Fraser v Police

[2025] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-085 [2025] NZHC 824

BETWEEN  JESSE CHRISTOPHER FRASER

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   7 April 2025

Appearances:           M English and J Kim for Appellant

K Rewa for Respondent

Judgment:                7 April 2025

(ORAL) JUDGMENT OF WILKINSON-SMITH J

Solicitors:

M English, Public Defence Service, Auckland Meredith Connell, Auckland

FRASER v NEW ZEALAND POLICE [2025] NZHC 824 [7 April 2025]

Introduction

[1]    Mr Jesse Christopher Fraser appeals against a sentence of eight months’ imprisonment on a charge of driving with excess breath alcohol (third or subsequent)1 imposed by her Honour Judge K Davenport on 31 January 2025. Mr Fraser also faced a charge of careless driving for which he was convicted and discharged. That sentence is not subject to any appeal.

[2]    The appellant submits that the sentencing process fundamentally miscarried and that the sentence of imprisonment was manifestly excessive and inappropriate.

[3]    The matter is complicated by the fact that the sentencing notes of  the  District Court Judge are not available. They were requested and a portion of the notes is available this morning but the sentencing notes that deal with starting points and the reasons for the sentence are not available.

Background

[4]    Prior to the sentencing hearing in the District Court, both defence and police apparently filed submissions on sentence. A pre-sentence report with appendices was available. The pre-sentence report recommended a sentence of intensive supervision and community work and advised that a further remand would be required if the Court wished to pursue an electronically monitored (EM) sentence. Mr Fraser’s address was considered unsuitable for conventional electronic monitoring.

[5]    Sentencing initially proceeded on 30 January 2025. Counsel are agreed that Judge Davenport relied on Samson v Police,2 and Clotworthy v Police to determine a starting point of 14 months’ imprisonment.3

[6]    The parties advise that Mr Fraser’s offending was said to fall within band two of Samson on the basis that his previous history was a seriously aggravating feature of the offending. The starting point was uplifted by one month for the previous history

1      Land Transport Act 1998, ss 56(1) and 56(4), maximum penalty two years’ imprisonment or fine up to $6,000.

2      Samson v Police [2015] NZHC 748.

3      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

bringing the global starting point to 15 months’ imprisonment. It is said that the Judge acknowledged that an EM sentence was not viable as the address had minimal coverage to support electronic monitoring equipment. Despite that, Judge Davenport sentenced Mr Fraser to four months’ home detention and 150 hours community work. Mr Fraser was also captured by s 65AC of the Land Transport Act 1998 and an alcohol interlock sentence applied.

[7]    Mr Fraser’s counsel advises that in the absence of a suitable home detention address, Mr Fraser was stood down in custody for counsel to obtain instructions regarding another address. An alternative address was suggested, however probation advised that 10 working days would be required to prepare a home detention appendix for the new proposed address.  Mr Fraser was then scheduled to be resentenced on  13 February 2025 at the Auckland District Court to accommodate probation’s timeframe.

[8]    Judge Davenport initially considered that bail for a period of 10 days was a possibility whilst the alternative address was canvassed. The matter was scheduled to be recalled the following day, 31 January 2025, for a bail hearing. Mr Fraser was remanded in custody overnight. Without the Judge’s full sentencing notes I cannot be sure of the basis for that remand in custody.

[9]    On 31 January 2025 the matter was recalled. Checks overnight had revealed that the proposed address was not available. The 13 February 2025 date was vacated and Judge Davenport resentenced Mr Fraser to eight months’ imprisonment with leave to apply for home detention. Six months’ standard release conditions were imposed.

[10]   Mr Fraser’s counsel acknowledges that the end point of imprisonment imposed is less than would be suggested by the starting point and discounts set out in the earlier decision but says that a sentence of imprisonment of any length was manifestly excessive.

Grounds of appeal

[11]The appellant says that the Judge arrived at a starting point within band two of

Samson on the basis that Mr Fraser’s previous history was a serious aggravating

factor.4 Counsel relies on Parker v Police where this Court acknowledged that a five- year gap between the charges of dangerous driving and driving with excess breath alcohol and the most recent previous excess breath alcohol offending was a mitigating factor of the offending.5

[12]   The charge in this case was Mr Fraser’s fourth drink driving charge. There was a gap of four years and 10 months between the index offending and his third drink driving charge. Prior to his third drink driving charge, Mr Fraser was convicted in 2000 and 2009 of driving with excess breath alcohol.

[13]   Mr Fraser’s last non-driving conviction was in 2019 and so is relatively dated. The appellant submits that this case falls at the bottom of the second band in Samson or the top of the first,  and the starting point should have been in the region of        12 months’ imprisonment.

[14]   The second point on appeal is that the Judge double counted Mr Fraser’s history as an aggravating factor justifying an uplift. The appellant says that her Honour had already considered Mr Fraser’s history when adopting the starting point and his history should not have attracted a discrete uplift. The charge of driving with excess breath alcohol (third or subsequent) incorporates an increased penalty for recidivist offending and is an element of the offence.

[15]   The respondent accepts that the uplift by one month was an error and does not seek to defend that aspect of the sentencing.

[16]   The appellant also appeals on the basis that the Judge failed to adequately take into account Mr Fraser’s remorse and rehabilitative efforts. Mr Fraser entered guilty pleas to all charges at the earliest reasonable opportunity. A discount of 25 per cent was sought and granted. At the time of sentencing, Mr Fraser had attended around eight Alcoholics Anonymous meetings and a letter from one of the meeting facilitators, together with his meeting attendance signoffs, was provided. Mr Fraser had also contacted Community Alcohol and Drug Services and had been referred to the eight

4      Samson v Police, above n 2.

5      Parker v Police [2022] NZHC 1981.

week Taking Action group. The group sessions were to start on 4 February 2025. A letter confirming the details of that were provided at the sentencing hearing. Mr Fraser had also written a letter to the Court conveying his remorse. The Judge apparently commented on the fact that Mr Fraser had only engaged in these efforts in late November 2024 — over a month after he had entered his guilty pleas.

[17]   A full credit of 25 per cent was given for guilty plea and a one third discount overall.  The appellant takes issue with that one-third discount and says  that if the  25 per cent guilty plea discount is factored in, the additional discount was only eight per cent which was inadequate.

[18]   Finally, the appellant takes a procedural point and says that having sentenced Mr Fraser on 30 January 2025, the resentencing was improper. The appellant acknowledges that under s 80A (4) of the Sentencing Act, a sentence of home detention must specify an address and it could therefore be considered that there was an erroneous sentence in terms of s 180 of the Criminal Procedure Act 2011 entitling the Court to resentence.

[19]    The appellant also raised the jurisdiction of the Court to remand Mr Fraser in custody having just sentenced him to home detention and complains that her Honour failed to address the least restrictive outcome in the circumstances which would have been an adjournment for an address to be canvassed for electronic monitoring.

[20]   The appellant submits that it was accepted by all involved that the least restrictive outcome available in accordance with s 8(g) of the Sentencing Act 2002 was a community-based sentence. The Judge herself accepted that and imposed a sentence of home detention on 30 January 2024.

[21]    Mr Fraser’s personal circumstances are that he is 50 years of age. His last conviction for similar offending was in 2019 for which he received community work and supervision.

[22]   The respondent initially filed a memorandum acknowledging the absence of the two sets of sentencing notes and suggesting that, should the relevant materials not

be available in time for the hearing, this Court should proceed to sentence Mr Fraser afresh. That suggestion is problematic because this Court can only sentence afresh having allowed the appeal and without the sentencing notes, I would not be prepared to find that the Judge erred in setting the starting point that she did.

[23]   By the time the appeal hearing date arrived, the respondent’s position had changed. The two sets of sentencing notes were still not available but the respondent, mindful of the indication by this Court that the appeal needed to proceed promptly, filed points opposing the appeal.

[24]   The respondent submits that the end sentence was not manifestly excessive and says that Mr Fraser’s history is a serious aggravating factor. It is accepted that there are no two prior drink driving convictions which occurred in particularly quick succession and there is a gap between the 2019 offending and the current offending, but Mr Fraser’s history, it is said, remains an aggravating factor.

[25]   Mr Fraser’s history reveals no charges between 2019 and 2024. He has a number of non-driving related offences prior to his 2019 driving charges but much of that offending is now quite historic. The careless driving charge for which Mr Fraser was sentenced at the same time as the charge of driving with excess breath alcohol (third or subsequent) to which this appeal relates, concerned to a collision on a roundabout prior to being stopped by police and breath tested. I infer that was minor as it resulted in a conviction and discharge.

[26]   The respondent’s position is that the offending was properly placed in band two of Samson because it is aggravated by one or more seriously aggravating factors,6 being the breath alcohol reading which was more than twice the legal limit and the nature of the driving which included the collision on a roundabout, leading to the careless driving charge.

[27]   The respondent says that the starting point of 14 months’ imprisonment was available, but the imposition of the uplift to a global starting point of 15 months was double counting. The respondent accepts that the eight per cent discount given for

6      Samson v Police, above n 2.

rehabilitative efforts and remorse was conservative but says it was justified because all of the efforts were finalised in very close proximity to sentencing and two months after the entry of guilty pleas.

[28]   The respondent says in written submissions that the sentence imposed was ultimately the least restrictive in the circumstances because Mr Fraser did not have a suitable address for an EM sentence of home detention and was afforded opportunities to obtain one. In the circumstances, it is submitted by the respondent that it was correct for the District Court to resentence Mr Fraser to imprisonment, with leave to apply for home detention.

The District Court decision

[29]   It is impossible for me to come to any conclusion regarding the Judge’s reasoning as to the starting point and, as I have said, I would not find an error without the opportunity to review the sentencing notes. There are however two aspects that might permit the appeal to be allowed despite the fact the sentencing notes are not available.

[30]   The first is that the Crown acknowledges that the uplift for the previous history was double counting. That was however a very small uplift and would only lead to a slight adjustment in sentence, probably not justifying allowing the appeal.

[31]   The second issue is the fact that home detention may be imposed in situations where an address is not suitable for conventional electronic monitoring. A sentence of home detention does not require electronic monitoring. While that ordinarily occurs, it is not a legislative requirement under the Sentencing Act. Whether a sentence of home detention is to be EM is at the discretion of the probation officer managing the sentence. It is open to the Court to impose a sentence of home detention where conventional electronic monitoring is unlikely to be available, if the sentence would otherwise meet the purposes and principles of the Sentencing Act.7

7      Sentencing Act 2002, ss 7 and 8.

[32]   It is obvious that the District Court Judge was of the view that home detention was the appropriate sentence. That was the sentence imposed at the first sentencing hearing and the Judge gave leave to apply for home detention when imposing the second sentence.

[33]   The respondent does not oppose the appeal being allowed to the extent that the original sentence of home detention is reinstated, with adjustments made for the period of time in custody.

Law

[34]   Sentences of home detention are governed by  subpart  2A  of  the  Sentencing Act. Pursuant to s 80A (2), a court may sentence an offender to home detention if:

(a)the court is satisfied that:

(i)the proposed home detention residence is suitable;

(ii)the relevant occupants understand the conditions of home detention, consent to the offender serving home detention at the address and understand that they can withdraw consent; and

(iii)the offender understands the conditions and agrees to comply with them; and

(b)the home detention residence is in an area in which a home detention scheme is operated by the Chief Executive of the Department.

[35]   The address which is currently proposed for home detention was canvassed. No issues were raised except for the fact that it could not be subject to conventional electronic monitoring because of a weak cell phone signal.

[36]   The detention conditions are set out in s 80C of the Sentencing Act, which provides:

80C Detention conditions applying to offender sentenced to home detention

An offender who is serving a sentence of home detention is subject to detention conditions comprising:

(a)the standard conditions set out in subsection (2); and

(b)any special conditions that may be imposed by the court under section 80D.

[37]   The Court does not have any discretion as to whether the standard conditions are imposed. Each of the standard conditions applies to any offender who is serving a sentence of home detention. The Court does have a discretion to impose special conditions under s 80D.

[38]   The standard condition relevant to the present case is in s 80C(2)(d) which provides:

(d) the offender must, when required by a probation officer, submit to the electronic monitoring of compliance with his or her detention conditions;

[39]   The effect of this condition is that a home detention sentence does not necessarily have to include electronic monitoring of the sentence. Rather, the condition confers a discretion on the probation officer managing the offender’s sentence to determine whether to require the offender to submit to electronic monitoring of compliance with his or her detention conditions.

[40]   Asher J said in R v Singh-Kang under the heading “home detention does not necessarily involve electronic monitoring”:8

[42]   Section 80(2)(d) provides that it is at the discretion of a probation officer whether an offender must submit to electronic monitoring. Section 80E where is sets out the purpose of electronic monitoring which is to deter the offender from breaching conditions that relate to his or her whereabouts and to monitor compliance with those conditions. If a probation officer felt that an offender did not require deterrence by electronic monitoring, no direction need be given. If an offender could be trusted not to breach conditions and that there was no need to monitor compliance because that trust could be appropriately placed on the offender, monitoring may not be directed if it will mean loss of a job. All the more so if the employer is co-operative and trustworthy.

8      R v Singh-Kang [2014] NZHC 126.

[43]  As observed in Hall’s Sentencing, a significant feature of the new home detention regime that was introduced with the recent amendments, was that compliance with the conditions of home detention may, but need not be, enforced by means of electronic monitoring [citing Hall’s Sentencing (online looseleaf ed, LexisNexis) at SA80E]. If a probation officer does not require the offender to submit to electronic monitoring there would appear to be no reason why an offender could not serve a sentence of home detention without that condition being imposed, and there is no reason why an offender could not serve a sentence of home detention with only limited electronic monitoring. So it would be open to the probation officer to require electronic monitoring while the offender was at home, but not to require electronic monitoring when the offender was at work.

[44]   I therefore read s 80C(d) as giving the probation officer a discretion to require full electronic monitoring, to dispense with electronic monitoring all together, or if appropriate to require electronic monitoring for certain parts of the day or week but not for other parts of the day or week.

[45]  The task of exercising this discretion is not for me, it is for the probation officer. I do not have all the information about Mr Singh-Kang’s employment. I have information about his home and a home detention report, and I have information about him in the probation report. All that information would indicate that Mr Singh-Kang is a man who could be trusted. It is particularly heartening that he has observed the terms of bail over a considerable period of time. It would seem likely, but this would have to be checked, that the employer is of good character and could be relied upon. Undoubtedly steps could be put in place to monitor compliance in an informal way, without electronic monitoring, if that were thought appropriate. If there is a breach of home detention conditions, the consequences for Mr Singh-Kang could include the end of the home detention sentence. He could end up in prison.

[41]   As per the comments of Asher J, while a sentence of home detention without electronic monitoring is consistent with the provisions of the Sentencing Act and may be available, the Court cannot choose to impose such a sentence. Rather, the section confers a discretion on the probation officer to determine whether electronic monitoring is required. Imposing a sentence of home detention without the availability of electronic monitoring would usually unduly fetter the discretion conferred on the probation officer by s 80C(2)(d) and for that reason will rarely be justified.

[42]   There have been cases where home detention has been imposed without electronic monitoring.

[43]   In R v Syeb, French J imposed a sentence of home detention even though electronic monitoring was not possible.9 The notes record that the sentence would be “home detention with manual monitoring only”. There is no explanation in the sentencing notes as to why electronic monitoring would not be possible and the issue does not appear to have been the subject of submissions. The defendant in that case had no previous convictions and was described as being at low risk of re-offending.

[44]   The issue of home detention without electronic monitoring has been commented on, albeit in obiter, in three other High Court cases:

(a)In Brown v Police, Thomas J observed that “there is no requirement that a sentence of home detention includes electronic monitoring” citing   R v Syeb.10 However, that comment was obiter in the context of that case, as the result of the appeal was that the sentence remained one of imprisonment.

(b)In Ranford v Police, Fitzgerald J noted that the sentencing Judge considered the appellant a candidate for home detention, but the barrier to such a sentence was cellular coverage.11 Her Honour commented that the sentencing Judge had not considered the possibility of home detention with manual monitoring or explained why this would not be appropriate, suggesting that given the nature of the appellant’s offending and previous compliance with his sentences and bail conditions, electronic monitoring would not have been crucial. This comment was again obiter as Fitzgerald J ultimately determined that a sentence of intensive supervision and community work would adequately meet the purposes and principles of sentencing on the facts of that case.

(c)In R v Wallace, Mallon J considered a sentence of home detention without electronic monitoring as recommended in the pre-sentence

9      R v Syeb HC Timaru CRI-2007-003-000416, 11 September 2008.

10     Brown v Police [2017] NZHC 1846 at [37].

11     Ranford v Police [2021] NZHC at [22].

report in that case.12 However, on the facts of that case, her Honour saw little utility in such a sentence and instead imposed community work.

[45]   As I have said, the imposition of a sentence of home detention without electronic monitoring, or with limited electronic monitoring, will be rare. Usually such a sentence would unnecessarily and inappropriately impede the discretion of probation to require the defendant to submit to electronic monitoring as contemplated by the statute. This case however is somewhat unusual. On the face of it, a fulltime custodial sentence for a fourth excess breath alcohol offence where the most recent previous offence was very close to five years ago, and the first and second instances of drink driving were 15 and 24 years ago, is an extremely stern response. Without seeing the sentencing notes, I am not prepared to say that it could not be justified, but it was not the sentence originally preferred by the Court.

[46]   The pre-sentence report in this case suggested a sentence of intensive supervision and community work which does not require electronic monitoring. Probation therefore did not regard Mr Fraser as someone who required the oversight of electronic monitoring as part of the recommended sentence. The sentence imposed originally was a sentence of four months’ home detention. It appears that the Judge was not asked to consider maintaining the sentence of home detention, despite the fact electronic monitoring would not be able to take place in the usual way. It was not brought to her attention that this could occur. The procedural aspects of this case are unusual, and I infer that the Judge felt that having sentenced Mr Fraser to home detention, the only option open to her was to impose a sentence of imprisonment when the address became unavailable. In fact, there was another, albeit unusual, option.

[47]   Given the position of both parties that a sentence of home detention is the appropriate sentence and is in fact available, I intend to allow the appeal and impose a sentence of home detention in place of the sentence of imprisonment. That sentence must take account of the fact that Mr Fraser has already been in custody for two months.

12     R v Wallace [2021] NZHC 1352.

[48]   I impose a sentence of two months’ home detention taking into account the two months that the appellant has already served in custody. Mr Fraser will be required to submit to what electronic monitoring is available or otherwise manual monitoring as directed by probation. I understand that corrections have a range of monitoring tools available, including retrospective monitoring and proximity monitoring. Those tools are available where the electronic signal at an address is simply too weak, which is the present situation.

[49]   I acknowledge the punitive aspect  of the full-time custodial sentence that   Mr Fraser has already served by also reducing the amount of community work to    75 hours from the original 150 hours.

[50]   The interlock device aspect of the original sentence is reinstated if it did not remain after the sentence of imprisonment was imposed.

[51]   That leaves only  the  issue  of  post-detention  conditions.  There  will  be  six months’ post-detention conditions to be directed by probation.13

Wilkinson-Smith J

13     I have added the words “as directed by probation” at [48] and [51] to clarify the directions.       I omitted to include those words when delivering the decision orally.