R v Fing [2024] NSWDC 66

R v Fing [2024] NSWDC 66

All 11 offences crossed the section 5 threshold when the objective seriousness of the conduct and the offender's subjective circumstances were considered. Although the offender's severe developmental disadvantage and trauma reduced his moral culpability and reduced the weight given to general deterrence, those factors were counterbalanced by his lack of remorse and insight, poor rehabilitation prospects, ongoing drug use, criminal history, escalation into sexual violence and high risk of reoffending. Protection of the community, denunciation, recognition of harm to the victim and proportionality required an aggregate custodial sentence, with special circumstances found to allow an...

Jurisdiction
Australia
Judgment Date
15 March 2024
Procedural Posture
Criminal Sentence / Sentence Following Jury Verdicts of Guilty on Four Indictment Matters and Findings of Guilt on Seven Matters Dealt With Summarily by Way of a Section 166 Certificate
Outcome
The offender was convicted and sentenced to an aggregate term of imprisonment with a non-parole period of 4 years and 9 months and a balance of term of 3 years and 3 months.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'sexual Intercourse Without Consent' 'take or Detain Person With Intent to Commit Serious Indictable Offence' 'common Assault' 'destroying Property' 'intimidation' 'domestic Violence' 'standard Non Parole Period' 'bugmy Principles' 'totality Principle' 'special Circumstances']
['criminal Law' 'sentencing'] ['assault Occasioning Actual Bodily Harm' 'sexual Intercourse Without Consent' 'take or Detain Person With Intent to Commit Serious Indictable Offence' 'common Assault' 'destroying Property' 'intimidation' 'domestic Violence' 'standard Non Parole Period' 'bugmy Principles' 'totality Principle' 'special Circumstances']

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Procedural Posture

Criminal Sentence / Sentence Following Jury Verdicts of Guilty on Four Indictment Matters and Findings of Guilt on Seven Matters Dealt With Summarily by Way of a Section 166 Certificate

Legal Issues

  1. 1 ['What sentences should be imposed for the 11 offences committed against the victim between 4 October 2021 and 15 October 2021.' 'Whether each offence crossed the section 5 threshold for imprisonment.' "How the offender's disadvantaged and dysfunctional background, substance abuse, psychological condition, criminal history, risk of reoffending and prospects of rehabilitation affected sentence." 'Whether special circumstances should be found and how the aggregate sentence should be structured having regard to totality and proportionality.' 'To what extent the sentence should be backdated given the offender was in custody while also subject to parole for an earlier sentence.']

Ratio Decidendi

All 11 offences crossed the section 5 threshold when the objective seriousness of the conduct and the offender's subjective circumstances were considered. Although the offender's severe developmental disadvantage and trauma reduced his moral culpability and reduced the weight given to general deterrence, those factors were counterbalanced by his lack of remorse and insight, poor rehabilitation prospects, ongoing drug use, criminal history, escalation into sexual violence and high risk of reoffending. Protection of the community, denunciation, recognition of harm to the victim and proportionality required an aggregate custodial sentence, with special circumstances found to allow an...

Court Disposition

The offender was convicted and sentenced to an aggregate term of imprisonment with a non-parole period of 4 years and 9 months and a balance of term of 3 years and 3 months.

Orders

  • ['The offender is convicted of counts 1, 2, 5 and 6 on the indictment and of the 7 offences on the appropriate s166 certificate.' 'The offender is sentenced to an aggregate term of imprisonment with a non parole period of 4 years and 9 months to date from 18 January 2022 and a balance of term of 3 years and 3 months...