Alexander v The Queen
[2012] NZCA 619
•20 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA730/2012 [2012] NZCA 619 |
| BETWEEN JOHN BORRIE ALEXANDER |
| AND THE QUEEN |
| Hearing: 20 December 2012 (By teleconference) |
| Court: O'Regan P, Arnold and Ellen France JJ |
| Counsel: Applicant in Person |
| Judgment: 20 December 2012 at 4 pm |
JUDGMENT OF THE COURT
The application for bail is dismissed.
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REASONS OF THE COURT
(Given by O’Regan P)
Introduction
The applicant, Mr Alexander, was found guilty after a trial by jury in the District Court at Greymouth on two counts of cultivation of cannabis and not guilty on one count of possession of cannabis for supply. One cultivation count related to a growing operation in his house. The number of plants involved is disputed. The other related to three rubbish bags of recently harvested cannabis plant material found in his car.
Mr Alexander was sentenced by Judge Saunders to two years and two months’ imprisonment.[1]
[1] R v Alexander DC Greymouth CRI-2011-018-391, 19 October 2012.
Mr Alexander has appealed against his sentence on the ground that it was manifestly excessive. He claims that the 20 month starting point adopted by Judge Saunders was too high, the six month uplift for previous convictions was excessive, that he should have received a discount for a “without prejudice” proposal to plead guilty to the cultivation charges if the supply charges were withdrawn and that the Judge placed excessive reliance on his prior history. He has also (separately) appealed against his convictions.
Mr Alexander applied for bail to this Court. The application was declined by White J.[2] Mr Alexander has now asked that his application be determined by the Court (as provided for in s 393(3) of the Crimes Act 1961) and we have convened an urgent teleconference hearing to ensure this occurs before Christmas.
[2] Alexander v R [2012] NZCA 557.
The focus of the application before White J was Mr Alexander’s sentence appeal, but he has now also filed an appeal against conviction. He argues that he has a strong chance of succeeding in having the conviction on the first cultivation count quashed and that the sentence of nine months imprisonment which related to the second cultivation count may be further reduced as a result of his sentence appeal.
Before White J, Mr Alexander had submitted that a successful sentence appeal could lead to a non-custodial sentence, but White J determined that the appeal grounds were not particularly strong. We now set a date for the hearing of Mr Alexander’s conviction and sentence appeals on 14 February 2013. That is now only eight weeks away. Even if Mr Alexander’s sentence of imprisonment were to be reduced on appeal, it is unlikely that the reduction would be so great that his release date would be before 14 February 2013. We agree with White J that the case for a non-custodial sentence, assuming the both convictions remain, is not sufficiently compelling to provide a strong case for the grant of bail.
Before us, Mr Alexander argued that he has a good chance of having the conviction on count one quashed, in which case the focus of the sentence appeal would be on the sentence imposed on count two only. His appeal against conviction in relation to count one is on the basis that the jury accepted the evidence of the police officer in circumstances where Mr Alexander’s own evidence strongly contradicted it. He said that the Crown case relied on the evidence of the police officer and that there was no other evidence supporting it. It is not possible to give any detailed analysis of the appeal grounds at this preliminary stage but, based on the information provided to us, we do not see the grounds for appeal against conviction as particularly compelling. Again, we do not see any case for departing from the norm, that is that a convicted person remains in prison pending the hearing of the appeal, especially where the appeal hearing is imminent.
In summary, we do not consider that Mr Alexander has discharged the onus placed on him by s 14 of the Bail Act 2000 to satisfy the Court on the balance of probabilities that it would be in the interests of justice to grant bail.
We therefore dismiss the application for bail.
Solicitors:
Crown Law Office, Wellington for Respondent
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