Bennett v The Queen - [2013] NZCA 167

IN THE COURT OF APPEAL OF NEW ZEALAND

CA271/2013
[2013] NZCA 167

BETWEEN PETER JOHN BENNETT
Applicant

AND THE QUEEN
Respondent

Counsel: P J Davison QC for Applicant
J Bond for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v The Queen

Details

AGLC: Bennett v The Queen [2013] NZCA 167
Case: [2013] NZCA 167
Decision Date: 22 May 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an appeal by Peter John Bennett against his conviction and sentence, and his application for bail pending the appeal's determination. Bennett was convicted of multiple counts of supplying and possessing equipment for cultivating cannabis, and he was sentenced to three years and nine months in prison, to be served concurrently. He appealed his conviction and sentence and applied for bail under section 70 of the Bail Act 2000. The Crown opposed the bail application, arguing that Bennett had not met the burden of proof as required by section 14(2) of the Bail Act.

The legal issues before the court were whether Bennett had shown cause why bail should be granted, and whether there were exceptional circumstances justifying bail. Bennett argued that he would be prejudiced in his appeal if he had to serve time in custody pending appeal, and that his health was compromised by his continued detention due to his Type I Diabetes. The Crown countered that the appeal's strength was not yet clear and that the prison system could manage Bennett's medical needs.

The court considered the statutory test for granting bail pending appeal, as outlined in section 14 of the Bail Act, which requires the court to be satisfied on the balance of probabilities that it would be in the interests of justice to grant bail. The court also considered the strength of the appeal, noting that the grounds had not been fully particularised, and that the sentencing remarks indicated Bennett's significant involvement in the illegal activities. The court concluded that the appeal's strength was not compelling enough to warrant bail, and that Bennett's health concerns could be managed within the prison system. The court found that Bennett had not discharged the onus to show that it was in the interests of justice to grant bail.

The Court of Appeal declined the application for bail. The appeal against the conviction and sentence would proceed without Bennett being released on bail.

Orders