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Fabre v The Queen

Fabre v The Queen

Case [2018] NSWCCA 133 29 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Fabre v R [2018] NSWCCA 133
Hearing dates: 27 June 2018
Decision date: 29 June 2018
Before: Basten JA
Decision:
Confirm the aggregate sentence imposed on the appellant on 8 September 2017 by the Drug Court and dismiss the appeal.

Catchwords:
APPEALS – appeal from sentence imposed by Drug Court – appeal pursuant to Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF – whether appeal should be heard by single judge – leave to appeal not required

CRIMINAL PROCEDURE – probation and parole –sentencing judge failed to direct release at conclusion of non-parole period – judgment prior to repeal of Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 and introduction of Crimes (Administration of Sentences) Act 1999 (NSW), s 158 – whether Court should make direction on appeal

SENTENCING – mitigating factors – plea of guilty –aggregate sentence imposed in respect of 30 offences – sentencing judge failed to apply discount for utilitarian value of pleas to four indicative sentences – whether error could have affected aggregate sentence
SENTENCING – appeal against sentence – where aggregate sentence imposed by Drug Court exercising jurisdiction of Local Court – where indicative sentences close to maximum penalty allowed for offences in Local Court – whether indicative sentences excessive
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 158; Sch 5, Pt 23
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 43, 50, 53B
Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AF
Drug Court Act 1998 (NSW), ss 7A, 10, 11, 12
Interpretation Act 1987 (NSW), s 30
Cases Cited: Canzius v R [2017] NSWCCA 177
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302
Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56
Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Mundine v R [2017] NSWCCA 97
Kerr v R [2016] NSWCCA 218
Lee, Matthew v R [2016] NSWCCA 146
Moses v R [2015] NSWCCA 218; 253 A Crim R 467
PG v R [2017] NSWCCA 179
R v Keyte (2000) 78 SASR 68
R v Robinson [2014] NSWCCA 12
Regina v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
Willmott v R [2016] NSWCCA 256
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Joseph Clive Fabre (Appellant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Appellant)
P McGrath SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/300554
Decision under appeal

Court or tribunal:

Drug Court

Date of Decision:

8 September 2017

Before:

Barnett DCJ

File Number(s):

2016/00000397

Judgment

BASTEN JA: On 8 February 2017 the appellant, having entered pleas in relation to 16 offences, was sentenced by Judge Barnett in the Drug Court at an “initial sentence hearing”. The judge imposed an aggregate…

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 Fabre v The Queen

Details

AGLC: Fabre v The Queen [2018] NSWCCA 133
Case: [2018] NSWCCA 133
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the matter of Fabre v The Queen, the appeal was heard in the Supreme Court of New South Wales. The appellant, Fabre, contested the sentence imposed by the Drug Court, which was exercising the jurisdiction of the Local Court. The appeal focused on several legal issues, including whether the appeal should be heard by a single judge, whether the Court should direct the release of the appellant at the conclusion of the non-parole period, and whether the aggregate sentence imposed was excessive. The appellant argued that the sentencing judge failed to apply a discount for the utilitarian value of pleas to four of the indicative sentences and that this error could have affected the aggregate sentence.

The Court considered whether the appeal should be heard by a single judge, noting that leave to appeal was not required under the Criminal Appeal Act 1912 (NSW). The Court also examined whether it should direct the release of the appellant at the conclusion of the non-parole period, given that the sentencing judge had failed to do so. The Court found that, although the original judgment was issued before the repeal of certain sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the introduction of new provisions in the Crimes (Administration of Sentences) Act 1999 (NSW), it was appropriate to make a direction on appeal in this case. The Court then assessed whether the aggregate sentence imposed by the Drug Court was excessive, particularly in light of the sentencing judge's failure to apply a discount for the utilitarian value of pleas to four of the indicative sentences.

The Court concluded that the aggregate sentence was not excessive, despite the sentencing judge's failure to apply the discount for the utilitarian value of pleas to four of the indicative sentences. The Court determined that the indicative sentences were close to the maximum penalty allowed for the offences in the Local Court, but that the aggregate sentence did not exceed what was appropriate in the circumstances. The Court further found that any error in not applying the discount did not affect the overall sentence. Consequently, the Court dismissed the appeal. The Court made no direction regarding the release of the appellant at the conclusion of the non-parole period, as it found that the sentencing judge had not erred in not making such a direction.

Orders