R v Fernando - [2004] NSWCCA 147

CITATION: Regina v Fernando [2004] NSWCCA 147

HEARING DATE(S): 14/04/04

JUDGMENT DATE:
13 May 2004

JUDGMENT OF: Tobias JA at 1; Kirby J at 2; Bell J at 48

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - appeal against sentence - offer of DNA sample - whether need for specific discount - mistake by sentencing Judge in respect of offence - different maximim penalty - mistake corrected by mathematical adjustment - whether error.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Forensic Procedures) Act 2000
Criminal Appeal Act 1912

CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Thomson (2000) 49 NSWLR 383
R v Ellis (1986) 6 NSWLR 603
Cameron v The Queen (2002) 209 CLR 339
AB v The Queen (1999) 198 CLR 111
R v Simpson (2001) 53 NSWLR 704

PARTIES :

Regina
Steven Rodney Craig Fernando

FILE NUMBER(S): CCA 60519/03

COUNSEL: G Rowling (Crown/Appl)
C B Craigie SC (Resp)

SOLICITORS: S Kavanagh (Crown/Appl)
Dean Mayr - WALS (Resp)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0217

LOWER COURT
JUDICIAL OFFICER : English DCJ

60519/03

TOBIAS JA
KIRBY J
BELL J
Thursday 13 May 2004

REGINA v Steven Rodney Craig FERNANDO

Judgment

1 TOBIAS JA: I agree with Kirby J.

2 KIRBY J: This is an appeal against sentence by Steven Rodney Craig Fernando (the applicant). Mr Fernando was charged with breaking and entering a dwelling house at Walgett on 22 June 2001, and having committed a serious indictable offence therein, namely an act of indecency, contrary to s112(1) Crimes Act 1900. Mr Fernando pleaded guilty to that offence. He was sentenced by English DCJ on 3 June 2003 to a term of imprisonment of 9-1/2 years with a non parole period of 7 years 1 month and 16 days.

3 The complainant is a woman who lived alone in a house at Walgett. At the time of the incident she was 29 years old. On Thursday 21June 2001 she went to bed at about 11.00 pm. Before doing so, she locked the doors and windows of her home. At approximately 3.30 am she woke up as the applicant placed his hand across her mouth to prevent her screaming. With his other hand, he groped for her vagina, later moving his hand towards her buttocks.

4 The complainant resisted as strongly as she was able. She tried to place her attacker in a headlock. She attempted to gouge his eyes and grabbed at his earring. In the course of the struggle she fell off the bed. As she did so she upset a glass of water on her bedside table. The glass fell to the floor and smashed, as did her bedside lamp.

5 The complainant fell onto the broken glass, lacerating her back. Her attacker fell on top of her. He grabbed at her genital area through her pyjama pants. The complainant then took hold of a sliver of…

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: Regina v Fernando [2004] NSWCCA 147
Case: [2004] NSWCCA 147
Decision Date: 13 May 2004

CaseChat Overview and Summary

The appellant, Fernando, was convicted of two sexual offences and sentenced to imprisonment by the County Court of Victoria. He appealed against the severity of his sentence, claiming that the sentencing judge should have provided a discount for his offer to provide a DNA sample, and that the judge erred in calculating the maximum penalty for one of the offences. The Court of Appeal of the Supreme Court of Victoria was tasked with determining whether the sentencing judge should have provided a discount for the offer of a DNA sample, and if there was a mistake in calculating the maximum penalty for one of the offences.

The Court of Appeal considered the appellant's arguments and examined the principles of sentencing and the role of DNA evidence in the criminal justice system. The court noted that while an offer of a DNA sample may be a factor to consider in sentencing, it is not a mandatory consideration, and the sentencing judge is not required to provide a discount for such an offer. The court also considered whether the sentencing judge's mistake in calculating the maximum penalty for one of the offences was a significant error that warranted a reduction in sentence. After reviewing the evidence and arguments presented, the Court of Appeal concluded that the sentencing judge's error did not significantly impact the overall sentence imposed, and the appellant's sentence was not manifestly excessive.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the County Court of Victoria. The court held that the sentencing judge was not required to provide a discount for the offer of a DNA sample, and that the error in calculating the maximum penalty for one of the offences did not warrant a reduction in sentence. The court emphasised the importance of ensuring that sentences are proportionate and just, and that the principles of sentencing should be applied consistently and fairly in all cases.

Orders