R v Richard Fojt - [2011] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Richard Fojt [2011] NSWCCA 20
Hearing dates: 10 December 2010
Decision date: 25 February 2011
Before: Simpson J at 1
Blanch J at 2
Garling J at 3
Decision:
(1) Appeal allowed.
(2) Set aside the sentence imposed in the District Court of NSW by English DCJ on 9 July 2010.
(3) In lieu thereof, Mr Fojt is sentenced to a non-parole period of 3 years and 9 months commencing on 22 September 2009. He is sentenced to a balance of the term of 1 year and 9 months. The entire sentence will expire on 21 March 2015.
(4) The first date upon which Mr Fojt will be eligible for release is 21 June 2013.

Catchwords: CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Aggravated break, enter and commit serious indictable offence (wound with intent to cause grievous bodily harm) - Reckless wounding - Where the offender engaged in a violent knife attack on the victims in their home - Where numerous people tried repeatedly to stop the offender from proceeding to the home of his victims - Whether the sentencing judge failed to determine the objective seriousness of the offences - Whether the sentencing judge erred in determining the objective seriousness to be below mid-range - Principles for the accumulation or concurrency of sentences - Whether sentence was manifestly inadequate.
Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1900
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Hili v The Queen; Jones v The Queen [2010] HCA 45 (8 December 2010)
Mirza v R [2007] NSWCCA 248
Mulato v R [2006] NSWCCA 282
R v Knight; R v Biuvanua [2007] NSWCCA 283
R v McEvoy [2010] NSWCCA 110
R v MMK (2006) 164 ACrimR 481
R v Wilson [2005] NSWCCA 219
Category: Principal judgment
Parties: Regina (Crown)
Richard Fojt (Respondent)
Representation: Counsel:
Mr Pickering (Crown)
Ms Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Respondent)

File Number(s): CCA 2009/211871
Decision under appeal

Jurisdiction:

9101

Citation:

R v Richard Fojt

Date of Decision:

2010-07-09 00:00:00

Before:

English DCJ

File Number(s):

2009/211871

Judgment

SIMPSON J: I agree with Garling J.

BLANCH J: I agree with Garling J.

GARLING J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 in respect of two sentences imposed by English DCJ on 9 July 2010.

The respondent, Mr Richard Fojt, pleaded guilty to one count of a specially aggravated break, enter and commit serious indictable offence (wound with intent to cause grievous bodily harm) contrary to s 112(3) of the Crimes Act 1900, and one count of reckless wounding contrary to s 35(4).

The offences related to an incident on the evening of 22 September 2009, in which Mr Fojt broke into the home of Mr David Watson and attacked him and his partner Ms Lisa Stuckey with a kitchen knife.

The maximum penalty for the s 112(3) offence…

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 Richard Fojt

Details

AGLC: R v Richard Fojt [2011] NSWCCA 20
Case: [2011] NSWCCA 20
Decision Date: 25 February 2011

CaseChat Overview and Summary

The appeal before the Court was brought by the Crown, seeking a review of the sentence imposed on Richard Fojt, who had been found guilty of aggravated break, enter and commit serious indictable offence, namely, wounding with intent to cause grievous bodily harm. The incident in question involved a violent knife attack on the victims in their home, despite numerous people attempting to intervene and prevent the offender from reaching the victims. The Crown argued that the sentencing judge had erred in determining the objective seriousness of the offence and that the sentence imposed was manifestly inadequate.

The legal issues central to the appeal included whether the sentencing judge had failed to properly assess the objective seriousness of the offences committed by Fojt and whether the judge had erred in determining that the seriousness of the offence was below the mid-range. Additionally, the Crown contended that the principles for the accumulation or concurrency of sentences had not been appropriately applied. The Crown further argued that the sentence imposed was manifestly inadequate given the nature and circumstances of the offences.

The Court found that the sentencing judge had indeed failed to properly assess the objective seriousness of the offences. The Court determined that the objective seriousness of the offences was such that it warranted a sentence above the mid-range. Furthermore, the Court held that the principles for the accumulation or concurrency of sentences had not been correctly applied, leading to a sentence that was manifestly inadequate. As a result, the Court allowed the appeal and remitted the matter to the sentencing court for re-sentencing.

Orders