Colosimo v The Queen

[2011] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

CA687/2011
[2011] NZCA 614

BETWEEN  MICHAEL SANTO COLOSIMO
Appellant

AND  THE QUEEN
Defendant

Counsel:         W T Nabney for Appellant
J E Mildenhall for Respondent

Judgment:      2 December 2011 at 3 pm

JUDGMENT OF CHAMBERS J

The application for bail pending the hearing of the appeal is dismissed. 

REASONS

1. On 11 October 2011 Judge Rollo sentenced Michael Colosimo to two and a half years’ imprisonment.  Mr Colosimo has appealed to this Court against his conviction and sentence.  He has applied for bail pending the determination of his appeal.  The Crown opposes the application.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.  Counsel dispensed with the need for an oral hearing.  I have therefore determined the application on the papers and on the basis of the parties’ written submissions. 

2. The application is brought under s 70 of the Bail Act 2000.  The test to be applied on these applications is set out in s 14 of that Act.  Under s 14(1), I am not to grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in this case to do so.  Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.

3. Subsection (3) sets out matters the Court should take into account when applying the interests of justice test.  The first of those grounds is “the apparent strength of the grounds of appeal”. This is obviously important.  The more likely it is the appeal will be granted, the stronger, all other things being equal, is the case for bail.  Conversely, if the appeal seems meritless, bail would never be in the interests of justice.  The prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail. 

4. Often, judges determining bail applications post-conviction find it very difficult to assess the merits of the appeal: there is often too little information available to assess the merits with any degree of accuracy.  That is the case here.  Although Mr Nabney, for Mr Colosimo, has said the grounds of appeal are “strong”, I have been unable to form a clear view on that.  There are complaints that the trial was unfair because of late disclosure of Crown evidence, that the defence was caught somewhat by surprise when the Crown decided not to call a particular witness who then was called on behalf of Mr Colosimo, and about the fairness of the Judge’s summing-up.  All I can say at this stage is that the appeal is far from being a slam dunk; nor is it obviously hopeless.

5. The second factor under s 14(3) is “the length of the sentence that has been imposed on the appellant”.  Obviously, it will be easier to get bail in circumstances where the sentence is very short.  For the purposes of s 14, a sentence of two and a half years’ imprisonment should probably be regarded as “middling”, with the consequence that it is a neutral factor.[1] 

   [1]      Chambers v R [2011] NZCA 562 at [6].

6. The third consideration is “the likely length of time that will pass before the appeal is heard”.  Mr Nabney placed some stress on that.  He submitted that Mr Colosimo would be eligible to apply for parole in August next year.  He said that it was likely that “some time in the first quarter of 2012 would seem to be the earliest the matter can be heard”.  I can confirm that the hearing is likely to be in mid-March next year.  He submitted that, given the length of the sentence, the appeal would be rendered “nugatory if bail were not granted”.  I do not accept that submission.  A convicted accused is in a quite different position from someone who has merely been charged.  The implications of Mr Nabney’s submission would be profound.  Everyone sentenced to three years’ imprisonment or less would be arguing that bail should be granted so that their appeal was not rendered “nugatory”.  That is not the s 14 test.  The short point is that it is a reasonably short period until the likely hearing of Mr Colosimo’s appeal.  In light of that, this is a factor pointing against the grant of bail. 

7. The fourth factor is “the personal circumstances of the appellant and the appellant’s immediate family”.  The only factor put forward in this regard is that Mr Colosimo has said that, at the time of his conviction, he had the care of his five year old son.  He added: “He and I are very close and there will be significant harm done to our relationship.”  Many prisoners have families who are significantly affected by their loved one’s imprisonment.  There is nothing to suggest that Mr Colosimo’s son is not being properly cared for at present.  There is nothing exceptional about his personal circumstances.[2]

   [2]      Ngamu v R [2010] NZCA 3 at [14].

8. Although the Court may consider other considerations, none is advanced here.

9. Taking into account all these considerations, I have formed a view that Mr Colosimo has not satisfied the onus placed on him.  I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant him bail pending appeal.

Solicitors:
Crown Law Office, Wellington for Respondent