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ROBERT RAWIRI FRASER AND THE KING

ROBERT RAWIRI FRASER AND THE KING

Case [2024] NZHC 2638 12 September 2024

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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…

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 ROBERT RAWIRI FRASER AND THE KING

Details

AGLC: ROBERT RAWIRI FRASER AND THE KING [2024] NZHC 2638
Case: [2024] NZHC 2638
Decision Date: 12 September 2024

CaseChat Overview and Summary

Robert Rawiri Fraser, the appellant, has appealed against his sentence for multiple burglary and receiving stolen property charges, arguing that the sentence was manifestly excessive due to insufficient credit being given for time spent on electronic monitoring (EM) bail and for background factors that contributed to the offending. The sentencing judge in the District Court at Napier imposed a sentence of 27 months' imprisonment, which the appellant contends was disproportionately harsh. The Crown accepted that the sentencing notes incorrectly reflected the number of days Mr Fraser spent on EM bail but submitted that the credit given for this period was within the usual range. Both parties agreed on the starting point and the discounts applied but disputed the level of credit given for time spent on EM bail and personal mitigating factors.

The High Court assessed the arguments and concluded that the judge's error in stating the amount of time spent on EM bail was likely a transcription error. The credit given for 483 days spent on EM bail, at 38 per cent, was at the lower end of the available range but was not in error. The credit given for Mr Fraser's background was also within the available range. The court found that the sentence was not manifestly excessive, considering the repeated, planned nature of the offending and the substantial harm caused. The court also noted that the judge had taken care to impose a proportionate sentence and was generous in remitting the fines.

The appeal was dismissed, and the original sentence was upheld. The court's decision highlighted the importance of judicial discretion in sentencing, particularly in assessing the level of credit for time spent on EM bail and personal mitigating factors. The court emphasised that reasonable minds could differ on the appropriate sentence within the available range, reflecting the underlying purposes of maintaining public confidence in the sentencing process and ensuring finality and predictability.

Orders