Fenner v R [2022] NSWCCA 48

Fenner v R [2022] NSWCCA 48

The sentencing judge erred by stating that prior good character and absence of criminal record should not be taken into account as mitigating matters. The Crown had submitted only that those matters should carry less weight, and the evidence included more than 25 references attesting to character. The applicant had taught for almost 10 years and had not deliberately used apparent good character to obtain a trusted position for the purpose of offending. Because s 73 is not a child sexual offence, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not preclude consideration of good character. Some weight had to be given to the good character evidence, requiring resentencing.

Jurisdiction
Australia
Judgment Date
11 March 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to imprisonment for 3 years with a non-parole period of 1 year 10 months.
Legal Topics
['sexual Intercourse With Young Person Under Special Care' 'good Character as Mitigating Factor' 'prior Criminal Record' 'manifest Excess' 'aggregate Sentence' 'form 1 Offences']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Intercourse With Young Person Under Special Care' 'good Character as Mitigating Factor' 'prior Criminal Record' 'manifest Excess' 'aggregate Sentence' 'form 1 Offences']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred in not taking into account as mitigating factors that the applicant had no previous convictions and was a person of good character.' 'Whether the sentence imposed was manifestly excessive.' 'What sentence should be imposed on resentencing after allowing the appeal.']

Ratio Decidendi

The sentencing judge erred by stating that prior good character and absence of criminal record should not be taken into account as mitigating matters. The Crown had submitted only that those matters should carry less weight, and the evidence included more than 25 references attesting to character. The applicant had taught for almost 10 years and had not deliberately used apparent good character to obtain a trusted position for the purpose of offending. Because s 73 is not a child sexual offence, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not preclude consideration of good character. Some weight had to be given to the good character evidence, requiring resentencing.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to imprisonment for 3 years with a non-parole period of 1 year 10 months.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentence imposed in the District Court on 9 October 2020.' 'In lieu, sentence the appellant to imprisonment for 3 years commencing 9 October 2020 and expiring 8 October 2023 with a non-parole period of 1 year 10 months expiring 8 August 2022.']