Fenner v R [2022] NSWCCA 48

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fenner v R [2022] NSWCCA 48 Hearing dates: 4 February 2022 Date of orders: 11 March 2022 Decision date: 11 March 2022 Before: Johnson J at [1] Davies J at [2] Bellew J at [66] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 9 October 2020. 4. 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. Catchwords: CRIME – appeals – appeal against sentence – where applicant pleaded guilty to counts of sexual intercourse with young person under his special care – where applicant was teacher of victim – whether sentencing judge erred in not taking into account as mitigating factors that applicant did not have previous convictions and was a person of good character – whether sentence imposed was manifestly excessive – where significant amount of evidence attesting to applicant's character – where some weight should have been given to good character of applicant – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) s 73 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Cases Cited: Kearsley v Regina [2017] NSWCCA 28; (2017) 265 A Crim R 233 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 SD v R (2013) 39 VR 487; [2013] VSCA 133; 229 A Crim R 580 Stanton v R [2017] NSWCCA 250 Wakim v R [2016] VSCA 301 Texts Cited: Nil Category: Principal judgment Parties: Benjamin Fenner (Applicant) Crown (Respondent) Representation: Counsel: S Howell & C Akthar (Applicant) E Jones (Respondent)