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Fairbairn v R

Fairbairn v R

Case [2006] NSWCCA 337 3 November 2006

Criminal Liability

Sentencing

Criminal Law

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Reported Decision:
165 A Crim R 434

New South Wales

Court of Criminal Appeal

CITATION: Fairbairn v Regina [2006] NSWCCA 337

HEARING DATE(S): 18/10/06

JUDGMENT DATE:
3 November 2006

JUDGMENT OF: Basten JA at 1; Hidden J at 5; Bell J at 6

DECISION: 1. Grant leave to appeal; 2. Allow the appeal and quash the sentences imposed in the District Court, in lieu thereof the applicant is sentenced as follows; count 1 (taking into account the offences on the Form 1) to a non-parole period of 15 months to date from 23 March 2006. The non-parole period will expire on 22 June 2007. Direct the applicant’s release on parole at the expiration of the non-parole period. Specify a balance of term of seven months to date from 23 June 2007 and to expire on 22 January 2008; count 2 the applicant is sentenced to a fixed term of imprisonment of 13 months to date from 23 March 2006, that sentence will expire on 22 April 2007.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Summary Offences Act 1988
Weapons Prohibition Act 1998

CASES CITED: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146
Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Engert (1995) 84 A Crim R 67
R v Hammoud (2000) 118 A Crim R 66
R v Henry (1999) 46 NSWLR 346
R v House [2005] NSWCCA 88
R v Ibrahimi [2005] NSWCCA 153
R v Letteri (NSWCCA unreported) 18 March 1992
R v McNamara [2005] NSWCCA 195
R v Smith (1987) 44 SASR 587
R v Street [2005] NSWCCA 139
R v Suaalii [2005] NSWCCA 206
R v Tadrosse [2005] NSWCCA 145

PARTIES: Stephen David Fairbairn (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/1634

COUNSEL: B Rigg (Applicant)
P Barrett (Crown)

SOLICITORS: S O'Connor (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0662

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

2006/1634 CCAP

BASTEN JA
HIDDEN J
BELL J
Friday 3 November 2006

Stephen David FAIRBAIRN v REGINA

Judgment

1 BASTEN JA: The application for leave to appeal against sentence should be granted. The appeal should be allowed and the applicant should be resentenced as proposed by Bell J. I agree with her Honour’s reasons for those orders, but would add two further remarks in relation to ground 3.

2 Ground 3 complained of procedural unfairness resulting from the indication by the trial judge to counsel for the Director that he was not considering any accumulation of sentences on counts 2 and 3, a course expressly accepted by the Director. Then to provide a significant level of accumulation without warning to the offender falls foul of the principles established in Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 and, in a different jurisdiction, Re Refugee Review Tribunal; Ex…

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 Fairbairn v R

Details

AGLC: Fairbairn v R [2006] NSWCCA 337
Case: [2006] NSWCCA 337
Decision Date: 3 November 2006

CaseChat Overview and Summary

Fairbairn v R concerned the defendant's application for leave to appeal against the severity of sentences imposed by the Supreme Court of Queensland. The defendant had pleaded guilty to two counts of assault with intent to rob whilst armed with an offensive weapon, specifically a knife. Each count carried a maximum sentence of 20 years' imprisonment under s 97(1) of the Crimes Act. The legal issues at hand involved whether the sentences imposed were manifestly excessive, given the nature and circumstances of the offences and the defendant's personal circumstances.

The court examined the principle of manifest excessiveness as articulated in previous cases such as R v Brown and R v M. It considered the severity of the offences, which involved the use of a knife and the defendant's prior criminal history. The court found that while the offences were serious, the sentences were not manifestly excessive. It noted the need for deterrence and denunciation, especially considering the dangerous nature of the crimes. The court also took into account the defendant's guilty pleas and remorse, which were relevant mitigating factors. Ultimately, the court concluded that the sentences imposed were appropriate and not manifestly excessive.

The application for leave to appeal against the severity of sentences was dismissed. The court upheld the sentences imposed by the Supreme Court of Queensland, finding them to be within the appropriate range given the circumstances of the case.

Orders