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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Jaensch v Coffey [1984] HCA 52| 20 August 1984
ON 20 AUGUST 1984, the High Court of Australia delivered Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 (20 August 1984).
http://www.austlii.edu.au/au/cases/cth/HCA/1984/52.html
A plaintiff suffered nervous shock when immediately after an accident she saw her injured husband in hospital and was told of the seriousness of his injuries.
The High Court extended the class of persons to whom a duty of care is owed to those who, although not present at the scene of an accident, are at risk of suffering psychiatric injury by personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a “close or intimate relationship” with is negligently injured or killed.
The duty of care was characterised as arising from the injury being reasonably foreseeable and sufficient proximity between the plaintiff and the defendant.
Sydney, Australia
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Tree Disputes Between Neighbours
Disputes between neighbours concerning trees may be resolved through proceedings in the NSW Land and Environment Court.
The Trees (Disputes Between Neighbours) Act 2006 (NSW), which commenced on 2 February 2007, creates a statutory scheme that partially takes away the right to bring a common law action in nuisance over disputes about trees in adjoining properties (s5).
http://www.austlii.edu.au/au/legis/nsw/consol_act/tbna2006363/
Applicants may apply for orders with respect to trees that cause or are likely to cause damage or injury (Part 2) and high hedges that obstruct sunlight or views (Part 2A).
Part 2 orders for trees that cause or are likely to cause damage or injury
A land owner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent damage to property or personal injury as a result of a tree situated on adjoining land (s7) that is zoned residential, rural-residential, village, township, industrial or business but not land that is managed by a council (s4).
The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s10(1)(a)) and has given notice in accordance with the Act (s10(1)(b)).
The court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property (s10(2)(a)), or is likely to cause injury to any person (s10(2)(b)).
In making its determination, the court is to consider the following matters (s12):
- the location of the tree in relation to the boundary.
- whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
- whether interference with the tree would require approval under the native vegetation legislation.
- the impact of pruning on the tree.
- any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
- historical, cultural, social or scientific value.
- contribution to the local ecosystem and biodiversity.
- contribution to the natural landscape and scenic value of the land or locality.
- intrinsic value to public amenity.
- impact on soil stability, the water table or other natural features of the land or locality.
- anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
- steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.
Part 2A orders for high hedges that obstruct sunlight or views
A landowner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (s14B(a)), or any view from a dwelling situated on the land (s14B(b)), if the obstruction occurs as a consequence of trees planted in groups of two or more that are planted to form a hedge (s14A(1)(a)) and rise to a height of at least 2.5 metres above existing ground level (s14A(1)(b)), except for trees on rural-residential land or crown land.
The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s14E(1)(a)) and has given notice in accordance with the Act (s14E(1)(b)).
The court must not make an order unless it is satisfied the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land (s14D(1)(a)(i)) or are severely obstructing a view from a dwelling situated on the applicant’s land (s14D(1)(a)(ii)) and the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order (s14D(1)(b)).
In making its determination, the court is to consider the following matters (s14F):
- the location of the tree in relation to the boundary.
- whether the trees existed proper to the subject dwelling.
- whether the trees grew to a height of 2.5m during the period in which the applicant owned the property.
- whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
- any other relevant development consent requirements or conditions.
- historical, cultural, social or scientific value.
- contribution to the local ecosystem and biodiversity.
- contribution to the natural landscape and scenic value of the land or locality.
- intrinsic value to public amenity.
- impact on soil stability, the water table or other natural features of the land or locality.
- the impact of pruning on the trees.
- any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
- anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
- steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.
- the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost.
- whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves.
- the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view.
- the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.
- such other matters as the Court considers relevant in the circumstances of the case.
Procedure
Applications may be made to the Land and Environment Court or the Local Court and are considered by a Commissioner of the Land and Environment Court.
The court sets a preliminary conference which is an informal conciliation conference, often held by telephone. If an agreement cannot be reached, a second hearing is held on site with a decision often made on site with written reasons provided 3 or 4 weeks later.
Orders of the court are provided to the parties and the relevant Local Court and the Heritage Council if it was a party to the proceedings. The Local Court is required to list the orders on planning certificates relating to the land.
Enforcement
Failure to comply with an order carries a maximum penalty of $1,100 (s15(1)). Proceedings for an offence may be brought in the summary jurisdiction of the Land and Environment Court (s15(2)).
Successors in title to the land are bound by the orders if the work has not been carried out (s16). The immediate successor in title to the applicants is entitled to the benefits of the order (s17).
The Local Council may, with notice, enter the land and perform the works that have not been carried out and then recover their reasonable costs (s17). A judgment debt in favour of the council may be lodged as a charge on the land (s17A).
Form more information go to http://www.lec.lawlink.nsw.gov.au/lec/types_of_disputes/class_2/trees_and_hedges.html.
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Three new Magistrates for NSW
The NSW Attorney General has announced the appointments of Claire Girotto, Erin Kennedy and Philip Stewart as magistrates of the Local Court of NSW.
Ms Girotto was admitted to practice in 1990. She has worked for the NSW Director of Public Prosecutions for almost 25 years in Sydney and Wollongong. In the past 11 years she has managed the DPP’s Solicitor’s Office.
Ms Kennedy was admitted as a solicitor in 1995. She worked as a barrister for 14 years and in the last two years was a trial advocate for the Director of Public Prosecutions, prosecuting in criminal trials and sentencing hearings in the District Court at Parramatta and Gosford.
Mr Stewart was admitted as a solicitor in 1998 and has worked for Nyman Gibson Stewart, becoming a partner in 2002. Before he joined the legal profession he was a police officer for 14 years.
Ms Girotto will be sworn in on 25 August 2014 at 9.00am in Court 5.2 of the Downing Centre Local Court. Ms Kennedy and Mr Stewart will be sworn in on 8 September 2014.
Sydney, Australia
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Hatzistergos Review of new bail laws
ON 5 AUGUST 2014, the NSW Premier and Attorney General announced changes to the Bail Act 2013 (NSW) following a review by former Attorney General, John Hatzistergos.
The changes will be introduced during the current session of parliament and will include:
- Bail will be refused to an accused assessed to be an “unacceptable risk”.
- Those accused of serious offences will bear the onus to “show cause”.
- Bail assessment will include new risk factors including organised crime associations of the accused, victims’ safety concerns the accused’s history on bail or parole.
- The common law presumption of innocence will be supplemented with other considerations such as protection of the community and protecting the integrity of the justice system.
- The existence of the new Bail Act is not a “change of circumstances” to trigger a review of earlier bail decisions.
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Seven Up Company v OT Ltd [1947] HCA 59 | 19 August 1947
Seven Up Company v OT Ltd [1947] HCA 59; (1947) 75 CLR 203 (19 August 1947).
http://www.austlii.edu.au/au/cases/cth/HCA/1947/59.html
The Seven Up Company, the US owner of the US soft drink trademark “7 UP” brought a motion to remove the Australian owned name “8 Up” from the Australian register of trademarks. Williams J dismissed the motion and an appeal to the Full Court was dismissed.
Per Williams J:
“… in the absence of fraud it is not unlawful for a trader to become the registered proprietor under the Trade Marks Act of a mark which has been used, however extensively, by another trader as a mark for similar goods in a foreign country, provided the foreign mark has not been used at all in Australia at the date of the application for registration. But the position is different if at that date the mark has become identified with the goods of the foreign trader in Australia because those goods have been brought into Australia by the foreign trader himself or by some importer or in some other manner. The court frowns upon any attempt by one trader to appropriate the mark of another trader although that trader is a foreign trader and the mark has only been used by him in a foreign country. It therefore seizes upon a very small amount of use of the foreign mark in Australia to hold that it has become identified with and distinctive of the goods of the foreign trader in Australia. It is not then a mark which another trader is entitled to apply to register under the Trade Marks Act because it is not his property but the property of the foreign trader. The registrar is entitled to refuse to register the mark for such goods. If it has been registered the court may rectify the register on the ground that the mark is wrongly entered on the register.”
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Australian Knitting Mills Ltd v Grant [1933] HCA 35 | 18 August 1933
ON 18 AUGUST 1933, the High Court of Australia delivered Australian Knitting Mills Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387 (18 August 1933).
http://www.austlii.edu.au/au/cases/cth/HCA/1933/35.html
Per Dixon J at 418:
“The condition that goods are of merchantable quality requires that they should be in such an actual state that a buyer fully acquainted with the facts and, therefore, knowing what hidden defects exist and not being limited to their apparent condition would buy them without abatement of the price obtainable for such goods if in reasonably sound order and condition and without special terms.”
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House v R [1936] HCA 40 | 17 August 1936
ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).
http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html
The exercise of a judge’s discretion may be reviewed on appeal if the judge:
- Acts on a wrong principle.
- Allows him or herself to be guided by extraneous or irrelevant matters.
- Mistakes the facts.
- Fails to take into account a material consideration.
If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.
Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
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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Macquarie Equities Limited to write to current and former clients
ON 15 AUGUST 2014 Macquarie Equities Limited (MEL) were required to write to current and former clients alerting them of the possibility of remediation for flawed financial advice. The obligation arose from an Enforceable Undertaking imposed by ASIC following concerns arising from an investigation of MEL’s financial advisor network, Macquarie Private Wealth.
The process of remediation is intended to allow the clients to raise any concerns they have with MEL about poor financial advice they may have received and the losses for which they may wish to be compensated.
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