R v Fraser - [2000] NSWCCA 97

CITATION: R v Fraser [2000] NSWCCA 97

FILE NUMBER(S): CCA 60096/99

HEARING DATE(S): 24/03/00

JUDGMENT DATE:
24 March 2000

PARTIES :

Regina v Gregory Fraser

JUDGMENT OF: Abadee J; James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0209

LOWER COURT JUDICIAL
OFFICER : Mahoney DCJ

COUNSEL : L Flannery - Applicant
LMB Lamprati - Crown

SOLICITORS: TA Murphy - Applicant
SE O'Connor - Crown

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60096/99

ABADEE J
JAMES J

Friday 24 March 2000

REGINA v GREGORY JAMES FRASER

JUDGMENT
1 ABADEE J: The Court is in a position to give its decision immediately. I will ask James J to give the first judgment.
2 JAMES J: Gregory James Fraser has applied for leave to appeal against sentences imposed on him in the District Court on 2 March 1999 by his Honour Judge Nield, after he had pleaded guilty to twenty two charges of obtaining property by deception, being offences under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years; one charge of stealing, an offence under s 117 of the Crimes Act, for which the maximum penalty is penal servitude for five years; and two charges of making a false instrument and then using the false instrument, being offences under s 300 of the Crimes Act, for which the maximum penalty is penal servitude for ten years.
3 The offences of obtaining property by deception had been committed by the applicant during two separate periods. The offences charged in counts 1 to 10 and counts 12 to 15 of the indictment had been committed between 23 August 1996 and 19 November 1996. The offences charged in counts 16 to 18 and 21 to 25 of the indictment had been committed between 26 August 1997 and 26 November 1997. The charge of stealing was the eleventh count in the indictment and the charges under s 300 of the Crimes Act were the nineteenth and twentieth counts in the indictment.
4 On each of the charges in counts 1 to 10 of the indictment Judge Nield imposed a fixed term of imprisonment for two years, to date from 2 March 1999, which was the date of sentencing, the sentences is to be served concurrently. On the charge of stealing Judge Nield imposed a sentence of penal servitude for a fixed term of two years, also to date from 2 March 1999. On each of the charges in counts 12 to 18 and 21 to 25 of the indictment Judge Nield imposed a sentence of imprisonment for three years, consisting of a minimum term of one year to date from 2 March 2001 and an additional term of two years, the sentences to be served concurrently. On each of the charges in counts 19 to 20 of the indictment Judge Nield imposed a sentence of penal servitude for three years, consisting of a minimum term of one year to date from 2 March…

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 [2000] NSWCCA 97
Case: [2000] NSWCCA 97
Decision Date: 24 March 2000

CaseChat Overview and Summary

The case of Regina v Gregory Fraser involved the appellant, Gregory Fraser, appealing against the sentences imposed on him in the District Court for various charges, including obtaining property by deception, stealing, and making and using a false instrument. The lower court had imposed sentences of imprisonment and penal servitude, with concurrent terms, and Fraser sought leave to appeal against these sentences, arguing they were manifestly excessive. The Court of Criminal Appeal was required to decide whether the starting point of seven years for the overall total sentence was manifestly excessive, considering the objective facts of the offences and the subjective circumstances of the appellant.

The Court considered the appellant's subjective circumstances, including his age, his stable relationship, his gambling addiction, and his lack of a previous criminal history. The sentencing judge had found that the appellant had already begun his rehabilitation and was unlikely to re-offend. The Court also noted the appellant's assistance in the prosecution of another offender, which resulted in a reduction of the overall total sentence from seven to five years. The Court examined previous decisions and statistics to determine if the seven-year starting point was excessive. Ultimately, the Court found that the appellant's submission that the starting point was manifestly excessive was valid and granted leave to appeal.

The Court decided to re-sentence, considering the additional evidentiary material provided, which showed the appellant's behaviour in custody and his efforts towards rehabilitation. The Court concluded that a starting point of five years was appropriate, with a thirty per cent discount for assistance, resulting in an overall total sentence of three and a half years. The Court divided this into two years three months of fixed terms or minimum terms and an additional term of one year three months. The sentences were to be served concurrently, and the earliest date for the appellant's eligibility for release on parole was set as 2 June 2001. The Court also discussed the suppression of the appellant's name due to his assistance, ultimately deciding against suppression as the information was already in the public domain.

Orders