CLN 2022

CLN 1 – December 2022

Supreme Court of NSW

R v ET [2022] NSWSC 905

CRIME – bail – where bail sought after conviction but before sentence – whether applicant will be sentenced to a imprisonment by fulltime detention – need to show special or exceptional circumstances – where non-parole period will probably not exceed time applicant has spent in custody on remand – special or exceptional circumstances shown

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

CRIME – Appeal and review – Application for leave to appeal from interlocutory decision of Local Court under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) – where sentencing decision and bail variation application listed on same day before a Children’s Court Magistrate – where Magistrate made finding of failure to comply with a bail condition following sentencing decision – whether Magistrate lacked jurisdiction to make a failure to comply finding because no substantive proceedings were pending or otherwise – meaning of “bail decision” in the Bail Act 2013 (NSW) – consideration of appropriate form of relief – alternatively, whether Magistrate applied incorrect standard of proof in making a failure to comply finding

R v LM [2022] NSWSC 987

BAIL – release application – armed robbery – knife – s 22B – unacceptable risk – commission of further serious offence – bail refused

DPP v PH [2022] NSWSC 1245

CRIME – bail – detention application – application made following pleas of guilty and before sentencing – consideration of application of s 22B of the Bail Act 2013 (NSW) to juvenile offender being dealt with at law – high threshold as to whether the offender will inevitably be sentenced to full-time imprisonment – where the objective seriousness of the offending is extremely grave – where there are strong subjective factors in mitigation – where youth and achievement of rehabilitation would be prominent features in sentencing – s 22B threshold not satisfied – where offender would also satisfy special circumstances threshold due to family circumstances – where no unacceptable risks if variation made – bail continued

Re Leonardo [2022] NSWSC 1265

CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made

PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application

CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans

CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

In re a Child [2022] NSWSC 671

Family law and child welfare – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application by paternal aunt for leave to appear in person in care proceedings – whether leave should be granted – approach to be taken to applications for the grant of leave – HELD – leave refused

NSW Court of Appeal

Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7

APPEAL – application for leave to appeal – challenge to interlocutory decision refusing summary dismissal of proceedings – where no issue of principle or general public importance – no injustice shown – costs – challenge to costs order where no ground of appeal directed at costs – no reasonably arguable error in exercise of costs discretion

CM v Secretary, Department of Communities and Justice [2022] NSWCA 120

CHILD WELFARE – care and protection of children – appeal from Children’s Court – mother seeks judicial review of appointment of guardian ad litem for mother – whether error of law on face of record – whether record included reasons for appointing previous guardian ad litem – whether necessary to make order that mother be legally represented before appointing guardian ad litem – whether jurisdictional error – ss 98 and 101 of Children and Young Persons (Care and Protection) Act 1998 (NSW) considered

Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Where care proceedings on foot in the Children’s Court – Where applicant applied to Supreme Court for stay of care proceedings – Whether Supreme Court proceedings duplicated issues and relief sought in care proceedings – Where final orders now made in care proceedings – Where only relief sought on appeal was declaration that removal of children was unlawful due to defective warrant – Children’s Court unable to grant such relief but able to determine same question as part of ascertaining its own jurisdiction – Granting declaration would merely be an advisory opinion – Evidence suggests serious obstacles to impugning warrant – Leave to appeal refused

CHILD WELFARE – Statutory removal – Emergency removal – Care order – Warrants – Challenge in Supreme Court to validity of warrant for removal – Whether abuse of process – Duty of Children’s Court to ascertain its own jurisdiction

COSTS – Orders against non-parties – Personal costs orders against lawyers – Where counsel appeared on watching brief for child despite no substantial interest in outcome – Whether to disallow costs of child’s independent legal representative – Children joined of Court’s own motion – Representative able to provide explanation for why submitting appearance not filed – Costs not disallowed

NSW Court of Criminal Appeal

Spinks v DPP [2021] NSWCCA 308

CRIME – appeal and review – appeal against sentence – failure to consider properly offender’s youth and prior good behaviour – offender 18 years of age at the time of offending – whether immaturity affected conduct

CRIME – appeal and review – procedural fairness – failure to fix period of recognizance when sentencing – offender to be present and sentenced in open court – element of sentence contained only in orders as entered on court record

CRIME – appeal and review – procedural fairness – offender’s evidence consistent with defence – evidence elicited by prosecutor – offender given choice to change plea or change evidence on oath – withdrawn evidence treated as affecting credit

CRIME – federal offences – drug importation offence – defence available if drugs not to be sold – evidence of predominant personal use – no evidence of intention to profit financially – factor in mitigation

SENTENCING – mitigating factors – youth of offender – effects of immaturity – addiction to drug – substance abuse disorder – whether offender had control of drug use – drug use commenced at younger age

DS v R; DM v R [2022] NSWCCA 156

CRIMINAL LAW – sentence appeal – two juvenile offenders DM and DS – each convicted of murder and aggravated take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation – DM also convicted of robbery with wounding while armed with an offensive weapon – wounding with intent to cause grievous bodily harm – offences included on Form 1 – offences committed on the same night in Queanbeyan – murder involved robbery of service station and stabbing of attendant by one of the offenders – both offenders liable for constructive murder – DS culpable for foundational crime on the basis of extended joint criminal enterprise to commit robbery – each offender affected by dysfunctional background and mental health issues – moral culpability reduced – long sentences imposed – whether moral culpability of offender part of determination of objective seriousness of offence – rejected – sentencing judge erred in assessing objective seriousness of DS’s offences – sentencing judge addressed DS’s participation in DM’s offences as opposed to DS’s offences – sentencing judge erred in failing to give effect to finding of special circumstances – no error in consideration of DS’s youth – objective seriousness of DM’s offence of murder assessed as substantially above the mid–range – no error established – whether sentencing judge erred in consideration of DM’s youth – no error established – whether sentencing judge erred in describing murder as involving “gratuitous violence”, “cold blooded” – submission untenable – no error established – whether sentences imposed manifestly excessive – sentences well in excessive of the objective seriousness of each offence – parity – Bugmy considerations – leave to appeal granted – appeal allowed – applicants resentenced

CW v R [2022] NSWCCA 50

CRIME – Appeals – Appeal against sentence – reckless infliction of grievous bodily harm – victim a 9 week old infant – fractured ribs – “karate chop” – squeezing – additional assaults resulting in fractured wrist and bruising to face – multiple assaults – twenty year old ill equipped father – personal history of trauma, dysfunction and violence – psychologist’s report –– whether sentencing judge failed to assess moral culpability – whether failure to apply “Bugmy principles” – whether Judge erred in approach to youth and immaturity – ex tempore judgment on sentence

R v AR [2022] NSWCCA 5

SENTENCING – Penalties – Community Service Order – Whether conviction must be recorded

SENTENCING – Sentencing procedure – Correction of sentence – Whether error of law in sentence originally passed

SENTENCING – Sentencing procedure – Offence by child under 16 years – Where dealt with according to law – No discretion to refrain from entering conviction as required for Community Service Order

Children's Court of NSW

R v Nerri [2022] NSWChC 2

CHILDREN – Criminal Law – Youth Koori Court

Department of Communities and Justice (DCJ) and Jamzie [2022] NSWChC 1

CHILDREN - Care and Protection – correct test for restoration – short term orders

Department of Communities and Justice (DCJ) and Jacinta [2021] NSWChC 5

Consent to final orders, contradictor

Finn, Lincoln, Marina and Blake Hughes [2022] NSWChC 4

CHILDREN – Care and protection – application for supplementary Children's Court Clinic Report

Papers

Doli Incapax Paper by M. Johnston, R. Khalilzadeh