FARRELL, Michael Anthony v R - [2009] NSWCCA 77

New South Wales
Court of Criminal Appeal

CITATION: FARRELL, Michael Anthony v R [2009] NSWCCA 77

HEARING DATE(S): 25 March 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Rothman J at 3

EX TEMPORE JUDGMENT DATE: 25 March 2009

DECISION:
(i) Leave to appeal be granted;
(ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentence – two sentences for armed robbery – no issue of principle – complaint concerning totality of sentence when combined with sentence imposed by Local Court for break enter and steal to which the sentences under appeal are to be served consecutively – no identifiable or manifest error – leave to appeal granted, appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Pearce v R [1998] HCA 57; 194 CLR 610
R v Ibrahim [2005] NSWCCA 43
Robertson v R [2009] NSWCCA 38

PARTIES: FARRELL, Michael Anthony (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/00008380

COUNSEL: A Cook SC (Applicant)
P A Leask (Respondent)

SOLICITORS: Legal Aid (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0213

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 7 December 2007

2006/00008380

McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
25 MARCH 2009

FARRELL, Michael Anthony v R

EX TEMPORE JUDGMENT

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 BUDDIN J: I agree with Rothman J.

3 ROTHMAN J: Michael Anthony Farrell seeks leave to appeal against the sentence imposed on him by his Honour Acting Judge Boulton on 7 December 2007. His Honour sentenced Mr Farrell for two armed robberies (one occurring on 8 July 2006 and one occurring on 9 July 2006) to imprisonment for 6 years with a non-parole period of 4 years and 6 months for each offence and ordered that the sentences apply partly concurrently by commencing the second sentence 6 months later than the first.

4 Mr Farrell raises, essentially, one ground of appeal being that the sentencing judge did not have regard (or proper regard) to the principle of totality. That complaint concerns the relationship between the “compendious non-parole periods and the non-parole period that had been imposed in January 2007.”

5 The detailed circumstances of the commission of each offence are not particularly relevant. No complaint is made about the appropriateness of the individual sentences imposed for each offence. It is sufficient to note that on Saturday 8 July 2006 Mr Farrell robbed a service station in Coffs Harbour armed with a knife. He threatened a console operator at the station and stole $500-$600 in notes from the till which the operator had been forced to open.

6 On Sunday 9 July 2006, Mr Farrell robbed another service station in almost identical circumstances. At this armed robbery, he took approximately $140 in notes from the till.

7 Mr Farrell pleaded not guilty to the two charges, the issue at trial being one of…

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 FARRELL, Michael Anthony v R

Details

AGLC: Farrell, Michael Anthony v The Queen [2009] NSWCCA 77
Case: [2009] NSWCCA 77
Decision Date: 25 March 2009

CaseChat Overview and Summary

The case of Farrell v R involved Michael Anthony Farrell, who appealed against his sentence for armed robbery. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed for the armed robbery, which was to be served consecutively with a sentence for a previous break, enter, and steal offence, was manifestly or identifiably wrong. Farrell argued that the cumulative effect of the sentences resulted in a sentence that was excessive and unjust. The court was tasked with determining if the totality of the sentence was an error that warranted intervention.

The court examined the principles of sentencing, particularly focusing on the principle of totality, which seeks to prevent a situation where the aggregate of sentences imposed for multiple offences is disproportionate to the overall criminality. The High Court considered the guidelines set out in previous judgments, such as R v Edema, which emphasised the need to avoid a manifestly excessive sentence. However, the court found that there was no identifiable or manifest error in the sentence imposed. The reasoning of the trial judge was consistent with the applicable legal principles, and the court found no basis to interfere with the sentence on the grounds of error.

Consequently, the High Court dismissed the appeal, affirming the trial judge's decision. The court held that the sentence was within the range of appropriate punishments for the offences committed and that there was no identifiable or manifest error that would warrant appellate intervention. The cumulative effect of the sentences, while substantial, was deemed to be proportionate to the severity of the crimes. The leave to appeal was granted, but the appeal itself was dismissed, leaving the original sentence intact.

Orders