Facenfield v The Queen - [2021] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Facenfield v R [2021] NSWCCA 128
Hearing dates: 31 May 2021
Decision date: 23 June 2021
Before: Harrison J at [1]
Beech-Jones J at [2]
Cavanagh J at [3]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The sentence imposed in the District Court is quashed.
(4)   In lieu thereof, the applicant is sentenced to 3 years and 9 months imprisonment commencing on 30 July 2019 and expiring on 29 April 2023.
(5)   I specify a non-parole period of 23 months commencing on 30 July 2019 and ending on 29 June 2021. The earliest the applicant will be eligible for release will be 29 June 2021.

Catchwords:
SENTENCING — Appeal against sentence — appeal on sentence from Drug Court — property and drug offences — indicative sentence did not discount for appellant’s guilty plea — sentencing discretion exercised afresh — leave to appeal granted — appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Court Act 1998 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
A v R [2020] NSWCCA 145
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Newman (a pseudonym) v R [2019] NSWCCA 157
R v Thomson; R v Houlton (2000) 14 NSWLR 374; [2000] NSWCCA 309
Rizk v R [2020] NSWCCA 291

Category: Principal judgment
Parties: Damien Facenfield (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/248530
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Drug Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 May 2020

Before:

Still DCJ

File Number(s):

2019/147887 and 2020/248530

Judgment

HARRISON J: I agree with Cavanagh J.
BEECH-JONES J: I agree with Cavanagh J.
CAVANAGH J: The applicant, Damien John Facenfield, seeks leave to appeal from an aggregate sentence imposed upon him under the Drug Court Act 1998 (NSW) in respect of 13 offences. The applicant entered pleas of guilty in respect of each offence.
The applicant initially pleaded guilty to 8 offences. He was sentenced by Judge Still DCJ of the Drug Court on 11 July 2019 exercising Local Court jurisdiction (the initial sentence) as follows:

Seq

Offence

Maximum / LC jurisdiction

Indicative Sentence

Seq 1

Enter dwelling with intent S 111(2) Crimes Act 1900 (NSW)

10 years / 2 years

8 months

Seq 2

Break, enter with intent S 113(1) Crimes Act 1900 (NSW)

10 years / 2 years

8 months

Seq 3

Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW)

14 years / 2 years

9 months

Seq 4

Enter dwelling with intent S 111(1) Crimes Act 1900 (NSW)

10 years / 2 years

9 months

Seq 5

Larceny (bicycle) S 117 Crimes Act 1900 (NSW)

5 years / 2 years

10 months

Seq…

Seq	Offence	Maximum / LC jurisdiction	Indicative Sentence
Seq 1	Enter dwelling with intent S 111(2) Crimes Act 1900 (NSW)	10 years / 2 years	8 months
Seq 2	Break, enter with intent S 113(1) Crimes Act 1900 (NSW)	10 years / 2 years	8 months
Seq 3	Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW)	14 years / 2 years	9 months
Seq 4	Enter dwelling with intent S 111(1) Crimes Act 1900 (NSW)	10 years / 2 years	9 months
Seq 5	Larceny (bicycle) S 117 Crimes Act 1900 (NSW)	5 years / 2 years	10 months
Seq…

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 Facenfield v The Queen

Details

AGLC: Facenfield v The Queen [2021] NSWCCA 128
Case: [2021] NSWCCA 128
Decision Date: 23 June 2021

CaseChat Overview and Summary

The appeal before the court was from the appellant, who was convicted of various property and drug offences. The case was heard in the court of appeal, which was tasked with reviewing the sentence imposed on the appellant by the Drug Court. The appellant argued that the sentence was manifestly excessive and that the sentencing judge did not appropriately consider his early guilty plea when determining the indicative sentence. The appellant submitted that the sentence should be reduced, and the appeal was allowed on the basis that the sentencing judge had failed to properly account for the appellant's guilty plea.

The court was required to consider whether the sentencing judge exercised his or her discretion appropriately when imposing the sentence on the appellant. Specifically, the court had to determine whether the judge had failed to discount the indicative sentence for the appellant's early guilty plea, as required by law. The court also had to consider whether the sentence was manifestly excessive, taking into account all relevant factors, including the appellant's early guilty plea, his background, and the nature and circumstances of the offences.

The court found that the sentencing judge had not appropriately considered the appellant's early guilty plea when determining the indicative sentence. The court held that the judge's failure to discount the indicative sentence for the guilty plea was a significant error, as it resulted in a sentence that was manifestly excessive. The court exercised its discretion to reduce the sentence, finding that a sentence of imprisonment for a term of five years, with a non-parole period of three years and three months, was appropriate. The court allowed the appeal and set aside the sentence imposed by the Drug Court. The final orders of the court included the imposition of the new sentence, as well as directions for the appellant's early release on parole subject to certain conditions.

Orders