ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte [2002] NSWCCA 343 (20 August 2002).
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 misjudgement.”
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.
Sydney, Australia
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77.60% of all criminal charges are proven in NSW
The proportion of charges proven in NSW Criminal Courts in 2013 were as follows:
- Assault 60.10%
- Sexual assault 46.50%
- Robbery 64.90%
- Unlawful entry with intent/burglary, break and enter 67.20%
- Theft (except motor vehicles) 78.90%
- Murder 64.60%
- Attempted murder 33.30%
- Manslaughter and driving causing death 63%
- Other acts intended to cause injury 62.50%
- Non-assaultive sexual offences 70.70%
- Dangerous or negligent acts endangering persons 52.70%
- Abduction and kidnapping 64.90%
- Deprivation of liberty/false imprisonment 30.80%
- Harassment and threatening behaviour 66.30%
- Blackmail and extortion 29.40%
- Motor vehicle theft and related offences 67.90%
- Receive or handle proceeds of crime 58.70%
- Illegal use of property (except motor vehicles) 50.00%
- Obtain benefit by deception 65.20%
- Forgery and counterfeiting 72.30%
- Deceptive business/government practices 67.80%
- Other fraud and deception offences 54.00%
- Import or export illicit drugs 77.40%
- Deal or traffic in illicit drugs 63.20%
- Manufacture or cultivate illicit drugs 92.60%
- Possess and/or use illicit drugs 88.40%
- Other illicit drug offences 83.80%
- Prohibited weapons/explosives offences 69.80%
- Regulated weapons/explosives offences 76.00%
- Property damage 77.50%
- Environmental pollution 73.30%
- Disorderly conduct 65.40%
- Regulated public order offences 79.00%
- Offensive conduct 80.50%
- Driver Licence offences 91.80%
- Vehicle registration and roadworthiness offences 94.00%
- Regulatory driving offences 96.10%
- Breach of custodial order offences 97.90%
- Breach of community-based order 96.20%
- Breach of violence and non-violence orders 76.40%
- Offences against government operations 82.30%
- Offences against government security 60.90%
- Offences against justice procedures 76.60%
- Defamation, libel and privacy offences 60.00%
- Public health and safety offences 76.50%
- Commercial/industry/financial regulation 78.80%
- Other miscellaneous offences 58.20%
- Total All Offences 77.60%
Source: NSW Bureau of Crime Statistics and Research
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Pollentine v Bleijie [2014] HCA 30
ON 14 AUGUST 2014, the High Court of Australia delivered Pollentine v Bleijie [2014] HCA 30 (14 August 2014).
http://www.austlii.edu.au/au/cases/cth/HCA/2014/30.html
The Criminal Law Amendment Act 1945 (Qld) provides that a judge of a trial in which a person is found guilty of a child sexual offence may seek medial opinion as to whether or not the offender is “incapable of exercising proper control over the offender’s sexual instincts” and if the opinion is that the offender is incapable of exercising such control, the judge may in addition to or in lieu of any other sentence, declare that the person is incapable of exercising such control and direct that the offender be detained in an institution during “Her Majesty’s pleasure”.
The plaintiffs challenged the validity of s18, alleging that the provision is contrary to Chapter III of the Constiution by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
The court upheld the validity of s18, holding that the provision is not contrary to Chapter III because the presiding judge has the discretion whether to direct the detention; and a decision to release an offender is not the subject of an unconfined executive discretion as it is subject to safeguards including medical opinion and judicial review.
Sydney, Australia
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Fitzgerald v The Queen [2014] HCA 28
ON 13 AUGUST 2014, the High Court of Australia delivered Fitzgerald v The Queen [2014] HCA 28 (13 August 2014).
http://www.austlii.edu.au/au/cases/cth/HCA/2014/28.html
The High Court quashed convictions for murder and aggravated causing serious harm with the intent to cause serious harm contrary to ss11 and 23 of the Criminal Law Consolidation Act 1935 SA).
A group of men group forcibly entered a house in Elizabeth South, South Australia and attacked the occupants, causing one to die and the other to suffer serious brain injuries. The accused’s DNA was recovered from a didgeridoo found at the crime scene. There was no direct evidence of the accused’s presence.
The prosecution asserted that accused was a member of the group that forcibly entered the house with the common intention of inflicting grievous bodily harm to persons inside. It was asserted that the DNA was from the accused’s blood that came to be on the didgeridoo during the attack.
The defence argued that on the evidence there were alternative hypotheses consistent with the accused’s innocence, including that the accused’s DNA may have been transferred to the didgeridoo when he shook the hand of one of the group members the night before.
The High Court held that a jury acting reasonably should have entertained a reasonable doubt as to the accused’s guilt because the prosecution’s contention that the DNA was from the accused’s blood was not made out beyond a reasonable doubt and the recovery of the DNA did not give rise to any inference as to when and how the DNA came to be on the didgeridoo.
Sydney, Australia
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Honeysett v The Queen [2014] HCA 29
ON 13 AUGUST 2014, the High Court of Australia delivered Honeysett v The Queen [2014] HCA 29 (13 August 2014).
http://www.austlii.edu.au/au/cases/cth/HCA/2014/29.html
The High Court quashed a conviction for armed robbery, ordering a retrial.
The trial judge had admitted into evidence an anatomy professor’s opinion as to the common anatomical characteristics of the accused and a person recorded on CCT footage. The High Court held that the opinion was not based solely or substantially upon the professor’s specialised knowledge of anatomy but also included his subjective impression of the CCT images and therefore was not an exception under s79(1) of the Evidence Act 1995 (NSW) to the rule against the admission of opinion evidence.
Sydney, Australia
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R v Smith (“Brides in the Bath case”) 11 Cr App R 229 | 13 August 1916
ON 13 AUGUST 1916, the Court of Criminal Appeal delivered R v Smith (1915) 11 Cr App R 229.
The defendant was accused of murdering his wife, Bessie Munday, who was found dead at home in her bath. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given that their deaths occurred not long after entering marriage and financial arrangements under which which the accused would stand to benefit if they died.
Smith’s appeal was unsuccessful. He was convicted and hanged on 13 August 1916.
Sydney, Australia
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Farrell v R [1998] HCA 50 | 13 August 1998
ON 13 AUGUST 1998, the High Court of Australia delivered Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998).
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/50.html
Expert evidence is admissible to assist the court with the provision of specialized information likely to “outside the experience and knowledge of the judge or jury” and “beyond the experience of ordinary persons” (at 292-293).
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Drink driving penalties and disqualification in NSW
In New South Wales, a conviction for the offence driving with a prescribed concentration of alcohol (ie drink driving) carries the following range of penalties:
NOVICE RANGE (0.00 – 0.019). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
SPECIAL RANGE (0.02-0.049). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
LOW RANGE (0.05-0.079). First offence, $1,100 max fine, 3-6 months disqualification. Second offence within 5 years, $2,200 max fine, 6-12 months disqualification.
MIDDLE RANGE (0.08-0.149). First offence, $2,200 max fine, 6-12 months disqualification, 9 months max imprisonment. Second offence within 5 years, $3,300 fine, 12 months-3 years disqualification, 12 months max imprisonment.
HIGH RANGE (0.15+). First offence, $3,300 fine, 12 months – 3 years disqualification, 18 months max imprisonment. Second offence within 5 years, $5,500 fine, 2-5 years disqualification, 2 years max imprisonment.
See Road Transport Act 2013 (NSW) penalty provisions (s110) and disqualification provisions (s205): http://www.austlii.edu.au/au/legis/nsw/consol_act/
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Driscoll v R [1977] HCA 43| 10 August 1977
ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).
http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html
The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.
Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).
Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).
An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.
A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.
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Lowe v R [1984] HCA 46 | 2 August 1984
ON 2 AUGUST 1984, the High Court of Australia delivered Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).
http://www.austlii.edu.au/au/cases/cth/HCA/1984/46.html
The case sets out the principle of due proportionality to be imposed by Australian courts when sentencing criminal offenders.
Whilst co-offenders do not have to receive the same sentence for the same offence, any discrepancy must not give the sense or appearance of their being an injustice done to the offender with the heavier sentence.
At 623, Dawson J (with whom WIlson J agreed) said:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”
The principle is an application of the fundamental principle of equality of justice. At 610, Mason J observed:
“Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”
The parity principle only applies to co-offenders: per Gibbs CJ at 609, Mason J at 611 and Brennan J at 617-618.
Disparity may be an indicator of appelable error: per Brennan J at 617-618.
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