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

• [1] Michael Fraser pleaded guilty to one charge of strangulation,¹ one charge of male assaults female² and one charge of assault with intent to commit sexual violation.³

• [2] On 1 March 2023, Judge Large sentenced Mr Fraser to 27 months’ imprisonment.⁴ Mr Fraser appeals against sentence on the grounds that the end sentence was manifestly excessive.

The facts

• [3] Mr Fraser befriended a 20-year-old woman in a bar in Dunedin on 23 April 2022. They agreed to go to Mr Fraser’s mother’s address to engage in consensual sex. While engaging in consensual intercourse, Mr Fraser slapped the victim’s jaw forcefully with the heel of his hand, ultimately leaving a bruise. The victim told Mr Fraser the slap hurt and not to do it again. Mr Fraser laughed, and the consensual intercourse continued.

• [4] Mr Fraser was on top of the victim. Without warning, he placed his hands around her neck and squeezed her throat to the point she could not breathe. The victim pushed Mr Fraser’s shoulders with her hands to get his weight off her neck. The strangulation continued for 15-20 seconds until Mr Fraser desisted. The victim then went to the bathroom and messaged a friend to pick her up. When she returned, she sat on the side of the bed and told Mr Fraser she was leaving.

• [5] In response, Mr Fraser pushed the victim backwards onto the bed and held her down by the shoulders. The victim drew her knees to her chest, and Mr Fraser tried to part her legs to continue having sexual intercourse. She told him “no” and “stop” and reiterated that she wanted to leave.

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.

• [6] Mr Fraser continued to pin her down with his bodyweight and told her she was not leaving. He got up and shut the bedroom door and repeated that she could not go. He again pinned the victim to the bed, holding her by her shoulders and again tried to open her legs. He told her “you’re not going anywhere”, and “you can’t leave”. The victim struggled for another few minutes before Mr Fraser desisted.

• [7] The victim sat on the edge of the bed and when she tried to get dressed, Mr Fraser tugged at her pants to prevent her from doing so. He lifted her top and fondled her breasts. She managed to get fully dressed and left the address. The victim suffered bruising to her upper chest, neck, and face.

Victim impact

• [8] I have read the victim statement of 22 November 2022. I hope Mr Fraser has read that statement. This offending has had very real and lasting consequences that have adversely impacted the victim who was left both physically and mentally traumatised from this attack.

District Court decision

• [9] At sentencing, Mr Fraser relied on a report from psychiatrist, Dr Russell Wyness. At the outset of sentencing, Judge Large gave Crown counsel the opportunity to have the sentencing adjourned to allow the Crown to either peer review the Wyness report or to cross-examine Dr Wyness. The significance of the report was the diagnosis that Mr Fraser suffered from autism spectrum disorder (ASD) of moderate severity. The Judge observed the report described Mr Fraser as having a reduced ability to understand the feelings and points of view of others and a lack of understanding of social and empathy cues.

• [10] The Judge noted that the cues from the victim were not only verbal but “actual and physical” and must have clearly indicated to Mr Fraser, notwithstanding ASD, that the victim was not consenting.⁵ The Judge concluded that ASD did not affect the

⁵ Fraser, above n 4, at [32].

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

• [11] As regards the relevance of the prior consensual intercourse, the Judge distinguished Crump v R⁶ given the consensual sex had clearly ended.

• [12] A starting point for the lead charge of assault with intent to commit sexual violation of three years and nine months’ imprisonment was adopted. The Judge applied an uplift of 12 months to reflect the male assaults female and strangulation offences. Through a miscalculation the Judge referred to the adjusted starting point as 54 (rather than 57) months’ imprisonment. A 25 per cent credit was allowed for guilty pleas and a 15 per cent credit given to reflect the difficulties faced by Mr Fraser as a consequence of his ASD. A further 10 per cent credit was allowed to reflect previous good character and prospects of rehabilitation. The total credits of 50 per cent led to an end sentence of 27 months’ imprisonment.

Principles on appeal

• [13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁷ As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁸ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁹

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

• [14] Mr Olsen, for Mr Fraser, submits that the Judge erred in adopting a starting point for the assault with intent to commit sexual violation of three years and nine months’ imprisonment. Mr Olsen refers to R v Amoa, Batick v R and Tapp v R as examples of the same charge but engaging more serious offending.¹⁰ In Batick and Amoa, a starting point of three years’ imprisonment was upheld and in Tapp a starting point of four years for offending involving a 13-year-old victim was upheld.

• [15] Mr Olsen submits the prior consensual intercourse was a relevant factor not considered by the sentencing Judge. In support he refers to Crump where a two year and three month starting point was approved by the Court of Appeal on a charge of sexual violation by rape when consent was withdrawn during an act of consensual sexual intercourse.¹¹

• [16] Even if the prior consensual sex did not mitigate culpability, Mr Olsen contends for a starting point for the lead charge of no higher than three years’ imprisonment.

• [17] He accepts the uplift of 12 months’ imprisonment for the strangulation and assault charges was within range. Mr Olsen submits the starting point taken by the Judge of four years and nine months’ imprisonment was plainly excessive.

• [18] Mr Olsen contends for a 20 per cent, rather than 15 per cent, allowance to reflect Mr Fraser’s ASD diagnosis. He submits a 15 per cent, rather than 10 percent, credit ought to have been allowed to reflect Mr Fraser’s good character, including his lack of previous convictions.

• [19] On those adjusted allowances, Mr Olsen submits the end sentence was in the range for consideration of home detention. He submits this would have been an

10. 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

• [20] Mr Smith, on behalf of the Crown, submits that the starting point of three years, nine months on the lead charge was within range and that the total discounts afforded to Mr Fraser, equating to a little over 52 per cent, were within range and might be described as generous. He submits the end sentence of two years and three months’ imprisonment was not manifestly excessive.

• [21] Mr Smith accepts the relevance of the ASD diagnosis was central to the culpability assessment. He submits that the Judge was correct to find that ASD could not mitigate culpability for the offending that took place after the consensual sexual intercourse had ended and the victim had made it clear she wanted to leave the address.

• [22] Mr Smith submits that after intercourse ended, the victim made it plain by words and actions that she did not consent to further sexual activity. That Mr Fraser understood her position was reflected in his admitted comments, “you’re not going anywhere” and “you can’t leave”. He submits the appellant’s acts in assaulting the victim with intent to sexually violate her for “another few minutes” were significant in assessing the gravity of the offending. He observes that it was only the victim’s persistence in resisting Mr Fraser that thwarted the full offence of rape.

• [23] Mr Smith submits that to the extent Dr Wyness has offered an opinion that the ASD diagnosis explains Mr Fraser’s failure to recognise the verbal and non-verbal cues of the victim, that opinion was appropriately not accepted by the Judge. He submits that Dr Wyness was obliged to confront the facts as outlined in the summary of facts, including Mr Fraser’s repeated pronouncements that the victim would not be permitted to leave the address.

• [24] Because the consensual sex had clearly ended, it is submitted it was of no relevance in assessing culpability for the assault that followed.
• [25] In response to criticism made by Mr Olsen that the Crown had made a conscious decision not to peer review the report of Dr Wyness, nor ask that he be available for cross-examination, Mr Smith submits the Judge was not obliged to accept verbatim the opinion of Dr Wyness. Mr Smith was critical that the expert report did not deal with the conflict between Mr Fraser’s account of the incident and that as set out in the admitted summary of facts.

• [26] As regards the authorities, Mr Smith submits the Court of Appeal’s observations in R v Hassan¹² indicate that Amoa should be disregarded.¹³ He submits the offending in Batick was factually distinct, it being of significantly lesser duration.¹⁴ Mr Smith submits the global starting point of four years, nine months was well within range.¹⁵

• [27] As regards personal mitigating factors, Mr Smith describes the 15 per cent allowed for ASD as generous but appropriate. With reference to Berkland v R¹⁶, Mr Smith submits ASD was not directly causative of Mr Fraser’s offending but accepts it has an operative or proximate causative connection to the offending. In those circumstances, he submits that a reduction no greater than 15 per cent was appropriate, observing that in Berkland the Supreme Court allowed 10 per cent for what were described as the full suite of criminogenic personal factors.

• [28] Mr Smith submits the 10 per cent allowance for good character and prospects of rehabilitation was within range. No particular evidence was offered by Mr Fraser to demonstrate good character beyond his absence of previous convictions. Further, his prospects of, or commitment to, rehabilitation were not clear.

• [29] Finally, Mr Smith submitted, if the Court was to conclude that a short-term sentence was appropriate, that the intrinsic seriousness of the offending was such that

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

• [30] Two factors arise in considering whether the starting point of three years, nine months’ imprisonment for the lead offence of assault with intent to commit sexual violation was excessive. The first is the relevance of the previous consensual sexual intercourse. The second is the relevance of the formal diagnosis of ASD.

Prior consensual sex

• [31] In R v AM, the Court of Appeal established bands for the offence of sexual violation.¹⁷ The Court observed that cases may fall outside the bottom of the bands because of their unusual fact pattern and referred by way of example to a case involving young persons who engaged in consensual sexual intercourse. The victim changed her mind during the act of intercourse and asked the defendant to stop but he did not until completing the act of sexual intercourse.¹⁸ Similarly, in Crump v R, the appellant was engaged in consensual sexual intercourse with his partner, and then persisted with the sexual intercourse after his partner had repeatedly said “No.”¹⁹ The appropriate starting point was assessed to be two years and three months’ imprisonment on a charge of sexual violation by rape.

• [32] Mr Fraser faces a charge with a maximum penalty of half the offence for which Mr Crump was sentenced. Mr Fraser did not engage in non-consensual sexual violation. Whilst those factors might be said to support Mr Olsen’s submission that this case fell below the bands in R v AM, I am not persuaded that on a close analysis of the facts, Mr Fraser’s culpability is diminished. In the present case, following the act of strangulation, the consensual intercourse ceased. The victim left the bedroom. When she returned to the bedroom, she clearly signalled her intention to leave the address. There was no further consensual sexual activity. The strangulation leading the victim to leave the bedroom marked a clear delineation of her consensual

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”.

• [33] The facts of this offending are distinguishable from those cases relied upon by Mr Olsen. I do not consider that the prior consensual intercourse diminishes Mr Fraser’s culpability.

Autism Spectrum Disorder (ASD)

• [34] I agree with Mr Olsen that, given the Crown did not accept that the ASD diagnosis significantly mitigated Mr Fraser’s culpability, Dr Wyness ought to have been cross-examined, or sentencing should have been adjourned for the Crown to secure an independent medical report. Nevertheless, I agree with Mr Smith that it was ultimately for the Judge to determine what weight to attach to the opinions expressed by Dr Wyness. Dr Wyness had first assessed Mr Fraser prior to entry of pleas. At that stage, he offered a provisional opinion diagnosing Mr Fraser with ASD. That diagnosis was confirmed in a full report dated 17 February 2023, after guilty pleas were entered.

• [35] The February 2023 report recorded Mr Fraser’s account of the offending. Mr Fraser said he had asked the victim if it was acceptable for him to slap her and that she had agreed. He said that, after slapping the victim, he put his hands around her neck and collarbones and the victim then slapped him. He told Dr Wyness that they then carried on having sex for about five minutes without any further protest from the victim and that after the sexual intercourse the victim said her friend was going to pick her up. When asked by Dr Wyness what the victim might have been feeling when she indicated she wanted to leave his address rather than stay with Mr Fraser, Mr Fraser said the victim told him she did not stay overnight at men’s homes and, therefore, she wanted to leave.

• [36] Those explanations are very much at odds with the agreed summary of facts. But Dr Wyness’ report fails to deal with this conflict. That omission takes on some

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;

2. Theory of mind deficits (an inability or reduced ability to understand the feelings and points of view of others);

3. 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.

• [37] Dr Wyness concluded that Mr Fraser had behaviours and characteristics consistent with all three points and that his autistic spectrum features (particularly those in points 2 and 3) played a key part in his offending. Dr Wyness said:

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.

• [38] Like Judge Large, I have difficulty accepting that opinion absent any consideration of the admitted facts.

• [39] I find there was a clear delineation between the consensual and non-consensual sexual acts. I accept the opinion of Dr Wyness has relevance in considering Mr Fraser’s culpability in relation to the act of slapping, and even the act of impairing the victim’s breathing. To that point, ASD, and the ongoing consensual intercourse might well explain Mr Fraser failing to act on the cues of the victim. But the situation shifted significantly when intercourse ended. First, the victim physically removed herself from the bedroom. Second, she verbalised her wish to leave the address. Third, Mr Fraser pushed her to the bed, pinned her down and told her she was not leaving. His words confirm his understanding of her wish to leave. That could only indicate his understanding that she was no longer consenting. Fourth, Mr Fraser then got off the bed to shut the door in a physical act to support his verbal resistance to the victim’s

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

• [40] I do not accept that the verbal and physical responses of both the victim and Mr Fraser might be explained within the “theory of mind deficits” or “a lack of understanding of social and empathy cues”.

• [41] In my view, on the evidence available, the Judge did not err in finding that ASD did not mitigate Mr Fraser’s culpability in relation to the sexual assault.

Starting point

• [42] There is no guideline judgment for assault with intent to commit sexual violation or, indeed, the overlapping offence of attempted sexual violation. Counsel have referred to several cases as comparators.

• [43] In Amoa, the appellant, a 29-year-old man, made four discrete sexual advances on a 12-year-old victim.²⁰ Three of the advances were physical and varying in intensity, from an attempted tongue kiss to repeatedly lying on top of the victim and pulling her pants down. The appellant faced additional charges in relation to a second victim. The Court of Appeal confirmed that the sentence of three year’s imprisonment imposed for the assault with intent to commit sexual violation was appropriate and would have been confirmed if it was a stand-alone offence. Mr Smith points out that the totality principal was no doubt in play in fixing a three-year term of imprisonment. That decision pre-dates the Court of Appeal tariff case of R v AM²¹ and was delivered shortly before the Court of Appeal decision of Hassan²² where an uplift as to the level of sentencing for assaults with intent to commit sexual violation was flagged by the Court of Appeal, primarily having regard to the 1993 increase in the maximum penalty for the offence of sexual violation.

• [44] In Batick, the appellant met the drunken victim on the street and offered to call her a taxi. He put his arm around her back with a hand on her breast. His associate

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

• [45] The appellant in R v Leahy accosted the victim, grabbing her by the hair and throwing her to the ground.²⁵ He attempted to kiss her and then pulled her pants down before throwing a punch intended to knock her out. He then dragged the semi- conscious victim behind a kiosk. She repeatedly said no and was asking him to stop. He exposed her breasts, removed her pants, and commenced removing his own pants before being stopped by a passer-by. A starting point of five years and six months’ imprisonment was adopted.

• [46] Finally, in Tapp,²⁶ the defendant was convicted of indecent assault with intent to commit sexual violation and committing an indecent act on a young person. The defendant was a friend of the 13-year-old victim’s mother. After an evening of drinking, the defendant entered the victim’s room and shut the door. He got into bed with her as she slept and kissed her. She awoke and tried to leave but he would not allow her to do so. He then removed his pants and underwear and pulled the victim in. As she resisted, he attempted to remove her pants. She continued to resist and screamed out for help. The defendant’s daughter entered the room and found the defendant on top of the victim. A starting point of four years’ imprisonment was considered appropriate for both offences, having regard to the victim’s age, her vulnerability, the breach of trust and the emotional impact suffered.

• [47] Whilst I have found that the prior act of consensual intercourse does not mitigate culpability, I accept that factor is relevant in assessing context and distinguishes this offending from the authorities discussed.

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.

• [48] Having regard to those authorities, I consider the three years, nine month starting point adopted by the Judge to err on the excessive side. The level of violence inflicted was modest but the offending was aggravated by its persistent nature. The feature of victim vulnerability either as a consequence of age or intoxication is not present and, unlike the offending in Batick, Leahy and Tapp, Mr Fraser eventually desisted, short of third-party intervention. I consider the appropriate starting point for the lead offence was a sentence of three years’ imprisonment.

• [49] No issue is taken with the uplift of 12 months’ imprisonment for the offences of strangulation and male assaults female. I agree that uplift was generous to Mr Fraser. As a stand-alone offence, strangulation would have warranted a sentence of at least two years’ imprisonment.

• [50] That leads to an adjusted starting point of four years’ imprisonment.

Personal considerations

• [51] No issue is taken with the 25 per cent credit for Mr Fraser’s guilty pleas. Although I have not found that the ASD diagnosis is relevant in setting the starting point for this offending, I agree with the Judge that it is a personal consideration, relevant to the sentencing exercise. Although I have considered there to be shortcomings in the report of Dr Wyness, I accept his opinion that Mr Fraser’s autistic spectrum features have played a “key aspect” in his offending and I accept without question that his autistic features have led him to fail to perceive and appreciate signs, gestures, and behaviours, including those exhibited by sexual partners. I accept that ASD played a causative role in the initial events that gave rise to the complainant withdrawing her consent. The ASD diagnosis does not excuse Mr Fraser’s offending, but, to adopt the words of Whata J in Solicitor General v Heta, “it helps to explain it”.²⁷

• [52] I accept Mr Olsen’s submission that the Supreme Court in Berkland confirmed that a causal connection between a defendant’s personal psychological makeup and

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.

• [53] A further discount of 10 per cent was allowed to reflect Mr Fraser’s previous good character. With reliance on Fangupo v R, Mr Olsen submits that a 15 per cent credit ought to have been allowed to recognise Mr Fraser’s otherwise good character and his prospects of rehabilitation.²⁹

• [54] Under s 9(2) of the Sentencing Act 2002, the sentencing court must take into account any evidence of the offender’s previous good character.³⁰ As was recognised by the Court of Appeal in R v Findlay:³¹

[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.

• [55] In considering whether a credit should be allowed for previous good character and, if so, the extent of that credit, the Court will have regard to the period of time over which a defendant has exhibited good character. It will also be relevant to consider whether material points to good character based solely on the absence of previous convictions or includes positive contributions to society. Ultimately, the appropriate credit is “very much a matter of impression”.³²

• [56] At the age of 26, Mr Fraser has no previous convictions. Mr Olsen does not point to any other matters relevant to credit for previous good character. A modest credit of five per cent was appropriate.

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].

• [57] The Judge combined previous good character with prospects of rehabilitation. In Fangupo v R, a 15 per cent credit was allowed for previous good character and prospects of rehabilitation.³³

• [58] Rather than expressed as a willingness to engage in rehabilitation, I considerate it more appropriate to recognise Mr Fraser’s willingness to engage in treatment following his recent diagnosis of ASD. Dr Wyness has proposed a course of treatment and I am optimistic that, with support from his family, Mr Fraser will embrace that regimen.

• [59] I have factored ASD into the sentencing exercise as a credit for personal considerations. I consider a further credit of five per cent to reflect a willingness to engage in treatment to be within range. The overall credit of 10 per cent allowed by the Judge for these factors was appropriate.

• [60] That leads to a total credit for personal considerations of 50 per cent and an end sentence of 24 months’ imprisonment.

Home detention

• [61] Should that short term sentence be commuted to a sentence of home detention, or another community-based sentence or, alternatively, another community-based sentence?

• [62] There is no presumption of imprisonment for assault with intent to commit sexual violation. This can be contrasted with a conviction for sexual violation.³⁴ Both the author of the PAC report and the Judge considered Mr Fraser to be a good candidate for the STOP programme. That programme is not available to Mr Fraser in the prison environment.

• [63] As the Court of Appeal observed in Parkin v R:³⁵

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)

• [64] I agree with Mr Smith this offending was serious and, absent the context of an unchallenged and belated ASD diagnosis, would be considered too serious to justify a sentence short of imprisonment. However, I am persuaded, by a fine margin, that on the special facts of this case, the sentencing principles of denunciation and deterrence have been achieved through the six months Mr Fraser has served as a first offender and that a sentence of home detention has both punitive and rehabilitative components that otherwise satisfy the principles and purposes of sentencing. I do not accept that the time served to date is at a level that the Court ought not impose a sentence of home detention but rather a sentence of intensive supervision. In my view, it is more appropriate that conditions that might otherwise attach to a sentence of intensive supervision attach to the sentence of home detention.

• [65] The length of the sentence of home detention must reflect that Mr Fraser has served six months’ imprisonment. Adopting the sentencing methodology used in Diaz v R,I deduct from the end sentence of 24 months’ imprisonment, a further 12 months to reflect time served.³⁶ That leads to a sentence of 12 months’ imprisonment. I commute that sentence to one of six months’ home detention to be served at the address recorded in the PAC report and on the proposed special conditions as listed at page 7 of the PAC report.

Conclusion

• [66] The imprisonment sentence of 27 months’ imprisonment is quashed and substituted with a sentence of six months’ home detention to be served at [...].

³⁶ Diaz v R [2021] NZCA 426 at [50].

• [67] Mr Fraser’s home detention sentence is subject to the following conditions and special conditions set out in ss 80C(2) and 80D Sentencing Act 2002 respectively:

(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.

• [68] Standard post-detention conditions and special post-detention conditions, as set out at [67](a) – (e), will apply for a period of six months post-detention.

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

Eaton J

Solicitors/Counsel:

John Munro, Barrister, Auckland

James N Olsen, Barrister, Auckland RPB Law, Dunedin