C v Police HC Napier CRI 2010-441-29

[2010] NZHC 1439

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-29

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 August 2010

Counsel:         A Malik for Appellant

F E Cleary for Respondent

Judgment:      18 August 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr C   appeals against refusal of bail.  He is charged with burglary, to which he has pleaded guilty meaning that s 13 of the Bail Act applies.

[2]      The charge relates  to  a  residential  burglary in  which  was  stolen  a large television, an iPod and jewellery and makeup.  These items were said to be worth about $15,000.

[3]      He  has  five  previous  convictions;    none  involve  dishonesty.    The  only relevant conviction is one for failure to answer police bail in 2001.

[4]      His contention before the District Court, as here, was that a non-custodial sentence is possible.  The Judge acknowledged that, but observed that the relevant consideration under the Bail Act is whether it is “unlikely” that a custodial sentence

will be imposed.  A first offender in a case of burglary may well be imprisoned.  He

C V NEW ZEALAND POLICE HC NAP CRI 2010-441-29  18 August 2010

suggested that the offence was premeditated and involved theft to order, with professional overtones and the loss was substantial.

[5]      On appeal, counsel first contends that a different Judge had previously dealt with the question of bail pending sentence.  The appellant was given bail when he pleaded guilty on 28 July, but lost it on 11 August when the conviction was entered. The Judge had no jurisdiction to revisit the previous grant of bail.  He erroneously concluded that it was only on the entry of the conviction that s 13 applied.

[6]      Counsel cited no authority for this jurisdictional proposition.  In my opinion it is untenable.  It is true that s 13 applies when the guilty plea is entered, but nothing in the record suggests that s 13 was considered when bail was first granted on 28

July.  Further, nothing in the Bail Act precludes the Court from revisiting the grant or refusal of bail at any time before sentence is passed.  Circumstances may change; in this case, for example, he pleaded on 28 July and a sentencing date was not fixed. He was refused bail when the date was fixed on 11 August.

[7]      Turning  to  the  merits,  counsel  submitted  that  the  Judge  was  wrong  to conclude that a starting point of imprisonment was likely.   The Judge failed to consider not only whether imprisonment was a real possibility but also how likely it is that imprisonment will be imposed.[1]     For a first time burglar imprisonment is possible but frequently it is not imposed, especially where as in this case none of the aggravating features outlined in Senior was present.[2]     Accordingly, a term of imprisonment was not a substantial possibility in this case, particularly since he had pleaded guilty at an early stage and had no previous relevant convictions.

[1] R v Leone [2009] NZCA 325; (2009) 24 CRNZ 231.

[2] Senior v Police HC Christchurch A NO 139/00, 19 December 2000.

[8]      The  Judge  acknowledged  that  a  sentence  other  than  imprisonment  was possible and authorised a home detention report.  But he observed that the question posed  by  s  13  is  whether  it  is  unlikely  that  the  appellant  will  be  imprisoned. Although there are no previous relevant convictions, the scale of the offence and the appearance of theft to order lent a professional air to the offence.  The presumptive starting point in burglary is imprisonment, and imprisonment may be the end point.

He noted that the co-offender had been bailed pending sentence. but that offender is

19 and the appellant is 27.

[9]      The reference to a theft to order relates to an aggravating feature of the offence which is not referred to in the summary of facts.  I am told that the police say a female  associate  inspected  the  property then  texted  the  appellant  and  the  co- offender instructing them to burgle it, telling them what was there and saying that she wanted a cut of the proceeds.

[10]     If those aggravating features are established, and  I accept that they may require a sentencing hearing under s 24, it cannot be said that imprisonment is out of the question.

[11]     Nonetheless home detention is clearly the more likely sentence.  Apart from the guilty plea and the absence of previous convictions, I am told that he has a stable address and the occupant, a family member, is both eligible and willing to have him there.  He has two young children living in Hawke’s Bay.   They do not live with him, but he does deal with them daily.   He is not presently working but he is a seasonal worker with Watties and anticipates starting work within a month.

[12]     Other relevant circumstances include his personal circumstances, which  I

have just mentioned, and the delay until sentencing which is now scheduled for 14

September.

[13]     Weighing up all of these considerations, I am satisfied that it cannot be said that imprisonment is likely and to that extent I differ from the Judge and take the view that home detention is the more likely sentence.  There is no other reason to deny him bail pending sentence.

[14]     Accordingly, the appeal will be allowed.  He will be admitted to bail pending sentence in the District Court on the 14th of September 2010.

[15]     The bail conditions will be:

a.         To reside at 10 Barton Avenue, Marewa, Napier

b.        To abide by a curfew between 7.00pm and 7.00am

c.         Not to associate with his co-accused, Zac Regan Lange d.     Not to go to 41 Cassino Crescent, Onekawa, Napier

Miller J

Solicitors:

Elvidge & Partners, Napier for Respondent