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…

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 EWB v Police

Details

AGLC: EWB v Police [2012] NZHC 225
Case: [2012] NZHC 225
Decision Date: 21 February 2012

CaseChat Overview and Summary

The appellant, Eugene Waerewa Bracken, appeals against his sentence for injuring with intent to injure, threatening to kill, and breaching a protection order. Bracken's appeal is that his sentence of 20 months' imprisonment is manifestly excessive and that he should have been granted leave to apply for home detention. The High Court found that while Bracken's sentence for the charge of injuring with intent to injure was excessive, his sentence for the other charges and the decision not to grant him leave to apply for home detention were appropriate. The Court of Appeal considered the sentencing approach for injuring with intent to injure, noting that the starting point should reflect the seriousness of the injury suffered by the victim and any aggravating or mitigating factors. The Court found that a starting point of 21 months was appropriate, but reduced it to 16 months after considering Bracken's guilty plea and time spent on electronic monitoring bail. The Court declined Bracken's appeal against the decision not to grant him leave to apply for home detention, as his actions in removing his anklet and absconding made him an inappropriate candidate for home detention. As a result, Bracken's sentence of 20 months on the charge of injuring with intent to injure is quashed and a sentence of 16 months' imprisonment is imposed in its place.

Orders