R v Fakaosilea [2023] NSWDC 212

District Court New South Wales

Medium Neutral Citation: R v Fakaosilea [2023] NSWDC 212 Hearing dates: 25 May 2023; 01 June 2023 Date of orders: 09 June 2023 Decision date: 09 June 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Appeal allowed. 2 I set aside the penalty imposed by the magistrate. 3 In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024. 4 The offender is disqualified for the minimum period of 12 months. 5 John Fakaosilea is convicted. 6 I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate. 7 I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022. 8 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are: Sequence 3 – 3 years and 4 months; Sequence 4 – 4 years. 9 I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027. 10 The offender will be eligible to be released on parole on 16 December 2024. Catchwords: SENTENCING — Appeal against sentence — Severity CRIME — Violent offences — Aggravated robbery — In company Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 Legge v The Queen [2007] NSWCCA 244 R v Henry (1999) 46 NSWLR 346 R v Olbrich (1999) 199 CLR 270 Category: Sentence Parties: Rex (Crown) John Fakaosilea (Offender) Representation: Counsel: S M Fernando (Offender)