F v Police HC Auckland CRI 2007-404-21

[2007] NZHC 35

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-21

H F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 February 2007

Appearances: Ms Pecotic for appellant

Ms Jelas for respondent

Judgment:      13 February 2007

ORAL JUDGMENT OF WINKELMANN J

Crown Solicitor, Auckland

M Pecotic, Barrister, Auckland

F  V POLICE HC AK CRI 2007-404-21  13 February 2007

[1]      Mr F      is remanded in custody awaiting sentence on one charge of fighting in a public place, two charges of theft (these are both shoplifting offences relating to the theft of a bottle of alcohol valued at $52 and the theft of a bottle of alcohol valued at $37.99) and five counts of wilful damage (for which the cost of reparation is estimated to be in the vicinity of $600).  Fighting in a public place is an offence which is fineable only.  The two charges of theft have a maximum penalty of three months imprisonment and the charge of wilful damage has a maximum penalty of three months imprisonment.  Mr F      is currently in custody until April 2007 awaiting sentence on those matters.  He also faces charges to which he pleaded not guilty of driving while disqualified, breach of community work and breach of release conditions.  Prior to being remanded in custody awaiting sentence he had been remanded at large on the last three charges.

[2]      Mr  F       appeals  Judge  Tompkins’  decision  of  17  January  2007 remanding Mr F      in custody awaiting sentence.   Ms Pecotic says that the Judge erred in doing so because the matters to which Mr F      had pleaded guilty are at the lowest end of the range of criminal offending and that the time that he will spend in custody awaiting sentence will be significantly longer than any sentence that might be imposed upon him.

[3]      When the matter came before Judge Tompkins he noted that Mr F      has a considerable history of offending.   He noted that the offending to which he had pleaded guilty had occurred shortly after his release from a sentence of three months imprisonment on three counts of wilful damage, one count of receiving property, one count  of  possession  of  needles,  one  count  of  shoplifting,  three  breaches  of community service orders and one count of burglary.  Mr F      also breached the conditions of release in relation to that offence.  Having noted this history, the Judge said:

The clear risk if bail were to be granted is that Mr F      would get drunk and continue to commit these kind of offences, which have individually, a low level of impact but cumulatively, a significant detrimental impact on the community.   Given the speed with which he has re-offended and the long history of criminal offending Mr F      has accumulated since September

2003 which now runs to four pages and contains numerous convictions for

wilful damage, breach of community work, breach of bail and the like, in my view the risk of Mr F      if admitted to bail committing further offences whilst on bail is simply too great.

[4]      The Judge then turned to consider the issue of the time that would elapse before sentence.  He said:

I do not overlook the time that will pass between now and the time sentence is  imposed,  but  given  his  history,  given  the  lenient  and  rehabilitative sentence imposed by the Judge last year and given the serial nature of this offending it may well be that cumulative sentences are appropriate.

[5]      I  share  Judge  Tompkins’  concerns  regarding  Mr   F     ’s  conduct. Mr F      has engaged in what could best be described as a spree of low level offending.  A concern that he will continue to do so whilst on bail awaiting sentence is a very legitimate concern.  However, Mr F      was remanded in custody on 17

January 2007 for sentence on 10 April 2007. I accept Ms Pecotic’s submission that a sentence of six months imprisonment for the totality of this offending would likely be one that was manifestly excessive.

[6]      I am therefore satisfied that the Judge erred at paragraph [8] in directing himself that too long a time would not pass between remand in custody and sentence, although I acknowledge the frustration that any Judge feels when confronted with a person whose conduct has been such as that of Mr F     ’s in this case.

[7]      I allow the appeal.  I have asked counsel to confer regarding appropriate conditions for bail pending sentence on 10 April 2007.   I therefore impose the following conditions:

1.Mr F      is remanded on bail until 10 April 2007 for sentence in the North Shore District Court.

2.He is to reside at [address], Snell’s Beach, which is the residence of Mr and Mrs M .  He is to comply with the rules of their household.

3.He is to be subject to a curfew between the hours of 9.00 pm and 7.00 am seven days a week and is to present himself at the door if subject to a curfew check.

4.He  is  to  report  to  the  Warkworth  Police  Station  every  Tuesday between the hours of 9.00 am and 4.00 pm.

5.        He is not to consume alcohol.

Winkelmann J