Bom v Police HC Christchurch CRI 2007 409 128

[2007] NZHC 1924

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007 409 128

SHARON MARIE BOM

Appellant

v

POLICE

Respondent

Hearing:         28 June 2007

Appearances: R A Peters for Appellant

Z R Johnston for Respondent

Judgment:      28 June 2007

ORAL JUDGMENT OF CHISHOLM J

[1]      This is a bail appeal.  The appellant faces 22 charges, including conspiracy to supply Ritalin, cannabis and a precursor substance;  possession for supply;  offering to sell and supplying Class B and C drugs;  receiving;  and attempting to pervert the course of justice.  Her trial is to take place on 17 September.  There is a relatively lengthy history.

[2]      The charges arose from a lengthy police operation.  The evidence against the appellant arises from intercepts, observations and searches of people and property.

According to the Crown Ms Bom is a central figure in a drug syndicate.

BOM V POLICE HC CHCH CRI 2007 409 128  28 June 2007

[3]      On 6 July 2006 the appellant was granted bail despite police opposition. However, three days later it was reported that she had breached a bail condition by making contact with a co-accused.   This gave rise to the charge of attempting to pervert the course of justice which is based on a written statement by a co-accused to the effect that the appellant asked him to lie at trial.

[4]      Judge Bisphan refused bail on 28 September 2006.  He was concerned about the appellant’s previous convictions, particularly a conviction for failing to answer bail in 2003 and the breaching of a bail condition on 9 July.  The Judge concluded that the risk that the appellant would fail to appear, interfere with witnesses or offend on bail was too high and concluded that there was just cause to refuse bail.  Ms Bom unsuccessfully appealed to this Court against that decision.

[5]      Subsequently she made application for bail with electronic monitoring.  She sought bail to a New Brighton address occupied by her partner and others, including one of the co-accused.   In her affidavit in support of the application the appellant emphasised the lengthy time before trial (she will have been in custody for around 14 months) and her desire to be with her foster children.  She indicated that she had not made a final decision as to pleas in relation to some of the charges.

[6]      Bail was not recommended in the police assessor’s report.   While it was accepted that monitoring was technically feasible, concerns were expressed about the likelihood of further interference with evidence plus the appellant’s previous history of offending on bail.  Presumably the reference to offending on bail is a reference to the alleged attempting to pervert the course of justice.

[7]      Judge Saunders refused bail.  Although he accepted that the appellant would have been in custody for at least 12 months, he found that other factors outweighed that factor.  The Judge accepted that there was a strong case that the appellant was at the centre of a  conspiracy and  he  expressed  concern  that  monitoring  could  not prevent the appellant interfering with witnesses or embarking on other “illicit purposes”.  He also took into account that the appellant had previous convictions, including breach of bail, and that her application was opposed by the police.

[8]      Both counsel have advanced comprehensive submissions.  For the appellant Mr Peters emphasised the length of time that the appellant has been in custody.  He submitted there is no real risk that the appellant will abscond, given the reason for which bail is sought, namely, to be with her children.  He also submitted that the risk of interference with witnesses could be excluded.  With reference to the appellant’s affidavit, he explained that her contact with the co-accused was a chance contact and that  the  charge  of  attempting  to  pervert  the  course  of  justice  will  be  strongly defended.  Mr Peters also noted that with the exception of the incident on 9 July, there is no history of the appellant offending while on bail.  He also highlighted that there  is  no  suggestion  in  the  police  report  that  they  are  concerned  about  the suitability of the address.

[9]      On  the  other  hand,  Ms  Johnston  submitted  that  the  fact  that  this  is  an application for electronic monitoring does not alter the underlying considerations.  In her submission there has been no significant change of circumstances and the conclusion reached by the Judge was right.

[10]     This   is,   of   course,   an   appeal   against   the   exercise   of   a   discretion. Undoubtedly there is a strong case against the appellant and if she is convicted on one or more of the charges relating to drug activities a reasonably lengthy sentence of imprisonment could be anticipated.  While the delay before trial that has actually eventuated is longer than the delay that was anticipated when the appellant’s earlier bail application was before the Court, the delay factor was nevertheless taken into account.  The fact that the delay might be slightly longer than originally anticipated does not, in my view, provide a weighty factor in support of the appeal.

[11]     One of the strongest factors counting against the appellant is that she is alleged to have breached bail on 9 July 2006, virtually immediately after bail had been granted.  Although she denies any attempt to pervert the course of justice, the statement of the co-accused points in the opposite direction.  Given that defiance of a Court order and also an earlier failure to answer bail, there must be a strong risk that she will attempt to further interfere with witnesses or possibly breach bail if this appeal is allowed.

[12]     In the end result, I have not been able to detect any error of principle in the Judge’s decision.   Despite Mr Peters’ considerable efforts to persuade me to the contrary, this appeal is dismissed.

Solicitors:         Thompson & Morgan, Christchurch for Appellant

Crown Solicitor, Christchurch