Fraser v The Queen
[2019] NZHC 3298
•13 December 2019
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 wheels. The mag wheels were located at Mr Fraser’s address on 13 September 2018, attached to another vehicle. He was charged with receiving (over $1,000).
[8] Between 6pm on 5 September 2018 and 6.30am on 6 September 2018, a residential dwelling under construction in Merivale was burgled. Three saws and a nail gun, along with other building equipment, to a total value of over $5,000, were stolen. At 4pm on 6 September 2018, Mr Fraser was stopped by police with the stolen power tools and building equipment in the boot of his car. He was the only occupant of the car. He was charged with receiving (over $1,000). In the car police also located items capable of being used in the conversion and theft of motor vehicles, including various sets of vehicle keys, a screw driver, two sets of gloves and bolt cutters. He was charged with possession of instruments for conversion. On further inspection of the car he was driving, police observed that the chassis number had been altered and the incorrect VIN plates, information plates and licence plates had been attached to the vehicle. The vehicle was the property of a third person. Mr Fraser was charged with receiving (over $1,000). Police also located 0.28g of methamphetamine in the front side of the driver’s door, and Mr Fraser was charged with possession of methamphetamine. Mr Fraser had been suspended from driving until 9 October 2018 due to excess demerit points, and he was charged with driving while suspended.
[9]At approximately 3.09am on 8 July 2018, a 1965 Pontiac Laurentian valued at
$65,000 was stolen from a Middleton, Christchurch address. At some point between then and when police recovered it on 13 September 2018, Mr Fraser received it and it was dissembled and placed in parts in a storage unit. He was charged with receiving (over $1,000).
[10] Between 3.00pm on 22 July 2018 and 6.30am on 23 July 2018, an all-terrain vehicle valued at $40,000 was stolen from an address in Yaldhurst, Christchurch. Mr Fraser received it and it was located in the storage unit. He was charged with receiving (over $1,000).
[11] On 12 November 2018, Mr Fraser was at his home address. Police entered the address in relation to an unknown matter. While searching the address, police located a pipe used for smoking methamphetamine under Mr Fraser’s bed. He was charged with possession of a pipe. Police requested Mr Fraser provide his passcode for his cellphone in relation to an unrelated matter. He refused to provide his passcode after repeated warnings and was charged with failing to carry out obligations in relation to a computer search.
[12] At about 5.45pm on 14 November 2018, Mr Fraser was at his home address. Police arrested him in relation to an unrelated matter. He said that he needed to secure his address and walked directly to the back door but then ran through it, slamming it shut in an attempt to aid in his escape. He ran through a neighbouring property and climbed over several six foot high fences. Police apprehended him a short distance away. He was charged with escaping custody.
[13] On 21 May 2018, Mr Fraser took a Nissan Skyline worth $8,000 from the Airport Christchurch Motel. It was found at his property during a search warrant for another stolen vehicle, bearing incorrect registration plates. The firewall had been damaged, the VIN number had been scratched out, the chassis had been changed and the engine bay had been painted. Mr Fraser had transferred the car into his name two days after it had been stolen, and a month later it was re-registered into the name of an associate. He was charged with theft of a motor vehicle.
District Court decision
[14] Judge Roberts noted the offending was intensive over an approximately four month period, with a focus on motor vehicles of not inconsequential value. He said that “plainly at the time, this was a way of life”. The Judge considered Mr Fraser’s criminal history, involving significant dishonesty offending relating to cars. He noted previous sentencing notes from February 2017, where the Judge had then sentenced
Mr Fraser to home detention but clearly signalled that if his offending continued, imprisonment should be expected.
[15] With reference to case law, the Judge imposed a starting point of three years’ imprisonment for the receiving and theft charges, considering the other charges could be dealt with by way of concurrent sentences.1 He noted that defence counsel did not dispute that this was appropriate. The Judge then imposed an uplift of three months to reflect Mr Fraser’s previous convictions, and a further three months because Mr Fraser had been subject to sentence at the time, having been sentenced to one year and three months’ imprisonment on 19 December 2017 with release conditions. From a starting point of three years and six months, the Judge allowed a discount of 11 months for guilty pleas, about 26 per cent. As such, the end sentence was two years and seven months’ imprisonment.
[16] The Judge noted that the prosecution had invited him to consider reparation, but the Judge declined to make such an order. He noted that Mr Fraser’s co-defendant was sentenced to home detention and was likely to have the ability to pay but was not persuaded that Mr Fraser had the ability to pay.
[17] The Judge dealt with the remaining charges with concurrent sentences ranging between conviction and discharge and eight months. He also disqualified Mr Fraser from driving for six months starting that day. After a question from counsel, the Judge confirmed that he had recognised the material before him relating to Mr Fraser’s treatment for drug and alcohol use.
Principles on appeal
[18] 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 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the
1 Anderson v R [2017] NZCA 91; R v Collier CA170/03, 21 August 2003; Greenwood v Police
[2016] NZHC 2951; Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5
Submissions
Appellant’s submissions
[19] Mr Nolan, for Mr Fraser, submits that the starting point adopted by Judge Roberts was too high having regard to the circumstances of the offending, the offender, and relevant case law, and consequently the Judge should have imposed a sentence of home detention.
[20] Mr Nolan refers the Court to Nikau v R and Ghulami v Police where, on appeal, home detention was imposed for somewhat similar offending.6
[21] Mr Nolan notes that Mr Fraser was sentenced to imprisonment for the first time in 2017. He says Mr Fraser attempted to engage in restorative justice with the victims but did not receive any contact about this. Mr Fraser wrote a letter of apology which does not appear to be on file in the District Court, nor in the High Court. Mr Nolan says Mr Fraser instructs he was in a position to pay the reparation by small weekly instalments which he understood could have repaid the loss within five years. He submits that Mr Fraser was diagnosed with Attention Deficit Hyperactivity Disorder and was not on his medication at the time of the offending, and Mr Fraser stated that without medication he is prone to making rash decisions. Mr Fraser has generally complied with previous community-based sentences. Considering all of those factors, and totality, Mr Nolan submits that an appropriate overall starting point would be in the range of 30 to 36 months’ imprisonment.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Skipper v R [2011] NZCA 250 at [28].
6 Nikau v R [2017] NZHC 1366; Ghulami v Police [2013] NZHC 1055.
[22] With the appropriate discounts, Mr Nolan submits that the end sentence should have been around 22 to 24 months’ imprisonment which should have been converted to home detention as the least restrictive outcome in the circumstances.
Respondent’s submissions
[23] Mr Harvey, for the Crown, submits that the sentence imposed was appropriate and the appeal should be dismissed.
[24] Counsel notes there is no tariff sentencing judgment for receiving, but relevant factors include the value of goods, the duration of the offending, the number of charges, the existence of a commercial element, and the closeness of the relationship between the burglar and the receiver.7 Mr Harvey highlights Anderson v R, which Judge Roberts principally relied on in setting the starting point.8 In that case, the Court of Appeal held that a starting point of three years’ imprisonment would have been available on three charges of theft of cars and three charges of receiving, “given this was done in the context of an extensive operation that involved the premeditated theft of vehicles, and the disguise of those vehicles, for the purpose of supply to others”.9 While he acknowledged other similar cases with lower starting points, all of them involved less seriousness than Mr Fraser’s offending.10
[25] Mr Harvey notes Mr Fraser received property worth approximately $207,700. Some property was recovered, of which the majority was modified, in poor condition, or in parts. He submits that the offending could properly be categorised as commercial in nature, endorsing Judge Roberts’ comment that “this was a way of life” for Mr Fraser. He submits that both the scale of the offending and the modification to the stolen vehicles indicated that the offending was in the nature of a job. Given those factors, he submits that the starting point was well within range and could be described as generous.
Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22]; Proctor v Police
[2018] NZHC 763.
Anderson v R, above n 1.
9 At [9].
10 Ellis v R [2012] NZCA 513; R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006;
Greenwood v Police, above n 1.
[26] Mr Harvey further submits that the uplift of three months for Mr Fraser’s criminal history was modest, and the discount of 26 per cent for guilty pleas was also generous given they were entered after the Crown amended three burglary charges to receiving. He submits any further credit would have been inappropriate as the offending was cyclical, Mr Fraser made no effort to return any property, and reparation was unrealistic.
Analysis
[27] I accept that the starting point of three years for the seven receiving and two theft charges was within range, particularly with regard to the Court of Appeal’s decision in Anderson. Mr Fraser’s offending was clearly a way of life and had a commercial element. It involved a significant degree of planning and deception including through the systematic removal of identifying marks.
[28] The value of the property received was much higher than in any of the other cases referred to by counsel. The Judge would have been entitled to impose an uplift to reflect the seven other charges Mr Fraser faced.
[29] The uplifts of three months each for Mr Fraser’s previous convictions, and for offending subject to release conditions were justified. In the circumstances, a full discount for guilty pleas was available but perhaps generous.
[30] The information about Mr Fraser’s childhood ADHD diagnosis was squarely before the Court, but there was no evidence linking this to his current offending which, as I have said, was calculated not impulsive offending.
[31] I consider the Judge was correct and realistic not to impose a reparation order. While the exact value of unrecovered goods was not quantified, it was clear from the summary of facts that the value of unrecovered goods and vehicles was significant, and would have been crippling on Mr Fraser’s chances of rehabilitation and reintegration.
[32] As the starting point, uplifts and discounts were all within range, there is no scope for Mr Fraser’s sentence to be converted to one of home detention. The sentence of two years and seven months’ imprisonment is upheld.
Conclusion
[33]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch C G Nolan, Barrister, Christchurch