Fraider v Police
[2023] NZHC 1117
•11 May 2023
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 stop for blue and red flashing lights
[7] At about 4.30 pm, Police attempted a stop by activating their red and blue flashing lights after seeing a car driving dangerously by crossing three lanes. The driver was Mr Fraider. He failed to stop and instead accelerated away from the Police continuing to drive through Auckland above the speed limit and at one point on the wrong side of the road. He was eventually stopped and arrested.
District Court decision
[8] The Judge summarised the offending and concluded that an 18-month starting point (proposed on behalf of Mr Fraider and agreed to by the respondent) was appropriate for Mr Fraider’s offending. The Judge focused on his background relying upon the PAC and CADS reports, with the latter report having been originally drafted for the purpose of Mr Fraider possibly attending the Te Whare Whakapiki Wairua – the Alcohol and Other Drug Treatment Court. The Judge accepted that Mr Fraider’s offending was clearly driven by his substance abuse issues which stemmed from his upbringing. A full discount of 25 per cent for early guilty pleas was allowed. This reduced the end sentence of imprisonment to 13-and-a-half months.
[9] The Judge then turned her mind to the ‘remaining issue’ of uplift for previous convictions. A one-month uplift was imposed because the Judge “appreciate[d] the
drivers of the offending relate to [Mr Fraider’s] long-standing [drug] dependency”.7 The Judge considered she was not in a position to impose a sentence of home detention, but granted leave under s 80I of the Sentencing Act 2002 to enable Mr Fraider to apply for his sentence to be converted to home detention if he were able to gain placement in a well-recognised residential rehabilitation facility.
[10] The sentences imposed for Mr Fraider’s other charges were to be served concurrently. The Judge also held a disqualification of 18 months was necessary under the law.
Law on appeal
[11] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9
[12] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11
Appellant submissions
[13] Mr Fraider appeals on the ground that the Judge erred in not providing a discrete discount for personal background and addiction issues. Mr Laubscher, counsel for Mr Fraider, submits there are two distinct errors. First, the uplift for previous offending needs to be assessed with reference to the starting point adopted. While it is unclear what the unmodified uplift for previous offending was, Mr Laubscher submits that it should not have exceeded one month.
7 At [12].
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
11 Ripia v R [2011] NZCA 101 at [15].
[14] Second, if the submission as to the appropriate uplift is accepted, the Judge should have applied the discount in one of two ways. One approach would have been to completely set off the uplift for previous convictions and, after allowing for the discount for guilty plea and rounding down the end sentence, it should have been 13 months. Alternatively, a discount of 10 to 15 per cent for background should have been given. Under this latter approach, even if a greater uplift was imposed the end sentence should have been 12 months.
[15] Mr Laubscher also submits that the appellant is entitled to a sufficient explanation of the sentence imposed to increase transparency, citing Moses v R in support.12
Respondent submissions
[16] Ms Nash, counsel for the respondent, submits that the Judge did provide for the appellant’s background appropriately in reducing the uplift for the prior convictions. Ms Nash says that Mr Fraider’s criminal history could have justified an uplift of two to three months. Therefore the decision to reduce the uplift to one month has effectively provided for a discount for his background. As an example, she notes that if a three-month uplift was appropriate, the reduction to one month creates an 11 per cent discount.
[17] In support of her submission regarding the uplift for prior offending, Ms Nash refers to Mr Fraider’s extensive criminal history of 72 prior convictions, 34 of which could be classified as dishonesty convictions and include theft, burglary, unlawfully taking a motor vehicle and receiving. While Ms Nash accepts that the uplift must be kept in proportion, she submits that in cases of recidivist dishonesty offending, such as here, uplifts are common and therefore an uplift of three months could not be described as excessive.13
[18] Ms Nash recognises a small discount for Mr Fraider’s background circumstances was appropriate, in accordance with the Supreme Court in Berkland v R
12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [30] and [46]–[47].
13 Counsel refers to two cases as examples: Henriksen v New Zealand Police [2015] NZHC 2572;
Davies v New Zealand Police [2019] NZHC 3081.
affirming that background factors such as addiction, deprivation and historic dispossession can mitigate a sentence where the factors have “contributed causatively” to the offending.14 Ms Nash accepts the alcohol and drug abuse in Mr Fraider’s upbringing and life contributed causatively to his offending but refers to his otherwise relatively stable upbringing in determining that a discount of around 10 per cent would have been appropriate. Therefore, Ms Nash submits this discount was effectively given by the reduction in the uplift for prior convictions.
Discussion
[19] It is clear that Judge Jelaš took the appellant’s background into account, including that Mr Fraider was exposed to alcohol and drugs at a young age from within his family. The Judge’s reference to his “long-standing dependency” when reducing the uplift demonstrates this, as well as her efforts to obtain and read not only the PAC report but also the CADS report.
[20] However, it is not apparent what uplift was given for Mr Fraider’s criminal history, nor what discount was given for his background, because the uplift was not identified prior to the reduction. This is not in itself an appealable error. However, if the end sentence this Court arrives at on its own assessment is different so as to render the original end sentence manifestly excessive, then that will be an error. I turn to this Court’s assessment.
[21] It was accepted by both parties in the District Court and again in this Court that the 18-month starting point is within the range that can be properly justified. I therefore proceed on the basis of an 18-month starting point.
[22] To determine the appropriate uplift for Mr Fraider’s prior convictions, the relevance of the prior convictions is to be assessed with regard to the nature, age and frequency of them. The uplift also needs to be in proportion to the starting point.15 Ms Nash for the Crown notes that Mr Fraider has 72 prior convictions, 34 of which she says can be classified as dishonesty convictions. One of the offences subject to
14 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)].
15 Taylor v R [2012] NZCA 332 at [46].
this sentence is a dishonesty offence: theft. Of particular note are the nine dishonesty offences Mr Fraider committed during 2020.
[23] This, along with the numerous dishonesty offences committed over the last decade, demonstrates a predilection to commit this type of offending and in turn can warrant a higher sentence.16 Additionally, given the rationale for uplifts for prior offending is to deter those who have seemingly failed to learn from sentences imposed on previous occasions, an uplift of three months can be justified in this case. This results in a starting point of 21 months.
[24] It is also appropriate for Mr Fraider to receive a discount for his alcohol and drug dependencies, as submitted by Mr Laubscher and acknowledged by Ms Nash. However, I accept Ms Nash’s submission that Mr Fraider, aside from being introduced to alcohol, cannabis, and methamphetamine by his father at a young age, has had a reasonably stable upbringing. Other factors which would increase the size of the discount are not present here: such as physical violence; sexual violence; an unstable family environment; and being in a gang environment. Therefore, a discount of 10 per cent adequately recognises the role his background and addiction have played in his offending.
[25] A starting point of 21 months17 with a discount of 35 per cent (25 per cent for the guilty plea and 10 per cent for his background) results in an end sentence of 13-and-a-half months’ imprisonment (rounded down in favour of the appellant). This is a one month difference from the original end sentence imposed.
[26] While a reduction of one month may in some cases be considered mere tinkering with the end sentence, in the context of a short sentence of imprisonment, a reduction of one month is a meaningful reduction and is necessary to ensure the appellant is not disadvantaged.18
16 See R v Casey [1931] NZLR 594 (CA) and R v Ward [1976] 1 NZLR 588 (CA).
17 As noted in Moses v R, above n 12, at [10] it is not necessary to calculate small uplifts or discounts as a percentage. Such uplifts or discounts may be fixed as a number of months or years.
18 See Keown v R [2010] NZCA 492; Maihi v R [2013] NZCA 69; Helsby-Knight v R [2015] NZCA 315.
[27] On my finding that an appropriate sentence is one that is one month less than the original sentence imposed and that it constitutes a meaningful reduction, I therefore find, on the margins, the sentence of 14-and-a-half months to be manifestly excessive.
Result
[28]The appeal against sentence is allowed.
[29] The sentence of 14-and-a-half months’ imprisonment is quashed and a sentence of 13-and-a-half months’ imprisonment is substituted.
Gordon J
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