R v Fakaosilea - [2023] NSWDC 212

District Court

New South Wales

Medium Neutral Citation: R v Fakaosilea [2023] NSWDC 212
Hearing dates: 25 May 2023; 01 June 2023
Date of orders: 09 June 2023
Decision date: 09 June 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 Appeal allowed.
2 I set aside the penalty imposed by the magistrate.
3 In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024.
4 The offender is disqualified for the minimum period of 12 months.
5 John Fakaosilea is convicted.
6 I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.
7 I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022.
8 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:
Sequence 3 – 3 years and 4 months;
Sequence 4 – 4 years.
9 I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027.
10 The offender will be eligible to be released on parole on 16 December 2024.

Catchwords:
SENTENCING — Appeal against sentence — Severity
CRIME — Violent offences — Aggravated robbery — In company

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

Cases Cited:
Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
Legge v The Queen [2007] NSWCCA 244
R v Henry (1999) 46 NSWLR 346
R v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Rex (Crown)
John Fakaosilea (Offender)
Representation:
Counsel:
S M Fernando (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2022/19281
Publication restriction: None

Judgment

Introduction

John Fakaosilea (the offender) appears for sentence after pleading guilty in the Local Court to two counts of robbery in company contrary to s 97(1) Crimes Act 1900.
The maximum penalty for the offence is 20 years imprisonment.
The offender also appeals against the severity of a sentence imposed on him at the Mt Druitt Local Court on 4 May 2023. On that day he was sentenced to an aggregate term of imprisonment 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.

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Details

Case: [2023] NSWDC 212
Decision Date: 09 June 2023

CaseChat Overview and Summary

The matter before the court was an appeal against the sentence imposed by a magistrate on John Fakaosilea, who had been convicted of aggravated robbery while in the company of others. The Crown appealed the sentence on the basis that it was unduly lenient. The sentencing judge, in response, allowed the appeal and imposed a new sentence.

The legal issues before the court were whether the original sentence was unduly lenient and whether the new sentence imposed was appropriate. The court was required to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the specific circumstances of the offender.

In allowing the appeal, the sentencing judge found that the original sentence was unduly lenient. The judge considered the offender's age, his history of substance abuse, and the fact that he had been in custody since the date of his arrest. The judge also found that the offender had shown remorse and had a genuine desire to rehabilitate. The judge imposed an aggregate sentence of four years and six months imprisonment, with a non-parole period of one year and nine months. The judge found that the offender was eligible for parole after serving two-thirds of his sentence.

The court's final orders included setting aside the original sentence, imposing a new sentence of four years and six months imprisonment with a non-parole period of one year and nine months, and disqualifying the offender from driving for a minimum period of 12 months. The court also found that imprisonment was the only appropriate sentence and made a finding of special circumstances.

Orders

Orders of the court

1 Appeal allowed.

2 I set aside the penalty imposed by the magistrate.

3 In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024.

4 The offender is disqualified for the minimum period of 12 months.

5 John Fakaosilea is convicted.

6 I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

7 I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022.

8 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

Sequence 3 – 3 years and 4 months;

Sequence 4 – 4 years.

9 I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027.

10 The offender will be eligible to be released on parole on 16 December 2024.

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.

Medium Neutral Citation:	R v Fakaosilea [2023] NSWDC 212
Hearing dates:	25 May 2023; 01 June 2023
Date of orders:	09 June 2023
Decision date:	09 June 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Appeal allowed. 2 I set aside the penalty imposed by the magistrate. 3 In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024. 4 The offender is disqualified for the minimum period of 12 months. 5 John Fakaosilea is convicted. 6 I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate. 7 I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022. 8 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are: Sequence 3 – 3 years and 4 months; Sequence 4 – 4 years. 9 I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027. 10 The offender will be eligible to be released on parole on 16 December 2024.
Catchwords:	SENTENCING — Appeal against sentence — Severity CRIME — Violent offences — Aggravated robbery — In company
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 Legge v The Queen [2007] NSWCCA 244 R v Henry (1999) 46 NSWLR 346 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Rex (Crown) John Fakaosilea (Offender)
Representation:	Counsel: S M Fernando (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2022/19281
Publication restriction:	None