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R v Farrell

R v Farrell

Case [2014] NSWCCA 30 14 March 2014

Sentencing

Crown Appeal

Sentencing Discretion

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Farrell [2014] NSWCCA 30
Hearing dates: 24 February 2014
Decision date: 14 March 2014
Before: Hoeben CJ at CL at [1]
Adams J at [2]
R A Hulme J at [3]
Decision:
Crown appeal dismissed

Catchwords: CRIMINAL LAW - Crown appeal against sentence - s 11 Crimes (Sentencing Procedure) Act 1999 (NSW) adjournment amenable to appeal under s 5D Criminal Appeal Act 1912 (NSW) - failing to impose a sentence where one is demonstrably called for is a manifestly inadequate exercise of sentencing discretion -error in concluding need for surgery supported disposition under s 11 - no benefit in deferring sentencing to enable offender to undertake supervised rehabilitation - sentencing direction miscarried - residual discretion - no practical benefit in allowing appeal - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King [1936] HCA 40; 55 CLR 499
R v Brown [2009] NSWCCA 6; 193 A Crim R 574
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Rayment [2010] NSWCCA 85; 200 A Crim R 48
R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
Category: Principal judgment
Parties: Regina (Applicant)
Shannon Farrell (Respondent)
Representation: Counsel:
Ms H Wilson SC (Crown)
Mr G James QC with Mr P Lange (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Turnbull Lawyers

File Number(s): 2013/36983
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-11-21 00:00:00

Before:

Hanley SC DCJ

File Number(s):

2013/36983

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

ADAMS J: I agree with R A Hulme J.

R A HULME J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against a "sentence" imposed upon the respondent on 21 November 2013 by his Honour Judge Hanley SC in the District Court at Campbelltown.

The respondent stood for sentence in relation to a charge of Possess Prohibited Weapon contrary to s 7(1) of the Firearms Act 1996 (NSW). Such an offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. A further four charges under the Firearms Act listed on a Form 1 document were before the court to be taken into account on sentence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The judge adjourned the proceedings and granted the respondent bail, pursuant to s 11 of the Crimes (Sentencing Procedure) Act. His Honour directed the respondent to appear before the Campbelltown District Court on 14 April 2014 when it is anticipated that a sentence date will be fixed.

The sole ground of appeal is that the "sentence" is…

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 Farrell

Details

AGLC: R v Farrell [2014] NSWCCA 30
Case: [2014] NSWCCA 30
Decision Date: 14 March 2014

CaseChat Overview and Summary

The appellant, the Crown, sought to appeal against the sentence imposed on the respondent, Mr. Farrell, following his conviction for a serious crime. The case was heard in the NSW Court of Criminal Appeal. The Crown argued that the sentence imposed by the trial judge was manifestly inadequate, and that the trial judge had erred in concluding that the need for surgery supported a disposition under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown also argued that there was no benefit in deferring sentencing to enable the respondent to undertake supervised rehabilitation.

The legal issues before the court were whether the trial judge's decision to adjourn sentencing was amenable to appeal under section 5D of the Criminal Appeal Act 1912 (NSW), and whether the trial judge had failed to impose a sentence where one was demonstrably called for. The court held that the adjournment was amenable to appeal, and that the trial judge had indeed failed to impose a sentence where one was demonstrably called for. The court found that the trial judge's conclusion that the need for surgery supported a disposition under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was an error, and that there was no benefit in deferring sentencing to enable the respondent to undertake supervised rehabilitation.

The court noted that the respondent's offending was serious, and that the sentence imposed by the trial judge was manifestly inadequate. However, the court held that there was no practical benefit in allowing the appeal, and dismissed the appeal. The court found that the sentencing direction miscarried, and that there was no residual discretion available to the trial judge. The court held that the appeal should be dismissed, and made no orders as to costs.

Orders