R v KD
[2019] ACTSC 62
Para 1
…In R v KD [2019] ACTSC 62, the 24 year old offender pleaded guilty to one count of attempted sexual intercourse without consent. The offending was found to be approaching mid-range in objective seriousness. The offender had a number of mental health issues, had a limited criminal history and had expressed remorse.…
Xiao v R
[2019] NSWCCA 4
Para 1
…e) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.…
R v UG
[2018] ACTCA 64
Para 1
…In R v UG [2018] ACTCA 64 ( UG ), the 28 year old offender pleaded guilty to one count of burglary, one of sexual intercourse and one count of an act of indecency without consent. The offender had no criminal history, was remorseful and was found to have strong subjective circumstances. Applying a discount of 25%…
R v Ann Lakiss
[2018] NSWDC 309
Para 1
…In R v Lakiss [2018] NSWDC 309 ( Lakiss ), the offender pleaded guilty to one count of stalking and one of harassing use of a carriage service (a further offence of the same kind was taken into account). The former offence was found to be below the mid-range (but towards the upper end of the lower range) in objecti…
DPP v Dalgliesh (a pseudonym)
[2018] HCA 41
Para 1
…[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:…
R v Wright
[2018] ACTSC 58
Para 1
…I accept that the breach of trust is relevant to the objective seriousness across all offences (see: R v Kilic [2016] HCA 48; 259 CLR 256; R v Wright [2018] ACTSC 58 at [37]). Moreover, references to common features of family violence such as the offender “often has” a genuine belief of being wronged, is not suppo…
R v NO (No 2)
[2018] ACTSC 37
Para 1
…In R v NO (No 2) [2018] ACTSC 37, the 31 year old offender was found guilty by a jury of one act of indecency, one count of sexual assault in the second degree and one count of sexual intercourse without consent. The offender was also found guilty of a transfer charge of stalking. Each of the four offences was fou…
R v Haddara
[2018] ACTSC 70
Para 1
…In R v Haddara [2018] ACTSC 70, the offender pleaded guilty to 9 offences relating to 3 victims, including one count of sexual intercourse with a person under 16, one count of sexual intercourse without consent, one count of sexual assault in the third degree and one count of threatening use of a carriage service.…
Xiao v R
[2018] NSWCCA 4
Para 1
…ntencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.…
Wyper v The Queen; R v Wyper
[2017] ACTCA 59
Para 1
…by ICO with a community service condition. A Crown appeal against the manifest inadequacy of the sentence was dismissed (Wyper v The Queen; R v Wyper [2017] ACTCA 59).…
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41
Para 1
…: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:…
Imbornone v R
[2017] NSWCCA 144
Para 1
…of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serv…
Xue v R
[2017] NSWCCA 137
Para 1
…r and control over a vulnerable person, where commonly the offender expresses an irrational belief they have been wronged by the victim ( Xue v R [2017] NSWCCA 137 at [53]). In the present case, the prosecution noted the breakdown of the long-term relationship and that the victim was seeking to maintain a positive p…
ZA v R
[2017] NSWCCA 132
Para 1
…ution’s approach to grouping offences by general characterisation of type does not assist in arriving at an appropriate aggregate sentence ( ZA v R [2017] NSWCCA 132; 267 A Crim R 105 at [70] ( ZA ); Markarian v The Queen [2005] HCA 215; 228 CLR 357 at [39] ( Markarian ); Muldrock v The Queen [2011] HCA 89; 244 CLR…
Van Zwam v R
[2017] NSWCCA 127
Para 1
…oes not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where…
R v GG
[2017] ACTSC 137
Para 1
…With respect to Count 3, the prosecution noted the observations of Mossop J in R v GG [2017] ACTSC 137 at [26] regarding the disparity between the maximum penalty for this offence and that of common assault, reflecting the “gravity with which violence in aid of sexual coercion is treated”.…
R v Wyper (No 2)
[2017] ACTSC 103
Para 1
…In R v Wyper (No 2) [2017] ACTSC 103, the 56 year old offender was found guilty of engaging in sexual intercourse without consent. The offender maintained his assertion of innocence but had no criminal record, was found not to be a risk to the community and was assessed as suitable for an intensive corrections orde…
R v Toumo'ua
[2017] ACTCA 9
Para 1
…dge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” ( R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] ( Toumo’ua )).…
Beniamini v Craig
[2017] ACTSC 30
Para 1
…ation (citing Mill v The Queen (1988) 166 CLR 59 at [63]; Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Beniamini v Craig [2017] ACTSC 30 at [165]; O’Brien v The Queen [2015] ACTCA 47 at [26]; UG at [66]).…
R v Carmody
[2016] ACTSC 382
Para 1
…s backpack and writing captions on certain images. It was submitted that premeditation can be an aggravating factor where significant ( R v Carmody [2016] ACTSC 382 ( Carmody ); R v Morabito (1992) 62 A Crim 82). In addition to Count 5, the prosecution submitted Count 6 and the stalking charge also demonstrated a d…
R v Kilic
[2016] HCA 48
Para 1
…rtance of deterrence and denunciation. I accept that the breach of trust is relevant to the objective seriousness across all offences (see: R v Kilic [2016] HCA 48; 259 CLR 256; R v Wright [2018] ACTSC 58 at [37]). Moreover, references to common features of family violence such as the offender “often has” a genu…
Zdravkovic v The Queen
[2016] ACTCA 53
Para 1
…fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] ( Zdravkovic ). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen…
R v TL (No 2)
[2016] ACTSC 289
Para 1
…must be by way of fulltime custody. It was submitted one option may be a suspended sentence with a bond (referring to cases of UG ; R v TL (No 2) [2016] ACTSC 289; Lakiss ).…
R v Pham
[2015] HCA 39
Para 1
…Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 ( Hili ). There are a number of decisions of this court relating to offenders who…
R v Stanley
[2015] ACTSC 322
Para 1
…In R v Stanley [2015] ACTSC 322 ( Stanley ), the 20 year old offender pleaded guilty to two counts of sexual intercourse without consent, two counts of assault occasioning actual bodily harm and one count of damaging property. The offender was found to have made some progress in terms of rehabilitation and found to…
Mun v R
[2015] NSWCCA 234
Para 1
…CA 1 ( Butters ) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 ( Mun ) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witn…
O'Brien v The Queen
[2015] ACTCA 47
Para 1
…at [63]; Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Beniamini v Craig [2017] ACTSC 30 at [165]; O’Brien v The Queen [2015] ACTCA 47 at [26]; UG at [66]).…
Monfries v The Queen
[2014] ACTCA 46
Para 1
…Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].…
Fusimalohi v The Queen
[2012] ACTCA 49
Para 1
…fender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 ( Butters ) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 ( Mun ) at [36]; R v Mumberson [2011] NSWCCA 5…
R v Meyboom
[2012] ACTCA 48
Para 1
…s whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 ( Mill ); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].…
Muldrock v The Queen
[2011] HCA 39
Para 1
…132; 267 A Crim R 105 at [70] ( ZA ); Markarian v The Queen [2005] HCA 215; 228 CLR 357 at [39] ( Markarian ); Muldrock v The Queen [2011] HCA 89; 244 CLR 120 at [26]). It was further submitted the total criminality must be considered and regard is to be had to the fact that the offending occurred with respec…
Nguyen v R
[2011] NSWCCA 111
Para 1
…Counsel for the offender submitted that attention must also be paid to issues of double counting ( Nguyen v R [2011] NSWCCA 111; Cicciarelo v R [2009] NSWCCA 272), particularly given the overlap in time periods between Counts 5 and 6 and the stalking charge, each offence constituted by a long series of text messages…
R v Mumberson
[2011] NSWCCA 54
Para 1
…[2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 ( Mun ) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relev…
Alvares v R; Farache v R
[2011] NSWCCA 33
Para 1
…th considerable caution: see Butters v R [2010] NSWCCA 1 ( Butters ) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 ( Mun ) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence…
Hili v The Queen
[2010] HCA 45
Para 1
…R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 ( Hili ). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from t…
Butters v R
[2010] NSWCCA 1
Para 1
…ements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 ( Butters ) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [201…
Cicciarello v R
[2009] NSWCCA 272
Para 1
…Counsel for the offender submitted that attention must also be paid to issues of double counting ( Nguyen v R [2011] NSWCCA 111; Cicciarelo v R [2009] NSWCCA 272), particularly given the overlap in time periods between Counts 5 and 6 and the stalking charge, each offence constituted by a long series of text messages…
Cahyadi v R
[2007] NSWCCA 1
Para 1
…s should be either wholly concurrent or with “minor” accumulation (citing Mill v The Queen (1988) 166 CLR 59 at [63]; Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Beniamini v Craig [2017] ACTSC 30 at [165]; O’Brien v The Queen [2015] ACTCA 47 at [26]; UG at [66]).…
R v MAK
[2006] NSWCCA 381
Para 1
…fferent episodes. However, it must not be applied so as to suggest the offender is receiving a discount for multiple offending ( R v M.A.K; R v M.S.K [2006] NSWCCA 381 at [18]). Additionally, double punishment must be avoided.…
R v Hamid
[2006] NSWCCA 302
Para 1
…o family violence offences, I note the observations of Refshauge ACJ in Stanley at [62]-[63], referring to the observations of Johnson J in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193 as to family violence being a serious problem in the community:…
R v Harmouche
[2005] NSWCCA 398
Para 1
…t was accepted there was “a degree of planning” involved, it was submitted it was not to the level of that relevantly considered in R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [69], referred to in Carmody at [57]. In addition, it was submitted that the evidence also did not support a finding of deliberation…
R v Mobbs
[2005] NSWCCA 371
Para 1
…ted Count 6 and the stalking charge also demonstrated a degree of preparation and deliberation, rather than being spontaneous actions (cf R v Mobbs [2005] NSWCCA 371 at [50]).…
Markarian v The Queen
[2005] HCA 25
Para 1
…in arriving at an appropriate aggregate sentence ( ZA v R [2017] NSWCCA 132; 267 A Crim R 105 at [70] ( ZA ); Markarian v The Queen [2005] HCA 215; 228 CLR 357 at [39] ( Markarian ); Muldrock v The Queen [2011] HCA 89; 244 CLR 120 at [26]). It was further submitted the total criminality must be considered and…
R v Dunn
[2004] NSWCCA 41
Para 1
…s committed in a family violence context, differentiated from other crimes in the sense that “the victim never feels truly safe” (citing R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47] ( Dunn )). The prosecution submitted that crimes committed in this context involve breaches of trust, abuses of power and contr…
R v Derbas
[2003] NSWCCA 44
Para 1
…The prosecution submitted that a late plea of guilty ought not to be construed as remorse without further evidence ( R v Derbas [2003] NSWCCA 44 at [23]). The prosecution also noted the references in the PSR that the offender attempted to make justifications for his actions and place some blame on the victim and su…
R v Hanslow
[2002] NSWCCA 161
Para 1
…In R v Hanslow [2002] NSWCCA 161, the offender who was 19 years old at the time of the offending, was found guilty of one count of assault with intent to have sexual intercourse and an act of indecency. The latter offence was described as being at the “bottom of the range” of seriousness. The offender was 16 at the…
R v Kendall
[2002] NSWCCA 79
Para 1
…un at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidenc…
Cheung v The Queen
[2001] HCA 67
Para 1
…The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 ( Cheung ) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 ( Isaacs ) in relation to the Court’s role in sentencing and interpreting a jury’s verdict of guilty following a trial. The Court in Cheung at [14] quote…
Pearce v The Queen
[1998] HCA 57
Para 1
…that the two series of offending could not be wholly separated, the second arising out of the offending of 9 February 2018 ( Mill ; ZA , Pearce v R (1998) CLR 610). Accordingly, it was submitted there should be a “significant degree of concurrency”.…
Mill v The Queen
[1988] HCA 70
Para 1
…uch the sentences imposed between the two series should be either wholly concurrent or with “minor” accumulation (citing Mill v The Queen (1988) 166 CLR 59 at [63]; Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Beniamini v Craig [2017] ACTSC 30 at [165]; O’Brien v The Queen [2015] ACTCA 47 at [26]; U…