A v Police HC Dunedin Cri-2009-412-1

[2009] NZHC 300

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2009-412-000001

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 March 2009

Counsel:         J P Takas for appellant

R D Smith for respondent

Judgment:       11 March 2009

RESERVED JUDGMENT OF DOBSON J ON BAIL APPEAL

[1]      On 12 February 2009, Mr A   entered guilty pleas to charges of assault with intent to injure, male assaults female and wilful damage.  He also pleaded guilty to two breaches of community work sentences.

[2]      Without any application for bail being made on his behalf, District Court Judge

O’Driscoll simply recorded, on entering the pleas:

[2]      I will call for a pre-sentence report.  In light of the convictions for breach of community work, I do not intend to call for an appendix.  I will call  for  a  restorative  justice conference.    In  light  of  the  sentence  of imprisonment being imposed on these matters, you will be remanded in custody.

A V NEW ZEALAND POLICE HC DUN CRI-2009-412-000001  11 March 2009

[3]      For the Police, Mr Smith takes the preliminary point that in the absence of an application for bail, there is no right of appeal.  However, in terms of s 41 of the Bail Act 2000 (the Act) a right of appeal arises where the District Court refuses to grant bail, and that has inarguably occurred here.

[4]      Consideration of bail on entry of convictions is governed by s 13 of the Act.  The Court must not grant bail unless a defendant satisfies the Court on the balance  of probabilities that it would be in the interests of justice to do so.   Here, relative to the criteria in s 13(3), which include whether the defendant is likely to receive a sentence of imprisonment, the Judge has implicitly proceeded on the assumption that a sentence of imprisonment will be imposed.   The sentencing date was then less than seven weeks away, and is now some three weeks away.

[5]      Mr  Takas argued  that  the  Court  should  not  have  closed  its  mind  to  a  less restrictive sentence than imprisonment.   Most importantly, he is concerned that the Judge’s view on the matter was formed without knowing that Mr A   had apparently been shocked by these charges and was turning over a new leaf in respect of attendance for community work.   A letter from the community work supervisor confirms that Mr A    attended  every  day  the  community  work  centre  was  open  between

30 January and 11 February 2009 for a total of 74 hours, being eight hours’ attendance on virtually all the days that the centre was open.

[6]      Notwithstanding the cursory terms of Judge O’Driscoll’s note, of course the sentencing Judge will evaluate the sentencing options in light of all the information then available.  The relative probability of a sentence of imprisonment being imposed is not of itself determinative of the evaluation of the interests of justice under s 13.  It would be inappropriate to apply the criteria in s 13(3) in a way which pre-judged the quite discrete considerations  on  the  subsequent  sentencing,  or  foreclosed  any  viable  sentencing options.  In the present case, Mr Takas is not able realistically to submit that a prison sentence is not “likely”, and it is inappropriate in the context of this appeal to venture any view on the extent to which the positive performance of the community work sentence, which was unknown to the Judge at the time of the remand, might influence the final determination of sentence.

[7]      The appeal is to be assessed on the basis that:

•    there is a real likelihood of a sentence of imprisonment being imposed;

•    there is no unusual delay between the remand in custody on entry of the guilty pleas and the sentencing; and

•    nothing in respect of his personal circumstances is raised as going against the presumption bail will not be granted.

Accordingly, the onus is one that the appellant simply cannot discharge in this case.

[8]      Mr Takas acknowledged that part of the rationale for pursuing the appeal was to revisit what is seen as the certainty of a prison sentence flowing from the terms in which the Judge ruled against a grant of bail.  There is a prospect, and this judgment expressly does not suggest how weak or strong that prospect is, that the recently demonstrated positive commitment to the community work sentence would alter the ultimate sentence. Not being informed of that, the Judge excluded the prospect of considering an electronically monitored sentence, and I am persuaded that that is an option that ought not to be entirely foreclosed.

[9]      For the Police, Mr Smith accepted it was open, within the confines of the bail appeal, for the Court to supplement the direction for preparation of a pre-sentence report by directing that an appendix also be prepared.   He indicated the Police would not oppose that course, given the concerns Mr Takas has raised.

[10]     Accordingly, whilst the appeal is dismissed, I direct that the pre-sentence report is to include the preparation of an appendix.   Acceding to the suggestion this should occur is not to be taken as any indication of the relative likelihood of a less restrictive sentence than imprisonment ultimately being imposed.

Dobson J

Solicitors:

Jim Takas, Dunedin for appellant

Crown Solicitor, Dunedin for respondent