R v Frazer - [1997] QCA 306

[1997] QCA 306

COURT OF APPEAL
McPHERSON JA
DAVIES JA

WHITE J

CA No 252 of 1997
THE QUEEN
v.

TONY MICHAEL FRAZER

Applicant

BRISBANE
..DATE 05/08/97
050897 T13/JAP/22 M/T COA 171/97
McPHERSON JA: This applicant for leave to appeal was sentenced
in the District Court at Townsville to an effective term of
imprisonment of four and a half years for one count of burglary
and one of assault occasioning bodily harm committed in company
and while armed to which he pleaded guilty.

A period of 40 days pre-trial custody was recognised and allowed for in the sentence. The sentences of four and a half years were imposed on each count but were ordered to be served concurrently. Those sentences were imposed on 28 May 1997 but the effect of the applicant's conviction in respect of them was to activate an earlier but suspended sentence of 16 months and two weeks which His Honour ordered to be served cumulatively on the four and a half year sentence.

The total effect of sentence was therefore, once those two periods were added together, of the order of six years imprisonment, or a little less. In addition, the learned sentencing Judge extended the time for complying with a compensation order made on 10 February 1997 until a period of seven years had elapsed from 28 May 1997 on which the subject sentences were imposed.

The details of the two offences for which he was sentenced to four and a half years imprisonment are as follows. The applicant and a co-offender went to the complainant's house at night, and shouted at his 14-year-old stepson to come out, meanwhile throwing objects at the house.

050897 T13/JAP/22 M/T COA 171/97
The complainant himself came out on to the verandah of the
house, and the applicant and his companion approached him and
forced their way into the house by breaking a locked door. The
complainant, who is a 62-year-old pensioner, was attacked by
both of the intruders using their fists. He was knocked to the
ground and kicked by both of them in various parts of his body.

One of the intruders was carrying a rock, which was described by the Judge as larger than a house brick and weighing about four times as much. In leaving the complainant and the house one of them struck the complainant heavily about the head with the rock. Although his identify is uncertain, it seems clear that it was the applicant who hit the complainant again with the rock, this time in the area of the hip.

The rock had been, as I have already mentioned, carried into the house by the applicant or by his accomplice. The complainant's wife had been so terrified by the intrusion that she had fled the house. Fortunately, for everyone, the complainant's injuries arising from this assault were confined to a black eye, bumps and bruising, multiple cuts and abrasions, bruising to the face, a torn ear lobe, tenderness in the ribs, stomach and…

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 Frazer

Details

AGLC: R v Frazer [1997] QCA 306
Case: [1997] QCA 306
Decision Date: 5/08/1997

CaseChat Overview and Summary

Tony Michael Frazer, the applicant, appealed against his sentence imposed by the District Court at Townsville, which was an effective term of imprisonment of four and a half years for one count of burglary and one count of assault occasioning bodily harm committed in company and while armed. A period of 40 days pre-trial custody was recognised and allowed for in the sentence. The sentences of four and a half years were imposed on each count but were ordered to be served concurrently. The sentences were imposed on 28 May 1997, but the effect of the applicant's conviction in respect of them was to activate an earlier but suspended sentence of 16 months and two weeks which His Honour ordered to be served cumulatively on the four and a half year sentence. The total effect of sentence was therefore, once those two periods were added together, of the order of six years imprisonment, or a little less. The Court of Appeal had to decide whether the cumulative sentence was appropriate and whether a recommendation for parole should be added to the sentence.

The Court of Appeal found that the applicant's criminal history, including multiple prior convictions for assault, warranted a severe sentence. However, the Court was concerned that the cumulative sentence of almost six years for an 18-year-old man, who had never previously been sentenced to imprisonment, was heavy. The Court was also concerned that the sentence may have deprived the applicant and the community of any hope that he would reform himself. The Court decided to allow the appeal to the extent of varying the sentence by adding a recommendation for parole after the applicant had served two years of the four and a half year sentence to which the previously suspended sentence had been made cumulative. The Court emphasised that the applicant had been given all the chances he was ever going to get and that on his next appearance before the courts, he would be dealt with in a severe manner. The Court of Appeal ordered that the appeal be allowed to the extent of varying the sentence by adding a recommendation for parole after the applicant had served two years of the four and a half year sentence to which the previously suspended sentence had been made cumulative.

Orders