R v Fraser - [2008] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRASER
[2008] SASC 40
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
14 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Appeal against sentence - whether sentence imposed on appellant should be set aside because it is a heavier sentence than sentence imposed on co-offender.
Held: appeal allowed - sentence imposed by District Court set aside - new sentence imposed.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 86A, s 134, s 169(2), referred to.
R v MacGowan (1986) 42 SASR 50; R v Czubak (2005) 92 SASR 400; R v Bartels (1986) 44 SASR 260, considered.

R v FRASER
[2008] SASC 40
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ (extempore)

DOYLE CJ: This is an appeal against sentence. Permission to appeal was granted by a single judge.
The issue on appeal is whether a sentence imposed on Mr Fraser should be set aside because it is a heavier sentence than the sentence imposed on Mr Peake who is a co-offender.
Mr Fraser and Mr Peake were sentenced by different judges. Each of them pleaded guilty to seven offences.
The offences were as follows: using a motor vehicle without consent contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”); two counts of aggravated serious criminal trespass in non-residential premises contrary to s 169(2) of the Act; two counts of damaging property contrary to s 85(3) of the Act and two counts of theft contrary to s 134 of the Act.
The maximum penalty for these offences is as follows: for using the motor vehicle not less than three months and not more than four years’ imprisonment, and licence disqualification for 12 months; for the aggravated serious criminal trespass, imprisonment not exceeding 20 years; for damaging property, imprisonment not exceeding three years; and for theft, imprisonment not exceeding ten years.
The circumstances of the offences were as follows.
Together Mr Fraser and Mr Peake unlawfully took a motor vehicle from a car park. The taking and subsequent use of this motor vehicle gave rise to the first offence.
Together they used the motor vehicle to force their way into a pharmacy at Kensington Park. This was a so-called “ram raid”. The damage they did to the premises was estimated at $8,500. They stole tablets and cash from the premises.
Using the same vehicle, they then carried out another “ram raid” at a pharmacy at Brighton. The damage to the premises was estimated at $20,000. They stole perfumes valued at about $7,000.
The “ram raids” gave rise to the offences of aggravated serious criminal trespass, theft and damaging property.
Mr Peake and Mr Fraser were each equally culpable. There…

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 [2008] SASC 40
Case: [2008] SASC 40
Decision Date: 14 February 2008

CaseChat Overview and Summary

The case of R v Fraser involved the appellant, Fraser, who was convicted of a crime alongside co-offenders. Fraser appealed against the sentence imposed by the District Court, arguing that the sentence was disproportionately heavier than those given to his co-offenders. The primary legal issue before the court was whether the disparity in sentencing between Fraser and his co-offenders was so significant as to warrant setting aside the sentence imposed on Fraser and imposing a new one. The court considered the principles of parity in sentencing and the need to avoid unjustifiable disparities between sentences of co-offenders.

The court examined the circumstances of the crime, the respective roles of the appellant and his co-offenders, and the sentences previously imposed on the co-offenders. It held that the disparity in the sentences was indeed substantial and unjustifiable, taking into account the roles and contributions of each party to the crime. The court concluded that the original sentence imposed on Fraser did not reflect the appropriate balance with the sentences of his co-offenders. Consequently, the appeal was allowed, and the original sentence was set aside. A new sentence was imposed, reflecting a more equitable outcome in light of the court's findings.

In its final orders, the court mandated that the District Court impose a new sentence on Fraser, ensuring that the disparity with the sentences of his co-offenders was appropriately addressed. This decision underscored the importance of maintaining parity in sentencing among co-offenders to uphold the principles of justice and fairness.

Orders