R v Fernando - [2001] NSWSC 294

CITATION: R v Fernando [2001] NSWSC 294

FILE NUMBER(S): SC 70083/2000

HEARING DATE(S): 1/2/01, 23/3/01

JUDGMENT DATE:
20 April 2001

PARTIES :

R v Vester Allan Fernando

JUDGMENT OF: Howie J at 1

COUNSEL : Mr P. Dare (Crown)
Mr J. Nicholson SC (Accused)

SOLICITORS: S.E. O' O'Connor (Crown)
Central-Southern Aboriginal Corporation (Accused)

LEGISLATION CITED: Justices Act 1902 - s 51A
Crimes (Sentencing Procedure) Act - s 61

CASES CITED: R v Kamotu, Johnson and Siaa (CCA(NSW) 24/8/95, unreported)
George and Price (1981) 4 A Crim R 12
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v Harris [2000] NSWCCA 469
R v Petroff (NSWSC, unreported, 12/11/91)
R v Garforth (NSWCCA, unreported, 23 /5/94)
Bugmy v The Queen (1990) 169 CLR 525
Veen v The Queen (No. 1) (1979) 143 CLR 458

DECISION: The prisoner is sentenced to imprisonment for 30 years with a non-parole period of 22 years. The sentence is to commence from 22/9/99. The non-parole period will expire on 21/9/2021 the date upon which he is to be considered for release to parole subject to any other sentence he may be serving at the time.

THE SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

FRIDAY 20 APRIL 2001

70083/00 - REGINA v VESTER ALLAN FERNANDO

SENTENCE

1 HIS HONOUR: On 22 September 1999 the prisoner, Vester Allan Fernando, stabbed to death his cousin, Brendan Fernando. At the time of the stabbing the prisoner and the deceased were each serving a life sentence for murder at the Lithgow Correctional Centre.

2 The prisoner pleaded guilty in the Local Court to a charge of murdering his cousin and was committed for sentence to this Court under the provisions of s 51A of the Justices Act 1902. In order to expedite the matter, an indictment containing one count of murder was presented to this Court on 8 December 2000 and on his arraignment the prisoner pleaded guilty to that charge. The matter was stood over for sentence and came before me for hearing on 1 February 2001.

3 On that date the Crown tendered a statement of facts and a number of witness statements without objection from Mr Nicholson SC who appeared for the prisoner. Mr Nicholson tendered a statement of a witness and that was the close of the evidence. During the course of submissions by Mr Nicholson, it became clear that he was contending that I should impose a determinate sentence upon the prisoner which sentence would be served concurrently with the life sentence which the prisoner was serving at the time of the murder. When I indicated that I was concerned at the lack of any material relating to the personal circumstances of the prisoner in evidence before me, Mr Nicholson sought an adjournment so that such material might be obtained.

4 The Crown indicated that it accepted that it was within my discretion to impose a determinate sentence in this matter and, therefore, did not oppose the adjournment. I indicated that…

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 Fernando

Details

AGLC: R v Fernando [2001] NSWSC 294
Case: [2001] NSWSC 294
Decision Date: 20 April 2001

CaseChat Overview and Summary

The case of R v Fernando involved Vester Allan Fernando, who murdered his cousin, Brendan Fernando, while both were serving life sentences for a previous murder. The matter was heard in the Supreme Court of New South Wales, Criminal Division, before Howie J. The central issue was the sentencing of Fernando for the murder of his cousin, with a particular focus on whether a life sentence was warranted. The court also considered the relevance of Fernando’s prior conviction for murder and the aggravating factors of the crime, such as the premeditated nature of the attack and the circumstances within the prison environment.

Fernando had armed himself before entering the prison auditorium where the stabbing occurred, indicating a premeditated act. The court found that the attack was driven by Fernando’s belief that his cousin had falsely implicated him in a previous murder, leading to his current life sentence. The judge acknowledged that while the offence was heinous, the principles of Veen v The Queen (No 2) suggested that a life sentence should be reserved for the most severe cases. The court also considered Fernando’s prior criminal history, his lack of remorse, and the need for general and specific deterrence. Despite these factors, the court decided against imposing a life sentence, instead sentencing Fernando to 30 years in prison with a non-parole period of 22 years. This sentence commenced from the date of the murder, 22 September 1999, with the non-parole period expiring on 21 September 2021, subject to any other sentences Fernando may be serving.

Orders