Fraser v The King
[2024] NZCA 211
•5 June 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA463/2023 [2024] NZCA 211 |
| BETWEEN | GENE TAMATI REHU RAWIRI FRASER |
| AND | THE KING |
| Hearing: | 7 March 2024 |
Court: | Courtney, Dunningham and Moore JJ |
Counsel: | G D Burns and M J Taylor-Cyphers for Appellant |
Judgment: | 5 June 2024 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Following a jury trial in the District Court at Rotorua, Mr Fraser was found guilty of one charge of injuring with intent to injure,[1] one charge of assault with intent to injure[2] and two charges of contravening a protection order.[3] On 3 July 2023, Judge A J S Snell, the trial Judge, sentenced Mr Fraser to four years and four months’ imprisonment.[4]
[1]Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.
[2]Section 193. Maximum penalty three years’ imprisonment.
[3]Family Violence Act 2018, ss 9, 90(a) and 112(1)(a). Maximum three years’ imprisonment.
[4]R v Fraser [2023] NZDC 14080 [sentencing decision].
Mr Fraser now appeals his sentence on the sole ground that the Judge’s overall starting point was excessive. He takes no issue with the Judge’s uplift for the breach of protection order offending or uplifts and discounts for his personal circumstances. The Crown opposes the appeal.
The offending
We gratefully adopt the Judge’s summary of the offending as set out in his sentencing notes:
[3] The factual circumstances are that on 26 July 2020, the complainants in this case, [A] and [B] … had a protection order granted in their favour. You were the respondent. You and [A] had been in a relationship for about 13 years. [B] … is [A]’s daughter.
[4] What happened was that about 10.00 am on Sunday 18 July 202[1], you and [A] and [B] were all at 4/28 Parawai Road in Rotorua. When [A] woke up that morning, she asked you how you had slept. You told her to "fuck off". She went to have a shower. You barged into the bathroom yelling, "Get the fuck out", and then [B] entered the bathroom and shouted at you to leave her mother alone. Eventually an argument took place, and you dragged both women out of the bathroom towards the front door. You were dragging [B] by her jersey and [A] was still naked after having been in the shower.
[5] On reaching the front door, you forced [B]’s head down and the allegation is that you kicked her twice to the head with force. That is the assault with intent to injure charge relating to B ... She then ran next door and sought help from her neighbour, [C]. [C] confronted you (at a distance from outside) about assaulting the two of them and you took exception to that. You went back into the house and retrieved a hammer and a metal pole. You then came out and confronted [C]. You struck him with the hammer to the head and to his body. There were said to be two to three blows to the head and two to three blows to the body. This involved both the hammer and the pole.
[6] The police were called, and they advised you that you were under arrest. You feigned acquiescence with the police instructions to put your hands behind your back, and then you ran back into the house barricading yourself into the bathroom. You were eventually arrested and left.
[7] [C] suffered a 2.5-centimetre abrasion to his head. He was treated in hospital. He also suffered a fracture to his lower left rib. He also had other abrasions and injuries from the hammer blows, but none of them could be described as serious.
Sentencing decision
The Judge took the injuring with intent to injure charge for Mr Fraser’s offending against C as the lead offence,[5] setting his starting point by reference to this Court’s guidance in Nuku v R.[6] He considered the aggravating factors of that offending to be:
(a)extreme violence, given it comprised an attack to the head and involved the use of weapons (a hammer and pole);[7]
(b)that it involved a degree of premeditation, given Mr Fraser went to get his weapons from the house before confronting C and using them against him;[8]
(c)that C was “inherently” vulnerable given he was “not fighting back at all”;[9] and
(d)that C suffered serious injuries, as evident in the fact he was transferred to hospital via ambulance and suffered a fractured rib, 2.5 cm abrasion to the head, 3 cm contusion to the lower ribs and a 7 cm superficial laceration to the chest.[10]
[5]At [29].
[6]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[7]Sentencing decision, above n 4, at [27(a)].
[8]At [27(d)].
[9]At [27(h)].
[10]At [27(e)].
In light of that assessment, the Judge considered the offending fell within band three of Nuku, and that the appropriate starting point range was between three years and three years and four months. He chose the lowest end of that range and adopted a three-year starting point.[11]
[11]At [29].
The Judge then turned to the charge of assault with intent to injure for Mr Fraser’s offending against B. He approached the uplift by assessing what the appropriate starting point would be under Nuku.[12] In doing so, he identified the aggravating factors of Mr Fraser’s offending against B as:
(a)extreme violence, given B was kicked in the head;[13]
(b)B’s inherent vulnerability and the breach of her trust, given she was at home at the time and was subject to a protection order;[14] and
(c)that while B suffered only minor injuries, there was an “element of psychological harm” to her given Mr Fraser was a father figure who had let her down.[15]
[12]At [30].
[13]At [27(b)].
[14]At [27(h)].
[15]At [27(f)].
On its own, the Judge considered this offending justified a starting point in the range of 15 to 18 months. However, taking into account totality and bearing in mind that the injuries to B were minor and inconsequential, the Judge considered a 10-month uplift appropriate.[16]
[16]At [30].
Adopting a six-month uplift for Mr Fraser’s breach of protection order offending, the Judge then arrived at an overall starting point of four years and four months’ imprisonment.[17]
[17]At [31].
The Judge then turned to Mr Fraser’s personal factors. He considered a four month uplift appropriate for Mr Fraser’s previous convictions and a five per cent discount (on the overall starting point of four years and four months) appropriate to recognise that Mr Fraser had been staying in limited accommodation, and was someone “that had been struggling in a number of different ways”.[18] However, in light of comments made to the pre-sentence report writer about his offending and attitudes to violence, the Judge declined to give any discount for remorse.[19]
[18]At [33] and [35].
[19]At [36].
The Judge then gave a final discount of one month in recognition of the time Mr Fraser spent on electronically monitored bail for about two-and-a-half months, notwithstanding that Mr Fraser had absconded from bail and was “effectively on the run for a period of time”.[20]
[20]At [37].
That brought the Judge to a final sentence of four years and four months’ imprisonment.
Approach on appeal
This Court must allow the appeal if satisfied that for any reason there was an error in the sentence imposed and a different sentence should be imposed.[21] The focus is on the end sentence rather than the process by which it is reached.[22] The Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end, the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.[23]
Was the Judge’s starting point excessive?
[21]Criminal Procedure Act 2011, s 250(2).
[22]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[23]At [35].
Mr Burns advanced Mr Fraser’s appeal on the basis that the Judge’s starting point for the lead offence of injuring with intent to injure, uplift for assault with intent to injure and purported failure to take account of totality led to an overall starting point that was excessive. We take each of these points in turn.
Was the starting point for the lead offence too high?
Mr Burns submitted the Judge’s three year starting point for the lead charge was out of range principally because the Judge failed to properly assess the seriousness of the aggravating factors identified in Mr Fraser’s offending. He submitted that, as compared to R v Bell and Tamihana v R,[24] C’s injuries – and, by implication, the violence – were only moderately serious. Furthermore, C was not vulnerable given he provoked Mr Fraser to fight him and challenged Mr Fraser, armed with wooden sticks, to another confrontation after the index offending had taken place.
[24]R v Bell HC Wellington CRI-2007-091-4305, 13 February 2009; and Tamihana v R [2015] NZCA 169.
We disagree. First, the offending involved extreme violence by any measure. That is plain given Mr Fraser’s use of a hammer and a metal pole, the fact C needed to be taken to hospital via an ambulance, and from the extent of C’s physical injuries, which while not life threatening were, nonetheless, hardly trifling consisting of a significant abrasion to his head, a broken rib and other abrasions and injuries from the use of the hammer (which the Judge accepted were not serious).[25] Mr Burns’ references to Bell and Tamihana are inapt. The former involved a defendant who hit his victim with a hammer in response to his victim punching him. Significantly, the Crown accepted the offending could be seen as excessive self-defence or provocation.[26] Simon France J considered an 18-month starting point appropriate given the comparatively modest injuries and degree of victim provocation.[27] Tamihana involved a single kick to the head, after a co-defendant first punched the victim who was then kicked on the ground. This Court considered the offending called for a 12-month starting point.[28] Even if the physical assault here may have been comparable to Bell, the gravity of the offending in the present case was more serious. It involved the use of weapons and was essentially gratuitous, given C was intervening only to assist and protect A and B against Mr Fraser’s violence.
[25]Sentencing decision, above n 4, at [7].
[26]R v Bell, above n 24, at [4].
[27]At [6].
[28]Tamihana v R, above n 24, at [33].
Secondly, while the Judge was wrong to say that C had an “inherent vulnerability”, we do not accept that the starting point was excessive as a consequence. As Ms Gordon for the Crown submitted, the relevance of any vulnerability on C’s part was that he was an innocent and unarmed bystander. Those factors did not make him inherently vulnerable, but were nevertheless relevant to the assessment of an appropriate starting point. As for the suggestion C provoked Mr Fraser into offending against him, this was expressly rejected by C in cross-examination, although not mentioned in the Judge’s sentencing notes. The Judge, having presided over the trial, was well placed to determine whether C provoked Mr Fraser in the lead up to the offending against C. His sentencing comments plainly convey that he was of the view this was an unprovoked attack on C. Mr Burns’ reference to C’s possession of wooden sticks is also misplaced. C’s uncontradicted evidence was that he armed himself with these items only after Mr Fraser assaulted him, not before. It played no part in the offending as charged.
Finally, and most fundamentally, we are unpersuaded the Judge’s starting point was excessive and unavailable to him. In Nuku, this Court explained that starting points of up to three years’ imprisonment are appropriate for offending of this kind where three or fewer aggravating factors are present, and of between two years to five years where three or more are present, and their combination is particularly serious.[29] We accept Mr Burns’ submission that there is a degree of overlap between the aggravating factors identified by the Judge. That is often the case. However, as Ms Gordon submitted, even combining the aggravating factors of extreme violence, use of a weapon and attacks to the head, that still leaves the degree of premeditation, C’s serious injuries and C’s vulnerability (as a consequence of being the unarmed victim of an unprovoked attack) as additional aggravating factors. While some might have been present only to a moderate degree if examined in isolation, we are satisfied that when viewed in combination, they justified the three-year starting point adopted.
[29]Nuku v R, above n 6, at [38].
We are reinforced in this conclusion when we compare the Judge’s starting point to Costigan v Police, Tai v Police and Rafiq v R, cases which Mr Burns and Ms Gordon referred us to in support of their respective positions.[30]
[30]Costigan v New Zealand Police [2019] NZHC 425, Tai v New Zealand Police [2016] NZHC 874 and Rafiq v R [2017] NZCA 220.
In all three, three-year starting points were approved.[31] Costigan involved repeated strikes to the victim’s head with a large glass bottle following the victim’s apparently insult-laden request that music be turned off in the early hours of the morning.[32] Tai involved a closed fist punch to the victim’s face followed by a blow to victim’s forehead using a glass bottle and then three more punches to the head after the victim caused offence at a party.[33] Rafiq involved a violent and pre-meditated response to the victim observing the defendant’s wife showering, prompting the victim to send her sexually suggestive texts.[34] The offending involved several attacks to the victim, first using a piece of wood, then followed by three to four punches and a kick.
[31]Costigan v New Zealand Police, above n 30, at [32]; Tai v New Zealand Police, above n 30, at [17]; and Rafiq v R, above n 30, at [14].
[32]Costigan v New Zealand Police, above n 30, at [3].
[33]Tai v New Zealand Police, above n 30, at [7] and [8].
[34]Rafiq v R, above n 30, at [2]–[4].
Mr Fraser’s offending shares obvious similarities to these three cases, notably his use of weapons and targeting C’s head. While we accept the attack was less premeditated than in Rafiq, it was certainly more planned than the offending in Costigan and Tai. The level of violence across all cases was comparable. Plainly each case must turn on its own facts. However, we are satisfied the starting point adopted was appropriate by comparison with these other cases and was therefore not excessive.
Was the uplift for offending against B excessive?
Mr Burns submitted the Judge’s uplift for Mr Fraser’s assault with intent to injure B was excessive when compared to Tamihana. He submitted Mr Fraser’s offending was relatively less serious than that in Tamihana and that the appropriate starting point was in the six to nine-month range.
Again, we disagree. B’s evidence was that Mr Fraser kicked her twice in the head, describing the kicks as “hard” and that they were “more like stomps”. By their verdicts, the jury must have accepted this evidence. When asked to describe how hard the kicks were, B said “[w]ell because I was little back then it was hard. Now it’s nothing.” The fact she offered comment about how she would have experienced the kicks when giving evidence nearly two years later does not detract from the fact this was extreme violence committed against a teenage girl. The assessment of what is extreme violence necessarily requires an assessment of context and circumstance. Here the victim was young, and the perpetrator was someone she regarded as a father figure.
In his sentencing comments, while describing the sequence of the offending as he found proved, the Judge referred to the “allegation” that Mr Fraser kicked B twice to the head with force.[35] We see nothing in that. Reading the remarks as a whole and in context, it is plain the Judge was referring to what he found proved having presided over the trial and having considered the competing accounts.
[35]Sentencing decision, above n 4, at [5].
Furthermore, Tamihana does not assist the appellant. As mentioned, that case involved a single kick to the head. This Court considered the aggravating factors there to be that the kick was to the victim’s head, that the defendant acted in concert with his co-defendant and that the victim was vulnerable because he was lying defenceless, having been previously punched to the ground.[36] A starting point of 12 months was considered appropriate. The aggravating features in the present case are that the offending involved extreme violence; two forceful kicks where the target was the head, and the fact that B was vulnerable — being both the beneficiary of a protection order and a young person who viewed Mr Fraser as a father figure. Given the offending involved two kicks — which B described as “stomps” — the Judge’s uplift was well within range. The fact her injuries were minor does not detract from this. In fact, it was B’s good fortune that no material or consequential injuries were suffered. We do not accept the Judge’s uplift was excessive.
Did the Judge fail to take proper account of totality?
[36]Tamihana v R, above n 24, at [19].
Finally,[37] Mr Burns submitted the Judge failed to take account of totality in setting a starting point on the lead charge and applying uplifts for Mr Fraser’s other offending. He submitted that in taking that approach, the Judge was required to step back and consider the overall gravity of Mr Fraser’s offending, as this Court said in Polaapau v R.[38] Had the Judge done so, Mr Burns submitted a starting point in the region of three-and-a-half years’ imprisonment would have been appropriate.
[37]Mr Burns presented this argument first at the hearing before us. We have addressed it last given the logical order of his arguments.
[38]Polaapau v R [2020] NZCA 227 at [44].
Section 85 of the Sentencing Act 2002 requires that consideration be given to the totality of an offender’s offending when sentencing them for multiple offences. It provides that where cumulative sentences of imprisonment are imposed, such sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.[39] While it is well established that a total end sentence should not normally be determined by sequentially adjusting the appropriate end sentence for each individual offence in order to accommodate the totality principle, what is critical on appeal is whether the analysis was guided from the outset by an appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending.[40]
[39]Sentencing Act 2002, s 85(2).
[40]Haywood v R [2015] NZCA 551 at [11]. See also Rihari v R [2022] NZCA 437 at [35].
We are satisfied the Judge took account of totality. In setting a starting point for the lead charge, the Judge adopted the lowest end of the range he considered available, that is three years to three years and four months.[41] The Judge referred explicitly to totality in setting his uplift for assault with intent to injure, adopting a 10 month uplift for offending he considered could easily have justified a starting point of 15 to 18 months’ imprisonment.[42] And the Judge’s last uplift for the breach of protection order offending is not challenged. In these circumstances, we do not consider the Judge to have erred by failing to explicitly consider whether a totality reduction was needed before confirming his overall starting point. The failure to do so in Polaapau was critical because the sequential approach taken led to a starting point which was disproportionate to the overall gravity of the offending in that case.[43] Notably, the Court in Polaapau was not expounding on a mandatory test for every sentencing.
[41]Sentencing decision, above n 4, at [29].
[42]At [30].
[43]Polaapau v R, above n 38, at [44].
The question here is whether a sentence of four years and four months’ imprisonment was disproportionate to Mr Fraser’s offending, which involved kicking his teenage stepdaughter twice in the head, hitting and seriously injuring a man who attempted to intervene to protect the victims with a hammer and metal pole multiple times, and breaching the protection orders made against him designed to protect his victims from his violence. It was not. As Ms Gordon submitted, A and B were entitled to feel safe in their home. The offending against B was aggravated by the family violence context. The attacks against C, a good Samaritan of sorts, were grave. When assessed in its totality, the overall starting point fairly reflected the seriousness of Mr Fraser’s overall offending. That being the case, there was no error by the Judge in not making a discount from the overall starting point for totality.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Rotorua for Respondent.
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