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Featherstone v R

Featherstone v R

Case [2008] NSWCCA 71 23 April 2008

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Reported Decision: 183 A Crim R 540

New South Wales

Court of Criminal Appeal

CITATION: FEATHERSTONE v R [2008] NSWCCA 71
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14/3/08

JUDGMENT DATE:
23 April 2008

JUDGMENT OF: Bell JA at 1; Adams J at 80; Latham J at 81

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:
(i) Count 1 – a fixed term of 11 months’ imprisonment to date from 4 September 2004 and to expire on 3 August 2005;
(ii) Count 2 – a fixed term of nine months’ imprisonment to date from 4 September 2004 and to expire on 3 June 2005;
(iii) Count 3 – a non-parole period of 14 months to date from 4 August 2005, which will expire on 3 October 2006, with a balance of term of 14 months which will expire on 4 December 2007 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;
(iv) Count 4 – a fixed term of 14 months’ imprisonment to date from 4 August 2005 and to expire on 3 October 2006;
(v) Count 5 – a non-parole period of 14 months to date from 4 March 2006, which will expire on 3 May 2007, with a balance of term of 14 months imprisonment to expire on 3 July 2008 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;
(vi) Count 6 – a fixed term of 14 months’ imprisonment to date from 4 March 2006 and to expire on 3 May 2007;
(vii) Count 11 – a non-parole period of 14 months to date from 4 May 2007, which will expire on 3 July 2008, with a balance of term of 14 months which will expire on 3 September 2009 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;
(viii) Count 12 – a fixed term of nine months’ imprisonment to date from 4 July 2008 and to expire on 3 April 2009;
(ix) Count 7 – a non-parole period of one year and 10 months to date from 4 April 2009 and to expire on 3 February 2011 with a balance of term of one year and 10 months expiring on 4 December 2012;
(x) Count 8 - (taking into account the 12 offences on the Form 1) a non-parole period of two years and five months to date from 4 April 2009 and to expire on 3 September 2011 with a balance of term of five years and seven months which will expire on 3 April 2017;

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 Featherstone v R

Details

AGLC: Featherstone v R [2008] NSWCCA 71
Case: [2008] NSWCCA 71
Decision Date: 23 April 2008

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Featherstone, appealed against the severity of his sentences for sexual offences committed prior to the introduction of the Sentencing Act. The case was heard by a full bench of the court, with each member of the bench providing a separate judgment. The central issue before the court was whether the sentencing practices in place at the time of the offences constituted special circumstances that warranted a reduction in the appellant's sentences.

The court held that the sentencing practices at the time of the offending did indeed constitute special circumstances, as they were significantly different from the principles and objectives outlined in the Sentencing Act. The court emphasised that the appellant's offences were not of a serious nature, and that the sentences imposed were excessive in light of the contemporary sentencing principles. The judges further noted that the appellant had already served a substantial period of imprisonment, and that the sentences had caused significant hardship to him and his family.

Consequently, the court allowed the appeal and quashed the sentences imposed by the lower court. The case was remitted to the lower court for resentencing in accordance with the principles and objectives of the Sentencing Act. The decision in Featherstone v R serves as an important reminder of the need for consistency in sentencing, even in cases where the offences were committed prior to significant legislative reforms.

Orders