In Small v Phillips (No 2) [2019] NSWCA 268 The Supreme Court released the following judgement: “The Court of Appeal has allowed an appeal brought by the grandson of a woman lacking testamentary capacity, and has granted leave for an order to be made under the Succession Act 2006 (NSW) for a Will to be made on her behalf. The Court found that a draft Will which had been prepared prior to her loss of capacity was, or was reasonably likely to be, a Will that would have been made and finalised by the grandmother if she had testamentary capacity at the time the draft Will was ready for signing and that it was appropriate for an order authorising such a Will to be made.” Unfortunately, it has taken the estate beneficiaries a great deal of effort and expense to get the Grandmother’s draft will upheld when a quick visit to her lawyer and a nominal fee would have legitimised her will.

If you haven’t made your will yet, call CBD Law today to make an appointment.

Originally Mr Yin was sentenced to 16 years imprisonment, with a non-parole period of 10 years. The offence involved the unlawful importation from Taiwan of 41kg of methamphetamine of which 33kg was pure methamphetamine. The sentencing judge found that the applicant committed his offence with 2 co-offenders, Mr Huang and Mr Lu. The co-offenders pleaded guilty to a charge of attempting to possess a commercial quantity of methamphetamine & were each sentenced to imprisonment for 10 years, with a non-parole period of 6 years. The sentencing judge assessed the applicant’s role as “more responsible” than that of the co-offenders. From the evidence it appeared Mr Yin played a more senior role with some level of authority over the co-offenders in relation to obtaining possession of the drugs in Australia.

Mr Yin sought leave to appeal against his sentence on the following grounds:

1. whether the sentencing judge erred in her assessment of the comparative objective seriousness of the applicant’s offending and that of the 2 co-offenders.

The Court found that the sentencing judge did not err in concluding beyond reasonable doubt that the applicant played a more serious role in the offence than his co-offenders. The Court found that his offence was thus more serious.

2. whether the disparity between the sentence imposed on the applicant and the sentences imposed on the two co-offenders gives rise to a justifiable sense of grievance on the part of the applicant.

The Court found that the disparity did not give rise to a justifiable sense of grievance on the part of the applicant, as the disparity in the sentence was justified by the difference in the role played by the applicant and that of his co-offenders, and the acceptance that the subjective circumstances were similar.

The Appeal relates back to the shooting of a civilian employee with the NSW Police Force back in October of 2015. Mr Alou was 18 at the time and will be spending the next 40 or so years in prison for his crimes.

The full summary can be found here: www.caselaw.nsw.gov.au/decision/5d8c5b22e4b0c3247d71208b

Alou v R [2019] NSWCCA 231

The 2 issues on appeal were whether the sentencing judge erred in his assessment of the objective seriousness of the offences and whether the sentence imposed was manifestly excessive. First, it was submitted that the sentencing judge erred in his assessment of the offending conduct as falling at, or slightly below, the mid-range of objective seriousness. Counsel for Mr Simpson drew particular attention to the undisputed facts of the offending, which were said to support a finding of low objective seriousness. For the break and enter offence, emphasis was placed on the lack of planning or organisation, the limited damage to the apartment and the absence of vulnerability on the part of the occupants. For the take and drive offence, it was said that there was no suggestion of damage to the vehicle or any particular unlawful manner of driving on the part of Mr Simpson. Counsel for Mr Simpson also pointed to what was said to be an agreement between the parties upon sentencing that the offending conduct was towards the lower end of the range and the sentencing judge’s misconstruction of the legislation governing the dispose of stolen property offence.

The Court held that, while a sentencing judge’s assessment of objective seriousness will not lightly be interfered with, intervention was warranted in this case. The Court held that, in light of the submissions from the parties at sentencing as to objective gravity, and given his Honour’s failure to provide an adequate explanation for the view at which he arrived, the sentencing judge had erred in his assessment of objective seriousness. The Court also held that the sentencing judge’s misconstruction of the legislative provision relevant to the third offence was not an immaterial error. As error was shown in relation to the sentencing judge’s assessment of objective seriousness, resentencing was warranted and it was not strictly necessary to deal with the second issue on appeal. In terms of resentence, the Court found that the objective seriousness of all three offences fell at the lower end of the range. The Court also noted that there were improved prospects of rehabilitation since the time Mr Simpson was originally sentenced in 2018. Mr Simpson was resentenced to an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years and 8 months.

Interesting to see how important it is to really knuckle out the facts in your submissions for sentencing. I have underlined some considerations for sentencing that I recognised from the Sentencing Act, however probably more for my purposes more than anything.