Hawke v Police HC Wellington CRI 2010-485-124

[2010] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-124

CRI 2010-485-125

SEAN MICHAEL HAWKE SUSAN LAURA BRAGGER Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 December 2010

Counsel:         I M Antunovic for Accused

G J Burston for Crown

Judgment:      8 December 2010

JUDGMENT OF RONALD YOUNG J (Appeal against refusal to grant bail)

[1]      Susan Bragger and Sean Hawke have pleaded guilty to conspiracy to cause grievous bodily harm to Raymond Piper.   They are due for sentence in the High Court in Wellington on 17 February 2011.  They applied for bail in the District Court but that was refused given the seriousness of the charge, the s 13 Bail Act 2000 onus and the likelihood of a full time custodial sentence.  The Judge did not consider it was in the interests of justice that bail be granted.   Both filed appeals, however

Mr Hawke now abandons his application.

SEAN MICHAEL HAWKE AND ANOR V NEW ZEALAND POLICE HC WN CRI 2010-485-124 8

December 2010

[2]      Briefly the background facts to the offending are as follows.   Mrs Bragger became offended by the conduct of a man, Raymond Piper, whom her daughter had been in a relationship with.  Mr Hawke is Mrs Bragger’s brother.   They discussed making  Mr Piper  disappear  out  of  Mrs Bragger’s  daughter’s  life  and  finding someone to “deal to him”.  It was intended he be caused grievous bodily harm.

[3]      Mr Hawke offered to make the arrangements.  They contacted Mr Anderson and paid him $3,500 to do harm to Mr Piper.   Mrs Bragger claims that she then withdrew her instructions to Mr Anderson.   Mr Anderson killed Mr Piper and has subsequently  been  convicted  of  his  murder  and  imprisoned.    After  the  murder Mrs Bragger  portrayed  herself  as  a  grieving  mother-in-law.     Eventually  both confessed.

[4]      It is common ground now that the appellant has pleaded guilty that the onus is on her pursuant to s 13 of the Bail Act 2000 to satisfy the Court on the balance of probabilities it would be in the interests of justice to grant bail.

[5]      Relevant factors in considering whether the onus is met include:

a)        whether she is likely to receive a sentence of imprisonment;

b)        the likely length of time that will pass before sentence;

c)        family circumstances; and

d)       any other considerations the Court considers relevant. [6]      Counsel in support of the appeal submits as follows:

a)        the appellant has been on stringent bail terms from July 2010 without breach or problem;

b)        a sentence of imprisonment is not necessarily inevitable in this case;

c)        the appellant never intended Mr Piper’s death;

d)the appellant changed her mind before the killing of Mr Piper and cancelled the arrangement;

e)        as to her personal circumstances Mrs Bragger has no previous convictions, she has co-operated with the police, she and her husband own a family business and that there may be significant mitigating circumstances relating to her psychiatric condition;

f)        that she is not a flight risk nor likely to offend while on bail.

[7]      The Crown stress that a sentence of imprisonment is highly likely in the particular circumstances.   They say the fact is that Mrs Bragger did initiate events which ultimately resulted in Mr Piper’s death.  They claim that deterrence will be the overriding sentencing principle here and that even if the final sentence is in the range of a possible community based sentence such a sentence is extremely unlikely.

[8]      It is not possible to be certain whether Mrs Bragger will be sentenced to imprisonment.  However, a sentence of imprisonment, in my view, is likely.

[9]      About two months will pass before sentence.  The particular concern is that the delay in sentencing should not mean that an applicant for bail effectively serves a sentence in prison before they are sentenced.  That seems unlikely to be the situation here.

[10]     As to family circumstances and other personal circumstances the appellant is entitled to an acknowledgement that she has no previous convictions, and otherwise has a good community record.

[11]     However, I am satisfied that the District Court Judge was right not to grant Mrs Bragger bail.  These are very serious charges.  Mrs Bragger triggered the events which ultimately have resulted in the death of a young man.  While she did not intend that he be killed they placed him in a very dangerous situation which ultimately did result in his death.  Initially Mrs Bragger did everything to disguise her involvement.  Later she confessed and has now pleaded guilty.

[12]     I do not consider there is anything about her personal circumstances taking into account the seriousness of the charge that overcome the onus of establishing that it is in the interest of justice that they be granted bail.

[13]     The appeal is dismissed.

Ronald Young J

Solicitors:

I M Antunovic, Barrister, Wellington, email: [email protected]
G J Burston, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]