Frahm v The Queen - [2009] NSWCCA 249

New South Wales
Court of Criminal Appeal

CITATION: Frahm v R [2009] NSWCCA 249

HEARING DATE(S): 24 September 2009

JUDGMENT DATE:
24 September 2009

JUDGMENT OF: McClellan CJatCL at 21; Buddin J at 1; Hall J at 22

DECISION: 1 Grant leave to appeal.
2 Allow the appeal and quash the sentence imposed in the District Court.
3 In substitution therefore, sentence the applicant to a non-parole period of 2 years to commence on 1 April 2008 and to expire on 31 March 2010 with a total term of 3 years 3 months to expire on 30 June 2011.
4 The applicant is eligible for release to parole on 31 March 2010.

CATCHWORDS: Appeal - Criminal law - sentencing - assault with intent to rob in company - significant criminal history - treatment of guideline judgment in R v Henry - whether sentence manifestly excessive

CATEGORY: Principal judgment

CASES CITED: Legge v R [2007] NSWCCA 244
R v Black [2001] NSWCCA 41
R v Henry (1999) 46 NSWLR 346
R v Lesi [2005] NSWCCA 63
R v Murchie [1999] 108 A Crim R 482
R v Osborne [2001] NSWCCA 371
R v Perese (2001) 126 A Crim R 508
R v Stanley [2003] NSWCCA 233
R v Thomson and Houlton (2000) 49 NSWLR 383
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Mark Robert Frahm
Regina

FILE NUMBER(S): CCA 2008/10544

COUNSEL: Ms H Cox (Applicant)
Ms V Lydiard (Crown)

SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/10544

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 12 December 2008

2008/10544

McCLELLAN CJ at CL
BUDDIN J
HALL J
24 SEPTEMBER 2009

MARK FRAHM v R

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty to an offence of assault with intent to rob in company. The maximum penalty for the offence is imprisonment for 20 years. The applicant was sentenced to a head sentence of 4 years 6 months imprisonment with a non-parole period of 3 years. The sentencing judge indicated that, but for the applicant’s early plea of guilty which attracted a discount on sentence of 25%, the head sentence would have been 6 years imprisonment. Her Honour made a finding of “special circumstances” because of her conclusion that the applicant needed a “longer than normal period of supervised parole to enhance his prospects for rehabilitation”.

2 The sentencing hearing proceeded by way of an Agreed Statement of Facts. That material indicated that on the day in question the applicant entered a grocery store and enquired about using the EFTPOS facility in order to withdraw $10. When he was advised that the facility was not available, he left the store. The applicant returned 10 minutes later in the company of a co-offender who has not been identified. The applicant and the co-offender approached…

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 The Queen

Details

AGLC: Frahm v The Queen [2009] NSWCCA 249
Case: [2009] NSWCCA 249
Decision Date: 24 September 2009

CaseChat Overview and Summary

In the High Court of Australia, the appeal by Frahm against the Queen addressed a criminal matter involving an assault with intent to rob while in the company of others. The appellant was convicted of this offence, and the primary issue before the court was whether the sentence imposed was manifestly excessive. The appellant had a considerable criminal history, which included previous convictions for similar offences. This history was a significant factor in the sentencing decision by the lower courts, which the appellant contested as being overly harsh.

The central legal issues revolved around the appropriate weight to be given to the appellant's criminal history and whether the sentence could be deemed manifestly excessive under the principles established in R v Henry. The appellant argued that the sentence did not adequately reflect the mitigating factors, such as the absence of violence during the commission of the crime and the appellant's potential for rehabilitation. The Crown, on the other hand, maintained that the sentence was justified due to the appellant's extensive criminal record and the need for general deterrence.

The court examined the principles outlined in R v Henry and considered the overall circumstances of the case, including the nature and circumstances of the offence, the appellant's criminal history, and the principles of sentencing. The court held that the sentence was not manifestly excessive, as it appropriately balanced the need for punishment and deterrence with the potential for rehabilitation. The court found that the lower courts had correctly considered the appellant's criminal history and other relevant factors in arriving at the sentence. Consequently, the appeal was dismissed.

The High Court did not alter the sentence imposed by the lower courts, affirming that it was within the appropriate range and did not represent an error in principle or an excessive deviation from the norm. The court's decision underscored the importance of considering both aggravating and mitigating factors in sentencing, particularly in cases involving repeat offenders.

Orders