Gerritson v Police

[2018] NZHC 2978

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CRI 2018-035-176

[2018] NZHC 2978

BETWEEN

ADAM GERRITSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 November 2018
Appearances:	R M Lithgow QC for Appellant S C Carter for Respondent
Judgment:	16 November 2018

ORAL JUDGMENT OF MALLON J

[1]    Mr Gerritson was convicted on a charge of injuring with intent to injure following a defended hearing before Judge Hobbs in the District Court.1 He was sentenced to eight months  home  detention  and  120  hours  community  work  on 23 August 2018.

[2]    On 19 September 2018 he filed an appeal to this Court. A date for hearing that appeal of 6 December 2018 was offered by this Court. A difficulty has arisen because a transcript of the hearing is not yet available. Mr Gerritson’s counsel considers he will not be in a position to advance the appeal on 6 December 2018 because of the delay with the transcript. He therefore seeks an adjournment of the appeal to a date after the Christmas vacation.

1      Police v Gerritson [2018] NZDC 11915.

GERRITSON v NEW ZEALAND POLICE [2018] NZHC 2978 [16 November 2018]

[3]    The Court can accommodate that and it is not opposed by the Crown, but it will mean that Mr Gerritson will have all but completed his home detention sentence by that date. Unlike community work, a sentence of home detention is not automatically suspended when an appeal is filed.

[4]    It is the appeal court which has jurisdiction to suspend a home detention sentence but it is the trial court which has jurisdiction to grant Mr Gerritson bail.2 I have no difficulty with suspending the sentence in the circumstances, but that should not occur unless and until bail is considered. As the Court of Appeal said in Din v R, following the commencement of the Administration of Community Sentences and Orders Act 2013, a person serving a home detention sentence is required to apply under s 55 of the Bail Act 2000 for a grant of bail.3

[5]    I therefore make an order suspending Mr Gerritson’s home detention sentence conditional on Mr Gerritson being granted bail in the District Court. The suspension will take effect if and when bail is granted. The appeal hearing is now set for 5 March 2019.

Mallon J

2      Criminal Procedure Act 2011, s 343(a); Bail Act 2000, ss 54 and 58(2); see Simon France (ed)

Adams on Criminal Law – Procedure (looseleaf ed, Thomson Reuters) at [343.02].

3      Din v R [2013] NZCA 610 at [6].