Bennett v The Queen
[2013] NZCA 167
•22 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA271/2013 [2013] NZCA 167 |
| BETWEEN PETER JOHN BENNETT |
| AND THE QUEEN |
| Counsel: P J Davison QC for Applicant |
| Judgment: 22 May 2013 at 10.00 am |
(On the papers)
JUDGMENT OF STEVENS J
The application for bail is declined.
____________________________________________________________________
REASONS
Introduction
The applicant was convicted after a jury trial of 16 representative counts (jointly with a Mr Quinlan) of supplying equipment capable of being used for the cultivation of cannabis (pursuant to s 12A(1) of the Misuse of Drugs Act 1975) and one count of possession of equipment capable of being used for the cultivation of cannabis (s 12A(2) of the Misuse of Drugs Act). He was sentenced by the trial judge, Judge Wiltens, on 30 April 2013 to a term of imprisonment of three years and nine months.[1] All sentences are to be served concurrently. The applicant appeals against his conviction and sentence. He applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. I have considered the application under s 393(2)(d) of the Crimes Act 1961.
The application for bail
[1] R v Quinlan DC Auckland CRI-2010-004-20624 [sentencing notes].
The application is brought on two grounds. First, that the applicant will be prejudiced in his appeal if he is required to serve time in custody pending appeal because, to the extent that the appeal is upheld either as to conviction or sentence, the appeal will be rendered nugatory and ineffective to the extent of time served.
The applicant also raises what he describes as “acute health considerations” because he suffers from Type I Diabetes such that his health and wellbeing is compromised by his continued detention in custody. He says that his ability to self‑test his day-to-day situation and medicate himself is severely restricted resulting in the various effects set out in the affidavit he has filed in support.
The Crown opposes bail on the basis that the applicant has not discharged the onus set out in s 14(2) of the Bail Act. The respondent has referred to the observations of this Court in Ellis v R:[2]
Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.
Statutory test
[2]Ellis v R [1998] 3 NZLR 555 (CA) at 560, observations that were affirmed in Iti v R [2012] NZCA 307 at [7].
The test to be applied in relation to an application for bail pending appeal is set out in s 14 of the Bail Act. Under s 14(1) bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.
Strength of the appeal
The grounds of appeal are broadly similar to those raised on behalf of Mr Bennett’s co-accused, Mr Quinlan.[3] It is not possible at this stage to attempt an extensive analysis of the merits of the appeal. This is because the grounds of appeal against conviction have not yet been particularised. The notice of appeal simply says “such grounds as are apparent following receipt of the Court’s summing up to the jury and on examination of the Court file”. Clearly proper particulars will need to be presented in support of the appeal against conviction.
[3] See Quinlan v R [2013] NZCA 168.
The grounds for the appeal against sentence have more particularity. The applicant says that the sentence was manifestly excessive because the Court:
(a)attributed the criminality and culpability of staff members to the applicant when those issues did not logically inform the applicant’s culpability;
(b)inappropriately attributed criminality relating to the activities of “secondary growers” (customers of the stores who were subsequently found to have cultivated cannabis) to the applicant; and
(c)failed to give appropriate recognition to the prior good character of the applicant.
In response counsel for the respondent has drawn attention to the sentencing remarks of Judge Wiltens. It is convenient to set out the submission made in full:
9.… Judge Wiltens[4] was clear there was evidence that the applicant as the general manager of both companies concerned, was heavily involved in management in a direct fashion, was very directly involved in the communications with staff and went to the stores. He concluded, “The suggestion that he did not know what was happening beggars belief”. Judge Wiltens traversed the evidence demonstrating how the Switched on Gardener operated with a veneer of legitimacy, shielding illegal activity and indicative of it being “the place to go” to purchase materials and equipment for the cultivation and consumption of cannabis. It is against that context that Judge Wiltens considered that the involvement of the Switched on Gardener in the cannabis growing set ups and cannabis plants found pursuant to search warrants at various addresses “was central and pivotal”.
[4] Sentencing notes at [12].
With respect to the strength of the appeal, the lack of particularity means that it would be inappropriate on the limited information available to date to assess the strength of the ground of appeal.[5] Certainly nothing raised at this stage is so compelling as to mean that bail is necessary in the interests of justice.
[5] R v De Bruin [2007] NZCA 76 at [9] citing Ellis v R.
So far as the sentence appeal is concerned, this raises matters of weight of the evidence (much of it from undercover police officers) and the sentencing Judge’s assessment of the overall criminality. It is premature to endeavour to make any assessment of such grounds at this stage.
Personal circumstances
As to the personal circumstances of the applicant here are said to give rise to “acute health considerations”, the respondent has referred to the decision of this Court in R v Gharbal,[6] noting that prisoners often have medical conditions, some of them serious. For this reason there are regulations and procedures in place in prisons in order that prisoners should receive appropriate medical treatment. The respondent submits that management of the applicant’s medical condition is an administrative matter rather than a standalone ground for bail.
[6] R v Gharbal [2009] NZCA 39 at [9].
I accept that the applicant’s concerns about his Type I Diabetes are genuine. The Sentencing Judge was made aware of the applicant’s medical requirements and the fact that he was being cared for by a specialist doctor, Mr R Cutfield.[7] I am satisfied that the administrative regulations and procedures in place within the present system will be sufficient to ensure that the applicant receives appropriate medical treatment. If necessary the applicant’s counsel should ensure that any necessary information from the applicant’s specialist is communicated to the prison authorities.
[7] Sentencing notes at [25].
Finally, there is nothing further in the other personal circumstances that assists the applicant’s case for bail. There is no suggestion that there will be any particular delay in the hearing of the appeal such as would cause an injustice. At best this is a neutral factor. The applicant has not discharged the onus on him to satisfy me that it is in the interests of justice to grant bail in this case. There are no exceptional circumstances to justify that course.
Result
For the above reasons the application for bail is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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