Fenner v The The Queen - [2022] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Fenner v R [2022] NSWCCA 48
Hearing dates: 4 February 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Before: Johnson J at [1]
Davies J at [2]
Bellew J at [66]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentence imposed in the District Court on 9 October 2020.
4. In lieu, sentence the appellant to imprisonment for 3 years commencing 9 October 2020 and expiring 8 October 2023 with a non-parole period of 1 year 10 months expiring 8 August 2022.

Catchwords:
CRIME – appeals – appeal against sentence – where applicant pleaded guilty to counts of sexual intercourse with young person under his special care – where applicant was teacher of victim – whether sentencing judge erred in not taking into account as mitigating factors that applicant did not have previous convictions and was a person of good character – whether sentence imposed was manifestly excessive – where significant amount of evidence attesting to applicant’s character – where some weight should have been given to good character of applicant – appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW) s 73
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases Cited:
Kearsley v Regina [2017] NSWCCA 28; (2017) 265 A Crim R 233
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
SD v R (2013) 39 VR 487; [2013] VSCA 133; 229 A Crim R 580
Stanton v R [2017] NSWCCA 250
Wakim v R [2016] VSCA 301

Texts Cited:
Nil

Category: Principal judgment
Parties: Benjamin Fenner (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Howell & C Akthar (Applicant)
E Jones (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/224795
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Fenner [2020] NSWDC 732

Date of Decision:

09 October 2020

Before:

Weber SC DCJ

File Number(s):

2019/224795

Judgment

JOHNSON J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to seven counts of sexual intercourse with a young person under his special care and who was of or above the age of 17 years and under the age of 18 years, contrary to s 73(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is four years’ imprisonment.
The applicant also asked the Court to take into account eight similar offences on Form 1 documents attached to five of the seven primary counts.
On 9 October 2020 he was sentenced by Judge Weber SC in the District Court to an aggregate sentence of three years and nine months’ imprisonment commencing 9 October 2020 and expiring on 8 July 2024 with a non-parole period of two years and three months expiring 8 January 2023.
It is convenient to identify the sequences of the primary offences and those offences…

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 Fenner v The The Queen

Details

AGLC: Fenner v The The Queen [2022] NSWCCA 48
Case: [2022] NSWCCA 48
Decision Date: 11 March 2022

CaseChat Overview and Summary

The case of Fenner v The Queen involved an appeal against the sentence handed down to the applicant who had pleaded guilty to charges of sexual intercourse with a young person under his special care. The applicant, a teacher, had engaged in these acts with a student, leading to a criminal prosecution. The High Court of Australia was tasked with assessing whether the sentencing judge had erred by not considering the applicant’s lack of previous convictions and his otherwise good character as mitigating factors. Additionally, the court was required to determine if the sentence imposed was manifestly excessive, especially in light of the substantial evidence presented attesting to the applicant's good character.

The primary legal issues revolved around whether the sentencing judge appropriately weighed the mitigating factors of the applicant's good character and absence of prior convictions. The court examined the extent to which these factors should have been considered and if their omission led to an unjust outcome. The court also scrutinised whether the sentence imposed was manifestly excessive in light of the mitigating evidence presented. The High Court had to balance the seriousness of the crime with the mitigating circumstances to decide if the sentence was proportionate and fair.

In its reasoning, the court found that the sentencing judge had failed to adequately consider the mitigating factors of the applicant’s good character and lack of prior convictions. The court held that these factors warranted some weight in the sentencing process. The evidence provided regarding the applicant’s good character was significant, and the court concluded that this should have influenced the sentencing decision. Consequently, the sentence was deemed to be manifestly excessive, given the mitigating factors that were not properly accounted for. As a result, the appeal was allowed, and the case was remitted for re-sentencing.

The final orders of the court were that the appeal against the sentence be allowed and the matter be remitted to the sentencing court for re-sentencing, with proper consideration given to the mitigating factors of the applicant’s good character and absence of prior convictions.

Orders