Fataiki v Police

[2014] NZHC 1477

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-175
CRI-2014-404-176
CRI-2014-404-178
CRI-2014-404-179

CRI-2014-404-180 [2014] NZHC 1477

BETWEEN

KYLE FATAIKI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 June 2014
Counsel:	MB Meyrick for Appellant FMT Culliney for Respondent
Judgment:	27 June 2014

JUDGMENT OF BREWER J

Solicitors:  Berman & Burton (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

FATAIKI v POLICE [2014] NZHC 1477 [27 June 2014]

Introduction

[1]      Mr Fataiki appeals against a refusal by Judge PI Treston in the District Court at Manukau on 10 June 2014 to grant him bail.

[2]      Mr Fataiki  has  a  reasonably extensive  list  of  previous  convictions  and  a number of sentences of imprisonment.   None of his convictions put him into the class of offender whose release would raise real fears for the physical safety of members of the public.   He has quite a few driving offences, offences relating to drugs, and one or two dishonesty convictions.  But he has a bad record for driving while disqualified (I count five previous convictions for driving while disqualified, third or subsequent offence).  Accordingly, as the District Court Judge recognised, s 13 of the Bail Act 2000 applies.  That is to say, he can only be bailed now if the interests of justice require it. The onus is on Mr Fataiki.

District Court

[3]      Mr Fataiki was before the District Court Judge on 10 matters.  Two of them were further driving while disqualified, third or subsequent offences, charges.   He pleaded guilty to both and is currently awaiting sentence on them.  On one of them he had been earlier remanded for sentence but did not appear.   Apart from three charges of breach of bail, which are admitted, there was a further group of offences alleged  to  have  occurred  on  11  March  2014,  of  which  the  most  serious  was possession of cannabis for the purposes of sale or supply.

[4]      The District Court Judge essentially accepted the Crown’s submission that, on Mr Fataiki’s past record and on the current charges, to further release him on bail would mean a real risk of further offending.   At the very least, he was unable to discharge the onus on him.

[5]      The District Court Judge was also influenced by his view that a sentence of imprisonment might well result from the two further charges of driving while disqualified, third or subsequent offence, they being the sixth and seventh occasions on which convictions for that offence had been entered.

[6]      Finally, the District Court Judge took into account that sentencing on those charges is set for 29 July 2014.  Not a distant date.

Submissions

[7]      Mr Meyrick raises two points of error on the part of the District Court Judge. The first is the state of the evidence on the group of charges which include the charge of possession of cannabis for the purposes of sale or supply.

[8]      I do not need to consider that submission further.  The District Court Judge focused on criminal record, likelihood of imprisonment on the charges to which Mr Fataiki has pleaded guilty, and the imminent sentencing date.  For my part, I do not consider the group of charges to which I have referred to be particularly significant to this application and, in my view, the District Court Judge was right to concentrate on the three factors I have just mentioned.

[9]      The second  point  raised  by Mr Meyrick  is  the likelihood  of a custodial sentence on the charges to which Mr Fataiki has pleaded guilty.  Mr Meyrick does not  represent  Mr Fataiki  on  those  charges.    Nevertheless,  on  a  general  basis, Mr Meyrick submits that it is unlikely that a custodial sentence will result.   In his experience, District Court Judges are reluctant to impose a sentence of imprisonment on charges of driving while disqualified, third or subsequent offence, no matter how frequently repeated.

[10]     I accept that submission lightly, which means that I acknowledge it as a possibility without placing enormous weight on it.

[11]     The Crown’s position is simply that Mr Fataiki, on the matters identified by the District Court Judge, is unable to discharge the s 13 onus.

[12]     I agree.

Decision

[13]     Mr Meyrick has submitted everything that can be advanced on behalf of Mr Fataiki’s bail appeal.  But the fact remains that there is an onus on Mr Fataiki to demonstrate on the balance of probabilities why the interests of justice require him to be released at this stage.  The factors identified by the District Court Judge are the principal factors which go to the interests of justice analysis.   Mr Fataiki has a significant record of offending, including breaching bail.   In a short time, 29 July

2014, he will be sentenced in the District Court on his sixth and seventh convictions for driving while disqualified, third or subsequent offences.   He will also be dealt with on his admitted three breaches of bail. At the time that he was apprehended, he was already subject to a warrant for arrest because he had not appeared at an earlier sentence hearing.

[14]     Therefore, in my view, this is not a situation where Mr Fataiki has discharged his onus and there is no error on the part of the District Court Judge.  The appeal is

dismissed.

Brewer J