R v Fahey - [2024] NSWDC 680

District Court

New South Wales

Medium Neutral Citation: R v Fahey [2024] NSWDC 680
Hearing dates: 26 April 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 2 years with non-parole period of 1 year

Catchwords:
CRIME — Drug offences — Supply prohibited drug
CRIME — Driving offences — Failure to stop — Police pursuit — Drive while licenced cancelled
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Borderline Personality Disorder — Childhood trauma

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
R v Fahey [2021] NSWDC 717

Category: Sentence
Parties: Adam Mitchell Fahey (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
S Fraser (for the offender)
Solicitors:
Morrisons Law (for the offender)
J Loosley for the Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2023/46788

JUDGMENT – ex tempore revised

Introduction

In October 2021 I sentenced Adam Fahey to 4 years imprisonment: R v Fahey [2021] NSWDC 717. I took into account, his reduced moral culpability, his background and the impact of COVID-19. I made a finding of special circumstances, allowing for his release to parole after having served half of that sentence.
He was released to parole on 3 December 2022. He was living with his mother and working for his father.
His initial responses to supervision were recorded as satisfactory, but a number of personal matters and an association with a drug user led to him taking up the use and abuse of illicit drugs again. That drug use, as it had so often in his past, rapidly escalated. He did not seek help from his parole officer, he did not pursue the rehabilitation programs that had been put it place, he did not seek help from his parents. He thought that he was strong enough to cope on the outside without continuing with the buprenorphine program that he started in custody. He thought he could do better than last time. He was wrong.
There are a number of aspects to Fahey’s background that cause him to resort to, what psychologists call ‘maladaptive responses’ to the problems in his life. There are reasons why his first recourse is illicit drugs and why he doesn’t have the capacity to follow through on his promises. Those matters do not diminish over time: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. I took them into account last time. I will take them into account again.
I do not punish him for his failures.…

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 Fahey

Details

AGLC: R v Fahey [2024] NSWDC 680
Case: [2024] NSWDC 680
Decision Date: 26 April 2024

CaseChat Overview and Summary

The case before the court was between the Crown and a defendant, Fahey, who was charged with drug offences and driving offences. The charges included the supply of a prohibited drug, failing to stop when directed by police, and driving while his licence was cancelled. The case was heard in the Supreme Court of the relevant jurisdiction. The central issue was the appropriate sentence for the defendant, considering both aggravating and mitigating factors.

The court needed to address several legal issues. These included determining the objective seriousness of the offences, assessing the subjective considerations such as the defendant's drug addiction, mental illness, and history of childhood trauma, and evaluating the relevance of previous convictions and the breach of conditional liberty. The court also had to consider the mitigating factor of the defendant's plea of guilty and the need for deterrence.

In reaching its decision, the court considered the objective seriousness of the offences, which involved the supply of a prohibited drug and the dangerous driving that occurred during a police pursuit. The court noted the defendant's extensive criminal record and the breach of conditional liberty, which were significant aggravating factors. However, the court also recognised the mitigating factors, including the defendant's plea of guilty and his personal circumstances, such as drug addiction, mental illness, and a history of childhood trauma. After weighing all these factors, the court determined that an appropriate sentence was one of imprisonment for two years, with a non-parole period of one year.

Orders

Orders of the court

Sentence of imprisonment of 2 years with non-parole period of 1 year

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 Fahey [2024] NSWDC 680
Hearing dates:	26 April 2024
Date of orders:	26 April 2024
Decision date:	26 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 2 years with non-parole period of 1 year
Catchwords:	CRIME — Drug offences — Supply prohibited drug CRIME — Driving offences — Failure to stop — Police pursuit — Drive while licenced cancelled SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Borderline Personality Disorder — Childhood trauma
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fahey [2021] NSWDC 717
Category:	Sentence
Parties:	Adam Mitchell Fahey (the offender) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: S Fraser (for the offender) Solicitors: Morrisons Law (for the offender) J Loosley for the Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2023/46788