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.…

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: [2022] NZHC 3265
Decision Date: 6 December 2022

CaseChat Overview and Summary

The case involves an appeal by Tyrone James Bracken against a sentence imposed by Judge Tompkins in the Wellington District Court. Bracken was sentenced to five months of community detention, 12 months of intensive supervision, and a reparation payment of $1,144, following convictions for burglary, common assault, and resisting police. Bracken appeals against the community detention sentence, arguing that it was manifestly excessive due to the judge's failure to adequately discount the time he spent on electronically monitored (EM) bail and pre-sentence detention. He does not challenge the intensive supervision sentence or the reparation payment.

The primary legal issue the court had to decide was whether the sentence imposed was manifestly excessive. This required the court to consider whether the judge's failure to explicitly account for the time spent on EM bail and pre-sentence detention amounted to an error that vitiated the exercise of the original sentencing discretion. The court had to determine if the sentence of five months' community detention was manifestly excessive given the time Bracken spent on remand and on EM bail, and whether a different sentence should have been imposed.

The court found that despite the confusing state of the law on accounting for pre-sentence detention in non-custodial sentences, the judge had, in effect, meaningfully considered the time Bracken spent on EM bail and pre-sentence detention. The court noted that while the exact mechanics of the discount were not clear from the sentencing notes, Judge Tompkins had acknowledged these factors in deciding to impose a sentence of community detention rather than imprisonment or home detention. The court concluded that converting the accepted sentence of imprisonment or home detention to the less restrictive sentence of community detention was a meaningful acknowledgment of the time spent on remand and EM bail. Given the less restrictive nature of community detention compared to home detention, the court held that the sentence of five months' community detention was not manifestly excessive.

The court dismissed the appeal, finding no error in the sentence imposed by the judge.

Orders