Din v R
[2013] NZCA 610
•4 December 2013 at 3.00 pm
| For a Court ready (fee required) version please follow this link |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA721/2013 [2013] NZCA 610 |
| BETWEEN | SURESH DIN |
| AND | THE QUEEN |
| Hearing: | 27 November 2013 |
Court: | Stevens, Wild and French JJ |
Counsel: | P F Wicks for Appellant |
Judgment: | 4 December 2013 at 3.00 pm |
JUDGMENT OF THE COURT
The application for bail and for suspension of the sentence of home detention is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
Following a trial by judge alone in the District Court, Mr Din was convicted on 18 charges relating to dishonest use of documents.[1] He was sentenced to 10 months home detention on 3 October 2013.[2] The proposed grounds of appeal set out in his notice of appeal against conviction filed in this Court on 24 October 2013 relate solely to errors allegedly made by trial counsel.
[1]R v Maharaj DC Auckland CRI-2010-004-20916, 13 June 2013.
[2]R v Din DC Auckland CRI-2010-004-20916, 3 October 2013.
Mr Din now applies pursuant to s 403A of the Criminal Procedure Act 2011 for a suspension of his sentence of home detention and a grant of bail pending determination of his appeal.[3] This requires us to consider the effect of the Administration of Community Sentences and Orders Act 2013 (ACSO Act), which came into force on 23 October 2013. The ACSO Act altered the position under the Criminal Procedure Act and the Bail Act 2000 for bail applications in respect of appeals where a person is serving a sentence of home detention.
[3]We note that such applications are able to be dealt with by a single judge of this Court (exercising the power under s 333(2)(d) of the Criminal Procedure Act 2011).
Disposition of Mr Din’s application for bail ultimately comes down to an application of the test in s 14 of the Bail Act. Counsel were agreed that the recent legislative changes have resulted in a situation where a person sentenced to home detention who seeks to have that sentence suspended is required to apply for bail. Any such application is to be treated in the same way and applying the same test as for a person seeking bail following a custodial sentence. If bail is granted, a direction that the sentence of home detention is suspended will be made at the same time.
For the reasons that follow we have decided that Mr Din’s application for bail must be declined. Before addressing the test in s 14 of the Bail Act we will refer in outline to the legislative changes that apply to a bail application by an appellant on home detention.
Legislative changes
Prior to the commencement of the Criminal Procedure Act, a sentence of home detention was automatically suspended upon filing of a notice of appeal.[4] The person was released at large and was not subject to any restriction of movement and was not required to apply for bail.
[4]Crimes Act 1961, s 399 and Summary Proceedings Act 1957, s 124(3). The desirability or appropriateness of requiring an application for bail in such circumstances was discussed by this Court in R v Edwards [2008] NZCA 109; R v Bisschop [2008] NZCA 229; and R v Ward [2008] NZCA 328.
Under the Criminal Procedure Act, however, home detention is not included in the category of sentences that are automatically suspended upon the filing of an appeal.[5] Following the commencement of the ACSO Act, a person serving a sentence of home detention is required to apply under s 55 of the Bail Act for a grant of bail. That section provides:
[5]Criminal Procedure Act 2011, ss 343 and 345.
55Granting of bail to appellant in custody or on home detention pending appeal to Court of Appeal or Supreme Court
(1) This section applies if a person—
(a)is in custody under a conviction or is subject to a sentence of home detention; and
(b)is appealing the conviction or sentence, or both, to the Court of Appeal or the Supreme Court.
(2)The Court of Appeal or the Supreme Court (as the case may be) or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody, or is subject to a sentence of home detention, only under the conviction to which the appeal relates.
…
(Emphasis added.)
The position is more complex for “transitional” cases: those which had commenced but had not been finally determined before the full commencement of the Criminal Procedure Act on 1 July 2013. Following the passage of the ACSO Act, s 403A of the Criminal Procedure Act provides:
403ATransitional provision regarding effect of appeal on sentence of home detention
If, in any proceeding to which section 397 applies, a person is convicted and sentenced to home detention and on or after the date that this section comes into force either party appeals a determination to which the sentence relates, section 397(2) has effect subject to the following:
(a)the sentence of home detention is not suspended just because a notice of appeal or application for leave to appeal has been given unless the appeal court expressly directs that the sentence be suspended; and
(b)section 399 of the Crimes Act 1961 and section 124 of the Summary Proceedings Act 1957 (as each of those provisions read before the commencement date) do not apply; and
(c)the person sentenced to home detention may apply for bail and the provisions of the Bail Act 2000 (as those provisions read before the commencement date) apply except that sections 54, 55, 58 and 59A of the Bail Act (as those provisions read at the time of the appeal) apply with any necessary modifications.
(Emphasis added.)
Two key points emerge. First, the person sentenced to home detention may apply for bail pending the hearing of the appeal. Second, there is no automatic suspension of home detention but the appeal court may direct that the sentence be suspended. This would follow a successful application for bail.
Section 397 of the Criminal Procedure Act identifies the proceedings to which the above transitional provision applies. It provides:
397 Proceedings commenced before commencement date[6]
(1) This section applies to proceedings—
(a)commenced before the commencement date; and
(b)not finally determined (including any rehearing, retrial, or appeal) before the commencement date.
(2)Subject to sections 399 and 400, and to the other provisions of this subpart, the proceeding must continue in accordance with the law as it was before the commencement date.
[6]The relevant “commencement date” is 1 July 2013: Criminal Procedure Act, ss 394 and 2(2); Criminal Procedure Act Commencement Order 2013, s 2.
The criminal proceedings against Mr Din fall under s 397 as they were commenced and not finally determined before 1 July 2013. Mr Din was sentenced to home detention on 3 October 2013 and appealed that sentence on 24 October 2013 (following the commencement of the ACSO Act on 23 October 2013). Accordingly, s 403A applies.
Is an application for bail required?
There is a preliminary question as to whether the Court may exercise its discretion to suspend a sentence under s 403A(a) without also granting an application for bail as provided for under s 403A(c).
Mr Wicks for the appellant initially postulated that no formal application for bail was necessary. In response, Ms Laracy for the respondent submitted that bail and suspension of home detention were closely interlinked. It is only once bail is granted that time served in respect of a sentence ceases to run.[7] If a sentence were suspended without an order for bail, the appellant could be at large but the sentence would continue to run in an administrative sense. Ms Laracy further submitted that the effect of the amendments to s 403A and the Bail Act is to treat sentences of home detention pending appeal in the same manner as custodial sentences, with the result that the Court may suspend the sentence but will only do so in conjunction with the appellant being placed on bail. Without an application for bail (and the criteria in s 14 of the Bail Act being satisfied), the Court ought not to suspend the sentence.
[7]Section 58(2) of the Bail Act 2000, as amended by the Administration of Community Sentences and Orders Act 2013 [ASCO Act], provides that for the purpose of calculating how much time an offender who is subject to a sentence of home detention has served, time ceases to run on the sentence during any period in which the offender is released on bail pending an appeal. This section applies to transitional cases: s 403A(c) of the Criminal Procedure Act.
Mr Wicks now accepts that the above summary is correct and that this Court ought not to suspend a sentence without also granting bail. We agree with counsel’s assessment. Accordingly, we now address the merits of Mr Din’s application for bail pending appeal.
What is the correct test for bail?
Resolution of this question turns on the meaning of s 403A(c) which provides that persons whose appeals fall within the transitional period may apply for bail and the provisions of the Bail Act as those provisions read before the commencement date will apply, except that ss 54, 55, 58 and 59A of the Bail Act apply as amended by the ACSO Act. The Parliamentary intention is likely to have been to limit any retrospective effect of the Act. Section 55 of the Bail Act, as amended by the ACSO Act, gives this Court the power to grant bail pending appeal to persons sentenced to home detention.[8] Any grant of bail is to be “on such terms and subject to such conditions as the court or Judge thinks fit”.
[8]See [6] above.
In general, applications for bail pending appeal under s 55[9] are read in conjunction with s 14 of the Bail Act, which clarifies how the Court’s discretion ought to be exercised. Following the ASCO Act, s 14 in its amended form provides:
[9]And its precursor, s 70 of the Bail Act.
14 Exercise of discretion when considering bail pending appeal
(1)If a person is in custody or subject to a sentence of home detention under a conviction and is appealing the conviction or sentence, or both, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
(2)The onus is on the appellant to show cause why bail should be granted.
(3)When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:
(a)the apparent strength of the grounds of appeal:
(b)the length of the sentence that has been imposed on the appellant:
(c)the likely length of time that will pass before the appeal is heard:
(d)the personal circumstances of the appellant and the appellant's immediate family:
(e)any other consideration that the court considers relevant.
(Emphasis added.)
Counsel for the parties provided helpful submissions premised on the basis that s 14 applies to the current application. We note however that s 403A(c) provides that, except for ss 54, 55, 58 and 59A, the Bail Act applies as it read prior to the commencement date. Yet prior to the ASCO Act, the italicised text of s 14(1) above was not included. That is because s 14 did not apply to sentences of home detention.[10] Accordingly, there is a technical argument that s 14 does not apply to this application.[11]
[10]See ASCO Act, s 4.
[11]It seems likely that this gap is attributable to the fact that s 403A was introduced to the ASCO Bill via Supplementary Order Paper late in the legislative process: Supplementary Order Paper 2013 (269) Administration of Community Sentences and Orders Bill 2013 (339-2).
We are satisfied that this was not the legislative intention. It seems sensible to apply to the present bail application, made during the transitional period, the same test as would apply to an application for bail that is governed by the new statutory provisions. Therefore we consider that the approach set out in s 14 can be “read in” to the discretion in s 55 of the Bail Act that judges may grant bail “on such terms and subject to such conditions as the court or the Judge think fit”. Section 14 should be used to determine how that important discretion should be exercised.
Submissions on Mr Din’s application for bail and suspension of sentence
Mr Din filed an affidavit in support of his application. It set out in a preliminary way some of the factors that he contends will support his appeal based on alleged errors by trial counsel. Because the bail application was heard promptly there was no opportunity for Crown counsel to obtain an affidavit in reply by trial counsel.[12]
[12]Even though we understand a waiver of privilege has already been provided by Mr Din.
In his memorandum in support of the application for bail and suspension of his sentence Mr Wicks advances the following submissions:
(a)As the sentence of home detention imposed is one of 10 months the period of time that will elapse before the appeal is heard is such that the benefit from a successful appeal will be rendered nugatory as the sentence will have been significantly served.
(b)The appellant, on the face of his affidavit, has legitimate grounds of appeal, although it is accepted that the apparent strength of those grounds is difficult to determine in the absence of any affidavit in reply to the matters raised by the appellant.
(c)In the absence of being able to obtain a grant of legal aid, the appellant faces potential difficulties in respect of funding his appeal should he be required to continue serving his sentence of home detention pending appeal.
(d)There is no prejudice to either party from suspension.
The respondent filed an affidavit from Moin Shariff, the Probation Officer who reported to the Court as to Mr Din’s suitability for a sentence of home detention. He deposed that in order to assist Mr Din in maintaining his business and employment, a second electronic monitoring unit was set up at his business address, thereby enabling Mr Din to work at that location. As well, Mr Din is able to travel from his home address to his business address and has been issued with permission to be absent to do his shopping, look after his son and attend community work and other meetings, including with his solicitor. Mr Shariff confirmed that it was not feasible for Mr Din to attend the worksites of customers or undertake factory visits. However, community probation has accommodated his employment situation to the largest extent possible within the confines of his sentence of home detention.
Ms Laracy submits that the case against the appellant was strong, and that while several months of the sentence will have been served by the time the appeal is heard, this is not an “independently determinative” factor.
Ms Laracy also submits that s 14 of the Bail Act generally creates a presumption against the granting of bail pending an appeal. The onus is on the applicant to demonstrate on the balance of probabilities that it is in the interests of justice that bail be granted. In this context Ms Laracy referred to the well‑known authorities of this Court in Ellis v R[13] and Iti v R.[14] In the first of these cases this Court held:[15]
Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.
[13]Ellis v R [1998] 3 NZLR 555 (CA) at 560.
[14]Iti v R [2012] NZCA 307 at [7].
[15]At 560.
Mr Wicks did not take issue with the proposition that this was an appropriate description of the approach to bail pending an appeal against conviction or sentence, whether the sentence is custodial or one of home detention.
Discussion
We approach the question of bail under s 14 of the Bail Act by reference to the considerations identified in s 14(3) which the Court may take into account. We recognise that the burden of proof rests on Mr Din.
With reference to the apparent strength of the grounds of appeal, Mr Wicks accepted that the sole ground relied upon was alleged errors by trial counsel. He elaborated by suggesting that trial counsel did not mount an “effective defence”. Such defence involved a claim of right or lack of dishonest intent. Referring to Mr Din’s affidavit he submitted that Mr Din believed that at least some of the work for which he issued multiple invoices on his business letterhead had been done when in fact most of the work has not been done. Mr Wicks also pointed to an apparent lack of effective challenge by trial counsel to the expert forensic accountant called by the Serious Fraud Office.
Mr Wicks acknowledged that it was difficult for this Court to assess fully the strength of the ground of appeal at this point. We agree. In this context we note that it is never necessary, nor appropriate, to attempt an extensive analysis of the merits of an appeal when determining an application for bail.[16] We simply record Ms Laracy’s observation that the case against Mr Din appeared strong and the evidence demonstrated that Mr Din both intended to, and did, receive a pecuniary advantage from the use of false invoices. We note that Mr Din was sentenced on the basis that the proven losses amounted to $145,013.25.[17] Mr Din accepted that he did create the invoices at the request of his co-accused, Mr Maharaj, and did not undertake the work covered by the invoices.
[16]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R.
[17]R v Din, above n 2, at [7].
On the material currently before us, we do not consider the merits of the appeal to be compelling.
As to the length of sentence imposed and time to the appeal, the sentencing Judge imposed 10 months home detention. Mr Wicks has accepted a fixture for the hearing of the appeal on 5 March 2014. This will mean that the approximate time between the commencement of the sentence of home detention and the delivery of a judgment on the appeal will be six months.[18]
[18]This estimate takes into account a period of some 20 days when the sentence of home detention was erroneously suspended by administrative error.
As to the personal circumstances of the appellant, Mr Wicks accepted that Mr Din can run his business and that the Probation Service has accommodated him to a significant extent. However he says what is missing for Mr Din is the ability to work offsite with his clients and this has a limiting effect on his income.
Mr Wicks accepted that there were no other relevant considerations that this Court should take into account on Mr Din’s application.
Taking all these considerations into account we are satisfied that Mr Din has not discharged the onus of showing cause why bail should be granted. He falls short of doing so by a considerable measure. This is not a case where there are clear grounds of appeal apparent on the face of the record. At present, all the Court has are assertions by Mr Din as to what apparently happened concerning the conduct of trial counsel in the District Court. While slightly more than half of the sentence of home detention will have elapsed prior to delivery of a judgment on the appeal, this consideration is not sufficient in the circumstances of this case to conclude that Mr Din has discharged the onus resting on him.
Result
Overall, we are satisfied that it is not in the interests of justice in this case that Mr Din be admitted to bail pending his appeal.
Accordingly the application for bail and for suspension of the sentence of home detention is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
8
4
0