Local Court Bench Book Update 144 Published

Specific penalties and orders has been updated as follows:

  • Introduction has been revised to incorporate Park v The Queen [2021] HCA 37, Park v R [2020] NSWCCA 90 and R v Doan (2000) 50 NSWLR 115 and clarifies that a sentence is to be assessed by reference to the maximum penalty for the offence taking into account any discount for the guilty plea, assistance etc, before the relevant jurisdictional limit is considered.
  • Crimes Act 1900 has been revised and amended to include:
    1. Crimes Legislation Amendment (Loss of Foetus) Act 2021 offences of cause loss of a foetus through grievous bodily harm to the pregnant woman (s 54A), and causing loss of a foetus through homicide of the pregnant woman (s 54B)
    2. Modern Slavery Act 2018 offences of administer digital platform dealing with child abuse material (s 91HAA), encourage use of digital platform dealing with child abuse material (s 91HAB), provide information to avoid detection/prosecution of offences (s 91HAC) and force child to enter marriage/enter forced marriage with child (s 93AC).
  • Drug Misuse and Trafficking Act 1985 has been revised and updated.

[16-000] General orders is amended at [16-120] to include Park v The Queen [2021] HCA 37, Park v R [2020] NSWCCA 90 and R v Doan (2000) 50 NSWLR 115 which provide that a sentence is to be assessed by reference to the maximum penalty for the offence taking into account any discount for the guilty plea, assistance etc, before the relevant jurisdictional limit is considered. The list of offences for which an order to provide identification particulars under s 134 Law Enforcement (Powers and Responsibilities) Act 2002 can be made has been updated at [16-440].

[20-000] Bail is amended to include Iongi v R [2022] NSWCCA 42 at [20-080] as a practical example of the situation in respect of bail when offences are withdrawn and replaced.

[28-000] Committal proceedings is amended to include Black v R [2022] NSWCCA 17 which discusses a magistrates’ supervisory role in committal proceedings at [28-040]. McNab v DPP (NSW) [2021] NSWCA 298 which discusses “special reasons” and “substantial reasons” in the context of calling witnesses on a conviction appeal, is included at [28-140]. Black v R, above, is also referenced at [28-160] to clarify that, if the prosecution propose to proceed to trial on a principal count, a magistrate should not accept a guilty plea to any alternative count.

[56-000] Costs in criminal matters is amended at [56-020] to include reference to Safework NSW v Williams Timber Pty Ltd [2021] NSWCCA 233 which provides that, before making a costs order adverse to a party’s interests, the court must give them an opportunity to be heard even when the other party accepts (by their silence or otherwise) a costs order is appropriate. [56-080], which discusses costs in apprehended violence order proceedings, has been rewritten and refers to ss 99, 99A Crimes (Domestic and Personal Violence) Act 2007. Safework NSW v Williams Timber Pty Ltd, above, is also included at [56-120] to clarify that it is an error to use the refusal to make a costs order to ameliorate the penalty.

The Index, Table of Statutes and Table of Cases have been updated to Update 144.