Fraser v The Queen - [2019] NZHC 3298

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000148 CRI-2019-409-000149

CRI-2019-409-000150 [2019] NZHC 3298

BETWEEN
LEIGH FRASER

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 December 2019

Appearances:

C G Nolan for Appellant A Harvey for Respondent

Judgment:

13 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]Leigh Fraser pleaded guilty to the following charges:

(a)Receiving (over $1,000) (x7);

(b)Theft of a motor vehicle (x2);

(c)Possession of methamphetamine;

(d)Possession of utensils;

(e)Possession of instruments for conversion;

FRASER v R [2019] NZHC 3298 [13 December 2019]

(f)Unlawfully interferes with a motor vehicle;

(g)Failure to carry out obligations in relation to a computer search;

(h)Driving whilst suspended; and

(i)Escaping custody.

[2] On 11 September 2019, Judge Roberts sentenced Mr Fraser to two years and seven months’ imprisonment. He now appeals that sentence on the basis the starting point was too high and the end sentence should have been one of home detention.

Facts

[3] Between 12 and 13 June 2018, Mr Fraser went to a residential property on Major Hornbrook Road in Mt Pleasant. He smashed a quarterlight window of a Nissan Navara, valued at $46,000. He unlocked the vehicle and damaged the ignition barrel in an attempt to start it without keys. He was disturbed by the owner and fled. He was charged with unlawfully interfering with a motor vehicle.

[4]Between 30 June 2018 and 2 July 2018 a Suzuki RMZ motorcycle, valued at

$8,500, was stolen from a QEII Drive address in Christchurch. Between 2 July 2018 and 31 October 2018, Mr Fraser came into possession of the motorcycle and sold it for $4,000 to an associate. He was charged with receiving property (over $1,000).

[5] Between 1.30am and 8am on 25 July 2018, a 1998 Subaru Impreza station wagon, valued at $6,500, was taken from outside a St Albans address. Police located the vehicle parked in the driveway of Mr Fraser’s brother’s address. The engine and engine bay had been cleaned and repainted, and the VIN plate was removed. Mr Fraser’s fingerprints were located on the left panel over the front wheel and on the rear vision mirror. He was charged with theft of a motor vehicle.

[6] At about 3am on 3 August 2018, a workshop in Waltham was burgled and a trailer, worth $2,000, and an off-road buggy, worth $40,000, were stolen. Between 3 August and 4 August 2018, Mr Fraser received the trailer and off-road buggy. He

then sold the off-road buggy, without its original wheels. The trailer was located at Mr Fraser’s brother’s address. He was charged with receiving (over $1,000).

[7] At about 2am on 10 August 2018, a panel beating workshop on Welles Street, Christchurch, was burgled and four vehicles were stolen, including a ute valued at
$20,000 and a quad motorbike valued at $6,000. Mr Fraser came into possession of those vehicles. He sold the quad motorbike. Police located the ute dumped on Bangor Street, stripped of most of its parts including its original mag…

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 Queen

Details

AGLC: Fraser v The Queen [2019] NZHC 3298
Case: [2019] NZHC 3298
Decision Date: 13 December 2019

CaseChat Overview and Summary

Leigh Fraser appealed against his sentence for various charges including receiving stolen property, theft, possession of methamphetamine, and escaping custody. The appeal was heard in the High Court of New Zealand. The key issue was whether the starting point of the sentence, determined by Judge Roberts, was too high and if the sentence should have been home detention instead of imprisonment.

The court considered the nature and extent of the offending, which included the theft and receiving of multiple high-value items, and the commercial nature of the crimes. The court found that the starting point of three years for the receiving and theft charges was within an appropriate range, given the Court of Appeal's decision in Anderson v R and the commercial element of Fraser's crimes. The uplifts for previous convictions and for the offending being subject to release conditions were justified. Although the discount for guilty pleas was perhaps generous, it was still within an acceptable range. The court also noted that imposing a reparation order would have been unrealistic given the significant value of the unrecovered goods.

The High Court concluded that the sentence of two years and seven months' imprisonment was upheld and dismissed the appeal. The court found no basis to substitute its own view for that of the Judge on the appropriateness of the end sentence.

Orders