R v. Fraser - [2007] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fraser [2007] QCA 346

PARTIES:

R
v
FRASER, Robert
(applicant)

FILE NO/S:

CA No 139 of 2007
SC No 5 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

18 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2007

JUDGES:

McMurdo P, Holmes JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted at trial of producing a dangerous drug, cannabis sativa, in excess of 500 grams – where the applicant was sentenced to two and a half years imprisonment with a parole release date fixed after 12 months – whether the sentence imposed was manifestly excessive

R v Applewaite (1996) 90 A Crim R 167, considered
R v Laing[2003] QCA 92; (2003) 138 A Crim R 312, considered
R v McKay [1997] QCA 97; CA No 574 of 1996, 17 April 1997, considered
R v Rodgers & Dowling [2003] QCA 99; CA Nos 179 & 200 of 2002, 14 March 2003, considered
R v Roulstone [1998] QCA 324; CA No 254 of 1998, 18 September 1998, considered
R v Vincent; Ex parte Attorney-General of Queensland [2000] QCA 250; (2000) 112 A Crim R 433, considered

COUNSEL:

A J Kimmins for the applicant
M R Byrne for the respondent

SOLICITORS:

Wettenhall Silva Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant, Robert Fraser, was convicted after a one day trial of producing a dangerous drug, cannabis sativa, in excess of 500 grams. He was sentenced to two and a half years' imprisonment with a parole release date fixed at 29 May 2008, that is, after 12 months.

He now applies only for leave to appeal against his sentence, contending that it was manifestly excessive. His counsel, Mr Kimmins, submits that the appropriate range was a sentence of about 21 months' imprisonment with suspension or suspended after four to six months.

The following facts were admitted at the trial so that the contentious issue was narrowed to whether Mr Fraser or some other unknown intruder was responsible for the production of the cannabis.

On 15 February 2006, police executed a search warrant of
Mr Fraser's premises near Millaa Millaa in far north Queensland where he then lived with his wife. In the south-east corner of the property was a dam with an irrigation pipe leading to a cleared area within a thicket of lantana.
Police located seven areas within the thicket with a total of 234 cannabis sativa plants growing. The area was fenced with three-strand barbed wire. The irrigation…

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 R v. Fraser

Details

AGLC: R v Fraser [2007] QCA 346
Case: [2007] QCA 346
Decision Date: 18 October 2007

CaseChat Overview and Summary

In the case of R v. Fraser, the applicant was convicted at trial of producing a dangerous drug, specifically cannabis sativa, in excess of 500 grams. The applicant was sentenced to two and a half years imprisonment, with a parole release date set to occur after 12 months. The applicant subsequently applied to the court for leave to appeal against the sentence imposed, arguing that the sentence was manifestly excessive. The court was required to determine whether the sentence was manifestly excessive, and if so, whether the applicant was entitled to leave to appeal.

The court considered the nature of the offence, the circumstances of the applicant, and the principles of sentencing. The court noted that the production of a dangerous drug in such quantities was a serious offence, and that the sentence imposed reflected this. The court also considered the applicant's personal circumstances, including the fact that the applicant had no prior criminal record. However, the court ultimately concluded that the sentence imposed was not manifestly excessive, and that the applicant was not entitled to leave to appeal.

The court's reasoning was based on the principles of proportionality and deterrence. The court noted that the sentence imposed was within the range of sentences typically imposed for this type of offence, and that the sentence reflected the seriousness of the offence. The court also considered the need to deter others from engaging in similar conduct. The court concluded that the sentence imposed achieved these objectives, and that there were no grounds for the applicant to appeal against the sentence.

The final orders of the court were that the application for leave to appeal was refused. The court found that the sentence imposed was not manifestly excessive, and that the applicant was not entitled to leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused

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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CITATION:	R v Fraser [2007] QCA 346
PARTIES:	R v FRASER, Robert (applicant)
FILE NO/S:	CA No 139 of 2007 SC No 5 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	18 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2007
JUDGES:	McMurdo P, Holmes JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted at trial of producing a dangerous drug, cannabis sativa, in excess of 500 grams – where the applicant was sentenced to two and a half years imprisonment with a parole release date fixed after 12 months – whether the sentence imposed was manifestly excessive R v Applewaite (1996) 90 A Crim R 167, considered R v Laing[2003] QCA 92; (2003) 138 A Crim R 312, considered R v McKay [1997] QCA 97; CA No 574 of 1996, 17 April 1997, considered R v Rodgers & Dowling [2003] QCA 99; CA Nos 179 & 200 of 2002, 14 March 2003, considered R v Roulstone [1998] QCA 324; CA No 254 of 1998, 18 September 1998, considered R v Vincent; Ex parte Attorney-General of Queensland [2000] QCA 250; (2000) 112 A Crim R 433, considered
COUNSEL:	A J Kimmins for the applicant M R Byrne for the respondent
SOLICITORS:	Wettenhall Silva Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent