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R v Bracken

R v Bracken

Case [2021] NZHC 2615 1 October 2021

Criminal Liability

Sentencing

Accessory After the Fact

Flight from Scene

Negligence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-002497

[2021] NZHC 2615

THE QUEEN

v

NATALIE JANE BRACKEN

Hearing: 1 October 2021 (by VMR)

Appearances:

B Dickey, A McClintock and N Herewini for Crown A Couchman for Defendant Bracken

Sentencing:

1 October 2021

SENTENCING NOTES OF VENNING J

Solicitors: Meredith Connell, Auckland Counsel: A Couchman/K Hamblin, Auckland

R v BRACKEN [2021] NZHC 2615 [1 October 2021]

[1] Natalie Bracken you are for sentence on one charge of being an accessory after the fact to wounding with intent to cause grievous bodily harm.

[2] On 19 June 2020 you were staying at an address at 84 Reynella Drive. You heard a motor vehicle crash and went out onto Reynella Drive. Your attention was first drawn to a woman who was screaming. Her husband had been injured in the crash involving Mr Epiha’s car. You went to assist her. At about the same time you saw Mr Epiha shooting at Constable Goldfinch and Constable Hunt. In all Mr Epiha fired 14 shots at the police officers, four of them hitting Constable Goldfinch and, relevantly for your sentence, four of them hitting and ultimately killing Constable Hunt.

[3] After he had shot Constable Hunt Mr Epiha approached you and your associates Mr Tiatia and Ms Hetherington, who by this time had joined you on the side of the road. Mr Epiha was still carrying the semi-automatic weapon. He wanted to be driven away before any further Police arrived. Mr Tiatia and Ms Hetherington ran inside the property leaving you with Mr Epiha.

[4] The cell phone video of what happened next is clear for all to see. You tried to get into the driver’s door of Mr Tiatia’s Mazda that was parked at the side of the road but it was locked. You ran back inside number 84 and returned with the keys, unlocked the car door and drove Mr Epiha away. While you were inside the property getting the keys Mr Epiha remained standing by the passenger door of the car. During this time, Constable Hunt lay dying on the road. You then drove Mr Epiha to 105 Amreins Road, Taupaki, the home of his associate, Mr Conza. After dropping Mr Epiha at that address you had no further involvement with him. But on your way back from Amreins Road you drove past a marked police patrol car without stopping or attempting to tell them what had happened and where Mr Epiha was.

[5] There are a number of factors relevant to your sentence. I accept there is no evidence that you had any prior association with Mr Epiha. You were in Reynella Drive that morning as a matter of chance. Next, during the course of the trial the charge against you was reduced from a charge of being an accessory after the fact of

murder to the charge you were ultimately convicted of. The maximum sentence for that charge is five…

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 R v Bracken

Details

AGLC: R v Bracken [2021] NZHC 2615
Case: [2021] NZHC 2615
Decision Date: 1 October 2021

CaseChat Overview and Summary

Natalie Jane Bracken was sentenced by Venning J in the High Court of New Zealand, Auckland Registry, for being an accessory after the fact to wounding with intent to cause grievous bodily harm. The court had to decide the appropriate sentence for Bracken, taking into account the nature and circumstances of the offence, her culpability, the effect on the victim’s family, the desirability of consistency with sentencing for similar offending, and the imposition of the least restrictive sentence appropriate. The maximum sentence for this charge is five years’ imprisonment.

Bracken drove the offender, Mr Epiha, away from the scene after he had shot two police officers, four of which hit and killed Constable Hunt. She did this despite being aware of the seriousness of Mr Epiha's actions and had the opportunity to avoid assisting him. As a result of her actions, Mr Epiha was able to avoid arrest at the time, take the firearms he had used in the attack away from the scene, and had the opportunity to either use them again or dispose of them. The court found that Bracken's actions were more serious than those in similar cases, such as Keepa and Duncan v R, as she directly observed Mr Epiha’s actions before assisting him.

After considering Bracken's personal circumstances and the time she spent on electronically monitored bail, the court determined a starting point of 14 months’ imprisonment. The court uplifted this by one month, resulting in an adjusted starting point of 15 months. After applying a credit of three months for Bracken's positive attributes and the steps she took to turn her life around, the court reduced the sentence to 12 months. However, the court decided that a sentence of imprisonment was required to reflect the seriousness of Bracken's actions and to denounce and deter actions such as assisting a dangerous criminal to leave the scene of a crime and avoid arrest. As a result, the court sentenced Bracken to 12 months’ imprisonment, subject to the standard conditions under the Parole Act 2002, and imposed the special conditions proposed in the pre-sentence report relating to the sentence of imprisonment.

Orders