Fenech v R [2018] NSWCCA 160

Fenech v R [2018] NSWCCA 160

The applicant did not have a justifiable sense of grievance. Although he was not shown to have physically assaulted the victim, he played a significant role by bringing the cable ties and pick axe handle used in the offending, and his liability for the offence was largely the same as that of the other offenders sentenced for the s 35(1) offence. The sentences imposed were relatively modest for an offence carrying a 14 year maximum penalty and a 5 year standard non-parole period, and differences in subjective circumstances did not require a lesser sentence for the applicant.

Jurisdiction
Australia
Judgment Date
01 August 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a Sentence Imposed in the District Court
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['recklessly Causing Grievous Bodily Harm in Company' 'parity Principle' 'justifiable Sense of Grievance' 'joint Criminal Enterprise' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['recklessly Causing Grievous Bodily Harm in Company' 'parity Principle' 'justifiable Sense of Grievance' 'joint Criminal Enterprise' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the applicant suffered a justifiable sense of grievance when comparing his sentence with the sentences imposed on his co-offenders.' "Whether any disparity between the applicant's sentence and the sentences imposed on his co-offenders was marked and unjustified." "Whether the applicant's role and subjective circumstances required a lesser sentence than those imposed on co-offenders."]

Ratio Decidendi

The applicant did not have a justifiable sense of grievance. Although he was not shown to have physically assaulted the victim, he played a significant role by bringing the cable ties and pick axe handle used in the offending, and his liability for the offence was largely the same as that of the other offenders sentenced for the s 35(1) offence. The sentences imposed were relatively modest for an offence carrying a 14 year maximum penalty and a 5 year standard non-parole period, and differences in subjective circumstances did not require a lesser sentence for the applicant.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']