F-S v Police HC Auckland CRI 2005-404-000205

[2005] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000205

[M F-S]

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 June 2005

Appearances: Mr P Le’au’anae for Appellant

Ms C Ryan for Crown Judgment:  24 June 2005

BAIL JUDGMENT OF VENNING J

Solicitors:Tua Saseve, PO Box 23-555, Hunters Corner, Auckland Crown Solicitor, Auckland

Copy to:            P Le’Au’Anae, Manukau

F-S V NEW ZEALAND POLICE HC AK CRI 2005-404-000205 [24 June 2005]

[1]    On 2 June 2005 the appellant was convicted on a charge of assaulting [D R] at Glenfield on 30 December 2004. He was remanded in custody for sentence in the District Court on 30 June at 9.15 a.m. He appeals against the conviction and also the decision that he be remanded in custody pending sentence.

[2]    Counsel has appropriately acknowledged that the appeal against conviction should await sentence on 30 June but the appeal in relation to bail pending sentence is maintained.

[3]    Section 13 of the Bail Act applies. The onus is on the appellant to show why bail should be granted and the Court is directed not to grant bail unless satisfied on the balance of probabilities it would be in the interests of justice to do so. The Court may take into account:

·     whether the defendant is likely to receive a sentence of imprisonment;

·     the likely length of time that will pass before the defendant is sentenced;

·     the personal circumstances of the defendant and his immediate family and any other consideration the Court considers relevant.

[4]    Mr Le’an’anae submitted that it was not inevitable that a term of imprisonment would be imposed. He said on any view of it the finding against the appellant on the assault was of three punches. It was a Crimes Act assault. He noted that while the appellant has a previous history that was for a common assault and submitted that it was quite possible that the Court would impose a sentence short of a custodial term.

[5]    The issue for this Court is to determine whether  a sentence of imprisonment is likely.  The ultimate sentence is of course for the Judge sentencing the appellant  on 30 June.

[6]    For my part having reviewed the decision of the District Court Judge on conviction I have to say I think it likely that a sentence of imprisonment will be imposed. Not the least because the Judge convicting the appellant who will sentence him has noted himself that he thinks a sentence of imprisonment is likely.

[7]    As to the likely length of time that will pass before sentence the appellant is for sentence in a week’s time on 30 June. That is a very short period.

[8]    In terms of the appellant’s personal circumstances I note he has a dependent family, people who rely on him. That is a factor that the Court takes into account in the mix. Finally other considerations the Court considers relevant Mr Le’au’anae’s further submissions on this aspect was principally directed at a challenge to the decision convicting the appellant and primarily on the basis that there is a witness who did not give evidence at the hearing whose evidence is supportive of the appellant.

[9]    As Ms Ryan has properly drawn to the Court’s attention the witness was in fact a police witness who for her own reasons, which she has explained in the affidavit chose not to appear at Court when this charge was heard. Whether in those circumstances a rehearing is appropriate or her evidence is something a Court would consider on the appeal against sentence is a matter for the District Court Judge dealing with the matter at the time. For my part I do not consider it a particularly material matter for this Court’s consideration under s 13 when the focus is whether it is in the interests of justice to grant bail pending sentence.

[10]   I am faced with the position that the appellant has been convicted on a charge of assault. It is likely a sentence of imprisonment will be imposed. The sentencing process will be dealt one week from today. While I do take account of the  appellant’s personal circumstances in this case he has failed to satisfy the Court that it is in the interests of justice to grant bail. The appeal is dismissed.

G J Venning J