Recent criminal law matters
Minister of Corrections v Cawthray  NSWSC 1188
The Crown Solicitor acted for the Minister of Corrections, the plaintiff, in an urgent application seeking prerogative relief in relation to the decision of the State Parole Authority ("the Authority") to grant parole to the first defendant, Hilton Cawthray. Mr Cawthray was convicted of murdering his wife in Queensland over 20 years ago and was sentenced to life, which was later commuted, and he was granted parole in NSW. In an expedited proceeding before his Honour Justice Bellew, his Honour found in favour of the Minister by quashing the decision of the Authority to grant parole and remitting the matter for determination according to law. His Honour found that the Authority fell into jurisdictional error by failing to take into account the relevant considerations to which it is required to have regard under s. 135(2) of the Crimes (Administration of Sentences) Act 1999 ("the Act"); including:
- the need to maintain public confidence in the administration of justice: s. 135(2)(b);
- the nature and circumstances of the offence to which the offender's sentence relates: s. 135(2)(c); and
- the likely effect on any victim of the offender, or on any such victim's family, of the offender being released on parole: s. 135(2)(g).
His Honour emphasised the obligation of the Authority to consider each of the mandatory relevant matters in s. 135 of the Act by engaging in an "active intellectual process", in which each relevant matter received "genuine consideration". His Honour found that the one and a half page transcript of reasons provided by the Authority fell short of the proper consideration and active intellectual process required by the Act.
This decision makes clear that the Authority must genuinely consider the various matters set out in s. 135(2) of the Act and provides guidance to the Authority as to what will constitute adequate reasons for the grant or refusal of parole. The judgment is available online: Minister of Corrections v Cawthray  NSWSC 1188. For information regarding this matter, please contact Christopher Butler on (02) 8224 5393.
Harrison v Perdikaris  NSWLEC 99
The Crown Solicitor acted for the NSW Office of Water in a prosecution of a farm owner for directing contractors to carry out works on two dams on his property near Oberon. The works caused immediate and consequential environmental harm including damage to the creek bed, reduced flow downstream, changes to habitat, substantial loss of sediment and the destruction of a downstream neighbour's crossing. The works were done without the necessary approval in breach of s. 91E(1) of the Water Management Act 2000.
On 27 May 2015, his Honour Chief Justice Preston found the defendant guilty of both offences and ordered the defendant to pay total fines of $93,500, plus the prosecutor's legal costs of $93,000. The defendant also completed remedial work to the satisfaction of the NSW Office of Water at a cost of approximately $20,500, in order to achieve the best environmental outcome.
In his Honour's reasons for judgment, Preston CJ made a number of remarks regarding the importance of the statutory regime, the need for general deterrence and the available practical prevention measures which may assist when sentencing for similar environmental offences matters in future. The judgment is available online: Harrison v Perdikaris  NSWLEC 99. For information regarding this matter, please contact Emma Bayley on (02) 8224 5402.
OSR v Zaia Dawood (Unreported, Parramatta Local Court, 23 June 2015)
The Crown Solicitor acted for the Office of State Revenue in a prosecution of a real estate agent for four offences of aiding and abetting a home owner who falsely stated that she resided in an apartment near Fairfield for which she had claimed the First Home Owner Grant. In support of this claim and to assist the owner to retain the financial advantage of the grant, the real estate agent telephoned and wrote to the Office of State Revenue falsely claiming to be the home owner's uncle.
Following a contested hearing at Parramatta Local Court, the real estate agent was convicted of all four offences, sentenced to three twelve month suspended sentences and ordered to pay a $100 fine, plus the prosecutor's professional costs of $45,143.49. The real estate agent appealed his convictions and sentences.
On 23 June 2015, his Honour Judge Bennett SC dismissed the conviction appeal and accepted the prosecutor's submissions as to the proper construction of the offence provisions in ss. 192D(1) and 192G(b) of the Crimes Act 1900. The real estate agent then withdrew his sentence appeal and was ordered to pay the prosecutor's professional appeal costs of $7,500. In his Honour's reasons for judgment, Bennett DCJ found that the definition of "obtain a financial advantage" provided by s. 192D(1) was not intended to be exhaustive.
This judgment may assist when prosecuting other defendants for making false statements in an effort to assist other persons (often family members) to keep financial benefits that have been obtained. For information regarding this matter, please contact Emma Bayley on (02) 8224 5402.
Overview of High Risk Offenders practice
One of the major practice areas for the Criminal Law Practice Group is the conduct of applications for orders for the extended supervision or continuing detention of high risk sex and violent offenders under the Crimes (High Risk Offenders) Act 2006 ("the Act") on behalf of the State of NSW, on instructions from the Attorney General. Currently, the Crown Solicitor is instructed in over 50 of these matters, which relate to some of the most serious offenders in NSW.
Before making an application, the Crown Solicitor receives instructions to obtain documents about the offenders by way of orders and requests issued on behalf of the Attorney General under s. 25 of the Act to various NSW Government agencies who have previously dealt with the offender, including courts, Police, the ODPP, Corrective Services, Juvenile Justice, Justice Health, the State Parole Authority, the Serious Offenders Review Council and Family and Community Services. The CSO can receive these documents by email, mail or facsimile or, in special circumstances, can arrange for an authorised law copier to collect and copy files.
Counsel is then briefed to advise on the merits of an application. If the Attorney General decides to make an application, proceedings are commenced by way of summons in the Common Law jurisdiction of the Supreme Court. At the preliminary hearing, the Court decides whether the State's evidence, if proven, would justify the making of an extended supervision order and, if so, it appoints two independent experts to examine the offender and prepare a report. Interim supervision or detention orders may also be made if the offender's current supervision or custody will lapse before final hearing.
The matter then proceeds to final hearing where the Supreme Court must determine whether the defendant is a "high risk offender", that is, whether the offender poses an unacceptable risk of committing a serious sex or violence offence if he or she is not kept under supervision. If the Court finds the person is a high risk offender, it must then consider whether the proposed conditions of supervision will mitigate the risk of further serious offending to an acceptable level so as to ensure the safety and protection of the community. Proposed conditions may include electronic monitoring, curfews, schedules of movements, exclusion zones, non-association with certain persons, drug and alcohol conditions, medical treatment and approved accommodation and employment. Where the Court is not satisfied that a supervision order will mitigate an unacceptable risk to an acceptable level, it may make a continuing detention order.
If you have any queries regarding a high risk offender matter, or an order or request received under s. 25 of the Act, please contact the solicitor with carriage of that matter or Christopher Butler, who coordinates the high risk offender practice, on (02) 8224 5393.