R v Fenner - [2020] NSWDC 732

District Court

New South Wales

Medium Neutral Citation: R v Fenner [2020] NSWDC 732
Hearing dates: 17 September 2020
Date of orders: 9 October 2020
Decision date: 09 October 2020
Jurisdiction: Criminal
Before: Weber SC DCJ
Decision:
(1) The offender is convicted of the offences which bring him before the Court.
(2) The offender is sentenced to a term of imprisonment of three years and nine months, with a non-parole period of two years and three months.
(3) The Court directs that the term of imprisonment shall commence on 9 October 2020 and that the non-parole period shall expire on 8 January 2023, with the balance to expire on 8 July 2024.

Catchwords:
CRIME — Child sex offences — Sexual intercourse with a young person between 16 and 18 under special care – where the offender was the victim’s teacher
SENTENCING — Objective seriousness — gross breach of trust — the degree of planning — degree of grooming — the nature and number of the acts
SENTENCING — Mitigating factors — Plea of guilty — Remorse and contrition — Rehabilitation — Unlikely to re-offend – where good character and lack of criminal record are not available as a mitigating factors as these are likely to have been within the contemplation of the legislature to be inherent in this offence
SENTENCING — Relevant factors on sentence — Form 1 offences — Deterrence — General deterrence

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

Cases Cited:
Dimian v R [2016] NSWCCA 223
Markarian v The Queen (2005) 228 CLR 357
R v Tadrosse (2005) 65 NSWLR 740

Category: Sentence
Parties: Regina (Crown)
Ben Fenner (Offender)
Representation: Solicitors:
Mr R Kimbell (Crown)
Mr P Gibson (Offender)

File Number(s): 2019/224795
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, and upon the grounds set out in s 8 (1) (d) of that Act, by order of the Court dated 23 July 2020, that there be no publication of the victim’s name.
Pursuant to s 578A (2) of the Crimes Act 1900, that there be no publication of any matter which identifies the complainant, or of any material likely to lead to the identification of the complainant.

Judgment

The offender comes before the Court for sentence, having pleaded guilty to seven counts of sexual intercourse with a young person under his special care and who is of or above the age of 17 years and under the age of 18 years. This is conduct contrary to the provisions of s 73 (2) of the Crimes Act 1900 (NSW) (“Crimes Act”). This offence carries a maximum penalty of four years’ imprisonment. There is no applicable standard non-parole period.
The offender also asks the Court to take into account eight similar offences on a Form 1. These are also offences contrary to s 73 (2) of the Crimes Act. The Form 1 offences are serious in and of themselves, and have been attached to…

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 Fenner

Details

AGLC: R v Fenner [2020] NSWDC 732
Case: [2020] NSWDC 732
Decision Date: 09 October 2020

CaseChat Overview and Summary

In the case of R v Fenner, the defendant was charged with engaging in sexual acts with a student aged between 16 and 18 years who was under his care. The relationship between the teacher and the student had crossed legal boundaries, and the court was tasked with addressing the severe breach of trust and the objective seriousness of the crime. The court was also required to consider the degree of planning and grooming involved, as well as the nature and number of the acts committed. The legal issues before the court involved determining the appropriate sentence, considering both the aggravating and mitigating factors present in the case.

The court identified several key legal issues that needed to be addressed. It had to assess the objective seriousness of the offence, including the gross breach of trust and the degree of planning and grooming. The court also had to consider the nature and number of the sexual acts, as well as any mitigating factors such as the defendant’s plea of guilty, his remorse, and the likelihood of rehabilitation and re-offending. Given that the victim was in a position of special care to the defendant, these factors had to be weighed heavily in the sentencing process. Furthermore, the court had to consider the broader objective of sentencing in terms of deterrence.

The court concluded that the objective seriousness of the crime warranted a significant sentence. It found that the gross breach of trust and the nature of the grooming and planning involved were severe. The defendant’s plea of guilty and the expression of remorse were recognised as mitigating factors, but the court noted that these factors were likely within the contemplation of the legislature when setting the penalties for this type of offence. The court sentenced the defendant to a term of imprisonment of three years and nine months, with a non-parole period of two years and three months. The sentence was intended to serve both as a punishment for the defendant and a deterrent to others in similar circumstances.

Orders

Orders of the court

(1) The offender is convicted of the offences which bring him before the Court.

(2) The offender is sentenced to a term of imprisonment of three years and nine months, with a non-parole period of two years and three months.

(3) The Court directs that the term of imprisonment shall commence on 9 October 2020 and that the non-parole period shall expire on 8 January 2023, with the balance to expire on 8 July 2024.

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 Fenner [2020] NSWDC 732
Hearing dates:	17 September 2020
Date of orders:	9 October 2020
Decision date:	09 October 2020
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	(1) The offender is convicted of the offences which bring him before the Court. (2) The offender is sentenced to a term of imprisonment of three years and nine months, with a non-parole period of two years and three months. (3) The Court directs that the term of imprisonment shall commence on 9 October 2020 and that the non-parole period shall expire on 8 January 2023, with the balance to expire on 8 July 2024.
Catchwords:	CRIME — Child sex offences — Sexual intercourse with a young person between 16 and 18 under special care – where the offender was the victim’s teacher SENTENCING — Objective seriousness — gross breach of trust — the degree of planning — degree of grooming — the nature and number of the acts SENTENCING — Mitigating factors — Plea of guilty — Remorse and contrition — Rehabilitation — Unlikely to re-offend – where good character and lack of criminal record are not available as a mitigating factors as these are likely to have been within the contemplation of the legislature to be inherent in this offence SENTENCING — Relevant factors on sentence — Form 1 offences — Deterrence — General deterrence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Dimian v R [2016] NSWCCA 223 Markarian v The Queen (2005) 228 CLR 357 R v Tadrosse (2005) 65 NSWLR 740
Category:	Sentence
Parties:	Regina (Crown) Ben Fenner (Offender)
Representation:	Solicitors: Mr R Kimbell (Crown) Mr P Gibson (Offender)
File Number(s):	2019/224795
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, and upon the grounds set out in s 8 (1) (d) of that Act, by order of the Court dated 23 July 2020, that there be no publication of the victim’s name. Pursuant to s 578A (2) of the Crimes Act 1900, that there be no publication of any matter which identifies the complainant, or of any material likely to lead to the identification of the complainant.