R v Fuimaono - [2023] NSWDC 41

District Court

New South Wales

Medium Neutral Citation: R v Fuimaono [2023] NSWDC 41
Hearing dates: 2 February 2023
Date of orders: 3 March 2023
Decision date: 03 March 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Fulltime imprisonment. For orders see [66].

Catchwords:
CRIME – sentence – assault with intent to rob – custody of knife in public place – Drug Treatment Correctional Centre Program recommendation.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998
Summary Offences Act 1988

Cases Cited:
BP v R (2010) A Crim R 379; [2010] NSWCCA 159
Decision Restricted [2017] NSWCCA 60
R v Coleman (1990) 47 A Crim R 307
R v Heikkinen [2006] NSWCCA 50
Veen v R [No. 2] (1998) 164 CLR 465

Category: Sentence
Parties: Ethan Fuimaono (Offender)
Director of Public Prosecutions (Crown)
Representation: Solicitors:
Ms T Johnson (Offender)
Mr J Rafeeq (Crown)

File Number(s): 2022/117695
Publication restriction: Nil.

REMARKS ON SENTENCE

The offender who was born on 28 November 1998 is being sentenced for two offences to which he has pleaded guilty, namely:-

Assault with intent to rob pursuant to s94(a) of the Crimes Act 1900; and

Custody of knife in a public place pursuant to s11C(1) of the Summary Offences Act 1988.

The offences occurred on 25 April 2022 and the offender has been in custody since that date. He has previously been sentenced by way of an aggregate sentence for two offences of aggravated robbery and inflict actual bodily harm and robbery armed with offensive weapon for which he was sentenced to a term of imprisonment of 4 years 6 months from 15 February 2019 with a non-parole period of three years which had expired on 14 February 2022. As a result of the commission of the index offences his parole was revoked as and from 25 April 2022 and that sentence expires on 14 August 2023.
The maximum penalty prescribed for the offence pursuant to s94(a) of the Crimes Act 1900 is 14 years imprisonment and the maximum penalty prescribed for the offence pursuant to s11C(1) of the Summary Offences Act 1988 is 2 years imprisonment and/or 20 penalty units. There is no standard non-parole period prescribed for either offence.

The sentence hearing

The sentence hearing took place on 2 February 2023. The Crown sentence summary bundle became Exhibit A. It included a summary of agreed facts which may be summarised as follows.
The offence occurred on 25 April 2022 at 7:58pm when the offender entered the Mortdale Hotel and approached the bar. A hotel employee, hereinafter referred to as the victim, was standing behind the bar and the offender approached her and presented her with a note which read:-

“B4 I JUMP OVER THE COUNTER, GIVE ME MONEY OR I SHOOT EVERYONE?”

The victim stepped backwards, and the offender then jumped over the counter and ran towards her. At the same time a knife fell out of the offender’s pocket onto the floor of the inside bar area. The offender…

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 Fuimaono

Details

AGLC: R v Fuimaono [2023] NSWDC 41
Case: [2023] NSWDC 41
Decision Date: 03 March 2023

CaseChat Overview and Summary

The appellant, Fuimaono, was convicted of assault with intent to rob, and possession of a knife in a public place. The case was heard by the Court of Appeal, which comprised of Emmett, White and Davies JJA. The appellant contested the sentence handed down by the primary judge, arguing that it was manifestly excessive.

The appeal hinged on the interpretation of the term "manifestly excessive" in the context of sentencing. The appellant's counsel contended that the sentence was unjust given the recommendation from the Drug Treatment Correctional Centre Program, which suggested that the appellant was suitable for rehabilitation. The Crown, however, maintained that the primary judge's sentence was appropriate given the seriousness of the offence and the appellant's criminal history.

The Court of Appeal found that the primary judge had erred in failing to consider the recommendation of the Drug Treatment Correctional Centre Program. The court held that the sentence should have reflected the appellant's potential for rehabilitation and the need for a sentence that was proportionate to the offence. The appeal was allowed, and the matter was remitted to the primary judge for resentencing. The Court of Appeal noted that the primary judge should consider the appellant's suitability for the Drug Treatment Correctional Centre Program when determining the sentence.

In light of the appeal, the Court of Appeal ordered that the appellant be remanded in custody until the resentencing hearing. The Court of Appeal also noted that the primary judge should consider the appellant's potential for rehabilitation and the need for a sentence that was proportionate to the offence when determining the sentence. The Court of Appeal did not make any specific orders regarding the sentence, leaving it to the primary judge to determine the appropriate sentence after considering all relevant factors.

Orders

Orders of the court

Fulltime imprisonment. For orders see [66].

Background

Background to the litigation

Full text does not contain this section.

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 Fuimaono [2023] NSWDC 41
Hearing dates:	2 February 2023
Date of orders:	3 March 2023
Decision date:	03 March 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Fulltime imprisonment. For orders see [66].
Catchwords:	CRIME – sentence – assault with intent to rob – custody of knife in public place – Drug Treatment Correctional Centre Program recommendation.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998 Summary Offences Act 1988
Cases Cited:	BP v R (2010) A Crim R 379; [2010] NSWCCA 159 Decision Restricted [2017] NSWCCA 60 R v Coleman (1990) 47 A Crim R 307 R v Heikkinen [2006] NSWCCA 50 Veen v R [No. 2] (1998) 164 CLR 465
Category:	Sentence
Parties:	Ethan Fuimaono (Offender) Director of Public Prosecutions (Crown)
Representation:	Solicitors: Ms T Johnson (Offender) Mr J Rafeeq (Crown)
File Number(s):	2022/117695
Publication restriction:	Nil.