F v Police HC Christchurch CRI 2009-442-1

[2009] NZHC 2

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-442-000001

F

v

POLICE

Hearing:         14 January 2009

Counsel:         R Ord for Appellant

T J Mackenzie and H McKenzie for Respondent

Judgment:      14 January 2009

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail.   The appellant is facing three burglary charges and an offence of theft from a car.   This arises out of what the police  described  as  a  “spree  of  offending”,  at  the  end  of  December  last.    On

21 December he is charged with going to a bar and restaurant in Nelson and using a screwdriver to open a larger chiller and remove some soft drink, and a week later going to a pizza restaurant, prying open a door and attempting, with an associate, to open a safe;   on 29 December, reaching through a broken window of a car and removing a camera;  and then finally, on 30 December he is charged with gaining entry to a chiller and taking a further two boxes of soft drink.

[2]      Mr Ord has indicated he will seek to characterise the first and last of those burglaries as relatively minor, gaining entry to chillers to get two boxes of soft drink.

F V POLICE HC CHCH CRI 2009-442-000001  14 January 2009

But that cannot be said of the charge of attempting to open the safe at the pizza restaurant.  It would appear very likely that the appellant will plead guilty as one of the grounds for this appeal is that he is co-operating with the police.

[3]      He has unfortunately a reasonably significant criminal history.  It does appear likely to me that he will receive a sentence of some form of detention.  It will either be prison or home detention.   But on these facts it will certainly not be simply community work.

[4]      The Justice of the Peace who refused bail relied principally on the fact that there is a continuing risk that he will offend while on bail.   The law has been amended to remove the standard in the Bail Act 2000 which removed the standard of “real and significant” as a qualification to risk, leaving the language of the statue “where there is a risk”.  That is clearly lowering the threshold and obviously reflects an intention of Parliament for the criterion in s 8(1)(a)(iii) to trigger at a lower threshold of risk.   Of course it does not follow that simply because that threshold triggers that a person will be refused bail.   However, it will follow that the Court must take that risk into account and also of course go on to consider all the other criterion that the Court must take into account under s 8(1)(a) and may take into account under subs (2).

[5]      I am in no doubt that the Justice was right to say on these facts that there is a risk that the defendant may offend while on  bail.    I do  not  think  there  is  any significant risk that he would fail to appear in Court or would interfere with the witnesses or evidence and I would go so far as to say there is no risk of either of these two criteria.     Moving on to subs (2) he is, however, charged with three burglary offences, one of which is quite serious.  The police appear to have a strong case and it is highly likely that he will plead guilty.  He is likely to be sentenced to some form of detention, whether imprisonment or home detention.   He has a past criminal history which is deplorable although Mr Ord says it is some years since he has been charged with dishonesty offending.   This matter can come to a hearing quickly if a plea of guilty is entered, as I anticipate it will be from hearing counsel, and I envisage then that in the usual way he will receive credit for the time he has spent in prison pending the entering of convictions.

[6]      Having considered these matters I am of the view that the decision refusing bail should not be disturbed.  The appeal is dismissed.

Solicitors:
R Ord, Nelson, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent