R v Fam

[2023] NSWDC 119

District Court

New South Wales

Medium Neutral Citation:

R v Fam [2023] NSWDC 119

Hearing dates:

30/11/22-15/12/22, 25/1/23

Date of orders:

25/1/23

Decision date:

25 January 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 2 years 7 months with a NPP of 1 year 7 months (7/5/22-6/12/23).

I find special circumstances.

The indicative sentences are:

Count 2 Common Assault – 8 months.

Count 6 AOABH – 2 years 3 months.

Seq 1 on the s166 certificate (Contravene ADVO) – 3 months.

Seq 3 on the s166 certificate (Contravene ADVO) – 4 months.

Catchwords:

Crime – Sentence – Assault – Assault occasioning actual bodily harm – Breach of apprehended domestic violence orders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Fangaloka v R [2019] NSWCCA 173

R v Crombie [1999] NSWCCA 297

R v Hamid [2006] NSWCCA 302

Category:

Sentence

Parties:

NSW DPP – Crown
Andrew Fam - Offender

Representation:

Mr J Mehta for Crown
Mr J Trevallion for Def

File Number(s):

21/103838

Publication restriction:

Statutory non-publication order in relation to the identity of the victim

sentence

1. The offender, Mr Andrew Fam, stood trial in December 2022 on an eight count indictment of alleged offences against the victim involving allegations of violence and sexual assault. On 14 December 2022 the jury found him guilty of counts 2 and 6 but not guilty of the remaining counts. Count 2 is a charge of assault which carries a maximum penalty of two years imprisonment and count 6 is an offence of assault occasioning actual bodily harm which carries a maximum penalty of five years imprisonment.

2. In addition, there are two offences on a s 166 certificate which are uncontested breaches of Apprehended Domestic Violence Orders which relate to the offender's contact with and violence upon the victim on, firstly, 10 to 11 April 2021 and, secondly, 13 to 14 April 2021 being the dates of the commission of the offences in count 2 and count 6 respectively. Each of those offences, in which I am limited by the same jurisdiction or restrictions as would apply in the Local Court, carry a maximum of two years imprisonment. In making that comment I am, of course, referring to the matters on the s 166 certificate.

3. The maximum penalties for each of the offences are important guide posts in the sentencing exercise to which I have had regard.

4. It is for me to find the facts on which the offender is to be sentenced. My findings must be consistent with the jury's verdicts and any matters in aggravation must be proved beyond reasonable doubt while matters in mitigation only on the balance of probabilities.

FACTS

5. I find the following facts. The offender and the victim met in about late 2017 through a mutual group of friends. However, their relationship became an intimate one after a trip to Bali in December 2019. After this, the relationship was somewhat on and off and involved some incidents of…