C v Police HC Wellington CRI 2009-485-16

[2009] NZHC 307

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-16

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 March 2009

Counsel:         A Ross for Appellant

M Snape for Crown

Judgment:      12 March 2009

JUDGMENT OF SIMON FRANCE J (Appeal against refusal to grant bail)

[1]      This is an appeal against the refusal to grant bail.  I note for the record that last week I dealt with an appeal by a co-accused whose role in the alleged offending was said to be much more limited than the present appellant.  I granted that appellant bail.

[2]      Mr C    is  charged  with  two  counts  of  injuring  with  intent  to  cause grievous bodily harm.  It is alleged that a group of young men who have associations with the Mongrel Mob visited an address where the victims were.  The purpose of the visit was retaliation for an earlier altercation between a Mongrel Mob member

and a friend of the present victims.

C V NEW ZEALAND POLICE HC WN CRI 2009-485-16 12 March 2009

[3]      Five people got out of the car and attacked the occupants.  One of the five was carrying a knife; it is said that the present appellant and one other were carrying baseball bats.

[4]      After an initial exchange of words, it is said that Mr C   ran up to one of the victims and hit him three times about the head with the baseball bat.  The victim grabbed the bat and the two continued to struggle.   On separation, it is said that Mr C   punched the victim in the face and then left.

[5]      At the same time others in the group were assaulting another of the victims. A knife was produced, but the assault consisted of punching and kicking in the head.

[6]      Mr C   is twenty-two years old.   He has a lengthy criminal offending history, which is primarily property, or driving, related.   However there are convictions for fighting in a public place, wilful damage (x5), disorderly behaviour (x2),  and  unlawful  assembly.    Back  in  2004,  seemingly  arising  from  a  single incident, there were convictions for common assault, resisting Police and assaulting Police.

[7]      In the judgment under appeal the District Court reviewed all the factors.  The Judge expressed concern over the offending history, the previous response to bail, and non-compliance with conditions of bail.

[8]      The Court viewed the risk of re-offending as the most significant issue and identified that there was a substantial and real risk of the defendant re-offending if granted bail.  It also felt there was a substantial risk that the defendant would fail to comply with conditions of bail given his previous history.   The Judge took into account that the appellant was in full time employment, and that the following Monday he was to begin a training programme.  However, he considered the risks of putting the defendant back into the community were too great, and bail was declined.

Submissions on appeal

[9]      I was the beneficiary of very well presented submissions by both counsel. Mr Ross made submissions on two fronts.   First, he identified some areas in the judgment under appeal where it was submitted that the District Court Judge had overstated the negative aspects of the appellant’s criminal record.   Second, he emphasised the positive information about the appellant he was now able to present on the appeal.

[10]     Concerning  the  re-offending  risk,  Mr Ross  identified  two  aspects  for comment.  First, in relation to any re-offending that had previously occurred whilst Mr C   was on bail, the offences that had been committed were at the bottom end of the scale.   A minor wilful damage  was the most  serious  of  such  offending. Second, he noted generally in relation to Mr C  ’s criminal history, whilst it was not to be minimised, the violence alleged against him on this occasion was significantly greater than anything indicated or suggested by his past offending. Mr C    is  at  this  point  denying the  charges,  although  accepting  that  he  was present at the incident.

[11]     Mr Ross accepted that Mr C   has Mongrel Mob connections.  His father and his brother are full members, and involvement was inevitable.  A point Mr Ross did submit, however, was that for a twenty-two year old with that background, the offending record was far less serious than might often be the case and indicated that he was not committed to a path of serious offending.

[12]     Focussing on the matters that might support a grant of bail, the crucial factor was that Mr C   has a significant job opportunity.  At the time of the offending he had been working for a short time for a company which is responsible for painting and maintenance of electricity transmission towers.   This is relatively specialised work,  and  at  the  time  of  the  offending  the  Company  had  been  going  to  send Mr C   on a two week training course in relation to this work.  The Company was very satisfied with the work that he had done to date, and pleased with his commitment.  Despite being obviously unhappy about the circumstances that have now arisen, the Company is willing to maintain its commitment to Mr C   if

circumstances allow.  It wishes to be satisfied, however, that Mr C   is himself committed to the job, and committed to avoiding repetition  of  anything of  this nature.

[13]     Related to this, Mr C   offers as his bail address the home of the person who is the foreman of his work gang with this company.  Finally, it is noted that if bail  is  granted,  the  nature  of  the  work  means  that  Mr C    would  spend  a considerable amount of time out of the Wellington District.

[14]     In  reply,  Mr Snape  recognised  that  there  was  some  positive  features. However, he emphasised that, although there were aspects of provocation to the incident, it was nevertheless a retaliation attack involving serious violence and concerning which Mr C   had no reason for involvement other than this gang affiliation.   He also noted that whilst the job situation is obviously a matter that could encourage the grant of bail, he had been working in the job for five weeks prior to this offending occurring.  He reminded the Court that it was an appeal, and submitted that the Judge had not erred it and had reached an available decision.  He noted that although there was not any previous offending at this level of violence, when  one  factored  in  the  numerous  wilful  damage  convictions,  there  was  a significant level of offending of a type that suggested the re-offending risks were in relation to matters of public safety.

[15]     Finally,  the  previous  response  to  Court  orders  and  conditions  was  poor. Claims of a changed attitude were not uncommon, but there was no real evidence of it.

Decision

[16]     I have determined that a grant of bail is appropriate.  Dealing first with the fact that it is an appeal, I consider that the matter must have been finely judged before the District Court and that I am in a position where I have better information concerning the options should bail be granted.   I also take a different view on the level of risk of re-offending.

[17]     As I made plain to Mr Ross, I consider the present incident to be serious. However, in terms of assessing risks prior to a trial, it has to be noted that the offending was context specific.  It was retaliatory, which does not make it any less culpable, but which means it was in response to a specific set of circumstances.  If there is no past pattern of such conduct, and no reason to believe the same type of circumstance  will  continue  to  arise,  then  the  risks  of  re-offending  are  not  so apparent.

[18]     Second, the nature of the work that is involved in this case will further reduce the risk by removing Mr C   from the relevant risk community for considerable periods of time.

[19]     I am influenced by the likely time to trial, and also the possible benefits that will flow to society generally should Mr C  ’s employment prospects be fulfilled. Bearing these factors in mind I allow the appeal and grant bail on the following conditions:

a)       that when not away from the Wellington district as a requirement of his employment, Mr C   reside at 84 Kokiri Crescent, Porirua;

b)        that when in Wellington he is subject to a curfew between the hours of

9.00 p.m. and 7.00 a.m.   He is to present himself at the door for checks by the Police;

c)        that bail is conditional on Mr C   maintaining his employment.

Should that situation change, then I consider that there would be a sufficient shift to require re-assessment.  The matter can at that time be referred back to the District Court for a fresh decision;

d)Mr C   is not to wear any Mongrel Mob regalia, and is not to be in contact with any members of the Mongrel Mob other than his immediate family.  At this point I am advised that that has the effect of allowing contact with his father and brother who are Mongrel Mob

members.    Mr Clark  is  not  to  visit  any  gang  house  or  associated property;

e)       he is not to associate with his co-accused, nor contact the victims in this matter by any means whatsoever;

f)        conditions a) and b) do not apply when Mr C   is required to be out of Wellington by his employer.   The officer in charge, or other nominated person, is to be advised when this is to occur, and be told of  the  general  area  to  which  Mr C    is  going,  and  the  likely duration of the job.

Conditions concerning employment

[20]     As noted in condition f), these conditions of bail do not prevent Mr C   from leaving the Wellington District at the request of his employer.  When that is to happen, I request that notification be given to the officer in charge or other appropriate person of the general area where Mr C   will be heading, and the expected timeframe of the time out of the district.   If there happens to be other persons in the relevant work group with Mongrel Mob connections, that is not a breach of the non-association bail condition.

[21]     I do not impose any specific requirements on whether he must return to Wellington on weekends, as that may not be practicable.   In that regard, I simply observe that Mr C   hopefully understands the circumstances under which he has obtained  bail,  and  that  he  needs  to  be very  careful  in  his  conduct.    When  the requirements of his employer no longer require him to be out of the Wellington area,

he is to return to the bail address noted above.

Simon France J

Solicitors:

A M P Ross, Barrister, Porirua, Fax: [phone]
M Snape, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]