Fraser v Police - [2024] NZHC 167

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-113

[2024] NZHC 167

BETWEEN
ANTHONY LEE GILLATT DEY FRASER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 February 2024

Appearances:

C M Andersen for Appellant (via VMR) C E Power for Respondent (via VMR)

Judgment:

13 February 2024

Reissued:

18 March 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 13 February 2024 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

FRASER v NEW ZEALAND POLICE [2024] NZHC 167 [13 February 2024]

Introduction

[1]The appellant, Anthony Fraser, pleaded guilty to the following charges:

(a)threatening to kill or do grievous bodily harm;1 and

(b)assault on person in family relationship.2

On 15 November 2023, Judge Flatley sentenced Anthony Fraser to 15 months’ imprisonment.3

[2]The appellant now appeals that sentence on the following grounds:

(a)The starting point and end sentence were manifestly excessive, and not in line with authorities; and

(b)The Judge failed to provide any discount for matters raised in a psychological report which established a causal nexus between Mr Fraser’s mental health issues and his offending.

Facts

[3] Mr Fraser and the victim were, at the time of the offending, in a relationship and have two children together. At the time of the offending Mr Fraser was 28 years old.

[4] On 17 August 2023 at about 3.30 pm, Mr Fraser was at home and the victim was at her mother’s address. Mr Fraser messaged the victim saying he was at home with an axe in his hand waiting to smash her with it. He told her to hurry home.

1      Crimes Act 1961, s 306.
2      Section 194A.
3      Police v Fraser [2023] NZDC 25440 at [21].

[5] The victim arrived home, and Mr Fraser became angry after a disagreement with the victim. He left the property shortly after. However, around 8 pm, he returned, still angry, and started abusing the victim. Mr Fraser advanced on her while she was holding their 3 year old child, and cornered them. Mr Fraser laughed at the victim and said, “you think holding your daughter in front of you will stop me”.

[6] Mr Fraser punched the victim in the forehead while she was holding the child. Mr Fraser took the child off the victim and the victim went to the bathroom. Mr Fraser texted her while she was in the bathroom, threatening to kill her and hide her body. He went on to say he would explain to their children why he killed her and that someone would make a movie about it all.

[7]The victim sustained a welt on the top of her head as a result of the assault.

Victim Impact Statement

[8] In her victim impact statement the victim says that she gets headaches quite often because of the number of times that Mr Fraser has hit her. She also says that she had a big bruise on her face as…

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 [2024] NZHC 167
Case: [2024] NZHC 167
Decision Date: 13 February 2024

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Anthony Fraser against his sentence for threatening to kill and assaulting a person in a family relationship. Fraser, who had a history of domestic violence, pleaded guilty to threatening to kill his partner with an axe and assaulting her while she held their child. The District Court sentenced him to 15 months' imprisonment. Fraser's appeal was based on the argument that the starting point and end sentence were excessively high and that the District Court failed to consider his psychological report which detailed his history of trauma and its link to his offending.

The High Court considered the District Court's reliance on several cases to set the starting point for the charge of threatening to kill, noting that while Fraser's case involved less premeditation than some of the cases, it still involved a degree of planning and threats made in the context of domestic violence, which were factors that justified a higher starting point. The High Court also acknowledged the District Court's failure to consider the psychological report in sentencing, which detailed Fraser's troubled background and its causal link to his offending. This oversight was deemed an error warranting correction on appeal.

The Court found that while the starting point of 16 months for the threat to kill charge was stern, it was not manifestly excessive. However, a 10% discount was appropriate to reflect the mitigating factors outlined in the psychological report, resulting in a final sentence of 13 months for the charge of threatening to kill, with the concurrent three-month sentence for the assault charge remaining unchanged. The appeal was thus allowed, and the sentence was modified accordingly.

Orders