R v Fajka [2004] NSWCCA 166

New South Wales Court of Criminal Appeal

CITATION : R v Fajka [2004] NSWCCA 166 HEARING DATE(S) : 24/05/2004 JUDGMENT DATE : 26 May 2004

JUDGMENT OF : Hulme J at 1; Simpson J at 2; Howie J at 3 DECISION : Leave to appeal is granted and the appeal is allowed. The sentence imposed by Judge Maguire is quashed and in lieu the applicant is ordered to perform 100 hours community service.

CATCHWORDS : Criminal Practice and Procedure - Sentencing for affray - scope of liability of offender for conduct of co-offender - breach of De Simoni principle - findings unsupported by evidence - failure to take into account guilty plea - sentence manifestly excessive. LEGISLATION CITED : Crimes Act 1900 - ss 93C, 317(a) CASES CITED : Brown v Dunne (1893) 6 R 67 De Simoni v The Queen (1981) 147 CLR 383 PARTIES : Regina v Sebastian Fajka FILE NUMBER(S) : CCA 60034/04 COUNSEL : G. Rowling - Crown - SOLICITORS : S. Kavanagh - Crown G. Walsh - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3084 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60034/04

HULME J SIMPSON J HOWIE J

WEDNESDAY 26 MAY 2004 R v SEBASTIAN FAJKA Judgment 1 HULME J: I agree with Howie J. 2 SIMPSON J: I agree with Howie J. 3 HOWIE J: On 25 July 2003 the applicant pleaded guilty to an indictment which contained a single count alleging, in effect, that on 15 January 2002 he committed the offence of affray in licensed premises at Bradbury. The offence to which the applicant pleaded guilty is contrary to s 93C of the Crimes Act and carries a maximum penalty of imprisonment for five years. 4 Judge Maguire sentenced the applicant to imprisonment for 2 years and specified a non-parole period of 18 months. The sentence commenced on 23 October 2003, the date sentence was passed, and the applicant was due to be released to parole on 22 April 2005. However, he was granted bail by the Supreme Court on 12 December 2003 and has been at liberty since that date.