R v Faehndrich - [2008] NSWSC 877

CITATION: R v Faehndrich [2008] NSWSC 877

HEARING DATE(S): 31 March 2008 - 11 April 2008
6 June 2008
25 July 2008

JUDGMENT DATE :
29 August 2008

JUDGMENT OF: Price J at 1

DECISION: Sentenced to a term of imprisonment with a non-parole period of 15 years to commence on 21 August 2006 and is to expire on 20 August 2021. Balance of term of 5 years to commence on 21 August 2021 and expire on 20 August 2026. Eligible to be released to parole on 20 August 2021. It is a condition of release to parole that psychiatric treatment and appropriate medication continue. The following steps be taken by Justice Health. 1. The prisoner should be immediately assessed by the Justice Mental Health Team. 2. The prisoner is to remain under the regular care of a psychiatrist whilst in custody and receive appropriate medication. Direct that a copy of Dr Giuffrida's report dated 7 July 2008 be forwarded by the Crown to the Justice Health Team at the prison where the prisoner is incarcerated for its immmediate attention together with a copy of these recommendations. The attention of the Justice Mental Health Team is to be directed to the "Treatment Recommendations" on page 10 of the report.

CATCHWORDS: Criminal Practice and Procedure - sentencing - murder - jury verdict - mental illness - provocation - general deterrence - specific deterrence - departure from standard non-parole period

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 19A
s 19A(2), s 19A(3), s 21(1), s 21A(3)(b), s 21A(3)(j),
s 21A(3)(i)-(ii), s 21A(3)(c), s 61(1)
Crimes Act 1900 s 19A(2)

CATEGORY: Sentence

CASES CITED: R v Engert (1996) 84 A Crim R 67
R v Fidow [2004] NSWCCA 172
R v Hemsley [2004] NSWCCA 228
R v Isaacs (1997) 41 NSWLR 374
R v Israil [2002] NSWCCA 255
R v Merritt (2004) 146 A Crim R 309
R v Previtera (1997) 97 A Crim R 76
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Regina
John Harry Faehndrich

FILE NUMBER(S): SC 2007/2574

COUNSEL: Mr Barnett SC (Crown)
Mr Bodor QC (Prisoner)

SOLICITORS: Maureen Bonomini (Director of Public Prosecutions)
Victoria Havryliv Ford Criminal Lawyers (Prisoner)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Price J

29 August 2008
2007/2574 R v Faehndrich

REMARKS ON SENTENCE

1 HIS HONOUR: On 11 April 2008, the prisoner John Harry Faehndrich was convicted by a jury of the charge that he on or about 13 August 2006 at Forster in the State of New South Wales did murder Dianne Condon. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment.

2 It is my duty to determine the facts relevant to sentencing the prisoner. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the prisoner must be arrived at beyond reasonable doubt: see R v…

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 Faehndrich

Details

AGLC: R v Faehndrich [2008] NSWSC 877
Case: [2008] NSWSC 877
Decision Date: 29 August 2008

CaseChat Overview and Summary

In the case of R v Faehndrich, the appellant was convicted by a jury for the murder of his wife, and the matter was before the court for the purposes of sentencing. The appellant was found to have killed his wife in the course of an argument, and it was contended that he was suffering from a mental illness at the time of the offence, which may have been a mitigating factor. The appellant had pleaded guilty to a charge of manslaughter on the basis of provocation, but this plea was withdrawn, and he was convicted of murder by the jury. The court was required to determine the appropriate sentence, including whether to depart from the standard non-parole period.

The legal issues before the court were the appropriate weight to give to the mitigating factors of mental illness and provocation, and whether the standard non-parole period should be departed from in light of these factors. The court noted that while the appellant's mental illness may have played a role in the offence, it was not the sole cause, and that the level of violence used was excessive. The court also noted that the appellant had a history of violence towards his wife, which undermined the provocation defence. The court considered that the general and specific deterrent effects of the sentence were important, as was the need to protect the community.

The court held that while the mitigating factors of mental illness and provocation were relevant, they did not warrant a significant departure from the standard non-parole period. The court noted that the appellant's mental illness did not excuse his actions, and that the provocation defence was undermined by his history of violence. The court held that the appropriate sentence was imprisonment for a term of 15 years, with a non-parole period of 11 years and 3 months. This sentence reflected the seriousness of the offence, the need for general and specific deterrence, and the protection of the community.

The court's orders included that the appellant be imprisoned for a term of 15 years, with a non-parole period of 11 years and 3 months. The court also ordered that the appellant be subject to a number of conditions during his period of parole, including that he not possess any firearms or other weapons, and that he undergo regular mental health treatment. The appellant was also ordered to pay a fine of $5,000.

Orders