R v Faletau - [2016] NSWDC 380

District Court

New South Wales

Medium Neutral Citation: R v Faletau [2016] NSWDC 380
Hearing dates: 21, 28 October 2016
Date of orders: 28 October 2016
Decision date: 28 October 2016
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Total effective sentence of 5 years, 10 months with NPP of 4 years

Catchwords:
CRIMINAL LAW – SENTENCE – Two counts each of aggravated armed robbery contrary to Crimes Act 1900 s97(2) – In respect of each count, 4 additional offences, 6 other aggravated robberies, one of being a passenger in a car driven without the owner’s consent and one of larceny of motor vehicle number plates
Offender aged 23 years at time of offences (31 August 2013), in custody since that time – Unfavourable criminal history – Chronic alcohol abuse and drug use – Greater drug use since most recent incarceration – Poor behaviour in custody – Risk of institutionalisation v need to protect community – Parity of sentence with sentences passed on two co-offenders – Sentences passed in respect of each count
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Dyer v R [2011] NSWCCA 185
Jackson v R [2010] NSWCCA 162
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; (2000) 115 A Crim R 109
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; (1999) 106 A Crim R 149
Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Papani David Faletau (Offender)
Representation:
Counsel:
Ms M Reville (Crown)
Mr A Williams (Offender)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Barron Law (Offender)

File Number(s): 2013/264503
Publication restriction: No

Judgment

HIS HONOUR: After committing a number of crimes in Tumut on 31 August 2013, the offender was arrested on that day and has remained in custody ever since. He was committed for trial in this Court at Wagga Wagga by the Local Court at Wagga Wagga on 13 August 2014. The offender appeared before Letherbarrow DCJ at Wagga Wagga on 25 and 28 August 2014 and before Norrish DCJ on 27 and 28 July 2015. On that latter day the venue of the trial was transferred to Sydney. On 7 August 2015 Flannery DCJ set the matter down for trial on 4 April 2016 with an estimate of two and a half weeks. On 4 April 2016 Blackmore DCJ listed the matter for trial on 5 April 2016. On that day the matter came before Townsden DCJ. The Crown presented a fresh indictment containing two charges, to each of which the offender pleaded guilty. The matter was then fixed for sentence on 1 July 2016 when he came before Hosking ADCJ who adjourned the matter until 21 October 2016 when I held a sentencing hearing which did not conclude until 4.30pm. I then listed the matter for sentence today.
I have recited this curial history to show why, prior to sentence, the offender has spent more than three years in custody and also to…

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 Faletau

Details

AGLC: R v Faletau [2016] NSWDC 380
Case: [2016] NSWDC 380
Decision Date: 28 October 2016

CaseChat Overview and Summary

In the case of R v Faletau, the respondent was convicted on multiple counts of aggravated armed robbery, alongside additional charges related to these incidents. The respondent committed these crimes on 31 August 2013, while aged 23. Faletau had been in custody since the time of the offences. The court was tasked with determining an appropriate sentence, taking into consideration the respondent's criminal history, which was notably unfavourable, along with his chronic issues with alcohol and drug abuse. The respondent's behaviour in custody was also poor, and the court needed to balance the risk of institutionalisation against the need to protect the community. Additionally, the court had to consider parity in sentencing with that of two co-offenders, as well as the sentences previously handed down for each count.

The court was required to address several key legal issues in this case. Firstly, the court had to evaluate the severity of the offences, which involved multiple counts of aggravated armed robbery, and the additional charges that stemmed from these incidents. Secondly, the court needed to consider the respondent's personal circumstances, including his age at the time of the offences, his criminal history, and his substance abuse issues. Thirdly, the court had to examine the respondent's behaviour while in custody, as well as the need to balance the risk of institutionalisation against the imperative to protect the community. Finally, the court had to ensure that the sentence imposed was commensurate with that of the co-offenders, and aligned with the sentences previously passed for each count.

The court determined that the appropriate sentence for Faletau should reflect the seriousness of the offences, while also taking into consideration the respondent's personal circumstances. The court found that an effective sentence of 5 years and 10 months was appropriate, with a non-parole period of 4 years. The court held that this sentence was in line with the sentences imposed on Faletau's co-offenders, and appropriately reflected the gravity of the crimes committed. The court emphasised the need to protect the community, while also considering the respondent's potential for rehabilitation. The court ultimately decided that the imposed sentence would provide a fair and just outcome for all parties involved.

The court's final order was a total effective sentence of 5 years and 10 months, with a non-parole period of 4 years. This decision balanced the need to address the severity of the respondent's crimes with consideration for his personal circumstances and the imperative to protect the community. The sentence was also consistent with the sentences handed down to Faletau's co-offenders, and aligned with the sentences previously imposed for each count. The court's ruling demonstrates the importance of a fair and balanced approach to sentencing, taking into account both the nature of the offences and the individual circumstances of the offender.

Orders

Orders of the court

Total effective sentence of 5 years, 10 months with NPP of 4 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 Faletau [2016] NSWDC 380
Hearing dates:	21, 28 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Total effective sentence of 5 years, 10 months with NPP of 4 years
Catchwords:	CRIMINAL LAW – SENTENCE – Two counts each of aggravated armed robbery contrary to Crimes Act 1900 s97(2) – In respect of each count, 4 additional offences, 6 other aggravated robberies, one of being a passenger in a car driven without the owner’s consent and one of larceny of motor vehicle number plates Offender aged 23 years at time of offences (31 August 2013), in custody since that time – Unfavourable criminal history – Chronic alcohol abuse and drug use – Greater drug use since most recent incarceration – Poor behaviour in custody – Risk of institutionalisation v need to protect community – Parity of sentence with sentences passed on two co-offenders – Sentences passed in respect of each count
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Dyer v R [2011] NSWCCA 185 Jackson v R [2010] NSWCCA 162 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; (2000) 115 A Crim R 109 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; (1999) 106 A Crim R 149
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Papani David Faletau (Offender)
Representation:	Counsel: Ms M Reville (Crown) Mr A Williams (Offender) Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Barron Law (Offender)
File Number(s):	2013/264503
Publication restriction:	No