ROBERT RAWIRI FRASER AND THE KING
[2024] NZHC 2638
•12 September 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-000019
[2024] NZHC 2638
BETWEEN ROBERT RAWIRI FRASER
Appellant
AND
THE KING
Respondent
Hearing: 10 September 2024 (via AVL/VMR) Counsel:
P A Austin and F J S Ryan for Appellant W J Harvey for Respondent
Judgment:
12 September 2024
JUDGMENT OF LA HOOD J
(Appeal against Sentence)
Introduction and summary
[1] The appellant, Robert Fraser, pleaded guilty and was sentenced in the District Court at Napier on 21 June 2024 to 27 months’ imprisonment on five charges of burglary,1 and one charge of receiving stolen property valued at over $1,000.2
[2] Mr Fraser now appeals his sentence on the basis that it was manifestly excessive due to insufficient credit being given for time spent on EM bail, and for background factors that contributed to the offending.
1 Pursuant to s 231 Crimes Act 1961. Maximum penalty 10 years’ imprisonment.
2 Pursuant to ss 246 and 247(a) Crimes Act 1961. Maximum penalty seven years’ imprisonment.
FRASER v R [2024] NZHC 2638 [12 September 2024]
The offending
[3] The five charges of burglary relate to a span of burglaries in early January. Mr Fraser, alongside an unidentified associate, broke into a number of different businesses in Hastings. The combined total of the stolen goods amounted to over
$27,000 worth of property.
[4] The receiving charge is representative. On 19 January 2023, police executed a search warrant at Mr Fraser’s home. At the address, police found a vehicle valued at over $10,000, which had been stolen by an unknown person the night before. Police also located items with a combined value of $950 at the address that had been stolen from a business burgled between 14 and 16 January 2023.
Sentencing decision
[5] The Judge adopted a starting point of three years’ imprisonment for the five burglary charges. He then applied a three-month uplift for the receiving charge.
[6] A four-month reduction was given in recognition of Mr Fraser’s guilty plea, which did not come at the first opportunity.3 Citing the s 27 report, the Judge noted there was no causal connection between his background and the offending.4 However, the Judge did give a discount of five per cent (two months) to reflect Mr Fraser’s addiction issues as identified as a causal factor in the pre-sentence report.5
[7] The Judge recorded that Mr Fraser had spent 36 days in custody and 183 days on EM bail. Given that EM bail “is not the same as a sentence of imprisonment”, a discount of six months was appropriate to reflect time spent on EM bail.6
[8] The Judge remitted Mr Fraser’s fines of $9,078.88 and ordered him to pay reparation of $1,000.7
3 R v Fraser [2024] NZDC 14335 at [12].
4 At [14].
5 At [15].
6 At [15].
7 At [17]–[18].
Approach on appeal
[9] The Court must allow the appeal if it is satisfied that, for any reason, there is a material error in the sentence and a different sentence should be imposed.8 The appeal court will generally not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.9 Sentencing “is not a science” and an “appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer.”10
[10]As I noted in Johnson v New Zealand Police the error principle recognises:11
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
The parties’ positions on appeal
The appellant
[11] The appellant does not challenge the starting point, uplift, and the discounts for addiction issues. As already noted, Mr Fraser takes issue with the credit given for time spent on EM bail and for personal mitigating factors.
[12] It is not disputed on appeal (nor was it at sentencing) that Mr Fraser spent 483 days (approximately 16 months) rather than 183 days on EM Bail.
[13] Mr Fraser submits that as he was restricted to his house for 24 hours a day, seven days a week during this period and did not breach bail or reoffend, greater credit was required. The cases Metula v R and Paora v R are comparable, and show that a discount of at least 12 months (75 per cent of the time spent on EM bail) would have
8 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
9 At [30]–[36].
10 At [30] and [35].
11 Johnson v New Zealand Police [2023] NZHC 3748 at [6].
been appropriate.12 In Metula v R, the appellant spent 12 months on EM bail on a 24- hour curfew until it was varied to a nightly EM bail curfew for a further 18 months.13 The Court of Appeal held the first 12 months were effectively a sentence of home detention and a discount of 50 per cent would not be exceptional. However, given the change to a nightly curfew for the final 18 months, an overall discount of 30 per cent of the time spent on EM bail was appropriate.14
[14] In Paora v R, the Court of Appeal held that compliance with strict conditions justified a substantial discount of 70 per cent.15 In that case, the conditions prohibited the appellant from contact with any person (apart from his wife and children, and legal or medical practitioners) other than in the company of one or more of the residents, not to possess any cell phone or device capable of connecting to the internet, and to be supervised by one or more of the four residents of the bail address at all times. Mr Paora was permitted to leave the address with prior approval of Corrections or to attend rehabilitative programmes. He was not to associate with co-offenders or gang members.16
[15] In relation to personal mitigating factors, it is submitted the Judge erred in finding there was no causal connection between the defendant’s background and his offending, and a further discount of five per cent was required in addition to the five per cent already given for addiction issues.17 The cultural report indicates Mr Fraser has had a significant history of drug use. His maternal uncles are Rastafarians, and he grew up in an environment where cannabis use was normalised. He first tried cannabis at 13 and by 16 was consuming it regularly. He first tried methamphetamine at age 15. While working in the meat industry he switched to synthetic drugs which negatively impacted his physical and mental health. At age 25, he joined the Mongrel Mob. Mr Fraser himself identified unemployment and financial hardship of being a solo father as a factor of the offending. Additionally, drug addiction was a factor in the offending. Given the financial instability and substance
12 Metuala v R [2024] NZCA 50; and Paora v R [2021] NZCA 559.
13 At [69].
14 At [70].
15 Paora v R, above n 12, at [62].
16 At [55].
17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
abuse facts, Mr Fraser’s situation is similar to the factors identified in Matchitt v Police.18
[16] The appropriate sentence, from a starting point of three years and three months’ imprisonment, should be calculated as follows:
(a)10 per cent for guilty plea (four months);
(b)Time spent on EM bail (12 months); and
(c)10 per cent for background factors (4 months).
This would result in an end sentence of 19 months’ imprisonment. In that case, the Court should either impose home detention, accounting for time already spent in prison, or impose a short term of imprisonment with leave to apply for home detention.
The Crown
[17] The Crown accepts that the sentencing notes are wrong in respect of the number of days Mr Fraser spent on EM bail. This is likely to be a transcription error given that a six-month discount for a period of 183 days would amount to roughly a credit of 100 per cent, which is unlikely to be what the Judge intended as it would be contrary to authority.19
[18] Section 9(2)(h) of the Sentencing Act 2002 provides that a court must take into account “time on bail with an EM condition.” An evaluation of all the circumstances is required, rather than just an arithmetical approach.20 Ultimately the level of credit given is up to judicial discretion.21 Discounts ranging between 30 and 50 per cent are
18 Matchitt v Police [2023] NZHC 1745.
19 Parata v R [2017] NZCA 48 at [11]. While it can be appropriate to recognise the restrictive nature of “some prolonged EM bail situations … it would not be legitimate to recognise equivalence”; see also Paora v R, above n 12, at [50].
20 Paora v R, above n 12, at [46] citing Tamou v R [2008] NZCA 88 at [19]–[20].
21 Chea v R [2016] NZCA 207 at [110].
often given,22 and an allowance of up to 50 per cent is not uncommon.23 Therefore, the Judge’s credit of six months (when applied to the correct amount of time Mr Fraser spent on EM bail) is within this range, at roughly 38 per cent.
[19] The Crown submitted this case was comparable to that of Huata v R, where the appellant had spent 15 months on relatively restrictive EM bail conditions.24 The appellant was not allowed to attend the birth of his son, nor to attend the tangi of three close family members. He complied fully with the conditions and was given a roughly 33 per cent discount, despite seeking credit of 75 per cent. In that case, Cull J considered the 33 per cent discount was within the available range, and there were no exceptional circumstances. The fact he was under 24-hour curfew was not unusual for EM bail.
[20] In cases where greater credit has been given, conditions have been more restrictive. For example, in Paora v R, in addition to a 24-hour curfew, the conditions were highly restrictive, including provision of a cash surety of $100,000, restrictions on meeting any person at the address (with few exceptions) other than in the company of one or more of the residents; not to possess any mobile phone or device capable of connecting to the internet; and to be supervised by one or more of the four residents of the bail address at all times. Further, in Metuala v R, while the Court considered a 50 per cent discount for the initial 12 months spent on EM bail with a full curfew was “not exceptional”, this supports the argument that a full curfew will not necessarily warrant going beyond the usual range of discounts (30 to 50 per cent) applied for time spent on EM bail.25
[21] Mr Fraser was under 24-hour curfew. However, he was permitted to leave the address to attend programmes, counselling and treatment; government agency
22 Paora v R, above n 12, at [53] citing Parata v R, above n 19, at [15] (upholding a 40 per cent discount); R (CA528/2016) v R [2017] NZCA 210 at [14] (finding a 30–50 per cent discount was available); and Chea v R, above n 21, at [111] (allowing a 31 per cent discount). Smaller discounts may also be made: Keown v R [2010] NZCA 492 at [16], holding that a 16 per cent discount would be reasonable.
23 Paora v R, above n 12, at [53] citing Hall v R [2020] NZCA 183 at [37]; A (CA90/2017) v R [2017] NZCA 278 at [89]–[91]; Huata v R [2017] NZHC 2833 at [30]; and R (CA528/2016) v R, above n 22, at [14].
24 Huata v R, above n 23.
25 At [70].
appointments; legal appointments; and medical, dental or specialist appointments. Absences to attend the local WINZ office to access his Freedom Payment (if required) were to be booked prior with Corrections. As well, with the approval of Corrections, he could attend to any banking requirements; attend any medical or health appointments relating to the labour, birth and/or wellbeing of his child; and attend any school or sport events that related to the wellbeing of his child. On 15 November 2023, he applied to attend the tangi of his stepfather which was not opposed by the Crown.
[22] The credit for background factors was also in range. Mr Fraser offended for financial reasons. The pre-sentence and cultural reports indicated that he had a good childhood and nothing in his background precluded him from having jobs in the past. While he uses cannabis, and was addicted to synthetics some time ago, those factors are difficult to reconcile with his contention that a primary driver of his offending was stated in the pre-sentence report as “to buy crack”. There is inconsistency between the reports in respect of any current addiction; indeed, the pre-sentence report notes that, beyond health concerns, there are no other drug use concerns.
[23] Given these circumstances, it was appropriate to conclude there was no causal connection between Mr Fraser’s cultural background and the offending. Mr Fraser only began stealing with the present charges, at age 34. He had a good upbringing and the extent to which drug addiction drove this offending is unclear. A five per cent discount was therefore appropriate.
[24] Overall, the end sentence of 27 months was not manifestly excessive. Mr Fraser’s offending was repeated, planned, and caused substantial harm. The Judge took care to impose a proportionate sentence and his remittance of fines was generous.
Assessment of arguments and decision
[25] Both parties accept the starting point of three years and three months’ imprisonment, and a guilty plea discount of 10 per cent, were appropriate. They also accept that time spent on EM bail and personal background were the relevant mitigating factors. The issue is the level of credit given for those factors.
[26] Turning first to the discount for EM bail. I consider that the Judge’s error in stating the amount of time spent on EM bail is a transcription error or a slip of the tongue. The information in the sentencing submissions before the Judge clearly stated that the time on EM bail was 483 days and the Judge expressly said that “EM bail is not the same as a sentence of imprisonment, but I am able to recognise a discount for the time you spent on EM bail”.26
[27] A 38 per cent credit for 483 days spent on EM bail is at the lower end of credit available. But being at the lower end does not mean it was in error. While Mr Fraser was on 24-hour curfew, he did not have the extremely strict conditions imposed in other cases.27 The credit given was therefore within the available range.
[28] Turning to the discount for Mr Fraser’s background. I do not accept that the total of five percent for personal mitigating factors was below the available range, or that a minimum credit of 10 per cent was required. Credit for personal mitigating factors involves a highly fact-specific assessment.28 I agree with Whata J’s observation in Solicitor-General v Heta, that there is no “clear unifying principle for applying discounts for deprivation”.29 Rather, “personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.”30 Whata J also noted that “larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender”.31
[29] In the pre-sentence report, Mr Fraser’s offending related needs are assessed as self-entitlement, poor decision making, impulsivity, peer associations, and lack of insight into the effects and impacts on his victims. When asked about the five burglary
26 At [15].
27 See Paora v R, above n 12, and Metula v R, above n 12.
28 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26] citing R v A [1994] 2 NZLR 129 (CA)
at 132.
29 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].
30 Solicitor-General v Heta,above n 29, at [63] citing for example, Waipouri v R [2015] NZHC 2029 where a combined discount of 12 per cent was given to account for childhood trauma and related post-traumatic stress disorder; and R v Jenkins [2013] NZHC 95, where a 17 per cent discount was given to recognise Ms Jenkin’s troubled background, psychiatric issues (even though they were not causative of the offending), and remorse.
31 At [63].
charges, he said he needed money “to buy crack”, and to pay for usual living expenses and items for his two children.
[30] The s 27 report states that Mr Fraser had a good upbringing, and he maintains a good relationship with most of his whānau. However, he did struggle at school. English was his second language (due to having attended kōhanga reo) and he left secondary school with no formal education. From 13 years old, he had a history of substance abuse, including cannabis dependency. He has limited employment history and joined the Mongrel Mob at 25 years old. He cares for his two teenage children and is separated from his children’s mother due to drug addiction and violence.32
[31] Both reports state Mr Fraser had a good upbringing, which, as the Judge noted, is unlike the reports received about many defendants.33 There is no evidence of the childhood deprivation or trauma that is sadly so common for many defendants. For example, in the case of Matchitt relied upon by Mr Fraser, a 10 per cent credit was given for background factors and steps towards rehabilitation. The background factors included being born to a 15-year old mother, financial impoverishment that meant the defendant was stealing from shops in primary school, a father who was a gang member and regularly incarcerated, exposure to family violence and crime from an early age, and drug dependence from a young age.34
[32] I consider there is some merit in the Crown submission that, as these first dishonesty convictions have occurred when Mr Fraser is in his mid-thirties, the decision to commit them appears to be an adult decision with little causative link to background factors.
[33] On the basis of the material in the pre-sentence and s 27 reports, I consider it was open to the Judge to decide that Mr Fraser’s addiction and financial instability appear to be the factors that contributed to his offending. I also consider there was no error in the Judge concluding that financial instability was not a factor that required credit given many people find it difficult to meet financial responsibilities without
32 Mr Fraser has a previous family violence conviction for which he was sentenced to four years’ imprisonment in 2014 on a charge of wounding with intent to cause grievous bodily harm.
33 At [13].
34 At [20] and [38].
resorting to crime.35 The appropriate credit for Mr Fraser’s early exposure to drugs and subsequent addiction is a matter about which reasonable minds can differ, but I consider five per cent was within the available range in the circumstances of this case and by comparison to the 10 per cent credit given in Matchitt.
[34]The appeal is therefore dismissed.
La Hood J
Solicitors:
Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, Hastings for Appellant Crown Law Office | Te Tari Ture o Te Karauna, Wellington for Respondent
35 At [14].
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