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R v Fatefehi

R v Fatefehi

Case [2025] NSWDC 124 4 April 2025

Criminal Liability

Sentencing

Aggravated Sexual Assault

Mens Rea & Intention

Criminal Law

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District Court

New South Wales

Case Name:	R v Fatefehi
Medium Neutral Citation:	[2025] NSWDC 124
Hearing Date(s):	4 September 2024 – 24 September 2024, 7 November 2024 & 28 February 2025
Date of Orders:	04 April 2025
Decision Date:	4 April 2025
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	Aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 7 months
Catchwords:	Criminal law — Sentencing — Sexual Offences — Aggravated Sexual Assault — Section 61J(1) of the Crimes Act 1900 (NSW) — Where complainant under the age of 16 years — Whether Offender was in a position of “authority” or “trust” — Whether Offender’s continuing claim of innocence prevents a finding of positive prospects of rehabilitation — Whether continuing claim of innocence affects assessment of recidivism risk
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing and Procedure) Act 1999 (NSW)
Cases Cited:	Al Dhaifa v R [2024] NSWCCA 108 Ali v R [2010] NSWCCA 35 Alseedi v R [2009] NSWCCA 185 Cahyadi v R [2007] NSWCCA 1 Crane v R [2024] NSWCCA 87 DH v R [2019] NSWCCA 128 DPP v Burton [2020] NSWCCA 54 Du Plessis v R [2024] NSWCCA 164 Field v R [2020] NSWCCA 105 Hili v the Queen (2010) 242 CLR 520 Johnson v R [2016] NSWCCA 286 Kumar v R [2011] NSWCCA 139 MH v R [2011] NSWCCA 230 Montero v R [2013] NSWCCA 214 Pender v R [2023] NSWCCA 291 R v Davidson [2023] NSWDC 101 R v DN [2023] NSWCA 39 R v Ryn [2016] NSWCCA 1 Siganto v R (1999) 159 ALR 94 Tepania v R [2018] NSWCCA 247 Vandeventer v R [2013] NSWCCA 33
Texts Cited:	W Wan, S Poynton, G Goorn and D Weatherburn, “Parole Supervision and Reoffending” (2016) 149 Australia & New Zealand Journal of Criminology 4
Category:	Sentence
Parties:	Rex (Crown) Isileli Fatefehi (Offender)
Representation:	Prosecution: Mr Walmann Defence: Ms Orman-Hales
File Number(s):	2023/00007581
Publication Restriction:	Non-Publication Order regarding identity of the complainant.

JUDGMENT

Isileli Fatefehi (“the Offender”) was born in October 1976. Presently, he is 48 years of age. Following a trial before a jury of 12, he was convicted on 24 September 2024 of two offences of sexual assault against a then 15-year-old female (“the Victim”) in circumstances of aggravation against section 61J(1) of the Crimes Act 1900 (NSW).
That the Victim was under the age of 16 years at the time of the offences is the circumstance of aggravation upon which Crown relied at trial: section 61J(2)(d); Trial Elements Document MFI 25; Sentence Hearing Crown Written Submissions MFI 2. Each offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
The offending occurred in the early hours of 17 December 2022.
The Offender was arrested on 9 January 2023 and has remained incarcerated since.
There are no Form 1 matters to be taken into account.

FACTS

The Offender was in a relationship with the Victim’s mother (“Mother

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 Fatefehi

Details

AGLC: R v Fatefehi [2025] NSWDC 124
Case: [2025] NSWDC 124
Decision Date: 4 April 2025

CaseChat Overview and Summary

In the matter of R v Fatefehi, the accused was convicted of aggravated sexual assault, under section 61J(1) of the Crimes Act 1900 (NSW), involving a complainant under the age of 16 years. The court was tasked with determining the appropriate sentence, considering factors such as the accused's position of authority or trust, his prospects of rehabilitation, and the risk of reoffending. The accused, who continued to assert his innocence, was also found to have engaged in a series of offences that took advantage of his position of authority over the victim.

The central legal issues before the court were whether the accused was in a position of authority or trust over the victim, and if so, how this would impact the sentencing. Additionally, the court needed to assess whether the accused's continued denial of guilt would affect his prospects for rehabilitation and his risk of reoffending. These factors are significant in the context of section 61J(1) of the Crimes Act, which mandates specific sentencing considerations for sexual offences involving minors.

In delivering the judgment, the court found that the accused was indeed in a position of authority over the victim, which warranted an aggravated penalty. The court considered the accused's continued claims of innocence, which they found to be a factor that negatively impacted his prospects for rehabilitation and increased his risk of reoffending. The court acknowledged the gravity of the offence and the need to protect the community from potential future harm. Ultimately, the court imposed an aggregate sentence of imprisonment for 7 years, with a non-parole period of 4 years and 7 months. This decision reflects a balanced approach to sentencing that considers both the severity of the offence and the offender's potential for rehabilitation.

Orders

Orders of the court

Aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 7 months

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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Citations

AGLC Citation

R v Fatefehi [2025] NSWDC 124

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Cases cited in this decision · 20 of 20 shown

Du Plessis v The King
[2024] NSWCCA 164 Para 2

…As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45], which was applied in Du Plessis v R [2024] NSWCCA 164 at [79]: “One cannot judge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have…
Al Dhaifa v The King
[2024] NSWCCA 108 Para 19

…Recently, Garling J (McNaughton and Weinstein JJ agreeing) said in Al Dhaifa v R [2024] NSWCCA 108 at [62]: “The first of these two sub-sections invite a sentencing Court to identify whether the offender was in a position of trust with respect to the victim, or a position of authority with respect to the victim. Thi…
Crane v The King
[2024] NSWCCA 87 Para 9

…ociates, to settle into a stable life with employment while having the assistance of those supports, and the opportunity of rehabilitation: Crane v R [2024] NSWCCA 87 at [128]-[130]. During parole, he may be referred to a specialist drug and alcohol intervention service.…
Pender v R
[2023] NSWCCA 291 Para 2

…tigated, as it might be in another case, where the Offender held an honest but unreasonably based belief that the victim was consenting: Pender v R [2023] NSWCCA 291 at [55].…
Larsen v Tastec Pty Ltd
[2023] NSWCA 39 Para 4

…R v DN [2023] NSWCA 39 Gleeson JA (Fagan J and Dhanji JJ agreeing) reviewed the sentences in several preceding cases of offending against section 61J(1) in the course of finding that the aggregate sentence imposed at first instance was manifestly inadequate. In that exercise, his Honour included identification of…
R v Davidson (a pseudonym)
[2023] NSWDC 101 Para 12

…n, G Goorn and D Weatherburn, “Parole Supervision and Reoffending” (2016) 149 Australia & New Zealand Journal of Criminology 4, 497; R v Davidson [2023] NSWDC 101 at [41].…
Field v R
[2020] NSWCCA 105 Para 11

…ubjective case. Its aggravating effect is to be weighed when determining adequate punishment, deterrence and protection of the community: Field v R [2020] NSWCCA 105 per Hoeben CJ at [84]-[85].…
Director of Public Prosecutions (NSW) v Burton
[2020] NSWCCA 54 Para 18

…The difference between a position of “trust” and a position of “authority” was explained in DPP v Burton [2020] NSWCCA 54, where Basten JA (Rothman and Cavanagh JJ agreeing) said at [30]-[31]: “Section 21A(2)(k) refers to the offender abusing “a position of trust … in relation to the victim”. The term is used by wa…
DH v R
[2019] NSWCCA 128 Para 7

…In DH v R [2019] NSWCCA 128, Hamill J (Leeming JA and N Adams J agreeing) resentenced an offender, who was the victim’s mother’s partner, including with provision of indicative sentences, for penile-vaginal sexual intercourse when the victim was 11 years and 10 months of age (Count 8) and 16 years of age (Count 9):…
Tepania v The Queen
[2018] NSWCCA 247 Para 6

…At [104] in Tepania v R [2018] NSWCCA 247, Johnson J said: “… The standard non-parole period now represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”.”…
Jonson v R
[2016] NSWCCA 286 Para 2

…in a victim’s home, even when the offender is legally within the home at the time of offending: Montero v R [2013] NSWCCA 214 at [54]; Johnson v R [2016] NSWCCA 286 at [28]-[31].…
R v Van Ryn
[2016] NSWCCA 1 Para 1

…of children is reflected in the criminal law by the statutory guideposts and by the emphasis given to the importance of general deterrence: R v Ryn [2016] NSWCCA 1 per R A Hulme J (Leeming JA and Johnson J agreeing) at [187].…
Montero v R
[2013] NSWCCA 214 Para 2

…that is abrogated when offending occurs in a victim’s home, even when the offender is legally within the home at the time of offending: Montero v R [2013] NSWCCA 214 at [54]; Johnson v R [2016] NSWCCA 286 at [28]-[31].…
Vandeventer v R
[2013] NSWCCA 33 Para 2

…As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45], which was applied in Du Plessis v R [2024] NSWCCA 164 at [79]: “One cannot judge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have…
MH v R
[2011] NSWCCA 230 Para 1

…he home in which both the offender and the victim reside, but is only an aggravating factor when the offender is not lawfully on the premises: MH v R [2011] NSWCCA 230 at [34].…
Kumar v The Queen
[2011] NSWCCA 139 Para 4

…In Kumar v R [2011] NSWCCA 139, Adams J (Hodson JA and Hall J agreeing) said at [23]: “whilst the continuation of the [offender’s] claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter other…
Hili v The Queen
[2010] HCA 45 Para 3

…present judge must, or even ought to, sentence. Past sentences provide a yardstick against which to evaluate the proposed sentence: Hili v the Queen (2010) 242 CLR 520.…
Ali v R
[2010] NSWCCA 35 Para 2

…See also Ali v R [2010] NSWCCA 35 per Johnson J (McClelland CJ at CL and RS Hulme J agreeing) at [48].…
Alseedi v R
[2009] NSWCCA 185 Para 9

…A court is not permitted to penalise an offender for pleading not guilty at trial: Siganto v R (1999) 159 ALR 94 at [22]. In Alseedi v R [2009] NSWCCA 185, Giles JA (Hidden and McCallum JJ agreeing) observed at [64] that the judge at first instance was wrong for reasoning as follows: “It is difficult to find that th…
Cahyadi v R
[2007] NSWCCA 1 Para 4

…Howie J in Cahyadi v R [2007] NSWCCA 1 said at [27] (a statement approved in R v Ryn [2016] NSWCCA 1 at [231]) that: “There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality:…

Legislation cited in this decision · 3

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention
Crimes (Sentencing and Procedure) Act 1999 (NSW)
1 mention (from Para 16)
Crimes Act 1900 (ACT)
1 mention (from Para 1)