Dowling v Police HC Auckland CRI 2010-404-420

[2010] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-420

GREG PETER DOWLING

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 December 2010

Appearances: R McCausland for the Appellant

A J Pollett for the Respondent

Judgment:      3 December 2010

ORAL JUDGMENT OF WHITE J

Counsel:       R McCausland, PO Box 7140 Wellesley Street, Auckland 1141

Solicitors:      Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

DOWLING V POLICE HC AK CRI 2010-404-420  3 December 2010

[1]      This is an appeal against the decision of District Court Judge G T Winter in the District Court at Papakura on 3 November 2010 declining to grant Mr Dowling bail.

[2]      Mr Dowling faces charges of:

a)       Theft  under  ss  219  and  223(b)  of  the  Crimes  Act  1961,  which provides for a maximum penalty of seven years imprisonment; and

b)Possession of  an  instrument  for  burglary under  s  233(1)(a)  of  the Crimes Act 1961, which provides for a maximum penalty of three years imprisonment.

[3]      The  charges  are  due  to  be  heard  in  the  District  Court  at  Papakura  on

18 January 2011.  Mr Dowling has been in custody since 6 September 2010.

[4]      Bail was declined by the District Court Judge on the ground that s 12 of the Bail Act applied because of the number of previous convictions for burglary shown on Mr Dowling’s criminal record (14) and for the following reasons:

[3]      Firstly the issue of risk of failure to appear, there have been previous breaches of Court bail, so I assess his risk of failing to appear as being moderate to high.  In terms of an assessment of his risk of interference with witnesses I assess that as being low.  In terms of risk of offending while on bail, bearing in mind his previous history, and the past criminal behaviour which contains 38 previous convictions for burglary and dishonesty and imprisonment on nine occasions, and what can only be portrayed in terms of a summary bail hearing as a certain degree of contradiction and evasiveness concerning the current allegations, I assess the risk of offending while on bail to be moderate.

[4]       In terms of the other provisions of s 8(2) this is a serious charge.  I assess the state of the police case at present to be strong based on the doctrine of recent possession.   I accept that a career thief, such as he, as described by his extensive previous criminal history will expect a sentence of imprisonment if he was convicted of these matters.  So his past conduct does not support his application for bail.  I do not assess the time before trial to be overly long.

[5]       In terms of other special matters while he has done extremely well through this year with his attention to his clear addiction difficulties, through the Salvation Army Bridge programme, there is insufficient evidence before me, and the application generally is too thin evidentially for me to have confidence in his ability to move forward, which is not to say that I would

not be persuaded about that, provided I was given suitable affidavit evidence that in particular addressed the time gap between the substantive report from the programme on 17 June and today.

[6]       What I have is a report from the support worker for the Bridge programme saying that he would be welcome back at the Lodge again. What I do not have is infilling of how he has been addressing his addictive personality in those periods.  That leaves me in a position where I am faced with a case that on the face of it looks reasonably strong by the police, and someone that may simply be falling back into his old habits, and grasping at the Bridge programme as a reason for him to be granted bail.

[7]       In those circumstances I am not persuaded that the provisions of s 12 are satisfied and the overall risk matrix under s 8 is portrayed to me this afternoon as a moderate to high risk.  I do not see appropriate conditions as being able to ameliorate that risk and for these reasons bail at this time is refused.  I will note that that refusal is not to be seen as a complete denial of bail if there is suitable affidavit material placed before me, or another Judge, on a fresh application for bail.  I have no doubt then that the risk matrix may move downwards provided suitable conditions and assurances can be given, particularly surrounding s 8(1)(c) [sic s 8(1)(a)(iii)] and the risk of offending while on bail.

[5]      Since the District Court Judge’s decision was given further inquiries have been made by the Police about Mr Dowling’s criminal record and an affidavit has been provided from the Police to this Court dated 25 November 2009 which establishes that three of the burglary convictions were included in Mr Dowling’s record  by mistake.    His  record  has  now  been  altered  so  that  only 11  previous convictions for this offence are shown.  In these circumstances it is now accepted by the Crown that s 12 of the Bail Act 2000 is not applicable.  This means that instead of the onus being on Mr Dowling to satisfy the Court that bail should be granted, the onus is on the Police to satisfy the Court that there is just cause for Mr Dowling’s continued detention, otherwise he must be released on reasonable terms and conditions: s 7(5).

[6]      A further development has also occurred since the District Court Judge’s decision in that Mr Dowling has provided the Court with a further letter from Epsom Lodge dated 18 November 2010 which includes the statement that:

When Greg was last with us, after completing stage 2 of the Bridge Programme, he was able to attend regular N.A. meetings and “Aftercare groups” which is stage 3 of the Bridge Programme.   Greg will have the opportunity to attend these groups if he is bailed to us.

[7]      In support of the appeal by Mr Dowling, his counsel, Ms McCausland, has submitted that any remaining concerns may be addressed by appropriate conditions to bail.   There have been no previous breaches of bail, the address at the Epsom Lodge is appropriate and the assistance to be provided there with Mr Dowling’s rehabilitation should also assist in addressing his drug addiction problem.  This will ameliorate  or  mitigate  the  risks  of  offending  while  on  bail.    The  last  serious offending while on bail occurred in 2004 and since then there has only been one minor matter.

[8]      For the Crown, Ms Pollett indicated that the Police still opposed bail on s 8 grounds.  She pointed out that on 24 August 2010 Mr Dowling had been sentenced to intensive supervision on charges of procuring and possessing cannabis, burglary and two counts of taking or obtaining a document for pecuniary advantage.   Yet within two weeks he had been arrested in respect of the current charges which are alleged to have been committed by him on 6 September 2010.   There is therefore evidence that he has offended while on bail which shows a risk of re-offending and possibly also a risk of failing to appear, although the last time that occurred was in

2004.   Ms Pollett submitted that the fact that the hearing of the charges is only a short time away on 18 January 2011 supports the refusal of bail.  Ms Pollett referred to s 8(1)(a) of the Bail Act 2000 and the mandatory factors in that provision and submitted that there is a risk in particular that Mr Dowling may offend again while on bail.

[9]      In   reply   Ms   McCausland   submitted   that   it   was   not   suggested   that Mr Dowling  had  failed  to  comply  with  the  terms  of  his  intensive  supervision sentence.   The short point is that the risks may be addressed by appropriate bail conditions.

[10]     In my view when it is recognised that this case is now to be considered in the context of s 8 rather than s 12 of the Bail Act 2000 and when the further evidence in the form of the letter from Epsom Lodge is taken into account, it appears that the risks identified by the District Court Judge, on the basis of the application of s 12, have shifted in favour of granting Mr Dowling bail.

[11]     I accept that in terms of s 8 there are still some risks, but I am not satisfied that  there  is  in  all  the  circumstances  just  cause  for  Mr  Dowling’s  continued detention.  I agree with Ms McCausland that the risks should be able to be addressed by appropriate conditions to the grant of bail.

[12]     The appeal will therefore be allowed.  Mr Dowling is to be remanded on bail on conditions as follows:

a)        There be an evening curfew from 7.00 pm to 7.00 am;

b)        He reside at the Epsom Lodge, 18 Margot Street, Epsom, Auckland;

c)        He is to present himself at the door of the Epsom Lodge when the

Police call to check; and

d)       He not consume alcohol or illegal drugs.

[13]     Bail on these conditions is not intended to affect in any way the sentence that Mr Dowling is already serving of intensive supervision and the conditions imposed in relation to that sentence.

[14]     Mr Dowling is remanded on bail to appear at the District Court at Papakura on 18 January 2011.

D J White J