Regina v Fry - [2004] NSWCCA 238

CITATION: REGINA v FRY [2004] NSWCCA 238

HEARING DATE(S): 19 May 2004

JUDGMENT DATE:
16 July 2004

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Adams J at 3

DECISION: Appeal dismissed

CATCHWORDS: Crown appeal on sentence - failure by Parole Board to implement recommendation of sentencing judge - whether can be taken into account on sentence for subsequent offence - no error of discretion - appeal dismissed

LEGISLATION CITED: Crimes Act 1900 s97(1)

CASES CITED: Osenkowski (1982) 5 A Crim R 394
R v Cartright (1989) NSWLR 243
R v Hallocoglu (1992) 29 NSWLR 67
R v Henry (1999) 46 NSWLR 346

PARTIES :
Regina (Appellant)
v
Shane Graham Fry (Respondent)

FILE NUMBER(S): CCA 60064/04

COUNSEL: Mr D Frearson (Crown)
Mr R Hulme (Respondent)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/41/0011

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

60064/04

SPIGELMAN CJ
HULME J
ADAMS J
FRIDAY 16 JULY 2004

REGINA v FRY

Judgment

1 SPIGELMAN CJ: I agree with Adams J.

2 HULME J: I agree with Adams J and wish his Honour’s Reasons.

3 ADAMS J: This is an appeal by the Crown from a sentence of twelve months’ imprisonment to commence on 6 October 2002 imposed in the District Court on Shayne Graham Fry for the offence of robbery whilst armed with an offensive weapon under s97(1) of the Crimes Act 1900. Although the “weapon” was almost certainly a toy gun, it is an offensive weapon for the purpose of this sub-section.

4 The crime occurred on 25 September 2002, the respondent was arrested on 6 October 2002 and, although he then denied his guilt to police, entered a plea of guilty on his second appearance for mention in the District Court on 16 March 2003. After a number of adjournments, the sentence proceedings commenced on 12 September 2003. The proceedings were adjourned to 14 November 2003 to enable the respondent’s suitability for admission to a residential drug rehabilitation programme to be assessed, in particular to enable him, if he could, to reduce his then methadone intake from a very high 45ml a day to 20ml a day which was the maximum permitted by the proposed programme. Sentence proceedings continued on 14, 17 and 25 November 2003, when it was disclosed that the respondent had managed to cease his methadone intake altogether. Having satisfied the extremely difficult but no doubt necessary induction requirement of Odyssey House at the behest of the sentencing judge, it would have smacked of injustice had his Honour then passed a sentence which did not permit the Parole Board, if it thought it right, to release him into the programme. Although there was no definite commitment by Phelan DCJ to pass such a sentence, his Honour would have been placed in a difficult position had he not done so when the respondent had, as it were, complied with his part of the foreshadowed arrangement. The respondent’s fulfilment of the pre-condition is an…

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 Regina v Fry

Details

AGLC: Regina v Fry [2004] NSWCCA 238
Case: [2004] NSWCCA 238
Decision Date: 16 July 2004

CaseChat Overview and Summary

In Regina v Fry, the respondent appealed against his sentence for a subsequent offence, arguing that the Crown should have taken into account that he had not been released on parole from his previous sentence as recommended by the sentencing judge. The respondent had been sentenced to imprisonment for a serious offence and, at the time of sentencing, the sentencing judge recommended that the respondent be released on parole after serving half of his sentence. However, the Parole Board did not implement this recommendation. The respondent argued that this was an error of law and that it should have been taken into account in his sentence for the subsequent offence. The Crown appealed against the sentence imposed by the trial judge, arguing that there was no error in the sentence imposed.

The central legal issue in this case was whether the failure of the Parole Board to implement the recommendation of the sentencing judge could be taken into account in the sentencing of the respondent for a subsequent offence. The court had to consider whether the trial judge erred in taking this factor into account when imposing the sentence. The court also had to consider whether the appeal against sentence was well-founded and whether the sentence imposed by the trial judge was manifestly inadequate.

The court held that the failure of the Parole Board to implement the recommendation of the sentencing judge was not an error of law that could be taken into account when imposing a sentence for a subsequent offence. The court held that the sentencing judge had no power to direct the Parole Board on the release of the respondent on parole and that the failure of the Parole Board to implement the recommendation did not amount to an error of law. The court held that the appeal against sentence was not well-founded and that the sentence imposed by the trial judge was not manifestly inadequate. The court held that the trial judge had taken into account all relevant matters and had exercised his discretion in a manner that was not shown to be erroneous.

The appeal against sentence was dismissed, and the sentence imposed by the trial judge was upheld.

Orders