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Bracey v Police

Bracey v Police

Case [2022] NZHC 476 16 March 2022

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-000060

[2022] NZHC 476

BETWEEN
JACOB CARL BRACEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 March 2022

Appearances:

S J Ross for the Appellant S-L Litt for the Respondent

Judgment:

16 March 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 16 March 2022 at 11am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel/Solicitors:
Stephen Ross, Barrister, Whangarei Crown Solicitor, Whangarei

BRACEY v NEW ZEALAND POLICE [2022] NZHC 476 [16 March 2022]

Introduction

[1] The appellant Jacob Bracey pleaded guilty in the District Court at Whangarei to a range of property offences, the most serious being two burglary charges. Judge Orchard sentenced him to 10 months’ home detention, six-months’ suspension of his driver’s licence, and monetary reparations for the fuel he stole.1

[2]He appeals this sentence on the basis that:

(a)the starting point was too high;

(b)the discount for his youth was insufficient; and

(c)the sentencing Judge did not have full information regarding his background, particularly in relation to a Psychological Assessment previously undertaken when he appeared in the Youth Court.

Factual Background

[3]Mr Bracey’s offences were committed between February and August 2021.

[4] The first was a burglary of a residential property on 22 February 2021.2 The owner of the property and the appellant are known to each other. The appellant stole a BMW from the garage under the house and after visiting two premises in Whangarei, travelled south to Auckland. The car was later recovered. Mr Bracey had just turned 18 at this time.

[5] The second and third charges of theft were in relation to fuel drive-offs.3 Mr Bracey went to a petrol station, filled up his car, and left without paying on two occasions. The first fuel drive-off was committed on 6 May 2021 while he was driving when his licence was suspended.4 The second, on 27 June 2021, was while he was on bail.

1      New Zealand Police v Bracey [2021] NZDC 22504.
2      Crimes Act 1961, s 231(1)(a).
3      Crimes Act 1961, ss 219 and 223(d).
4      Land Transport Act 1998, ss 32(1)(c) and 32(3).

[6] The fourth and fifth offences occurred in relation to one incident on 4 August 2021. Mr Bracey’s vehicle had been repaired by a vehicle mechanic and was on the mechanic’s premises. Mr Bracey broke in by cutting the fence and stole the vehicle. He was charged with being unlawfully in an enclosed yard5 and intentional damage,6 both of which carry a maximum penalty of three months’ imprisonment.

[7] Two days later, on 6 August 2021, Mr Bracey committed the second burglary.7 He broke into a company’s premises in West Auckland and stole a boat, fishing gear and other equipment as well as some containers of petrol and diesel, which he had filled from pumps on the company’s property. The police stopped Mr Bracey near Whangarei as he was towing 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 Bracey v Police

Details

AGLC: Bracey v Police [2022] NZHC 476
Case: [2022] NZHC 476
Decision Date: 16 March 2022

CaseChat Overview and Summary

Jacob Carl Bracey, the appellant, appealed against his sentence in the District Court at Whangarei. Bracey pleaded guilty to a range of property offences including two burglary charges, thefts of fuel, unlawful entry into an enclosed yard, and intentional damage. The District Court Judge sentenced Bracey to 10 months’ home detention, six months’ suspension of his driver’s licence, and monetary reparations for the fuel he stole. Bracey appealed this sentence on the basis that the starting point was too high, the discount for his youth was insufficient, and the sentencing Judge did not have full information regarding his background, particularly in relation to a psychological assessment previously undertaken when he appeared in the Youth Court. The High Court found that the starting point was appropriate, the discount for youth was appropriate, but that a further discount for personal factors should have been applied. The court substituted a sentence of 12 months’ intensive supervision and six months’ community detention on the burglary charge involving the burglary of the commercial premises and a sentence of six months’ intensive supervision and six months’ community detention on the burglary of the residential premises, to be served concurrently.

Orders