R v Fraser - [2022] NSWDC 36

District Court

New South Wales

Medium Neutral Citation: R v Fraser [2022] NSWDC 36
Hearing dates: 23 February 2022
Date of orders: 24 February 2022
Decision date: 24 February 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 129-130

Catchwords:
Sentencing - severity appeal - domestic violence offences - contravention of apprehended violence orders - offence against justice - intention to influence witness - driving offences - extensive prior criminal history - credibility and reliability of appellant's evidence explaining offending conduct, given on affidavit

Legislation Cited:
Crimes Act 1900 (NSW) s 323
Crimes (domestic and personal violence)Act 2007 (NSW) s 14
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 23
Road Transport Act 2013 ss 54, 117

Cases Cited:
Browning v R [2015] NSWCCA 147
Lai v R [2021] NSWCCA 217
R v Burton [2008] NSWCCA 128
R v Edwards (1996) 90 A Crim R 510
R v Prospero [2022] NSWDC 26
Van Eeden v R [2012] NSWCCA 18

Texts Cited:
Nil

Category: Sentence
Parties: Office of Director of Public Prosecutions
Mr I Fraser (Appellant)
Representation: Solicitors:
ODPP
Circle Bridge Legal for the appellant

File Number(s): 2019/00076291
Publication restriction: Nil

Judgment

INTRODUCTION

On 15 December 2021, Ian Fraser, the appellant, received an aggregate sentence from the Gosford Local Court of 18 months’ imprisonment and non-parole period of 12 months following his convictions for multiple offences stretching over a period from 17 September 2019 to 15 September 2021. The sentence was backdated to commence to 16 September 2021 to allow for the time the appellant had spent in custody.
The offences, the indicative sentences and the maximum penalties for the offences are as follows:

Sequence / Section

Offence

Date and Place of Offence

Indicative Sentence

Minimum/Maximum Penalty

H7215005/5

S 323(a) Crimes Act 1900

Acting with intent to influence witness

(to wit, send text messages intending to persuade Jacqueline Wilson)

17 September 2019 at Umina Beach

12 months

On indictment:

7 years imprisonment

Summary:

2 years imprisonment/100 penalty units

H312802295/1

S 14(1) Crimes (domestic and personal violence) Act 2007

Contravene prohibition of restriction in an apprehended domestic violence order

(PINOP: Jacqueline Wilson)

29 December 2019 at Umina Beach

Arrested on 29 December 2019

4 months

Summary only:

2 years imprisonment/50 penalty units

H78757842/1

S 14(1) Crimes (domestic and personal violence) Act 2007

Contravene prohibition of restriction in an apprehended domestic violence order

(PINOP: Jacqueline Wilson)

6 February 2021 at Umina Beach

Arrested on 6 February 2021

4 months

Summary only:

2 years imprisonment/50 penalty units

H82801724/1

S 54(1)(a) Road Transport Act 2013

Drive motor vehicle during disqualification period – prior offence

11 September 2021 at Woy Woy

5 months

Disqualified for 12 months

Summary only:

12 months imprisonment/50 penalty units

Minimum disqualification: 6 months

Automatic Disqualification: 12 months

H326099496/1

S 54(1)(a) Road Transport Act 2013

Drive motor vehicle during disqualification period – prior offence

On 15 September 2021 at Umina Beach

6 months

Disqualified for 12 months

Summary only:

12 months imprisonment/50 penalty units

Minimum disqualification: 6 months

Automatic…

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 [2022] NSWDC 36
Case: [2022] NSWDC 36
Decision Date: 24 February 2022

CaseChat Overview and Summary

The appellant, Fraser, was convicted of a series of domestic violence offences, including contravention of apprehended violence orders, and an offence against justice involving an intention to influence a witness. He was also convicted of driving offences and had a lengthy criminal history. Fraser appealed the severity of his sentence, which included a lengthy imprisonment term. The appeal focused on the appropriate weight to be given to the appellant's affidavit, which provided an account of his offending behaviour and his reasons for the offending.

The central legal issue before the court was the appropriate weight to be given to the appellant's affidavit in sentencing, particularly in light of his extensive criminal history and the nature of the offences. The court also considered whether the primary judge had properly assessed the appellant's credibility and reliability in light of the evidence provided. Additionally, the court needed to determine whether the sentence imposed was appropriate in all the circumstances, including the severity of the offending and the appellant's prior criminal history.

The court held that the primary judge had appropriately considered the appellant's affidavit and had correctly assessed its credibility and reliability. The court found that the appellant's extensive criminal history and the severity of the offending warranted a substantial term of imprisonment. The court rejected the appellant's argument that the sentence was excessive, noting that the primary judge had taken into account all relevant factors, including the appellant's offending history and the impact of his actions on the victims. The court concluded that the sentence imposed was appropriate and did not require amendment.

The court's final orders were that the appeal against the severity of the sentence was dismissed, and the original sentence was upheld. The court did not alter the terms of the sentence, finding that the primary judge had exercised his discretion appropriately in all the circumstances.

Orders

Orders of the court

See paragraph 129-130

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Fraser [2022] NSWDC 36
Hearing dates:	23 February 2022
Date of orders:	24 February 2022
Decision date:	24 February 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 129-130
Catchwords:	Sentencing - severity appeal - domestic violence offences - contravention of apprehended violence orders - offence against justice - intention to influence witness - driving offences - extensive prior criminal history - credibility and reliability of appellant's evidence explaining offending conduct, given on affidavit
Legislation Cited:	Crimes Act 1900 (NSW) s 323 Crimes (domestic and personal violence)Act 2007 (NSW) s 14 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 23 Road Transport Act 2013 ss 54, 117
Cases Cited:	Browning v R [2015] NSWCCA 147 Lai v R [2021] NSWCCA 217 R v Burton [2008] NSWCCA 128 R v Edwards (1996) 90 A Crim R 510 R v Prospero [2022] NSWDC 26 Van Eeden v R [2012] NSWCCA 18
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of Director of Public Prosecutions Mr I Fraser (Appellant)
Representation:	Solicitors: ODPP Circle Bridge Legal for the appellant
File Number(s):	2019/00076291
Publication restriction:	Nil