S 189(b)(2) Crimes Act 1961 – s 194(b) Crimes Act 1961 – S 129(2) Crimes Act 2961 – appeal against sentence – manifestly excessive – starting point – imprisonment – autism spectrum disorder – prior consensual intercourse – reduced culpability – rehabilitation – home detention
Michael John Danyon Fraser v The King  NZHC 1114
Michael Fraser was sentenced to 27 months’ imprisonment on one charge of male assaults female, one charge of assault with intent to commit sexual violation and one charge of strangulation. Fraser appealed this sentence on the grounds that the end sentence was manifestly excessive.
Two factors were considered when establishing whether the starting point of 57 months’ imprisonment for assault with intent to commit sexual violation was excessive. The first was the relevance of previous sexual intercourse and the second was the relevance of the formal diagnosis of autism spectrum disorder (ASD).
The court determined that prior consensual intercourse did not diminish Fraser’s culpability due to the victim making it clear through both her words and actions that she was no longer a willing partner, coupled with her wish to leave the address.
On the District Court’s assessment of Fraser’s ASD diagnosis, the High Court found that because the Crown did not accept that the ASD diagnosis significantly mitigated Fraser’s culpability, the psychiatrist who prepared the report should have been cross-examined or sentencing should have been adjourned for the Crown to obtain an independent medical report. However, the court concluded that the judge did not err in finding that ASD did not mitigate Fraser’s culpability in relation to the sexual assault.
Referencing the authorities filed by both defence and the Crown, the court determined that despite finding that prior consensual intercourse did not mitigate culpability, it was nonetheless a relevant factor which distinguished the offending from the authorities provided. Subsequently, the court found the District Court’s starting point was excessive and replaced it with a starting point of four years’ imprisonment.
The District Court applied a 25% discount for Fraser’s guilty pleas, 15% for his ASD diagnosis and a further 10% to reflect his previous good character and the prospects of rehabilitation. The court found these discounts to be appropriate, leading to a total credit of 50% and an end sentence of 24 months’ imprisonment.
Held: The sentence of 27 months’ imprisonment was quashed and replaced with six month’ home detention.
Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law Committee