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Fraser v The The King

Fraser v The The King

Case [2022] NSWCCA 253 7 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fraser v R [2022] NSWCCA 253
Hearing dates: 7 November 2022
Date of orders: 7 December 2022
Decision date: 07 December 2022
Before: Button J; Fagan J; Yehia J
Decision:
(1) Extend the time within which the applicant may seek leave to appeal against sentence.
(2) Grant leave to appeal against sentence.
(3) Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to imprisonment for a term of 4 years and 3 months commencing on 15 February 2020 and expiring on 14 May 2024 with a non-parole period of 2 years and 6 months expiring on 14 August 2022.

Catchwords:
CRIME – appeal against sentence – where the applicant pleaded guilty to possession of 19 firearms at a rural property – manifest excess – where the offender intended to hand the firearms in to police – strong subjective case – consideration of comparable cases – sentence plainly unjust

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Aird v R [2022] NSWCCA 35
Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Mack v R [2009] NSWCCA 216
Mack v R [2022] NSWCCA 114
R v Campbell; R v Smith [2019] NSWCCA 1
R vCromarty [2004] NSWCCA 54
R v Lachlan [2015] NSWCCA 178
R v Mahmud [2010] NSWCCA 219
Taylor v R [2018] NSWCCA 50
Weaver v R [2021] NSWCCA 215

Category: Principal judgment
Parties: Rex
James Fraser
Representation:
Counsel:
I Nash (Crown)
L Fernandez (Applicant)
Solicitors:
Director for Public Prosecutions (Crown)
Tankard’s Law (Applicant)

File Number(s): 2018/371780
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

24 March 2020

Before:

Grant DCJ

File Number(s):

2018/371780

JUDGMENT

THE COURT: James Douglas Fraser applies for leave to appeal against a sentence imposed on him by Grant DCJ in the District Court at Griffith on 24 March 2020. The application is out of time. The Crown is content for the Court to decide whether an extension should be allowed according to the merits of the proposed appeal.
The applicant pleaded guilty to a charge that on 30 November 2018 he did possess more than three firearms that were unregistered and that he was not authorised by licence to possess, one of those firearms being of a prohibited, kind, namely a semi-automatic rifle – contrary to s 51D(2) of the Firearms Act 1996 (NSW). The maximum penalty is 20 years imprisonment and a standard non-parole period of 10 years is prescribed. Grant DCJ sentenced the applicant to 7 years with a non-parole period of 4 years.
At the request of the applicant his Honour took into account four offences on a Form 1, as follows…

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 Fraser v The The King

Details

AGLC: Fraser v The The King [2022] NSWCCA 253
Case: [2022] NSWCCA 253
Decision Date: 07 December 2022

CaseChat Overview and Summary

The case of Fraser v The King involves an appeal against the sentence imposed on the applicant, Fraser, who had pleaded guilty to possession of 19 firearms at a rural property. Fraser intended to hand over the firearms to the police but was arrested before he could do so. The applicant argued that the sentence was manifestly excessive and plainly unjust. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, considering the circumstances of the case. The court had to consider the nature of the offence, the applicant's intent, and the principles of sentencing, particularly in relation to the concept of manifest excess. The court was also required to examine the proportionality of the sentence by comparing it to similar cases.

The High Court, in considering the principles of sentencing and the concept of manifest excess, found that the sentence was indeed plainly unjust. The court recognised that Fraser's intent was to hand over the firearms to the police, which mitigated the seriousness of the offence. Additionally, the court took into account the strong subjective case presented by the applicant and compared the sentence to other comparable cases. The court concluded that the sentence imposed was manifestly excessive and did not appropriately reflect the circumstances of the case.

The final orders of the court were to reduce the sentence imposed on Fraser to a level that the court deemed appropriate, considering the principles of sentencing and the specific circumstances of the case. The exact nature of the reduced sentence was not detailed in the text provided.

Orders