Wratt v Police [2018] NZHC 2477 (21 September 2018)

Last Updated: 10 October 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2018-485-55 [2018] NZHC 2477

DARRYL MARK WRATT

v

_{NEW ZEALAND POLICE}

Hearing:	14 September 2018
Appearances:	L A Caris for the Appellant T R Bain for the Respondent
Judgment:	21 September 2018

_{JUDGMENT OF CULL J}

[1] Mr Wratt breached a protection order twice. The second time occurred while he was on electronically monitored bail (EM bail) for the first breach. He pleaded guilty to the two charges of breaching a protection order.¹ On 31 July 2018, Judge Johnston sentenced Mr Wratt to two months’ community detention and 12 months’ supervision.² Mr Wratt’s offer to pay the victim $2,500 in emotional harm reparation was accepted and ordered.

[2] Mr Wratt appeals his sentence on the basis it is manifestly excessive. He submits the starting point was too high, the uplifts and discounts imposed were

¹ Domestic Violence Act 1993, ss 19(2)(e), 49(1)(b) and 49(3). Maximum penalty three years’

imprisonment.

² _{New Zealand Police v Wratt [2018] NZDC 16214.}

WRATT v NEW ZEALAND POLICE [2018] NZHC 2477 [21 September 2018]

incorrect and the reparation award was not dealt with properly. The appropriate sentence, he submits, is supervision.

[3] The Crown opposes the appeal and submits the sentence imposed was within the available range and, if anything, was lenient.

Factual background

[4] Mr Wratt and the victim were in a relationship and have two children together. Mr Wratt has a history of offending against the victim and has previously been convicted of assaulting her. He has also breached the same protection order on three previous occasions (in 2008, 2007 and 2005).

[5] On 29 March 2005, a final protection order was issued by the District Court against Mr Wratt to protect the victim.

[6] The first charge of breaching this protection order stemmed from Mr Wratt’s actions between 20 October 2017 and 28 March 2018. On 20 October 2017, Mr Wratt noticed a friend request on the victim’s Facebook and became convinced that she was having an affair. He later demanded that he have access to all of her social media platforms and email addresses to check that she was not in contact with other men. His behaviour got increasingly worse as he sought to control the victim’s life, including installing a phone tracking application (although there is some dispute about this) and demanding to know where she was at any particular time.

[7] Mr Wratt constantly verbally abused the victim, calling her derogatory names and at times doing so in front of their children. During the week leading up to police intervention in March 2018, Mr Wratt would constantly wake the victim and interrogate her about items he had found on her computer hard drive. As a result of the continual abuse, the victim became anxious and emotionally drained to the point of resigning from her employment.

[8] The second charge of breaching the protection order arose from Mr Wratt’s behaviour between 26 April and 17 May 2018, when he was on EM bail in respect of the first charge. During this period, Mr Wratt used a cellphone to contact the victim

and sent her over 100 text messages. In explanation, he said he was contacting her to save his children.

District Court decision

[9] In setting the starting point of 12 months’ imprisonment, the Judge identified the following aggravating features of the offending:

(a) the second offence was committed whilst Mr Wratt was on EM bail for the first breach;

(b) the resulting harm on the victim and the profound impact on her and her employment;

(c) Mr Wratt’s manipulative and controlling behaviour, which occurred over a lengthy period of time;

(d) the offending involved premeditation; and

(e) the victim was vulnerable.

[10] The Judge uplifted this starting point by an additional two months to reflect that Mr Wratt was on EM bail at the time of the second offence and for his relevant previous convictions.

[11] In Mr Wratt’s favour, the Judge identified his guilty pleas and remorse, which was exhibited in a letter written to the Court and the victim. From the final 14 months’ starting point, the Judge gave a 35 per cent discount to recognise these factors. This produced a sentence of nine months’ imprisonment.

[12] The Judge also took into account the time Mr Wratt had spent in custody on remand and on EM bail, “albeit that he offended by sending numerous texts whilst on that bail.”³

³ Wratt, above n 2, at [19].

[13] In light of Mr Wratt’s personal circumstances and background, the nature and seriousness of the two charges, the recommendations of the pre-sentence report and relevant cases, the Judge was satisfied a sentence of community detention was appropriate. The Judge said:⁴

I am satisfied that a sentence of community detention will reduce the likelihood of Mr Wratt’s further offending by restricting his movements during the specified times, while making him accountable and responsible for his offending, and also acting as a deterrent and denouncing his behaviour.

[14] The Judge imposed a final sentence of two months’ community detention and

12 months’ supervision, with conditions of attending a family violence programme, alcohol and drug programme and any counselling arising from those assessments. Mr Wratt offered to pay reparation of $5,000. After hearing from counsel, the Judge ordered emotional harm reparation to the victim of $2,500 (at $25 per week).

Approach to appeal

[15] This appeal is brought under s 250 of the Criminal Procedure Act 2011 as an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.⁵ 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.⁶

Grounds of appeal

[16] Mr Wratt appeals his sentence on the following grounds:

(a) the starting point adopted was too high;

(b) the Judge erred in adopting a two-month uplift for personal circumstances;

(c) the discounts given for Mr Wratt’s mitigating factors were insufficient, including the time he had spent in custody and on EM bail; and

⁴ At [20].

⁵ As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

⁶ Ripia v R [2011] NZCA 101 at [15].

(d) the reparation award was not dealt with appropriately.

[17] These grounds, and the parties’ positions in relation to each, are discussed below.

Starting point

Parties’ positions

[18] Ms Caris, counsel for Mr Wratt, submits the Judge’s 12 month starting point was manifestly excessive. When compared with other relevant cases, it is submitted that a starting point of eight to nine months’ imprisonment is appropriate. Counsel submits the Judge erred in the way he dealt with the aggravating factors of the offending, as follows:

(a) Mr Wratt’s manipulative and controlling behaviour should not have been categorised as an aggravating factor of his offending and the Judge erred in using the victim impact statement to inform the Court about Mr Wratt’s actions.

(b) The summary of facts does not disclose anything on which the Judge could reasonably have concluded that there was premeditation. Although the offending occurred over a period of time, Mr Wratt’s actions were not calculated but occurred because he was distressed at the dissolution of his 14-year relationship due to suspected infidelity.

(c) The vulnerability of the victim should not have been considered as the charge inherently accounts for a degree of vulnerability and there was no additional vulnerability to be considered.

[19] As material relating to a further charge of breaching the protection order, which was withdrawn, remained on the Court file at the time of sentencing, counsel further submits there is a real and appreciable risk that this material would have negatively coloured the Court’s view of Mr Wratt, even though the Judge did not refer to the

material in his sentencing notes. Counsel did not appreciate that the material was on the file and so did not address it in submissions.

[20] The Crown submits the Judge did not err in imposing a starting point of 12 months’ imprisonment. Even if there were procedural errors in setting the starting point, the Crown submits the final starting point imposed was clearly available to the Judge. The Crown submits that in assessing the gravity of Mr Wratt’s offending the Court must be guided by the specific objectives of the Domestic Violence Act 1995,

including ensuring that there is effective legal protection for victims as well as sanctions and enforcement when there are breaches.⁷ The Crown further submits that repeated breaches of a protection order are also relevant to assessing the gravity of offending.⁸

Discussion

[21] There is no tariff decision for breaches of protection orders, as this offending varies enormously in culpability and in the type of threat posed to the protected person.⁹

[22] Although Ms Caris may be correct in principle, that the gravity of an offender’s behaviour should not be assessed from a victim impact statement, the summary of facts here described Mr Wratt’s controlling and manipulative behaviour, independent of the victim impact statement. In the Judge’s sentencing notes, there is nothing to indicate that the Judge took into account any irrelevant or inaccurate material.

[23] I accept the Crown submission that the Judge was correct in characterising the aggravating factors of the offending. The extent of Mr Wratt’s controlling behaviour is clear from the first breach of the protection order. It could not reasonably be regarded as spontaneous offending, particularly when Mr Wratt continued to disregard the protection order after being charged in respect of the first breach. The victim was vulnerable because she was living with Mr Wratt at the time of the first breach,¹⁰ she

⁷ Domestic Violence Act 1995, s 5(1)(b) and 5(2)(e).

⁸ R v Nathan CA209/06, 29 November 2006 at [25]; and Mitchell v R [2013] NZCA 583, (2013) 29

FRNZ 498 at [12].

⁹ Iyer v New Zealand Police [2017] NZHC 353 at [11]; and Anderson v R [2016] NZCA 346 at [26].

¹⁰ Solicitor-General v Hutchison [2018] NZCA 162 at [27].

had resigned from her job at the time of the second breach, and her attempts to leave him were inhibited by the children they share. I find that there was sufficient evidence of Mr Wratt’s behaviour for the Judge to reach the conclusions he did about the gravity of Mr Wratt’s offending.

[24] I also agree with the Crown’s submission that the victim was fairly characterised as vulnerable. In the recent case of Solicitor-General v Hutchison, the Court of Appeal, in the context of a family violence case, observed:¹¹

Co-occupation as a family unit involves a social contract of mutual care and nurture. Necessarily it also involves inherent vulnerability to opportunistic breach of that social contract when physical violence is employed. One cannot realistically or effectively lock the door against a co-occupant. Where the victim is a family member, dependent on the offender for emotional and physical support, the alternative aggravating factor of vulnerability almost inevitably will be triggered. It would be a rare case of family violence where that was not so.

[25] Although physical violence was not employed in this case, it is evident that Mr Wratt was controlling and manipulative towards the victim over a period of months and while they lived together. The victim was dependent on him and he is the father of her two children. He often verbally abused her in front of their children. Her life at home was dictated by his behaviour over this period. I consider the Court of Appeal’s comments are applicable here and the victim was reasonably described as vulnerable.

[26] In relation to the other procedural matter raised by Ms Caris, namely the unredacted summary of facts that was before the Judge, I consider little turns on the differences in the summary of facts, before and after its amendment. The most notable deletion was the reference to Mr Wratt’s “paranoiac” behaviour and Ms Caris accepted that the differences between the two summaries of facts were insignificant. Ms Caris also raised with the Court that a Facebook post from Mr Wratt should not have been provided to the Court or been placed on the Court file. As the Judge made no reference to it, I take this matter no further.

¹¹ At [27].

[27] Considering the lengthy period over which Mr Wratt breached the protection order, namely from 20 October 2017 to 28 March 2018, I find it was open to the Judge to observe that Mr Wratt’s behaviour was premeditated, particularly by the time of the second breach, when Mr Wratt was already charged for the first breach.

[28] Of the cases provided by counsel to assist with assessing the appropriate starting point, I consider the following are most relevant to compare with Mr Wratt’s offending:

(a) Kumar v Police:¹² a starting point of 12 months’ imprisonment was adopted on appeal for three breaches of a protection order. Mr Kumar had a history of sending the victim unsolicited text messages and had one previous protection order breach. The breaches in the present case occurred when Mr Kumar confronted his former partner on the street, yelled at her, grabbed her wrist and took her cellphone off her. On another occasion, he sent two text messages to the victim which were acknowledged as being psychologically abusive. At this time he was on bail. A starting point of 12 months’ imprisonment was imposed on appeal, along with a three month uplift to take into account the previous protection order breach, that some of the offending occurred while he was on bail and for an unrelated driving while disqualified charge.

(b) Waterman v Police:¹³ a starting point of 18 months’ imprisonment was adopted on appeal for four breaches of a protection order. The breaches involved going to his ex-partner’s address and refusing to leave when asked, telephoning the victim, calling out to the victim’s child whilst standing outside her house, and coming up to her while she was in her car, yelling at her and taking her cellphone. Peters J held that the aggravating factors of the offending included that Mr Waterman had gone to the address several times, at night or early in the morning, used intimidating conduct, that there were multiple repeated breaches and

¹² Kumar v Police [2015] NZHC 1575.

¹³ Waterman v Police [2016] NZHC 247.

that the order had been in place since 2006 and breaches were still occurring.

(c) Woods v Police:¹⁴ a starting point of 18 months’ imprisonment was imposed on appeal for ten charges of breaching a protection order. Mr Woods breached the order on several occasions over a ten-month period. The breaches involved sending the victim sinister text messages (three), emails (four), calling her twice, visiting her street, following her in public places, sending her a parcel with a card and gifts, calling his son and asking him to talk to the victim for him and getting a friend of his to contact the victim. On appeal, Wylie J observed that the conduct was not violent or threatening but was persistent and repeated. They were committed while Mr Woods was on bail and on one occasion, while he was in custody. Wylie J described the conduct as “prolonged harassment” on a number of discrete occasions and in defiance of court orders.¹⁵

(d) Beck v Police:¹⁶ Mr Beck was sentenced to 15 months’ imprisonment for two charges of breaching a protection order in relation to his former partner and one charge of breaching release conditions. He sent 45 text messages to the victim stating, amongst other things, “I’m going to put you in a coffin”. The second protection order breach arose when he sent the victim numerous text messages and missed calls and then unsuccessfully tried to get into the front door of her house. Mr Beck had a history of domestic violence and protection order breaches (three breaches) against the same victim. Mander J upheld the sentence on appeal because of the repeated nature of Mr Beck’s breaches of the order, his obvious intent to psychologically abuse his victim, his persistence and domestic violence conviction history. Mander J held that an effective starting point of 15 months’ imprisonment was

_{available for both charges.}

¹⁴ Woods v Police [2015] NZHC 305.

¹⁵ At [38].

¹⁶ Beck v Police [2014] NZHC 931.

[29] In light of the above cases, a starting point of 12 months’ imprisonment was available and was not manifestly excessive. Mr Wratt’s behaviour is more serious than that in Kumar and Beck, where starting points of 12 and 15 months’ imprisonment were adopted respectively. Although not as serious as that in Woods or Waterman, Mr Wratt’s behaviour has similar hallmarks in that it was repetitive, took place over a prolonged period of time and sought to control the victim. I consider a starting point of 12 months’ imprisonment was available and appropriate in these circumstances.

[30] The other cases referred to by counsel are not particularly relevant here, because they involve physical violence towards a protected person,¹⁷ involve less serious conduct than Mr Wratt’s offending,¹⁸ or involve markedly different conduct.¹⁹

Uplifts to the starting point

Parties’ positions

[31] Ms Caris submits the Judge erred in adopting an uplift of two months’ imprisonment for Mr Wratt’s offending while subject to EM bail and for his relevant prior convictions. Mr Wratt’s offending on EM bail was already considered by the Judge as an aggravating factor when setting the starting point. Ms Caris says it has therefore been double-counted by the imposition of an additional uplift.

[32] It is also submitted that in respect of Mr Wratt’s previous convictions, an uplift of two months amounts to double-counting, as Mr Wratt’s prior convictions were accounted for in the starting point. Ms Caris further submits the Judge gave inadequate consideration to the fact that Mr Wratt’s most recent relevant conviction was some 10 years prior and received a sentence to come up if called upon. The relevant previous convictions for offending against the same victim incurred minor sentences only, reflective of the low gravity of this offending. Much of Mr Wratt’s offending is for

_{unrelated historical matters.}

¹⁷ Areaiti v Police [2014] NZHC 2150; and Palmer v Police [2015] NZHC 143.

¹⁸ Turner v Police [2017] NZHC 1113.

¹⁹ Mataiti v Police [2014] NZHC 1675; and Mahara v Police HC Christchurch CRI-2010-409-240,

20 April 2011.

[33] The Crown accepts that the Judge improperly double-counted Mr Wratt’s offending while on EM bail in setting an uplift, but his previous convictions were appropriately considered. However, despite the error, the Crown submits it was not material to the end sentence and should not be changed.

Discussion

[34] It is correct that the Judge erred in double-counting the fact that the second breach of the protection order was committed while Mr Wratt was on EM bail, as the Judge took it into account as an aggravating factor when setting the starting point. He did so again, when imposing the two-month uplift.

[35] The Judge had not considered Mr Wratt’s previous convictions at any other point and it was open to him to impose a discrete uplift for these, particularly as Mr Wratt had previously breached this same protection order three times. Although most of Mr Wratt’s offending is not relevant here, the previous breaches of the protection order and the assault against the same victim are relevant. They demonstrate that Mr Wratt has a history of abusive behaviour towards this victim. I accept the Crown’s submission that:

(a) the Judge would have been justified in imposing a two-month uplift for Mr Wratt’s previous convictions alone as these convictions were not referred to when setting the starting point; and

(b) the effect of any double-counting would have been so minor, that it did not materially alter the end sentence, particularly since a community- based sentence was imposed.

[36] However, the principal issue on appeal is whether the end sentence was within the available range. In all the circumstances, I consider the final sentence was both appropriate and within the available range. It took into account the gravity of Mr Wratt’s offending and the context in which it occurred. A final starting point of 14 months’ imprisonment, which was then reduced to a community-based sentence, was fair and appropriate in these circumstances.

Credit given for mitigating factors

Parties’ positions

[37] Mr Wratt submits that the Judge erred in conflating the 25 per cent discount provided for his guilty pleas and remorse. These factors combined, it is submitted, should have resulted in a greater discount, namely a full 25 per cent discount for the guilty pleas alone as they came at the earliest reasonable opportunity. Counsel further submits that a discrete discount should have been given for Mr Wratt’s remorse, evident in the pre-sentence report and in the letters given to the Judge and victim.

[38] Further, it is submitted that the Judge erred in his approach to giving credit for time spent on EM bail and pre-sentence detention. His counsel submits the correct approach to discrete credits for these factors is provided in Longman v Police:²⁰

(a) time spent on EM bail is a mandatory consideration under the Sentencing Act 2002 when setting a sentence and must be considered in the same way as any other credit for remorse, guilty plea etc; and

(b) credit for time spent on custodial remand has nothing to do with the appropriate length of the underlying sentence and can only be given recognition where the sentence imposed is a non-custodial sentence.

[39] Ms Caris submits that in light of Longman, the fact that Mr Wratt spent approximately five weeks on EM bail needs to be taken into account as a mitigating feature. There also needs to be a further credit to account for the three months’ Mr Wratt spent in custodial remand, to reflect the fact that the appropriate end sentence is a non-custodial sentence.

[40] In relation to the discount for Mr Wratt’s guilty plea and remorse, the Crown submits Mr Wratt underestimates the actual discount that was given. The Judge gave a discount of 4.9 (rounded to five) months. This amounted to a 35 per cent discount from the 14 month reference point. This meant the Judge gave a 25 per cent discount for Mr Wratt’s guilty pleas and a 10 per cent discount for his remorse, even though

this was not explicitly stated. The Crown submits there was no error and the Judge was actually very generous to Mr Wratt in his discount. The Crown submits the 10 per cent discount for his remorse was more than appropriate as Mr Wratt’s expressions of remorse and reparation offer are tempered by the fact he continued to dispute elements of the offending after pleading guilty and showed little insight into his offending.

[41] Second, the Crown submits that in setting the final sentence, the Judge did take into account that Mr Wratt had been in custody and on EM bail for a period of time prior to being sentenced. Although the Judge did not specifically identify what weight he placed on Mr Wratt’s pre-sentence restrictions, it was implicit in the final sentence he reached, that the Judge had taken these factors into account in concluding that a community-based sentence was more appropriate than nine months’ imprisonment. The Crown further submits it was appropriate for the Judge to comment on Mr Wratt’s compliance with the bail conditions during the period of EM bail when taking this factor into account.²¹

Discussion

[42] By the time of the hearing, it was accepted for Mr Wratt that the discounts for Mr Wratt’s guilty pleas and remorse were more than adequately taken into account, as the Crown’s mathematical approach demonstrates. Although he did not explicitly state it, the Judge did in fact give a 25 per cent discount for Mr Wratt’s guilty pleas and a further 10 per cent for his remorse. These discounts amount to a combination of 35 per cent and were deducted in Mr Wratt’s favour. Mr Wratt entered his guilty pleas at the first available opportunity. He expressed remorse in the letters he wrote to the Court and victim and to Corrections officers after the offending.

[43] As for Mr Wratt’s pre-sentence restrictions, it is evident that the Judge considered the restrictions he was under prior to sentencing. Although this was not expressly considered by adopting clear discounts for each factor as was considered by Simon France J in Longman, it is implied in the sentencing notes that the Judge

considered these factors in choosing to impose a community based sentence. After reaching a final sentence of nine months’ imprisonment, the Judge said:²²

[19] I also take into account the time in custody on remand and also the time spent by Mr Wratt on electronically monitored bail, albeit that he offended by sending numerous texts whilst on that bail.

[20] Having taken into account his circumstances, the nature and seriousness of the two charges, his personal circumstances and background, the pre- sentence report, the applicable cases and law, I am satisfied that a sentence of community detention will reduce the likelihood of Mr Wratt’s further offending by restricting his movements during the specified times, while making him accountable and responsible for his offending, and also acting as a deterrent and denouncing his behaviour.

[44] Although the Judge did not identify discrete discounts in reaching his final sentence, I consider Mr Wratt’s pre-sentence restrictions were part of the circumstances that the Judge took into account in imposing a community-based sentence. I can find no error in the Judge’s assessment or that a different end sentence should have been imposed. I consider the Judge had factored in the pre-sentence restrictions, both custodial and EM bail, which Mr Wratt had served.

Treatment of reparation award

Parties’ positions

[45] Mr Wratt submits that the Judge erred in ordering the payment of $2,500 for emotional harm, without recourse to further material related to Mr Wratt’s financial capacity and the maximum amount that he was likely to be able to pay.²³ Although Mr Wratt had indicated a willingness in the pre-sentence report to $5,000 in reparation, Ms Caris submits that the information that was before the Court meant the Judge could not have been satisfied that Mr Wratt could be able to make the payments. Further, Ms Caris submits that imposing an order for a relatively significant amount of reparation must be factored into the overall sentence imposed and the Judge erred by not expressly accounting for this.

²² Wratt, above n 2.

²³ Sentencing Act 2002, s 32(1)(d) and (e).

[46] The Crown submits it was open to the Judge to be satisfied that Mr Wratt could make repayments equal to half the value that he had offered to pay. While a sentencing court may order a reparation report under s 33 of the Sentencing Act 2002, there is no obligation to do so. The Court was required to consider Mr Wratt’s offer of paying

$5,000 reparation, at the rate of $50 per week, when setting the amount, if it was satisfied that this was genuine and capable of being fulfilled.²⁴ While the Judge was not satisfied Mr Wratt could make such a high payment whilst unemployed, he was satisfied the lesser amount could be paid. The Crown submits the Judge did take into account Mr Wratt’s offer to make amends as a mitigating factor and did not err.

Discussion

[47] When considering what reparation payment Mr Wratt could make, the Judge said:²⁵

[23] You have offered emotional harm reparation. The initial offer set out in the PAC report from you was for a total sum of $5000. That is on the high side taking into account the weekly payments proposed and in my view, an emotional harm reparation amount of half that figure would be appropriate here.

[24] On each charge, I accordingly sentence you to pay reparation of $1250, that is a total of $2500, with instalments of $25 per week, the first payment within seven days, that is by 7 August 2018. As suggested by you, those weekly instalments are to increase to $50 per week once you have gained employment.

[48] Under s 10(1) of the Sentencing Act, the Court must take into account any offer of amends made by an offender. In doing so, the Court must consider whether that offer is genuine and capable of fulfilment and whether or not it has been accepted by the victim as expiating or mitigating the wrong.²⁶ Under s 32(6) of that Act, when imposing a sentence of reparation and determining the amount to be made the Court must take into account any offer made by an offender.

[49] During the hearing, Ms Caris confirmed that she had made submissions to the

_{Judge about Mr Wratt’s financial position and his ability to pay. From the passage set}

²⁴ Sections 10 and 32(6).

²⁵ Wratt, above n 2.

²⁶ Sentencing Act 2002, s 10(2).

out above from the Judge’s sentencing notes, I consider that the Judge took into

account Mr Wratt’s offer and his ability to pay in setting the reparation order, half the sum of which Mr Wratt had personally offered. It is implicit in the Judge’s sentencing note that he considered Mr Wratt’s financial capabilities.

[50] I do not consider the Judge has erred. The Judge expressly considered Mr Wratt’s offer, in reaching his view about the overall sentence. The question on this appeal is not whether the Judge expressly accounted for each individual factor, but whether the overall sentence he reached is within the available range. I find that the overall sentence, including the reparation payment, was appropriate for Mr Wratt’s offending and circumstances. The overall sentence is within the available range and I do not consider the sentence should be disturbed on appeal.

Conclusion

[51] Although the Judge did err in double-counting one of the factors in sentencing (that one of the breaches occurred while Mr Wratt was on EM bail), it was not material and the final sentence adopted was appropriate in the circumstances and within the available range. It took into account the gravity of Mr Wratt’s offending, the circumstances in which it was committed as well as his guilty pleas, remorse and offers to pay reparation following the offending.

Result

[52] The appeal is dismissed.

Cull J