R V FRASER HC CHCH CRI-2009-061-000244 [2009] NZHC 782 (9 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                             CRI-2009-061-000244



                                        REGINA



                                             v



                         
     ROSS SIMON FRASER



Appearances: P Shamy & H McKenzie for Crown
             J Brandts-Giesen for Accused

Judgment:      9
July 2009


                    SENTENCE OF HON. JUSTICE FRENCH



[1]    Ross Simon Fraser, following a plea of guilty you appear
for sentence on one
count of murder.


[2]    The person you murdered was a woman who had been your partner for
approximately seven
years, and who was the mother of your two sons, now aged four
and six. She was 46 years of age.


[3]    It appears that the relationship
between you and your partner Joanne
Thompson had become an increasingly tempestuous one punctuated by alcohol-
fuelled quarrels and
physical fights. You were both heavy drinkers.


[4]    On 15 January 2007, Ms Thompson obtained a protection order against you.
You were convicted of breaching this order on two occasions: once in December


R V FRASER HC CHCH CRI-2009-061-000244 9 July 2009

2007 and again in October 2008. I accept however, as does the police summary of
facts, that this has to be seen in the context
of a relationship that was resuming for
periods of time and then terminating again.


[5]    In December 2008, there was another
reconciliation, and you started living
together again.    However it proved short-lived, and on the week beginning
9 February 2009,
Joanne asked you to move out of the house where you had been
staying with her and the two children. During that week it is said that
you had been
displaying increasing signs of anger and frustration with having been told the
relationship had finished. You had made
comments to a work colleague that you
were going to kill Joanne and then go to the Coast to kill her family.


[6]    During the
evening of Sunday 15 February, you were drinking alcohol with a
group of people at a residence. They described you as drunk. At one
point during
the evening you were sitting at a table drinking when you said "The devil's
unleashing", adding "Don't tell anyone I
said that `cos people will think it is
strange". You were asked to leave the address, which you did, and were last seen
walking down
the road carrying your remaining cans of beer. Joanne had also been
drinking heavily throughout Sunday evening.


[7]    Shortly
after 10.30 p.m. you entered her address. Through counsel, you say
you did not go there to cause trouble and that you had already
been there that
afternoon before Joanne snapped and kicked you out again. To your knowledge,
your two children were in the house.


[8]    You say your memory of what happened next is poor, but the forensic
evidence establishes that your attack on Joanne appears
to have started with you
inflicting lacerations on her arm and leg with a knife or similar sharp weapon.


[9]    The attack then
continued in the bathroom where you repeatedly threw
Joanne around the room. You struck her numerous times, using brute force to
strike
her head and body against the cast iron bath, handbasin and shower step. This
assault is estimated to have lasted possibly
up to 40 minutes, and during it the only

words heard to be spoken by you were "Do you love me now?" or "Now do you love
me?", and
her reply of "No, no".


[10]     The list of injuries sustained by Ms Thompson is very extensive. It includes
multiple lacerations,
bruises and abrasions of the head, neck, chest, abdomen, back
and limbs, as well as what is described as a hinge fracture of the
base of the skull and
a depressed skull fracture. The cause of death was blunt force trauma to the head.


[11]     You left Ms Thompson
slumped over the edge of the bath naked from the
waist down, with her bra displaced and above her breasts. Her skirt and underpants
were found in the bath. A subsequent forensic examination revealed a fæcal smear
across her lower back. The bathroom was splattered in blood.


[12]     You ran away and spent the next
nine days hiding from the police. When
found and questioned, you stated that you and Joanne had both been in a rage, both
been drinking,
that the incident was a blur and you had blanked it out, that you were
absolutely ashamed, it had been brewing for years and you
were too old to be shoved
around in your own house. You later told the probation office that you freaked out,
and had a feeling Joanne
was dead but not quite sure. When asked why you had just
left Joanne there and not got help for her, you said that was a hard one
to answer and
concluded you were just that angry, you bolted.


[13]     I have read the victim impact statements from Joanne's sister
and father, and
the statement from her daughter which was read out to us this morning. The reports
tell of trauma, unimaginable pain,
sorrow, grief and anger. Their lives have changed
forever because of what you have done, as of course have the lives of your two
little
boys who were present in the house throughout the attack and who have lost their
mother in the most horrific of circumstances.


[14]     The pre-sentence report tells me you are 43 years of age. You have 15
previous convictions, including a male assaults
female in the mid-1990s, with
another recorded in relation to Joanne in 2007, and for contravening the protection
order.

[15] 
 Apart from a reference to your excellent work record, the pre-sentence report
generally portrays you in a very poor light. In the
view of the report writer, you
presented as a person who showed no genuine remorse, who failed to appreciate the
enormity of what
he had done, and who took little or no responsibility for what he
had done. Indeed, you were so critical of Joanne and her family
to the probation
officer that the officer considered you were blaming Joanne for her own death. The
writer did not even discern any
empathy for your children's untimely loss.


[16]   Against that, your counsel Mr Brandts-Giesen says you are not a good
communicator
and did not do justice to yourself in that interview, and that
allowances need to be made for the pressures you were under both before
this
offence and since. Your counsel says you love your children, and acting on your
instructions has apologised this morning for
what you have done and the harm you
have caused.


[17]   I turn now to explain the sentencing decisions which the law requires me
to
make this morning.


[18]   First, under the Sentencing Act 2002 where a person is convicted of murder
the Court must impose a
sentence of life imprisonment unless such a sentence would
be manifestly unjust. Counsel accept a sentence of life imprisonment in
this case is
the correct sentence. I agree. You will therefore be sentenced to life imprisonment.


[19]   Secondly, under New Zealand
law even although a person has received a life
sentence they may nevertheless during the sentence apply for parole. Parliament has
therefore required that where a Court imposes a life sentence for murder, the Court
must also decide on the minimum period of imprisonment
a convicted person must
serve before being eligible to apply for parole.      This is commonly called the
minimum non-parole period.
Generally that minimum period must be ten years, or
such longer period as the Court considers is necessary to hold the offender
accountable
for the harm done to the victim and to the community, to denounce the
offender's conduct, to deter the offender and other persons
from committing similar
crimes, and to protect the community from the offender.

[20]   As you will have heard from the lawyers,
the Sentencing Act also provides
that for some murders the minimum period must be at least 17 years, unless that is
manifestly unjust.
That is s 104.


[21]   While, as I have said, the lawyers agree on the appropriateness of a life
sentence, what is in dispute is
the length of the minimum non-parole period ­ in
particular whether this is a case to which s 104 applies. If s 104 applies then, as
stated, I must impose a minimum
non-parole period of 17 years unless satisfied it
would be manifestly unjust to do so.


[22]    I therefore need to decide first
whether s 104 applies and secondly, if it does,
whether 17 years would be manifestly unjust.


[23]   I have carefully considered
all the information that has been put before me
and the submissions that have been made. I am satisfied that this was a murder
committed
with a high level of brutality and callousness, and therefore within
s 104(e).


[24]    In coming to that conclusion, I have been
particularly influenced by the
pathologist's report regarding the injuries to the skull. The pathologist has noted that
hinge fractures
of the base of the skull are often seen where great forces are applied
to the head, such as in road traffic accidents or falls from
a height. She has also
noted that depressed fractures of the skull are due to focal impact of the skull with a
heavy object. They
are classically seen when the head is struck by a weapon such as
a baseball bat, hammer or rock, or due to impact of the skull on
a prominent edge or
point such as the corner of a piece of furniture.


[25]   Those were the injuries that Joanne sustained. For
injuries of that sort to
have been inflicted manually ­ by hand ­ clearly in my view points to a high level of
brutality and cruelty
involving, as it must have done, a sustained and prolonged
beating of immense ferocity. As the Crown submitted, it was a repetitive
beating in
which you persisted doggedly until Joanne was dead. The savagery and severity of
the attack is further confirmed by the
horrific photographs of the bathroom scene and
the amount of blood.

[26]   Another feature of this murder is that it took place
in a home where, to the
knowledge of the murderer, young children aged only four and six were present.
You did nothing to help Joanne
but just walked out, leaving behind a scene of
indescribable horror. For all you knew, it was for your children to have found that
and it is only fortuitous that they did not. Your indifference to the suffering you
inflicted on your children, however much you
loved them, in my view exhibits a
high degree of callousness, as does the state in which the body was left.


[27]   The view I have
taken means it is not necessary for me to consider the further
Crown submission about this having the dimension of a sexual attack.
Indeed, given
your dispute of the facts, the absence of a contested facts hearing means that I could
not do so. You dispute the significance
of her clothing being disturbed and say her
clothes came off in the struggle.


[28]   I am satisfied, as I have said, that this
is definitely a case to which s 104(e)
applies. That being so, I am required by a Court of Appeal decision (R v Williams
 [2005] 2 NZLR 506) to determine the degree of blameworthiness in relation to that
involved in the standard range of murders. What that means is that
I have to embark
on a task involving the balancing of aggravating and mitigating factors to arrive at
what I think would be an appropriate
starting point.


[29]   I consider these were the key aggravating features, and that they were serious
aggravating features:



              i)       The brutal nature of the attack, the force used and the fact it
                        was prolonged and
sustained, involving the infliction of
                        numerous injuries.


               ii)      The fact that it occurred
in a home.


               iii)     The presence of the children in the house.


               iv)      The vulnerability of your
victim.


               v)       The previous threats you had made.

               vi)      Your conduct in leaving her in the
state that she was, and
                        leaving her not knowing for sure whether she was dead.


               vii)    
Your actions in going on the run.


[30]   In my assessment, having regard to comparator cases, a sentence of 17 years
as a starting
point reflects appropriately the aggravating features of this offending.


[31]   There are no factors relating to the offending
in mitigation, but there is the
factor of your guilty plea which leads me to the final issue, and that is whether you
are entitled
to some discount on account of your guilty plea. The Crown say no, and
that the guilty plea does not render it manifestly unjust
for the non-parole period to
remain at 17 years. Your counsel submits to the contrary.


[32]   I have decided that it would be manifestly
unjust not to allow you some credit
for your guilty plea, notwithstanding the lack of remorse and empathy identified by
the pre-sentence
report. Your guilty plea was at the earliest possible opportunity,
and although it may be said it was bowing to the inevitable, the
fact is you did enter
that plea and you did save the ordeal of a trial. That, in my view, is something that
should be recognised.


[33]   In my view, in all the circumstances a deduction of 18 months to reflect your
guilty plea is fair and appropriate.


[34]
  Ross Simon Fraser, you are convicted of the murder of Joanne Thompson and
sentenced to a term of life imprisonment. There will
be a minimum non-parole
period of 15 and a half years.




Solicitors:
Crown Solicitor, Christchurch
Brandts-Giesen McCormick, Christchurch