WRATT v NEW ZEALAND POLICE [2018] NZHC 2477

WRATT v NEW ZEALAND POLICE [2018] NZHC 2477 [21 September 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-55[2018] NZHC 2477DARRYL MARK WRATTvNEW ZEALAND POLICEHearing: 14 September 2018Appearances: L A Caris for the AppellantT R Bain for the RespondentJudgment: 21 September 2018JUDGMENT OF CULL J[1] Mr Wratt breached a protection order twice. The second time occurred whilehe was on electronically monitored bail (EM bail) for the first breach. He pleadedguilty to the two charges of breaching a protection order.1 On 31 July 2018, JudgeJohnston 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 reparationwas accepted and ordered.[2] Mr Wratt appeals his sentence on the basis it is manifestly excessive. Hesubmits the starting point was too high, the uplifts and discounts imposed were1 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.incorrect and the reparation award was not dealt with properly. The appropriatesentence, he submits, is supervision.[3] The Crown opposes the appeal and submits the sentence imposed was withinthe 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 beenconvicted of assaulting her. He has also breached the same protection order on threeprevious occasions (in 2008, 2007 and 2005).[5] On 29 March 2005, a final protection order was issued by the District Courtagainst Mr Wratt to protect the victim.[6] The first charge of breaching this protection order stemmed from Mr Wratt'sactions between 20 October 2017 and 28 March 2018. On 20 October 2017, Mr Wrattnoticed a friend request on the victim's Facebook and became convinced that she washaving an affair. He later demanded that he have access to all of her social mediaplatforms 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 aboutthis) and demanding to know where she was at any particular time.[7] Mr Wratt constantly verbally abused the victim, calling her derogatory namesand at times doing so in front of their children. During the week leading up to policeintervention in March 2018, Mr Wratt would constantly wake the victim andinterrogate her about items he had found on her computer hard drive. As a result ofthe continual abuse, the victim became anxious and emotionally drained to the pointof resigning from her employment.[8] The second charge of breaching the protection order arose from Mr Wratt'sbehaviour between 26 April and 17 May 2018, when he was on EM bail in respect ofthe first charge. During this period, Mr Wratt used a cellphone to contact the victimand sent her over 100 text messages. In explanation, he said he was contacting her tosave his children.District Court decision[9] In setting the starting point of 12 months' imprisonment, the Judge identifiedthe following aggravating features of the offending:(a) the second offence was committed whilst Mr Wratt was on EM bail forthe first breach;(b) the resulting harm on the victim and the profound impact on her andher employment;(c) Mr Wratt's manipulative and controlling behaviour, which occurredover 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 reflectthat Mr Wratt was on EM bail at the time of the second offence and for his relevantprevious convictions.[11] In Mr Wratt's favour, the Judge identified his guilty pleas and remorse, whichwas 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. Thisproduced a sentence of nine months' imprisonment.[12] The Judge also took into account the time Mr Wratt had spent in custody onremand and on EM bail, "albeit that he offended by sending numerous texts whilst onthat bail."33 Wratt, above n 2, at [19].[13] In light of Mr Wratt's personal circumstances and background, the nature andseriousness of the two charges, the recommendations of the pre-sentence report andrelevant cases, the Judge was satisfied a sentence of community detention wasappropriate. The Judge said:4I am satisfied that a sentence of community detention will reduce thelikelihood of Mr Wratt's further offending by restricting his movements duringthe specified times, while making him accountable and responsible for hisoffending, and also acting as a deterrent and denouncing his behaviour.[14] The Judge imposed a final sentence of two months' community detention and12 months' supervision, with conditions of attending a family violence programme,alcohol and drug programme and any counselling arising from those assessments. MrWratt offered to pay reparation of $5,000. After hearing from counsel, the Judgeordered 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 anappeal against a discretion. An appeal against sentence must be allowed if the Courtis satisfied that, for any reason, there is an error in the sentence imposed and a differentsentence should be imposed.5 The focus is on the final sentence and whether that wasin the available range, rather than the exact process by which it was reached.6Grounds 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 personalcircumstances;(c) the discounts given for Mr Wratt's mitigating factors were insufficient,including the time he had spent in custody and on EM bail; and4 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 discussedbelow.Starting pointParties' positions[18] Ms Caris, counsel for Mr Wratt, submits the Judge's 12 month starting pointwas manifestly excessive. When compared with other relevant cases, it is submittedthat a starting point of eight to nine months' imprisonment is appropriate. Counselsubmits the Judge erred in the way he dealt with the aggravating factors of theoffending, as follows:(a) Mr Wratt's manipulative and controlling behaviour should not havebeen categorised as an aggravating factor of his offending and the Judgeerred in using the victim impact statement to inform the Court aboutMr Wratt's actions.(b) The summary of facts does not disclose anything on which the Judgecould reasonably have concluded that there was premeditation.Although the offending occurred over a period of time, Mr Wratt'sactions were not calculated but occurred because he was distressed atthe dissolution of his 14-year relationship due to suspected infidelity.(c) The vulnerability of the victim should not have been considered as thecharge inherently accounts for a degree of vulnerability and there wasno additional vulnerability to be considered.[19] As material relating to a further charge of breaching the protection order, whichwas withdrawn, remained on the Court file at the time of sentencing, counsel furthersubmits there is a real and appreciable risk that this material would have negativelycoloured the Court's view of Mr Wratt, even though the Judge did not refer to thematerial in his sentencing notes. Counsel did not appreciate that the material was onthe file and so did not address it in submissions.[20] The Crown submits the Judge did not err in imposing a starting point of 12months' imprisonment. Even if there were procedural errors in setting the startingpoint, the Crown submits the final starting point imposed was clearly available to theJudge. The Crown submits that in assessing the gravity of Mr Wratt's offending theCourt 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 assanctions and enforcement when there are breaches.7 The Crown further submits thatrepeated breaches of a protection order are also relevant to assessing the gravity ofoffending.8Discussion[21] There is no tariff decision for breaches of protection orders, as this offendingvaries enormously in culpability and in the type of threat posed to the protectedperson.9[22] Although Ms Caris may be correct in principle, that the gravity of an offender'sbehaviour should not be assessed from a victim impact statement, the summary offacts here described Mr Wratt's controlling and manipulative behaviour, independentof the victim impact statement. In the Judge's sentencing notes, there is nothing toindicate that the Judge took into account any irrelevant or inaccurate material.[23] I accept the Crown submission that the Judge was correct in characterising theaggravating factors of the offending. The extent of Mr Wratt's controlling behaviouris clear from the first breach of the protection order. It could not reasonably beregarded as spontaneous offending, particularly when Mr Wratt continued to disregardthe protection order after being charged in respect of the first breach. The victim wasvulnerable because she was living with Mr Wratt at the time of the first breach,10 she7 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) 29FRNZ 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 leavehim were inhibited by the children they share. I find that there was sufficient evidenceof Mr Wratt's behaviour for the Judge to reach the conclusions he did about the gravityof Mr Wratt's offending.[24] I also agree with the Crown's submission that the victim was fairlycharacterised as vulnerable. In the recent case of Solicitor-General v Hutchison, theCourt of Appeal, in the context of a family violence case, observed:11Co-occupation as a family unit involves a social contract of mutual care andnurture. Necessarily it also involves inherent vulnerability to opportunisticbreach of that social contract when physical violence is employed. One cannotrealistically or effectively lock the door against a co-occupant. Where thevictim is a family member, dependent on the offender for emotional andphysical support, the alternative aggravating factor of vulnerability almostinevitably will be triggered. It would be a rare case of family violence wherethat was not so.[25] Although physical violence was not employed in this case, it is evident that MrWratt was controlling and manipulative towards the victim over a period of monthsand while they lived together. The victim was dependent on him and he is the fatherof her two children. He often verbally abused her in front of their children. Her lifeat home was dictated by his behaviour over this period. I consider the Court ofAppeal's comments are applicable here and the victim was reasonably described asvulnerable.[26] In relation to the other procedural matter raised by Ms Caris, namely theunredacted summary of facts that was before the Judge, I consider little turns on thedifferences in the summary of facts, before and after its amendment. The most notabledeletion was the reference to Mr Wratt's "paranoiac" behaviour and Ms Caris acceptedthat the differences between the two summaries of facts were insignificant. Ms Carisalso raised with the Court that a Facebook post from Mr Wratt should not have beenprovided to the Court or been placed on the Court file. As the Judge made no referenceto it, I take this matter no further.11 At [27].[27] Considering the lengthy period over which Mr Wratt breached the protectionorder, namely from 20 October 2017 to 28 March 2018, I find it was open to the Judgeto observe that Mr Wratt's behaviour was premeditated, particularly by the time of thesecond breach, when Mr Wratt was already charged for the first breach.[28] Of the cases provided by counsel to assist with assessing the appropriatestarting point, I consider the following are most relevant to compare with Mr Wratt'soffending:(a) Kumar v Police:12 a starting point of 12 months' imprisonment wasadopted on appeal for three breaches of a protection order. Mr Kumarhad a history of sending the victim unsolicited text messages and hadone previous protection order breach. The breaches in the present caseoccurred when Mr Kumar confronted his former partner on the street,yelled at her, grabbed her wrist and took her cellphone off her. Onanother occasion, he sent two text messages to the victim which wereacknowledged as being psychologically abusive. At this time he wason bail. A starting point of 12 months' imprisonment was imposed onappeal, along with a three month uplift to take into account the previousprotection order breach, that some of the offending occurred while hewas on bail and for an unrelated driving while disqualified charge.(b) Waterman v Police:13 a starting point of 18 months' imprisonment wasadopted on appeal for four breaches of a protection order. The breachesinvolved going to his ex-partner's address and refusing to leave whenasked, telephoning the victim, calling out to the victim's child whilststanding outside her house, and coming up to her while she was in hercar, yelling at her and taking her cellphone. Peters J held that theaggravating factors of the offending included that Mr Waterman hadgone to the address several times, at night or early in the morning, usedintimidating conduct, that there were multiple repeated breaches and12 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 stilloccurring.(c) Woods v Police:14 a starting point of 18 months' imprisonment wasimposed on appeal for ten charges of breaching a protection order. MrWoods breached the order on several occasions over a ten-monthperiod. The breaches involved sending the victim sinister textmessages (three), emails (four), calling her twice, visiting her street,following her in public places, sending her a parcel with a card andgifts, calling his son and asking him to talk to the victim for him andgetting a friend of his to contact the victim. On appeal, Wylie Jobserved that the conduct was not violent or threatening but waspersistent and repeated. They were committed while Mr Woods was onbail and on one occasion, while he was in custody. Wylie J describedthe conduct as "prolonged harassment" on a number of discreteoccasions and in defiance of court orders.15(d) Beck v Police:16 Mr Beck was sentenced to 15 months' imprisonmentfor two charges of breaching a protection order in relation to his formerpartner and one charge of breaching release conditions. He sent 45 textmessages to the victim stating, amongst other things, "I'm going to putyou in a coffin". The second protection order breach arose when hesent the victim numerous text messages and missed calls and thenunsuccessfully tried to get into the front door of her house. Mr Beckhad a history of domestic violence and protection order breaches (threebreaches) against the same victim. Mander J upheld the sentence onappeal because of the repeated nature of Mr Beck's breaches of theorder, his obvious intent to psychologically abuse his victim, hispersistence and domestic violence conviction history. Mander J heldthat an effective starting point of 15 months' imprisonment wasavailable 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 wasavailable and was not manifestly excessive. Mr Wratt's behaviour is more serious thanthat in Kumar and Beck, where starting points of 12 and 15 months' imprisonmentwere adopted respectively. Although not as serious as that in Woods or Waterman, MrWratt's behaviour has similar hallmarks in that it was repetitive, took place over aprolonged period of time and sought to control the victim. I consider a starting pointof 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 lessserious conduct than Mr Wratt's offending,18 or involve markedly different conduct.19Uplifts to the starting pointParties' 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 relevantprior convictions. Mr Wratt's offending on EM bail was already considered by theJudge as an aggravating factor when setting the starting point. Ms Caris says it hastherefore 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 upliftof two months amounts to double-counting, as Mr Wratt's prior convictions wereaccounted for in the starting point. Ms Caris further submits the Judge gave inadequateconsideration to the fact that Mr Wratt's most recent relevant conviction was some 10years prior and received a sentence to come up if called upon. The relevant previousconvictions 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 forunrelated 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'soffending while on EM bail in setting an uplift, but his previous convictions wereappropriately considered. However, despite the error, the Crown submits it was notmaterial 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 secondbreach of the protection order was committed while Mr Wratt was on EM bail, as theJudge took it into account as an aggravating factor when setting the starting point. Hedid so again, when imposing the two-month uplift.[35] The Judge had not considered Mr Wratt's previous convictions at any otherpoint and it was open to him to impose a discrete uplift for these, particularly as MrWratt had previously breached this same protection order three times. Although mostof Mr Wratt's offending is not relevant here, the previous breaches of the protectionorder and the assault against the same victim are relevant. They demonstrate that MrWratt has a history of abusive behaviour towards this victim. I accept the Crown'ssubmission that:(a) the Judge would have been justified in imposing a two-month uplift forMr Wratt's previous convictions alone as these convictions were notreferred to when setting the starting point; and(b) the effect of any double-counting would have been so minor, that it didnot 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 withinthe available range. In all the circumstances, I consider the final sentence was bothappropriate and within the available range. It took into account the gravity of MrWratt's offending and the context in which it occurred. A final starting point of 14months' imprisonment, which was then reduced to a community-based sentence, wasfair and appropriate in these circumstances.Credit given for mitigating factorsParties' positions[37] Mr Wratt submits that the Judge erred in conflating the 25 per cent discountprovided 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 theguilty pleas alone as they came at the earliest reasonable opportunity. Counsel furthersubmits 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 fortime spent on EM bail and pre-sentence detention. His counsel submits the correctapproach to discrete credits for these factors is provided in Longman v Police:20(a) time spent on EM bail is a mandatory consideration under theSentencing Act 2002 when setting a sentence and must be consideredin 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 theappropriate length of the underlying sentence and can only be givenrecognition where the sentence imposed is a non-custodial sentence.[39] Ms Caris submits that in light of Longman, the fact that Mr Wratt spentapproximately five weeks on EM bail needs to be taken into account as a mitigatingfeature. There also needs to be a further credit to account for the three months' MrWratt spent in custodial remand, to reflect the fact that the appropriate end sentence isa non-custodial sentence.[40] In relation to the discount for Mr Wratt's guilty plea and remorse, the Crownsubmits Mr Wratt underestimates the actual discount that was given. The Judge gavea discount of 4.9 (rounded to five) months. This amounted to a 35 per cent discountfrom the 14 month reference point. This meant the Judge gave a 25 per cent discountfor Mr Wratt's guilty pleas and a 10 per cent discount for his remorse, even though20 Longman v Police [2017] NZHC 2928 at [6]–[10].this was not explicitly stated. The Crown submits there was no error and the Judgewas actually very generous to Mr Wratt in his discount. The Crown submits the 10per cent discount for his remorse was more than appropriate as Mr Wratt's expressionsof remorse and reparation offer are tempered by the fact he continued to disputeelements of the offending after pleading guilty and showed little insight into hisoffending.[41] Second, the Crown submits that in setting the final sentence, the Judge did takeinto account that Mr Wratt had been in custody and on EM bail for a period of timeprior to being sentenced. Although the Judge did not specifically identify what weighthe placed on Mr Wratt's pre-sentence restrictions, it was implicit in the final sentencehe reached, that the Judge had taken these factors into account in concluding that acommunity-based sentence was more appropriate than nine months' imprisonment.The Crown further submits it was appropriate for the Judge to comment on Mr Wratt'scompliance with the bail conditions during the period of EM bail when taking thisfactor into account.21Discussion[42] By the time of the hearing, it was accepted for Mr Wratt that the discounts forMr Wratt's guilty pleas and remorse were more than adequately taken into account, asthe Crown's mathematical approach demonstrates. Although he did not explicitly stateit, the Judge did in fact give a 25 per cent discount for Mr Wratt's guilty pleas and afurther 10 per cent for his remorse. These discounts amount to a combination of 35per cent and were deducted in Mr Wratt's favour. Mr Wratt entered his guilty pleas atthe first available opportunity. He expressed remorse in the letters he wrote to theCourt and victim and to Corrections officers after the offending.[43] As for Mr Wratt's pre-sentence restrictions, it is evident that the Judgeconsidered the restrictions he was under prior to sentencing. Although this was notexpressly considered by adopting clear discounts for each factor as was considered bySimon France J in Longman, it is implied in the sentencing notes that the Judge21 Sentencing Act 2002, s 9(3A)(c).considered these factors in choosing to impose a community based sentence. Afterreaching 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 timespent by Mr Wratt on electronically monitored bail, albeit that he offended bysending numerous texts whilst on that bail.[20] Having taken into account his circumstances, the nature and seriousnessof the two charges, his personal circumstances and background, the pre-sentence report, the applicable cases and law, I am satisfied that a sentence ofcommunity detention will reduce the likelihood of Mr Wratt's furtheroffending by restricting his movements during the specified times, whilemaking him accountable and responsible for his offending, and also acting asa deterrent and denouncing his behaviour.[44] Although the Judge did not identify discrete discounts in reaching his finalsentence, I consider Mr Wratt's pre-sentence restrictions were part of thecircumstances that the Judge took into account in imposing a community-basedsentence. I can find no error in the Judge's assessment or that a different end sentenceshould have been imposed. I consider the Judge had factored in the pre-sentencerestrictions, both custodial and EM bail, which Mr Wratt had served.Treatment of reparation awardParties' positions[45] Mr Wratt submits that the Judge erred in ordering the payment of $2,500 foremotional harm, without recourse to further material related to Mr Wratt's financialcapacity and the maximum amount that he was likely to be able to pay.23 AlthoughMr 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 couldnot 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 ofreparation must be factored into the overall sentence imposed and the Judge erred bynot 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 couldmake repayments equal to half the value that he had offered to pay. While a sentencingcourt may order a reparation report under s 33 of the Sentencing Act 2002, there is noobligation 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 wassatisfied that this was genuine and capable of being fulfilled.24 While the Judge wasnot satisfied Mr Wratt could make such a high payment whilst unemployed, he wassatisfied the lesser amount could be paid. The Crown submits the Judge did take intoaccount 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 Judgesaid:25[23] You have offered emotional harm reparation. The initial offer set out inthe PAC report from you was for a total sum of $5000. That is on the high sidetaking into account the weekly payments proposed and in my view, anemotional harm reparation amount of half that figure would be appropriatehere.[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 paymentwithin seven days, that is by 7 August 2018. As suggested by you, thoseweekly instalments are to increase to $50 per week once you have gainedemployment.[48] Under s 10(1) of the Sentencing Act, the Court must take into account any offerof amends made by an offender. In doing so, the Court must consider whether thatoffer is genuine and capable of fulfilment and whether or not it has been accepted bythe victim as expiating or mitigating the wrong.26 Under s 32(6) of that Act, whenimposing a sentence of reparation and determining the amount to be made the Courtmust take into account any offer made by an offender.[49] During the hearing, Ms Caris confirmed that she had made submissions to theJudge about Mr Wratt's financial position and his ability to pay. From the passage set24 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 intoaccount Mr Wratt's offer and his ability to pay in setting the reparation order, half thesum of which Mr Wratt had personally offered. It is implicit in the Judge's sentencingnote that he considered Mr Wratt's financial capabilities.[50] I do not consider the Judge has erred. The Judge expressly considered MrWratt's offer, in reaching his view about the overall sentence. The question on thisappeal is not whether the Judge expressly accounted for each individual factor, butwhether the overall sentence he reached is within the available range. I find that theoverall sentence, including the reparation payment, was appropriate for Mr Wratt'soffending and circumstances. The overall sentence is within the available range and Ido 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 materialand the final sentence adopted was appropriate in the circumstances and within theavailable range. It took into account the gravity of Mr Wratt's offending, thecircumstances in which it was committed as well as his guilty pleas, remorse and offersto pay reparation following the offending.Result[52] The appeal is dismissed.Cull J