Fraser, W.G. v Regina - [1985] FCA 597

Re: WILLIAM GRAHAM FRASER
And: REGINA
No. ACT G331 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Kelly J.
Beaumont J.

CATCHWORDS

Criminal Law - Appeal on Sentence - Non-parole period apparently fixed having regard to remissions thereof available under relevant New South Wales legislation - Reduction of period - Imprisonment and fine - Term of imprisonment and fine imposed - Imprisonment in default of fine ordered to commence at expiration of non-parole period - Relevance of means of offender - Appearance given that matters not advanced by prosecution or in issue before court taken into account - Whether reduction of sentence thereby warranted.

Paivinen v. R. (1985) 59 A.L.R. 368

Paivinen v. R. (1985) 59 A.L.J.R. 543

Regina v. R. (unreported) Full Court of Federal Court of Australia, 13 August 1985

R. v. Raspovic (unreported) Supreme Court of the Australian Capital Territory, 30 May 1984

Kaye v. Vagg (No.2) (1984) 11 A.Crim.R. 127

Flego v. Lanham (1983) 32 S.A.S.R. 361

Winkler v. Cameron (1981) 33 A.L.R. 663

Reardon v. Nolan (1983) 51 A.L.R. 715

Savundra v. The Queen (1968) 52 C.A.R. 637

Lott-Carter (1978) 67 C.A.R. 404

R. v. Po (1974) Crim.L.R. 557

R. v. Forsythe (1980) Crim. L.R. 313

R. v. Jacobs (1980) Crim.L.R. 800

Cotic v. R. (1984) 12 A.Crim.R. 208

Achetraritei v. R. (1984) 53 A.L.R. 85

HEARING

CANBERRA
#DATE 27:11:1985

ORDER

The appeal be allowed.

The sentence of 8 years imprisonment be set aside and that in lieu thereof the appellant be imprisoned for seven and a half years.

A non-parole period of 4 years and 3 months be fixed.

The sentence date from 18 September 1984, the date when the sentence appealed from was imposed.

The fine of $10,000 be quashed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

On 18 July 1984 the appellant pleaded guilty in the Court of Petty Sessions, Canberra, to a charge laid under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.) (the Ordinance) that on 24 June 1984 he had heroin in his possession for the purpose of supplying it to another person. The maximum sentence which may be imposed for that offence under s.4(6) of the Ordinance is imprisonment for 25 years or a fine of $100,000 or both such fine and imprisonment. The appellant was committed for sentence to the Supreme Court of the Australian Capital Territory before which, on 9 August 1984, he adhered to his plea.

On 18 September 1984 the appellant was sentenced to imprisonment for 8 years, a non-parole period of 6 years being fixed, and was in addition ordered to pay a penalty of $10,000. In default of payment of the penalty the appellant was to serve one year's imprisonment to commence at the expiration of the non-parole period.

The following statement of facts is taken from the reasons for sentence of the learned sentencing Judge.

"The…

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, W.G. v Regina

Details

AGLC: Fraser, W.G. v. Regina [1985] FCA 597
Case: [1985] FCA 597
Decision Date: 27 NOVEMBER 1985

CaseChat Overview and Summary

In the matter of Fraser, W.G. v Regina, the appellant challenged his sentence on appeal. The appellant, Mr. Fraser, was convicted of several offences and sentenced to a term of 8 years imprisonment, with a non-parole period of 5 years, along with a fine of $10,000. The legal dispute centred on the calculation of the non-parole period, the imposition of the fine, and the commencement of the imprisonment term in default of the fine. The appeal was brought before the court to review the sentence's appropriateness, focusing on the interplay between the remissions available under New South Wales legislation and the overall sentencing framework.

The court examined whether the trial judge had appropriately considered the appellant's means and the remissions available under New South Wales legislation when determining the non-parole period. It was argued that the trial judge had inadvertently taken into account factors not advanced by the prosecution or in issue before the court, potentially leading to an unjust imposition of the sentence. Additionally, the court scrutinised whether the fine and the timing of the imprisonment term were correctly ordered and whether they should be altered in light of the appeal.

The court concluded that the trial judge's consideration of the appellant's means and the remissions available had indeed influenced the non-parole period, and that these factors should not have been considered. The court found that the trial judge had inadvertently taken into account matters not advanced by the prosecution or in issue before the court. As a result, the court deemed the sentence to be unwarranted in its current form. The appeal was allowed, and the sentence was reduced to 7 and a half years imprisonment with a non-parole period of 4 years and 3 months. The fine was quashed, and the sentence was ordered to commence from the date of the original sentence.

Orders

Orders of the court

The appeal be allowed.

The sentence of 8 years imprisonment be set aside and that in lieu thereof the appellant be imprisoned for seven and a half years.

A non-parole period of 4 years and 3 months be fixed.

The sentence date from 18 September 1984, the date when the sentence appealed from was imposed.

The fine of $10,000 be quashed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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