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Frahm v R

Frahm v R

Case [2014] NSWCCA 10 20 February 2014

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Frahm v Regina [2014] NSWCCA 10
Hearing dates: 13/02/2014
Decision date: 20 February 2014
Before: Hoeben CJ at CL at [1]
Schmidt J at [34]
Barr AJ at [35]
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - knowingly deal with the proceeds of crime - offender witnessed robbery and saw where proceeds were dumped - proceeds ($16,000) taken and spent by offender - whether sentence manifestly excessive - insufficient statistics to establish a sentencing trend - wide variation of factual circumstances in which such offences committed - inappropriateness of considering individual cases - necessary to approach matter by reference to established principle - ground of appeal not made out.
Legislation Cited: Crimes Act, 1900 - s117, s193B(2)
Crimes (Sentencing Procedure) Act 1999 - s10A
Cases Cited: Ali v R [2008] NSWCCA 60
Dela Cruz v R [2010] NSWCCA 333
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Ryan v R [2011] NSWCCA 250
Sills v R [2011] NSWCCA 271
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Youkhana v R [2013] NSWCCA 85
Yow v R [2010] NSWCCA 251
Category: Principal judgment
Parties: Mark Robert Frahm - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr C Smith - Applicant
Ms S Herbert - Respondent Crown
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2012/223912
Decision under appeal

Date of Decision:

2013-02-06 00:00:00

Before:

Maiden DCJ

File Number(s):

2012/223912

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant entered pleas of guilty to offences of larceny, contrary to s117 of the Crimes Act 1900 which has a maximum penalty of imprisonment for 5 years and knowingly deal with the proceeds of crime, contrary to s193B(2) which has a maximum penalty of imprisonment for 15 years.

On 6 February 2013 the applicant was sentenced by Judge Maiden SC in the Newcastle District Court as follows:

For the offence of knowingly deal with the proceeds of crime, imprisonment with a non-parole period of 2 years, commencing 3 August 2012 and expiring 2 August 2014 with a balance of term of 1 year expiring 2 August 2015.

For the offence of larceny, a conviction with no other penalty pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999.

The applicant seeks leave to appeal on a single ground:

The sentence imposed for the offence of knowingly deal with the proceeds of crime is manifestly excessive.

Factual Background

On 13 July 2012 a robbery occurred in Scott Street, Newcastle. The victim was robbed of her handbag containing personal items, a wallet, passports and $25,475.95 in cash, which she had just withdrawn from the Commonwealth Bank. Three persons were involved and the plan was to use a car to escape after the robbery. The plan was foiled when bystanders blocked the path of the getaway car, causing…

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 Frahm v R

Details

AGLC: Frahm v R [2014] NSWCCA 10
Case: [2014] NSWCCA 10
Decision Date: 20 February 2014

CaseChat Overview and Summary

The appellant, Frahm, appealed against the sentence imposed following a conviction for knowingly dealing with the proceeds of crime. The case arose from an incident where the appellant witnessed a robbery and subsequently took and spent $16,000 from the proceeds. The appeal focused on whether the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The appellant argued that a review of other cases involving similar offences would indicate a sentencing trend, and that the sentence in this case deviated significantly from that trend. The court had to determine whether it was appropriate to consider individual cases to establish a trend and whether the sentence was excessive in light of this potential trend.

The court found that it was not appropriate to rely on individual cases to establish a sentencing trend due to the wide variation in factual circumstances in which such offences are committed. Instead, the court emphasised the need to approach sentencing matters by reference to established principles. The court held that the sentence was not manifestly excessive, and the appeal was dismissed. The court concluded that the sentence was appropriate given the established principles of sentencing and the specific circumstances of the case.

Orders