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Fraser v R [2023] NZHC 1114 (11 May 2023)

Last Updated: 6 September 2023

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-26
[2023] NZHC 1114
BETWEEN
MICHAEL JOHN DANYON FRASER
Appellant
AND
THE KING
Respondent
Hearing:
2 May 2023
Appearances:
J D Munro and J N Olsen for Appellant R D Smith for Respondent
Judgment:
11 May 2023

JUDGMENT OF EATON J

[Redacted for Publication]

This judgment was delivered by me on 11 May 2023 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Judgment reissued on 11 May 2023 at 2 pm.

FRASER v R [2023] NZHC 1114 [11 May 2023]

Introduction

The facts

1 Crimes Act 1961, s 189A(b)(2); maximum penalty maximum penalty seven years’ imprisonment.

2 Section 194(b); maximum penalty two years’ imprisonment.

3 Section 129(2); maximum penalty ten years’ imprisonment.

4 R v Fraser [2023] NZDC 3837.

Victim impact

District Court decision

5 Fraser, above n 4, at [32].

culpability of Mr Fraser’s offending but was a factor to allow credit for personal circumstances.

Principles on appeal

6 Crump v R [2020] NZCA 287, [2022] 2 NZLR 454.

7 Criminal Procedure Act 2011, ss 250(2) and 250(3).

8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9 Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

  1. R v Amoa CA244/99, 18 August 1999; Batick v R [2016] NZCA 307 and Tapp v R [2019] NZHC 2436.

11 R v Crump above, n 6.

appropriate sentence for Mr Fraser, however, given Mr Fraser has now served six months in pre and post-detention, the appropriate sentence ought to focus purely on rehabilitation, recognising the punitive element of sentencing has been achieved. He submits a sentence of intensive supervision is appropriate.

Respondent’s submissions

12 R v Hassan CA 198/98, 25 August 1998, [1999] NZLR 14 (CA).

13 R v Amoa, above n 10.

14 Batick v R, above n 10.

15 Ross v R [2013] NZCA 263; Sherratt v R [2021] NZHC 1901; R v Leahy [2019] NZHC 290; Bowman v R [2014] NZCA 92; Harawira v R [2019] NZCA 562; and Pesefea v R [2016] NZCA 35.

16 Berkland v R [2022] NZSC 143.

a sentence of home detention would not adequately meet the relevant principles and purposes of sentencing.

Analysis

Prior consensual sex

17 R v AM CA27/2009 [2010] NZCA 114, [2010] 2 NZLR 750.

18 R v Greaves [1999] Cr App R (S) 319 (CA).

19 R v Crump, above n 6.

engagement. Thereafter, the victim made it clear by both her words and actions that she was no longer a willing partner and wished to leave the address. Mr Fraser responded by pushing her to the bed and immediately trying to force her legs apart. He shut the door to prevent her leaving and continued the sexual assault, telling the victim “you’re not going anywhere” and “you can’t leave”.

Autism Spectrum Disorder (ASD)

significance when considering the opinion offered by Dr Wyness as to the relationship of autistic symptoms to Mr Fraser’s offending. Dr Wyness opined that:

The offending of persons with autistic features tend to show the following:

  1. A narrow fixation on specific interests;
  1. Theory of mind deficits (an inability or reduced ability to understand the feelings and points of view of others);
  1. A lack of understanding of social and empathy cues. Deficiencies in social interaction with difficulty interpreting and responding to social cues, [are] some of the most significant and enduring features of autistic behaviour. People with ASD have difficulty identifying the emotional and mental states such as fear or anxiety of others, which can contribute to offences.

I believe that Mr Fraser’s autistic features resulted in him failing to perceive and appreciate the signs, gestures and behaviours which his sexual partners are exhibiting (having previously been consenting) indicating that they no longer like what he is doing and are withdrawing their consent.

expressed wishes. Fifth, having shut the door, he again returned to the bed and continued the sexual assault.

Starting point

20 R v Amoa, above n 10.

21 R v AM, above n 17.

22 R v Hassan, above n 12.

beckoned the appellant and the victim into an alleyway.23 Fortunately, the incident was observed by a police officer who investigated and found the victim on the ground, yelling to be left alone while the appellant stood over her, between the victim’s legs with his pants down and an erection visible through his underwear. The Court of Appeal upheld a three year starting point on both the charges of assault with intent to commit sexual violation and indecent assault. That starting point was described as “consistent and appropriate”.24

23 Batick v R, above n 10.

24 Batick v R, above n 10, at [26].

25 R v Leahy, above n 15.

26 R v Tapp, above n 10.

Personal considerations

27 Solicitor General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [66].

the offending is not required to warrant a discount, simply a “causal connection”.28 The Judge settled on a discount of 15 per cent. It was open to the Judge to have allowed a greater discount, but I am not persuaded that the discount of 15 per cent was an error.

[91] ...Two things underpin this feature of mitigation: recognising a fall from grace as punishment in itself, and recognising the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of reoffending.

28 Berkland v R, above n 16, at [92].

29 Fangupo v R [2020] NZCA 484.

30 Sentencing Act 2002, s 9(2)(g).

31 R v Findlay [2007] NZCA 553.

32 R v Hockley [2009] NZCA 74 at [32].

Home detention

33 Fangupo v R [2020] NZCA 484.

34 Crimes Act, ss 128B and 129.

35 Parkin v R [2018] NZCA 404 at [42].

A sentence of home detention is capable of meeting any purpose or principle of sentencing specified in ss 7 or 8 of the Act and there is no presumption that one or other type of sentence is more or less appropriate for a class of offending. Sentences of home detention have been imposed in the High Court or substituted by this Court for sexual offending against children. Indeed, the Judge referred to one such High Court decision in fixing his starting point.

(footnotes omitted)

Conclusion

36 Diaz v R [2021] NZCA 426 at [50].

(a) Mr Fraser must not possess, consume or use any alcohol or drugs not prescribed to him.

(b) Mr Fraser will not communicate in any way or associate with the victim of his offending, without the prior written approval of his Probation Officer.

(c) Mr Fraser will attend an assessment with the STOP programme and complete any maintenance sessions required upon release as directed by his Probation Officer. He will attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of his probation officer.

(d) Mr Fraser will reside at [...] and not move to any new residential address without the prior written approval of his Probation Officer.

(e) Mr Fraser will undertake and complete the appropriate assessment, treatment or counselling as directed by and to the satisfaction of his Probation Officer.

...................................................

Eaton J

Solicitors/Counsel:

John Munro, Barrister, Auckland

James N Olsen, Barrister, Auckland RPB Law, Dunedin


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