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Fedele v R

Fedele v R

Case [2015] NSWCCA 286 13 November 2015

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vincenzo Jon Fedele v R [2015] NSWCCA 286
Hearing dates: 21 October 2015
Date of orders: 04 March 2016
Decision date: 13 November 2015
Before: Hidden J at [1]
Davies J at [75]
Adamson J at [76]
Decision:
Leave granted, appeal allowed. Sentences in District Court quashed. Applicant sentenced on each charge to concurrent terms of 10 months imprisonment, to be served by way of ICO.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – accessing and possessing child pornography – full time custodial sentences – whether appropriate consideration given to alternatives to full time imprisonment
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (C’th)
Crimes (Administration of Sentences) Regulation 2014
Crime (Sentencing Procedure) Act 1999 (NSW)
Crimes Regulations 1990 (C’th)
Criminal Code 1995 (C’th)
Migration Act 1958 (C’th)
Cases Cited: Dadson v O’Brien [1998] TASSC 75
Douar v R [2005] NSWCCA 455, 159 A Crim R 154
DPP (C’th) v Guest [2014] VSCA 29
DPP v Smith [2010] VSCA 215
EF v R [2015] NSWCCA 36
Fitzgerald v R [2015] NSWCCA 266
Hili and Jones v The Queen [2010] HCA 45, 242 CLR 520
James v R [2009] NSWCCA 62
Kanengele-Yondgo v R [2006] NSWCCA 354
Lowe v The Queen (1984) 154 CLR 606
Mouscas v R [2008] NSWCCA 181
Pearce v The Queen (1998) 194 CLR 610
R v Booth [2009] NSWCCA 89
R v Cacciola (1988) 104 A Crim R 178
R v De Leeuw [2015] NSWCCA 183
R v Engeln [2014] QCA 313
R v Foster [2001] 33 MVR 565
R v Gent [2005] NSWCCA 370, 162 A Crim R 29
R v Gordon; Ex Parte DPP (C’th) [2009] QCA 209
R v JCE [2000] NSWCCA 498, 120 A Crim R 18
R v Pogson & Ors [2012] NSWCCA 225, 82 NSWLR 60
R v Porte [2015] NSWCCA 174
R v Verburgt [2009] QCA 33
R v Wegener [1999] NSWCCA 405
R v Zamagias [2002] NSWCCA 17
Sabel v R; R v Sabel [2014] NSWCCA 101
Smit v State of Western Australia [2011] WASCA 124
Warnakulasuriya v The Queen [2009] WASC 257
Whelan v R [2012] NSWCCA 147
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Vincenzo Jon Fedele (applicant)
Regina (respondent /Crown)
Representation:
Counsel:
T Game SC with G Huxley (applicant)
K Ginges (respondent/ Crown)
Solicitors:
Uther Webster & Evans Solicitors (applicant)
Solicitor for Public Prosecutions (respondent/ Crown)

File Number(s): 2014/174069
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 September 2015

Before:

Judge Frearson SC

File Number(s):

2014/174069

Judgment

HIDDEN J: The applicant, Vincenzo Jon Fedele, pleaded guilty in the District Court to child pornography offences under Commonwealth and State law. The Commonwealth charge was using a carriage service to access child pornography, an offence under s 471.19(1) of the Criminal Code (C’th), carrying…

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 Fedele v R

Details

AGLC: Fedele v R [2015] NSWCCA 286
Case: [2015] NSWCCA 286
Decision Date: 13 November 2015

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against the sentence imposed on Fedele, who had been convicted of accessing and possessing child pornography. The case was heard in the High Court of Australia. Fedele sought to appeal the sentence on the basis that the trial judge did not adequately consider alternatives to full-time imprisonment.

The central legal issue before the court was whether the trial judge had failed to give appropriate consideration to non-custodial sentencing options for Fedele. The applicant argued that the trial judge had overlooked the potential for rehabilitation and the applicability of community-based sentencing. The Crown, on the other hand, contended that the trial judge had exercised appropriate judicial discretion in imposing a full-time custodial sentence, given the gravity of the offences committed.

The court, in dismissing the application for leave to appeal, found that the trial judge had indeed considered the principles of sentencing and the circumstances of the case. The court held that the sentence imposed was within the range of appropriate penalties for the crimes committed, and that the trial judge had not erred in rejecting non-custodial alternatives. The court emphasised the importance of deterrence and the need to protect the community from serious sexual offences, particularly those involving children. The High Court ultimately concluded that the trial judge had adequately considered the relevant sentencing principles and circumstances of the case, and there was no basis for allowing the appeal.

No further orders were made by the court.

Orders