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

1. 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.

2. When Adam Fahey was in the Local Court he accepted his guilt for four (4) offences. Three of them were particularly serious:

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

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

3. 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.

3. 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 punishment is the only just and appropriate one available to me

4. The issue joined between the parties today has been how the balance of that custodial sentence should be served given that Mr Fahey has been in custody since his arrest on 4 December 2020.

5. Mr Booker who appears for the offender, instructed by Ms Fennell, Legal Aid NSW, submits that when I take into account all relevant factors, including my assessment of the objective seriousness of the offending, the need to accumulate and the powerful subjective case for leniency made for the offender, that a balance of the term less than three years could be imposed. If so, he submitted, that that balance could be served in the community subject to an Intensive Correction Order (ICO) with very strict conditions. They could include a substantial period of community service. He said that serving a sentence in that manner would better protect the community and ensure community safety than simply locking Mr Fahey away for an additional period.

6. Ms McCrossin, solicitor for the Director of Public Prosecutions, submits that while leniency can be extended to Mr Fahey by a finding of special circumstances reducing the period that must be spent in custody. In her submissions the offences individually, but more importantly cumulatively, are so serious that the ICO option is not available. First because of the length of the sentence that must be imposed and secondly, because community safety would best be served by a further term of full time custody.

7. Those issues were joined in comprehensive written submissions and oral submissions this morning to which, while I will not refer specifically, to which I intend to address in the balance of these remarks.

Agreed Facts

8. Any sentencing exercise should begin with a clear appreciation of what was done by the offender. There are agreed facts before the Court. They are succinct. I will summarise them as I read them on to the record.

9. The facts indicate that the offender believed that he was owed $100 by the victim. A number of calls via Facebook Messenger testify to that belief as in them he abuses the victim for not ‘paying up.’

10. Arrangements were made for Mr Fahey and the victim to meet up. On 4 December 2020, shortly before 1am, the victim was picked up in Albion Park by a motor vehicle. The offender and two other people were in it. When the victim hopped into the car he did so voluntarily. He was not being detained. He was intoxicated. He had a small knife and a set of knuckledusters in his pocket.

11. The group drove to Mt Warrigal where the offender asked the victim for his money back. The victim got out of the motor vehicle and asked the offender to get out so that they could speak. The victim walked to the back of the motor vehicle. He then took some items from his pants and placed them on the ground. They included the knife.

12. The offender got out of the vehicle and went to the back of it. The other people in the car also got out.

13. Mr Fahey was standing in front of the victim. The two men argued. At this stage the offender punched his victim to the face; leaving the victim with blood on him. He then saw the victim’s knife on the ground and he became angry. He said “What do you have that for, you pulling a knife on me?” The offender got out a knife which he had on his person and lunged at the victim a couple of times. The victim said “Don’t do this man I put mine down.” Another occupant of the car said “No Adam put that down, let’s go.” The offender did not put his knife down nor did he go. He held the knife against his victim’s neck.

14. The victim struggled and the offender cut the victim’s neck with the knife. He sustained a right lateral neck laceration 15 centimetres in length and 3 centimetres in depth. It required 11 sutures. The victim also suffered a couple of other wounds, which were treated and some scratches. A photograph is attached to the facts. The victim yelled for help and then fled. He received assistance and was conveyed to hospital by an ambulance.

15. At approximately 11.30am that morning police came to the offender’s home in Barrack Heights. A search was conducted of his bedroom. During the search investigators located a 12 gauge homemade “slam fire” shot gun under his bed. It had all the necessary parts to function. It was covered in black tape: This is the possess an unauthorised firearm offence: s 7A(1) Firearms Act.

16. They also found what the facts describe as a “shortened 0.2 calibre long German manufacture main single shot rifle” in a sock standing up in the corner of the offender’s bedroom. Although so described the facts and the photograph indicate that the barrel and stock portions had been removed and that the rifle was not in working condition. It was also missing the bolt assembly.

17. There was also a small safe and in it were found the three 12 gauge shot gun shells. They fitted the homemade shotgun located. The offender has never been a holder of a Firearms Licence or a permit for possession of firearms and ammunition.

Submissions

18. Mr Booker submits that so far as the reckless wounding offence is concerned the production of the knife was in response to the victim himself having a knife and there was no intention to wound. The wounding was well within the definition of reckless and not the result of deliberate behaviour and that the injury and degree of violence were not substantial. Further, he says, there was provocation by the victim.

19. Ms McCrossin submits that that version of events does not and could not accord with any objective assessment of the admitted facts. She submits that; there was a significant degree of violence, the injuries were in fact serious and that the offender inflicted the wound because he had lost control of his behaviour in the context of a dispute over a small debt. Further, it was him who started the physical violence. She notes that the wounding was caused by a knife, which is an aggravating factor. Although she concedes woundings generally are the result of a weapon. She also notes that to have one’s throat cut and cut to the degree shown in the photographs and described in the agreed facts would have had a terrifying effect on its victim. She also concedes that there is no evidence of planning and that the offence was impulsive.

Assessment of objective seriousness

20. When I come to assess the agreed facts it is clear to me that while these two men agreed to talk it is also clear that the victim may have anticipated that things might get out of hand because he came armed with a small knife and knuckledusters. But he placed those items on the ground. They were not with him when he was accused by the offender of pulling a knife on him. To the contrary it was the offender who had pulled the knife and lunged at his victim a couple of times. And, both the victim and the offender’s friend tried to get him to stop. He did not stop. He held his knife against his victim’s neck.

21. All of those were deliberate actions. And, while the wounding itself may have resulted from his recklessness; it was reckless in the extreme to hold a knife against a struggling man’s neck. The injuries were, luckily, not substantial but they were far from trivial. They could have been much more serious but for my sentencing purposes they were not. They were however, as I have said, far from trivial.

22. So far as the possession of the firearms is concerned; it is accepted that the while the shortened firearm offence carries the greater maximum penalty, the shotgun’s possession had more potential for harm. Firearms possession is a privilege. There was no rational reason for possession of these items other than the commission of crimes. The shortened firearm had no bolt. It was in parts and in pieces. While technically a firearm it would only able to be used if someone was in a position to put it together. It did not present any immediate danger to anyone. However, the homemade shotgun was clearly constructed in defiance of the Firearms Act and that fact would have been known to the offender. He possessed it in defiance of the Firearms Act and his possession has to be punished. That shotgun was capable of being used and as I have indicated ammunition was to hand.

23. The possession of the ammunition is itself a serious breach of the Firearms Act. Although the ammunition was kept safety which is to the offender’s credit the firearm was not.

Criminal record

24. The offender has a criminal record, he is not to be punished for that, but he is not entitled to the leniency often given first offenders. As Mr Booker points out there is only one matter for violence on his record; from 2016 for which he received a Community Corrections Order (CCO). He could not have possessed the firearms, the subject of these proceedings, in ignorance as he was on bail awaiting sentence for possession of a prohibited weapon, an airsoft pistol. Some in the community thinks these are a toy but they are at law still a firearm. This one had been altered so it could easily be mistaken for a real pistol. His possession of the firearms now for sentence cannot and will not be excused. I can imagine the lecture he got from the magistrate.

25. He was also on bail for other matters, for which he was subsequently sentenced. Bail carries with it a promise to be of good behaviour, a matter I must take into account. He was on conditional liberty both for this bail and the CCO imposed by the magistrate.

Subjective case

26. There are before the Court some case notes from Justice Health that indicate that the drug problem that he obviously had in 2020 is still continuing. I am not punishing him for that, anyone who has had a long history of drug use will find it difficult even in gaol, to give up all together. He does not have access to a buprenorphine program until he becomes a sentenced prisoner.

27. He has spent almost a year on remand subject to the COVID restrictions that are imposed on all prisoners and which are onerous. A matter I also take into account. Although I have been told access to programs have been restricted, he has done his best to work and do what programs are available.

28. His mental health problems; including low mood, motivation and anxiety are noted in the Justice Health reports. They are understandable given his predicament; and understandable given the COVID restrictions. His family have concerns for his welfare.

29. I am assisted by a comprehensive psychosocial report prepared by Ms Assaf. Apart from her recommendations as to disposition no objection is taken to the content of that report. Her opinions accord with other known facts. The offender’s history appears to be accurate and whilst tragic is uncontroversial. I note the need for caution that must be exercised where reliance is placed on exculpatory material where there is no evidence given by an offender. Here there is enough evidence before the Court and these matters are not in dispute. I can rely upon the history.

30. Ms Assaf’s report is comprehensive, extensive but with great respect to her, a bit rambling. I read it yesterday afternoon but I simply have not had the time given the other matters in my list to prepare a summary. But I have taken it into account and will do my best to refer to pertinent material.

31. Born in 1993 Mr Fahey is the eldest of four children. The evidence before me indicates that when he was a child and a teenager there was considerable domestic violence in the family home. His family had problems with alcohol and gambling and the police were regularly called. That does not mean that there was not love, care and attention in the family home. His mother did everything she could and still supports him unconditionally. It does not mean that his father did not care for him but the family life was blighted by the father’s own problems.

32. Mr Fahey did not take well to school. He socialised with delinquent friends and although he was involved in school and community sport he left school early. He took up the use of alcohol and then drugs when he was too young to make any rational choices. His father was able to teach him skills which have enabled him to learn two things. One is how to work metal and work hard, the second is how to drink and fight. As a young man he hung around with a criminal element in your community. He was on his own description “running amok and living on the streets and felt life did not matter.”

33. He also discloses the possibility of sexual abuse. But that matter needs to be explored further. He has never sought treatment or attention for it. Childhood trauma in all its forms is a matter that I have to take into account.

34. He has, for long periods in his life, demonstrated a capacity to work, form relationships and look after his children. He had a responsible job but he also has in parallel with those matters also used and abused illicit drugs and alcohol.

35. He told Ms Assaf “I live a stupid lifestyle, the work was never enough I always needed more.” He lost his job, he lost his business, he lost his family. He started using drugs badly and he lost the moral compass that family life and work life brought to him. He has been diagnosed with depression, there are incidences of self-harm recorded. He says he hates his current life and circumstances and wants to restore himself to the lives of his children. His early chaotic lifestyle that he had led has left a mark. It is also clear that 2019-2020 was a low point in his life, when he did not care about himself and he obviously did not care about others and was involved in serious crime.

36. Ms Assaf sets out comprehensively how drugs such as methylamphetamine can affect a person; particularly a person with the limited skills of this offender. She also notes the connection between childhood trauma and substance abuse and self‑harm. It is clear that if Mr Fahey did not care about himself, did not care about his children, did not care about his partners. If he was not going to care about those he loved involved or himself he was not going to care about his victims or potential victims of offences that might be committed by firearms such as those that he possessed.

37. Mr Booker says that to leave him in gaol creates a risk that he will continue to associate with the very people that he associated with prior to going into the gaol which is true. Gaol is an intrinsically violent environment and full of criminals. Associations with people in gaol can continue when a person is released. Gaol itself rarely has a significant rehabilitative benefit in that sense.

38. Mr Booker says Mr Fahey is at the crossroads and that further gaol may set him back; well it might. An ICO, he says, could meet all the purposes of punishment and in fact be a harsher penalty than simply leaving Mr Fahey in custody. That is because he would have to work very hard to do his community service and meet all the obligations that would be placed upon him. This would be much harder than sitting in a cell, given the COVID restrictions would limit the programs with which he could engage.

39. Ms McCrossin, for the Director, submits however that there is insufficient evidence before me given the nature of both the firearms and wounding offences that release effectively today could meet all the purposes of sentencing including the community safety requirement for an Intensive Correction Order. She submits that further time in custody is required.

Synthesis

40. Synthesising all those matters, and by having regard to the guidance offered by the maximum penalty, I have to formulate individual sentences for each of the three matters. I have to allow for some independent punishment for each matter noting that firearms matters in a particular are quite distinct from the wounding offence. I have to take into account all the purposes of sentencing and the objective seriousness of what was done and I have to give full and proper weight to the offender’s subjective case.

41. Here the subjective case in his background must be taken into account. There is material before the Court of deprivation and trauma. In such matters generally, and here do, mean that Mr Fahey’s moral culpability for his offending is not at the same level of a person who did not have those disadvantages.

42. Reduction of sentences because of factors that reduce moral culpability stem from a recognition that social disadvantage, childhood deprivation in particular where there is exposure to violence and drug and alcohol abuse and trauma including as a victim of crime, frequently precede drug use the commission of other crimes. Such matters must be given full weight. They do not diminish over time.

43. Reduced moral culpability means that in turn the retributive effect and denunciatory aspects of a sentence that would be appropriate for a person of ordinary capacity will often be inappropriate. In most cases they do not even require a causal connection between the crime and the factors that reduce moral culpability.

40. A person’s background may explain their recourse to violence when frustrated such that the offender’s moral culpability for their inability to control an impulse may be substantially reduced: Bugmy v The Queen (2013) 249 CLR 571: [2013] HCA 37 at [40].

41. Ms McCrossin in her submissions recognises that but she notes the authorities also point out that where a person resorts to violence, community safety may require that they be removed from the community for a period and that the sentence carry with it some aspect of, what is called, personal deterrence. That is; that the offender has to somehow learn that recourse to violence will be punished severely. It is hoped that he will thus have an incentive to take advantage of whatever support is offered to him to get him change his ways, so that when frustrated he does not respond violently as he did to the victim of the reckless wounding.

42. There is a need for such intervention here but at present no therapeutic programs are available to him in custody.

43. When I come to formulate the aggregate sentence I formed the view that a sentence of four years is appropriate. Even were I to restructure the sentence that would not allow for it to be served by intensive corrections in the community. But in any event I accept Ms McCrossin’s submission that to impose an intensive correction order at this stage would be inappropriate. Both because of the seriousness of the wounding offence and the firearms offences and because, while it may be no fault of the offender’s, there is no actual program in place for community treatment and rehabilitation and that because of COVID tragically no such programs have been entered in to

44. There will however be a substantial finding of special circumstances that will also take into account the hardship caused by serving a sentence during the pandemic. I take into account the need for him to be supervised and supported during his parole period for as long as practical. I hope there will be time to enable programs to be put in place both in custody as a sentenced prisoner and before he is released to community.

45. The indicated sentences take into account the 25% reduction that must be given for the utilitarian benefit of the guilty pleas.

Orders

Indicated sentences

50. Reckless wounding: As it carries a standard non‑parole period I indicate a sentence of 3 years with a non‑parole period of 1 year 6 months.

51. Possess shortened firearm (not pistol) w/o authority: I indicate a sentence of 1 year 1 month.

52. Possess unauthorised firearm: I indicate a sentence of 2 years 3 months.

Aggregate sentence

53. The total aggregate sentence is 4 years.

54. There will be a non-parole period of 2 years commencing 04/12/2020 and expiring 03/12/2022. The balance of the sentence of 2 years is to commence upon the expiration of the non-parole period on 04/12/2022 and expiring on 03/12/2024

55. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 03/12/2022 subject to the supervision and guidance of the Community Services NSW. Release to parole will be determined by the State Parole Authority but it is my expectation that if the offender keeps to what he has done to date he will get parole on that date

56. For the possess ammunition w/o holding licence/permit/authority: You are convicted. Dispose of the proceedings without imposing any other penalty pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999.

57. I make a firearms destruction order.

**********

Decision last updated: 19 January 2022