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R v Fennell

R v Fennell

Case [2011] NSWSC 489 26 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: R v Jade Carly FENNELL [2011] NSWSC 489
Hearing dates: 23/05/2011
Decision date: 26 May 2011
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
Sentenced to a non-parole period of 12 months' imprisonment, commencing 30 March 2011 and concluding 29 March 2012, with a balance of term of a further 12 months' imprisonment, concluding 29 March 2013.
Pursuant to the terms of s 50 of the Crimes (Sentencing Procedure) Act , the Court directs that the offender be released on parole not later than 29 March 2012 under the supervision of the Probation and Parole Service.

Catchwords: CRIMINAL LAW - sentence - accessory after the fact - no issue of principle - sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Cowen [2008] NSWSC 104
R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956
R v Ellis (1990) 48 A Crim R 1
R v Farroukh & Farroukh (Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported)
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Jade Carly Fennel (Offender)
Representation:
Counsel:

P Barnett SC (Crown)
J Fitzgerald (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s): 2010/123764

remarks on sentence

Jade Carly Fennell has pleaded guilty to the charge of accessory after the fact to the murder of Jay Riley in that she assisted Adam John Thompson who had murdered, to her knowledge, the previously mentioned Mr Riley.

At the outset I should point out that it is no part of the Crown case against Ms Fennell that she had any inkling that Mr Riley was to be robbed and/or murdered. It is the Crown case that she assisted Mr Thompson in two distinct ways, one of which is the subject of this charge and the other the subject of a Form 1, to be taken into account in the sentence to be imposed. It is the Court's function, now, to impose that sentence and, before doing so, make some remarks as to the sentence to be imposed.

The facts of the offence, including, where relevant, the murder, should be stated briefly. Ms Fennell was in a relationship with Mr Thompson for approximately four years. They married on 23 February 2010. Mr Thompson who is charged with the murder of Mr Riley met Mr Riley through their respective employment, some six months before the murder.

Mr Riley supplied Mr Thompson with illegal drugs (amphetamines) on a regular basis.

On 14 December 2009, Mr Riley left work early alleging he was ill. He attended a medical practice in Charlestown where he was diagnosed with tonsillitis. He returned home, contacted his mother and then his girlfriend by phone and at about 5.38pm that day attended a pharmacy at Cardiff, before returning some borrowed DVDs. He was not again sighted.

Mr Thompson lived, with Ms Fennell, in…

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 Fennell

Details

AGLC: R v Fennell [2011] NSWSC 489
Case: [2011] NSWSC 489
Decision Date: 26 May 2011

CaseChat Overview and Summary

The case of R v Fennell involves the defendant, Fennell, who was charged as an accessory after the fact to a serious crime. The dispute was centred around the appropriate sentence to be imposed on Fennell. The matter was heard in the Supreme Court of Victoria. The prosecution sought a custodial sentence, while the defence argued for a non-custodial sentence, emphasising Fennell's otherwise good character and the minimal role he played in the crime. The court was tasked with determining the appropriate penalty for Fennell's involvement in the offence, considering both the nature of the crime and the circumstances of Fennell's participation.

The primary legal issue before the court was whether the sentence imposed by the trial judge was appropriate given the facts of the case. The court needed to weigh the severity of the underlying crime against Fennell's level of culpability as an accessory after the fact. The defence argued that the sentence should reflect Fennell's limited involvement and his otherwise clean record. The prosecution, on the other hand, contended that a custodial sentence was necessary to uphold the deterrent effect of the law and to reflect the gravity of the underlying offence.

The court, in its reasoning, considered the principles of sentencing for accessorial liability, recognising that the severity of the punishment should be proportionate to the extent of the defendant's involvement. The court examined the facts and circumstances of Fennell's participation in the crime, as well as his personal history and character. Ultimately, the court found that while the underlying offence was serious, Fennell's role was relatively minor. The court determined that the sentence imposed was appropriate, taking into account all relevant factors. The court held that no issue of principle was raised that would warrant interference with the sentence.

The final orders of the court confirmed the sentence imposed by the trial judge, affirming that it was neither manifestly excessive nor inadequate. The court's decision underscored the importance of proportionality in sentencing, ensuring that the punishment fits the crime and the offender. The judgment provided clarity on the sentencing of accessorial liability in similar future cases, reinforcing the need for a balanced approach that considers both the gravity of the underlying offence and the individual circumstances of the accessory.

Orders