Bunyan v Police

[2025] NZHC 936

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-10

[2025] NZHC 936

BETWEEN

SONNY BOUDI BUNYAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 April 2025

Appearances:

D A Sutton for Appellant

P M Lange for Respondent

Judgment:

16 April 2025

JUDGMENT OF McQUEEN J

[1]    On 7 February 2025, Mr Bunyan was sentenced to four months’ imprisonment in the District Court.1 This followed an application by the Department of Corrections (Corrections) to cancel and replace his community work sentence for a charge of assault on a person in a family relationship.2 Mr Bunyan was also sentenced for breaching a sentence of community work.3

[2]    Mr Bunyan appeals the sentence on the basis that it is manifestly excessive because it was not the least restrictive sentence that was appropriate in the circumstances, and he was denied natural justice because counsel should have been assigned and instructed prior to sentencing.

1      Police v Bunyan [2025] NZDC 2235.

2      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

3      Sentencing Act 2002, s 71(1)(d); maximum penalty three months’ imprisonment.

BUNYAN v NEW ZEALAND POLICE [2025] NZHC 936 [16 April 2025]

[3]    The Crown agrees that the sentence may be manifestly excessive, and a shorter sentence of imprisonment should be imposed on appeal but disagrees that there was a breach of natural justice given Mr Bunyan was represented by a duty lawyer at sentencing and is also represented on appeal.

[4]    For the reasons that follow, I allow the appeal and remit the sentence to the District Court for resentencing with an updated pre-sentence report to be prepared.

The offending

[5]    It is useful to briefly outline the original offending and matters that have progressed since then.

Original offending and sentence

[6]    On 1 January 2023, Mr Bunyan and the complainant were sitting outside an address discussing family matters, and Mr Bunyan became angry at the complainant. When the complainant told Mr Bunyan this was not the place to talk about it, he got up out of his seat and walked to where the complainant was sitting. Mr Bunyan grabbed the complainant’s throat, pushed her into a chair, threw her onto the side of the house, at which point the complainant fell to the ground. Mr Bunyan stood over the complainant and pushed her face into the ground before she was able to get to her feet and run inside. Mr Bunyan followed the complainant inside and grabbed the complainant’s ponytail and began dragging her outside by her hair. The complainant managed to get free from Mr Bunyan’s grip and he ran from the house.

[7]    On 26 June 2023 Mr Bunyan entered a guilty plea to the charge of assault on a person in a family relationship. On 11 September 2023 Mr Bunyan was sentenced in the District Court to nine months’ supervision and 150 hours of community work.

Breaches of sentence

[8]    It appears from Mr Bunyan’s criminal and traffic history that on 20 December 2023 he was charged with breaching his supervision conditions.

[9]    On 21 June 2024 Mr Bunyan was charged with breaching his community work sentence. Corrections initiated breach proceedings due to his repeated failure to comply, namely on about 15 occasions.

[10]   On 17 July 2024 Mr Bunyan was sentenced to six months supervision for his breach of supervision conditions. On that same day Mr Bunyan had his first appearance in relation to the breach of community work charge. Mr Bunyan was remanded at large and given the opportunity to complete his remaining 88 hours of community work, with his compliance scheduled for review on 9 October 2024.

Application to cancel and substitute community work

[11]   On  4 September  2024,  Corrections  applied   to   cancel   and   substitute  Mr Bunyan’s community work sentence. The application cites Mr Bunyan’s ongoing non-compliance, making him unsuitable for community work.

[12]   On 31 October 2024, Mr Bunyan pleaded guilty and was convicted of breaching his community work sentence. He was remanded on bail for sentencing and a Provision of Advice to Courts (PAC) report was ordered.

Decision under appeal

[13]   On 7 February 2025, Judge Harrison resentenced Mr Bunyan on the charge of assault on a person in a family relationship and also sentenced him for breaching the community work sentence that was imposed following that charge.

[14]   The Judge set out the offending and noted that Mr Bunyan had 88 hours remaining of his sentence of community work. The Judge then reviewed the documentation available including the PAC report, which recorded that Mr Bunyan did not consent to electronically monitored sentencing options and that community work was inappropriate. The Judge noted that Mr Bunyan completed his sentence of nine months’ supervision, but  that  there  was  a  breach  and  therefore  a  further  six months was imposed (which expired on 17 January 2025). The Judge recorded that this was completed, and Mr Bunyan worked on his rehabilitation needs.

[15]   In determining an appropriate sentence, the Judge acknowledged Mr Bunyan has not reoffended since, he was assessed as having a low risk of reoffending and a medium risk of harm to others. The Judge recorded that Mr Bunyan was unemployed with outstanding fines in excess of $6,000, which he proposed to pay off at $50 per week. The Judge stated the PAC report recommended a deferred sentence, but also acknowledged a short term of imprisonment was an option.

[16]   In response to the comments from the PAC report writer and the duty lawyer appearing for Mr Bunyan about the remainder of community work left to complete, the Judge said that Mr Bunyan had many opportunities to complete his sentence and had failed to do so.

[17]   The Judge then said she was required to put herself back in the position of the sentencing Judge to resentence Mr Bunyan on the assault on a person in a family relationship charge. The original sentence reached was 150 hours of community work and nine months of supervision. The Judge noted imprisonment was an option. Therefore, the Judge adopted a starting point of six months and did not give a discount for a guilty plea. Her Honour gave a 42 per cent credit (for the proportion of community work undertaken) and reached 3.48 months (or three months and two weeks’ imprisonment).

[18]   The Judge then adopted a starting point of one month’s imprisonment for the breach of the community work sentence and reached an end point of three weeks on that charge by granting a 25 per cent credit for the guilty plea. Adding the two calculations together, in the round, the Judge imposed a sentence of four months’ imprisonment with no release conditions for the two charges. The sentence of community work imposed on 11 September 2023 was cancelled.

Approach on appeal

[19]   Section 244 of the Criminal Procedure Act 2011 provides for Mr Bunyan’s right of first appeal against his sentence. Under s 250 of the Criminal Procedure Act,

the appeal court may only allow the appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.4

[20]   An appeal against sentence is an appeal against the Judge’s discretion.5 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.6 The Court will intervene only if the final outcome is “manifestly excessive” with the route by which the judge reached that outcome relevant to the analysis but seldom pivotal.7

Parties’ positions

[21]   Counsel for Mr Bunyan, Mr Sutton, submits that had Mr Bunyan been able to properly instruct counsel then appropriate submissions would have been made which should have resulted in a less restrictive sentence than imprisonment. Mr Sutton says that a come up if called upon sentence was more appropriate and is available to this Court on appeal. Mr Sutton submits, in the alternative, that the Court remit the sentence to the District Court for resentencing to allow for an updated PAC report to be completed with a view to reconsider whether supervision, community work and electronically monitored sentences are appropriate.

[22]   Counsel for the Crown, Ms Lange, submits that there is no error of natural justice, and this ground of appeal should be dismissed because Mr Bunyan was represented at guilty plea and sentencing by a duty lawyer, who made submissions on his behalf. Mr Bunyan is also assigned counsel and represented on appeal. As for the other ground of appeal, Ms Lange accepts that based on the authorities there may be an error in the sentencing approach, but an end sentence in the range of two and a half months to four months’ imprisonment is considered consistent with authorities cited. Ms Lange submits that the sentence, although stern, is within range and therefore remitting the sentence to the District Court for resentencing is unnecessary.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

5      Filivao v R [2024] NZCA 103 at [30].

6      Tutakangahau v R, above n 4, at [36].

7      Ripia v R [2011] NZCA 101 at [15]; and Kumar v R [2015] NZCA 460 at [81].

Discussion

[23]There are two grounds advanced on appeal and I address each in turn.

Is there an error in sentencing due to a breach of natural justice?

[24]   Mr Sutton’s position is that Mr Bunyan was not provided with the PAC report prior to the date of sentencing and with no assigned or instructed counsel, there was no ability to assess the report and the potential exposure to imprisonment. Mr Bunyan therefore did not expect an electronically monitored sentence and this explains why he did not provide an address or consent. Mr Sutton says that if counsel had been assigned or instructed prior to sentencing, it is likely other sentencing options, such as electronically monitored options, would have been more thoroughly investigated and presented to the court. Mr Sutton says, in effect, that Mr Bunyan only received a custodial sentence because he was unable to properly instruct counsel through the whole process.

[25]   Ms Lange says that Mr Bunyan was represented at all stages and therefore there cannot be said to have been a breach of natural justice.

[26]   Mr Sutton accepts that Mr Bunyan was able to consult with the duty lawyer on the day of sentencing but says there was insufficient time to instruct the duty lawyer. Mr Sutton says that a reasonable time to consult is proportionate to the likely consequences faced by a defendant. Thus, where a custodial sentence had been anticipated, Mr Bunyan should have had the opportunity to provide further instructions so that alternative sentences could be presented to the court.

[27]   In the absence of evidence to the contrary, it appears that Mr Bunyan was represented at sentencing for the original charge in September 2023. Therefore, s 30 of the Sentencing Act 2002 does not apply here. Nevertheless, I am satisfied that   Mr Bunyan was represented by a duty lawyer when he was  resentenced  in  February 2025.8 Mr Bunyan is also represented on appeal.9 However, the primary

8      See Department of Corrections v Hall [2012] NZCA 309 at [38]–[40].

9      Department of Corrections v Hall, above n 8, at [39].

concern on behalf of Mr Bunyan is that despite being represented there was not sufficient time to instruct the duty lawyer, resulting in a breach of natural justice.

[28]   Given my conclusion below that the sentence is manifestly excessive, I do not consider it is necessary to address this point in detail, other than to say that from the transcript of the sentencing it is clear the duty lawyer had read the PAC report and made submissions  on  behalf  of  Mr Bunyan.  This  extended  to  expressing  that Mr Bunyan completed his sentence of supervision, and now that he was not working, he could complete his community work within the next three or four weeks. The duty lawyer recommended that Mr Bunyan should come up for sentence if called upon.

Is the sentence manifestly excessive?

[29]   A sentencing Judge who is faced with an application that a sentence of community work be substituted under s 68 of the Sentencing Act, must separate out the application to substitute the sentence and the penalty for failing to comply with the sentence of community work under s 71.10

[30]   The Judge was therefore correct to deal with the resentencing of the assault charge separately from the breach of community work.

[31]   As  to  the  starting  point  for  the  assault  charge,  Ms Lange  submits  that  R v Morgan demonstrates that a sentence of three months’ imprisonment is an appropriate starting point for a failure to complete 150 hours of community work, where the appellant had completed almost none of the sentence.11 Ms Lange also relies on Hough v Police to submit that sentencing is not a purely mathematical exercise, instead the focus is on the proximity of the original sentence and the extent to which the appellant failed to comply.12

[32]   Ms Lange acknowledges that the Judge recognised the seriousness of the initial offending and considered that Mr Bunyan had numerous opportunities to comply with his sentence of community work. However, Ms Lange submits that based on the

10     R v Morgan [2008] NZCA 232 at [13].

11 At [18].

12     Hough v Police [2017] NZHC 93 at [17]–[20]. See also R v Morgan, above n 10, at [15].

authorities there may be an error in the sentencing approach. This is because the Judge did not adequately assess whether the starting point was proportionate to the original sentence of 150 hours of community work and supervision, and because the reduction of the sentence based on the completed hours may have been an error in principle. Ms Lange accepts that Mr Bunyan had 88 hours of outstanding community work.

[33]   Ms Lange says the appropriate sentence for the assault charge is in the range of six to eight weeks’ imprisonment, as this is consistent with the authorities, and a starting point of one to two months’ imprisonment for the breach of community work is appropriate. Ms Lange therefore submits that an end sentence in the range of two and a half months to four months’ imprisonment is in range. Ms Lange submits that Mr Bunyan is not a naïve offender, given his quite extensive history. She submits the matter should not be remitted back to the District Court given the period that was available to Mr Bunyan to complete his community work, including once he finished employment, and his disregard for the alternative options at the time of sentencing.

[34]   Mr Sutton takes a different approach and says that the appropriate sentence is the one recommended in the PAC report, namely to come up for sentence if called on. Mr Sutton submits that during the interview for the PAC report Mr Bunyan was not fully aware of the importance of investigating an electronically monitored sentence and this did not become apparent to him until talking to other people after the interview. Mr Sutton is instructed that Mr Bunyan contacted the Probation Officer to say he was willing to be assessed for an electronically monitored sentence and had an available address but was advised that the PAC report had already been submitted.

[35]   Mr Sutton further says that Mr Bunyan had been working nightshift which had resulted in difficulties in attending community work, and at the time of sentencing he had finished his job meaning he could then complete the community work. Mr Sutton says it is unclear if those facts were before the court, or considered, at sentencing.  Mr Sutton says the obligation to impose the least restrictive sentence remained, and if the Judge was not satisfied the recommended sentence was suitable further enquiries should have been made.

[36]   The PAC report writer provided a range of sentencing options to the court, noting that Mr Bunyan was strongly encouraged to continue his community work before sentencing given electronically monitored sentences were not available in the absence of his consent. The report writer ultimately recommended the sentence be to come up for sentence if called upon and a fine because Mr Bunyan had demonstrated commitment to rehabilitation by successfully completing the non-violence programme, which reduced his risk of reoffending to low and reflected his willingness to address past behaviour. Community work was available but not recommended due to Mr Bunyan’s non-compliance, supervision was also an option, or a short-term sentence of imprisonment with no release conditions.

[37]   The PAC report provides details about Mr Bunyan’s upbringing and the fact he witnessed significant violence in a family context. Mr Bunyan explained that he is close with his children and enjoys being a grandfather. He is also heavily involved in his community through sport, which is why Mr Bunyan told the Probation Officer he did not want an electronically monitored sentence because of risk to the equipment.

[38]   The PAC report and transcript of the sentencing hearing make it clear that the Judge had limited sentencing options available. The transcript shows that the Judge clarified with the duty lawyer that the PAC report was completed on 17 January 2025, where Mr Bunyan had told the report writer that he was motivated to complete his community work. The Judge questioned as to why Mr Bunyan had not completed any further community work prior to sentencing  (the  sentencing having taken place on  7 February 2025). Not satisfied with the explanation given, the Judge considered imprisonment was the appropriate sentencing option in the circumstances.

[39]   On the application under s 68 of the Sentencing Act, the Judge cancelled the sentence of community work and substituted the sentence with one of three months and two weeks’ imprisonment. Section 68(3)(c) requires that the substituted sentence could have been imposed at the time when the offender was convicted of the offence. The Judge must also take into account the portion of the original sentence that remains

unserved at the time of the order.13 There are therefore two relevant considerations here.

[40]   First, in calculating the sentence the Judge must focus on the part of the sentence which remains  unserved,  rather  than  on  what  has  been  completed.14  Mr Bunyan had 88 hours of community work remaining. The real question is whether that remaining part of his sentence can fairly be said to equate to the substituted sentence of three months and two weeks’ imprisonment.15

[41]   It does not equate by reference to similar cases. As mentioned, Morgan suggests that a sentence of three months’ imprisonment is an appropriate starting point for a failure to complete 150 hours of community work, where the appellant had completed almost none of the sentence.16 By reference to Morgan, Mr Bunyan’s unserved 88 hours of community work would attract a starting point of one month and three weeks’ imprisonment.

[42]   The Court of Appeal also said in Morgan that the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable.17 Here Mr Bunyan did make progress on his sentence of community work and, from the submissions of Mr Sutton, it appears there was some difficulty with completing the remainder due to Mr Bunyan working night shifts. Therefore, imprisonment was not an inevitable outcome.

[43]   This leads onto the second consideration, which is whether the substituted sentence could have been imposed at the time Mr Bunyan was convicted of the offence. The PAC report dated 22 August 2023 that was prepared for the original sentencing in September 2023 recommended supervision with special conditions, or alternatively, intensive supervision with special conditions. It is clear from the original sentencing notes that imprisonment was not considered by the Judge. As a result, the

13     Sentencing Act 2002, s 68(4).

14     Hough v Police, above n 12, at [17].

15 At [19].

16     R v Morgan, above n 10, at [16].

17 At [15].

substituted sentence must be imposed against the background that a sentence of community work and supervision was initially thought to be appropriate. I do not consider that three months and two weeks’ imprisonment could have been imposed at the time Mr Bunyan was convicted of assault on a person in a family relationship.

[44]   Given these findings, and the fact that Mr Bunyan has served the entirety of his nine months’ supervision sentence which involved participating in a non-violence programme that addressed his underlying causes of offending, I consider the Judge erred in concluding imprisonment was the least restrictive outcome available in the circumstances. In any event, the substituted sentence of three months and two weeks’ imprisonment is manifestly excessive.

[45]   For the breach of community work charge, the Judge adopted a starting point of one month, then applied a 25 per cent credit for guilty plea arriving at an end sentence of three weeks’ imprisonment. Mr Sutton did not address this. Ms Lange submits that a starting point of one to two months’ imprisonment is appropriate. No caselaw was provided to support this submission. Although the Judge was correct to deal with the assault charge separately from the breach of community work, as I have concluded that the substituted sentence for the assault is manifestly excessive, the additional three weeks’ imprisonment for the breach of community work reinforces that the overall sentence is manifestly excessive.

[46]   Mr Bunyan would be eligible for an alternative sentence to imprisonment in that case. Mr Sutton indicated that, having received instructions, Mr Bunyan has a suitable address available and consents to an electronically monitored sentence. I do not have the information before me to assess whether that address, the proposed occupants or Mr Bunyan is suitable for the purposes of an electronically monitored or community-based sentence. Other sentencing options that are less restrictive may also be available in light of the time that has passed since resentencing.

[47]   In these circumstances, I consider the matter should be remitted to the  District Court for resentencing. This is to allow for an updated PAC report to be completed canvassing all sentencing options, including electronically monitored and community-based sentences.

Result

[48]The appeal is allowed.

[49]   I remit the sentence to the District Court under s 251(2)(c) of the Criminal Procedure Act 2011 and direct that Mr Bunyan be resentenced in accordance with the above reasons. I also direct that an updated pre-sentence report is prepared, including canvassing the availability of electronically monitored sentences, to be available to the court before sentencing Mr Bunyan.

McQueen J

Solicitors:

Resolution Lawyers & Consultants, for Appellant C & M Legal, for Respondent