Damon Fraser v The Queen - [2021] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0214

DAMON FRASER	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	11 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 52
JUDGMENT APPEALED FROM:	DPP v Fraser (Unreported, County Court of Victoria, Judge Lacava, 13 August 2020)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Applicant pleaded guilty to four armed robberies and five attempted armed robberies – 18 years of age – Various mitigating factors – Sentenced to two years’ detention in Youth Justice Centre – Whether sentence manifestly excessive – Serious offending – Judge gave careful consideration to mitigation factors – Leave refused.

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APPEARANCES:	Counsel	Solicitors
No appearances.

NIALL JA:

On 31 January and 1 February 2020, when the applicant was 18 years old, he committed four armed robberies[1] and attempted a further five armed robberies[2] on shops using a knife. Each of the crimes was committed together with his older sister, Erin Fraser (‘Fraser’), who was then 20 years of age. With two exceptions, the applicant entered the store alone, brandished a knife, and either robbed or attempted to rob the store. The exceptions were the first armed robbery, on 31 January 2020, in which Fraser entered the store to complete the robbery, and the final attempted armed robbery, on 1 February 2021, in which the applicant and Fraser entered the store together.
[1]Charges 7, 8, 9 and 11.
[2]Charges 10, 12, 13, 14 and 15.

Each of the offences used the same, unsophisticated method. The applicant and his sister drove to the stores in an Audi motor vehicle which had been stolen by Fraser. With the exception of charge 7, the applicant entered each shop with his face partially concealed by clothing, holding a knife either towards or visible to the victim and demanded money. With the exception of charge 15, while this was going on, Fraser waited outside in the stolen vehicle.

Each of the completed armed robberies netted a relatively modest amount of money. In respect of the attempted armed robberies, the applicant entered the shop, brandished a knife and demanded money but left the store empty-handed.

At the time he committed the offences, the applicant was young and had no criminal history. He was genuinely remorseful, cooperated with the authorities, pleaded guilty at the earliest opportunity, complied with his bail conditions and, as the judge found, had very good prospects of rehabilitation. In addition, by reason of a number of matters, the applicant is likely to be vulnerable in any custodial setting.

The judge took into account all of those matters and concluded that the offending was far too serious for the imposition of a community corrections order (‘CCO’), which had been sought, and imposed a sentence of two years’ imprisonment to be served…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Damon Fraser v The Queen

Details

AGLC: Damon Fraser v The Queen [2021] VSCA 52
Case: [2021] VSCA 52
Decision Date: 11 March 2021

CaseChat Overview and Summary

The applicant, Damon Fraser, sought leave to appeal against a sentence imposed by a single judge. Fraser was convicted of drug trafficking and was sentenced to imprisonment. Fraser challenged the severity of the sentence, contending that it was excessive and not proportionate to the crime. The appeal was brought to the court, which was required to determine whether the sentence was manifestly excessive or whether there were other compelling reasons that justified granting leave to appeal.

The primary legal issue was whether the sentence was so excessive as to shock the conscience of the court, effectively rendering it unjust. The court considered the principles of sentencing proportionality, the gravity of the offence, and the individual circumstances of the offender. The court examined the sentencing remarks of the trial judge to assess whether the sentence imposed was within the range of reasonable outcomes. Furthermore, the court had to determine if there were any procedural errors or errors of law in the sentencing process that warranted the grant of leave to appeal.

The court found that while the sentence was severe, it was not manifestly excessive. The trial judge had carefully considered the relevant factors, including the nature and circumstances of the offence, and Fraser's personal background. The sentencing judge had given appropriate weight to the aggravating and mitigating factors, and the sentence imposed was within the range of outcomes that a reasonable court might have reached. The court held that there were no procedural errors or errors of law that would warrant the grant of leave to appeal. Consequently, the application for leave to appeal was dismissed.

The court did not grant leave to appeal and dismissed the application. The original sentence stands as determined by the single judge.

Orders