Frazier v The Queen - [2019] NSWDC 961

District Court

New South Wales

Medium Neutral Citation: Frazier v R [2019] NSWDC 961
Hearing dates: 10 May 2019
Date of orders: 10 May 2019
Decision date: 10 May 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
(1)   The appeal is upheld.
(2)   I set aside the conviction imposed by the Local Court on 28 February 2019.
(3) I do not proceed to conviction under s 9(1)(b) and s 10 of the Crimes (Sentencing Procedure) Act 1999.
(4) I confirm under s 69 of the Crimes (Appeal and Review) Act 2001 the Conditional Release Order expiring 27 August 2020 and the conditions attaching to that order imposed by the Local Court, namely that Mr Frazier:
(a)   not commit any offence; and
(b)   must appear before the Court if called upon.

Catchwords:
CRIME – appeal and review – appeal from Local Court to District Court – by person sentenced against sentence – supply small quantity of cannabis – whether conviction appropriate

Legislation Cited:
Crimes (Appeal and Review) Act 2001, s 69
Crimes (Sentencing Procedure) Act 1999, s 3A, s 9, s 10
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, s 77C
Drug Misuse and Trafficking Act 1985, s 25
Mental Health Act 2007

Cases Cited:
R v Mauger [2012] NSWCCA 51

Category: Principal judgment
Parties: Kadeem Frazier (appellant)
Regina (respondent)
Representation: Solicitors:
Mr Scott (appellant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2018/00357514
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

28 February 2019

Before:

Magistrate K Robinson

File Number(s):

2018/00357514

Judgment

Mr Kadeem Frazier appeals from a sentencing decision of the Local Court in respect of the offence of supplying a small quantity of a prohibited drug, namely cannabis.
Mr Frazier pleaded guilty to the offence and the Local Court proceeded to convict Mr Frazier of the offence and imposed an 18-month conditional release order expiring 27 August 2020, conditioned on Mr Frazier not committing any offence and that he must appear before the Court if called upon.
Mr Frazier does not challenge the conditional release order and expressly indicated no opposition to both an increase in the period of the conditional release order to two years, and also to a further condition requiring him to continue to receive treatment from the clinical psychologist, Mr Gerard McShane.
The challenge raised by the appeal is whether the Court should proceed to a conviction. Section 9 of the Crimes (Sentencing Procedure) Act 1999 allows the Court to find a person guilty of an offence and make a conditional release order discharging the offender, whether the Court proceeds to a conviction under s 9(1)(a), or under s 9(1)(b) does not proceed to conviction but makes an order under s 10(1)(b). Thus, Mr Frazier seeks that the conviction be set aside, that the Court find him guilty of the offence without proceeding to a conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act, and…

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 Frazier v The Queen

Details

AGLC: Frazier v The Queen [2019] NSWDC 961
Case: [2019] NSWDC 961
Decision Date: 10 May 2019

CaseChat Overview and Summary

The appeal in Frazier v The Queen was brought by the defendant, Mr Frazier, against his conviction and sentence imposed by the Local Court on 28 February 2019. The dispute centred around the defendant's conviction for the supply of a small quantity of cannabis. Mr Frazier argued that the conviction was inappropriate given the circumstances of the case.

The legal issues the court had to address included whether the conviction was proportionate to the offence committed and whether the sentence imposed was appropriate. The court also needed to consider whether the conviction was justified under the relevant statutory provisions, specifically sections 9(1)(b) and 10 of the Crimes (Sentencing Procedure) Act 1999.

The District Court found that the conviction was not appropriate given the small quantity of cannabis involved and the defendant's circumstances. The court emphasised the need for proportionality in sentencing and determined that the conviction imposed by the Local Court was not suitable. As a result, the appeal was upheld, and the conviction was set aside. However, the court confirmed the Conditional Release Order and its conditions, including the requirement for the defendant not to commit any offence and to appear before the court if required.

Orders

Orders of the court

(1) The appeal is upheld.

(2) I set aside the conviction imposed by the Local Court on 28 February 2019.

(3) I do not proceed to conviction under s 9(1)(b) and s 10 of the Crimes (Sentencing Procedure) Act 1999.

(4) I confirm under s 69 of the Crimes (Appeal and Review) Act 2001 the Conditional Release Order expiring 27 August 2020 and the conditions attaching to that order imposed by the Local Court, namely that Mr Frazier:

(a) not commit any offence; and

(b) must appear before the Court if called upon.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Frazier v R [2019] NSWDC 961
Hearing dates:	10 May 2019
Date of orders:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	(1) The appeal is upheld. (2) I set aside the conviction imposed by the Local Court on 28 February 2019. (3) I do not proceed to conviction under s 9(1)(b) and s 10 of the Crimes (Sentencing Procedure) Act 1999. (4) I confirm under s 69 of the Crimes (Appeal and Review) Act 2001 the Conditional Release Order expiring 27 August 2020 and the conditions attaching to that order imposed by the Local Court, namely that Mr Frazier: (a) not commit any offence; and (b) must appear before the Court if called upon.
Catchwords:	CRIME – appeal and review – appeal from Local Court to District Court – by person sentenced against sentence – supply small quantity of cannabis – whether conviction appropriate
Legislation Cited:	Crimes (Appeal and Review) Act 2001, s 69 Crimes (Sentencing Procedure) Act 1999, s 3A, s 9, s 10 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, s 77C Drug Misuse and Trafficking Act 1985, s 25 Mental Health Act 2007
Cases Cited:	R v Mauger [2012] NSWCCA 51
Category:	Principal judgment
Parties:	Kadeem Frazier (appellant) Regina (respondent)
Representation:	Solicitors: Mr Scott (appellant) Office of the Director of Public Prosecutions (respondent)
File Number(s):	2018/00357514
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 February 2019 Before: Magistrate K Robinson File Number(s): 2018/00357514