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…

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 Fraser v Police

Details

AGLC: Fraser v Police [2025] NZHC 824
Case: [2025] NZHC 824
Decision Date: 7 April 2025

CaseChat Overview and Summary

Jesse Christopher Fraser appeals against an eight-month imprisonment sentence for driving with excess breath alcohol, imposed by Judge Davenport on 31 January 2025. Fraser contends that the sentence was manifestly excessive and inappropriate, and that the sentencing process miscarried. The appeal hinges on the starting point of the sentence, the consideration of Fraser’s previous history and mitigating factors, and the appropriateness of the imposed sentence. The central issue is whether the District Court Judge correctly determined the starting point and adequately considered Fraser’s rehabilitative efforts and remorse. The appeal is further complicated by the absence of the sentencing notes, which would have provided clarity on the Judge’s reasoning.

The Court found that the Crown acknowledged the error in the uplift for Fraser’s previous history, which was double counting. However, this error alone would not justify allowing the appeal. The more significant issue was whether home detention could be imposed in situations where an address is unsuitable for conventional electronic monitoring. The Court concluded that home detention is permissible without electronic monitoring if the sentence otherwise meets the purposes and principles of the Sentencing Act. The District Court Judge had originally intended home detention but was unaware that it could proceed without electronic monitoring. The appeal was allowed to the extent of reinstating the original sentence of home detention, with adjustments for the time served in custody.

The Court noted that while a sentence of home detention without electronic monitoring is consistent with the Sentencing Act, it is rare and usually unnecessary. The discretion to impose such a sentence rests with the probation officer. The Court imposed a sentence of two months’ home detention, accounting for the two months Fraser had already served in custody, and reduced the community work hours from 150 to 75. The original interlock device aspect of the sentence is reinstated if it was not already in effect. Six months’ post-detention conditions will be directed by probation.

Orders