R v Fahey [2021] NSWDC 717

District Court New South Wales

Medium Neutral Citation: R v Fahey [2021] NSWDC 717 Hearing dates: 1 October 2021 Date of orders: 1 October 2021 Decision date: 01 October 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 4 years with a non-parole period of 2 years. Catchwords: CRIME - Reckless wounding - Possess shortened firearm (not pistol) without authority - Possess unauthorised firearm - Possess ammunition w/o holding licence/permit/authority SENTENCING - Relevant factors on sentence – history of childhood deprivation - reduced moral culpability - offences committed while subject to conditional liberty – two distinct types of offending- special circumstances – reduced access to programmes due to COVID - discussion about whether an ICO is appropriate? - early guilty plea Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571: [2013] HCA 37 Category: Sentence Parties: Adam Fahey (the offender) Director of Public Prosecutions Representation: Counsel: Mr A Booker (for the offender)

Solicitors: Legal Aid NSW (for the offender) Ms K McCrossin (for Director of Public Prosecutions) File Number(s): 2020/00344911

sentence – ex tempore revised

Introduction 1. A person's background as a child, the environment in which they were raised, if it involves exposure to violence, domestic violence, alcohol and drug abuse and other traumas can have a lasting impact upon them. It can predispose them to the use of violence and illicit drugs. If their early life is blighted in such a way it can become their default position and often, more often that the community might think, punishment in the form of gaol sentences has little deterrent effect on them. At the same time when people, no matter what their background, commit serious offences punishment; a just and appropriate penalty is required. For everyone and the community has to understand the retribution that will fall upon them if they commit serious offences. 2. When Adam Fahey was in the Local Court he accepted his guilt for four (4) offences. Three of them were particularly serious: 1. Possess shortened firearm, not a pistol, without authority s 62(1) of the Firearms Act 1996, maximum penalty 14 years imprisonment. 2. Possess an unauthorised firearm, s 7A(1) Firearms Act, maximum penalty five years imprisonment and 3. Reckless wounding s 35(4) Crimes Act 1900, maximum penalty seven years imprisonment. That offence carries a standard minimum non‑parole period of three years imprisonment. 1. He also asks that I sentence him for possession of ammunition s 63(3) Firearms Act. The maximum penalty for that offence is a fine. As that offence is relevant to my assessment of the seriousness of the possess unauthorised, Firearms Act, and as he is not in a position to pay a fine that matter will be disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 it being inexpedient to impose any other penalty. However each of the three indictable matters for sentence require custodial sentences. It is accepted that form of punishment is the only just and appropriate one available to me 2. The issue joined between the parties today has been how the balance of that custodial sentence should be served given that Mr Fahey has been in custody since his arrest on 4 December 2020. 3. Mr Booker who appears for the offender, instructed by Ms Fennell, Legal Aid NSW, submits that when I take into account all relevant factors, including my assessment of the objective seriousness of the offending, the need to accumulate and the powerful subjective case for leniency made for the offender, that a balance of the term less than three years could be imposed. If so, he submitted, that that balance could be served in the community subject to an Intensive Correction Order (ICO) with very strict conditions. They could include a substantial period of community service. He said that serving a sentence in that manner would better protect the community and ensure community safety than simply locking Mr Fahey away for an additional period. 4. Ms McCrossin, solicitor for the Director of Public Prosecutions, submits that while leniency can be extended to Mr Fahey by a finding of special circumstances reducing the period that must be spent in custody. In her submissions the offences individually, but more importantly cumulatively, are so serious that the ICO option is not available. First because of the length of the sentence that must be imposed and secondly, because community safety would best be served by a further term of full time custody. 5. Those issues were joined in comprehensive written submissions and oral submissions this morning to which, while I will not refer specifically, to which I intend to address in the balance of these remarks.