R v Fellowes - [2024] NSWDC 311

District Court

New South Wales

Medium Neutral Citation: R v Fellowes [2024] NSWDC 311
Hearing dates: 31 May 2024
Date of orders: 31 May 2024
Decision date: 31 May 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 4 years with a non-parole period of two years four months

Catchwords:
CRIME — Violent offences — Assault with intent to rob in company— Intimidation
SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of ICO
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Late plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Co-offenders — Parity — Form 1 offences — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis— Special circumstances
SENTENCING — Subjective considerations on sentence — Functionally illiterate — Risk of institutionalisation

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Craig (District Court (NSW), 1 November 2023 unrep)
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Category: Sentence
Parties: Blake Fellowes (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
B Hart (for the offender)
C Todd (for the Crown)
Solicitors:
Justine Hall Lawyer (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/323913

JUDGMENT – ex tempore revised

Introduction

Blake Fellowes was born in 1998, he is now 26. He first went to gaol when he was 19. Since August 2018, he has only been in the community for less than six months.
On 21 October 2022, he was sentenced to a term of imprisonment but was subject to an Intensive Correction Order. On 29 October 2022 there was the incident at Werri Beach which led to four serious charges. He was arrested for those matters on 30 October 2022. On 22 June 2023 he was granted bail. The Intensive Correction Order (‘ICO’) was restored, but something happened in January 2024. There were 5 days in custody in that intervening period. On 4 February 2024 he was returned to custody where he remains.
In the Local Court and when arraigned on the four serious charges in this Court, he said he was not guilty. A trial commenced this week before a jury of 12. When he was first arraigned in front of the jury panel he hesitated at one point, but then he said he was not guilty of each count. After the Crown opening and after the principal complainant in the first count had completed his evidence-in-chief, an adjournment request was made through Fellowes’ counsel, Mr Hart. I granted that request. Fellowes took the time to consult with his barrister and solicitor.
I am told, and accept, that Mr Fellowes left school when…

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 Fellowes

Details

AGLC: R v Fellowes [2024] NSWDC 311
Case: [2024] NSWDC 311
Decision Date: 31 May 2024

CaseChat Overview and Summary

The case before the court involved a defendant, Fellowes, who was charged with assaulting with intent to rob in company, an offence involving intimidation. The matter was heard in a higher court where the sentencing of the defendant was the primary focus. The legal issues at hand centred on the application of sentencing guidelines, the consideration of aggravating and mitigating factors, and the determination of an appropriate sentence that would serve the purposes of punishment, deterrence, and rehabilitation. The court was tasked with balancing the severity of the offence with the personal circumstances of the defendant, including his educational background and potential for institutionalisation.

The court undertook an instinctive synthesis of the case, meticulously weighing the aggravating and mitigating factors. Aggravating factors included the defendant's breach of conditional liberty and an earlier breach of an intensive corrections order. However, the court also acknowledged mitigating factors such as the defendant's late plea of guilty and his functional illiteracy. The court recognised the objective seriousness of the offence and the need for deterrence, but also considered the principle of parity with co-offenders and the overall objectives of sentencing. The court gave careful consideration to the sentencing guidelines, emphasising the importance of special circumstances in the determination of the sentence.

After careful deliberation, the court determined that an aggregate imprisonment sentence was warranted. The sentence was set at four years, with a non-parole period of two years and four months. The court's decision reflected a balanced approach, taking into account both the seriousness of the offence and the personal circumstances of the defendant. The sentence was designed to serve the dual purposes of punishment and deterrence, while also considering the potential for rehabilitation and the risk of institutionalisation. The court's decision was grounded in the principles of sentencing law and the specific facts of the case.

Orders

Orders of the court

Aggregate imprisonment sentence of 4 years with a non-parole period of two years four 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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Medium Neutral Citation:	R v Fellowes [2024] NSWDC 311
Hearing dates:	31 May 2024
Date of orders:	31 May 2024
Decision date:	31 May 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 4 years with a non-parole period of two years four months
Catchwords:	CRIME — Violent offences — Assault with intent to rob in company— Intimidation SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of ICO SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Late plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Co-offenders — Parity — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis— Special circumstances SENTENCING — Subjective considerations on sentence — Functionally illiterate — Risk of institutionalisation
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Craig (District Court (NSW), 1 November 2023 unrep) R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Category:	Sentence
Parties:	Blake Fellowes (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: B Hart (for the offender) C Todd (for the Crown) Solicitors: Justine Hall Lawyer (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/323913