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Rex v Taylor [2022] NSWCCA 256
In this decision the CCA has held that there is no rule of law which concludes that in all cases involving a mandatory minimum it is a precondition, in order to obtain that minimum sentence, for a sentencing judge to conclude that the sentence is at the bottom of the range of objective seriousness.
White v R [2022] NSWCCA 241
In this decision the Court of Criminal Appeal (‘CCA’) has held that there is a different test to be applied when a defendant seeks to withdraw their plea, depending on whether the plea was entered before or after conviction. Where the plea is entered before conviction and sentence, the test is an ‘i
Masters v R [2022] NSWCCA 228
In this decision the Court of Criminal Appeal has examined the level of capacity required in order to establish the mental illness defence. Although it was considered in the context of now-repealed legislation, it considers the test under the current Act as well, and concludes in part that there is
Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211
In this case the Court of Appeal has, in the course of dispatching a constitutional challenge to the committal regime, provided useful insights into aspects of the committal process. In particular, the Court has made observations about when and for what purpose witnesses can still be called, and pro
Baker v R [2022] NSWCCA 195
In this decision the CCA has considered how threats can be taken into account as an aggravating factor on sentencing. By majority, the Court has held that a statement can constitute a threat even if it is not explicit, and even if it does not include the time-honoured words ‘or else’, so long as the
Wornes v R [2022] NSWCCA 184
The Court of Criminal Appeal (‘CCA’) has held that there is no rule of law that personality disorders cannot be used to mitigate an offender’s sentence. Each case turns on its facts, but at least where the personality disorder leads to distorted views of personal relationships or impairs emotional r
R v Perrin [2022] NSWCCA 170
In this decision the Court of Criminal Appeal (‘CCA’) has determined that, for the purposes of the 5-year Local Court jurisdictional sentencing limit in s 58 of the Crimes (Sentencing Procedure) Act, the question of whether there is an ‘existing sentence’ is to be addressed as at the day on which se
Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171
In this decision the CCA has settled – at least for the time being – the level of satisfaction which is implied by s 22B of the Bail Act, which provides that convicted defendants are ordinarily to be refused bail following conviction (other than special or exceptional circumstances) if they ‘will be
Ahmad v R [2022] NSWCCA 144
When an offender is on parole, but parole is revoked and a warrant issued, an offence committed whilst the offender is still at large is not committed whilst on ‘conditional liberty’. But in this decision the CCA has pointed out that if the Parole Authority backdates the revocation, that doesn’t ret
Hraichie v R [2022] NSWCCA 155
When an offender commits an offence whilst already in custody, the law provides that in certain circumstances, the sentence for the fresh offence should be completely accumulated on the original sentence. In this decision, the Court of Criminal Appeal (‘CCA’) has held that if an offender is bail ref
R v Boyd [2022] NSWCCA 120
Sentencing courts normally aren’t allowed to take into account self-induced intoxication in mitigation of a sentence; the sentencing legislation prohibits it. But in this decision, the Court of Criminal Appeal (‘CCA’) has identified that there may be circumstances – most notably, where there is drug
Young (a pseudonym) v R [2022] NSWCCA 111
In this decision, the CCA has held that where a sentence has been delayed, it is permissible to take into account in mitigation not only the fact that the sentencing options have changed since the offences, but also (perhaps curiously) the very fact that the offender has been disadvantaged because t
Haile v R [2022] NSWCCA 71
The CCA has in this case reenforced the need for a Liberato direction in word-on-word cases, and sounded a caution about any suggestion that such cases involve a ‘choice’ between versions.
R v Obbens [2022] NSWCCA 109
In this judgment the Court of Criminal Appeal (‘CCA’) has said that the focus when sentencing an offender for fresh sentences which overlap a stale sentence imposed some time ago, the focus is on the totality of the sentence at the time it is imposed. In other words, the question is what the appropr
Totaan v R [2022] NSWCCA 75
In this decision the Court of Criminal Appeal (‘CCA’) a five-judge bench has overturned NSW and interstate authority on the question of hardship to third parties when sentencing federal offenders. The Court held that there is no requirement that such hardship meet the description of being ‘exception
GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
In this decision, the CCA (Payne JA; Rothman and Harrison JJ agreeing) has declared that ‘intentionally chokes’ within the meaning of s 37(1A) of the Crimes Act 1900 means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’.
Darcy v R [2022] NSWCCA 54
As a Table 1 offence, the various forms of offence in s 114 often offer parties a less serious alternative charge in cases involving robberies and break and enter offences. Unfortunately, the ‘sister’ offence in s 115 committing a s 114 offence, having previously been convicted of an indictable offe
McKinley v R [2022] NSWCCA 14
In this decision the Court of Criminal Appeal (‘CCA’) upheld the appeal on the basis that the ‘Ellis’ discount given to the offender for disclosing previously-unknown offending was insufficient. The decision seems to update, to some extent, previous authority which had purported to set arithmetical
Black v R [2022] NSWCCA 17
What is the appropriate discount in a matter on indictment if a defendant offers in the Local Court to plead guilty to an alternative charge which is on the charge certificate, but that offer is not accepted by the prosecution until the matter has already been committed for trial? In this case, the
Lloyd v R [2022] NSWCCA 18
Most criminal law practitioners will be familiar with the authorities urging sentencing courts to exercise caution before giving any weight to untested statements made by offenders to experts. Here, the Court of Criminal Appeal (‘CCA’) has observed that there is no ‘principle’ that such statements a