R v Fell

[2023] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

R v Fell [2023] NSWDC 353

Hearing dates:

01 September 2023

Date of orders:

01 September 2023

Decision date:

01 September 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Graham Ronald Fell is convicted.

2 The appropriate aggregate term of imprisonment is 3 years, which will be reduced by 7 months to take into account the offender’s pre-sentence custody.

3 I impose an aggregate term of imprisonment of 2 years and 5 months.

4 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (1 September 2023) and expire on 31 January 2026.

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence

CRIME — Fraud — Dishonestly obtain property by deception

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Mandranis v R [2021] NSWCCA 97

R v Olbrich (1999) 199 CLR 270

R v Zamagias [2002] NSWCA 17

Category:

Sentence

Parties:

Rex (Crown)
Graham Ronald Fell (Offender)

Representation:

Counsel:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2022/249626

Publication restriction:

None

JUDGMENT

Introduction

1. Graham Fell (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H89864714	Offence	Maximum Penalty and SNPP
1	Aggravated break and enter and commit serious indictable offence (larceny), contrary to s 112(2) Crimes Act 1900	20 years imprisonment; 5 years SNPP
26	Dishonestly obtain property by deception, contrary to s 192E(1)(a), Crimes Act 1900	10 years imprisonment; no SNPP

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim, Yohei Okawa, resided at a three-storey boarding house in Surry Hills.

7. At about 7:30pm on 20 August 2022, he returned home. He closed his door but left it unlocked. He went to sleep at around 2:00am.

8. CCTV footage recorded the offender walking around the outside of the boarding house, before gaining entry via the front door…