R v Fairclough (No 2) - [2020] ACTSC 134

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Fairclough (No 2)
Citation:	[2020] ACTSC 134
Hearing Dates:	27 March 2020
DecisionDate:	30 April 2020
Before:	Burns J
Decision:	See [42]-[43]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm – plea of guilty – excessive self-defence – prospects for rehabilitation guarded
Legislation Cited:	Crimes Act 1900 (ACT) s 27(3)(c)
Cases Cited:	R v Fairclough [2019] ACTSC 215 R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	The Queen (Crown) Christian Fairclough (Offender)
Representation:	Counsel A Jamieson-Williams (Crown) J Masters (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason (Offender)
File Number:	SCC 91 of 2016

BURNS J:

Christian Fairclough, you appear before me today via video link for sentence on one charge of intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm (CC16/02435). The offensive weapon which was used was a knife. This offence was committed on 12 February 2016 and the victim was a man to whom I will refer as TD.

The offence is contrary to s 27(3)(c) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years' imprisonment.

Procedural history

This matter has a sorry procedural history. You were originally charged in the ACT Magistrates Court on 13 February 2016 with intentionally wounding TD, intentionally inflicting grievous bodily harm on him and same offence to which you have now entered a plea of guilty. You entered pleas of not guilty to all charges and on 3 May 2016, you were committed for trial to this Court on all three charges. Bail had originally been refused on 13 February 2016 but on 11 March 2016, you were granted bail in the ACT Magistrates Court. It was a condition of that bail that you reside with your father in Victoria.

On 1 June 2016, the Crown filed an indictment containing two charges. The principal charge was alleging that you had intentionally inflicted grievous bodily harm on TD, an offence carrying a maximum penalty of 20 years' imprisonment. On 22 August 2016, Murrell CJ directed that the matter be listed for trial in the week commencing 20 March 2017. Unfortunately, the matter was not reached during that week and it was relisted for trial on 17 July 2017 with priority.

On 6 April 2017, your bail was varied to permit you to reside at an address in South Australia. On 12 July 2017, your lawyers sought and were granted leave to withdraw as your solicitors on the record. You were bailed to attend Court on 12 July 2017 but you failed to appear. Murrell CJ ordered that a warrant be issued for your arrest but the warrant was to lie in office until the following day. Directions were given designed to inform you…

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 Fairclough (No 2)

Details

AGLC: R v Fairclough (No 2) [2020] ACTSC 134
Case: [2020] ACTSC 134
Decision Date: 30 April 2020

CaseChat Overview and Summary

The case before the court involved the defendant, Fairclough, who pleaded guilty to the charge of intentionally and unlawfully using an offensive weapon likely to endanger human life or cause grievous bodily harm. The matter was heard in the relevant Australian court, and the primary focus was on determining an appropriate sentence given the nature of the offence and the circumstances surrounding it. Fairclough's plea included an assertion of excessive self-defence, and the court had to consider his prospects for rehabilitation, which were described as guarded.

The court's task was to weigh the severity of the offence against the mitigating factors presented, including the plea of excessive self-defence and the defendant's limited prospects for rehabilitation. The legal issues at hand required the court to interpret the principles of sentencing, particularly in cases where the use of an offensive weapon is involved, and to balance these with the circumstances that led to the defendant's actions. The court had to determine whether the sentence should reflect the gravity of the offence or give some consideration to the mitigating factors.

The court ultimately decided that the sentence should reflect the seriousness of the offence while also taking into account the mitigating factors presented. The court found that despite the plea of excessive self-defence and the defendant's guarded prospects for rehabilitation, the use of an offensive weapon in a manner that could endanger human life warranted a substantial penalty. The court imposed a sentence that was deemed appropriate under the circumstances, ensuring it appropriately balanced the need for punishment with the need for rehabilitation.

In conclusion, the court ordered the sentence to be as outlined in paragraphs [42] and [43] of the judgment. The sentence reflected the gravity of the offence while also considering the mitigating factors presented by the defendant.

Orders

Orders of the court

See [42]-[43]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.