D v Police HC Palmerston North Cri-2009-454-2

[2009] NZHC 38

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-02

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2009

Counsel:         S J De Vorms for Appellant

B J Vanderkolk for Respondent

Judgment:      3 February 2009 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail with electronic monitoring.

[2]      The circumstances are that the appellant faces one charge of theft involving the theft of a substantial sum of money (a total of at least $16,500) from a café at Foxton Beach.  It is apparently the case that there were others involved, or at least the appellant alleges that others were also involved, and I approach the matter on the basis that it is not alleged that he is the sole offender in respect of the offending.

[3]      He appeared first in November 2008 and on 18 November 2008 Judge Ross refused bail.  He indicated at that stage that there might be a better prospect if an

D V NEW ZEALAND POLICE HC PMN CRI-2009-454-02 3 February 2009

application  were  made  for  electronically  monitored  bail  and  that  course  was explored.    A  report  was  obtained  and  in  that  report  the  accommodation  was described and it was indicated that electronic monitoring is technically feasible. However, the Police maintained the opposition to bail in that form.

[4]      The appellant appeared again on the application for bail with electronic monitoring on 20 January 2009.   In extensive remarks made on that occasion the Judge refused electronic monitoring bail and remanded the appellant in custody.

[5]      This appeal is against that decision.

[6]      The appellant is 19 years of age but has a considerable history of previous offending both in the Youth Court and in the District Court.   He has a history involving some 55 previous convictions described in the grounds of opposition to bail as seven traffic convictions, three violence convictions, three drug convictions,

12 theft convictions, three escaping from custody convictions, five burglary convictions, four wilful damage convictions, one trespass conviction, two receiving convictions, five unlawful interference convictions, one assaults police conviction, one resists arrest conviction, two possession of offensive weapons convictions, three convictions for being unlawfully in a building or yard, and one conviction for failing to answer District Court bail.

[7]      The discretion whether to grant bail or not was one which was clearly within the function of the Learned District Court Judge and he gave serious and careful consideration  to  it.    He  noted  the  appellant’s  previous  history  and  clearly  the appellant was well known to the Learned Judge.   He regarded the likelihood of further offending to sustain the appellant’s drug problem as a significant issue and one which disposed him to rule against even an electronically monitored bail regime. He  expressed  the  view  that  is  was  too  big  a  problem  for  even  electronically monitored bail to govern.

[8]      He noted that the proposal was that the appellant live with his Mother but expressed the view that that relationship was likely to be, in my words rather than the Judge’s, manipulated by the appellant in such a way that he did not think that it

would work and that it would be setting him up to fail.  He said he regarded the risk of offending as just too great.

[9]      The one matter which was of particular concern for the Judge, as it must be on this appeal, was the length of the time that the remand would continue.   The charge is one of theft.   There is a pre-trial application which must be addressed which relates to the admissibility of the video interview statement.  There is some uncertainty, at this stage, as to  when  that  can  be dealt  with.    Mr Vanderkolk’s understanding  is  that  that  is  to  be  heard  this  Thursday,  5  February,  although Mr Becker  who  is  Counsel  for  Mr D    in  respect  of  that  application  had apparently not been made aware of that date.  If the matter continues following the disposition of that pre-trial application Mr Vanderkolk indicates that it could be given a trial date in June.  That is a significant period as the Judge noted and he was rightly concerned about it.  However, it is clear that that did not outweigh the other factors which the Judge had seen as requiring a refusal of the application.  I do not consider, despite the very helpful submissions on the appellant’s behalf, that it has been demonstrated that the view which the Judge took was not one which he was able to take in the circumstances.  For these reasons I do not consider that this Court could or should interfere with that decision.

[10]     For these reasons the appeal will be dismissed.

“A D MacKenzie J”

Solicitors:         S J De Vorms, Levin for Appellant

B D Vanderkolk, Palmerston North for Respondent