C v Police HC Wellington CRI-2008-485-5

[2007] NZHC 1718

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-5

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 April 2007

Appearances: D A Ewen for the Appellant

M Snape for the Respondent

Judgment:      8 April 2007

ORAL JUDGMENT OF CLIFFORD J

Introduction

[1]      This is an application for bail by Mr C   who is facing serious drug dealing and other charges.

[2]     Mr C   is currently in custody. He is charged with possession of methamphetamine for supply, possession of equipment and precursor substances, unlawful possession of a modified firearm, unlawful possession of a restricted weapon (a taser).  Mr C   is also charged with possession of a Class A drug (magic

mushroom) and receiving.

C V POLICE HC WN CRI-2008-485-5 8 April 2007

Previous Bail Application

[3]      Mr. C   originally applied to the High Court for bail on 30 January 2008. At that time Gendall J noted that:

a)        The Crown’s case could not be said to be weak.

b)In terms of the  applicant’s  past  conduct  and  behaviour,  he  had  a previous drug dealing history and other drug offences spread over a period of about 17 years, as well as a slight history of offending whilst on bail 16 or 17 years ago.

c)       It  was  unlikely,  if  bail  were  declined,  that  there  would  be  any prejudice to the preparation of the applicant’s defence, which at that stage was unknown.

d)That the length of time before the matter comes to hearing can be persuasive.

[4]      Despite the serious nature of the charges, Gendall J did not think that there was any real or significant risk that the applicant might fail to appear.  The primary issue for determination was whether there was a real or significant risk that the applicant would offend whilst on bail.

[5]      The Crown submitted that there was such a risk.  The Crown submitted that the applicant had admitted to having an addiction to methamphetamine.  As a result the Crown submitted that this meant there was a real and significant risk that Mr C  ’s use of methamphetamine would continue, and suggested that Mr C   might resort to other criminal activity in order to obtain funds to support his drug addiction.

[6]      Counsel for the applicant said at the time however that it was not accepted that the habit existed.

[7]      On that basis Gendall J was not prepared to decline bail. Rather he adjourned the matter so that further evidence could be received.  Gendall J no doubt envisaged that this evidence would tend to prove or disprove the applicant’s addiction, so that that a proper assessment could be made as to whether or not there was a real or significant risk that the applicant would offend on bail, thereby justifying a refusal of bail.

This Application

[8]      Since that earlier hearing, the applicant has lodged an application for EM, or electronic, Bail.

[9]      In addressing the Court this morning, Mr Ewen confirmed that it was on that basis that this morning’s hearing was to proceed.

[10]     No new evidence was to be provided.   However a transcript of Mr C  ’s interview with the Police has been made available and is referred to by the Crown in its written submissions and indirectly by Mr Ewen.

[11]     I will consider the matter accordingly.

[12]     A standard EM bail assessment report has been prepared and provided to me. The report notes:

a)        That Mr C   proposes the address for his release on EM bail as being

1A Waitaha Way, Houghton Bay, Wellington (the address to which he had originally applied for bail).

b)The  Police  have  assessed  that  address,  and  have  spoken  to  the applicant’s mother Georgina, and her daughter Mariko, who are the occupants of that address.

c)       The Police report that electronic bail is technically feasible at the proposed address, and that both Georgina and Mariko have signed their consent to Mr C   residing with them and that they are aware of the requirements of EM bail and the charges Mr C   faces.

Submissions for Mr C 

[13]     This morning, Mr Ewen submission has really been that the proposal for electronic bail, which the Crown accepts is technically feasible, and that the address is a suitable one and that there are no objections to the people residing at the address, answers the risk of re-offending identified by Gendall J.

[14]     Mr Ewen notes that there have been no reports received that Mr C   has been using drugs whilst in custody.  He recognises a risk of possible consumption, but says that risk is mitigated not only by Mr C  ’s restraint within the house but also by his mother’s attitude to drugs.

[15]     He says that the delay to trial, on the basis that the matter will be defended, could be significant.

[16]     He says there is no recent history of offending whilst on bail.

[17]     He further points to a letter Mr Jefferies, Barrister and Solicitor, has sent to the  Police  indicating  that  a  Mr  Ludwig  may  well  admit  responsibility  for  the offences with which Mr C   has been charged.

Submissions for Crown

[18]     For the Crown, Mr Snape accepts that the address is suitable and accepts that the proposed electronic bail mitigates the risk of re-offending.   The Crown’s fundamental submission in continuing to oppose bail is that the nature of electronic bail, which controls Mr C   leaving the house but not who might arrive at the house

or activities within the house, does not sufficiently address the risk of re-offending to justify a release, even on EM bail.

Discussion

[19]     In my opinion, Gendall J correctly identified the risk of re-offending as being the primary concern in this bail application.

[20]     It is reasonably obvious that where a person is addicted to, or is or has been a heavy user of, drugs, and certainly it would appear Mr C   can be placed in that latter category, there is an increased risk of re-offending, either by the use of the substance itself, or by engaging in criminal activities to support that addiction or use. There have been a number of bail cases which recognise that risk and where, on the basis of that risk, bail has been declined.

[21]     It is clear that Mr C  , by his own admission, is a user of drugs, and in particular methamphetamine.   I must comment, however, that that may not be particularly unusual in the case of a person charged with the type of offences which Mr C   faces.   The question in my view is whether the risk that exists of re- offending, by reference either to drug use in and of itself or criminal activity associated with drug use, is sufficiently controlled by the  proposed  EM  bail  to provide a basis for releasing on that condition.

[22]     I think, based on my reading of the materials, it is fair to say that Gendall J had something more in mind than a drug use habit when he adjourned the previous hearing.    He  clearly articulated  his  concern  as  regards  the  re-offending  risk  by reference to the Police’s assertion that Mr C   is “addicted” to methamphetamine.

[23]     As I said, I am not in a position to draw a conclusion on addiction.  I note however the use in the past.

[24]     I note further, however, as regards the Crown’s written submissions, that I do not consider  the charges against Mr C   establish a significant involvement in drug

dealing.   They can at this point in time only be regarded as an allegation to that effect.

[25]     I also note that, at this stage, that I do not think too much reliance can be placed on the possibility that another person may accept responsibility for the alleged charges.

[26]     I do think, however, that the proposed release on electronic bail to an address which the Police say is appropriate for that purpose, and which particularly because it is the address at which Mr C  ’s mother resides – and I have read and placed some reliance on her proposed affidavit that has not yet been sworn – in combination do address the risks in this case sufficiently to allow Mr C   to be released on electronic bail in terms of his application.

[27]     I acknowledge that EM bail does not control possible visitors to Mr C  . But he is to be bailed to his mother’s address, and she has indicated to the Court a willingness to accept some personal responsibility for Mr C   whilst he is at those premises.  She will no doubt be aware of the consequences of Mr C   re-offending at her premises.  Further, EM monitoring will mean that Mr C   cannot leave those premises.    In  combination,  I think  EM  bail  provides,  in  these  circumstances,  a sufficient degree of mitigation of the risk of re-offending to, as I have said, allow Mr C   to be released in the terms of his application for electronic bail to 1A Waitaha Way, Houghton Bay, and I grant his application accordingly.

[28]     In terms of practicalities, it is not clear to me at which particular point in time that can be allowed to commence.  Have arrangements been put in place to allow it to begin in the near future?  [The Bail Assessor advises the Court that arrangements have been made for release on electronic bail at any time today.]

[29]     On that basis Mr C  , your application for electronic bail is granted.

[30]     You can be very grateful for the support you had from your mother.  In the absence of that support, your application probably would not have been granted.

[31]     You are therefore to go to 1A Waitaha Way where you will be connected to the electronic monitoring device and electronic bail will begin.

“Clifford J”

Solicitors:

John Miller Law, Wellington for the Appellant

Crown Solicitor, Wellington for the Respondent