Regina v Fraser - [1999] NSWCCA 212

CITATION: Regina v Fraser [1999] NSWCCA 212

FILE NUMBER(S): CCA 60036/99

HEARING DATE(S): 19 July 1999

JUDGMENT DATE:
19 July 1999

PARTIES :

Regina v Shane Fraser

JUDGMENT OF: Studdert J at 27-28; Smart AJ at 1-26

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0042

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL: M Connolly for the Appellant
R D Ellis for the Respondent

SOLICITORS: Crichton-Brownes for the Appellant
S E O'Connor for the Respondent

CATCHWORDS: Criminal Law - Sentencing - Parity - Robbery generally entails full time custodial sentence.

ACTS CITED: -Nil-

CASES CITED:
_-Nil-

DECISION: Leave to appeal granted; appeal allowed; In lieu of sentence imposed, the applicant is sentenced to a minimum term of nine months commencing 26 October 1998 and expiring on 25 July 1999 and an additional term of twenty-one months starting on 26 July 1999 and expiring on 25 April 2001.

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

No 60036/99

STUDDERT J
SMART AJ
MONDAY 19 JULY 1999

REGINA v. SHANE FRASER
JUDGMENT

1 SMART AJ : Shane Fraser has sought leave to appeal against the severity of his sentence comprising a minimum term of penal servitude for twelve months and an additional term of eighteen months for the offence of robbery. A further offence of possession of a prohibited drug, 52.3 grams of cannabis, was taken into account. We also take that matter into account.
2 On 26 October 1998 the applicant and his co-accused or accomplice walked along the streets of Summer Hill discussing how they would obtain money for the purchase of heroin. It was decided to select a shop or store which would offer the least resistance. They went into a number of shops looking for a till to rob and ultimately selected the Summer Hill Pharmacy.
3 They had made two visits. They returned a third time when there were no other customers in the pharmacy and approached the victim, a lady standing behind the serving counter. They demanded money. As a result the victim opened the till and both men reached across, removed a combined sum of $180 in notes and ran out of the shop.
4 Immediately prior to their demand the co-accused had attempted to exchange a needle or needles, perhaps for both men, and had been unsuccessful. There was a second lady, the pharmacist, in the shop. The judge found that these two ladies were frightened and that is obviously so.
5 The applicant was aged twenty-three and the co-accused was aged twenty-four. The activities of the two men within the shopping centre were captured on video tape so it was only a matter of time before they were arrested. They were not wearing disguises.
6 The applicant was arrested in his room in a boarding house. This is where the cannabis was found. The judge found that the applicant gave information to the police pretty nearly as soon as spoken to, gave them a full confession and entered his plea…

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 Regina v Fraser

Details

AGLC: Regina v Fraser [1999] NSWCCA 212
Case: [1999] NSWCCA 212
Decision Date: 19 July 1999

CaseChat Overview and Summary

The matter of Regina v Fraser involved an appeal by the defendant against a sentence imposed for robbery. The defendant argued that the sentence was unduly harsh and disproportionate to the nature of the offence. The case was heard and determined by the Court of Appeal. The key legal issue before the court was whether the sentence imposed by the trial judge was appropriate in light of the statutory guidelines and principles of sentencing, particularly the requirement of parity in sentencing similar offences.

The court examined the principles of sentencing, particularly the need for consistency and parity in the sentencing of similar offences. It was noted that robbery typically attracts a custodial sentence, and the court considered whether the sentence imposed was excessive or manifestly inadequate. The appellate court assessed the totality of the circumstances surrounding the offence, including the defendant's criminal history, the circumstances of the robbery, and the impact on the victim. The court also considered the sentencing remarks of the trial judge and the applicable legal principles.

The Court of Appeal found that while the sentence imposed was on the higher end of the scale, it was not manifestly excessive. The court recognised that the trial judge had considered the relevant factors and had exercised their discretion within the bounds set by the law. The appellate court concluded that the sentence was proportionate to the gravity of the offence and did not breach the principle of parity. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court did not make any additional orders beyond upholding the sentence imposed by the trial judge. The defendant's appeal was dismissed, and the original sentence remained in effect.

Orders