R v Fahey - [2021] NSWDC 717

District Court

New South Wales

Medium Neutral Citation: R v Fahey [2021] NSWDC 717
Hearing dates: 1 October 2021
Date of orders: 1 October 2021
Decision date: 01 October 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 4 years with a non-parole period of 2 years.

Catchwords:
CRIME - Reckless wounding - Possess shortened firearm (not pistol) without authority - Possess unauthorised firearm - Possess ammunition w/o holding licence/permit/authority
SENTENCING - Relevant factors on sentence – history of childhood deprivation - reduced moral culpability - offences committed while subject to conditional liberty – two distinct types of offending- special circumstances – reduced access to programmes due to COVID - discussion about whether an ICO is appropriate? - early guilty plea

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

Cases Cited:
Bugmyv The Queen (2013) 249 CLR 571: [2013] HCA 37

Category: Sentence
Parties: Adam Fahey (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr A Booker (for the offender)
Solicitors:
Legal Aid NSW (for the offender)
Ms K McCrossin (for Director of Public Prosecutions)

File Number(s): 2020/00344911

sentence – ex tempore revised

Introduction

A person’s background as a child, the environment in which they were raised, if it involves exposure to violence, domestic violence, alcohol and drug abuse and other traumas can have a lasting impact upon them. It can predispose them to the use of violence and illicit drugs. If their early life is blighted in such a way it can become their default position and often, more often that the community might think, punishment in the form of gaol sentences has little deterrent effect on them. At the same time when people, no matter what their background, commit serious offences punishment; a just and appropriate penalty is required. For everyone and the community has to understand the retribution that will fall upon them if they commit serious offences.
When Adam Fahey was in the Local Court he accepted his guilt for four (4) offences. Three of them were particularly serious:

Possess shortened firearm, not a pistol, without authority s 62(1) of the Firearms Act 1996, maximum penalty 14 years imprisonment.

Possess an unauthorised firearm, s 7A(1) Firearms Act, maximum penalty five years imprisonment and

Reckless wounding s 35(4) Crimes Act 1900, maximum penalty seven years imprisonment. That offence carries a standard minimum non‑parole period of three years imprisonment.

He also asks that I sentence him for possession of ammunition s 63(3) Firearms Act. The maximum penalty for that offence is a fine. As that offence is relevant to my assessment of the seriousness of the possess unauthorised, Firearms Act, and as he is not in a position to pay a fine that matter will be disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 it being inexpedient to impose any other penalty. However each of the three indictable matters for sentence require custodial sentences. It is accepted that form of…

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 [2021] NSWDC 717
Case: [2021] NSWDC 717
Decision Date: 01 October 2021

CaseChat Overview and Summary

The case before the court involved an individual, Mr. Fahey, charged with multiple offences, including reckless wounding, possession of a shortened firearm without authority, and possession of ammunition without the necessary licence. The case was heard in a higher court where the primary focus was on the appropriate sentencing for the convicted individual.

The primary legal issues the court needed to address were the determination of the appropriate sentence for Mr. Fahey, taking into account various mitigating and aggravating factors. The court had to consider Mr. Fahey's history of childhood deprivation, which the defence argued reduced his moral culpability. Additionally, the court had to evaluate the special circumstances surrounding the offences, which were committed while Mr. Fahey was subject to conditional liberty. The court also needed to consider the impact of COVID-19 on Mr. Fahey's access to rehabilitation programmes, and whether an Intensive Corrections Order (ICO) was suitable given these circumstances. The court further considered the mitigating factor of Mr. Fahey entering an early guilty plea.

The court delivered its judgment after carefully weighing all the factors. It found that Mr. Fahey's history of childhood deprivation did indeed reduce his moral culpability. However, the court also noted the seriousness of the offences, particularly the reckless wounding and possession of a firearm. The court acknowledged the special circumstances and the challenges posed by COVID-19, but concluded that an ICO was not appropriate in this case. After considering all relevant factors, the court determined an aggregate sentence of four years, with a non-parole period of two years.

The final orders of the court were that Mr. Fahey was to serve an aggregate sentence of four years, with a non-parole period of two years. This decision reflects the court's balanced approach to sentencing, taking into account both the mitigating circumstances and the gravity of the offences committed.

Orders

Orders of the court

Aggregate sentence of 4 years with a non-parole period of 2 years.

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 [2021] NSWDC 717
Hearing dates:	1 October 2021
Date of orders:	1 October 2021
Decision date:	01 October 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 4 years with a non-parole period of 2 years.
Catchwords:	CRIME - Reckless wounding - Possess shortened firearm (not pistol) without authority - Possess unauthorised firearm - Possess ammunition w/o holding licence/permit/authority SENTENCING - Relevant factors on sentence – history of childhood deprivation - reduced moral culpability - offences committed while subject to conditional liberty – two distinct types of offending- special circumstances – reduced access to programmes due to COVID - discussion about whether an ICO is appropriate? - early guilty plea
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Bugmyv The Queen (2013) 249 CLR 571: [2013] HCA 37
Category:	Sentence
Parties:	Adam Fahey (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr A Booker (for the offender) Solicitors: Legal Aid NSW (for the offender) Ms K McCrossin (for Director of Public Prosecutions)
File Number(s):	2020/00344911