Fernandez v The Queen - [2014] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0017

ROBERT FERNANDEZ	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2014
DATE OF JUDGMENT:	7 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 169
JUDGMENT APPEALED FROM:	DPP v Fernandez (Unreported, County Court of Victoria, Judge Maidment, 16 December 2013)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of trafficking methylamphetamine, common assault and stalking – Victim of stalking former girlfriend of appellant – Whether sentence of 42 months’ imprisonment for trafficking manifestly excessive – Whether sentence of 20 months’ imprisonment for stalking manifestly excessive – Appeal allowed – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Victor C Andreou
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1 I agree, for the reasons given by Priest JA, that this appeal should be allowed. I also agree that the appellant should be re-sentenced as his Honour proposes.

PRIEST JA:

Introduction

2 On 16 December 2013, the appellant pleaded guilty in the County Court to trafficking a drug of dependence, methylamphetamine (charge 1); possessing a drug of dependence, testosterone (charge 2); common assault (charge 3); and stalking (charge 4). He was sentenced to be imprisoned for three (3) years and six (6) months on the first charge; one (1) month on each of charges 2 and 3; and 20 months on charge 4. The judge ordered 10 months of the sentence on charge 4 be served cumulatively with the sentence on charge 1, thus producing a total effective sentence of four (4) years and four (4) months’ imprisonment, upon which the judge fixed a non-parole period of two (2) years and 10 months’ imprisonment.
3 A judge of this Court granted leave to appeal against sentence on 2 April 2014, upon a single ground which complains that, ‘The individual sentences in respect of charges 1 and 4, the total effective sentence and the non-parole period are manifestly excessive’.
4 In my opinion, for the reasons that follow, the appeal should be allowed and the appellant resentenced.
Factual background
5 It is necessary to say something of the offending. In February 2011, when he was aged 36 years, the appellant commenced a romantic relationship with Yasmine Ng, aged 30 years, whom he met over the Internet. The relationship continued for more than a year. During the relationship, it seems that the appellant became increasingly possessive and volatile. In 2012 he developed a drug habit, using up to three quarters of a gram of methylamphetamine (‘ice’) (along with steroids) daily. He also sold methylamphetamine, being described by his counsel on the plea as ‘a fairly typical user/dealer, selling to friends who were users themselves’.
6 On 25 April 2012, the appellant went to Ms Ng’s apartment at about 8.00am, and let himself in with a key that she had given him. Ms Ng was not at home.…

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 Fernandez v The Queen

Details

AGLC: Fernandez v The Queen [2014] VSCA 169
Case: [2014] VSCA 169
Decision Date: 7 August 2014

CaseChat Overview and Summary

The case of Fernandez v The Queen involved the appellant who was convicted of trafficking methylamphetamine, common assault, and stalking. The victim of the stalking was the appellant's former girlfriend, Yasmine Ng. The appellant was sentenced to 42 months’ imprisonment for trafficking and 20 months’ imprisonment for stalking. The appellant appealed against the sentences, arguing that they were manifestly excessive. The appeal was heard by the court.

The legal issues that the court was required to decide were whether the sentence of 42 months’ imprisonment for trafficking and the sentence of 20 months’ imprisonment for stalking were manifestly excessive. The court had to consider the nature and circumstances of the offences, the appellant’s criminal history, and any other relevant factors in determining whether the sentences were appropriate. The court also had to consider whether the sentences were cumulative or concurrent.

The court found that the sentence of 42 months’ imprisonment for trafficking was manifestly excessive, taking into account the appellant’s role as a user/dealer and the fact that the offence was committed while on bail. The court also found that the sentence of 20 months’ imprisonment for stalking was manifestly excessive, given the appellant's history of possessive and volatile behaviour towards the victim. The court substituted a sentence of nine months’ imprisonment for the stalking charge, to be served cumulatively with the sentence for trafficking, resulting in a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months.

In conclusion, the appeal was allowed, and the appellant was resentenced to a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months. The court confirmed all other ancillary orders made by the County Court.

Orders

Orders of the court

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Background

Background to the litigation

4 In my opinion, for the reasons that follow, the appeal should be allowed and the appellant resentenced.Factual background 5 It is necessary to say something of the offending. In February 2011, when he was aged 36 years, the appellant commenced a romantic relationship with Yasmine Ng, aged 30 years, whom he met over the Internet. The relationship continued for more than a year. During the relationship, it seems that the appellant became increasingly possessive and volatile. In 2012 he developed a drug habit, using up to three quarters of a gram of methylamphetamine (‘ice’) (along with steroids) daily. He also sold methylamphetamine, being described by his counsel on the plea as ‘a fairly typical user/dealer, selling to friends who were users themselves’. 6 On 25 April 2012, the appellant went to Ms Ng’s apartment at about 8.00am, and let himself in with a key that she had given him. Ms Ng was not at home. When she later arrived, she at first told the appellant that she had been with a girlfriend, but later disclosed that she had been at her ex-boyfriend’s residence. This disclosure provoked an outburst, during which the appellant disturbed furniture, threw personal items around and threw a small mirror at Ms Ng (charge 3, common assault). The appellant also took jewellery that he had previously given to Ms Ng, refused to leave the apartment and would not return the key that he had. Concluding that she was no longer safe in the apartment, Ms Ng decided to relocate. Furniture removalists helped Ms Ng pack her things and place them in storage. That evening she stayed at a hotel. 7 Five days after this incident, Ms Ng, in fear of the appellant, travelled to Hong Kong, without informing him of her plans. Several weeks later, the appellant — who had questioned Ms Ng’s relatives and work colleagues concerning her whereabouts — flew to Hong Kong, having learned her location. He persuaded her to return to Australia. In light of her decision to return, Ms Ng’s family sought to involve the Hong Kong authorities and the Australian Federal Police, but she declined their offer of assistance. 8 It is convenient at this point to note some aspects of the appellant’s and Ms Ng’s relationship, which were outlined by the appellant’s counsel on the plea and which were uncontroverted by the prosecution. It seems that from early in their relationship, Ms Ng would check the appellant’s email, telephone messages, call logs and other aspects of his computer use. On one occasion she stole his mobile telephone so as to check on the messages and other data that it contained. The appellant thought that he might have left the phone at a restaurant at which they had dined, but Ms Ng falsely told him that she had contacted the restaurant to ask if it had been found, and had been told by staff that they did not have it. Ms Ng also set up a number of false ‘Facebook’ identities and used those identities to send messages to the appellant in order to check up on him. The appellant would receive messages from the fake identities, disclosing detailed knowledge of his relationship with Ng and questioning him as to whether he was interested in other women. Ms Ng and the appellant referred to the messages as coming from ‘the stalker’. In July 2011 the appellant reported the conduct of ‘the stalker’ to an internet investigation company and later to the police. Ms Ng also said that that she too had sought police help, and she sent bogus messages to herself so as to be able to tell the appellant that she was trying to locate the stalker (from whom she was also receiving messages). She also told the appellant that men were coming to her work, implying that these men may have been the stalker. It was around the time that the appellant went to Hong Kong, and Ms Ng returned to Australia with him, however, that she admitted to being ‘the stalker’, this admission leading to a prolonged argument between the two concerning her activities.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

25 Recognising the limitations of resort to ‘like’ cases, Wilson and Smith fortify my strong impression that the sentence in this case is manifestly excessive. Thus the appeal ought to be allowed with respect to the sentence on charge 4. Having regard to all of the circumstances, including the fact that the offence was committed whilst on bail, and in breach of an intervention order, I would substitute a sentence of nine (9) months’ imprisonment. Conclusion 26 I would confirm the sentences on charges 1, 2 and 3, and impose a sentence of nine (9) months’ imprisonment on charge 4. I would order that six (6) months of the sentence on charge 4 be served cumulatively with the sentence on charge 1, thus producing a total effective sentence of four (4) years’ imprisonment, upon which I would fix a non-parole period of two (2) years and six (6) months. 27 I would confirm all other ancillary orders made by the County Court.---

Ratio Decidendi

Legal Principle Established

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