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Benchmark Publication Friday, 21 April 2017 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 DPP (Cth) v Pratten (No 2) (NSWCCA) - criminal law - respondent convicted of defrauding the Commonwealth - successful appeal and re-trial - whether second court could impose higher sentence than that imposed at first trial - whether delay relevant - cause of delay to be identified - sentences manifestly inadequate - resentenced Wilson v R (NSWCCA) - criminal law - historical sexual offences - setting NPP periods - practice at time of offending to be applied - error demonstrated - resentenced Wat v R (NSWCCA) - criminal law - drug offences - applicant and co-offender sentenced to different terms - severity appeal on ground of parity - co-offender’s sentence lenient - error demonstrated - applicant resentenced State of NSW v Kay (NSWSC) - criminal law - suppression order - principle of open justice - high risk offender - interim suppression order made - whether permanent order appropriate - necessity for evidence - interim order revoked Baker (a Pseudonym) v DPP (VSCA) - criminal law - sexual offences - permanent stay - offender a child at time of offences but an adult at time of trial - whether breach of human rights - Charter rights considered - no breach of Charter - principles relating to permanent stay considered - application refused Burgess v The Queen (VSCA) - criminal law - historical sexual offences - whether sentence imposed on 83-year-old offender crushing - use of life expectancy statistics - sentence not Page 1 manifestly excessive R v MCK (QCA) - criminal law - maintaining a sexual relationship with a child - whether plea entered on legal advice that custodial sentence would be avoided - whether sentence of 9 years 11 months manifestly excessive - appeal allowed - resentenced to 4 years, suspended at 12 months R v Bricola (QCA) - criminal law - murder - character - whether evidence that appellant had met a witness in a prison and was familiar with police procedures improperly put his character into evidence - whether defence counsel failed to adduce exculpatory evidence - no errors identified - appeal dismissed Atherley v The State of Western Australia (WASCA) - criminal law - white collar crime - accountant stealing from client - whether indictment bad for duplicity - whether sentence offended totality principle - no errors demonstrated - appeal dismissed The Queen v Adam Filippone (NTSC) - criminal law - hearsay notices - principles considered - notices examined and rulings on admissibility made Summaries With Link (Five Minute Read) DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 Court of Criminal Appeal of New South Wales Basten JA, Campbell & N Adams JJ Criminal law - respondent, who had incorporated an insurance company in Vanuatu, acted as an insurance broker in Australia, collecting insurance premiums in excess of $1.9 million - the respondent charged a fee of 33% of the net premiums received and some $4.5 million was paid to him and not declared as income - the respondent was charged with obtaining a financial advantage by deception and after a lengthy trial was convicted - he was sentenced and appealed - his conviction appeal was upheld, his convictions set aside and a re-trial ordered - his severity appeal was dismissed without consideration of its merits - on his re-trial, the respondent was found guilty of 7 counts of obtaining a financial advantage by deception (s134.2(1) Criminal Code Act 1995 (Cth)) - the offending was found to be a deliberate course of conduct undertaken in the expectation of avoiding tax - the respondent did not demonstrate remorse and his rehabilitation prospects were poor - respondent was sentenced to a total term of 5 years, NPP 2 years - the Commonwealth DPP appealed, arguing that the sentences were manifestly inadequate - two major issues on the appeal concerned the relevance of hardship to the respondent’s family and double jeopardy - held: (1) double jeopardy - the trial judge accepted that there is a principle of restraint inhibiting the imposition, following a conviction at a second trial, of a sentence higher than that imposed for the same offence at the earlier trial (R H McL v The Queen (2000) 203 CLR 452) - considering the application of this principle to federal Page 2 offences (s16A Crimes Act 1914 (Cth): see Bui v DPP (Cth) (2012) 244 CLR 638), and noting that at common law it may be open to the court imposing the second sentence to impose a greater sentence if the first sentence was manifestly inadequate (see R H McL [23]; R v Petersen [1999] 2 Qd R 85, 87) - it was not open to the sentencing court, or this Court, to treat ‘double jeopardy’ as a relevant consideration involving the reduction of the sentence which would otherwise have been imposed, in resentencing for a federal offence; (2) hardship - noting that in NSW, hardship to an offender’s family or dependants is only to be taken into account in ‘exceptional’ circumstances (R v Togias (2001) 127 A Crim R 23, [13]-[17]; R v Zerafa (2013) 235 A crim R 265, [109]-[13]; R v Edwards (1996) 90 A Crim R 510) - here, the evidence did not establish that the length of the sentence would significantly and deleteriously affect the lives of the respondents’ family - the trial judge was in error in taking into account, as a factor mitigating the length of the sentence, the effect of the sentence on the respondent’s family; (3) whether the sentence was manifestly inadequate - the conduct of the respondent was ‘objectively above the mid-range in seriousness’ - the amount involved in the offences was well in excess of other cases where similar or higher sentences were imposed; (4) delay - to identify the relevance of ‘delay’ in the sentencing process it is necessary to identify salient factors in 3 categories (the beginning and end of the relevant period; the causes of the delay; the consequences of the delay) - these considerations have been considered in Sabra v Regina [2015] NSWCCA 38, [27]-[45]; see also Scook v The Queen (2008) 185 A Crim R 164 - dilatory behaviour on the part of prosecuting authorities may be a ground for mitigating the severity of a sentence for a federal offence (see s16A(2) (fa), (g), (h), (m), (n) Crimes Act 1914 (Cth)) - in the absence of statutory authority, a sentence for a federal offence should not be reduced as an expression of disapproval of the conduct of the prosecutor or investigating authority - here, only a minor portion of the delay could be treated as unreasonable conduct by the prosecutor - the respondent was not to be punished for exercising his rights as a criminal defendant, but neither was he to obtain a benefit from that exercise - a degree of reduction in the appropriate sentences was warranted as the respondent had been subject to conditional liberty for 6 years; (5) residual discretion should not be exercised - respondent resentenced [Editor’s note: Campbell & N Adams JJ agreeing with Basten JA]. Pratten (No 2) Wilson v R [2017] NSWCCA 41 Court of Criminal Appeal of New South Wales Hoeben CJ at CL, Garling & Beech-Jones JJ Criminal law - applicant committed the principal offence of assault and act of indecency upon a person under the age of 16 at a date between November 1982 and March 1982 (s61E(1) Crimes Act 1900 (NSW)) - the complainant was either 7 or 8 years old and he was 45 or 46 - the complainant reported the matter to police in 1999, but did not make a written complaint until 2011 - the applicant was arrested and charged in May 2013 - the applicant entered a plea of guilty and asked that another s61E (1) offence against the same complainant committed in 1985 when she was 10 or 11 years be taken into account (s32(1) Crimes (Sentencing Procedure) Act 1999 (NSW)) - applicant was sentenced to a total effective term of 43 months , NPP 25 months Page 3 - the sentencing judge allowed a 10% discount for the plea, which was entered on the eve of the trial and after the judge ruled that the prosecution could adduce tendency evidence - the applicant had also been convicted of 7 indecent assaults upon other complainants in 1979 & 1999 - on the applicant’s severity appeal - held: (1) historical approach to setting NPP - it is accepted in NSW that it is proper for a sentencing judge to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (Regina v MJR (2002) 54 NSWLR 368, [31], [71], [105]: AJB v Regina [2007] NSWCCA 51, [37]) - in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence (AJB [39]) - this assessment of the prevailing practice in 1982 has been consistently applied in this Court since AJB was decided (Bradbery v Regina [2008] NSWCCA 93, [36]; CPW v R [2009] NSWCCA 105, [69]; MPB v R [2013] NSWCCA 213, [93]; Henderson v R [2016] NSWCCA 8, [44], [46]) - here, the sentencing judge was led into error in finding that the ordinary sentencing practice at the time of the commission of the principal offence was that the ratio of the parole period to the total sentence was between one third to one half - instead, the ordinary practice
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