Mr Fraser appeals against a sentence of two years imprisonment imposed by Judge Crosbie in the District Court at Invercargill.[1] Following a sentencing indication, Mr Fraser pleaded guilty to two charges of importing the Class C controlled drug bk-MDMA and one charge of possessing that drug for sale.
[1]R v Fraser DC Invercargill CRI-2012-025-2128, 10 April 2013.
There are two grounds of appeal. First, that the Judge’s sentencing starting point of three years imprisonment was manifestly excessive, and should have been no more than two years. Secondly, that the Judge was wrong not to impose a sentence of home detention.

Facts

Customs intercepted a package addressed to Mr Fraser at his home address in Invercargill. Testing revealed that it contained 260 grams of bk-MDMA.
Following execution of a search warrant, Mr Fraser admitted to the Customs Officers that he had imported the drugs, sourcing them on the Internet. He said he had paid $600 for them. In the course of searching Mr Fraser’s home, the Customs Officers found further drugs. Mr Fraser then admitted he had imported a first quantity of bk-MDMA about six—eight months earlier.
Mr Fraser said he used some of the drugs himself but sold some of them to friends. The total street value of the two importations of drugs was approximately $21,600.

Sentencing starting point

In taking a starting point of three years imprisonment, Judge Crosbie acknowledged that Mr Fraser’s case “was not on all fours” with any sentencing precedent available to him. He drew a comparison with the five year starting point approved by this Court in Qiu,[2] and also adopted by Venning J in Jethwa.[3]
[2]R v Qiu CA202/06, 17 October 2006.
[3]R v Jethwa [2012] NZHC 2440.
Mr Slater questioned whether this case had any comparability with Qiu and Jethwa. As to Qiu, Mr Slater pointed out that it involved importation from China of 4.78 kilograms of pseudoephedrine based medicine (ContacNT capsules). Given that the pseudoephedrine could be converted into between 0.92 and 1.38 kilograms of methamphetamine, the imported pseudoephedrine had a street value of between $923,000 and $1.38 million.
Jethwa involved importing and selling the Class C controlled drugs 4–MEC and MDPV. They were sourced through drug supply websites and imported in packages using false identities. The drugs were then pressed into pills and on-sold to customers. At the peak of the operation Mr Jethwa and his co-offender were selling $55,000 worth of pills a week. $178,655 cash was seized by the police from Mr Jethwa’s address, his half share of the…

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 Fraser v R

Details

AGLC: Fraser v R [2013] NZCA 250
Case: [2013] NZCA 250
Decision Date: 21 June 2013 at 10 am

CaseChat Overview and Summary

Justin Alexander Fraser appeals against his sentence of two years imprisonment, imposed by Judge Crosbie in the District Court at Invercargill, for importing and possessing a Class C controlled drug, bk-MDMA. The appeal focuses on the sentence's severity and the appropriateness of home detention instead of imprisonment. The court was tasked with determining whether the sentencing starting point and the refusal to impose home detention were legally sound.

The court assessed the severity of the sentencing starting point and the refusal to impose home detention. Counsel for the appellant argued that the three-year starting point was manifestly excessive, suggesting a starting point of two years would be more appropriate. The court, however, found that the starting point was justified, considering the appellant's significant role in the importation and sale of the drugs. The court also upheld the Judge's decision not to impose home detention, emphasizing that the sentence needed to reflect the principles of deterrence and denunciation, which home detention would not adequately achieve.

The court concluded that the District Court Judge did not err in setting the sentencing starting point at three years or in declining to impose home detention. Both grounds of appeal were dismissed, and the appeal against the sentence was ultimately dismissed. The court's decision highlights the importance of considering the offender's role, the nature of the crime, and the sentencing principles when determining an appropriate sentence.

Orders