R v Fakja [2004] NSWCCA 166 (26 MAY 2004)

Mr Fajka had pleaded guilty to an indictment which contained a single count alleging that he had committed the offence of affray in licensed premises at Bradbury. The offence to which he pleaded guilty was contrary to s93 of the Crimes Act and carried a maximum penalty of 5 years. The sentencing judge, Maguire DCJ, imposed a sentence of imprisonment of 2 years with a non-parole period of 18 months.

Greg Walsh did not appear on the sentence but successfully applied for bail on behalf of the applicant pending his appeal to the Court of Criminal Appeal. In the course of the sentencing of the applicant, the sentencing Judge made a finding that he was involved in acts, to wit the stealing of a video tape, which seriously aggravated the facts in respect of which he had entered his plea of guilty. It was argued by Greg Walsh that it was impermissible for the Judge to have made such a finding and such finding was in breach of the principle in De Simino v The Queen [1981] 147 CLR 303.

The New South Wales Court of Criminal Appeal (Hulme J, Simpson J and Howie J) found that it was impermissible for the sentencing Judge to have made such a finding and the application for leave to appeal was granted and the appeal allowed.

The sentence imposed by Judge Maguire was quashed and in lieu, the applicant was ordered to perform 100 hours of community service.