EWB v Police

[2012] NZHC 225

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-45 [2012] NZHC 225

EUGENE WAEREWA BRACKEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2012

Appearances: The appellant in person

A Isac for the appellant on the papers
A Read for the respondent

Judgment:      21 February 2012

JUDGMENT OF CLIFFORD J

[1]      The appellant, Eugene Waerewa Bracken, pleaded guilty in the District Court at Palmerston North to charges of injuring with intent to injure, threatening to kill and breach of a protection order.  Mr Bracken was sentenced by Judge Atkins QC on

18 November 2011 to 20 months’ imprisonment on the charge of injuring with intent to injure, and to concurrent terms of 12 months’ imprisonment on each of the other charges.  In terms of s 80I of the Sentencing Act 2002, the Judge declined to make an order granting Mr Bracken leave to apply for home detention.

[2]      Mr Bracken, acting for himself, now appeals against his sentence on the basis that it is manifestly excessive and, in effect, that he should have been granted leave

to apply for home detention.

BRACKEN V POLICE HC PMN CRI-2011-454-45 [21 February 2012]

Facts

The offending

[3]      Mr Bracken’s  offending  relates  to  events  on  10  March  2011  involving Mr Bracken and his victim, his former partner with whom he has two pre-school children.  At the time, Mr Bracken was subject to a protection order as regards his victim, which provided that with her approval he was allowed to visit her home where she lived with their children.   On the day in question Mr Bracken’s former partner, his victim, arrived to find him in her house.  An argument ensued during which Mr Bracken threatened to kill her saying “I will kill you if you leave me and I will also kill the children”.   The statement of facts to which Mr Bracken pleaded guilty,  as  subsequently  amended  in  the  process  whereby  he  was  ultimately

sentenced,1 records that Mr Bracken grabbed his victim’s right arm from behind her.

As he did this, she stood on his foot.  Mr Bracken then spun her round to face him whereupon she kneed Mr Bracken in the groin.  This made Mr Bracken very angry. Mr Bracken then spun the victim around and put her into a headlock.   He was standing behind her, pulling her back off balance.  Mr Bracken threw his victim to the floor and then knelt on her and with a fist raised threatened to punch her.  He then strangled her until her body turned limp.  He then took her to a nearby couch where  she  recovered.    The  verbal  threats  continued  until  Mr Bracken’s  victim managed to escape the house and alert neighbours who called the Police.

[4]      As a result of the assault, Mr Bracken’s victim suffered a cut lip, bruising and

abrasions to her neck.

[5]      Mr Bracken’s  former  partner  provided  a  victim  impact  statement.    That statement referred to Mr Bracken’s overly controlling attitude towards her and to the fact that these events occurred because she had stood up to Mr Bracken as regards him coming into her house, cooking her food and treating it as his own.  She did not comment on the nature of her physical injuries or the impact the incident had had on her.  Rather she said she just wanted to get away from the relationship and get him out of her life.

[6]      Mr Bracken  first  appeared  on  these  charges  in  the  District  Court  at Palmerston North on 22 March 2011.  Mr Bracken was remanded in custody.  When he appeared again on 11 May 2011 he was granted EM bail.

[7]      On 29 June 2011, Judge Dawson held a sentence indication hearing.  There would not appear to be a written record of that indication, as called for by the District Court Practice Note of June 2009.   Given that, and subsequent to hearing Mr Bracken’s appeal, I obtained a transcript of the sentence indication hearing.  As relevant, Judge Dawson stated:

But, at the end of the day at this stage I would be persuaded it falls within Category 2 of Harris, not at the top end.  There would be a consideration of home detention given his record.   That would be very likely subject to the probation report indicating there is an appropriate place for him to live and that’s probably as far as I can go.

...

I am also cognisant of the fact that he has spent some time in custody on remand and been on electronic bail and there doesn’t appear to have been any further offending or any difficulties with that as well.  He has got to realise of course that this sort of behaviour can’t just be dealt with [inaudible]...

[8]      Although the reference to “it” perhaps suggests the Judge was identifying a starting point sentence, sentencing indications are always given on the basis of – and therefore include credit for – a guilty plea.

[9]      I also note that, following Mr Bracken having entered his guilty pleas, the

Judge addressed Mr Thackery, then Mr Bracken’s counsel, as follows:

Mr Thackery, clearly I am sure you understand that the threatening to kill charge should be regarded as an aggravating feature of the injuring with intent to injure charge and comes within the scope of what I have already mentioned.

[10]     On receipt of that sentencing indication, Mr Bracken pleaded guilty, and was convicted and remanded for sentence until 9 August 2011 with bail to continue.

[11]     It would appear that Mr Bracken attended Court on 9 August as ordered and was remanded until 2 September to enable Mr Bracken to raise with the probation officer  matters  he  considered  to  be  errors  of  fact  in  his  pre-sentence  report. Mr Bracken  was   represented  that  day  by  Mr  Thackery,  who  had  prepared submissions  which,  based  on  Judge Dawson’s  indication  of a sentence  of short

duration,  accepted  that  outcome  and  addressed  the  issue  of  home  detention. Somewhat  surprisingly,  given Judge Dawson’s  sentencing indication,  the Crown argued  for  an  end  sentence  of  24  months  which  is  –  I note  –  the  top  end  of Category 2 of Harris.2

[12]     On 13 August 2011 Mr Bracken, to avoid what he explained to me as an undesirable situation at his EM bail address, cut off his electronic anklet and absconded.   Mr Bracken remained at large, albeit in contact with the Police from time to time, until he was arrested sometime early in October on charges relating to his breach of bail.   He was remanded in custody on these charges on 11 October, again  on  18  October  and  was  sentenced  on  18  November.    Mr Bracken  was represented that day by Mr Hewson.  Mr Hewson did not file written submissions. Accordingly I have, again, obtained the transcript of the District Court sentencing hearing.  Mr Hewson focussed on two matters.  First, he clarified that the statement of facts upon which Mr Bracken was to be sentenced should include a reference to Mr Bracken’s account that his victim had first kicked him in the genital area before he responded and that his response was one of retaliation or self-defence, albeit that Mr Bracken  acknowledged  he had  gone too  far.   The Judge confirmed  that  the revised statement of facts was before him.  Secondly, given the recent events relating to Mr Bracken’s breach of EM bail, Mr Hewson focussed on the question of whether

– given that a suitable EM bail address was still not available – Mr Bracken should, when being sentenced to the inevitable term of imprisonment, be granted leave to apply for home detention if such an address became available.

[13]     Mr Bracken advised me that he has now been sentenced on the charges he faced as a result of his breaching his EM bail conditions and failing to return his anklet.   On those charges he received concurrent sentences of six and four weeks respectively, concurrent also with the sentence he now appeals.

The offender

[14]     Mr Bracken is 29 years old.   He has a reasonably extensive criminal and traffic offence history involving some 36 separate convictions, principally for motor

vehicle offending, including breath alcohol offending, cannabis offending and a number  of  thefts  and  burglaries  in  2000.    Mr Bracken  has  been  sentenced  to imprisonment on three separate occasions involving nine offences.  Other than one offence of threatening to kill in  2009,  Mr Bracken  has  not  previously appeared before the Court on violence charges.

Other matters

Availability of suitable EM bail address

[15]     Mr Bracken’s  appeal  file  was  placed  before  Justice  Simon  France  on

12 December  2011.    On  that  day,  Justice  Simon  France  recorded  the  following minute:

Mr Bracken has applied for legal aid.  Adjourned to 2 February.  Told to file written submissions even if just a letter.  Focus is to be on home detention. Told to identify one specific suitable available address.

[16]     Mr Bracken   subsequently   wrote   to   the   Registrar   of   the   High   Court nominating the residence of Ms Isobel Tohu at 8 Norrie Street, Levin as a suitable address.   That letter was dated 15 January 2012 and would appear to have been received by the Court on 20 January.  Unfortunately, that letter had not been referred to the Probation Service before the hearing before me on 2 February.  I was initially of a mind to adjourn the hearing of Mr Bracken’s appeal so that the suitability of that address could be considered.  Mr Bracken was concerned that by the time a report had been prepared the benefit of his appeal, whether or not he was granted leave to apply for home detention, might have been negated by the passage of time.  The first available hearing date in Palmerston North was 16 March 2012.   Mr Bracken was not therefore of a mind to adjourn the hearing of his appeal, but rather decided to proceed with it to the extent that it was an appeal that his sentence was manifestly excessive and that he should have been granted leave to apply for home detention, leaving consideration of a suitable address to be dealt with, if at all, subsequently.  I proceed on that basis.

Legal aid

[17]     Mr Bracken further explained that he had applied for legal aid, but had been advised by the legal aid authority that he needed a lawyer before he could make that application.   I found that response surprising, adjourned the hearing   and asked Ms Read to make enquiries.   As a result of those enquiries legal aid advised that Mr Bracken  could  now  be  contacted  by  a  lawyer  within  two  weeks  to  take instructions and provide advice on an application for legal aid.  Mr Bracken advised me in Court that he wished, however, for this matter to be considered today, as he did not believe a lawyer would get in contact with him.   I had earlier pointed out to Mr Bracken  that,  on  the  basis  of  his  explanation  that  he  had  understood  the sentencing indication to mean that even if he did not get home detention his sentence would be not greater than the 12 months maximum period for which he could be sentenced to home detention, he may have grounds upon which to appeal his conviction.   Notwithstanding that, Mr Bracken – who had a good grasp of what he wanted to say to me – declined that opportunity of receiving legal advice as regards his appeal generally or that possibility.  As I explained to Mr Bracken, therefore, his possible misunderstanding is not a factor which I have taken into account in considering his appeal.

Significance of change in circumstances following sentencing indication

[18]     Before deciding this appeal, I concluded that Mr Bracken needed a further opportunity to consider, with the assistance of legal advice, whether he wished to appeal against his conviction, notwithstanding his guilty plea.

[19]     I reached that conclusion for the following reasons:

(a)      As noted, when Mr Bracken received his sentence indication from Judge Dawson, the Judge not only indicated that he would receive a sentence of short duration (ie imprisonment for 24 months or less) but also that it was “very likely” that “subject to the probation report indicating there is an appropriate place for him to live” he would be sentenced to home detention.

(b)By the time Mr Bracken came to be sentenced by Judge Atkins QC, and for this appeal to be considered, Mr Bracken had offended against EM bail conditions by removing his electronic anklet and absconding. That is a change of circumstance, albeit of Mr Bracken’s creation, that means – in my view at least – that he is not now an appropriate candidate for home detention.

(c)      Mr Bracken  explained  to  me,  and  as  a  matter  of  commonsense  I accept his explanation, that he pleaded guilty following the sentencing indication very much on the basis that a sentence of home detention would be the “very likely” outcome, provided only that he could find an appropriate address.

(d)In sentencing, Judge Atkins declined him leave to apply for home detention, a suitable address not being available, and on appeal – by reference  to  Mr Bracken’s  actions  in  removing  his  anklet  and absconding – I would uphold that decision.

[20]     I therefore concluded, after hearing Mr Bracken’s appeal, that he should be provided with an opportunity of appealing against his conviction, on the basis outlined by the Court of Appeal in R v Gemmell,3 given the significance – as regards his sentence indication – of the effect of his removing his anklet on the likelihood of him obtaining home detention.

[21]     As that was not a matter which occurred to me during the hearing of the appeal,  on  10  February  I issued  a minute in  which  I recorded  that  conclusion, indicated my likely decision on Mr Bracken’s appeal as matters stood and directed that he be provided with legal assistance, if he wished, to help him decide if he wanted to bring such an appeal.    I subsequently received a memorandum from Mr Isac which confirmed:

(i)       that he had taken Mr Bracken’s instructions with regard to the

possibility of a conviction appeal; and

(ii)that   for   practical   reasons   largely  to   do   with   the   time Mr Bracken had already spent in custody, litigation risk and my  indication  in  relation  to  the  outcome  of  this  sentence appeal, Mr Bracken  was clearly of the view that he would prefer not to proceed with a conviction appeal.

[22]     I proceed accordingly.

The sentencing decision

[23]     Judge Atkins QC first recorded the factual basis on which Mr Bracken had entered his guilty pleas.  He referred to the pre-sentence report, which recommended a sentence of imprisonment with release conditions requiring attendance at anger management  and  domestic  violence  counselling.     The  Judge  referred  to  the sentencing indication, which as he described it was for a sentence of short duration with the possibility of home detention being considered.  The Judge noted, correctly, that he could not order home detention as there was no suitable address available. Accordingly a sentence of imprisonment would be imposed.

[24]     Taking, correctly in my view, the injuring with intent as the lead charge, the Judge identified a starting point of 18 months’ imprisonment which he increased “for the aggravating factors such as the breach of trust and matters of that kind, and also the prior convictions”,4 by eight months.  From that starting point of 26 months the Judge allowed a credit of two months for time spent on electronic bail and a further credit of four months for Mr Bracken’s guilty pleas, resulting in an end sentence of

20 months’ imprisonment.  Concurrent sentences of 12 months’ imprisonment were

imposed for the other two offence.

[25]    In declining to grant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, the Judge referred to an exchange he had had with Mr Bracken, as a result of which he concluded that Mr Bracken failed to show remorse of any kind and was attempting to justify himself even after his guilty pleas had been entered.  He referred to the fact that Mr Bracken

told him he had pleaded guilty simply to get the matter dealt with more quickly, a reference to Mr Bracken’s concern – as explained by him to me – that if he had pleaded not guilty he would have been remanded either in custody, or on the restrictive conditions of electronic bail, for a considerable period prior to trial.  The Judge concluded that the circumstances were such that it was not appropriate that leave be given to apply.

Analysis

[26]     The correct approach to sentencing for the offence of injuring with intent to injure has been outlined by the Court of Appeal recently in the decision of Harris, and has been applied in decisions such as Ross and Eden.5     In Harris the Court observed that the sentencing exercise in respect of charges of injuring with intent to injure would logically commence with a consideration of the significance of the injuries suffered by the victim. The Court put the position in this way:6

An offence of injuring with intent to injure involves establishing both an intent to cause any injury and an actual injury resulting.  At least in general terms, the mens rea for this offence will coincide with the actus reus.  Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:

Band one: where there is little injury and few aggravating features and where the sentencing judge considers the  culpability to be at a level which  might  have  been  better  reflected  in  a  less  serious  charge,  a sentence of less than imprisonment can be appropriate: Taueki at [27];

Band two: where the injuries are moderate, sentences of up to two years’

imprisonment can be justified;

Band  three:  for  serious  injury,  sentences  from  18  months  up  to  the maximum  of  five  years  can  be  justified  (subject  to  complying  with s 8(c)(d) of the Sentencing Act 2002).

Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.  Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

5      Ross v R [2010] NZCA 306; Eden v R [2011] NZCA 54.

6      At [10]–[11].

[27]     As was observed in  Ross, once additional aggravating features had been taken into account, the starting point may be at a level that would theoretically place the offending in a higher Harris band than might be indicated by the injuries alone.

[28]     Here, the actual injuries suffered by Mr Bracken’s victim were, it would appear, relatively minor: they are referred to as “a cut lip, bruising and abrasions to her neck”.  At the same time, Mr Bracken’s actions in assaulting and then strangling or throttling his victim clearly warrant a sentence that is greater than that which would be called for by the injuries ultimately suffered alone.   There is clearly a significant degree of vulnerability – reflected by the protection order in place which was breached in the assault and, whether categorised as an attack to the head or otherwise, the act of strangling or throttling is an aggravating factor as well.

[29]     In my view, the essential question raised by Mr Bracken’s appeal is whether or not the 18 month starting point as then uplifted by the Judge for the aggravating factors such as the breach of trust and matters of that kind, and also the prior convictions, resulted in Mr Bracken’s sentence being manifestly excessive.   The

Judge did not, as Taueki requires,7  separately identify a starting point applicable to

Mr Bracken’s  offending,  and  then  assess  the  impact  of  any  aggravating  factors personal to Mr Bracken, here the significance of his previous convictions.  Rather, the  Judge  gave  an  overall  uplift  for  both  those  factors.    In  order  to  consider Mr Bracken’s appeal, I therefore need to undertake the Taueki exercise myself.

[30]     In my view, and balancing the relatively minor nature of the injuries suffered by Mr Bracken’s victim against the substantive nature of his assault on her, a starting point of 20 months is appropriate on the charge of injuring with intent to injure.  In reaching that conclusion, I have considered the various cases I was referred to and comment as follows:

(a)      The cases referred to by the Crown involved more violent assaults by the offenders and resulted in more serious injuries for the victims than was the case here.   In these cases starting points of two and a half

years were upheld (i) where a victim had lost consciousness due to

7      R v Taueki [2005] 3 NZLR 372 (CA).

being pushed to the ground, punched and kicked,8 (ii) where the offender jumped on the victim’s head multiple times whilst the victim lay vulnerable on the ground, causing unconsciousness and continued medical effects,9  and (iii) where the offender attacked the victim in her car causing wounds to the head, and bruising and grazing to the neck and eye.10

(b)A more comparable case is Hayward v Police.11   There a starting point of two years was described as stern but was upheld in the High Court for one count of injuring with intent to injure and one of contravention of a protection order.  The offender in that case had punched his wife with a single blow and then strangled her.  The punch was described as  powerful,  and  caused  the  victim  to  require  medical  attention. Mr Bracken’s   offending   is   clearly   less   serious   than   that   of Mr Hayward, where the aggravating features of a punch and the need for medical attention were present.  As such, a lower starting point is called for, but one which does reflect the aggravating features present.

(c)      Mr  Bracken  referred  to  a  sentence  of  13  months’  imprisonment imposed   on   Dylan   Sydney   Frank   by   Judge  Atkins   for   what Mr Bracken  considered  to be a more serious assault.12     There the victim had been kicked and punched in the head by the offender and others,  whilst  on  the  ground,  and  had  suffered  far  more  serious injuries  than  Mr Bracken’s  victim.     Comparison  between  cases, however, is difficult.  By my assessment, the starting point that I have arrived at responds appropriately to Mr Bracken’s offending.  Whilst

his victim did not suffer serious injuries, the facts he pleaded guilty to involved a serious assault, one moreover that involved a breach of a

protection  order  and  a  threat  to  kill.    I also  observe  that  by my

8      R v Harris [2008] NZCA 528.

9      Eden v R [2011] NZCA 54.

10     Ross v R [2010] NZCA 306.

11     Hayward v Police HC Whanganui CRI-2008-483-1, 22 February 2008.

12     Police v Frank DC Palmerston North CRI-2011-059-002218, 23 November 2011.

assessment Mr Frank may have been somewhat fortunate to receive the sentence he did.

[31]      I have also considered whether Mr Bracken was – by reference to his victim having kicked him – provoked.  Taueki notes that provocation is a matter which may be seen as leading to a lower starting point.  However, the Court of Appeal held that it was not enough simply to claim to have been incensed by the actions of the victim or another:13

Rather, the sentencing Judge will need to be satisfied that there was serious provision which was an operative cause of the violence inflicted by the offender,   and   which   remained   an;   operative   cause   throughout   the commission of the offence.

[32]     I am of the opinion that there was no provocation, as described above, in relation to Mr Bracken’s offending.  On the amended summary of facts, Mr Bracken was the aggressor, and prior to his victim’s action of kneeing him in the groin, had already threatened to kill her and their children and had grabbed her arm and spun her around to face him.  In my view her actions towards him most likely represent her attempting to defend herself rather than provoking him.  Although this may have angered Mr Bracken, and heightened the level of violence he then went on to use, I do  not  think  it  was  an  operative  cause  of  the  offending,  nor  was  it  serious provocation.  As such I have concluded that no reduction in the starting point I have identified is called for.

[33]     I think a relatively minor uplift of one month is called for by reference to

Mr Bracken’s previous conviction for violence.

[34]     I therefore consider that a starting point sentence of 21 months is appropriate and, adopting the Judge’s approach, would reduce that to 19 months by reference to the time Mr Bracken spent on EM bail.

[35]     The Judge allowed a further discount of four months for Mr Bracken’s guilty

plea, which represents an allowance of approximately 16 per cent.   Mr Bracken pleaded  guilty  after  his  sentencing  indication,  which  occurred  more  than  three

13     At [32](a).

months after his first appearance.  That plea was not, therefore, entered at the earliest opportunity.  I agree with the Judge’s assessment of the appropriate level of discount, which here results in a discount of three months.  As a result, by my assessment the appropriate sentence for Mr Bracken is 16 months’ imprisonment.

[36]     Mr Bracken also in effect appeals against the Judge’s decision not to grant him leave to apply for his custodial sentence to be substituted by one of home detention.   When Mr Bracken was sentenced by the Judge in November last year there was no suitable home detention address available.  The Judge therefore had to consider whether, if such an address had been available, he would have sentenced Mr Bracken to home detention.  He reached the view, as I have noted above, that he would not, and accordingly declined to grant leave.

[37]      I decline Mr Bracken’s appeal against that aspect of the Judge’s decision. Mr Bracken, for whatever reason, removed his anklet and then chose in effect to remain at large for three months.  This, in my view and as I have already indicated, means  that  whatever  the  position  may  have  been  when  Judge  Dawson  gave Mr Bracken his sentencing indication, that position has certainly changed as regards the suitability of home detention.  In light of those actions by Mr Bracken, even if a suitable  address  were  available  I  would  not  otherwise  sentence  him  to  home detention.  I therefore decline Mr Bracken’s appeal against that aspect of the Judge’s decision.

[38]     As  a  result,  Mr Bracken’s  sentence  of  20  months  on  the  lead  charge  of injurying with intent to injure is quashed and a sentence of 16 months’ imprisonment is imposed in its place.  Mr Bracken’s sentence, to the extent that the Judge declined to give him leave to apply for home detention, is upheld, as it is as regards the concurrent sentences and the release conditions – which were not challenged.

“Clifford J”

Solicitors:

The Crown Solicitor, Palmerston North ([email protected])

Fitzherbert Rowe, Palmerston North ([email protected])
Copy to: Mr E W Bracken, Manawatu Prison, Private Bag 11023, Camp Road, Linton.