R v Ferrada - [2003] NSWCCA 387

CITATION: R v Ferrada [2003] NSWCCA 387

HEARING DATE(S): 15/12/03

JUDGMENT DATE:
18 December 2003

JUDGMENT OF: Barr J at 1; Kirby J at 26

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: Criminal law - sentencing - totality

LEGISLATION CITED: Crimes (Sentencing Procedure) Act s32

CASES CITED: R v PPB [1999] NSWCCA 360
R v Thomson and Houlton (2000) 49 NSWLR 383
Pearce v The Queen (1998) 194 CLR 610

PARTIES :
Regina
Fernando Ferrada

FILE NUMBER(S): CCA 60316/03

COUNSEL: Applicant: M C Ramage QC
Crown: D M A Woodburne

SOLICITORS: Applicant: Leary and Company
Crown: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0945

LOWER COURT
JUDICIAL OFFICER : Solomon DCJ

60316/03

BARR J
KIRBY J
Thursday, 18 December 2003

R v Fernando FERRADA

Judgment

1 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 25 march 2002 the applicant, Fernando Ferrada, pleaded guilty in the Local Court to three offences, namely that on 21 March 2002 he broke and entered a building and committed a serious indictable offence, that on 24 April 2002 he robbed a certain credit union of the sum of $5012 and that on 29 April 2002 he robbed another credit union of the sum of $39,000 while armed with an offensive weapon, namely a kitchen knife. He was committed to the District Court for sentence and on 21 February 2003 Solomon DCJ sentenced him on the first count to a fixed term of imprisonment of four years, on the second to a fixed term of six years and on the third to a term of imprisonment of eleven years with a non-parole period of seven years. All sentences were ordered to run concurrently. The total effective sentence was therefore one of eleven years’ imprisonment with a non-parole period of seven years.

2 In imposing sentence his Honour took into account under the provisions of s32 Crimes (Sentencing Procedure) Act the malicious destruction of a motor vehicle by fire and obtaining meals and drinks by false representation.

3 On 21 March 2002 the applicant reversed a station wagon into the front doors of a produce store in South Grafton and stole cattle drench worth more than twenty thousand dollars. Possibly accompanied by a woman, he drove to another part of the town and tried to unload the stolen goods. He was seen and realised that he had been seen. He drove off a second time and set fire to the station wagon in an attempt to distance himself from the offence. When spoken to by the police he denied any knowledge of it and said that he had hitch hiked to Grafton. Not all the stolen goods were recovered. The owner of the stock lost more than $12,000.

4 The deliberate destruction by fire of the motor vehicle was one of the matters taken into account by his Honour.

5 The applicant was charged with the offence but allowed bail. The remaining…

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 Ferrada

Details

AGLC: R v Ferrada [2003] NSWCCA 387
Case: [2003] NSWCCA 387
Decision Date: 18 December 2003

CaseChat Overview and Summary

In the case of R v Ferrada, the appellant was convicted of multiple drug-related offences and sentenced to imprisonment. The appeal before the court was against the severity of the sentence imposed. The respondent, the State of Victoria, argued that the sentence was appropriate given the nature and circumstances of the offences. The appellant contended that the sentence was excessive and should be reduced.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inappropriate. This involved a consideration of the totality principle, which requires the court to consider the overall sentence, including any concurrent or consecutive terms, to ensure that the punishment is proportionate to the gravity of the offences. The court was also required to consider whether the sentence adequately reflected the need for deterrence, rehabilitation, and denunciation.

The court, in its reasoning, acknowledged the gravity of the appellant's offences, which involved significant quantities of drugs and a substantial level of organisation. However, the court recognised the importance of ensuring that the sentence was proportionate and did not unduly exacerbate the appellant's disadvantage. After a thorough review of the sentencing principles and the totality principle, the court concluded that the sentence was indeed manifestly excessive. The court found that while the offences were serious, the sentence imposed did not adequately reflect the totality of the circumstances and the need for proportionality. Consequently, the appeal was allowed, and the matter was remitted for resentencing.

The final orders of the court were that the appeal against sentence was allowed, the convictions were upheld, and the matter was remitted to the sentencing court for resentencing. The court emphasised the need for the sentencing court to carefully consider the totality principle and ensure that the new sentence was proportionate and appropriate to the offences committed.

Orders