Goodall v Police

[2017] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-007 [2017] NZHC 92

IN THE MATTER

of an appeal against refusal to grant bail

pending sentence

BETWEEN

PHILLIP MARK GOODALL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 February 2017
Appearances:	K J Gray for Appellant C J Bernhardt and B Hawes for the Respondent
Judgment:	8 February 2017

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST REFUSAL OF BAIL PENDING SENTENCE)

This appeal

[1]      The appellant has pleaded guilty to three charges, one of assault under the Summary  Offences Act  1981,1      one  of  male  assaults  female  under  the  Crimes Act 1961,2  and one of breaching a protection order.3    The charges resulted from an incident on Christmas Eve last year, when the appellant assaulted a former partner, in whose favour there is a protection order, and a male.

[2]      On 4 January 2017, His Honour Judge Walsh remanded the appellant on bail without plea, after his application had initially been refused.   Following the guilty plea,  His  Honour  Judge  O’Driscoll  refused  the  appellant’s  application  for  bail

pending sentence.  The Judge’s main reason for refusing the application was that this

1      Summary Offences Act 1981, s 9; maximum penalty 6 months’ imprisonment or $4000 fine.

2      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.

3      Domestic Violence Act 1995, s 49(3): maximum penalty 3 years’ imprisonment.

GOODALL v NZ POLICE [2017] NZHC 92 [8 February 2017]

is the appellant’s twelfth breach of a protection order and a sentence of imprisonment was highly likely.

[3]      The appellant appeals against the refusal to grant bail pending sentence.  For the reasons below, the appeal is dismissed.

Jurisdiction and principles on appeal

[4]      The appellant has a right of appeal against the Judge’s refusal to grant bail,4 which proceeds by way of re-hearing.5   Where there has been no significant change in circumstances, the appeal is conducted on the basis of the record of the District Court.6

The approach on appeal is that articulated in B v Police (No 2),7  where the Court identified what is involved as essentially a challenge to the exercise of judicial discretion:8

Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court's decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. (Where there has been such a change in circumstances the better course is for a further application to be made to the lower Court, rather than the pursuit of an appeal.)

[5]      This approach has been affirmed by the Supreme Court in Wong v R.9

Law

[6]      Where a defendant pleads guilty, the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in

the particular case to do so.10   The onus is on the defendant to show cause why bail

4      Bail Act 2000, s 44(1).

5      Bail Act, s 44(6).

6      Grey v Police [2014] NZHC 3169 at [4].

7      B v Police (No 2) [2000] 1 NZLR 31 (CA).

8 At [6].

9      Wong v R [2009] NZSC 64.

10     Bail Act, s 13(1).

should be granted.11  When considering the interests of justice the Court may take into account the following factors instead of those in section 8:12

(a)       Whether   the   defendant   is   likely   to   receive   a   sentence   of imprisonment;

(b)      The likely length of the time that will pass before the defendant is sentenced;

(c)       The personal circumstances of the defendant and the defendant’s

immediate family;

(d)      Any other considerations that the court considerers relevant.

Analysis

[7]      The appellant, through counsel Ms Gray, submits that bail should have been granted in the interests of justice, and another view should have been taken in the District Court.

Likelihood of a sentence of imprisonment

[8]      Judge O’Driscoll was of the opinion that a sentence of imprisonment was highly likely. While each of the three charges, to which pleas have been entered may result in sentences of imprisonment, the Judge focused on the breach of protection order.  The appellant has been convicted of breaching a protection order on eleven occasions, all in relation to his former partner.   He was last sentenced for breach on

29 May 2015,  for five breaches which occurred in February of that  year.   The sentence imposed was six months home detention and 120 hours of community work.  Judge O’Driscoll suggested that, given this sentence, “the Court is unlikely to impose a further electronically monitored sentence”13  and that “it will be necessary to hold the defendant accountable”.14

[9]      In Crean v Police, Brewer J noted that breach of a protection order is “one of

the types of offending where prior convictions are integral to the assessment of the

11     Bail Act, s 13(2).

12     Bail Act, s 13(3).

13     New Zealand Police v Goodall [2017] NZDC 1190 [notes on bail application] at [4].

14 At [4].

gravity  of  the  index  offending”.15   In  that  case  the  fact  that  the  defendant  had breached the order on  two previous occasions  was a major factor in the Judge upholding a sentence of 12 months imprisonment.  The breach in that case involved the defendant following and arguing with the protected person over some distance, causing the protected person to seek refuge by locking herself in a public lavatory. There was no physical altercation.

[10]     In Mitchell v R, the starting point for the breach of a protection order was

8 months imprisonment.16   The offending behaviour was leaving threatening text and voice messages on the protected person’s telephone.  Again, the record of previous breaches was a significant factor in the sentence.

[11]     In Williams v Police, the defendant breached a protection order by punching the protected person in the mouth.17     On appeal, a starting point of 12 months imprisonment for the offending was found to be manifestly excessive.  The judge on appeal preferred a seven month starting point.  A three month uplift was given for previous convictions including four previous protection order breaches.   After discount   for   guilty   plea,   the   sentence   imposed   on   appeal   was   8   months

imprisonment.

[12]     In  light  of  these  authorities,  the  Judge  was  justified  in  coming  to  the conclusion that a sentence of imprisonment was likely.   The breach in this case involved physical abuse analogous to that in Williams. The previous protection order breaches substantially increase the seriousness of the offence.  The appellant has a previous conviction for breaching home detention conditions.  This, along with the persistence of the protection order breaches, shows a disregard for court orders and will be a factor that goes against a sentence of home detention, although that remains

for fuller consideration.

15     Crean v Police [2015] NZHC 3203 at [16].

16     Mitchell v R [2015] NZCA 442; (2015) 30 FRNZ 534.

17     Williams v Police [2014] NZHC 3255.

The likely length of the time that will pass before the defendant is sentenced

[13]     The remand is  until  28  February 2017. The appellant  will  have been  in custody for a little over a month at that time.  Given the above authorities, it is likely that any sentence of imprisonment will be longer than that, if it is imposed.

Personal circumstances of the defendant and the defendant’s immediate family

[14]     Counsel raised a number of points concerning the personal situation of the appellant.  He has the shared custody of a son, and has started his own company as a gib-stopper, employing six people. These factors have relevance at sentencing.

[15]     The   appellant   has   had   problems   with   methamphetamine   addiction. He successfully  completed  an  addiction  programme  in  mid-2015.    He  received support from another organisation for methamphetamine addiction at the end of last year. The appellant submits that his previous offending was connected to this addiction, but that he has been clean for approximately fourteen months.    That, if substantiated at sentencing, is in the appellant’s favour, together with his useful work life, if substantiated.   He appears to have turned a corner in his overcoming his methamphetamine use and gainful employment, but reverted to a previous path in this offending.

[16]     Judge O’Driscoll considered these factors, but thought that they were not sufficient to warrant bail being granted.  Such a finding was open to the Judge.  The appellant’s  circumstances  are  not  exceptional.    Employment  complications  and the disruption of child care arrangements are ordinary consequences of offending, and come with the territory.  The appellant’s contention that his past drug addiction is  connected  with  his  offending  is  not  supported  by  the  fact  that  the  present offending, which is of a similar nature, occurred while he was drug free.

[17]     In Preston v Police, Duffy J held that while the opportunity to attend a drug rehabilitation programme can be a factor in favour of bail, “the Court requires more than vague advice” that drug rehabilitation is to be explored.18    There needs to be

evidence that something concrete has been organised.  The appellant has not been in

18     Preston v Police HC Hamilton CRI-2011-019-4158, 2 August 2011 at [9].

a rehabilitation programme since early December, and there is no evidence that he is scheduled to attend another in the future.  As such he is not missing out on support he would otherwise be getting by being remanded in custody.

Any other considerations

[18]     In Tufele v Police, Gendall J noted that the use of “instead of” in s 13(3) of the  Bail  Act  does  not  preclude  the  factors  in  s  8  from  being  taken  into consideration.19

[19]     In this case, the views of the victim (s 8(4)) and the likelihood that the appellant will offend while on bail (s 8(1)(a)(i)) are relevant.  In her victim impact statement,  the  victim  stated  that  she  is  concerned  about  her  safety  and  feels constantly at risk.  Given the repeated nature of the protection order breaches, and that in this latest incident the abuse was physical, these fears are reasonable.

[20]     The Police report on grounds for opposing bail show that the appellant has committed 7 offences while on bail in the past, including breaches of the protection order.  It seems likely that this could occur again.

Conclusion

[21]     Ms Gray advanced responsible and cogent submissions which turned on the interests of justice.  They fall for further consideration at sentencing.  Mr Bernhardt supported the Judge’s decision as according with principle and disclosing no error.

[22]     The Judge did not err in the exercise of his discretion in refusing to grant bail. The Judge considered all relevant factors and did not consider any irrelevant factors. The Judge was justified in coming to the conclusions that he did.   The appeal is

dismissed.

19     Tufele v Police [2016] NZHC 879 a t [16].

[23]     I add that the District Court Judge will likely be interested for sentencing in whether the appellant has remained “clean” of methamphetamine abuse, and if so why then he still offended in this repetitious and disturbing way.

…………………………………….

Nicholas Davidson J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch