Goh v R HC Auckland CRI 2010-404-439

[2010] NZHC 2109

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-439

PENG THIAM GOH

Appellant

v

THE QUEEN

Respondent

Hearing:         26 November 2010

Appearances: Ms G Packer for Appellant

Ms A Longdill for Respondent

Judgment:      26 November 2010

(ORAL) JUDGMENT OF LANG J [on appeal against refusal of bail]

Solicitors:

Crown Solicitor, Auckland
G Packer, Auckland

GOH V R HC AK CRI-2010-404-439  26 November 2010

[1]      On 11 November 2010 Her Honour Judge McAuslan refused Mr Goh bail pending his sentencing hearing on 25 January 2011.  He now appeals to this Court against that decision.

[2]      In order to understand the issue that the appeal raises, it is necessary to have regard to the circumstances leading up to the appearance on 11 November 2010.

[3]      Mr Goh stood trial on a charge of injuring with intent to injure.   He was found guilty by a jury on 14 September 2010.  At that point, and without opposition from the Crown, he was remanded on bail to appear for sentence on 27 October

2010.  He was bailed to live at a nominated address.

[4]      The Judge directed that a home detention appendix should be prepared and made available to the Court at sentencing.   It was not possible for the Probation Service  to  interview  Mr  Goh  for  the  purposes  of  preparing  a  home  detention appendix because he moved address and began living at another address to that to which he had been bailed.  This position was rectified on 12 October 2010, when the prosecution evidently agreed to the change of address.   By this stage, however, it was not possible for the probation service to complete its home detention appendix in time for the sentencing on 27 October 2010.

[5]      When Mr Goh appeared before Judge McAuslan on that date, she had this to say:

[1]       Mr Goh, I am very concerned that you moved address.  You have had the benefit of legal advice.   You were given an indulgence of bail pending sentence and I am now satisfied that there is merit in the suggestion made in the memorandum by Probation that you should now remain in custody so the report can be prepared.  We must not have everyone turning up again wasting their time.  It will not be allowed happen.

The Judge then remanded Mr Goh in custody to appear for sentence on 11 November

2010.

[6]      During  the  period  between  27  October  and  11  November,  the  probation service  did  not  complete  its  report.    When  the  case  was  called  before  Judge McAuslan on 11 November, the Crown urged her to sentence Mr Goh without a

home detention appendix.  It took the view that an end sentence of more than two years imprisonment was inevitable.   Ultimately the Judge was persuaded that she should not take that step.  She therefore remanded Mr Goh in custody to appear for sentence on 25 January 2011.

[7]      Counsel  for  Mr  Goh  also  appeared  for  him  at  the  hearing before Judge McAuslan on 11 November 2010.  She says that the issue of bail was not considered at  that  time,  because  the  Judge  gave  her  no  opportunity  for  that  issue  to  be canvassed.  She remanded Mr Goh in custody until 25 January 2011 without hearing submissions in relation to his custodial status pending sentencing.

[8]      On appeal, counsel for Mr Goh pointed to the fact that the Crown did not oppose Mr Goh being released on bail after he had been found guilty by a jury.  She submits that the sole purpose for which he was remanded on custody on 27 October was so that he could be interviewed for the purposes of preparing the home detention appendix.   That exercise   had been completed by 11 November, so there was no reason why Mr Goh needed to remain in custody.  She contends that the Judge ought to have allowed the position to revert to the status quo that had applied prior to 27

October.  She should have released him on bail, given her obvious conclusion that a custodial sentence was not inevitable.

[9]      Counsel for the Crown submits that, in the absence of any reasoned decision from the Judge on 11 November 2010, I should consider the question of bail afresh. It points to the fact that s 13 of the Bail Act 2000 now applies.  Mr Goh has been found guilty by a jury, so the presumption of innocence is no longer available.   It points out that Mr Goh’s co-offenders, whose culpability is less serious than his, have been sentenced with the Judge taking a starting point of three years imprisonment.  It submits that Mr Goh cannot expect a lesser starting point, and that he will not be able to point to any mitigating factors that will operate to reduce the starting point.  For that reason it contends, as it did before Judge McAuslan, that a custodial sentence of more than two years imprisonment is inevitable and that bail should be declined.

[10]     It is not possible to ascertain what Judge McAuslan would have done on

11 November 2010 had she turned her mind to the issue of bail.  I suspect, however, that the fact that Mr Goh had already been in breach of his bail terms by that point, and thereby delayed sentencing on 27 October would have been sufficient to determine the matter.   I also suspect that the Judge only directed that the home detention appendix be prepared out of an abundance of caution.

[11]     On the facts as they present to me, it is inevitable that Mr Goh will be sentenced to more than two years imprisonment on 25 January 2011.  He must be at least as culpable as the persons whom he paid to carry out the assault in respect of which he has been convicted.   I do not accept that he will be able to point to evidence of good character sufficient to reduce that starting point to two years. There are, in reality, no other mitigating factors available to him.

[12]     There is also the added fact that, having been granted bail as an indulgence as the Judge pointed out, he chose to change address without notice to the Crown or the Court. That caused the inconvenience of the adjournment on 27 October 2010.

[13]     Taking those matters into consideration, I do not think that the Judge can be said to have been wrong in the way in which she approached his custodial status after 11 November 2010.  His appeal against refusal of bail on that date is dismissed.

Lang J