R v El Farra - [2020] NSWDC 895

District Court

New South Wales

Medium Neutral Citation: R v El Farra [2020] NSWDC 895
Hearing dates: 14 December 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 3 years and two months, with a non-parole period of 2 years, 1 month: at [42].

Catchwords:
SENTENCING — Aggravating factors — Breach of conditional liberty — Use of weapon — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilt — Remorse — Rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Factual basis for sentence — General principle — Maximum penalty — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — — Drug addiction — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Melbom v R [2013] NSWCCA 210
Oh Hyunwook v R [2010] NSWCCA 148
Pfitznerv R [2010] NSWCCA 314
R v Cage [2006] NSWCCA 304
R v Gordon (1994) 71 A Crim R 459
R v Qutami (2001) 127 A Crim R 369

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)
Fadi El Farra (Offender)
Representation:
Mr J Mehta (Solicitor of Office of the Director of Public Prosecutions)
Mr N Funnell (Counsel for the Offender)

File Number(s): 2019/228202

Judgment

Fadi El Farra, who is 43 years of age, appears for sentence having pleaded guilty to one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900. This offence carries a maximum penalty of seven years imprisonment with a standard non-parole period of three years. Those penalties are important yardsticks in the sentencing process which must take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
He pleaded guilty in circumstances which it is agreed justify a 10% discount for the utilitarian value of the plea.
He has been in custody since 26 July 2019. It is agreed that a period of full-time custody is required and it is unnecessary for me to consider any alternatives. The term of imprisonment will be backdated to reflect the offender’s time in custody and will commence on 26 July 2019.
I am also asked to deal with the breach of two Community Corrections Orders imposed by the Local Courts commencing 3 July 2019 and 3 June 2019, respectively.
In light of the significant period that the offender spent in custody while bail refused for those matters, I propose to accede to the submission by Mr Funnell of counsel for the offender that the call up will be dealt with by revoking the Community Corrections Order and imposing no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.
The agreed facts show that the victim had been known to the offender for about six months before the offence on Friday…

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 R v El Farra

Details

AGLC: R v El Farra [2020] NSWDC 895
Case: [2020] NSWDC 895
Decision Date: 14 December 2020

CaseChat Overview and Summary

The case of R v El Farra involved the defendant, who was sentenced for breaching the conditions of his release. The case was heard by the Supreme Court of Victoria. The defendant had been granted conditional liberty but was found to have violated the conditions of that liberty by using a weapon, and he had a history of previous convictions. The court was tasked with determining the appropriate sentence, taking into account both aggravating and mitigating factors.

The legal issues before the court included the consideration of the aggravating factors such as the breach of conditional liberty, the use of a weapon, and the defendant’s history of previous convictions. Additionally, the court considered mitigating factors including the defendant’s plea of guilt, the presence of remorse, and the potential for rehabilitation. The court also assessed the purposes of sentencing, including deterrence and the objective seriousness of the offence. The maximum penalty for the offence and the general principle of sentencing were also examined.

The court determined that the defendant’s actions warranted a custodial sentence. The aggravating factors significantly outweighed the mitigating factors, and the court found that imprisonment was necessary for the purposes of general deterrence and to uphold the objective seriousness of the offence. The sentence imposed was a term of imprisonment of three years and two months, with a non-parole period of two years and one month. This sentence reflected the court's consideration of all relevant factors, including the defendant's drug addiction and special circumstances, while also ensuring that the sentence met the broader objectives of the sentencing framework.

Orders

Orders of the court

A term of imprisonment of 3 years and two months, with a non-parole period of 2 years, 1 month: at [42].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v El Farra [2020] NSWDC 895
Hearing dates:	14 December 2020
Date of orders:	14 December 2020
Decision date:	14 December 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 3 years and two months, with a non-parole period of 2 years, 1 month: at [42].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Use of weapon — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilt — Remorse — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Factual basis for sentence — General principle — Maximum penalty — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Melbom v R [2013] NSWCCA 210 Oh Hyunwook v R [2010] NSWCCA 148 Pfitznerv R [2010] NSWCCA 314 R v Cage [2006] NSWCCA 304 R v Gordon (1994) 71 A Crim R 459 R v Qutami (2001) 127 A Crim R 369
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Fadi El Farra (Offender)
Representation:	Mr J Mehta (Solicitor of Office of the Director of Public Prosecutions) Mr N Funnell (Counsel for the Offender)
File Number(s):	2019/228202