Din v R - [2013] NZCA 610

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA721/2013
[2013] NZCA 610

BETWEEN	SURESH DIN Appellant
AND	THE QUEEN Respondent

Hearing:	27 November 2013
Court:	Stevens, Wild and French JJ
Counsel:	P F Wicks for Appellant M F Laracy for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Din v R

Details

AGLC: Din v R [2013] NZCA 610
Case: [2013] NZCA 610
Decision Date: 4 December 2013 at 3.00 pm

CaseChat Overview and Summary

The case of Din v R involves an appeal by Suresh Din against his conviction and sentence of 10 months home detention for dishonest use of documents. The appeal was heard by the Court of Appeal of New Zealand, with Stevens, Wild, and French JJ presiding. Din's application for bail and suspension of his home detention sentence pending the determination of his appeal was declined. The court had to decide whether the application for bail and suspension of sentence should be granted under the transitional provisions of the Criminal Procedure Act 2011 and the Administration of Community Sentences and Orders Act 2013. Din argued that his sentence should be suspended and he should be granted bail because the time elapsed before the appeal would render any successful appeal futile, he had legitimate grounds of appeal, he faced potential difficulties funding his appeal, and there was no prejudice to either party from suspension. The Crown argued that the case against Din was strong, the apparent strength of the appeal was not compelling, and Din had not discharged the onus of showing cause why bail should be granted.

The court found that Din's application for bail and suspension of sentence should be declined. The court considered the legislative changes and the test in s 14 of the Bail Act, which requires the court to be satisfied on the balance of probabilities that it would be in the interests of justice to grant bail. The court found that Din had not discharged the onus of showing cause why bail should be granted. The court found that the merits of the appeal were not compelling, the length of the sentence and time to the appeal were not sufficient to conclude that Din had discharged the onus, and Din's personal circumstances did not warrant the granting of bail. The court concluded that it was not in the interests of justice to grant Din bail pending his appeal.

Orders