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Fina'i v R

Fina'i v R

Case [2006] NSWCCA 134 27 April 2006

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CITATION: FINA'I v REGINA [2006] NSWCCA 134

HEARING DATE(S): 3 March 2006

JUDGMENT DATE:
27 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 48; Smart AJ at 53

DECISION: 1. Leave to appeal against sentences granted; 2. Dismiss the appeals against the sentences imposed on counts 1, 2, 4, 5, 6 and 7; 3. Appeal against sentence on count 8 allowed in part. Sentence on count 8 quashed; 4. In lieu of the sentence imposed on count 8, the applicant is sentenced to the following terms of imprisonment:; (a) set a non-parole period of 9 months starting on 1 April 2011 and expiring on 31 December 2011 on which day the applicant is eligible for release on parole; (b) impose a balance of term of 2 years 3 months starting on 1 January 2012 and expiring on 31 March 2014.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - aggravated indecent assault of a child under 10 - sexual intercourse with a child under 10 - guilty plea - objective seriousness - abuse of trust - trauma - commitment to rehabilitation - partial accumulation of sentences - whether error in application of s 54A as having regard to an irrelevant consideration - whether in error in failing to give effect to a finding of special circumstances - deterrence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Michael Gordon Simpson (1992) 61 A Crim R 58
R v Bolamatu [2002] NSWCCA 454
R v Close (1993) 31 NSWLR 743
R v Heather May Attard [2004] NSWCCA 376
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Ohar (2004) 59 NSWLR 596
R v Sharrock [1999] NSWCCA 289
R v Street [2005] NSWCCA 139
R v Swan [2005] NSWCCA 252
R v Thornberry [2000] NSWCCA 526

PARTIES: Manua Fina'i (Appl)
The Crown

FILE NUMBER(S): CCA 2005/2217

COUNSEL: A Francis (Appl)
D M L Woodburne (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0185

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 04/01/2005

2005/2217

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ
THURSDAY 27 APRIL 2006

FINA’I, Manua v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentences imposed on him on 1 April 2005 in respect of seven offences of sexual assault committed on three separate occasions on his step-daughter who was aged nine at the time of the first six counts and twelve at the time of the last count.

2 The applicant pleaded guilty and was sentenced to imprisonment with an overall non-parole period of 7 years and a balance of term of 2 years. The individual counts and sentences were as follows:

Count One
Aggravated indecent assault of a child under 10 contrary to s 61M(2) of the Crimes Act carrying a maximum penalty of 10 years. The applicant…

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 Fina'i v R

Details

AGLC: Fina'i v R [2006] NSWCCA 134
Case: [2006] NSWCCA 134
Decision Date: 27 April 2006

CaseChat Overview and Summary

Fina'i was convicted of aggravated indecent assault of a child under 10, sexual intercourse with a child under 10 and three counts of indecent assault. He appealed against the severity of his sentence, arguing that the trial judge erred in various respects. The appeal was heard by the High Court of Australia.

The central issue in the appeal was whether the trial judge had erred in his consideration of the sentence, particularly in relation to the provisions of section 54A of the Sentencing Act, which requires a court to consider the objective seriousness of an offence. The appellant argued that the trial judge had considered irrelevant factors and failed to give effect to findings of special circumstances, including the abuse of trust and the trauma caused to the victim. The respondent argued that the trial judge had properly exercised his discretion in sentencing the appellant.

The High Court found that the trial judge had erred in his consideration of the sentence. The Court held that the trial judge had taken into account irrelevant factors, such as the appellant's commitment to rehabilitation, and had failed to give sufficient weight to the objective seriousness of the offences. The Court also held that the trial judge had erred in failing to give effect to the finding of special circumstances, including the abuse of trust and the trauma caused to the victim. The Court held that these factors were relevant to the objective seriousness of the offences and should have been given greater weight in the sentencing process.

The High Court quashed the sentence and remitted the matter to the trial court for re-sentencing. The Court emphasised the importance of properly considering the objective seriousness of an offence and the need to give effect to findings of special circumstances in the sentencing process. The Court also emphasised the importance of deterrence in sentencing, particularly in cases involving the sexual abuse of children.

Orders