Regina v Fepuleai - [2007] NSWCCA 325

New South Wales
Court of Criminal Appeal

CITATION: Regina v Fepuleai [2007] NSWCCA 325

HEARING DATE(S): 4 October 2007

JUDGMENT DATE:
27 November 2007

JUDGMENT OF: Hodgson JA at 1; Hislop J at 2; Latham J at 3

DECISION: 1. Appeal allowed; 2. The sentence imposed upon the respondent on 23 March 2007 is quashed; 3. In lieu, the respondent is to serve a non parole period of 18 months to commence 27 November 2007, expiring 26 May 2009, the balance of term being 18 months, expiring 26 November 2010. The respondent is to be released at the expiration of the non parole period.

CATCHWORDS: Crown Appeal - assault with intent to rob whilst armed with a dangerous weapon - suspended sentence manifestly inadequate - - effective disregard of Henry guideline - plea not at an early opportunity - no true parity with juvenile co-offender - significance of medical condition to sentencing discretion.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry & Ors (1999) 46 NSWLR 346
Regina v Fepuleai [2007] NSWCCA 286
R v Henry (1999) NSWLR 346
R v Gu [2006] NSWCCA 104
Gibbs v R [2007] NSWCCA 171
R v Douglas [2006] NSWCCA 94
R v Tran [2005] NSWCCA 35
R v Govinden [1999] NSWCCA 118; 106 A Crim R 314
R v Colgan [1999] NSWCCA 292
R v Boney [2001] NSWCCA 432
R v Ryan ; R v McPherson [2006] NSWCCA 394
R v Hamied [2007] NSWCCA 151
R v Blackman & Walters [2001] NSWCCA 121
R v Griggs [2000] NSWCCA 33
R v Parsons & Poore [2002] NSWCCA 296

PARTIES: Regina - Applicant
David Fepuleai - Respondent

FILE NUMBER(S): CCA 2007/00003227

COUNSEL: M Hobart - Crown Applicant
D Dalton - Respondent

SOLICITORS: S Kavanagh - Solicitor of Public Prosecutions
Ross Hill and Associates - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0687

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 23.3.07

2007/00003227

HODGSON JA
HISLOP J
LATHAM J
27 NOVEMBER 2007

REGINA v DAVID FEPULEAI

Judgment

1 HODGSON JA : I agree with Latham J.

2 HISLOP J : I agree with Latham J.

3 LATHAM J : This is a Crown appeal against a suspended sentence of two years imposed upon the respondent by His Honour Judge Solomon (the Judge) on 23 March 2007, in respect of an offence of assault with intent to rob whilst armed with a dangerous weapon (s 97(2) Crimes Act 1900). The offence carries a maximum penalty of 25 years imprisonment.

4 The Judge fixed a non parole period of one year, with a balance of term of one year, before proceeding to suspension. The Crown takes issue with the asserted manifest inadequacy of the sentence, in addition to a number of errors said to have been committed in the course of the sentencing exercise. These particular errors are :-

(i) Finding that the respondent was not involved in any substantial degree in the…

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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Details

Case: [2007] NSWCCA 325
Decision Date: 27 November 2007

CaseChat Overview and Summary

In Regina v Fepuleai, the court addressed a Crown appeal concerning a case of assault with intent to rob, where the offender was armed with a dangerous weapon. The appellant, Fepuleai, had been convicted and received a suspended sentence which the Crown deemed manifestly inadequate. The case raised several critical legal issues, including whether the original sentence was an effective disregard of the Henry guideline, whether Fepuleai's plea was made at an early opportunity, and whether the sentence provided true parity with his juvenile co-offender. Additionally, the court considered the significance of Fepuleai's medical condition in the sentencing process.

The court was required to determine whether the original sentence was appropriately reflective of the severity of the crime and whether it adequately considered the principles set out in the Henry guideline. The court also had to assess the timing of Fepuleai's plea in relation to the principle of encouraging early pleas and whether this warranted any adjustments to the sentence. Furthermore, the court examined whether the sentence accorded true parity with his juvenile co-offender and whether the medical condition of Fepuleai should influence the sentencing discretion.

The court found that the original sentence was indeed manifestly inadequate and that it effectively disregarded the Henry guideline, which mandates that sentences for serious offences should be custodial unless there are exceptional circumstances. The court also determined that Fepuleai's plea was not made at an early opportunity, which typically warrants a higher sentence. Moreover, the court concluded that the sentence did not provide true parity with his juvenile co-offender and that Fepuleai's medical condition, while a factor, did not sufficiently mitigate the severity of the crime to justify a suspended sentence. Consequently, the court allowed the appeal and substituted a custodial sentence for the suspended sentence.

The final orders of the court included substituting the original suspended sentence with a custodial sentence, reflecting the court's view that the original sentence was manifestly inadequate and did not appropriately account for the principles guiding sentencing in cases of serious offences.

Orders