Tyacke v Police - [2021] NZHC 778

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-15

[2021] NZHC 778

BETWEEN
CHRISTOPHER ASHLEY TYACKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 April 2021

Appearances:

M G Robinson for Appellant

L R van der Lem for Respondent

Judgment:

14 April 2021

JUDGMENT OF COOKE J

[1] Mr Tyacke appeals against an aspect of the sentence that was imposed on him in the Special Circumstances Court on 8 December 2020.1 He was sentenced on two charges of burglary contrary to s 231 of the Crimes Act 1961, one charge of theft over
$1,000 contrary to ss 219 and 223(b), one charge of possession of an offensive weapon or disabling substance contrary to s 202A(4)(a), one charge of unlawfully getting into a motor vehicle contrary to s 226(2), and one charge of driving while disqualified contrary to ss 32(1)(a) and 32(3) of the Land Transport Act 1998. He was convicted and discharged on other less serious charges. He was sentenced to 9 months’ imprisonment and made subject to a release condition lasting for 6 months.

[2] The focus of the appeal is the special release conditions. In particular Mr Tyacke challenges the special condition that during the six months he is not able to contact his partner without prior written approval of the Probation Officer.

1 New Zealand Police v Tyacke [2020] NZDC 25768.

TYACKE v NEW ZEALAND POLICE [2021] NZHC 778 [14 April 2021]

Mr Tyacke has been in a relationship with his partner for some 15 years, and they have four children together currently under the care of Mr Tyacke’s father.

[3] This is an appeal against a sentence under s 244 of the Criminal Procedure Act 2011. Under s 250 the appeal must be allowed if there is an error in the sentence imposed and a different sentence should be imposed. The focus is on the final sentence and whether it is within the available range rather than the exact process by which it was reached.2

[4] There is uncertainty on whether the challenged special conditions were actually imposed by the Judge. In calculating the final period of imprisonment, and then imposing the special conditions the Judge said:

[6] There is then, importantly, your guilty plea and I reduce that sentence to nine months’ imprisonment to take that into account as well, which is not too far off Mr Tyacke, you being released shortly. So I can give leave for home detention but I suspect there will be inadequate time to deal with it in that way, but I will make six months’ release conditions to undertake any counselling or programmes as directed by Probation.

[7] So Mr Tyacke, you have got young children and I am sure you are like any other father. You want to be a father that they are proud of. You want to be a father that is in their life and to be there for them and really the key to…

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 Tyacke v Police

Details

AGLC: Tyacke v Police [2021] NZHC 778
Case: [2021] NZHC 778
Decision Date: 14 April 2021

CaseChat Overview and Summary

In this case, Mr. Tyacke appealed against a particular aspect of the sentence imposed by the Special Circumstances Court on December 8, 2020. Mr. Tyacke was sentenced for various offenses, including burglary, theft, possession of an offensive weapon, unlawfully getting into a motor vehicle, and driving while disqualified. The primary focus of the appeal was the special release conditions imposed on Mr. Tyacke, particularly the condition that he could not contact his partner without prior written approval from the Probation Officer for a period of six months.

The legal issue before the court was whether the special release condition that Mr. Tyacke could not contact his partner without approval was correctly imposed under the Sentencing Act 2002. The court had to determine if the condition was rationally connected to the risk of reoffending and the promotion of rehabilitation and reintegration, as required by the Act. The court also had to consider whether the condition was appropriate given the nature of Mr. Tyacke's relationship with his partner, which had lasted for 15 years and resulted in four children together.

The court found that while such a condition could be legitimate in certain circumstances, it was unclear whether it was intended to be imposed in this case. The court noted that Mr. Tyacke's addiction issues and offending were interrelated with his partner, and that separating them for a period could help control the risk of reoffending. However, the court also recognized that the condition might set Mr. Tyacke up for failure, given the long-term nature of his relationship and the co-dependency with his partner. The court determined that the condition was not clearly imposed by the Judge, as it was not mentioned in the sentencing notes, and the additional handwritten note was ambiguous. The court concluded that the most appropriate course was to allow the appeal and remit the matter to the Special Circumstances Court to reconsider the special release conditions. The existing special conditions would remain in effect pending reconsideration by the Court.

Orders