IMPORTANT RECENT DECISIONS

Costs: De Verda v Constable Stengord (NSW Police) [2011] NSWSC 868. Costs in Summary Proceedings – ss211 – 219 CPA, in particular s214 – Jurisdictional error by Magistrate in applying the wrong test in deciding whether to award costs to the defence after dismissing the charge.

 The Magistrate failed to get over the first jurisdictional hurdle, s32 (1), as the treating doctor’s report had stated “he does suffer from a mental condition…” [per the 3 rd proviso in s.32(1)] but failed to add the remaining words of the section, being “…for which treatment is available in a mental health facility.”  The Court made it clear that if the defence is relying on s.32 (1)(a)(iii) to bring a matter within the jurisdiction of s.32, then all three elements of that section must be specified in the report, being:  Suffering from a mental condition;  For which treatment is available in a mental health facility;  But is not a mentally ill person.

 Although an appeal relevant to a sentence in the District Court for an offence that carried a standard non-parole period, this decision reaffirms the correct approach to sentencing in all types of cases as set out in Markarian v The Queen (2005) 228 CLR 357, “instinctive synthesis”. It is also a valuable judgement when considering sentence for an accused suffering from an intellectual disability.

 Deemed Supply (20 Ecstasy tablets, small amount of cannabis on a Form1) dealt with in District Court by a 2 year S10 Bond.  Crown Inadequacy appeal dismissed as NSWCCA found “Her Honour’s sentence in this case was not manifestly inadequate”  Per Harrison J “Considerations of extra curial punishment may be relevant to the exercise of the discretion conferred by section 10” R v KNL [2005] NSWCCA 260

 If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of 2 years. There are onerous consequences that apply if he fails to observe that requirement

 Drugs/S.12:  A 9 month Section 12 Suspended Sentence was imposed in the DC for PPD(14.95 gms MDMA) following a trial for Deemed Supply  The sentence was quashed in CCA and 9 month Section 9 Bond imposed.  Analysis of sentencing for these types of matters:  “ It is not apparent from the mere nature and circumstances of the offence that a sentence of imprisonment was automatically called for. Nor when one adds to the nature and circumstances of the offence, the particular subjective of circumstances of the applicant, is it at all obvious why a sentence of imprisonment would be the only appropriate option in the circumstances of the case”(at page 12, par71).

 “The quantity merited careful consideration as to whether, in the light the fact that the jury had accepted that the applicant was found in possession of the drugs for his personal use, a term of imprisonment was either warranted at all, let alone whether it was the only appropriate option in the circumstance of this case” (par 70, p11)  “Accordingly it must be inferred that his Honour increased the appropriate sentence of imprisonment, if any period were appropriate, because he was suspending the sentence. That course was impermissible” (par 14, p15)

 Robbery Whilst Armed  Mental Illness/Cause of Drug Addiction:  Error in failing to take into account the defendant’s mental state in assessing objective gravity of the offence.  Error in characterising the defendant’s addiction to prescribed medication as a matter of personal choice

 “Addiction to illegal drugs is not generally a mitigating factor, however, “there can be no doubt that addiction to prescription drugs, albeit that they may be properly described as “illicit” in circumstances in which they are not appropriately prescribed, falls into a different category. While there is usually an assumption that addiction to illegal drugs commenced with unlawful activity resulting from personal choice, the same cannot be said of the offender’s addiction in the present case. His circumstances should evoke a degree of sympathy, which, while not excusing serious criminal misconduct, diminishes the level of his moral responsibility to an extent and the need for a response involving retribution or a significant level of general deterrence” (Basten J par5,p4)

 Also quoted  Spigelman CJ “To the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgements, or to control his or her faculties and emotions, will impact on the culpability of the offender, even where the illness does not amount to an excuse at law” R v Israil [2002] NSWCCA 255

 Dysfunctional Background:  A type of “Fernando” judgement that relates to any offender who appears for sentence and has had a “tragic and dysfunctional childhood”. Per Simpson J. at page 13, line 69: I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood.

 R v AB [2011) NSWCCA 229: “The utilitarian value flowing from a guilty plea is not a fixed element, and can be eroded because of the manner in which the sentencing hearing is conducted…This acknowledges the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to the offender …”

 Lawson v Dunleavy [2012] NSWSC 48 Decision of Justice Garling – analysis of what Bail conditions can and can’t be – here the requirement was “to submit to a breath test when requested to by a Police Officer”. The Court found that such a condition did not comply with legislative purpose.

 Overturns the decision in Blackwell v R [2011] NSWCCA 93  Only now need to have foresight of actual harm as opposed to foresight of actual bodily harm  Amendments operate as of 21 June 2012

 RTA v Tamara O’Sullivan and others [2011] NSWSC 1258 If a Magistrate wishes to take into account the period of licence suspension a defendant has had, then the Magistrate must specify that in their sentence that the period of suspension will form part of the disqualification period, otherwise the RTA will date the full period of disqualification from the Court date. 

Compellability: LS v DPP & Anor [2011] NSWSC 1016 Expert Evidence - Body Mapping: Morgan v R [2011] NSWCCA 257 Expert Evidence – Lack of Impartiality by Expert: Wood v R [2012] NSWCCA 21 Breach of Prosecutor’s Duties: Wood v R, supra

 Williams v DPP [2011] NSWSC 1085  Held that Police not acting in the execution of their duty when conducting an arrest in breach of s. 99(3) of LEPRA.

S99 A police officer must not arrest a person for the purpose of taking proceedings for an offence against the personpolice officer unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:police officer 3(a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person.

 Covertly Recorded: ARS v R [2011] NSWCCA 266  The complainant covertly recorded a conversation with the accused where he made admissions of sexual abuse. There was no error in allowing this evidence to be adduced as a general admission.

 To Support Person:  JB v R [2012] NSWCCA 12 Admissions were made by JB to a support person – these were admissible, and the support person’s relationship with the juvenile is not a protected relationship. The admission of the evidence was not unfair within s.90 EA.

 Juvenile Admissions – Not Recorded: CL v DPP [2011] NSWSC 943 CL charged with Agg.BE&S and Police relied on admissions recorded in a Police notebook. The Magistrate erred in holding that s281 only applied to offences dealt with on indictment in admitting evidence of the admissions when they did not comply with s281 of the CPA. This section requires that admissions be tape recorded for indictable offences “other than an indictable offence that can be dealt with summarily without the consent” of the accused.

 DPP v Abouali [2011] NSWSC 110 Failure to give adequate reasons for its findings constitutes an error of law.  DPP v Elskaf [2012] NSWSC 21 Red light case – Magistrate found no Prima Facie case – found that her finding that Witness evidence is unreliable without analysis does not discharge judicial obligation to give reasons.

 DPP v Wililo and Anor [2012] NSWSC 713 In dismissing the charge of assault the Magistrate failed to:  To distinguish between prima facie case and whether, as a question of fact, the charge had been proven;  Make any (or coherent) findings of fact; and  Set out any legal principles including the elements of the offence charged, or to apply those principles to the facts of the case.

 FB v R [2011] NSWCCA 217: "...the circumstances in which a trial judge may legitimately intervene in a criminal trial conducted without a jury will be wider [than one with a jury]. In my opinion, it would be quite inappropriate to restrict the capacity of a trial judge sitting without a jury to clarify matters, within legitimate or proper limits, where that clarification is relevant to the resolution of the issues before the court."

 DPP v Wililo & Anor, [2012] NSWSC 713: Johnson J reiterated this principle when delivering his decision to justify remitting this matter for hearing in the Local Court to a different Magistrate from that who first heard the matter: “It is a fundamental principle of the law that, where the Supreme Court decides a point of law on an appeal from a Magistrate, that decision is binding on all inferior courts in the State, with judges of a court inferior in the hierarchy not being at liberty to regard themselves as not bound by the decision of the higher court. “ (at 157).

 Scissors are not a ‘knife” within the meaning of  s3 (definition of blade) and  s11C (definition of knife)  of the Summary Offences Act 1988