You are here:
NZLII >>
Databases >>
High Court of New Zealand Decisions >>
2023 >>
[2023] NZHC 1114
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
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
|
|
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
- 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:
- A
narrow fixation on specific interests;
- Theory
of mind deficits (an inability or reduced ability to understand the feelings and
points of view of others);
- 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
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2023/1114.html