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Fraser v The King

Fraser v The King

Case [2023] NZHC 1114 11 May 2023

Sentencing

Aggravated & Exemplary Damages

Appeal

Limitation Periods

Personal Considerations

Autism Spectrum Disorder (ASD)

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-26

[2023] NZHC 1114

BETWEEN
MICHAEL JOHN DANYON FRASER

Appellant

AND

THE KING

Respondent

Hearing: 2 May 2023

Appearances:

J D Munro and J N Olsen for Appellant R D Smith for Respondent

Judgment:

11 May 2023

JUDGMENT OF EATON J

[Redacted for Publication]

This judgment was delivered by me on 11 May 2023 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Judgment reissued on 11 May 2023 at 2 pm.

FRASER v R [2023] NZHC 1114 [11 May 2023]

Introduction

[1] Michael Fraser pleaded guilty to one charge of strangulation,1 one charge of male assaults female2 and one charge of assault with intent to commit sexual violation.3

[2] On 1 March 2023, Judge Large sentenced Mr Fraser to 27 months’ imprisonment.4 Mr Fraser appeals against sentence on the grounds that the end sentence was manifestly excessive.

The facts

[3] Mr Fraser befriended a 20-year-old woman in a bar in Dunedin on 23 April 2022. They agreed to go to Mr Fraser’s mother’s address to engage in consensual sex. While engaging in consensual intercourse, Mr Fraser slapped the victim’s jaw forcefully with the heel of his hand, ultimately leaving a bruise. The victim told Mr Fraser the slap hurt and not to do it again. Mr Fraser laughed, and the consensual intercourse continued.

[4] Mr Fraser was on top of the victim. Without warning, he placed his hands around her neck and squeezed her throat to the point she could not breathe. The victim pushed Mr Fraser’s shoulders with her hands to get his weight off her neck. The strangulation continued for 15-20 seconds until Mr Fraser desisted. The victim then went to the bathroom and messaged a friend to pick her up. When she returned, she sat on the side of the bed and told Mr Fraser she was leaving.

[5] In response, Mr Fraser pushed the victim backwards onto the bed and held her down by the shoulders. The victim drew her knees to her chest, and Mr Fraser tried to part her legs to continue having sexual intercourse. She told him “no” and “stop” and reiterated that she wanted to leave.

1      Crimes Act 1961, s 189A(b)(2); maximum penalty maximum penalty seven years’ imprisonment.
2      Section 194(b); maximum penalty two years’ imprisonment.
3      Section 129(2); maximum penalty ten years’ imprisonment.
4      R v Fraser [2023] NZDC 3837.

[6] Mr Fraser continued to pin her down with his bodyweight and told her she was not leaving. He got up and shut the bedroom door and repeated that she could not go. He again pinned the victim to the bed, holding her by her shoulders and again tried to open her legs. He told her “you’re not going anywhere”, and “you can’t leave”. The victim struggled for another few minutes before Mr Fraser desisted.

[7] The victim sat on the edge of the bed and…

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 [2023] NZHC 1114
Case: [2023] NZHC 1114
Decision Date: 11 May 2023

CaseChat Overview and Summary

Michael Fraser pleaded guilty to one charge of strangulation, one charge of male assaults female and one charge of assault with intent to commit sexual violation. On 1 March 2023, Judge Large sentenced Mr Fraser to 27 months’ imprisonment. Mr Fraser appeals against the sentence on the grounds that it was manifestly excessive. The Court of Appeal considered two factors in assessing the appeal: the relevance of prior consensual intercourse and the relevance of Mr Fraser's Autism Spectrum Disorder (ASD) diagnosis. The Court found that the prior consensual intercourse did not mitigate culpability, and ASD did not excuse the offending but helped explain it. The Court found the starting point of three years, nine months’ imprisonment for the lead offence was excessive, and the appropriate starting point was a sentence of three years’ imprisonment. The Court found the overall credit of 50% allowed by the Judge for personal considerations was appropriate, leading to a total credit for personal considerations of 50% and an end sentence of 24 months’ imprisonment. The Court found that on the special facts of this case, a sentence of home detention was more appropriate than imprisonment, and commuted the sentence to one of six months’ home detention to be served at the address recorded in the PAC report.

Orders