FRAIDER v NEW ZEALAND POLICE [2023] NZHC 1117

FRAIDER v NEW ZEALAND POLICE [2023] NZHC 1117 [11 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000083[2023] NZHC 1117BETWEEN REGAN FRANK FRAIDERAppellantAND NEW ZEALAND POLICERespondentHearing: 8 May 2023Appearances: H Laubscher for the AppellantM Nash for the RespondentJudgment: 11 May 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 11 May 2023 at 2.30 pmRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Crown Solicitor, AucklandH Laubscher, AucklandIntroduction[1] Regan Fraider pleaded guilty to one charge of theft of property over $1,000,1being found on a property without reasonable excuse2 and possessing instruments forconversion.3 Mr Fraider also pleaded guilty to a second set of charges consisting ofdriving dangerously4 and failing to stop for blue and red flashing lights.5[2] On 15 February 2023, Mr Fraider was sentenced by Judge J M Jelaš at theWaitākere District Court to 14-and-a-half months' imprisonment. He was alsodisqualified from driving for 18 months.6[3] Mr Fraider now appeals his sentence on the basis that the Judge failed toprovide an adequate and discrete discount for his background based on matters raisedin the Provision of Advice to the Court (PAC) report dated 7 February 2023 and anearlier Community Alcohol and Drug Services (CADS) report dated 7 December2020.[4] The respondent opposes the appeal on the basis that the Judge did take intoaccount Mr Fraider's background and applied an appropriate discount by way ofreducing the uplift for previous offending.The offending[5] Mr Fraider's offending occurred on two separate occasions.1 Crimes Act 1961, ss 219 and 223(b). Maximum penalty: seven years' imprisonment.2 Summary Offences Act 1981, s 29(1)(b). Maximum penalty: three months' imprisonment or afine not exceeding $2,000.3 Crimes Act, s 227. Maximum penalty: one year's imprisonment.4 Land Transport Act 1998, s 35(1)(b). Maximum penalty: three months' imprisonment or a finenot exceeding $4,500 and minimum six months' disqualification from holding or obtaining adriver licence.5 Sections 52A(1)(a)(ii), 52A(3) , 52A(6) and 114(2). Maximum penalty: a fine not exceeding$10,000 and minimum six months' disqualification from holding or obtaining a driver licence.6 Police v Fraider [2023] NZDC 2756.21 July 2022 – theft of property over $1,000, being found on a property withoutreasonable excuse, and possession of instruments for conversion[6] At about 5.00 am, Mr Fraider was observed walking down a long driveway inNew Lynn. He looked into two cars parked at the carport and then left. The Policeshortly after located Mr Fraider and arrested him. He was found in possession of vicegrips and screw drivers; and $4,300 in cash and driver licences not belonging to him.On further enquiry, the Police identified the owners of the driver licences whoinformed the Police that they were the owners of the money, which had been recentlystolen.2 January 2023 – driving dangerously and failing to stop for blue and red flashinglights[7] At about 4.30 pm, Police attempted a stop by activating their red and blueflashing lights after seeing a car driving dangerously by crossing three lanes. Thedriver was Mr Fraider. He failed to stop and instead accelerated away from the Policecontinuing to drive through Auckland above the speed limit and at one point on thewrong side of the road. He was eventually stopped and arrested.District Court decision[8] The Judge summarised the offending and concluded that an 18-month startingpoint (proposed on behalf of Mr Fraider and agreed to by the respondent) wasappropriate for Mr Fraider's offending. The Judge focused on his background relyingupon the PAC and CADS reports, with the latter report having been originally draftedfor the purpose of Mr Fraider possibly attending the Te Whare Whakapiki Wairua –the Alcohol and Other Drug Treatment Court. The Judge accepted that Mr Fraider'soffending was clearly driven by his substance abuse issues which stemmed from hisupbringing. A full discount of 25 per cent for early guilty pleas was allowed. Thisreduced the end sentence of imprisonment to 13-and-a-half months.[9] The Judge then turned her mind to the 'remaining issue' of uplift for previousconvictions. A one-month uplift was imposed because the Judge "appreciate[d] thedrivers of the offending relate to [Mr Fraider's] long-standing [drug] dependency".7The Judge considered she was not in a position to impose a sentence of homedetention, but granted leave under s 80I of the Sentencing Act 2002 to enableMr Fraider to apply for his sentence to be converted to home detention if he were ableto gain placement in a well-recognised residential rehabilitation facility.[10] The sentences imposed for Mr Fraider's other charges were to be servedconcurrently. The Judge also held a disqualification of 18 months was necessary underthe law.Law on appeal[11] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.8 Otherwise, the Court must dismiss theappeal.9[12] The sentence must be manifestly excessive before the appeal Court maysubstitute its own views as to the appropriate sentence. The Court will generally notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.10 Whether a sentence is manifestly excessive is to beassessed in terms of the final sentence given rather than the process by which it wasreached.11Appellant submissions[13] Mr Fraider appeals on the ground that the Judge erred in not providing adiscrete discount for personal background and addiction issues. Mr Laubscher,counsel for Mr Fraider, submits there are two distinct errors. First, the uplift forprevious offending needs to be assessed with reference to the starting point adopted.While it is unclear what the unmodified uplift for previous offending was,Mr Laubscher submits that it should not have exceeded one month.7 At [12].8 Criminal Procedure Act 2011, s 250(2).9 Section 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].11 Ripia v R [2011] NZCA 101 at [15].[14] Second, if the submission as to the appropriate uplift is accepted, the Judgeshould have applied the discount in one of two ways. One approach would have beento completely set off the uplift for previous convictions and, after allowing for thediscount for guilty plea and rounding down the end sentence, it should have been13 months. Alternatively, a discount of 10 to 15 per cent for background should havebeen given. Under this latter approach, even if a greater uplift was imposed the endsentence should have been 12 months.[15] Mr Laubscher also submits that the appellant is entitled to a sufficientexplanation of the sentence imposed to increase transparency, citing Moses v R insupport.12Respondent submissions[16] Ms Nash, counsel for the respondent, submits that the Judge did provide forthe appellant's background appropriately in reducing the uplift for the priorconvictions. Ms Nash says that Mr Fraider's criminal history could have justified anuplift of two to three months. Therefore the decision to reduce the uplift to one monthhas effectively provided for a discount for his background. As an example, she notesthat if a three-month uplift was appropriate, the reduction to one month creates an11 per cent discount.[17] In support of her submission regarding the uplift for prior offending, Ms Nashrefers to Mr Fraider's extensive criminal history of 72 prior convictions, 34 of whichcould be classified as dishonesty convictions and include theft, burglary, unlawfullytaking a motor vehicle and receiving. While Ms Nash accepts that the uplift must bekept in proportion, she submits that in cases of recidivist dishonesty offending, suchas here, uplifts are common and therefore an uplift of three months could not bedescribed as excessive.13[18] Ms Nash recognises a small discount for Mr Fraider's backgroundcircumstances was appropriate, in accordance with the Supreme Court in Berkland v R12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [30] and [46]–[47].13 Counsel refers to two cases as examples: Henriksen v New Zealand Police [2015] NZHC 2572;Davies v New Zealand Police [2019] NZHC 3081.affirming that background factors such as addiction, deprivation and historicdispossession can mitigate a sentence where the factors have "contributed causatively"to the offending.14 Ms Nash accepts the alcohol and drug abuse in Mr Fraider'supbringing and life contributed causatively to his offending but refers to his otherwiserelatively stable upbringing in determining that a discount of around 10 per cent wouldhave been appropriate. Therefore, Ms Nash submits this discount was effectivelygiven by the reduction in the uplift for prior convictions.Discussion[19] It is clear that Judge Jelaš took the appellant's background into account,including that Mr Fraider was exposed to alcohol and drugs at a young age from withinhis family. The Judge's reference to his "long-standing dependency" when reducingthe uplift demonstrates this, as well as her efforts to obtain and read not only the PACreport but also the CADS report.[20] However, it is not apparent what uplift was given for Mr Fraider's criminalhistory, nor what discount was given for his background, because the uplift was notidentified prior to the reduction. This is not in itself an appealable error. However, ifthe end sentence this Court arrives at on its own assessment is different so as to renderthe original end sentence manifestly excessive, then that will be an error. I turn to thisCourt's assessment.[21] It was accepted by both parties in the District Court and again in this Court thatthe 18-month starting point is within the range that can be properly justified. Itherefore proceed on the basis of an 18-month starting point.[22] To determine the appropriate uplift for Mr Fraider's prior convictions, therelevance of the prior convictions is to be assessed with regard to the nature, age andfrequency of them. The uplift also needs to be in proportion to the starting point.15Ms Nash for the Crown notes that Mr Fraider has 72 prior convictions, 34 of whichshe says can be classified as dishonesty convictions. One of the offences subject to14 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)].15 Taylor v R [2012] NZCA 332 at [46].this sentence is a dishonesty offence: theft. Of particular note are the nine dishonestyoffences Mr Fraider committed during 2020.[23] This, along with the numerous dishonesty offences committed over the lastdecade, demonstrates a predilection to commit this type of offending and in turn canwarrant a higher sentence.16 Additionally, given the rationale for uplifts for prioroffending is to deter those who have seemingly failed to learn from sentences imposedon previous occasions, an uplift of three months can be justified in this case. Thisresults in a starting point of 21 months.[24] It is also appropriate for Mr Fraider to receive a discount for his alcohol anddrug dependencies, as submitted by Mr Laubscher and acknowledged by Ms Nash.However, I accept Ms Nash's submission that Mr Fraider, aside from being introducedto alcohol, cannabis, and methamphetamine by his father at a young age, has had areasonably stable upbringing. Other factors which would increase the size of thediscount are not present here: such as physical violence; sexual violence; an unstablefamily environment; and being in a gang environment. Therefore, a discount of10 per cent adequately recognises the role his background and addiction have playedin his offending.[25] A starting point of 21 months17 with a discount of 35 per cent (25 per cent forthe guilty plea and 10 per cent for his background) results in an end sentence of13-and-a-half months' imprisonment (rounded down in favour of the appellant). Thisis a one month difference from the original end sentence imposed.[26] While a reduction of one month may in some cases be considered meretinkering with the end sentence, in the context of a short sentence of imprisonment, areduction of one month is a meaningful reduction and is necessary to ensure theappellant is not disadvantaged.1816 See R v Casey [1931] NZLR 594 (CA) and R v Ward [1976] 1 NZLR 588 (CA).17 As noted in Moses v R, above n 12, at [10] it is not necessary to calculate small uplifts or discountsas a percentage. Such uplifts or discounts may be fixed as a number of months or years.18 See Keown v R [2010] NZCA 492; Maihi v R [2013] NZCA 69; Helsby-Knight v R [2015] NZCA315.[27] On my finding that an appropriate sentence is one that is one month less thanthe original sentence imposed and that it constitutes a meaningful reduction, Itherefore find, on the margins, the sentence of 14-and-a-half months to be manifestlyexcessive.Result[28] The appeal against sentence is allowed.[29] The sentence of 14-and-a-half months' imprisonment is quashed and a sentenceof 13-and-a-half months' imprisonment is substituted._____________________________Gordon J