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R v Farrawell-Smith

R v Farrawell-Smith

Case [2010] NSWCCA 144 14 July 2010

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Farrawell-Smith [2010] NSWCCA 144

HEARING DATE(S): 21/6/2010

JUDGMENT DATE:
14 July 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Barr AJ at 3

DECISION: The appeal is dismissed.

LEGISLATION CITED: Crimes Act 1900 - ss 35(1), 35(3)
Crimes (Sentencing Procedure) Act 1999 - ss 3A, 12, 23(3)

CATEGORY: Principal judgment

CASES CITED: R v Sukkar [2006] NSWCCA 92
R v Mostyn [2004] NSWCCA 97
R v S (2000) 111 A Crim R 225
Dinsdale v The Queen [2000] 202 CLR 321
R v JCE (2001) 129 A Crim R 18
R v Zamagias [2002] NSWCCA 17
R v Woods [2009] NSWCCA 55
Smith v R [2009] NSWCCA 17
R v Knight [2010] NSWCCA 51
R v Biuvanua [2007[] NSWCCDA 283
R v McEvoy [2010] NSWCCA 110

PARTIES: Regina, Peter Robert Farrawell-Smith

FILE NUMBER(S): CCA 2009/8228

COUNSEL: P Miller - Crown
R Burgess - Respondent

SOLICITORS: S Kavanagh -Crown
S O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8228

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 17/02/2010

2009/8228

McCLELLAN CJ at CL
HISLOP J
BARR AJ
WEDNESDAY 14 JULY 2010

REGINA v Peter Robert FARRAWELL-SMITH

Judgment

1 McCLELLAN CJ at CL: I agree with Barr AJ.

2 HISLOP J: I agree with Barr AJ.

3 BARR AJ: This is a Crown appeal against what is said to be the inadequacy of sentences imposed in the District Court on the respondent, Peter Robert Farrawell-Smith. The respondent pleaded guilty in the District Court to two charges, namely that on or about 13 September 2008 at Appin while in the company of a person referred to as JV he recklessly caused grievous bodily harm to Todd Mercer and that at the same time and place while in the company of the same person, he recklessly wounded Brent Mercer.

4 The first count was laid under s 35(1) Crimes Act 1900. The maximum applicable sentence was imprisonment for 14 years. The second count was laid under s 35(3) Crimes Act. The maximum applicable sentence was imprisonment for 10 years.

5 On the first count Judge Sides of Queen’s Counsel sentenced the respondent to imprisonment for 20 months, suspended under s 12 Crimes (Sentencing Procedure) Act 1999. On the second count his Honour sentenced the respondent to 12 months’ imprisonment, suspended under s 12 Crimes (Sentencing Procedure) Act.

6 The facts found by his Honour were as follows:

At about 11pm on 12 September 2008 the victims, 17-year-old twins, were at a gathering drinking with friends around a fire at Appin. A fight erupted between some of those present including Richard O’Donnell and Clint Swelt. The fire broke up after about 10 minutes and some people left the gathering in a car, but Richard O’Donnell walked away. At the time he had pins in his leg because of a previous fracture. He rang the offender asking for help because he had been jumped…

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 Farrawell-Smith

Details

AGLC: R v Farrawell-Smith [2010] NSWCCA 144
Case: [2010] NSWCCA 144
Decision Date: 14 July 2010

CaseChat Overview and Summary

The case of Regina v Peter Robert Farrawell-Smith was heard in the New South Wales Court of Criminal Appeal. The appeal was brought by the Crown against the sentences imposed by the District Court on the respondent, who had pleaded guilty to charges of recklessly causing grievous bodily harm and recklessly wounding. The Court of Criminal Appeal was tasked with determining whether the sentences were inadequate. The appeal hinged on the severity of the sentences relative to the nature of the offences and the respondent's prospects of rehabilitation.

The primary legal issues before the Court of Criminal Appeal were whether the District Court judge had erred in granting excessive discounts for the respondent's guilty plea and assistance to authorities, and whether the judge had erred in suspending the sentences. Additionally, the Court had to consider whether the District Court judge had given undue weight to the respondent's rehabilitation, and whether the sentences imposed were manifestly inadequate in light of the need for deterrence and other purposes of punishment.

In its judgment, the Court of Criminal Appeal found that the District Court judge had indeed erred in assuming that the respondent's incarceration would be significantly more onerous if placed on non-association protection, without any evidence to support this assumption. The Court held that the combined discount for the plea of guilty and assistance was excessive, and that the sentences imposed were unduly disproportionate to the nature and circumstances of the offence. However, the Court concluded that it should exercise its discretion not to interfere with the sentences, given the remarkable change in the respondent's behaviour and his active participation in rehabilitation efforts. The Court considered the respondent's genuine remorse, his efforts to distance himself from his previous associates, and his commitment to his family as compelling reasons to allow the rehabilitation process to continue undisturbed.

The Court of Criminal Appeal dismissed the appeal, affirming the sentences imposed by the District Court. The Court emphasised the commendable transformation in the respondent's life and his dedication to rehabilitation, which it believed warranted the opportunity to continue on this path.

Orders