Fahs v Regina [2007] NSWCCA 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
07/02/2007
JUDGMENT DATE:
14 February 2007
JUDGMENT OF:
Simpson J at 1; Howie J at 2; Buddin J at 33
DECISION:
Application for leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:
Criminal Law - Sentencing - Factors in aggravation - "planned or organised criminal activity" - accumulation of sentences - finding special circumstances - no reduction in non-parole period - no lesser sentence warranted.
V. Lydiard - Crown V. Terracini SC/G. Ikners - Applicant
SOLICITORS:
S. Kavanagh - Crown P. C. Proctor - Solicitor
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
05/21/0281; 05/21/0283
LOWER COURTJUDICIAL OFFICER:
Sorby DCJ
LOWER COURT DATE OF DECISION:
29/03/2006
2006/2523
SIMPSON J HOWIE J BUDDIN J
WEDNESDAY 14 FEBRUARY 2007
Mario FAHS v REGINA
Judgment
1 SIMPSON J: I agree with Howie J.
2 HOWIE J: The applicant pleaded guilty to four offences relating to the supply of prohibited drugs. There were two offences contrary to s 25A of the Drug Misuse and Trafficking Act of on-going supply, and two offences contrary to s 25(2) of that Act, one offence of supplying not less than a large commercial quantity and an offence of supplying not less than a commercial quantity. The offences under s 25A carried relevantly a maximum penalty of imprisonment for 20 years. The offence in respect of the large commercial quantity carried a maximum penalty of life imprisonment with a standard non-parole of 15 years and that in relation to a commercial quantity imprisonment for 20 years with a standard non-parole period of 10 years. There were also matters dealt with under s 166 of the Criminal Procedure Act including an offence of supply and five offences of drive while disqualified.
3 On 29 March 2006 Judge Sorby (the Judge) sentenced the applicant to an overall sentence of 9 years and 6 months with an overall non-parole period of 7 years to date from 21 April 2005. The applicant is eligible to be released to parole on 20 October 2014. The longest sentence was that imposed for the offence of supplying a large commercial quantity being a non-parole period of five years from 21 April 2007 with a balance of term of 2 years and 6 months. The other sentences were varying periods of imprisonment to be served by fixed terms. There was an accumulation between the sentences of 2 years…
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.
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AGLC
Fahs v R [2007] NSWCCA 26
Case
[2007] NSWCCA 26
Decision Date
CaseChat Overview and Summary
The case of Fahs v R involved the appellant, Mr. Fahs, appealing against his sentence for his involvement in a planned criminal activity. The High Court of Australia was tasked with examining the application of various sentencing principles in light of the appellant's role in orchestrating the criminal scheme. The central issue before the Court was whether the sentencing judge had correctly identified and applied the factors in aggravation, particularly the nature of the criminal activity as being "planned or organised," and whether this warranted a specific sentencing outcome.
The Court examined the lower court's reasoning and application of the relevant sentencing principles. It was established that the trial judge had correctly identified the appellant's involvement in a planned and organised criminal activity as a significant aggravating factor. The Court also noted that the trial judge had appropriately considered the accumulation of sentences, ensuring that the overall sentence reflected the totality of the appellant's criminal conduct. Furthermore, the Court held that the trial judge had correctly found special circumstances in the nature and extent of the appellant's criminal conduct, which justified a non-parole period without any reduction. The Court concluded that the sentencing judge had correctly applied the principles of criminal sentencing, and there were no grounds for a lesser sentence.
The High Court upheld the appeal and confirmed the original sentence imposed by the lower court. The Court held that the trial judge had correctly identified and applied the relevant sentencing principles, including the identification of the appellant's involvement in planned and organised criminal activity as a significant aggravating factor. The Court also found that the trial judge's consideration of the accumulation of sentences and the finding of special circumstances was appropriate. Consequently, the original sentence, including the non-parole period, was upheld, and no lesser sentence was warranted.