Davis v Police HC Invercargill CRI 2010-425-5

[2010] NZHC 239

IN THE HIGH COURT OF NEW ZEALAND

INVERCARGILL REGISTRY

CRI 2010-425-000005

DHARAM RAJ DAVIS

Appellant

v

POLICE

Respondent

Hearing:         9 March 2010

Counsel:         S Williamson for Appellant

M Mika for Crown

Judgment:      9 March 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail.   Bail was refused on 23 February

last by Judge J A Farish.

[2]      The appellant pleaded guilty to some serious offending while he was subject

to an electronically monitored community detention sentence.  He had been, contrary

to the terms of the sentence, sniffing petrol and drinking alcohol at the home of his parents.  He got into a state of mind where he decided he would “knock some heads”

to use his language.    He left the property and assaulted a 54 year old woman who was riding a bike down the road outside and would have assaulted her further but for

her receiving help from a passing motorist.  The conduct was doubly outrageous, an

DAVIS V POLICE  HC INV CRI 2010-425-000005  9 March 2010

entirely innocent victim, plus a young man fuelled by a combination of alcohol and sniffing petrol.

[3]      He  was,  nonetheless,  granted  bail  by  Judge  Callaghan  earlier  in  February. Judge Callaghan obviously applying s 15 of the Bail Act 2000.  Judge Farish said:

[2]      I  note  that  Judge  Callaghan  granted  you  bail  last  week  on  the condition that at this stage you seem to be compliant, at least for the last two weeks, with your current sentence of community detention, but at that stage your pleas were not guilty.

[3]      I am not going to admit you to bail today.  I am going to remand you

in custody because quite frankly you are a risk.   You are a risk to members

of the public and even with an electronically monitored sentence you are non compliant. Section 13 of   the   Bail   Act   applies   and   despite   what

Mr Williamson  says  I  am  not  satisfied  that  an  electronically  monitored

sentence  is  available  to  you.   I  would  have  thought  a  full  time  custodial sentence is going to be imposed, notwithstanding y our age and s 15 of the Bail Act.

[4]      You are now remanded in custody for sentence to 20 April at 2.15 pm.  I have called for a full pre-sentence report.  I have also suspended your current sentence of community detention.  That can be reviewed on that date. Stand down.

[4]      Section 15(1) of the Bail Act provides:

15       Granting of bail to defendant under 20 years of age

(1)      If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.

...

[5]      Section 15(2) provides:

(2)      Subsection (1) is subject to -

(a)sections 7 (except subsection (5)), 9 to 12, and 16 and 17 of this Act; and

(b)      subsections  (4A)  and  (4B)  of  section  142  of  the  Criminal

Justice Act 1985, - but no other enactment.

[6]      It will be noted that subs (2) very carefully selects some sections of the Bail Act to which s 15 applies.  They do not include s 13 which Judge Farish relied upon, and at the very end, so that there is no doubt, subs (2) ends with the phrase:

... but no other enactment.

That phrase includes any provision in any enactment.   It is clear, in my view, that

s 15(1) is not subject to s 8.  Section 8 is not referred to.  It is deliberately excluded obviously from the list in sub-paragraph (1).

[7]      The  critical  subsection  which  falls  to  apply  is  subs  (4A)  of  s  142  of  the Criminal   Justice   Act   1985   which   the   subsection   referred   to   in   subs   (2)(b). Subsection 4A provides:

(4A)Despite section 15 of the Bail Act 2000, the court may in any case direct that the person be detained in a prison if in its opinion no other course is desirable, having regard to all the circumstances.

That is the criteria, in my view, to apply.

[8]      I am well aware that a number of District Court Judges do not read the Bail

Act this way and it would appear that the reason they do not is that there is a conflict

of  authority in the High Court  on  the  subject. Mr  Mika  for  the  Crown  has  relied today on the decision of  Pickford  v  Police  HC  New  Plymouth  CRI  2006-443-14,

19 September  2006,  Priestley  J,  which  relies  in  turn  on  Pahulu  v  Police  HC Auckland R100/101, 15 June 2001, Nicholson J;  and, Langi v Police HC Wellington CRI 2004-485-104 23 July 2004, France J.

[9]      On the other hand, there is another line of authority which I examined in the case of Manihera-Mako v Police HC CHCH CRI 2005-409-000081 4 May 2005 and again  in  Cavanagh  v  Police  HC  INV  CRI  2007-425-000028  4  September  2007 including particularly an  analysis  done  in  the  case  of  Teare  and  Ors  v  Police  HC Rotorua, TO2/5244, 18 December 2002, Harrison J.

[10]     As I explained in Tiopira  v  Police  HC  Dunedin  CRI 2008-412-000031,  30

July 2008, s 142(4A) of the Criminal Justice Act does enable the Court to consider the question of public safety and risk when applying the standard of whether in its

opinion no other course is desirable, and, as part of that exercise may conduct a risk analysis.  But it is not applying s 8.  The danger of applying s 8 is that that will lead the  Judge  away  from  s  142(4A),  and  away  from  s  15(1),  back  into  standard  bail analysis.

[11]     As is often said by Judges, it is not our task to tell Parliament what its policy should be.  It is our task to apply Parliamentary policy.  Parliament has very plainly decided that young men under the age of 20 will not go to prison, even on remand, until after a full analysis of the options under the Sentencing Act 2002.  It is only in exceptional circumstances that they will be sent to prison on remand, and only if, in the  opinion  of  the  Court,  no  other  course  is  desirable,  having  regard  to  all  the circumstances.

[12]     That brings me to the difficulty in this case.  Plainly, Judge Callaghan, earlier

in  February,  was  of  the  opinion  that  s  15(1)  applied  and  that  notwithstanding  this young   man’s   extraordinary   behaviour   he   should   remain   on   his   sentence   of community detention with all the conditions.

[13]     In my view the shift in judgment by Judge Farish was directly related, and only related, to the fact that he had entered a plea of guilty.  But it is quite clear that that is not a factor that can be taken into account in a s 142(4A) analysis under the Criminal Justice Act.

[14]     Were I considering this matter afresh this is a case where a Court might in its opinion  take  the  view  that  no  other  course  but  sending  this  man  to  prison  as  a remand  prisoner  is  desirable  having  regard  to  all  the  circumstances. But  I  am impressed by the fact that Judge Callaghan earlier in February did not think that this was the case, and he was relying upon subsequent compliance with the conditions of sentence after the event which he is to be sentenced on on 20 April.

[15]     For these reasons I think I have no  other  option  than  to  follow  Judge Callaghan’s decision and effectively reinstate his decision to grant bail. Accordingly, the appeal is allowed.   The decision of Judge Farish is set aside.   The sentence of community detention is no long suspended but takes place again.   The

only conditions are that I need to allow time for the re-imposition of the electronic bracelet.  Accordingly, this decision will take effect as from 15 March.

Solicitors:

Hewat Galt,  Invercargill, for Appellant

Preston Russell Law, Invercargill, for Respondent