C v Police HC Palmerston North CRI 2009-454-4

[2009] NZHC 206

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-454-4

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 February 2009

Counsel:         Y R Summers for Appellant

E J McCaughan for Respondent

Judgment:      24 February 2009

JUDGMENT OF SIMON FRANCE J (Bail appeal)

[1]      Mr C   appeals against the refusal of the District Court to grant him bail.

Facts

[2]      Mr C   is charged with burglary of a house.  Taken in the burglary were a TV, a computer, beanbags and clothing all of which said to have been loaded into Mr C  ’s car.   They were then transferred at a later point into a co-offenders caravan.   It is then alleged that at some point they were put back into his car and

taken somewhere.

C V NEW ZEALAND POLICE HC PMN CRI 2009-454-4 24 February 2009

[3]      Some point later Mr C   was stopped in his vehicle.  At that time there were two women in the car.  Mr C   denied knowing anything about a burglary, or knowing the women in his car.  At a later point he admitted that he had gone to the address with two women, and had transported the stolen items for them.   He denied any knowledge of the whereabouts of the items.

Decision under appeal

[4]      Mr C   was initially granted bail.   He was subject to a curfew.   The curfew runs from 9.00 p.m.  On 21 January a curfew check around 10 past 9 showed Mr C   not to be at the address.  Several further visits were made and on each occasion he was not there.

[5]      The  Judge  records  that  counsel  advises  him  that  Mr C    was  absent because  he  had  accompanied  his  partner  who  was  “encountering  a  medical difficulty”.

[6]      The Judge decided that this was not a sufficient explanation.   It was noted that in addition to the burglary charge, Mr C   was facing two allegations of indecent assault on a boy under twelve.  That combined alleged offending meant that there was very good reason for the curfew, and any failure of Mr C   to comply with it was a source of real concern.

[7]      The Judge confirmed his view that the explanation given was not adequate, and that the protection of the public required that a further grant of bail be declined.

Submissions on appeal

[8]      On  behalf  of  the  appellant,  Ms Summers  submits  that  s 12  of  the  Bail Act 2000 did not apply.  The indecent assault charges were in place at the time of the grant of bail for burglary.  There has, therefore, been no offending since the initial grant of bail.  It is also noted that despite a reasonably long history of offending, the appellant has never failed to appear.

[9]      Concerning the breach of curfew, it is submitted that the circumstances make it less culpable.  It transpires that Mr C  ’s girlfriend has recently been unwell following childbirth, and she prevailed upon him to remain with her later into the evening.  It was an error to do so, but is not of the most serious type.

[10]     It is noted that the trial on the burglary charges to occur on 2 April 2009, and it is submitted that there is no risk of re-offending nor of flight.  The curfew breach did not merit revocation of bail.   He has been in custody for three weeks whilst awaiting appeal, and that is sufficient to bring home the seriousness.

[11]     The Crown accepts the Judge who granted bail for the burglary must have been satisfied that s 12 was met.  The real issue is what does the breach of curfew add to things?   How does it alter the balance?   Section 8(2)(h) refers to particular matters, and the context of a substantial history of offending on bail, the fact that he was on bail  when  allegedly committing the burglary,  and  now  a breach  of the protective  measure  of  curfew  mean  the  risk  he  presents  should  be  met  with  a custodial remand.

Decision

[12]     Mr C   was on bail concerning the two indecent assaults at the time of his alleged involvement in the burglary.  Admissions he has made indicate a proximity to the offending.  It seems he describes himself as providing transportation, but not in such a way as to be a party.

[13]     A  grant  of  bail  on  the  burglary  charge  cannot  have  been  an  inevitable outcome.   I agree with the District Court that to now have breached conditions of bail is unacceptable and a source of concern.  The burglary offending, if committed, was while on bail.  If Mr C   cannot then abide by conditions of further bail, the decision to remand in custody until a trial date on 2 April 2009 was fully open to the Judge.  In my view it was the correct decision.  He presents a plain re-offending risk.

[14]     Ms Summers queried the likelihood of a custodial outcome if committed.  It is always preferable for the appellate court to be circumspect in its response.  Suffice

to say the circumstances are such as to not cause me to alter, for that reason, the

conclusion I have otherwise reached.

Simon France J

Solicitors:

Y R Summers, Principal, Levin, email: [email protected]

E J McCaughan, Ben Vanderkolk & Associates, Palmerston North, email: [email protected]