B v Police HC Auckland CRI 2009-404-359

[2009] NZHC 2099

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-359

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 November 2009

Appearances: J Down for the Appellant

P Dean for the Respondent

Judgment:      13 November 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr J Down, Public Defence Service, Auckland

Mr P Dean, Meredith Connell, Office of the Crown Solicitor, Auckland

B V NEW ZEALAND POLICE HC AK CRI 2009-404-359  13 November 2009

[1]      Mr B   on 1 October 2009 pleaded guilty to a charge of possession of an offensive weapon in a public place.  He was convicted and remanded in custody for sentence  on  11  December  2009.    He  has  appealed  against  the  refusal  of  bail. Section 13 of the Bail Act applied to the application in the District Court and applies on this appeal.

[2]      The Judge’s sentencing notes were not  recorded  and  in  consequence  the Judge’s reasons for refusing bail are not available to this Court or to counsel.  For that reason it was agreed that the proper course is to deal with the matter as an original application, which I will do.

[3]      Counsel agreed that the principal consideration to determine whether Mr

B   should get bail now is the likely sentence he will receive on 11 December.

[4]      Mr Down submitted that for an offence of this nature, and notwithstanding an extensive list of previous convictions, Mr B   at most would receive a sentence of

3 months imprisonment.  He also submitted that there must be, at least, a reasonable possibility that there would not be a sentence of imprisonment at all but rather, perhaps, a sentence of home detention or some less restrictive sentence.

[5]      Mr  Dean  submitted  that,  having  regard  to  Mr  B  ’s  criminal  history, together with the fact that this offence was committed while Mr B   was serving a sentence of supervision, the realistic likelihood is that the sentence for the present offence will be 6 to 12 months imprisonment.

[6]      Mr  Dean’s  submission  was   supported   by  reference   to   two   previous convictions for the same offence, both of which resulted in sentences of imprisonment.  In 1994 Mr B   was sentenced to a total of 1 year and 3 months imprisonment for threatening to kill, two offences of male assaults female, and one offensive  weapon  offence.    It  is  not  clear  what  sentence  was  imposed  for  the offensive weapon offence.  The second conviction was on 15 October 2007.  On that date Mr B   was sentenced to prison on 10 charges, one of which was possession of an offensive weapon.  There were other substantially more serious offences.  The sentence recorded for the offensive weapon charge was 2 months imprisonment.

[7]      In a brief reply Mr Down noted that the first offence was some 15 years ago and that on both occasions where there were sentences for possession of an offensive weapon those sentences were imposed in conjunction with substantially more serious offences.   In respect of the latter point the further submission was made that, had there been solely the offence of possession of an offensive weapon, there may not have been a sentence of imprisonment.

[8]      An issue of this nature is difficult to assess on a bail application.  The Court’s primary consideration is to try and determine what the sentence might be without all of the information that is required ultimately to make that decision.   I do consider that there is, at least, a possibility that Mr B   will receive a sentence of imprisonment of 6 months or more.   That would mean that the period in custody from his arrest on 29 September 2009 to sentencing on 11 December 2009 would not exceed the maximum period that he would have to serve for the sentence.

[9]      However, I also consider that the sentence could be less and might not be prison at all.   Therefore, and with some hesitation, I consider that bail should be granted for the short period that remains until sentencing.

[10]     I also record that this is a decision which does not in any way indicate that there was an error by the learned District Court Judge in his decision, the reasons for which I am completely unaware of.

[11]     Bail is granted on the condition that Mr B   is to live where directed by his probation officer and otherwise comply with any directions of the probation officer in accordance with the current sentence of supervision.

[12]     Mr B   is bailed to appear in the District Court at Auckland at 9:00 a.m. on 11 December 2009.

Peter Woodhouse J