Fitzgerald v The Queen - [2018] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Fitzgerald v R [2018] NSWCCA 170
Hearing dates: 25 July 2018
Date of orders: 06 August 2018
Decision date: 06 August 2018
Before: Hoeben CJ at CL at [1]
Price J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.

(2) Appeal dismissed.

(3) Time not to count except for 49 days.
(4) The sentence will now expire on 16 May 2020 and the non-parole period will expire on 16 June 2019.
Catchwords:
SENTENCING – appeal against sentence – aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to consider alternatives to full-time custody – whether sentencing judge decided how sentence was to be served before fixing the term of the sentence – failure to approach matter in two stages not indicative of error where alternatives to full-time custody were rejected after proper consideration

SENTENCING – appeal against sentence – whether head sentence for offence to which Form 1 was attached was disproportionate to fixed term sentences for other offences charged – no error where sentences were wholly concurrent and where a fixed term should be regarded as the non-parole period – whether the sentencing judge failed to award a discount for pleading guilty in respect of two of the offences – no error where sentencing judge considered the offences together when discounting the plea
SENTENCING – appeal against sentence – whether sentencing judge erred in assessing objective criminality by finding that the offences involved a ‘significant degree of planning’ – no error in circumstances where specific goods were stolen to fulfil work orders received by the applicant’s business – sentence imposed not manifestly excessive – seriousness of offending balanced against strong subjective case – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s112
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 45
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Douar v R [2005] NSWCCA 455
Laycock v R [2017] NSWCCA 47
Mcintosh v R [2015] NSWCCA 184
Moore v R [2016] NSWCCA 185
Parente v R [2017] NSWCCA 284
Paul Campbell v R [2018] NSWCCA 87
R v Dunn [2004] NSWCCA 346
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Karina Lorraine Fitzgerald (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Lange, C Parkin & E Olivier (Applicant)
F Veltro (Respondent)
Solicitors:
B Wrench (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/96320
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

19 April 2017

Before:

Delaney ADCJ

File Number(s):

2016/96320

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
PRICE J: I agree with Davies J.
DAVIES J: The applicant was charged with three counts of aggravated break, enter and steal committed on 7, 9…

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 Fitzgerald v The Queen

Details

AGLC: Fitzgerald v The Queen [2018] NSWCCA 170
Case: [2018] NSWCCA 170
Decision Date: 06 August 2018

CaseChat Overview and Summary

In the case of Fitzgerald v The Queen, the appellant appealed against his sentence for aggravated break and enter and commit serious indictable offence. The court was required to decide whether the sentencing judge failed to consider alternatives to full-time custody, whether the sentencing judge decided how the sentence was to be served before fixing the term of the sentence, whether the head sentence for the offence to which Form 1 was attached was disproportionate to the fixed term sentences for other offences charged, and whether the sentencing judge erred in assessing objective criminality by finding that the offences involved a ‘significant degree of planning’. The High Court of Australia dismissed the appeal.

The court first considered whether the sentencing judge failed to consider alternatives to full-time custody. It found that the sentencing judge did consider alternatives but ultimately rejected them after proper consideration. The court held that the failure to approach the matter in two stages was not indicative of error. Next, the court examined whether the head sentence for the offence to which Form 1 was attached was disproportionate to the fixed term sentences for other offences charged. The court found no error, as the sentences were wholly concurrent and a fixed term should be regarded as the non-parole period. The court also considered whether the sentencing judge failed to award a discount for pleading guilty in respect of two of the offences. It found no error, as the sentencing judge considered the offences together when discounting the plea.

Finally, the court considered whether the sentencing judge erred in assessing objective criminality by finding that the offences involved a ‘significant degree of planning’. The court found no error in circumstances where specific goods were stolen to fulfil work orders received by the appellant’s business. The court held that the sentence imposed was not manifestly excessive, and the seriousness of the offending was balanced against the strong subjective case. The appeal was dismissed.

The court did not make any orders.

Orders