Category Archives: Criminal Law

Animal rights, Criminal Law, LAW FIRM, Legislation

Tail docking

June 1, 2004 Legal Helpdesk Lawyers

ON 1 JUNE 2004, the Prevention of Cruelty to Animals Act 1979 was amended to make it an offence to dock the tail of a dog unless done by a registered veterinary surgeon and in the interests of the dogs welfare.

http://www.austlii.edu.au/au/legis/nsw/consol_act/poctaa1979360/

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Criminal Law, Criminal Procedure, LAW FIRM

GAS v R [2004] HCA 22

May 19, 2004 Legal Helpdesk Lawyers

ON THIS DAY In 2004, the High Court of Australia delivered GAS v R [2004] HCA 22; 217 CLR 198; 206 ALR 116; 78 ALJR 786 (19 May 2004).

The court made these general observations about the documentation and recording of plea agreements in criminal cases:

“It is as well to add some general observations about the way in which the dealings between counsel for the prosecution and counsel for an accused person, on subjects which may later be said to have been relevant to the decision of the accused to plead guilty, should be recorded. In most cases it will be desirable to reduce to writing any agreement that is reached in such discussions. Sometimes, if there is a transcript of argument, it will be sufficient if an agreed statement is made in court and recorded in the transcript as an agreed statement of the position reached. In most cases, however, it will be better to record the agreement in writing and ensure that both prosecution and defence have a copy of that writing before it is acted upon. There may be cases where neither of these courses will be desirable, or, perhaps, possible, but it is to be expected that they would be rare.

Although the recording of the agreement is most obviously necessary in cases where some agreement is reached about matters of fact that will be put to the court as agreed facts or circumstances bearing upon questions of sentence, the desirability of recording what is agreed is not confined to those cases. It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty.

Recording what is agreed, in an agreed form of words, should reduce the scope for misunderstanding what is to be, or has been, agreed. It should serve to focus the minds of counsel, and the parties, upon the application of the three fundamental principles which are set out earlier in these reasons and describe the respective responsibilities of the prosecutor, the accused person and the sentencing judge. Most importantly, it enables counsel for both sides to be clear about the instructions to be obtained from their respective clients and the matters about which, and basis on which, counsel should tender advice to their respective clients. There should then be far less room for subsequent debate about the basis on which an accused person chose to enter a plea of guilty.”

http://www.austlii.edu.au/au/cases/cth/HCA/2004/22.html

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Criminal Law, Criminal Procedure, LAW FIRM, Sentencing

R v Whyte [2002] NSWCCA 343

August 20, 2002 Legal Helpdesk Lawyers

ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte [2002] NSWCCA 343 (20 August 2002).

http://www.lawlink.nsw.gov.au/scjudgments/2002nswcca.nsf/a16acdaf45f305714a256724003189f5/3688dc39ade04a36ca256c1a001c5f31?OpenDocument

Whyte was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months, after pleading guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm (s52A Crimes Act 1900 (NSW)). The Crown appealed against the sentence to the NSW Court of Criminal Appeal (CCA).

The CCA determined that the sentence was manifestly inadequate but exercised its discretion not to interfere.

The CCA delivered a guideline judgment with respect to sentencing for breach of s52A.

The CCA ruled that “A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.“

For typical cases involving high moral culpability, “…a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.”

A typical case was one which was considered to involve:

Young offender.
Of good character with no or limited prior convictions.
Death or permanent injury to a single person.
The victim is a stranger.
No or limited injury to the driver or the driver’s intimates.
Genuine remorse.
Plea of guilty of limited utilitarian value.

An appropriate increment is required for aggravating factors, which include:

Extent and nature of the injuries inflicted.
Number of people put at risk.
Degree of speed.
Degree of intoxication or of substance abuse.
Erratic or aggressive driving.
Competitive driving or showing off.
Length of the journey during which others were exposed to risk.
Ignoring of warnings.
Escaping police pursuit.
Degree of sleep deprivation.
Failing to stop.

The guideline focuses on objective circumstances of the offence. The subjective circumstances of the offender must also be considered.

The CCA (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) confirmed the validity of guideline judgments in NSW. The court ruled that ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999 require a sentencing judge to follow a guideline judgment given by the Court of Criminal Appeal and that such a judgment ought to have the force of legislation.

The CCA said that numerical guidelines provide adequacy and consistency of sentencing where there is a tension between individualised justice and the principle of consistency.

The guideline is not a “rule” or “presumption” but a “check” or “sounding board”.

If a sentencing judge does not apply a guideline, reasons should be given.

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