COUNSEL: G E Smith (Crown) A C Haesler (Respondent)
SOLICITORS: S E O'Connor (Crown) Western Aboriginal Legal Service (Respondent)
CATCHWORDS: CRIMINAL LAW sentencing Crown appeal against leniency of sentence whether sentence manifestly inadequate consideration of objective gravity of offences against subjective circumstances of offender whether subjective considerations given too much weight CRIMINAL LAW sentencing Crown appeal against leniency of sentence whether commission of offences while on parole considered
DECISION: Appeal allowed. Respondent sentenced for four counts of armed robbery to six years commencing 5 January 2001 with a non-parole period of three years. Respondent sentenced to five years commencing 5 January 2002 with a non-parole period of three years for attempting to use an offensive weapon to prevent lawful apprehension. Respondent sentenced for one count of armed robbery to six years commencing 5 January 2002 with a non-parole period of three years.
JUDGMENT:
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IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL
60171/01
SPIGELMAN CJ WOOD CJ at CL KIRBY J
Friday 22 February 2002
REGINA v Stanley John FERNANDO
The Respondent was sentenced in the District Court for six offences to which he had entered a plea of guilty. The offences were four counts of armed robbery, one count of assault with intent to rob when armed with an offensive weapon and one count of use of an offensive weapon to prevent lawful apprehension. Two other offences – one of armed robbery, the other, assault – were also taken into account. The District Court judge sentenced the Respondent to a total of six years with a non-parole period of three years, commencing from the date of arrest.
The Crown appealed against the sentences, claiming that they were manifestly inadequate and that the District Court judge had failed to give adequate weight to the aggravating factor that the offences were committed while the offender was on parole.
Held per Spigelman CJ, Wood CJ at CL and Kirby J agreeing Commission of offences on parole
The District Court judge failed to give consideration to the fact that the offences were committed while the Respondent was on parole. This constituted an error of law in the sentencing process.
R v Richards [1981] 2 NSWLR 464; R v Readman (1990) 47 ACrimR 181; R v Vranic (NSWCCA, 7 May 1991, unreported) referred to.
Manifest inadequacy
The sentences imposed gave insufficient weight to the gravity of the offences, including considerations of the vulnerability of the victims and the terror occasioned by the threat of a syringe. The District Court judge gave excessive weight 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.
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AGLC
R v Fernando [2002] NSWCCA 28
Case
[2002] NSWCCA 28
Decision Date
CaseChat Overview and Summary
The matter of R v Fernando was heard by the Court of Appeal, where the Crown appealed against the sentence imposed on Fernando for his criminal activities. The primary issue was the perceived leniency of the sentence given Fernando's criminal conduct, which included a series of offences committed while he was on parole. The Crown argued that the sentence was manifestly inadequate, especially considering the objective gravity of the offences committed against the subjective circumstances of Fernando.
The court examined whether the primary judge had given too much weight to Fernando's personal circumstances, such as his age, background, and efforts to rehabilitate, when determining the sentence. The court considered the need to balance the objective gravity of the crimes against the subjective circumstances of the offender and whether the sentence reflected an appropriate punishment for the serious nature of the crimes committed. The court also considered whether the fact that the offences were committed while Fernando was on parole should have been given greater weight in the sentencing decision.
The Court of Appeal found that the sentence was indeed manifestly inadequate, as it did not adequately reflect the gravity of Fernando's criminal conduct. The court held that while the subjective circumstances of the offender should be considered, they should not overshadow the objective seriousness of the crimes committed. The court found that the primary judge had given too much weight to Fernando's personal circumstances and not enough consideration to the objective gravity of the offences. The appeal was therefore allowed, and the matter was remitted back to the sentencing court for reconsideration of the appropriate sentence.
In conclusion, the Court of Appeal determined that the original sentence was manifestly inadequate, and the matter was remitted back for reconsideration. The court emphasised the need for a balanced approach in sentencing, taking into account both the objective gravity of the offences and the subjective circumstances of the offender. The court also highlighted the importance of considering the fact that the offences were committed while Fernando was on parole.