Fraser v Police
[2024] NZHC 167
•13 February 2024
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 a result of the incident.
[9] She also says that she lives with the paranoia that Mr Fraser could pop up anywhere despite the fact he is in prison. She feels permanently unsafe because Mr Fraser would often tell her that he knows people that could make her disappear. She also fears that Mr Fraser may harm their children in the future. She says she is finished with Mr Fraser since the incident.
District Court decision
[10] Judge Flatley noted the pre-sentence report assessed Mr Fraser as posing an immediate risk of harm and a medium risk of re-offending, and this view was supported by his increasing repeat offending. The Judge concurred with the recommendation of the pre-sentence report that a sentence of imprisonment was appropriate.4
4 Police v Fraser, above n 3, at [5]–[8].
[11] In setting the starting point, the Judge referred to the Court of Appeal’s decision in Faaleaga v R,5 along with this Court’s decisions in Tanuvasa v Police,6 and Allan v Police.7 The Judge considered that a number of aggravating factors identified in those cases were present here.8 These included a degree of pre-meditation and the nature and frequency of the threats. While Mr Fraser did not follow through with his threats, he caused the victim real concern and belief that he might carry out these threats. Although there was no axe, there was a physical assault on her. Furthermore, the Judge considered that the victim was vulnerable as she was holding a child and took the threats seriously.
[12] The Judge then referred to other cases which he considered were relevant because they involved similar aggravating and mitigating factors. These cases were Haynes v Police,9 Taylor v Police,10 and Hurring v Police.11 In light of the aggravating factors of this case, and the sentences imposed in similar cases, the Judge came to the starting point of 16 months’ imprisonment on the charge of threatening to kill.12
[13] The Judge applied a four month uplift for the assault charge. The Judge did not apply an uplift for Mr Fraser’s previous convictions. The Judge then gave a 25 per cent discount for Mr Fraser’s guilty plea to reach an end sentence of 15 months’ imprisonment.13
[14] The Judge would not convert the sentence to one of home detention, even if a suitable address for an electronically monitored sentence became available.14 That finding is not disputed on appeal.
5 Faaleaga v R [2011] NZCA 495.
6 Tanuvasa v Police [2017] NZHC 939.
7 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.
8 At [9].
9 Haynes v Police [2022] NZHC 950.
10 Taylor v Police [2014] NZHC 1139.
11 Hurring v Police [2020] NZHC 3309.
12 Police v Fraser, above n 3, at [16].
13 At [18].
14 At [20].
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.15 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.16 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.17
Submissions
Appellant’s submissions
[16] Ms Andersen submits that the District Court Judge erred in finding the offending was analogous to the decisions of Haynes, Taylor, and Hurring, saying each of those decisions involved offending with greater culpability than Mr Fraser’s offending. She submits that a global starting point of not more than 14 months’ imprisonment or ten months’ imprisonment for the threatens to kill charge was available to the Court when comparing the fact pattern to those of other cases.
[17] Ms Andersen submits that there was no evidence to indicate that Mr Fraser would have used a weapon had he carried one with him. Therefore, his threat that he would smash the victim with an axe cannot be an aggravating factor beyond the nature of the threat to harm the victim with an axe.
[18] She also submits that the Judge erred in finding a degree of premeditation in the offending. In her submission Ms Andersen states that the threats were spontaneous, rather than premeditated; with one threat to harm the victim was an axe, and the other a general threat that he would kill and bury her.
15 Criminal Procedure Act 2011, ss 250(2) and 250(3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
17 Ripia v R [2011] NZCA 101 at [15].
[19] Ms Andersen also submits that Mr Fraser’s psychological report was not taken account in sentencing. The psychological report details Mr Fraser’s troubled upbringing and how both he and his mother were the victims of domestic violence from his father. He was placed in Child Youth and Family’s care at age 13 which escalated his problematic behaviour. He started using drugs and alcohol and says he experienced sexual abuse during the period, but he was not believed. He had two children to two different women during his teens, both of which died in infancy. He turned to using alcohol and cannabis and then methamphetamine, in order to cope with his grief. He has also witnessed the death of one friend by a gunshot wound and found two friends dead through suicide. He has also made repeated suicide attempts himself.
[20] The psychological report diagnoses Mr Fraser with Complex Post-Traumatic Stress Disorder (PTSD) and records that he is experiencing extremely severe symptoms of depression. The report identifies a causal nexus between his PTSD and his offending stating:
The causal pathway for offending behaviour is complex and multifaceted, often influenced by a combination of individual, environmental and societal factors. It is important to note that not everyone who experiences trauma becomes an abuser themselves. Anthony presents with an outstanding amount of unprocessed trauma and grief which significantly impacts on his abilities to tolerate stress, regulate his emotions, and results in violent behaviour.
Respondent’s submissions
[21] Mr Power, for the Crown, submits that the District Court Judge’s application of the factors referred to by the Court of Appeal in Faaleaga is sound and there can be no criticism of the starting point on appeal.
[22] Mr Power further submits, citing Stuart v New Zealand Police,18 that the uplift for the charge of assault of a person in a family relationship was justified, and could have been higher.
[23] Regarding the psychological report, the respondent accepts that a 10 per cent credit may be appropriate notwithstanding that the material within the report appears
18 Stuart v New Zealand Police [2023] NZHC 2867.
predominantly self-reported. To that extent only, it is accepted the appeal should be allowed.
Analysis
[24] There is no tariff judgment concerning the offence of threatening to kill.19 That is because the circumstances in which such threats are made will vary too widely.20 A further difficulty in composing sentences on this charge is that the starting point is often set globally and it is difficult to discern the starting point for threatening to kill as the lead offence.21 However, the starting point will usually be a sentence of imprisonment, with Whata J noting in Pathiranage v Police, that cases of domestic violence involving a threat to kill “will usually attract a sentence of imprisonment of nine months to two years”.22
[25] Faaleaga v R outlined key factors in assessing the culpability of a charge of threatening to kill. These were noted as:23
premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat, actual danger to the victim.
[26] To reiterate, the District Court Judge found that there was a degree of premeditation to the threats.24 However, the appellant does not accept this, saying the threats appeared to have been spontaneous.
[27] The Court of Appeal has defined premeditation as the degree to which the threats were planned or calculated.25 In Haynes, Gordon J rejected the submission that the threats were spontaneous given that they continued over the course of two days and were linked to earlier actual violence for which Mr Haynes had been imprisoned. They were calculated to instil fear of actual violence.26
19 Crimes Act, s 306.
20 Taylor v Police, above n 10, at [15].
21 Taylor v Police, above n 10, at [16].
22 Pathiranage v Police [2013] NZHC 229 at [12].
23 At [11].
24 At [10].
25 Faaleaga v R, above n 5, at [11].
26 At [45].
[28] In the present case, two threats were made between 3.30 pm and 8 pm. These threats were the latest in a long line of threats. The threats were also linked to domestic violence both prior to this offending and as part of it. Threatening use of a specific weapon such as an axe suggests a calculated threat with some degree of contemplation, irrespective of whether that weapon existed. That threat further specified a timeframe; namely when the victim arrived home. While at the lower end of the spectrum, these factors suggest “a campaign to terrorise” as the Court of Appeal has put it, as opposed to a spontaneous decision and a reflection of immediate anger.27
[29] In relation to the ability to effect the threat, Mr Fraser said that he was waiting at home with an axe in his hand to smash the victim with it. However, he did not have an axe to make good on this threat. The District Court judge said that there was insufficient evidence to support an outright conclusion that he would not have used a weapon if he had one with him. Ms Andersen submits that, as a corollary, there was also no evidence to indicate that Mr Fraser would have used a weapon had he carried one with him. However, this consideration is not concerned with hypothetical possibilities but with the reality. Here, it is clear that he did not have the means to effect the threat and, arguably, the victim did not believe he had either as she returned to the house despite the threat.
[30] Turning to vulnerability, a factor identified as relevant in Allan, the victim was highly vulnerable when the threat was made; she was holding their child and pinned within the corner of the room. She was then assaulted by Mr Fraser, at which point he delivered another threat (to bury her body and make a film about it).
[31] The Court in Haynes considered that “Threats to kill which are made in the context of an intimate relationship, particularly where there is a history of actual domestic violence, raise special concerns for the Court.”28 Mr Fraser was convicted and charged with assault on a person in a family relationship against the same person in 2020 and the domestic violence report referred to in the pre-sentence report suggest there is a history of such incidents involving Mr Fraser as the primary aggressor.
27 Faaleaga v R, above n 5, at [13].
28 At [48].
[32] Ms Andersen submitted that a 16 month starting point for the threat to kill charge could not be justified in light of the cases the Judge relied on. In Haynes, a global starting of 14 months had been adopted at sentencing for a charge of threatening to kill among other charges. The victim in that case ended the relationship via text message, to which Mr Fraser responded stating: “If you don’t return the ring, you will end up in a drain”.29 The following day two further text messages were sent stating: “Right now I could watch you die and just stare in your eyes and smile as you pass”; and “I would breathe a sigh of relief as I felt your presence leave”.30
[33] It is submitted that Haynes is distinguishable by the previous conviction history which involved serious instances of strangulation which were coupled with death threats. By way of comparison, the Judge referred to Mr Fraser’s prior criminal convictions as “low-level assault convictions”.31 Strangulation involves a higher level of culpability than assault on a family member. Thus, while in both cases, there were forms of partner violence, I accept that the offending in Haynes was more serious and the 18 month starting point in that case encompassed the other charges as well.
[34] Taylor bears a close factual similarity to the present case. In that case, Mr Taylor forced his way through the front door, despite the victim trying to lock the door to prevent his entry.32 He pinned the victim against a bedroom door causing her minor injuries and screamed that she needed to leave the town, or he would kill her. The victim grabbed her phone to contact the police and Mr Taylor left. The victim had obtained a protection order against Mr Taylor two days before the attack.33 On appeal the Judge reduced the starting point on the threatening to kill charge to 18 months.
[35] I accept the fact that a protection order was in place makes Taylor slightly more serious than the present case and warranting a lesser starting point than the “stern” 18 month starting point imposed on appeal. That said, the 16 month starting point which was taken by the District Court Judge in the present case does reflect the factual difference from Taylor.
29 At [7].
30 At [8].
31 Police v Fraser, above n 3, at [2].
32 At [4].
33 At [5]–[6].
[36] It is further submitted that Hurring is distinguishable by the repeated use of weapons, including to try and break into the house, the number of complainants, and the clear instances of premeditation.
[37] In Hurring, physical weapons were present when the threats were made, including spears and then an axe. The weapon threatened in the present case did not exist. While that does not diminish the victim’s genuine fear of Mr Fraser in this case, I accept that Hurring involved more aggravating factors than the present case, which was reflected in the higher starting point of two years and three months, albeit for the totality of charges.
[38] Mr Power also referred to the case of Stuart v New Zealand Police where I reduced a sentence on appeal for a threat to kill a wheelchair bound victim, coupled with an assault (pinching and punching the hand) of the victim’s caregiver, to 12 months for the threat to kill, uplifted by three months for the assault.
[39] Charges of threatening to kill can produce varying sentences. The Court of Appeal has stated that “[i]t is difficult to discern any consistent pattern in sentences on charges of threatening to kill”.34 However, as stated by this Court in Haynes, “comparison with recent case law will ensure consistency with sentencing for similar offending.”35
[40] In my view, it is important to look at the sentence imposed for the totality of the offending. Here, the seriousness of the threats to kill were amplified by the actual assault which occurred in between the threats being made. Overall, I find the starting point of 20 months reached by the judge on both charges was stern, but not manifestly excessive.
[41] In relation to Ms Andersen’s second submission, regarding the psychological report, I accept that the Judge did not mention or address the psychological report in the judgment. It follows that the psychological report was not the basis of any discount in the sentencing of Mr Fraser at the District Court.36
34 Faaleaga v R, above n 5, at [9].
35 At [34] citing Sentencing Act, s 8(e).
36 His Honour mentioned only the pre-sentencing report at [5], a distinct document.
[42] It is regularly acknowledged that background factors which contribute causatively to offending should materially affect sentence in accordance with the relevant purposes and principles of sentencing.37 I am satisfied that to ignore such factors in sentencing is clearly an error and must be corrected on appeal.
[43] The report is detailed and expressly refers to how Mr Fraser’s background is linked to his offending. It says:
Anthony was exposed to multiple forms of violence both witnessing it in intimate relationships and being the victim of it. As such, violence and antisocial behaviour was normalised. Growing up in poverty, and living a transient lifestyle meant that Anthony also struggled to form healthy friendships. This was exacerbated by his family placing him in state care, resulting in a sense of abandonment, and internalised low sense of self-worth. At such a young age he was never role modelled helpful ways to identify and express emotions. As such he developed maladaptive coping strategies such as lashing out in a violent manner at times of stress and self medicating using alcohol and drugs as he got older. Violence was also utilised functionally as a means to an end or to get what he wanted.
[44] The report concludes that “Anthony presents with an outstanding amount of unprocessed trauma and grief which significantly impacts on his abilities to tolerate stress, regulate his emotions, and results in violent behaviour.”
[45] There is a clear causal nexus established between Mr Fraser’s background and his offending. I would allow a 10 per cent discount to reflect those matters, resulting in an end sentence of 13 months.
Conclusion
[46] The appeal is allowed. The sentence of 15 months’ imprisonment on the threat to kill charge is quashed. In its place a sentence of 13 months is imposed. The three month concurrent sentence on the assault charge is unchanged.38
Solicitors:
Crown Solicitor, Dunedin
Copy to:
C M Andersen, Barrister, Dunedin
37 Berkland v R [2022] 1 NZLR 509, [2022] NZSC 143 at [16].
38 The Judge did not refer to the sentence length on the assault charge in his sentencing notes except to say, at [21] that he would be imposing a lesser concurrent sentence on that charge, but the Court file records a three month sentence.
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