R v Les Ferenc - [2009] NSWCCA 126

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Les FERENC [2009] NSWCCA 126

FILE NUMBER(S):
2008/8131

HEARING DATE(S):
23/04/2009

EX TEMPORE DATE:
23 April 2009

PARTIES:
Regina v Les Ferenc

JUDGMENT OF:
Grove J Howie J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/8131

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
17/02/2009

COUNSEL:
P A Leask - Crown
A Haesler SC - Respondent

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent

CATCHWORDS:
Criminal Law - Crown appeal on sentence - Aggravated robbery by offender on parole - whether judge erred in assessing the offence as in the low range - whether sentence manifestly inadequate by being substantially concurrent with balance of parole - whether Court should resentence the respondent.

LEGISLATION CITED:
Crimes Act 1900 - ss 95(1), 97(1)
Crimes (Sentencing Procedure) Act 1999 - s 3A

CATEGORY:
Principal judgment

CASES CITED:
R v Henry (1999) 46 NSWLR 346
R v Li (NSWCCA, 9 July 1997, unreported)
Azzi v R [2008] NSWCCA 169
R v Tortell and Tsegay [2007] NSWCCA 313
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Markarian v The Queen [2005] HCA 25; 228 CLR 357

TEXTS CITED:

DECISION:
1. The appeal is allowed and the sentence imposed in the District Court is quashed. 2. The respondent is sentenced to a term of imprisonment of 4 years 3 months. There is to be a non-parole period of 3 years. The sentence is to date from 1 May 2008. The respondent is eligible to be released to parole on 30 April 2011. There is a balance of term of 15 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/8131
GROVE J
HOWIE J
RA HULME J
THURSDAY 23 APRIL 2009

REGINA v Les FERENC

Judgment

GROVE J: The court is now in a position to deliver judgment in this matter. I ask Justice Howie to deliver the first judgment.
HOWIE J: This is a Crown appeal in respect of a sentence imposed upon the respondent in the District Court by Johnstone DCJ (the Judge) on a charge of aggravated robbery. That was an offence contrary to s 95(1) of the Crimes Act and carried a maximum penalty of imprisonment for 20 years. On 17 February 2009 the respondent was sentenced to a term of imprisonment comprising a non-parole period of 18 months with a balance of term of 12 months. The sentence dated from 1 May 2008 and the respondent is to be released to parole on 31 October 2009.
The Crown appeal was filed on 27 February 2009 and served on the respondent on 2 March 2009.
The facts can be stated briefly. At about 11.30pm on Saturday 29 December 2007, the respondent ordered pizzas to be delivered to a house in Granville. About 20 minutes later the pizzas were delivered by the victim, a 19 year old male. The respondent led the victim into a room of the house…

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 Les Ferenc

Details

AGLC: R v Les Ferenc [2009] NSWCCA 126
Case: [2009] NSWCCA 126
Decision Date: 23 April 2009

CaseChat Overview and Summary

In the case of R v Les Ferenc, the defendant, Les Ferenc, was convicted of aggravated robbery while on parole for a previous offence. The Crown appealed the sentence imposed by the trial judge, arguing it was inadequate. The case was heard in the court of appeal. The central issues for the court to determine were whether the trial judge had erred in assessing the gravity of the offence, whether the sentence was manifestly inadequate due to its substantial concurrency with the balance of parole, and whether the court should resentence the respondent.

The court of appeal examined the sentencing principles and the trial judge's assessment of the aggravating factors present in the offence. It considered whether the judge had appropriately evaluated the circumstances of the aggravated robbery and the defendant's criminal history, particularly his status as a parolee at the time of the offence. The court also scrutinised the proportionality of the sentence in relation to the severity of the crime and the principle of deterrence. It found that the trial judge had indeed erred in assessing the offence as being in the low range, given the significant aggravating factors. The court concluded that the sentence was manifestly inadequate because it did not sufficiently account for the seriousness of the crime or the need to uphold public confidence in the criminal justice system.

Consequently, the court of appeal determined that the original sentence should be set aside and a new sentence imposed. The respondent was to be resentenced to reflect a more appropriate punishment for the aggravated robbery committed while on parole. The court emphasised the importance of ensuring that sentences for serious crimes, particularly those committed by individuals on parole, adequately reflect the gravity of the offence and serve as a deterrent to others in similar circumstances.

Orders