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Fraider v Police

Fraider v Police

Case [2023] NZHC 1117 11 May 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000083

[2023] NZHC 1117

BETWEEN
REGAN FRANK FRAIDER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 May 2023

Appearances:

H Laubscher for the Appellant M Nash for the Respondent

Judgment:

11 May 2023

JUDGMENT OF GORDON J

This judgment was delivered by me on 11 May 2023 at 2.30 pm

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Crown Solicitor, Auckland H Laubscher, Auckland

FRAIDER v NEW ZEALAND POLICE [2023] NZHC 1117 [11 May 2023]

Introduction

[1] Regan Fraider pleaded guilty to one charge of theft of property over $1,000,1 being found on a property without reasonable excuse2 and possessing instruments for conversion.3 Mr Fraider also pleaded guilty to a second set of charges consisting of driving dangerously4 and failing to stop for blue and red flashing lights.5

[2] On 15 February 2023, Mr Fraider was sentenced by Judge J M Jelaš at the Waitākere District Court to 14-and-a-half months’ imprisonment. He was also disqualified from driving for 18 months.6

[3] Mr Fraider now appeals his sentence on the basis that the Judge failed to provide an adequate and discrete discount for his background based on matters raised in the Provision of Advice to the Court (PAC) report dated 7 February 2023 and an earlier Community Alcohol and Drug Services (CADS) report dated 7 December 2020.

[4] The respondent opposes the appeal on the basis that the Judge did take into account Mr Fraider’s background and applied an appropriate discount by way of reducing the uplift for previous offending.

The offending

[5]Mr Fraider’s offending occurred on two separate occasions.

1      Crimes Act 1961, ss 219 and 223(b). Maximum penalty: seven years’ imprisonment.
2      Summary Offences Act 1981, s 29(1)(b). Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
3      Crimes Act, s 227. Maximum penalty: one year’s imprisonment.
4      Land Transport Act 1998, s 35(1)(b). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 and minimum six months’ disqualification from holding or obtaining a driver licence.
5      Sections 52A(1)(a)(ii), 52A(3) , 52A(6) and 114(2). Maximum penalty: a fine not exceeding
$10,000 and minimum six months’ disqualification from holding or obtaining a driver licence.
6      Police v Fraider [2023] NZDC 2756.

21 July 2022 – theft of property over $1,000, being found on a property without reasonable excuse, and possession of instruments for conversion

[6] At about 5.00 am, Mr Fraider was observed walking down a long driveway in New Lynn. He looked into two cars parked at the carport and then left. The Police shortly after located Mr Fraider and arrested him. He was found in possession of vice grips and screw drivers; and $4,300 in cash and driver licences not belonging to him. On further enquiry, the Police identified the owners of the driver licences who informed the Police that they were the owners of the money, which had been recently stolen.

2 January 2023 – driving dangerously and failing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fraider v Police

Details

AGLC: Fraider v Police [2023] NZHC 1117
Case: [2023] NZHC 1117
Decision Date: 11 May 2023

CaseChat Overview and Summary

Regan Frank Fraider, the appellant, has appealed against his sentence imposed by Judge J M Jelaš at the Waitākere District Court, contending that the sentence failed to adequately discount for his background and addiction issues. The appellant pleaded guilty to theft of property over $1,000, being found on a property without reasonable excuse, and possessing instruments for conversion. He was also found guilty of driving dangerously and failing to stop for blue and red flashing lights. The respondent, New Zealand Police, opposes the appeal, arguing that the Judge appropriately considered the appellant's background and applied a discount by reducing the uplift for previous offending. The appeal was heard on 8 May 2023, and judgment was delivered by Gordon J on 11 May 2023.

The primary legal issue before the court was whether the District Court Judge erred in the sentence imposed, specifically in failing to provide an adequate discount for the appellant's background and addiction issues. The court had to determine if the sentence imposed was manifestly excessive and, if so, what the appropriate sentence should be. The court also had to consider the relevance of the prior convictions, the age and frequency of them, and whether the uplift was in proportion to the starting point.

The court found that while the Judge did take into account the appellant's background, including his exposure to alcohol and drugs at a young age from within his family, it was not apparent what uplift was given for the appellant's criminal history, nor what discount was given for his background, as the uplift was not identified prior to the reduction. The court assessed the appropriate uplift for the appellant's prior convictions by considering the nature, age, and frequency of them. Given the appellant's predilection to commit dishonesty offences and the rationale for uplifts for prior offending, the court found an uplift of three months was justified, resulting in a starting point of 21 months. The court also found that the appellant was entitled to a discount for his alcohol and drug dependencies but agreed with the respondent that the discount should be around 10 per cent. A starting point of 21 months with a discount of 35 per cent results in an end sentence of 13-and-a-half months' imprisonment. The court found that the sentence of 14-and-a-half months was manifestly excessive and substituted a sentence of 13-and-a-half months.

The appeal against sentence is allowed. The sentence of 14-and-a-half months' imprisonment is quashed, and a sentence of 13-and-a-half months' imprisonment is substituted.

Orders