R v Fahey - [2021] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fahey [2021] QCA 232

PARTIES:

R
v
FAHEY, John Roger
(applicant)

FILE NO/S:

CA No 252 of 2021
DC No 745 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 11 October 2021 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 18 October 2021
Date of Publication of Reasons: 28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2021

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDERS:

Date of Orders: 18 October 2021

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Set aside the sentence and orders for count 1 and instead order that the applicant be convicted and not further punished for count 1.

4.   Vary the sentence and orders for count 2 by substituting “1 Year” for “18 Months” as the period of imprisonment, and in the order suspending the term of imprisonment after serving a period of 3 Months imprisonment, substitute “1 Year” for “2 Years”, so that the sentence and orders provide:

“The offender is sentenced to imprisonment for a period of 1 Year. Order that the term of imprisonment be suspended after serving a period of 3 Months imprisonment; and the offender must not commit another offence punishable by imprisonment within a period of 1 Year if the offender is to avoid being dealt with for the suspended term of imprisonment.

Pursuant to Section 159A of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody for 1 Day between 02/07/2018 – 03/07/2018. The Court declared that 1 Day of pre-sentence custody be imprisonment already served under the sentence.”

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of sexual assault (Count 1) and one count of grooming a child under 16 years with intent to expose the child to an indecent matter (Count 2) – where the applicant was sentenced to concurrent terms of six months’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2 – where each term of imprisonment was ordered to be suspended after three months for an operational period of two years – where the applicant tendered psychological reports – whether the sentencing judge erred in failing to take into account the relevant considerations

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of sexual assault (Count 1) and one count of grooming a child under 16 years with intent to expose the child to an indecent matter (Count 2) – where the applicant was sentenced to concurrent terms of six months’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2 – where each term of imprisonment was ordered to be suspended after three months for an operational period of two years – whether exceptional circumstances are established…

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] QCA 232
Case: [2021] QCA 232
Decision Date: 28 October 2021

CaseChat Overview and Summary

The appeal in R v Fahey involved the applicant who had pleaded guilty to sexual assault (Count 1) and grooming a child under 16 with intent to expose them to an indecent matter (Count 2). The applicant was sentenced to concurrent terms of six months' imprisonment for Count 1 and 18 months for Count 2, with each term suspended after three months for a two-year operational period. The applicant sought leave to appeal against the sentence, arguing that the sentencing judge failed to consider various factors that constituted exceptional circumstances and that the sentences imposed were manifestly excessive.

The court examined whether the sentencing judge erred in not taking into account factors such as the lack of a description of the indecent matter, the applicant’s remorse, good character, community contributions, work history, childhood trauma, marriage stress, and reputational damage. The applicant contended that these factors warranted a deviation from the imposed sentences. Additionally, the court assessed whether the sentences were manifestly excessive, considering the totality of the circumstances.

In its reasoning, the court found that the sentencing judge did not adequately consider the exceptional circumstances presented by the applicant. The court recognised that the lack of a specific description of the indecent matter and the other mitigating factors could have warranted a different sentence. The court also concluded that the sentences imposed were indeed manifestly excessive, especially given the concurrent nature of the sentences and the period of suspension. Therefore, the court allowed the appeal and varied the sentences accordingly.

The final orders included granting leave to appeal, allowing the appeal, setting aside the sentence for Count 1 and ordering that the applicant be convicted but not further punished, and varying the sentence for Count 2 to a one-year imprisonment term, suspended after three months, with a one-year operational period. The court also noted that one day of pre-sentence custody was to be counted as time already served.

Orders

Orders of the court

Date of Orders: 18 October 2021

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the sentence and orders for count 1 and instead order that the applicant be convicted and not further punished for count 1.

4. Vary the sentence and orders for count 2 by substituting “1 Year” for “18 Months” as the period of imprisonment, and in the order suspending the term of imprisonment after serving a period of 3 Months imprisonment, substitute “1 Year” for “2 Years”, so that the sentence and orders provide:

“The offender is sentenced to imprisonment for a period of 1 Year. Order that the term of imprisonment be suspended after serving a period of 3 Months imprisonment; and the offender must not commit another offence punishable by imprisonment within a period of 1 Year if the offender is to avoid being dealt with for the suspended term of imprisonment.

Pursuant to Section 159A of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody for 1 Day between 02/07/2018 – 03/07/2018. The Court declared that 1 Day of pre-sentence custody be imprisonment already served under the sentence.”

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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CITATION:	R v Fahey [2021] QCA 232
PARTIES:	R v FAHEY, John Roger (applicant)
FILE NO/S:	CA No 252 of 2021 DC No 745 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 11 October 2021 (Clare SC DCJ)
DELIVERED ON:	Date of Orders: 18 October 2021 Date of Publication of Reasons: 28 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2021
JUDGES:	Fraser, McMurdo and Mullins JJA
ORDERS:	Date of Orders: 18 October 2021 1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Set aside the sentence and orders for count 1 and instead order that the applicant be convicted and not further punished for count 1. 4. Vary the sentence and orders for count 2 by substituting “1 Year” for “18 Months” as the period of imprisonment, and in the order suspending the term of imprisonment after serving a period of 3 Months imprisonment, substitute “1 Year” for “2 Years”, so that the sentence and orders provide: “The offender is sentenced to imprisonment for a period of 1 Year. Order that the term of imprisonment be suspended after serving a period of 3 Months imprisonment; and the offender must not commit another offence punishable by imprisonment within a period of 1 Year if the offender is to avoid being dealt with for the suspended term of imprisonment. Pursuant to Section 159A of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody for 1 Day between 02/07/2018 – 03/07/2018. The Court declared that 1 Day of pre-sentence custody be imprisonment already served under the sentence.”
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of sexual assault (Count 1) and one count of grooming a child under 16 years with intent to expose the child to an indecent matter (Count 2) – where the applicant was sentenced to concurrent terms of six months’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2 – where each term of imprisonment was ordered to be suspended after three months for an operational period of two years – where the applicant tendered psychological reports – whether the sentencing judge erred in failing to take into account the relevant considerations APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of sexual assault (Count 1) and one count of grooming a child under 16 years with intent to expose the child to an indecent matter (Count 2) – where the applicant was sentenced to concurrent terms of six months’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2 – where each term of imprisonment was ordered to be suspended after three months for an operational period of two years – whether exceptional circumstances are established…