Fraser v The King - [2024] NZCA 211

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 Appellant
AND	THE KING Respondent

Hearing:	7 March 2024
Court:	Courtney, Dunningham and Moore JJ
Counsel:	G D Burns and M J Taylor-Cyphers for Appellant A J Gordon and A A Maino for Respondent
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…

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 The King

Details

AGLC: Fraser v The King [2024] NZCA 211
Case: [2024] NZCA 211
Decision Date: 5 June 2024 at 10.30 am

CaseChat Overview and Summary

The appellant, Mr Fraser, appealed against his sentence, arguing that the starting point adopted by the trial Judge was excessive. The appeal was dismissed by the Court of Appeal. Mr Fraser was found guilty of injuring with intent to injure, assault with intent to injure and contravening a protection order. The trial Judge sentenced Mr Fraser to four years and four months’ imprisonment. Mr Fraser argued that the starting point of three years for the lead offence was too high and that the uplift for the assault with intent to injure charge was also excessive. The Court of Appeal disagreed, finding that the starting point was appropriate given the extreme violence of the offending, the use of weapons, and the vulnerability of the victims. The Court also found that the uplift for the assault charge was appropriate, considering the extreme violence committed against a teenage girl by someone she regarded as a father figure. The Court concluded that the overall starting point reflected the seriousness of Mr Fraser's offending and there was no error in the sentence imposed.

Orders