ON 15 SEPTEMBER 1988, Michael and Lindy Chamberlain were acquitted by the Northern Territory Court of Criminal Appeal, who quashed their earlier convictions.
1300 00 2088
Category Archives: Criminal Law
Illinois v Leopold & Loeb | 10 September 1924
ON 10 SEPTEMBER 1924, Nathan Leopold Jr and Richard Loeb were sentenced to 99 years imprisonment after being convicted of attempting to kidnap and murder a 14 year old boy.
Click to access Leopold_Loeb_Sentencing.pdf
Sydney, Australia
1300 00 2088
Pearce v R [1998] HCA 57 | 10 September 1998
ON 10 SEPTEMBER 1998, the High Court of Australia delivered Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998).
Where more than one offence contains the same elements of conduct, an offender should not be punished more than once for the overlapping elements. The punishment should reflect what the offender has done and should not be affected by how the offence is expressed: at [40].
There is no single correct sentence for a particular offence to be applied with mathematical precision. It is important for proper principle to be applied: at [46].
Sydney, Australia
1300 00 2088
ICAC v Cornwall (1993) 38 NSWLR 207 | 8 September 1993
ON 8 SEPTEMBER 1993, the Supreme Court of NSW delivered Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207.
Journalist Deborah Cornwall was found guilty of contempt for not disclosing the names of unnamed police officers who told her that underworld figure Arthur “Neddy” Smith had been a police informer.
Ms Cornwall received a two month suspended sentence and 90 hours of community service.
Sydney, Australia
1300 00 2088
Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 | 8 September 2004
ON 8 SEPTEMBER 2004, the NSW Court of Criminal Appeal delivered Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303.
The NSW Attorney General made an application to the Court of Criminal Appeal seeking a guideline judgment for sentencing of offenders convicted of high range drink driving. The Attorney General held a concern that too many offenders were receiving leniency by way of s10 orders dismissing or conditionally discharging the offence without a conviction being recorded.
The guideline identifies:
- Circumstances in which s10 orders will be appropriate or inappropriate.
- An “ordinary case” of high range drink driving (in which a s10 order will rarely be considered appropriate).
- Factors that increase the moral culpability of an offender.
- Appropriate penalties in circumstances of high moral culpability.
The actual guideline is as follows:
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include:
(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) an order under s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Pro¬cedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than impris¬onment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate
Sydney, Australia
1300 00 2088
Mental Health (Forensic Provisions) Act 1990 (NSW) | 3 September 1990
ON 3 SEPTEMBER 1990, the NSW Mental Health (Forensic Procedures) Act 1990 (formerly known as the Mental Health (Criminal Procedure) Act 1990) commenced.
http://www.austlii.edu.au/au/legis/nsw/consol_act/mhpa1990355
The significant provisions are found in Part 3, specifically s32.
MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 32
Persons suffering from mental illness or condition
32 Persons suffering from mental illness or condition
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013 ,
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or
(c) unconditionally.
(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.
(3B) If the defendant fails to appear, the Magistrate may:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.
(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.
(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).
(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.
(5) The regulations may prescribe the form of an order under this section.
Sydney, Australia
1300 00 2088
Review of Graffiti Control Act 2008
The NSW Attorney General has announced a statutory review of the Graffiti Control Act 2008 (NSW) by the Department of Justice later in the year.
The review is to specifically look at what measures can be introduced to crack down on illegal commercial bill posters.
Sydney, Australia
1300 00 2088
Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 (NSW)
ON 26 AUGUST 2014, the NSW Parliament passed the Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014.
The Act amends the Road Transport Act 2013 (NSW), introducing a mandatory alcohol interlock program and further provision with respect to demerit points.
The provisions were not in force at the date of assent and are to commence at a date to be proclaimed.
Sydney, Australia
1300 00 2088
Cheatle v R [1993] HCA 44 | 26 August 1993
ON 26 AUGUST 1993, the High Court of Australia delivered Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 (26 August 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/44.html
South Australian law allowed for a majority verdict of 10 or 11 jurors. Mr and Mrs Cheatle were convicted by a majority verdict of a South Australian jury for the indictable offence of conspiracy to defraud the Commonwealth. The High Court allowed an appeal, holding that s80 of the Constitution required unanimous verdicts for Commonwealth indictable offences. A new trial was ordered.
Sydney, Australia
1300 00 2088
Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2
ON 22 AUGUST 2014, the ACT Supreme Court delivered Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2
http://www.courts.act.gov.au/supreme/judgment/view/8380/title/eastman-v-director-public-prosecutions
The court ordered that the conviction of David Harold Eastman for the murder of Australian Federal Police assistant commissioner Colin Stanley Winchester on 10 January 1989 be quashed and that there be a new trial.
Sydney, Australia
1300 00 2088
Legal Helpdesk Lawyers 