R v Frazer
[2004] NSWCCA 111
•15 April 2004
CITATION: R v Frazer [2004] NSWCCA 111 HEARING DATE(S): Thursday, 15 April 2004 JUDGMENT DATE:
15 April 2004JUDGMENT OF: Sully J at 1; Dowd J at 2; Smart AJ at 29 DECISION: Leave to appeal granted; Appeal dismissed CATCHWORDS: Appeal against sentence - supply prohibited drug - co-offender - parity principle LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CASES CITED: Lowe v R (1984) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Tiddy (1969) SASR 575PARTIES :
Crown
Scott James FrazerFILE NUMBER(S): CCA 60007/04 COUNSEL: Mr T Healey (Applicant)
Mr B Knox SC (Respondent)SOLICITORS: Mr E Fritchley (Applicant)
Mr S Kavanagh (Respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 00/31/0422 LOWER COURT
JUDICIAL OFFICER :Nicholson DCJ
60007/04
Thursday, 15 April 2004SULLY J
DOWD J
SMART AJ
1 SULLY J: I agree with Dowd J.
2 DOWD J: The applicant, Scott James Frazer, has sought leave to appeal against a sentence imposed by Nicholson DCJ consequent upon the applicant’s conviction on a count of Supply A Prohibited Drug, namely, amphetamine, on an ongoing basis between 24 October 1999 and 23 November 1999, contrary to s25A of the Drug Misuse and Trafficking Act 1985, after a trial by jury. The offence carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units.
3 On sentence there was taken into account six charges on a Form 1: one charge of Supplying A Prohibited Drug, namely, pseudoephedrine, there being one kilogram involved; three charges of Supply Prohibited Drug, namely cannabis, being relatively small amounts; one charge of Assault; and one charge of Goods In Custody.
4 The applicant was imprisoned for five years commencing on 5 September 2002 to expire on 4 September 2007, with a non-parole period of three years expiring on 4 September 2005.
5 The applicant had been arrested on 25 November 1999. On 23 December 1999 the applicant was released to bail subject to conditions. Consequent upon a verdict of guilty on the count in the indictment, the applicant was granted bail, again on conditions, pending trial on another charge, which is the first charge on the Form 1. On 4 October 2002 the applicant appeared for sentence and was remanded in custody, and has remained in custody since that time.
6 As I have indicated, the most significant offence on the Form 1 was a Supply of one kilogram of pseudoephedrine which, if the subject of an indictment, would carry a maximum penalty of 15 years. As I have also indicated, the cannabis charges related to small amounts.
7 The Assault matter was somewhat more serious. It was an assault with a baseball bat, which caused lacerations to the victim requiring sutures. That was a Local Court matter and would have carried a maximum penalty of 12 months.
8 The remaining matter to be taken into account is the matter of Goods In Custody Reasonably Suspected of Being Unlawfully Obtained.
9 The learned sentencing judge very carefully, in his findings, made it clear that none of the matters on the Form 1 are within the Supply offence. It had been agreed between the parties, the Crown and the applicant’s counsel, that the sentence should date from 5 September 2002 to take into account pre-sentence custody.
10 The applicant was arrested after a police investigation in the Maitland and Singleton regions. During the course of these investigations telephone intercepts of the applicant’s phone occurred which disclosed incoming calls of persons seeking a supply of amphetamine from the applicant.
11 The Crown asserted that there was a joint criminal enterprise between the applicant and a man named John Thomas Walmsley to supply methylamphetamine on an ongoing basis.
12 Walmsley was sentenced on 15 August 2001 by Coolahan DCJ of the District Court after a plea of not guilty before a jury. He then pleaded guilty after a finding adverse to him on the admission of evidence consequent upon a voir dire examination.
13 In sentencing, Coolahan DCJ found that as a result of a search warrant, a number of satchels containing methylamphetamine had been found in Walmsley’s bedroom, and plastic bags, elastic bands, electronic scales and the usual paraphernalia of drug suppliers were found in a safe. Walmsley was seen to be washing material in a washbasin. Traces of methylamphetamine were found on the basin, and on the S-bend and the associated plumbing of the basin.
14 The system operating between the two parties to the joint enterprise was that Walmsley stored the methylamphetamine in a safe in the main bedroom of his house and would supply on an order from the applicant to a particular customer, or the applicant would provide Walmsley’s phone number directly. In these conversations code language was used.
15 Coolahan DCJ found, as conceded by the police in evidence, that Walmsley had played a subordinate role to that of Frazer, that Walmsley was acting on the directions of Frazer, and that a major amphetamine selling operation was being carried on by Frazer with significant assistance from Walmsley.
16 In respect of the applicant’s sentence, his Honour the learned sentencing judge found also that the applicant was the more significant operator of the two in the joint enterprise. Walmsley had received a sentence of two and a half years with a 15 month non-parole period. That had been achieved after the 20 per cent discount given to him because he pleaded guilty at an early stage in the trial. Walmsley had no matters taken into account.
17 It is put on behalf of the applicant that he is entitled to have a sense of grievance at the disparity between the sentence imposed by Coolahan DCJ on Walmsley. The 60 months imposed by Nicholson DCJ on the applicant is twice the period of the head sentence imposed on Walmsley, and the 36 months non-parole period is some 21 months additional to the sentence imposed on Walmsley.
18 The applicant had serious matters to be taken into account as subjective features. His Honour the learned sentencing judge, in a careful and detailed remarks on sentence, referred to the evidence of the eminent Consultant Psychiatrist, Dr Olav Nielssen, and the marked depressed state for which clearly the applicant had a need for treatment. His Honour also set out the very serious disadvantages that the applicant had had as a child, including some very serious medical matters at a very early age, and the fact that he had left school in Year 7 without having acquired any significant educational attainments during that period.
19 In dealing with the issue of parity, His Honour took into account the sentence which had been imposed on the co-offender and in so doing pointed out that, firstly, the applicant had a series of matters on a Form 1 including the first charge involving the very serious quantity of pseudoephedrine, a precursor to the creation of a more serious drug.
20 His Honour took into account the plea of guilty. His Honour took into account Walmsley’s more serious subjective matters and the discounts provided there and his Honour also took into account, and indeed particularly took into account, the significantly greater role that the applicant played to that of Walmsley.
21 The principles in relation to parity are as set out by Gibbs CJ in Lowe v R (1984) 154 CLR 606 at 609:
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”.
22 His Honour later went on to say:
“…but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, the part which he or she played in the commission of the offence, have to be taken into account”.
23 In the matter of Postiglione v R (1997) 189 CLR 295 Dawson J and Gaudron J, with whom Kirby J agreed, quoted the following extract from R v Tiddy (1969) SASR 575 at 599:
“Where other things are equal persons concerned in the same crime should receive the same punishment. Where other things are not equal due discrimination should be made”.
24 It was then held that if a judge wrongly fails to give effect to the parity principle an appellate court will intervene to correct what is an error in sentencing principle, citing Lowe v R (supra).
25 In this case the significant difference in the roles of the applicant and Walmsley, the plea of guilty, the lack of a previous criminal record on the part of Walmsley, the stronger subjective matters and greater role played by the applicant, means that in my view the applicant does not have a basis for a justifiable sense of grievance.
26 There is a finding by both judges as to the relative roles of the parties, and on the sentences imposed it seems to me that there has been no error in relation to parity on the part of the sentencing judge in respect of the applicant.
27 This is an application which is brought out of time and an extension of time for the making of the application is made. I would grant that extension of time for the bringing of this application for leave to appeal. The application in my view should be granted and the appeal dismissed.
28 The orders I would propose therefore are:
i. extension of time for the making of the application for leave to appeal be granted;
ii. application for leave to appeal be granted;
iii. the appeal be dismissed.
29 SMART AJ: I also agree.
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Last Modified: 05/19/2004
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