Mr Kadeem Frazier appeals from a sentencing decision of the Local Court in respect of the offence of supplying a small quantity of a prohibited drug, namely cannabis.
Mr Frazier pleaded guilty to the offence and the Local Court proceeded to convict Mr Frazier of the offence and imposed an 18-month conditional release order expiring 27 August 2020, conditioned on Mr Frazier not committing any offence and that he must appear before the Court if called upon.
Mr Frazier does not challenge the conditional release order and expressly indicated no opposition to both an increase in the period of the conditional release order to two years, and also to a further condition requiring him to continue to receive treatment from the clinical psychologist, Mr Gerard McShane.
The challenge raised by the appeal is whether the Court should proceed to a conviction. Section 9 of the Crimes (Sentencing Procedure) Act 1999 allows the Court to find a person guilty of an offence and make a conditional release order discharging the offender, whether the Court proceeds to a conviction under s 9(1)(a), or under s 9(1)(b) does not proceed to conviction but makes an order under s 10(1)(b). Thus, Mr Frazier seeks that the conviction be set aside, that the Court find him guilty of the offence without proceeding to a conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act, and that the Court confirm the sentence of the conditional release order for 18 months on the same conditions under s 69 of the Crimes (Appeal and Review) Act 2001 read in the light of s 77C of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, which allows the reference to a good behaviour bond in s 69 of the Crimes (Appeal and Review) Act to include a reference to a conditional release order, or alternatively, a conditional release order for a two-year period with a further condition of continued treatment as indicated.
Thus, although the appeal is described as a severity appeal rather than a conviction appeal, the nub of the appeal is, whilst not disputing the commission of the offence, to challenge the conviction, the sentence not otherwise being challenged.
It might correctly be supposed that s 10 bonds on conditional release orders without proceeding to a conviction are an unusual, even a rare, outcome for the offence of supply of a prohibited drug. The circumstances raised by Mr Frazier in this case to support such an outcome can be listed as follows.
First, this is the first offence of Mr Frazier, whose criminal record is otherwise clear.
Secondly, Mr Frazier is youthful. He was 19 years old at the date of the offence on 26 October 2018, and has now recently reached 20 years of age.
Thirdly, Mr Frazier pleaded guilty to the offence at an early opportunity, and would thus be entitled to a discount on any sentence by reason of the utilitarian value of the plea.
Fourthly, the quantity of money and drugs in Mr Frazier's possession at the time of the offence was small, respectively $80 and 3.48 grams of cannabis. The quantity of cannabis calculates to be less than 12% of the amount which would still constitute a "small quantity" for the purposes of s 25(1) of the Drug Misuse and Trafficking Act 1985 under which Mr Frazier was charged.
Fifthly, Mr Frazier has been afflicted with a mental health disorder and has been seeing a clinical psychologist, Mr Gerard McShane, since May 2015 for generalised anxiety and obsessive compulsive disorders. Even if Mr Frazier would not be considered a mentally ill or mentally disordered person as defined by the Mental Health Act 2007, he proposes to continue that treatment.
Sixthly, Mr Frazier has been a well-performed sports person, in particular in amateur boxing, and had aspirations to become a professional boxer until about a year ago, when in early 2018 a neck injury from a boxing match forced him to give up that preferred career path. His weekly regime of boxing training six or seven days a week ended along with his career aspirations. Although Mr Frazier has had some employment in construction, warehousing and the hospitality industries, including obtaining a RSA Certificate, his additional idle time after he ceased boxing training has not helped his anxiety or OCD issues and that, together with spending more time with friends due to his underemployment, is said potentially to be connected to the offence, which occurred when he was with four other males who were drinking alcohol. Mr Frazier was there found to be in possession of the cannabis and other objects which form the basis of the charge.
Seventhly, Mr Frazier has the guidance and support of his mother, the Department of Community Services Child Protection worker and his aunt, who are present in court today and with whom he has spoken about the offence, indicating that Mr Frazier has to some degree at least taken responsibility for the offence or, within the words of s 3A of the Crimes (Sentencing Procedure) Act, he has been made accountable for his actions. By involving his family and continuing his treatment, Mr Frazier has taken corrective steps towards rehabilitation.
It might be inferred that Mr Frazier understands the steps that his family, and his mother in particular, have taken by travelling across the world and across the country, leaving behind the familiarity of what was once their home, to improve his prospects in life, and that he accepts his own responsibility to make the best of what he has been given.
Eighthly, the conviction for supply of a prohibited drug, even a small quantity of cannabis, would likely impact adversely on his employment prospects, a matter which would not promote the rehabilitation of Mr Frazier and other of the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act.
Ninthly, the sentencing purposes of general and specific deterrence as referred to in s 3A of Crimes (Sentencing Procedure) Act are lessened by the circumstance of the mental condition being suffered by Mr Frazier at the time of the offence.
Tenthly, Mr Frazier has, in the words of Mr McShane, "moved away from drug involvement" and recent drug screening tests in late March and early May 2019 indicate Mr Frazier to be free of any drugs, including cannabinoids in his system.
Each of these matters is accepted. However, I do not accept that Mr Frazier's mental conditions remove entirely the deterrent aspect of sentencing. Nor do I accept that the supply of a prohibited drug, even a small quantity of cannabis is other than a serious offence requiring adequate punishment, although I do accept that the offence was at the low, perhaps the lowest, end of the scale. It is a crime nevertheless to be denounced, especially because of the harm done by drugs in the community, including to young people.
I have had regard to the statistics on sentencing in respect of first offenders for this offence in the Local Court and in this Court.
All of the factors that I have mentioned have force in support of the appeal. In addition, it is significant that the Crown does not oppose a s 10 bond or, more correctly, a conditional release order under s 10, apparently because of Mr Frazier's age, the offence being the first offence and especially the small quantity of cannabis.
Both parties referred to the decision of R v Mauger [1] and, in particular, a s 10 conditional release order or bond does not dilute the significance of the conditional release order (see, in particular, [37]).
I have had regard to the whole of that decision and also to the factors referred to in s 10(3) of the Crimes (Sentencing Procedure) Act, including in particular Mr Frazier's age, antecedents, mental condition and the nature of the offence.
In all these circumstances, I am persuaded that, in this case, there are good grounds for a s 10 conditional release order without proceeding to a conviction.
I make the following orders:
1. The appeal is upheld.
2. I set aside the conviction imposed by the Local Court on 28 February 2019.
3. I do not proceed to conviction under s 9(1)(b) and s 10 of the Crimes (Sentencing Procedure) Act 1999.
4. I confirm under s 69 of the Crimes (Appeal and Review) Act 2001 the Conditional Release Order expiring 27 August 2020 and the conditions attaching to that order imposed by the Local Court, namely that Mr Frazier:
1. not commit any offence; and
2. must appear before the Court if called upon.
[2]
Endnote
[2012] NSWCCA 51.
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Decision last updated: 20 September 2022