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Fayd'herbe v R

Fayd'herbe v R

Case [2007] NSWCCA 20 12 February 2007

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New South Wales
Court of Criminal Appeal

CITATION: Fayd'Herbe v R [2007] NSWCCA 20

HEARING DATE(S): 24/01/07

JUDGMENT DATE:
12 February 2007

JUDGMENT OF: Adams J at 1; Howie J at 29; Price J at 30

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Sentence appeal - ongoing supply of ecstasy - whether exceptional circumstances necessary before imposing less than full time custody where substantial dealing - desirability of expressing extent of utilitarian discount

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED: R v BCC [2006] NSWCCA 130
R v Braithwaite [2005] NSWCCA 451
R v Cacciola (1998) 104 A Crim R 178 16
R v Carrion (2000) 49 NSWLR 149
R v CBK [2002] NSWCCA 457
R v Gip; R v Ly (2006) 161 A Crim R 173
R v Gu [2006] NSWCCA 104
R v Ha (2004) NSWCCA 386
R v Kairouz [2005] NSWCCA 247
R v Khaled [2001] NSWCCA 169
R v Kipic; R v Elias [2004] NSWCCA 452
Mizzi v The Queen [2006] NSWCCA 194
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES: Jonathon Wayne FAYD'HERBE
REGINA

FILE NUMBER(S): CCA 2006/2527

COUNSEL: Crown: Mr P. Ingram
Applicant: Ms N. Mikhaiel

SOLICITORS: Crown: Director of Public Prosecutions
Applicant: -

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0292

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 18/07/2006

2006/2527

ADAMS J
HOWIE J
PRICE J
12 February 2007

Jonathon Wayne FAYD’HERBE v REGINA

Judgment

1 ADAMS J: The applicant, Jonathon Wayne Fayd’Herbe, was sentenced on 18 July 2006 to the offence of an ongoing supply of ecstasy between 7 May and 7 June 2005 contrary to s25A of the Drug Misuse and TraffickingAct 1985. The offence carries a maximum penalty of imprisonment of 20 years and or a substantial fine. The court took into account five further offences on a Form 1 schedule: two of these offences involved actual supply of small quantities of ecstasy contrary to s25(1) of the Act; one was a deemed supply of an indictable quantity (maximum imprisonment 15 years on indictable disposal); one was possession of ecstasy contrary to s10(1) (maximum imprisonment 2 years); and the fifth concerned goods in custody ($180) suspected of having been unlawfully obtained contrary to s527C of the Crimes Act 1900 (maximum imprisonment 6 months). The applicant was sentenced to an overall term of two years and six months with a non-parole period of twelve months commencing 18 July 2006 and expiring on 17 July 2007.

2 The quantities of drugs and amounts involved were small. On four occasions the applicant supplied ecstasy tablets to undercover police officers. The first two occasions each involved the sale of one tablet for $30, the third sale involved two tablets for $50 and the fourth sale involved four tablets for $120. In all, the applicant sold eight tablets weighing 2.46 grams in return for $230, each tablet being approximately 23% pure ecstasy.…

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 Fayd'herbe v R

Details

AGLC: Fayd'herbe v R [2007] NSWCCA 20
Case: [2007] NSWCCA 20
Decision Date: 12 February 2007

CaseChat Overview and Summary

In the case of Fayd'herbe v R, the appellant was convicted of being involved in the ongoing supply of ecstasy. The High Court of Australia was asked to determine whether the trial judge erred in law by failing to consider exceptional circumstances before imposing a sentence of less than full-time custody. Additionally, the court had to decide if the judge should have expressly stated the extent of the utilitarian discount applied to the sentence.

The legal issues before the court were whether the trial judge should have considered exceptional circumstances before imposing a sentence of less than full-time custody for the ongoing supply of ecstasy and if it was necessary for the judge to expressly state the extent of the utilitarian discount applied. The appellant argued that the trial judge did not consider exceptional circumstances and failed to express the extent of the utilitarian discount. The Crown maintained that the trial judge's approach was correct and did not result in a miscarriage of justice.

The High Court held that the trial judge did not err in law by not considering exceptional circumstances before imposing a sentence of less than full-time custody. The court found that the sentence was within the range of sentences that could be imposed for the offence, taking into account the seriousness of the crime and the need for deterrence. The court also held that while it is desirable for a sentencing judge to express the extent of the utilitarian discount, it is not necessary for every case. In this instance, the court found that the trial judge's approach did not result in a miscarriage of justice.

The High Court dismissed the appeal, affirming the sentence imposed by the trial judge. The court held that the trial judge's approach to sentencing was correct, and the appellant's arguments did not establish that the sentence was manifestly inadequate or unjust. The court further held that while it is desirable for a sentencing judge to express the extent of the utilitarian discount, it is not necessary for every case. In this instance, the court found that the trial judge's approach did not result in a miscarriage of justice.

Orders