TYRONE JAMES BRACKEN AND THE KING

[2022] NZHC 3265

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-485-000062

[2022] NZHC 3265

BETWEEN

TYRONE JAMES BRACKEN

Appellant

AND

THE KING

Defendant

Hearing:

1 December 2022

Appearances:

L A Caris for the Appellant

C T Hislop and S Deng for the Respondent

Judgment:

6 December 2022

ORAL JUDGMENT OF GENDALL J

Introduction

[1]    On 19 September 2022 the appellant, Mr  Bracken,  was  sentenced  by  Judge Tompkins in the Wellington District Court on charges of burglary, common assault, and resisting police. The sentence imposed was five months’ community detention, 12 months’ intensive supervision, and reparation of $1,144. The appellant appeals against part of this sentence, being his community detention sentence, on the basis it was manifestly excessive because the Judge erred in failing to give an adequate discount either for the time spent on EM bail, or for the time spent on pre-sentence detention. No issue is taken with the sentence of intensive supervision, or the reparation payment, but the appellant submits that a shorter period of community detention is appropriate here.

BRACKEN v R [2022] NZHC 3265 [6 December 2022]

Factual background

[2]    The circumstances of the offending are set out in a sentence indication accepted in this case previously by the appellant. By way of summary, the appellant entered a property undergoing renovation and was attempting to open a back window of the property with a crowbar, when he was observed by a neighbour who then called the owner of the property. The owner promptly arrived, confronted the appellant and began to take photographs of the appellant. This caused the appellant to begin to take steps to flee.

[3]    He used a push bike to shove the owner with enough force to cause him to fall to the ground, causing scratches, grazes, and bruising to the owner’s body. This resulted in medical attention being required and ongoing emotional trauma for the owner. When the appellant was located by police at his residence shortly thereafter, he barricaded himself with his young daughter in a room for a period, resulting in the resisting police charge.

Sentence

[4]    On 24 August 2022 the appellant received, and he later accepted, a sentence indication given by Judge Tompkins in the District Court. That indication took a starting point of 12 months’ imprisonment on the burglary charge with an uplift of four months’ imprisonment for the common assault and resists police charges. It also indicated a full guilty plea discount would be available, first, if the indication was accepted, and secondly, if a “relatively substantial” reparation payment was made as well. The indication was expressly subject to any pre-sentence report and the availability of a suitably-assessed address that was appropriate, in which case home detention would be available as a possible outcome.

[5]    At the sentencing on 19 September 2022 a pre-sentence report was available. This recommended a sentence of community detention and intensive supervision at the address where the appellant had successfully completed EM bail. The Judge considered that given the time spent on remand and on EM bail, it was appropriate to adopt the report’s recommendation and accordingly  he  imposed  a  sentence  of  five months’ community detention and 12 months’ intensive supervision.

Approach to appeal

[6]    Turning now to the approach to be taken on this appeal, an appeal against sentence must only be allowed if the Court is satisfied that for any reason there was an error in the sentence imposed and a different sentence should have been imposed. The Court must dismiss the appeal in any other case.

[7]    In an appeal against sentence the Court must proceed on an “error principle” whereby there “must be an error vitiating the exercise of the original sentencing discretion.”1 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.2 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.3

[8]    An appellate Court will not intervene unless a sentence was outside the range available to the sentencing Judge. Thus, for the appeal here to be successful, it must be shown that the end sentence of five months’ community detention was manifestly excessive and a different sentence should be imposed.

Analysis

[9]    Turning now to my analysis in this matter, it seems to me apparent from the authorities that the law in relation to accounting for pre-trial detention in non-custodial sentences is in an entirely confused state. As submissions from both parties here demonstrate, cases have adopted various approaches on the issue of accounting for such time spent in pre-sentence custody and the Court of Appeal has yet to definitively and fully rule on this issue.

[10]   Ms Caris, counsel for the appellant, has directed me towards a number of divergent cases in this regard. They include Longman v Police4 in which the Court

1      Tutakangahau v R[2014] NZCA 279. 2   Kumar v R [2015] NZCA 460 at [81]. 3   Ripia v R [2011] NZCA 101 at [15].

4      Longman v Police [2017] NZHC 2928

considered “full equivalence” to the be the norm; Kidman v R5 in which the Court rejected any prescriptive method of accounting for  time  spent  on  remand; Vakapora v Police6 and Wharrie v R7 in which the Court adopted a “two for one” approach, and Diaz v R8 which the appellant relies on as establishing a novel “one for two” discount.

[11]   As the Crown rightly points out, the case law here is contradictory and the consistent point which has remained through those cases is that the exercise of accounting for pre-sentence custody is an evaluative exercise.9

[12]   Fortunately, I do not consider it is necessary in this case to add to the “noise” on this issue given my conclusions, as will be apparent shortly.

[13]   The appellant maintains the manner in which Judge Tompkins here factored into the sentencing process the periods of time spent on EM bail and on pre-sentence detention was unclear. However, I do not consider this is the case. While the exact mechanics of the discount are not clear on the sentencing notes, I am satisfied the Judge did account for those factors in a meaningful way in deciding to impose a sentence of community detention in lieu of a sentence of imprisonment or home detention in the first place.

[14]   As I have noted, the sentencing indication accepted by the appellant indicated an end sentence of imprisonment but went on to say that as the sentence would be a term of imprisonment of short duration, subject to the pre-sentence report and the availability of a suitably-assessed address, home detention would be available as a possible outcome.

[15]   The pre-sentence report was then received and duly considered. The report ultimately recommended the sentence of community detention imposed with a curfew to reside at the property each night from 7 pm until 7 am. Added to this sentence was

5      Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.

6      Vakapora v Police [2022] NZHC 493.

7      Wharrie v R [2019] NZHC 633.

8      Diaz v R [2021] NZHC 426.

9      Above at n 5 and n 6.

the intensive supervision requirement which included conditions for alcohol and drug counselling or treatment and the completion of a psychological assessment as well as a requirement for any treatment or counselling resulting from that assessment. By way of “other possible sentencing options”, the report noted that home detention was  also available as an option, but it assessed intensive supervision coupled with community detention as “sufficient to both mitigate Mr Bracken’s risk and to provide the necessary support.”

[16]   It is then noteable that in ultimately sentencing the appellant, Judge Tompkins, although not mentioning directly time considerations relating to time spent on remand and EM bail, did state the following:

[9] The pre-sentence report notes that Mr Bracken is at moderate risk of alcohol, methamphetamine, and cannabis abuse but there is available a suitable address for an electronically monitored sentence with Mr Bracken’s uncle. That being the address where electronically monitored bail has been successfully served. Given both the time spent on remand and the time spent on electronically monitored bail, it is appropriate that the recommendation in the pre-sentence report of community detention be imposed. Accordingly, on each of the three charges Mr Bracken is convicted and sentenced to five months’ community detention on the conditions set out in the pre-sentence report.

[emphasis added]

[17]   I  accept  that  in  expressing  the  words  I   have   emphasised   above,   Judge Tompkins recognised the time the appellant had spent on remand and EM bail as then a factor in his decision to impose the much less restrictive ultimate sentence of community detention.

[18]   Home detention cannot be seen as equivalent to community detention. Whereas a sentence of home detention would have required the appellant to be at the address full-time, the sentence of community detention, which was imposed, only requires the appellant to be at that address from 7 pm to 7 am each night. As it is, the appellant is otherwise unrestricted in his movements during the day, provided he returns to the approved address by the appointed curfew. Indeed, this lesser degree of restiveness of community detention, as opposed to home detention, is reflected in its placement below home detention in the statutory hierarchy of sentences under the Sentencing Act 2002.

[19]   The sentencing indication accepted by the appellant indicated a sentence of imprisonment or home detention. I accept that converting the sentence that was indicated and accepted by the appellant from one of imprisonment of short duration or home detention to the far less restrictive terms attached to a sentence of community detention was a meaningful acknowledgement here of the time the appellant spent on remand and EM bail. Accordingly, I do not consider the final sentence imposed of five months’ community detention here was manifestly excessive.

[20]   As a final point it needs to be said that even if the Judge here had accounted for the time the appellant spent on remand and EM bail in an arithmetical manner, the Crown’s position, albeit in an area of law that is rightly described as “in something approaching flux”10 is that any discount for time in pre-sentence custody might have resulted in an end sentence of some three and a quarter months’ home detention. In those circumstances, the sentence of five months’ community detention could not be described as manifestly excessive due to the less restrictive nature of community detention vis-à-vis home detention.11

[21]   Even taking the appellant’s contentions before me at their extreme, resulting perhaps in an end calculation of one and a half months’ home detention, in my view a sentence of five months’ community detention arguably is still less restrictive and in any case could not be seen as manifestly excessive in all the circumstances here.

[22]   For all these reasons, I do not consider Judge Tompkins erred in his decision under appeal or that the sentence he imposed was manifestly excessive. This appeal is dismissed.

Gendall J

Solicitors:

L A Caris Barrister for the Appellant

Luke Cunningham & Clere for the Respondent

10     Above at n 6.

11     Suckling v Police[2019] NZHC 463.