R v Fell - [2004] NSWCCA 235

CITATION: R v FELL [2004] NSWCCA 235

HEARING DATE(S): 3 February 2004

JUDGMENT DATE:
14 July 2004

JUDGMENT OF: Giles JA at 1; Hulme J at 1; Adams J at 1

DECISION: The Crown appeal is dismissed.

PARTIES :
Regina
James Andrew Fell

FILE NUMBER(S): CCA 60400/03

COUNSEL: Crown: D Frearson
Respondent: J Dalley

SOLICITORS: Crown: S Kavanagh
Respondent: K Madden

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0166

LOWER COURT
JUDICIAL OFFICER : Tupman DCJ

- 11 -

60400/03

GILES JA
HULME J
ADAMS J

Wednesday 14 July 2004

R v JAMES ANDREW FELL

Judgment

1 THE COURT: On 3 February last the Court heard and dismissed a Crown appeal in this matter, indicating its reasons would be published later. Hence these reasons.

2 The Respondent pleaded guilty to 14 charges alleging that he did dishonestly obtain for himself money by deception, namely by fraudulently crediting funds into his personal account from WES Components. The 14 charges related to transactions between 5 March 2001 and 17 July 2001 in amounts varying between $11,250 and $31,600. The total amount involved in these 14 offences was $326,324.

3 Also taken into account were 70 further offences occurring between 14 May 2000 and mid July 2001. As time went on the amounts involved in the offending tended to increase - firstly $30, then $50 and then $70. By about mid July there was an offence involving $650. The largest of these offences involved an amount of $9,681. The total amount involved in these 70 additional offences was $216,349.50.

4 The offences arose under Section 178BA of the Crimes Act and each of those charged rendered the Applicant liable to imprisonment for 5 years. On 18 August 2003, Judge Tupman imposed the following sentences in respect of the charges:-

1. In respect to counts 1 to 13 imprisonment for a period of 16 months commencing on 18 August 2003, the date of sentence.

2. In respect of count 14 and taking into account the 70 additional offences appearing on the Form 1, imprisonment for a period of 22 months commencing on 18 August 2003.

3. Each sentence was suspended upon the Respondent entering into a good behaviour bond to come up for sentence at any time if called on for any breach committed during the period of the bond. Additional conditions of the bonds were:-

(a) That the Respondent accept the supervision and guidance of the probation and parole service.

(b) That he continue to undertake psychiatric and psychological treatment as is recommended by his medial advisors.

5 At the time of his offending, the Respondent was employed in the office of WES Components. The method by which he perpetrated his offences was by swiping or otherwise entering his key card in his employer’s records in circumstances such that the transaction appeared to be a genuine credit or refund to one of the customers of his employer. The…

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 Fell

Details

AGLC: R v Fell [2004] NSWCCA 235
Case: [2004] NSWCCA 235
Decision Date: 14 July 2004

CaseChat Overview and Summary

In the matter of Regina v. James Andrew Fell, the Crown appealed against the sentence imposed by Judge Tupman, arguing that the sentences were manifestly inadequate, the delay in proceedings was insufficient to warrant significant mitigation, the Respondent's psychiatric condition did not preclude knowledge of the gravity of his actions and did not lessen the requirement of general deterrence, and the Judge erred in regarding repayment as a matter justifying or significantly arguing for non-accumulation of sentences. The appeal was heard on 3 February 2004, and the Crown's appeal was dismissed on 14 July 2004. The Respondent had pleaded guilty to 14 charges of dishonestly obtaining money by deception, with the total amount involved in these offences being $326,324. Additionally, 70 further offences were taken into account, with a total amount involved of $216,349.50. The Respondent's offending was attributed to his psychiatric condition, and he had taken steps to rehabilitate himself by undergoing psychiatric and psychological treatment. The Court found that the Judge had correctly exercised her sentencing discretion, taking into account the Respondent's mental condition and the totality of the criminality. The Court agreed with the Judge's assessment that the Respondent's rehabilitation would be best served by remaining in the community and that the importance of general deterrence was minor in this case. The Court concluded that the sentences imposed were appropriate, and the Crown's appeal was dismissed.

Orders