Auckram v Police
[2022] NZHC 1446
•20 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2022-404-000101
[2022] NZHC 1446
BETWEEN RYAN AUCKRAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 June 2022 Appearances:
R Mansfield QC for the Appellant F J McKechnie for the Respondent
Judgment:
20 June 2022
JUDGMENT OF TAHANA J
This judgment was delivered by me on 20 June 2022 at 3.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
R Mansfield QC, Barrister, Auckland Meredith Connell, Auckland
AUCKRAM v NEW ZEALAND POLICE [2022] NZHC 1446 [20 June 2022]
Introduction
[1] Mr Auckram appeals against a sentence of 27 months’ imprisonment on the following charges in respect of which he pleaded guilty in the District Court at Waitakere:1
(a)Threatening to kill;2
(b)Assault on a person in a family relationship;3
(c)Wilful damage;4 and
(d)Burglary.5
[2] Mr Auckram appeals on the basis that the sentence is manifestly excessive and says the Judge erred by:
(a)adopting a starting point that was manifestly excessive;
(b)incorrectly applying an uplift for previous convictions after reductions for personal mitigating factors;
(c)giving insufficient weight to Mr Auckram’s personal mitigating factors; and
(d)not imposing a sentence of home detention.
[3] The Crown opposes the appeal and says the sentence was within range and is not manifestly excessive.
1 New Zealand Police v Auckram [2022] NZDC 5989.
2 Crimes Act 1961, s 306. Maximum penalty of seven years’ imprisonment.
3 Crimes Act 1961, s 194A. Maximum penalty of two years’ imprisonment.
4 Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
5 Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
Factual background
[4] Mr Auckram and the victim were in a relationship for nine years. While they have been separated for eight years, they occasionally saw one another and were intimate.
Assault on a person in a family relationship, threatening to kill, and intentional damage
[5] Around midday on 30 June 2021, Mr Auckram arranged to meet the victim at her workplace at 10 pm. The victim subsequently advised Mr Auckram that she would be late and arrived at 11.30 pm. There she waited in her car.
[6] Mr Auckram arrived some 10 minutes later. He parked his van behind the victim’s car. He then sat in the front passenger seat of her car.
[7] Mr Auckram then began to verbally and physically abuse the victim for approximately 30 minutes. He accused her of having a sexual relationship with gang members and several of his associates. He then struck her left arm and back.
[8] Mr Auckram returned to his van. The victim locked her car doors. Mr Auckram demanded that she let him back in and kicked at the car. This dented the exterior.
[9] When the victim opened the driver’s side door, Mr Auckram punched at her arms. He also kicked her right thigh twice. These assaults caused bruising to her arms, shoulders and right thigh.
[10] Mr Auckram retrieved a crowbar from his van. He raised it above his head. The victim believed that he was going to assault her with it. Mr Auckram smashed the rear window of her car.
[11] Mr Auckram demanded that the victim join him in his van. The pair sat in the van for another half an hour before leaving and spending the remainder of the night driving around Auckland. During this time Mr Auckram continued his verbal abuse
and accusations of sleeping with gang members and several of his associates. He threatened to kidnap her and kill her (including by stabbing her).
[12] At one point Mr Auckram taunted the victim by telling her that he would crash the van into a lamp post and kill them both. When doing so he was driving above the speed limit and erratically swerving towards lamp posts. The victim pleaded with Mr Auckram to stop scaring her.
[13] At around 5 or 6 am, the victim escaped from the vehicle. She was picked up by a member of the public and taken to a nearby associate’s address.
[14] When spoken to by police, Mr Auckram admitted to damaging the victim’s vehicle.
Burglary
[15] In the early hours of the morning on 9 May 2021, Mr Auckram went to a bar in Pakuranga Heights, Auckland. There he removed copper spouting that was fixed to the building near the front carpark. He then climbed a wall and entered the outdoor dining area, where he removed more copper spouting. Mr Auckram placed the copper spouting in his vehicle and left the premises.
District Court decision
[16] The Judge sentenced Mr Auckram on 15 March 20226 with an end sentence of 27 months’ imprisonment, arrived at as follows:
(a)A starting point of 18 months’ imprisonment for threatening to kill (the lead offence).
(b)An uplift of 12 months’ imprisonment for the assault (11 months) and intentional damage (1 month).
(c)An uplift of 6 months’ imprisonment for the burglary.
6 New Zealand Police v Auckram [2022] NZDC 5989.
[17] This resulted in a cumulative starting point of 36 months’ imprisonment. The Judge then applied:
(a)a discount of 20 percent for time spent on EM bail, remorse, rehabilitative efforts and positive references;7
(b)a discount of 20 percent for the guilty plea; and
(c)an uplift of six months’ imprisonment for prior convictions.
[18] The Judge noted that the seriousness of Mr Auckram’s offending was at the high end for the threatening to kill charge and it could well have been accompanied by a kidnapping charge.8 The Judge noted that this meant the sentence was outside of the range where a community based sentence was available.9 The offending was “too serious for [the Judge] to deal with in another way”.10
Approach on appeal
[19] Appeals against sentence are brought as of right under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. This Court must allow the appeal if satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.11 The focus is on the sentence imposed, rather than the process by which it is reached.12 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.13 To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.14
7 New Zealand Police v Auckram [2022] NZDC 5989 at [11].
8 New Zealand Police v Auckram [2022] NZDC 5989 at [5].
9 New Zealand Police v Auckram [2022] NZDC 5989 at [12].
10 New Zealand Police v Auckram [2022] NZDC 5989 at [15].
11 Criminal Procedure Act 2011, s 250(2).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
Analysis
[20] Mr Mansfield, for Mr Auckram, submits that each component of the starting point set by the Judge was manifestly excessive. Ms McKechnie, for the Crown, says that a cumulative starting point of 36 months’ imprisonment was within the available range.
Threatening to kill charge
[21] Mr Mansfield submits that the starting point of 18 months’ imprisonment was too high and 15 months is more appropriate. He relies on Taylor v Police15 and Richards v Police.16
[22] In response, the Crown says the cumulative starting point for the family violence charges (30 months’ imprisonment) is appropriate given:
(a)the presence of the factors identified in Faaleaga v R;17
(b)the context of an intimate relationship between Mr Auckram and the victim; and
(c)the history of violence against the victim.
[23] In Taylor, Mr Taylor forced his way into the victim’s house and pinned her against a bedroom door.18 He screamed at the victim that she was a “nark” and threatened to kill her.19 She had obtained a protection order just two days prior.20 Mr Taylor then left when the victim reached for her phone to alert police.21 Williams J adopted a starting point for threatening to kill of 18 months’ imprisonment.22
15 Taylor v Police [2014] NZHC 1139.
16 Richards v Police [2015] NZHC 2650.
17 Faaleaga v R [2011] NZCA 495.
18 Taylor v Police [2014] NZHC 1139 at [4].
19 Taylor v Police [2014] NZHC 1139 at [5].
20 Taylor v Police [2014] NZHC 1139 at [6].
21 Taylor v Police [2014] NZHC 1139 at [5].
22 Taylor v Police [2014] NZHC 1139 at [21].
[24] Mr Mansfield says that Mr Auckram’s conduct was less serious than in Taylor23 because there was no bad blood, fear or animosity prior to Mr Auckram and the victim arranging to meet up. He says they “regularly” met up to consume methamphetamine and engage in sexual intercourse. Further, unlike in Taylor,24 this did not include an invasion of the victim’s home where one should feel safe and secure given the protection order.
[25] I do not consider that Mr Auckram’s conduct was less serious than in Taylor.25 While the threats did not occur in the victim’s home, they occurred over a longer period (five to six hours) and in a confined space (Mr Auckram’s van). Further, threats occurred after Mr Auckram had punched the victim and smashed her car’s rear windscreen with a crowbar. Elements of Mr Auckram’s offending were more serious than the offending in Taylor.26
[26] Mr Mansfield then refers to Richards v Police27 to justify a 15 month starting point. There the offender was in a heated argument with his partner after their relationship broke down.28 He grabbed her arms and pushed her to prevent her from leaving.29 Over the course of a two-hour argument he threatened to smash a glass bottle he was holding over his head and over her head.30 He then threatened to kill her and himself.31 On appeal, Fogarty J quashed a sentence of 10 months’ imprisonment and imposed a sentence of six months’ supervision, having regard to the offender’s parole eligibility and the fact that a community based sentence would serve a rehabilitative purpose in giving him a chance at being readmitted to the Army.32
[27] The offending in Richards33 is less serious on the facts. There was less physical violence involved and there was no history of violence in the relationship. The duration of the offending was also shorter. While in that case Mr Richards used a
23 Taylor v Police [2014] NZHC 1139.
24 Taylor v Police [2014] NZHC 1139.
25 Taylor v Police [2014] NZHC 1139.
26 Taylor v Police [2014] NZHC 1139.
27 Richards v Police [2015] NZHC 2650.
28 Richards v Police [2015] NZHC 2650 at [5].
29 Richards v Police [2015] NZHC 2650 at [5].
30 Richards v Police [2015] NZHC 2650 at [5].
31 Richards v Police [2015] NZHC 2650 at [5].
32 Richards v Police [2015] NZHC 2650 at [25]–[28].
33 Richards v Police [2015] NZHC 2650.
bottle to threaten the victim, in this case Mr Auckram was driving the van erratically, threatening to harm the victim, and could have used the van to harm the victim. Mr Auckram also said he had a knife and threatened to stab the victim.
[28] Ms McKechnie, for the Crown, submits that the cumulative starting point for the family violence charges of 30 months’ imprisonment was appropriate. While not explicit, the Crown submission appears to be that the starting point for the threatening to kill charge was too low and cumulatively with the uplifts for the other family violence changes, the cumulative starting point for family violence charges of 30 months’ imprisonment was not too high.
[29] The Crown says that the threats to kill were serious, engaging all but one of the aggravating factors set out in Faaleaga v R.34 There the Court of Appeal considered that:35
[11] Key factors in assessing the culpability of offending of this nature will include premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim.
[30] The Crown also relies on Taniora v R.36 Mr Taniora had his partner collect him in her car.37 There he produced a machete, struck the victim in the face three times; head butted her on the left side of her body; grabbed her hair; and threw her around.38 He smashed the machete around the car, damaging the radio panel and knobs, wiper stem, steering wheel, top of the glove box, screen for the reversing camera, rear vision mirror and the windscreen.39 For between 30 minutes and one hour the victim drove the offender around while he threatened to kill her, including by chopping her head off.40
34 Faaleaga v R [2011] NZCA 495.
35 Faaleaga v R [2011] NZCA 495.
36 Taniora v R [2016] NZHC 2471.
37 Taniora v R [2016] NZHC 2471 at [2].
38 Taniora v R [2016] NZHC 2471 at [3].
39 Taniora v R [2016] NZHC 2471 at [5].
40 Taniora v R [2016] NZHC 2471 at [6]–[9].
[31] Mr Taniora was convicted of threatening to kill, male assaults female and wilful damage.41 A starting point of 30 months’ imprisonment was adopted for the lead charge of threatening to kill and a three month uplift applied for male assaults female and wilful damage.42
[32] While in Taniora43 the time spent in the car was less (30 mins to one hour versus five to six hours) the offending was more serious. The victim was struck in the face and not the arms and legs as is the case here. The victim was also head butted, her hair grabbed, and she was thrown around.
[33] Mr Auckram’s offending was less serious than in Taniora44 and closer to the offending in Taylor.45 I therefore consider that it was open to the Judge to adopt a starting point of 18 months’ imprisonment for the threatening to kill charge.
Uplift for additional offending – assault on a person in a family relationship, and wilful damage
[34] Mr Mansfield says that the uplift for the charges of assault on a person in a family relationship and wilful damage should have been no more than six months’ imprisonment. He says the Judge failed to consider totality when applying an uplift of 12 months’ imprisonment for those charges.
[35] In Taylor,46 an uplift of three months’ imprisonment was applied for an assault that involved stopping the victim from leaving, grabbing her arms and pushing her back. Mr Taylor pinned the victim between the door and the washing machine. This is less serious than the punches Mr Auckram gave to the victim’s arms and legs, which left her bruised and scared.
[36] In this case, the District Court Judge noted that the assault that took place was bad in the sense that there was no way or means by which the victim could go. She was in a vehicle and effectively prevented from doing anything other than accepting
41 Taniora v R [2016] NZHC 2471 at [1].
42 Taniora v R [2016] NZHC 2471 at [12].
43 Taniora v R [2016] NZHC 2471.
44 Taniora v R [2016] NZHC 2471.
45 Taylor v Police [2014] NZHC 1139.
46 Taylor v Police [2014] NZHC 1139.
the punishment that Mr Auckram was dishing out.47 Mr Auckram punched the victim’s arms and kicked her twice on her right thigh. The victim impact statement notes that the victim received bruising to her arms, shoulders and right thigh. The police had submitted that an uplift of three to six months’ imprisonment was appropriate taking into account totality.
[37] The Judge does not refer to totality and his reasons for an uplift of 12 months’ imprisonment are not provided. The Crown says that an adjustment for totality is not automatic and is only required if the end sentence is “wholly out of proportion to the gravity of the overall offending”.48 While I accept that it is the cumulative starting point that is relevant, there should be a reasonable basis for arriving at that starting point to ensure that it is not manifestly excessive.
[38] The police submissions in the District Court sought an uplift of three to six months’ imprisonment on the assault and wilful damage charges and said that such “an uplift also properly factors in totality considerations when the offending is looked at as a whole.” The police had submitted a starting point of 30 months’ imprisonment for the lead charge of threatening to kill so the three to six month uplift submission is relative to that starting point.
[39] The police submission combined with the Judge adopting an uplift of 12 months’ imprisonment for the assault and wilful damage charges indicate that totality did not appear to be considered by the Judge when applying the uplifts for those charges.
[40] I therefore accept Mr Mansfield’s submission that the Judge erred in not considering totality in providing an uplift of 12 months’ imprisonment. An uplift of 12 months’ imprisonment was manifestly excessive compared to the uplifts provided in Taniora49 where the offending was more serious. An uplift of no more than eight months was appropriate.
47 New Zealand Police v Auckram [2022] NZDC 5989 at [10].
48 Ashcroft v R [2014] NZCA 551 at [32]; and Sentencing Act 2002, s 85(2).
49 Taniora v R [2016] NZHC 2471.
Burglary charge
[41] Mr Mansfield submits that the starting point of between six and nine months’ imprisonment would be appropriate for the burglary offending in isolation. He says an uplift of no more than four months’ imprisonment is appropriate, taking into account totality.
[42] In response, Ms McKechnie refers to R v Stevens.50 In that case the offender went to commercial premises which he used to clean and stole approximately $350 worth of copper piping.51 The Court of Appeal considered that “an appropriate starting point would have been no higher than 18 months’ imprisonment”.52
[43] Ms McKechnie properly accepted that the offending in that case was aggravated by a breach of trust, while Mr Auckram’s was not. I accept her submission that taking that into account, the uplift of six months’ imprisonment for the burglary charge is appropriate and was within the available range.
Conclusion on starting point
[44] For the reasons set out at [40], the cumulative starting point of 36 months’ imprisonment was arrived at without taking into account totality. A more appropriate stating point is 32 months’ imprisonment.
Uplift for previous convictions
[45] Mr Mansfield says that the uplift for previous convictions should have been applied to the starting point before discounts were applied. Ms McKechnie says that it was open to the judge to apply it at the second stage and relies on Moses v R53 and Stuart v R.54
[46] The approach set out by the Court of Appeal in Moses is to first calculate the starting point based on the offending, then to adjust that starting point taking into
50 R v Stevens [2009] NZCA 190.
51 R v Stevens [2009] NZCA 190 at [3].
52 R v Stevens [2009] NZCA 190 at [14].
53 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
54 Stuart v R [2021] NZCA 539.
account all aggravating and mitigating factors personal to the offender.55 This second stage typically involves the summation of different uplifts and discounts, the total of which is applied to the starting point.
[47] The Court of Appeal in Stuart56 considered the approach for uplifts for previous convictions when considering whether to grant leave to appeal. The Court of Appeal determined that:57
[I]t is abundantly clear from the reasoning in Moses that previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the instant offending. We agree … that previous offending is to be taken into account at step 2.
[48] The decisions in Moses58 and Stuart59 confirm that the Judge did not err in applying the uplifts for previous convictions at the second stage. I now need to consider whether the quantum of the uplift was manifestly excessive.
[49] Mr Mansfield says the uplift of six months for previous convictions was excessive and an uplift of three months is appropriate.
[50] An uplift for prior convictions must have a “reasonable relationship” with the starting point.60 It is important that there be some proportionality between the starting point and any uplift.61 Here, Mr Auckram has previous convictions for family violence offending in 2003, 2013 and 2017. He has three convictions for male assaults female, two for common assault, one for wilful damage, one for possessing an offensive weapon and one for contravening a protection order. Two of those convictions for male assaults female and wilful damage are for offending against the same victim in 2017.
[51] Mr Mansfield submits that the only relevant conviction which may not be viewed as historic are the convictions in 2017 for offending in 2016.
55 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
56 Stuart v R [2021] NZCA 539.
57 Stuart v R [2021] NZCA 539 at [15]–[16].
58 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
59 Stuart v R [2021] NZCA 539.
60 Taylor v R [2012] NZCA 332 at [46].
61 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
[52] Ms McKechnie submits that the quantum of the uplift was proportionate to the gravity and relevance of Mr Auckram’s prior offending and the starting point for the index offending.
[53] It is important that any uplift not result in the defendant being sentenced again. Six months is a significant uplift given that the previous relevant convictions occurred in 2003, 2013 and 2017. An uplift of four months’ imprisonment should be applied.
Guilty plea
[54] Mr Mansfield says that the Judge should have given Mr Auckram a full 25 per cent discount for his guilty plea given that Mr Auckram pleaded guilty at one of the earliest possible opportunities.
[55] Ms McKechnie submits that there is no entitlement to a full guilty plea and that the 20 per cent discount given was within the acceptable range.
[56] The hearing notes record four adjournments due to COVID-19 including because of level 3 and level 4 lockdowns. Mr Auckram should not be penalised because of COVID-19 related delays that may have impacted on the timing of his guilty pleas. I therefore consider that the Judge erred in applying a 20 per cent and not a 25 per cent discount for the guilty pleas.
Personal circumstances including employment prospects, remorse, community support, rehabilitative efforts, and time spent on EM bail
[57] Mr Mansfield accepts that the Judge applied a 20 percent discount for time spent on EM bail, the Gracegate references, remorse and the Salvation Army course that was completed but says that:
(a)The quantum of the discount for time spent on EM bail should have been particularised and not rolled into the overall 20 percent discount. Had this occurred an additional reduction of four months’ imprisonment should apply.
(b)Further mitigating personal factors were not taken into account, including:
(i)prospect of continued employment;
(ii)strong community support; and
(iii)methamphetamine addiction and genuine successful rehabilitation.
[58] I consider that the Judge’s mention of the Gracegate reference and the Salvation Army course indicate that he did consider Mr Auckram’s addiction and genuine successful rehabilitation efforts. The Salvation Army certificate refers to “a professional programme for the treatment of addictions”.
[59] In terms of community support and employment prospects, these issues were expressly referred to in Mr Auckram’s letter of remorse where he refers to the support of his parents and siblings and having established some strong prosocial relationships with recovery-focused peers, which he intends to maintain moving forward. The remorse letter also refers to the support of his employer.
[60] Given the remorse letter to which the Judge referred, I do not accept that these factors were not considered when applying the 20 percent discount for personal factors.
[61] Albeit helpful, it is not necessary for the Judge to articulate the quantum of discount attributable to every single mitigating factor within a multifactorial discount, particularly where those factors are related. The question is whether the overall discount of 20 per cent was within the available range. I accept that it was, and that an additional four month reduction is not warranted.
Conclusion – end sentence
[62]For the reasons set out above, I consider that the Judge erred by:
(a)not considering totality and applying an uplift for the assault in a family relationship and wilful damage charges of 12 months, an uplift of 8 months was appropriate;
(b)applying a discount of 20 per cent for the guilty plea instead of 25 per cent; and
(c)uplifting the sentence by six months’ imprisonment for previous convictions, an uplift of four months’ imprisonment was appropriate.
[63]Applying the above:
(a)The cumulative starting point is 32 months’ imprisonment.
(b)Applying discounts of 20 per cent for personal factors and 25 per cent for guilty pleas, reduces the sentence to 17.6 months’ imprisonment.
(c)Applying an uplift of four months’ imprisonment for the previous convictions results in an end sentence of 21.6 months’ imprisonment, which I reduce to 21 months.
[64] Given the end sentence of 21 months’ imprisonment, I now consider the issue of home detention.
Did the Judge err by failing to impose a sentence of home detention?
[65] Mr Mansfield says the Judge should have imposed a sentence of home detention. Mr Mansfield acknowledges the seriousness of the offending and Mr Auckram’s previous breaches of home detention but says that Mr Auckram is at a significant turning point in his life. He says Mr Auckram has made genuine and successful efforts in addressing his addictions. If Mr Auckram is able to return to the community and continue his rehabilitation, this will lead to a greater likelihood that Mr Auckram will not reoffend. Mr Mansfield also refers to the strong support of Mr Auckram’s family. He says it is in the interests of the community for Mr Auckram
to be able to continue his rehabilitation and home detention will better enable this outcome.
[66] Ms McKechnie for the Crown says that imprisonment is an appropriate sentence. She says the seriousness of the offending, the impact on the victim and Mr Auckram’s prior convictions of family violence all point in favour of a sentence of imprisonment. She also highlights Mr Auckram’s prior convictions for breaching home detention in 2018, 2012 and 2011 and says this tells against the imposition of a home detention sentence.
[67] In R v Hill, rehabilitative considerations were expressly considered to be important in determining whether to impose a sentence of home detention:62
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[68] Mr Auckram has shown that he is working to address his addiction issues. He has family support and an offer of employment. This will enable Mr Auckram to reintegrate and turn his life around. I also note that a protection order is in place for the victim and should remain in place.
[69] The “Provision of Advice to Courts” report dated 20 January 2022 notes that Mr Auckram has ended his relationship with the victim and is taking ownership to address his drug addictions. The report notes that rehabilitative interventions are the tools Mr Auckram needs to help address his ongoing offending behaviours.
[70] I accept Mr Mansfield’s submission that enabling Mr Auckram to rehabilitate is more likely to result in deterrence than the alternative of a sentence of imprisonment. Successful rehabilitation is also more likely to result in lower risk to the safety of the victim.
[71] Mr Mansfield says a further reduction should be applied for time spent on remand and in prison. In determining the length of the sentence of home detention, I
62 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
may take account of time spent on remand and in custody.63 Mr Auckram has spent 23 days on remand and has spent three months and five days as a sentenced prisoner
– a total of three months and 28 days. The home detention time should therefore be reduced by four months.
[72] I have reviewed the pre-sentence report dated 11 March 2022 which identifies the address of Mr Auckram’s father as suitable for home detention. The report indicates he understands the conditions of home detention and consents to Mr Auckram serving the home detention sentence in accordance with those conditions.
[73] The pre-sentence report also acknowledges Mr Auckram’s previous breaches of community based sentences but assesses Mr Auckram’s ability to comply as good.
[74]I therefore consider that a term of six months’ home detention is appropriate.
Result
[75] The appeal is allowed. The sentence of 27 months’ imprisonment is quashed and a sentence of six months’ home detention, commencing from 21 June 2022 is substituted. The conditions of home detention are:
(a)Mr Auckram is to travel directly to his father’s address.64
(b)Mr Auckram is to reside at his father’s address and not move address without the prior written approval of the Probation Officer.
(c)Mr Auckram is not to possess, consume or use any alcohol or drugs not prescribed to him.
(d)Mr Auckram is to notify a Probation Officer prior to commencing, terminating or varying any employment or voluntary work.
63 Smith v Police HC Rotorua CRI-2009-463-110, 18 December 2009 at [45].
64 Mr Auckram’s father’s address is that mentioned in the Provision of Advice to Courts report dated 11 March 2022.
(e)Mr Auckram is to attend and complete an appropriate Departmental Programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
[76]The protection order under s 123B of the Sentencing Act 2002 remains in place.
Tahana J
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