MICHAEL ALEXANDER BRACEY AND THE KING - [2024] NZCA 533

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA152/2024
[2024] NZCA 533

BETWEEN	MICHAEL ALEXANDER BRACEY Appellant
AND	THE KING Respondent

Hearing:	27 August 2024
Court:	Cooke, Peters and Grice JJ
Counsel:	A B Fairley and S A Pilkington for Appellant R B Annandale for Respondent
Judgment:	21 October 2024 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of eight years’ imprisonment imposed in the District Court on the charge of wounding with intent to cause grievous bodily harm is set aside. A sentence of six years and six months’ imprisonment is substituted.
CThe concurrent sentence of nine months’ imprisonment on the charge of possession of an offensive weapon remains.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

[1]        The appellant, Mr Bracey, appeals against a sentence of eight years’ imprisonment imposed by Judge G Tomlinson on one charge of wounding with intent to cause grievous bodily harm.[1] There is no appeal against the Judge’s sentence of nine months’ imprisonment, to be served concurrently, on one charge of possession of an offensive weapon, being a knife.
[1]R v Bracey [2024] NZDC 6071 [Judgment under appeal].
[2]        Mr Fairley, counsel for Mr Bracey submits that the sentence is manifestly excessive. In particular, Mr Fairley submits that the Judge’s starting point of nine years’ imprisonment on the wounding charge was too high, and that the Judge’s eight‑month discount for time spent on electronically-monitored (EM) bail was insufficient.
[3]        The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and that a different sentence should be imposed.[2] It must dismiss the appeal in any other case.[3]

Background

[2]Criminal Procedure Act 2011, s 250(2).

[3]Section 250(3).

[4]        Prior to the offending, Mr Bracey had been in a relationship with Ms P. After that relationship ended, Ms P commenced a relationship with Mr A.   Mr A was the victim of Mr Bracey’s offending.
[5]        On the evening in question, Mr Bracey knew that Ms P and Mr A were at a nearby campground. He approached their campsite on foot. Mr Bracey, who did his best to conceal his presence by wearing dark boots, gloves, and a face mask, was carrying a hammer and a knife.
[6]        Approaching Mr A from behind, Mr Bracey struck Mr A with the hammer. Fortunately, Mr A moved just at the right time so that the blow did not strike him with full force but, rather, in the Judge’s words, was a “glancing blow to his head”.[4]
[4]Judgment under appeal, above n 1, at [9].
[7]        A struggle ensued. Mr Bracey was ultimately restrained and the police were called. Mr A suffered rib fractures, a laceration to his forehead, and other injuries. Although these injuries were not of lasting effect, as the Judge said, the attack would have a psychological…

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.

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Details

Case: [2024] NZCA 533
Decision Date: 21 October 2024 at 10.30 am

CaseChat Overview and Summary

In this appeal, Michael Alexander Bracey challenges the sentence of eight years’ imprisonment imposed by the District Court for wounding with intent to cause grievous bodily harm, while accepting the concurrent sentence for possession of an offensive weapon. The Court of Appeal, comprising Cooke, Peters, and Grice JJ, assessed the appeal against the established legal framework, particularly section 244 of the Criminal Procedure Act 2011. The appellant's counsel, A B Fairley, argued that the starting point for the wounding charge was too high, and the discount for time spent on electronically-monitored bail was insufficient. The Court had to determine if the sentence imposed was erroneous and warranted a different sentence.

The court examined the appellant's arguments concerning the starting point and discount applied. The Crown contended that the aggravating factors, such as premeditation, use of a weapon, and the seriousness of the injury, justified a higher starting point. Conversely, the appellant's counsel argued that the factors did not warrant a starting point in band three and that the victim was not particularly vulnerable. The Court had to decide whether the aggravating factors warranted a starting point in band three or if it should be in band two, and whether the discount for time on bail was appropriate.

The Court of Appeal found that while the offending was premeditated, not all aggravating factors were present to a high degree. The use of a weapon and attack to the head did not warrant a high degree of severity, and the victim was not particularly vulnerable in the sense of Taueki. The court determined that a starting point in the middle of band two, specifically seven years and six months, was more appropriate. After applying the reductions for time spent on bail and prior good character, the court concluded that the appropriate sentence was six years and six months’ imprisonment. The concurrent sentence for possession of an offensive weapon remained unchanged.

The Court of Appeal allowed the appeal against the sentence, setting aside the eight-year imprisonment for the wounding charge and substituting it with a sentence of six years and six months. The concurrent sentence for possession of an offensive weapon remained at nine months.

Orders