Legal Research
Cases
R v Frater

R v Frater

Case [2019] NZHC 3326 16 December 2019

Personal Circumstances

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2018-035-001070

[2019] NZHC 3326

THE QUEEN

v

NICHO CALEB FRATER

Hearing: 16 December 2019

Appearances:

C B Wilkinson-Smith and R N Benic for Crown N Levy QC and L C Ord for the Defendant

Judgment:

16 December 2019

JUDGMENT OF COOKE J

[1] Mr Frater you appear to be sentenced after pleading guilty to one charge of manslaughter. Manslaughter carries a maximum sentence of life imprisonment.1

The offending

[2] The victim was eight-month-old Bella. The baby’s mother, Kirsty, is your ex- partner. She had told you that you were Bella’s father and you took on that role.

[3] At the time of the offending Kirsty and the baby lived at an address in Whanganui with you, your mother, and Kirsty’s three other children. You had been living at the address for two weeks, and your mother had moved in with you one week

1 Crimes Act 1961, ss 171 and 177.

R v FRATER [2019] NZHC 3326 [16 December 2019]

prior. In the short period you were living at the address you had taken on the fathering role for Bella.

[4] On 7 November 2016 Kirsty left the house to take her older children to school. She left Bella at home with you and your mother. When Kirsty returned to the address, Bella was restless. Kirsty departed the address again at around 11.30 am to go to the central shopping district of Whanganui, leaving Bella in your care.

[5] At around midday you went into Bella’s room. In a moment of frustration, you threw her to the ground. This was a single incident of short duration. The throw caused head injuries which resulted in Bella’s death. Immediately she stopped breathing and went limp. You alerted your mother and called for help. At 12.05 pm you called 111. An ambulance attended and attempts were made to resuscitate Bella. She was taken to Whanganui hospital but pronounced dead at 1.10 pm.

[6] Bella suffered a subdural haemorrhage around the brain and spinal cord, retinal haemorrhage and scattering minor blunt force injuries. She sustained widespread hypoxic brain damage.

[7] You did not admit the offending after her death. Following a police investigation you were charged with Bella’s murder in September 2018. You pleaded guilty to manslaughter on 25 October 2019.

The impact of the offending

[8] Bella’s grandmother, Lisa, has prepared a victim impact statement on behalf of her family. She describes the unimaginable pain and grief Bella’s family has suffered. She says the last three years have been damaging spiritually and emotionally, most significantly for Bella’s mother but also for the other children who have received counselling from trauma and have suffered from difficulties in the aftermath of the offending. The family has been broken apart. She says she prays for justice to be served and says that now her granddaughter can rest and the family can begin to move on with their lives.

Personal…

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 R v Frater

Details

AGLC: R v Frater [2019] NZHC 3326
Case: [2019] NZHC 3326
Decision Date: 16 December 2019

CaseChat Overview and Summary

In the case of R v Frater, the defendant, Nicho Caleb Frater, was sentenced for manslaughter after pleading guilty. The victim was eight-month-old Bella, who died from injuries caused by Frater throwing her to the ground in a moment of frustration. The court was required to determine an appropriate starting point for sentencing, taking into account the aggravating factors of the offence, such as the vulnerability of the victim, the breach of trust, and the level of violence involved. The court also had to consider mitigating factors, such as Frater's young age at the time of the offence, his remorse, and his difficult background.

The court adopted a starting point of six years and six months' imprisonment, based on comparable cases. The court then made adjustments to the starting point, considering Frater's previous offending history, psychological difficulties, remorse, youth, and social and cultural deprivation. The court decided on a two-month uplift for previous offending, a 10% discount for personal circumstances, and a 15% discount for the guilty plea. The court determined that there was no need for a minimum period of imprisonment in this case. The final sentence was five years' imprisonment for manslaughter, with remission of outstanding fines and cancellation of an existing intensive supervision sentence.

This case highlights the importance of considering both aggravating and mitigating factors in determining an appropriate sentence for manslaughter. The court balanced the need for accountability, denunciation, and deterrence with the personal circumstances of the offender, ultimately arriving at a sentence that reflects the seriousness of the offence while also taking into account Frater's background and level of remorse.

Orders