B v Police HC Wellington Cri-2009-441-9

[2009] NZHC 312

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-441-09

B

v

NEW ZEALAND POLICE

Hearing:         13 March 2009

Appearances: Mr Snape for the Crown

Mr Sharko for Mr B 

Judgment:      13 March 2009

JUDGMENT OF MALLON J

[1]      Mr B   is 17 years old.  On 16 January 2009, pursuant to a search warrant executed at Mr B  ’s home, the police found a desktop computer and flat screen monitor which had been taken in a burglary of a residential address in Napier in the early hours of 15 January 2009.  Also located in his home was a phone that had been stolen from a parked vehicle some time after 9 pm on 14 January 2009.  Mr B   was charged with burglary and receiving.  He was granted bail.  The terms of his bail included a curfew.  On 10 February 2009 and again on 13 February 2009 Mr B   did not answer curfew checks.   In respect of each of these breaches of his bail conditions bail was not opposed and he was given a warning

[2]      On 18 February 2009 he entered pleas of guilty on the burglary and receiving charges and on a charge of breaching a sentence of community work.   Although

B V NEW ZEALAND POLICE HC WN CRI-2009-441-09 13 March 2009

there was no police opposition to bail, the District Court Judge declined to grant bail pending sentencing which is to take place on 26 March 2009.

[3]      The Judge’s decision on the bail application is in these terms:

[1]       B    has  pleaded  guilty  today  to  charges  of  burglary, receiving and breach of community work.   He is only 17.   There are constraints against his remand in custody whether before or after his guilty plea and further constraints on the imposition of a sentence of imprisonment. However, he has on this file twice been warned concerning breaches of bail. He has previous convictions for breach of bail on his last offence.  He has declined to name the co-offenders or co-operate in sorting out the matter and despite his age now, in my view, a remand in custody is the only appropriate recourse.

[2]       He is remanded in custody to the 26th  of March for a probation officer’s report and sentence.

[4]      Counsel are agreed that s 15 of the Bail Act 2002 applies.  Counsel are also agreed that s 15 is not subject to s 13 of the Bail Act, which deals with the exercise of discretion when considering bail pending sentencing.   Section 15 is subject to s 142(4A) and (4B) of the Criminal Justice Act 1985.  The result is that Mr B   is only to be remanded in custody if no other course is desirable having regard to all the circumstances.

[5]      It  appears  that  the  District  Court  Judge  took  this  approach  given  his references to “constraints against his remand in custody” and a remand in custody being “the only appropriate recourse”.   However it  also  appears  that  the  Judge remanded  Mr B    in  custody  because  he  had  twice  been  warned  concerning breaches of bail and because he has previous convictions for breach of bail.   The only other factor referred to by the Judge is Mr B  ’s refusal to name his co- offenders.

[6]      The Crown does not oppose the appeal and formally takes the position that it will abide the Court’s decision.

[7]      The two breaches of bail are relatively minor.  Mr B   has a limited record

– he has two convictions in November 2008 for unlawfully taking or getting into a motor vehicle and one conviction in December 2008 for failing to answer District

Court bail.  I do not see that history, nor his lack of co-operation in respect of co- offenders, as a sufficient reason to decline Mr B   bail having regard to the relevant statutory test.   I therefore consider the District Court decision to decline Mr B   bail is plainly wrong.

[8]      The Crown submitted that if bail were to be granted then the appropriate conditions would be for Mr B   to reside at 13 Barnard Avenue in Napier and subject to a curfew from 8 pm until 6 am.  I am told that the bail address is the home of Mr B  ’s father and the police’s view is that this address will allow more control to be exercised over Mr B  .   That, together with the curfew, are adequate to mitigate the risk of further offending or breaches while on bail awaiting sentence. Accordingly bail is granted on those terms.

Mallon J

Solicitors:

A Sharko, Lawyer, PO Box 639, Napier

M Snape, Luke Cunningham Clere, PO Box 10357, Wellington