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Faehringer v R

Faehringer v R

Case [2017] NSWCCA 248 16 October 2017

Appeal

Sentencing

Limitation Periods

Prospects of Rehabilitation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Faehringer v R [2017] NSWCCA 248
Hearing dates: 8 September 2017
Decision date: 16 October 2017
Before: Macfarlan JA at [1];
Beech-Jones J at [2];
Wilson J at [3]
Decision:
(1)   Leave to appeal against conviction with respect to count 5 granted.
(2)   Conviction and sentence with respect to count 5 quashed.
(3)   Leave to appeal against sentence with respect to counts 1 – 4 granted.
(4)   Sentences imposed on 19 November 2015 set aside. In lieu, the applicant is sentenced to an aggregate term of imprisonment of 6 years and 7 months imprisonment, to date from 19 November 2015 and expiring on 18 June 2022. The non-parole period is one of 3 years and 7 months, expiring on 18 June 2019.

Catchwords: CRIMINAL LAW – sentence appeal – conviction appeal added by leave – one offence statute barred – assessment of objective seriousness – historical sentencing patterns – utilitarian value of pleas of guilty – prospects of rehabilitation – totality – no point of principle
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: CT v R [2017] NSWCCA 15
Goebel-McGregor v R [2006] NSWCCA 390
Imbornone v R [2017] NSWCCA 144
Magnuson v R [2013] NSWCCA 50
Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
PM v R [2017] NSWCCA 108
R v Holyoak (1995) 82 A Crim R 502
R v CTG [2017] NSWCCA 163
R v McLean [2001] NSWCCA 58; (2001) 121 A Crim 484
R v MJR [2002] 54 NSWLR 368
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Roberts [2003] NSWCCA 309
R v Sopher (1993) 70 A Crim R 570
R v Thomas [2007] NSWCCA 269
R v Thomson & Houlton (2000) 49 NSWLR 383
Wright v R [2016] NSWCCA 122
Category: Principal judgment
Parties: Stefan Anton Faehringer (Applicant)
Crown (Respondent)
Representation:
Counsel:
R. Webb (Applicant)
T. Smith (Respondent)
Solicitors:
J Hall (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/342434
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

19 November 2015

Before:

Culver DCJ

File Number(s):

2017/342434

Judgment

MACFARLAN JA: I agree with Wilson J.
BEECH-JONES J: I agree with Wilson J.
WILSON J: On 19 November 2015 the applicant was sentenced in the District Court for five offences, to which he had previously entered pleas of guilty. The charges, each of which was brought under since repealed legislation, and the sentences imposed, are as follows.

Charge

Offence

Sentence

1

(Seq. 1)

Indecent Assault of a Female Under 16

Between 1.1.1973 and 31.12.1974, at Heathcote

s 76 Crimes Act 1900 (NSW)

Maximum penalty: 6 years imprisonment

6 months imprisonment to date from 19 November 2015 and expiring on 18 May 2016

2

(Seq. 7)

Indecent Assault of a Female Under 16

Between 1.1.1973 and 31.12.1974, at…

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 Faehringer v R

Details

AGLC: Faehringer v R [2017] NSWCCA 248
Case: [2017] NSWCCA 248
Decision Date: 16 October 2017

CaseChat Overview and Summary

The appellant, Faehringer, was convicted of three offences and sentenced to imprisonment. He appealed both the conviction and the sentence. The key issue was whether the sentence was excessive and whether the court should consider the fact that one of the offences was statute-barred. The court was required to determine whether the totality principle applied and whether the historical sentencing patterns warranted a reduction in sentence.

The court assessed the objective seriousness of the offences, considering the nature of the crimes, the appellant's criminal history, and the impact on the victims. The court also examined the historical sentencing patterns in similar cases and the utilitarian value of the appellant's pleas of guilty. Furthermore, the court took into account the appellant's prospects of rehabilitation. The court concluded that the sentence, while harsh, was not excessive, and the totality principle did not warrant a reduction. The court found that there was no point of principle in reducing the sentence.

The appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed. The court upheld the original sentence, finding it to be just and appropriate. The final orders were that the appellant's conviction and sentence remain as determined by the trial court.

Orders