
Para 1
…g, its significance may be diminished by the seriousness of the offending (e.g. R v AEM [2002] NSWCCA 58, at [97]-[98]. See also KT v The Queen [2008] NSWCCA 51 at [22]-[26].…
R v Verdins
[2007] VSCA 102
Para 1
…uch disorders. He was specifically asked whether the offender satisfied particular criteria or factors arising from the decision of R v Verdins [2007] VSCA 102; 16 VR 240, at 588-89. He concluded that he did not. He noted that the offender being heavily intoxicated, and the effects of the combination of alcohol an…
R v Athuai
[2007] VSCA 2
Para 1
…Victorian decision of Director of Public Prosecutions (DPP) v AK [2019] VSC 852. Other decisions submitted to be “analogous” were R v Athuai [2007] VSCA 2 and DPP v Ledlin [2022] VSC 826, as well as an ACT decision of R v Tuifua [2021] ACTSC 298. As it transpires, as analysed later, the “interstate” sentences r…
Munro v R
[2006] NSWCCA 350
Para 1
…criminality”. In that circumstance, it is said that it should be done directly and in a form that can be tested (citing Munro v The Queen [2006] NSWCCA 350, at [17]-[19]). But her Honour also noted that it is “one matter for an offender to express remorse to a psychologist or other third party and quite another to g…
Markarian v The Queen
[2005] HCA 25
Para 1
…s the relationship of those issues to the ultimate decision was a matter of “intuitive” or “instinctive synthesis” (see Markarian v The Queen [2005] HCA 25; 228 CLR 357). Putting aside the fact that every sentencing exercise is individual (even when sentencing different offenders for the same crime) the task of…
R v Youkhana
[2004] NSWCCA 412
Para 1
…but the relevant harm must be shown to be greater or more deleterious than can be ordinarily expected for the offence in question ( R v Youkhana [2004] NSWCCA 412, at [26]; R v Tuala [2015] NSWCCA 8, at [77]). This is not the case here. As noted later in respect of the Crown submission in relation to the effect upo…
R v Cicekdag
[2004] NSWCCA 357
Para 1
…urt in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances". The Crown cites R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 at [52] and R v Fernando [2002] NSWCCA 28 at [42] and stated the “well known comments of the High Court in Veen v The Queen (No 2)…
R v Way
[2004] NSWCCA 131
Para 1
…count the standard nonparole period for murder which was 20 years’ imprisonment (that is in accordance with the principles in R v Way [2004] NSWCCA 131; 60 NSWLR 168 since overturned by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120) which does not apply here. The Crown also produced a lengthy sch…
R v Palu
[2002] NSWCCA 381
Para 1
…remarks by Hulme RA J. These pronouncements have been long held as correct in NSW, going back to observations of Howie J in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and beyond.…
R v AEM
[2002] NSWCCA 58
Para 1
…t relative youth may be a mitigating matter in sentencing, its significance may be diminished by the seriousness of the offending (e.g. R v AEM [2002] NSWCCA 58, at [97]-[98]. See also KT v The Queen [2008] NSWCCA 51 at [22]-[26].…
R v Fernando
[2002] NSWCCA 28
Para 1
…ion of rehabilitation that is open in other circumstances". The Crown cites R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 at [52] and R v Fernando [2002] NSWCCA 28 at [42] and stated the “well known comments of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 are directly relevant”. Although the offe…
R v Henry
[1999] NSWCCA 111
Para 1
…g and was also relevant to his prospects of rehabilitation and his past history of difficulties in exercising appropriate judgement ( R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273]). It was submitted that the offender was “at the crossroads” and the tailoring of a sentence to accommodate his personal circumstanc…
R v Henry
[1999] NSWCA 111
Para 1
…vant to his prospects of rehabilitation and his past history of difficulties in exercising appropriate judgement ( R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273]). It was submitted that the offender was “at the crossroads” and the tailoring of a sentence to accommodate his personal circumstances would have…
Bugmy v The Queen
[1990] HCA 18
Para 1
…d was concerned, noting leading High Court authorities as to the purpose of the minimum term, such the first “Bugmy” decision ( Bugmy v The Queen (1990) 169 CLR 525, at 531–532), the Crown submits that in respect of the nonparole period that rehabilitation will need to play “an important part in the sentencing exerci…
Veen v The Queen (No 2)
[1988] HCA 14
Para 1
…150 A Crim R 299 at [52] and R v Fernando [2002] NSWCCA 28 at [42] and stated the “well known comments of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 are directly relevant”. Although the offender cannot be subject to double punishment for previous offending it is submitted that the antecedent crimina…
R v Crabbe
[1985] HCA 22
Para 1
…bar, within the range of offending that constitutes murder. The Crown particularly cited two decisions R v Dean [2013] NSWSC 1027 and R v Crabbe (1985) 156 CLR 464, one NSW authority on sentencing for murder by “reckless indifference to human life”, the other a High Court authority on the character of liability for…