Tyacke v Police
[2021] NZHC 778
•14 April 2021
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 that is those addictions and probably a relationship. Neither of those are I suspect helping in that regard but I hope that when you are released that you are able to reconnect with the drug and alcohol people and Probation will be able to assist you with that with the release conditions. I really do hope that you are able to dig deep and get all the motivation that you need for your sake and for your children’s sake when you are released...(emphasis added)
[5] There was no mention of a special condition not to associate with Mr Tyacke’s partner in his reasoning. However in the Court’s record of the hearing, the Judge has made and signed the following handwritten note:
Convicted and sentenced 9 months imprisonment. Release conditions to extend 6 months beyond sentence expiry date as per PO report.
[6]The recommended special conditions in the pre-sentence report were:
1. Not to possess, consume or use any alcohol or drugs not prescribed to you.
2 See Ripia v R [2011] NZCA 101 at [15].
2. You are not to associate with or contact Ms Rosie O’Brian without the prior written approval of a Probation Officer.
3. To attend an alcohol and drug assessment and complete any intervention recommended including residential treatment.
[7] The authorities are proceeding on the basis the sentence imposed by the Judge included all three of these special conditions. I note that I have obtained a copy of the warrant for detention signed by the Judge, but this does not specify the release conditions on the page signed by the Judge.
Assessment
[8] I do not accept Mr Robinson’s submission that there is no rational connection between the challenged condition and the risk of reoffending and the promotion of rehabilitation and reintegration referred to in s 93(3) of the Sentencing Act 2002.3 As the Judge mentioned in the sentencing notes, Ms O’Brian has been closely associated with Mr Tyacke and has had a role or presence during the offending for which he was convicted. Their addiction issues are inherently interrelated. Keeping them apart for a period following the term of imprisonment could be a legitimate attempt to control the risk of reoffending arising from their addiction issues and associated offending. That distinguishes this case from that of Te Whatu v Department of Corrections relied upon.4
[9] But although such a condition might legitimately be imposed for these reasons, it is unclear to me whether it was, or should be imposed in the present case. This is a relationship of 15 years, and they have four children together. It can be said that a condition that Mr Tyacke not associate with his partner on release for a period of six months sets him up to fail. In that respect the drug and alcohol assessment report states:
Mr Tyacke characterises his relationship with Rosie as being somewhat co- dependent, with a share methamphetamine addiction, which perpetuates his use, along with his current environment in MSD accommodation. During this assessment he appeared ambivalent about stopping using methamphetamine, the most prominent reason for stopping being his desire to regain custody of
3 See Patterson v R [2017] NZCA 66 at [11].
4 Te Whatu v Department of Corrections [2017] NZHC 3233. See also Manuel v Police [2019] NZHC 816 at [26]–[27].
the children and have a more “normal life”. Mr Tyacke believes that they would both need to stop using methamphetamine for either of them to be successful. His ongoing sense of connection to his children remain his strongest protective factor and he identifies the need for stable housing as essential to stop using substances and is concerned that if he stopped using first then their relationship would likely end, so is only wanting to stop if Rosie was to stop first, however feels she is not currently highly motivated to do so, thus Mr Tyacke feels somewhat stuck in his current circumstances.
[10] It follows that any non-association condition might need to be carefully considered before it was imposed under s 93. There has been no direct assessment by the Judge of a kind that might be appropriate. That may illustrate that the Judge did not intend to impose such a condition.
[11] Under s 31 of the Sentencing Act the reasons for a Court’s decision should be given in the sentence delivered in open court. The sentence delivered in open court here did not impose the challenged condition. The additional handwritten note, even if it can be relied upon to more fully understand what was said in open court, is itself ambiguous as it could simply have been referring to the period of the special conditions that the Judge had expressly imposed.
[12] In the circumstances it seems to me that the most appropriate course is to allow the appeal and to remit the matter to the Special Circumstances Court under s 251 of the Criminal Procedure Act to reconsider what special release conditions will apply. Pending reconsideration by the Court the special conditions referred to in [6] above will remain in effect to preserve the status quo.
Cooke J
Solicitors:
Robinson Legal, Wellington for Appellant Luke Cunningham Clere for Respondent
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