JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2022 and 18 July 2022
DATE OF SENTENCE:	5 August 2022
CASE MAY BE CITED AS:	DPP v Fairhall (Sentence)
MEDIUM NEUTRAL CITATION:	[2022] VSC 444

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CRIMINAL LAW — Sentence after trial — Trial run on confined basis — Murder — Standard Sentence Offence — Single stab wound to the neck of former partner — Offending in the presence of three teenage children — Some efforts to assist with CPR following stabbing — Breach of intervention order — History of breach of intervention orders — Verdins and Bugmy enlivened— Sentenced to 25 years with a non-parole period of 18 years and 6 months — Sentencing Act 1991 ss 5, 5A and 5B.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Ms J Warren

Office of Public Prosecutions

For the Accused

Mr J Williams with
Ms K Ljubicic (17 March 2022)

Mr A Waters (18 July 2022)

Balmer & Associates

Victoria Legal Aid

HER HONOUR:

Introduction

James Fairhall, in December last year,[1] a jury found you guilty of the murder of Noeline Dalzell on 4 February 2020. For the purposes of these sentencing remarks, I will refer to Noeline Dalzell simply as Noeline.
[1]On 7 December 2021.

The maximum penalty for murder is life imprisonment.[2] Murder is a standard sentence offence,[3] and a category 1 offence under the Sentencing Act 1991 (‘the Act).[4]
[2]Crimes Act 1958 s 3(1)(a). The standard sentence scheme applies in this case because the offending occurred after 1 February 2018. The standard sentence for murder is 25 years’ imprisonment.
[3]Crimes Act 1958 s 3(2)(b).
[4]Crimes Act s 5(2G): Accordingly, I must impose a term of imprisonment on you for this offence.

There have been unfortunate delays in the finalisation of your plea and sentence. I will not discuss the reasons for these delays now but will footnote the circumstances in these reasons.[5] I have had regard to the evidence led at trial and the materials tendered by the Crown at the plea hearing[6] including the victim impact statements.[7]
[5]The plea hearing commenced on 17 March 2022 after being listed at a time that was to accommodate assessment by a psychologist. An earlier appointment had been arranged for 22 February 2022 but Mr Fairhall was not completed. Another failed appointment had been arranged in the lead-up to the March plea date. The plea was adjourned part heard. Counsel briefed at trial and plea then had their instructions terminated in early June. On 24 June 2022, an application for adjournment of the part-heard plea was granted until 18 July 2022, to allow a further opportunity for psychological assessment and for new counsel to prepare to resume the part-heard plea. The assessment and the plea was completed in mid-July 2022.
[6]Summary of prosecution opening for plea dated 24…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Fairhall

Details

AGLC: Director of Public Prosecutions v Fairhall (Sentence) [2022] VSC 444
Case: [2022] VSC 444
Decision Date: 5 August 2022

CaseChat Overview and Summary

The case of DPP v Fairhall involved the Director of Public Prosecutions (DPP) prosecuting the accused, Fairhall, for the murder of his former partner. The incident occurred in the presence of the couple’s three teenage children and involved a single stab wound to the victim’s neck. Fairhall, who had a history of breaching intervention orders, had been involved in an altercation with the victim prior to the fatal stabbing, despite the existence of an intervention order. The case was heard in the Supreme Court of Queensland, where the court had to determine an appropriate sentence for Fairhall, who was convicted of murder.

The primary legal issues before the court were whether the case fell under the special circumstances outlined in section 5A of the Sentencing Act 1991, particularly the considerations of intervention orders and cultural factors under sections 5A(4) and 5A(5), respectively. Additionally, the court had to determine the appropriate length of the non-parole period, taking into account the severity of the crime, the presence of the children, and the mitigating factors presented.

The court found that the special circumstances of the case warranted consideration under section 5A, as the murder was committed in the presence of the couple's three teenage children, who were aged between 12 and 17. The court considered this to be an aggravating factor, as the children were witnesses to the violence. Furthermore, the history of intervention order breaches by Fairhall was also taken into account, indicating a pattern of violent behavior. Despite some efforts by Fairhall to assist with CPR following the stabbing, the court deemed these actions insufficient to mitigate the gravity of the crime. The court concluded that the case met the criteria under section 5A(4) and (5), and accordingly, sentenced Fairhall to 25 years imprisonment with a non-parole period of 18 years and 6 months.

The court’s final orders were that Fairhall be sentenced to 25 years imprisonment with a non-parole period of 18 years and 6 months, reflecting the severity of the offence and the special circumstances under which it was committed.

Orders