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Fenech v R

Fenech v R

Case [2018] NSWCCA 160 1 August 2018

Appeal

Sentencing

Recklessly Causing Grievous Bodily Harm

Parity Principle

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Fenech v R [2018] NSWCCA 160
Hearing dates: 16 July 2018
Decision date: 01 August 2018
Before: Beazley P at [1];
R A Hulme J at [2];
Button J at [48]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIME – appeal – sentence – recklessly causing grievous bodily harm in company – sentenced to 3 years imprisonment with 2 year non-parole period – parity principle – whether applicant suffers justifiable sense of grievance – appropriate to use phrase “marked and unjustified disparity” in the application of the principle – applicant and four co-offenders received same sentence – sentence imposed relatively modest – applicant’s liability for offence largely same as for co-offenders – no justifiable sense of grievance.
Legislation Cited: Crimes Act 1900 (NSW) ss 33(1)(b), 35(1)
Cases Cited: Cameron v R [2017] NSWCCA 229
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Miles v R [2017] NSWCCA 266
Pecora v The Queen [1980] VR 499
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Potter [1977] Crim LR 112
R v Stroud (1977) 65 Cr App R 150
R v Tisalandis [1982] 2 NSWLR 430
Category: Principal judgment
Parties: Anthony Gerard Fenech (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Pararajasingham (Applicant)
Mr N J Adams (Crown)
Solicitors:
Conaghan Lawyers
Solicitor for Public Prosecutions

File Number(s): 2013/22532
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

30 June 2017

Before:

Zahra SC DCJ

File Number(s):

2013/22532

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour’s reasons and proposed orders.
R A HULME J: Mr Anthony Fenech (“the applicant”) seeks leave to appeal in respect of a sentence imposed by his Honour Judge Zahra SC in the District Court at Sydney on 30 June 2017.
His Honour imposed a sentence of imprisonment for 3 years with a non-parole period of 2 years dating from 22 February 2017 for an offence of recklessly causing grievous bodily harm in company. The offence is contrary to s 35(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 14 years and there is a standard non-parole period of 5 years.
The applicant had been tried with others upon an indictment alleging, first an offence contrary to s 33(1)(b) of the Crimes Act of causing grievous bodily harm with intent and alternatively the offence of recklessly causing grievous bodily harm in company. The trial was before Zahra SC DCJ without a jury. On 23 February 2017 his Honour returned verdicts of guilty of the primary offence in respect of two of the accused but not guilty of that offence but guilty…

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 Fenech v R

Details

AGLC: Fenech v R [2018] NSWCCA 160
Case: [2018] NSWCCA 160
Decision Date: 01 August 2018

CaseChat Overview and Summary

The case of Fenech v R involved an appeal against sentence by the applicant, who was convicted of recklessly causing grievous bodily harm in company. The applicant was sentenced to three years' imprisonment with a non-parole period of two years. The applicant sought to appeal on the basis of the parity principle, arguing that there was a marked and unjustified disparity in the application of the principle given that he and four co-offenders received the same sentence, and the sentence imposed was relatively modest. The central issue before the court was whether the applicant suffered a justifiable sense of grievance in the application of the parity principle.

The court considered the principle of parity in sentencing, which requires that co-offenders who are equally culpable should receive similar sentences. The court noted that the applicant and his co-offenders were equally culpable for the offence, and that the sentence imposed was relatively modest. The court held that the applicant's liability for the offence was largely the same as that of his co-offenders, and that there was no justifiable sense of grievance on the part of the applicant. The court further held that it was not appropriate to use the phrase "marked and unjustified disparity" in the application of the parity principle in this case.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the applicant's sentence was appropriate and did not amount to a marked and unjustified disparity in the application of the parity principle. The applicant's appeal was therefore dismissed, and the original sentence was upheld.

Orders