Albert v Police HC Auckland CRI-2005-443-005

[2005] NZHC 1290

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-443-005

BETWEEN

DARREN NICHOLAS ALBERT

Appellant

AND

POLICE

Respondent

Hearing:         25 February 2005

Appearances: Kevin Brosnahan (on instructions) for Appellant Mina Wharepouri for Respondent

Judgment:      25 February 2005

JUDGMENT OF HARRISON J

SOLICITORS

Billings (New Plymouth) for Appellant Meredith Connell (Auckland) for Respondent (Copy to: Kevin Brosnahan (Auckland))

ALBERT V POLICE HC AK CRI-2005-443-005 [25 February 2005]

[1]    On 17 February 2005 Mr Darren Albert pleaded guilty in the District Court at New Plymouth to charges of driving with excess breath alcohol and driving whilst disqualified. It was Mr Albert’s seventh drink driving conviction and his fourth of driving whilst disqualified. Judge Louis Bidois remanded him in custody pending sentence on 23 March 2005 (s 13 Bail Act 2000). Previously he had been on bail.

[2]    Mr Albert appeals against Judge Bidois’ refusal to grant him bail. In support his New Plymouth counsel, Leanne Morris, has filed a careful and compelling written synopsis and Mr Kevin Brosnahan has appeared with equal effect in oral argument today. However, despite their best efforts, I am satisfied that they have not established a jurisdictional basis for me to interfere.

[3]    The Judge was exercising a judicial discretion. In order to succeed on appeal Mr Albert must show that the Judge’s refusal to grant bail was contrary to principle, or that he failed to take into account all relevant considerations, or took account of those which were irrelevant, or that his decision was plainly wrong.

[4]    Once a defendant pleads guilty he must show cause why bail should be granted pending sentence. He carries the burden. He must satisfy the interests of justice. There are a number of relevant considerations.  Principal among  them are the likelihood of a sentence of imprisonment. Others are the likely time that will pass before sentence, the defendant’s personal circumstances, and any other consideration (s 13(3)).

[5]    In this case the Judge was influenced primarily by the likelihood, indeed inevitability, that Mr Albert would receive a term of imprisonment, which is likely to be of a reasonably lengthy duration in view of his previous convictions. He was also influenced by the fact that Mr Albert had committed a crime very recently for which he was disqualified and that he nevertheless continued to drive under the influence of alcohol.. He took into account Mr Albert’s very sad personal circumstances, although the notes suggest that he may have misunderstood their nature and extent. The submission made to him was that if Mr Albert was remanded in custody his five children, aged between 8 and 15 years, would have to leave their schools in the Waitara area and shift out of Taranaki. Mr Albert is their sole caregiver; their

mother is not in a position to look after them. Mr Albert has no family members locally. They will have to live in Wanganui with his mother while he is in prison.

[6]    The Judge may have misconstrued this point. It was amplified today orally  by Mr Brosnahan. It forms the basis of a submission which will be made  on sentence that Mr Albert should be granted leave to apply for home detention. He appreciates, of course, that is a matter for the Judge’s discretion. It would be inappropriate for me to comment upon it.

[7]    While, as Mr Brosnahan says, the effect of Mr Albert’s remand in custody will be extremely detrimental for the children, I am satisfied that Mr Albert will be sentenced to a term of imprisonment and that relocation is inevitable. I make the obvious point that Mr Albert should have perhaps given a little more thought to his parental responsibilities before re-offending yet again. Looking at the Judge’s notes as a whole, I am not satisfied that he failed to give weight to relevant considerations or took into account one which was irrelevant. He was entitled to place primary weight upon the inevitability of imprisonment. In this light other considerations assumed secondary importance, however sad they may be. I dismiss the appeal.

Rhys Harrison J