AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 May 2019

Frazier v R

[2019] NSWDC 961

Drugs
CRIME APPEAL AND REVIEW BY PERSON SENTENCED AGAINST SENTENCE SUPPLY SMALL QUANTITY OF CANNABIS WHETHER CONVICTION APPROPRIATE

Citation: Frazier v R [2019] NSWDC 961
Court: District Court of New South Wales
Date: 10 May 2019
Judge: P Taylor SC DCJ

Background

The appellant pleaded guilty in the Local Court to supplying a small quantity of a prohibited drug, namely 3.48 grams of cannabis, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985. The Local Court convicted him and imposed an 18-month conditional release order. The appellant was 19 years old at the time of the offence and had no prior criminal history.

On appeal to the District Court, the appellant did not challenge the conditional release order itself. His sole ground was that the Local Court erred in proceeding to a conviction rather than making an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to find a person guilty without recording a conviction.

The Crown did not oppose the application for a s 10 order, citing the appellant's age, his clean record, and the very small quantity of cannabis involved.

  • Whether the District Court should set aside the conviction and instead make a conditional release order without proceeding to conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the combination of personal circumstances, including age, mental health, the quantity of drugs, and rehabilitation steps, was sufficient to justify that outcome for an offence of supplying a prohibited drug

Decision

The District Court acknowledged that a s 10 outcome for a supply offence is unusual and should not be treated as routine. Supply of a prohibited drug, even a small quantity of cannabis, remains a serious offence warranting denunciation, given the harm drugs cause in the community. The court was not persuaded that the appellant's mental health conditions entirely removed the deterrent aspect of sentencing.

Nevertheless, the court found that the cumulative weight of ten distinct mitigating factors justified departing from a conviction in this case. Those factors included: the appellant's age and clear antecedents; an early guilty plea; the very small quantity of cannabis (less than 12% of the statutory threshold for a "small quantity"); diagnosed generalised anxiety and obsessive compulsive disorders; the cessation of a boxing career due to injury and its connection to increased idle time; strong family support; the adverse employment impact a conviction would carry; reduced weight for deterrence given his mental condition; and recent drug-free test results demonstrating he had moved away from drug involvement.

The court applied s 10(3) of the Crimes (Sentencing Procedure) Act, which directs attention to factors including the offender's age, antecedents, mental condition, and the nature of the offence. Referring to R v Mauger [2012] NSWCCA 51, the court noted that a s 10 conditional release order is not a trivial outcome and does not dilute the significance of the order imposed. On the totality of the circumstances, the court was satisfied that good grounds existed for proceeding without conviction.

Orders Made

  • The appeal was upheld
  • The conviction imposed by the Local Court on 28 February 2019 was set aside
  • The court did not proceed to conviction under s 9(1)(b) and s 10 of the Crimes (Sentencing Procedure) Act 1999
  • The Conditional Release Order expiring 27 August 2020 was confirmed under s 69 of the Crimes (Appeal and Review) Act 2001, subject to conditions that the appellant not commit any offence and must appear before the court if called upon

Key Takeaways

  • A s 10 conditional release order without conviction remains available for drug supply offences, but the District Court emphasised it is an unusual outcome and is not lightly granted in that context.
  • Ten distinct mitigating factors, assessed cumulatively, were sufficient to justify departing from a conviction for supply of a small quantity of cannabis by a first-offender aged 19.
  • Under s 10(3) of the Crimes (Sentencing Procedure) Act 1999, a court must have regard to the offender's age, antecedents, mental condition, and the nature of the offence when deciding whether to proceed to conviction.
  • Consistent with R v Mauger [2012] NSWCCA 51, a s 10 conditional release order is not a trivial disposition; the order's conditions retain real force even without a recorded conviction.
  • The Crown's non-opposition to a s 10 outcome was treated as a relevant consideration, though the court conducted its own analysis of the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 69
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), s 77C
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Mental Health Act 2007 (NSW)

Cases
- R v Mauger [2012] NSWCCA 51