Grant v Police

[2014] NZHC 641

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000021 [2014] NZHC 641

BETWEEN  MORGAN STACY GRANT Appellant

ANDNEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Respondents

Hearing:                   27 March 2014

Appearances:           D Goldwater for Appellant

D J Orchard for Respondents

Judgment:                2 April 2014

JUDGMENT OF GENDALL J

Introduction

[1]      This is an appeal against a decision of Judge Callaghan in the District Court on 24 February 2014 refusing bail to the appellant pending her sentencing on certain charges to which she has pleaded guilty, the sentencing to take place on 29 April

2014.

[2]      By way of background to this matter, on 10 July 2013 the appellant was sentenced to 12 months intensive supervision on charges relating to receiving stolen property and breaching conditions of supervision.  A departmental programme was commenced and as I understand it she completed 10 of the 14 sessions required for this programme.  On 19 September 2013 however the appellant was exited from this

departmental programme, primarily due to lack of attendance from the 11th  session

onwards and a failure to provide any verification as to why she was unable to attend.

GRANT v NEW ZEALAND POLICE [2014] NZHC 641 [2 April 2014]

[3]      It seems that the appellant also had failed to report to her probation officer since 9 October 2013 although there may have been some sporadic telephone contact established since that time.  In addition she failed to attend a Court appearance on

10 February 2014 resulting in the Court issuing a warrant for arrest for failing to appear.

[4]      The appellant had made a voluntary appearance at the Christchurch District Court on 17 February 2014.   Then, on 20 February 2014 she appeared again and pleaded guilty to a charge of failing to comply with her earlier sentence of intensive supervision.  On that date she was granted bail in the District Court until 24 February

2014 when she was to reappear on a drug matter.  Probation had not opposed bail on

20 February 2014.  Four days later on 24 February 2014 the appellant answered her bail.  Judge Callaghan in the District Court, however, noting that probation had now changed its position and was opposing bail, refused to continue bail for the appellant. This was on the basis that the appellant had then been charged and pleaded guilty to a further offence, this being possession a few days earlier on 18 February 2014 of a Class A controlled  drug,  namely methamphetamine,  which  charge had  not  been before probation or the Court on 20 February 2014 when bail had originally been granted.

[5]      It is convenient for the purpose of considering the issues raised on this appeal to quote at this stage from that decision of Judge Callaghan dated 24 February 2014 as follows:

[1]       I have no confidence that she will not re-offend.  I think probation opposition to bail is well founded.  It actually talks about probation not being able to effectively manage her risk.  She is now up on a Class A controlled drug which she admits was for her own use.  Her performance with intensive supervision has been pretty woeful.

[2]       I accept that last Friday bail was granted by the Court, but that does not stop me from reconsidering the issue today.

[3]       So there has been some compliance with intensive supervision, but there has been continuing non-compliance and now further offending which really makes it quite clear there is a further risk of offending and I refuse bail.

[6]      It is clear the current charges to which the appellant has pleaded guilty relate first, to several breaches of supervision or non-attendance at a departmental programme and secondly, possession of a Class A controlled drug being two point bags of methamphetamine which were found in the appellant’s purse.   Her explanation was that these were for her own use.

[7]      Essentially,  the  principal  reason  why  Judge  Callaghan  refused  bail  was because the appellant might re-offend while on bail.  A key concern seemed to be that the appellant had failed to comply with requirements to report to probation since

9 October 2013 and that probation thought they would be unable to effectively manage her risk as a result should she be bailed.

[8]      As I have noted, the appellant has been in custody now since 24 February

2014.  If she remains in custody until sentencing on 29 April 2014 this will amount to a period of a little over two months.

[9]      The maximum penalty for the appellant’s failure to comply with a condition of her intensive supervision sentence and failure to complete the departmental rehabilitative programme is six months imprisonment or a fine not exceeding $1500. The maximum penalty for the offence of possession of the Class A controlled drug is six months imprisonment or a $1000 fine.

Counsel’s arguments

[10]     Mr Goldwater, counsel for the appellant, in his submissions before me noted that  the  appellant  had  attended  10  out  of  the  14  departmental  rehabilitative programme sessions which she had been required to attend.  He stated that the only reason she missed some of the later sessions was because they clashed with recent employment she had obtained at the time and she had made the decision not to attend for this reason.

[11]     So far as possession of the Class A controlled drug offence is concerned, Mr Goldwater submitted that this was purely a personal offence relating as it did to the location of two small point bags containing methamphetamine inside the appellant’s wallet which she said were for her own use.  She has admitted to being a

user of methamphetamine.  In a letter the appellant has provided to the Court dated March 2014 however, which was not before Judge Callaghan in the District Court, she explains that at the time she had significant relationship difficulties, it was the second anniversary of the death of her son who died whilst she was giving birth, and then last year she lost another child and had health difficulties which all contributed to this offending.   Her letter to the Court went on to state first, how much on reflection she regretted these foolish actions on her part in the past, secondly, how she wished now to obtain counselling and treatment for her drugs issues and thirdly, how she hoped to regain her full time employment as an apprentice electrician, a job which she says she loves.

[12]     On all of this, Mr Goldwater contended that, while there was some history of drug  offending  on  the  part  of  the  appellant  here,  the  last  drug  related  offence occurred in 2008, some six years ago.  He noted also first, that if the appellant is to remain in custody until sentencing on 29 April 2014 this will be a period of over two months, and secondly, that if any likely imprisonment sentence is to be imposed at that time (suggested as being on a concurrent basis) it may well be less than that period.

[13]     Mr Goldwater suggested too that conditions could be imposed on any grant of bail here to manage any risk the appellant might pose.

[14]     In  response,  Mrs  Orchard  for  the  respondent  referred  to  the  appellant’s previous failures to appear on a number of occasions and the concerns expressed by probation that if she is granted bail, they may not be able to manage the appellant’s risk.    Mrs Orchard  noted  also  that  the  appellant  had  some  record  of  offending previously while on bail.  She went on to contend that the appellant clearly had an entrenched drug problem and that when she was using drugs she was entirely non- compliant with any requirements placed upon her.  This would mean therefore that a sentence of imprisonment was inevitable in this case, according to Mrs Orchard, because she said the appellant had shown herself to be unsuitable for a community based sentence.

[15]     Accordingly, Mrs Orchard submitted that Judge Callaghan was left with no alternative but to make the decision he did refusing bail and the present appeal should be dismissed.

Legal principles

[16]     Section 13 of the Bail Act 2000 provides in summary that if a defendant pleads guilty to charges, 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.   The onus is on the defendant to show cause why bail should be granted and the section sets out the considerations which the Court may take into account rather than the considerations in s 8 of the Act.

[17]    Section 13 provides for the exercise of a discretion by the Court when considering bail pending sentencing.  A list of considerations are outlined in s 13(3) that the Court may take into account including whether the defendant is likely to receive a sentence of imprisonment, the likely length of time that will pass before the defendant is sentenced, the personal circumstances of the defendant and the defendant’s immediate family and any other considerations that the Court considers relevant.

[18]     As I have noted, s 13(2) Bail Act 2000 requires the appellant here as an applicant for bail pending sentencing to establish that on the balance of probabilities it is appropriate in the interests of justice that bail should be granted.  A primary consideration is always whether the convicted defendant is likely to be sentenced to a term of imprisonment – R v Leone.1

[19]     But it is also clear that it will be in the interests of justice to grant bail where a refusal to do so will mean that a defendant would have effectively completed the

maximum sentence available by the time he or she is sentenced – Solomon v Police.2

1      R v Leone [2009] 24 CRNZ 231 (CA).

2      Solomon v Police (HC) Auckland 1 May 2007 Rodney Hansen J CRI-2007-404-121.

My decision

[20]     In my view bail should be granted in this case.  By the time of sentencing if a continued  denial  of  bail  is  to  occur  here,  the  appellant  will  have  effectively completed a sentence of over two months.  The maximum penalty for each offence here is six months’ imprisonment.  It is therefore likely that when sentenced, even if she is to receive a sentence of imprisonment, at worst the appellant could be eligible for parole and released from custody immediately or within a short space of time thereafter.  Alternatively, if no or a lesser imprisonment sentence is imposed, by the time she is sentenced the appellant may very well have completed that sentence

imposed on her.  As Rodney Hansen J noted in Solomon v Police,3 albeit in slightly

different circumstances, that position is nevertheless wrong in principle because:

…it is a sentence imposed without reference to a pre-sentence report or access to any of the information which may mitigate sentence.

And, as Rodney Hansen J also noted at [7] in his decision, in a case such as the present one, that would include additional factual material. In the present case additional material has been put before the Court for this appeal, some of which I refer to at [11] above and as I see it, this must go some way to mitigating the appellant’s offending here. On this, the appellant’s offending appears to have related to the anniversary of the death of her first child, and her later loss of another child and other personal difficulties. And, the amount of methamphetamine was small and was said to be for her personal use only.

[21]     Judge Callaghan in the District Court did not have the advantage this Court has with the appellant providing her detailed letter dated March 2014 explaining these personal difficulties she was experiencing at the time and the resulting one-off lapse occasioned by the possession of the two small point bags of methamphetamine. It  does  seem  clear  from  the  material  provided  by  probation  however  that  the appellant has a longstanding issue with substance abuse and clearly needs treatment

for this, a fact which she effectively acknowledges in her letter to the Court.

3      Solomon v Police HC Auckland 1/5/2007 CRI-2007-404-121 at [7].

[22]     As I understand the position, there do not appear to be any concerns that the appellant will be a flight risk and may not reappear for sentencing on 29 April 2014. On the question whether she might re-offend whilst on bail, in part this might be managed by the imposition of appropriate bail conditions but also from her letter to the Court, the appellant appears to be suggesting that she has learned her lesson from what she describes as her “stupid and immature decisions” and might be ready now for some proper treatment for her substance abuse.

[23] Weighing up all these matters, and bearing in mind particularly the s 13(3) Bail Act 2000 considerations I have noted at [17] above and the new information which is before this Court which Judge Callaghan did not have the advantage of seeing, I conclude that this appeal must succeed and that the appellant is to be released on bail on certain conditions pending her sentencing.

[24]     I now make the following orders:

(a)      Given that this appeal has succeeded, the appellant is to be released on bail pending her sentencing on 29 April 2014 on the following conditions:

(i)She  is  to  reside  at  her  previous  residential  address  in Christchurch, and she is to notify the Registrar of the District Court at Christchurch and her probation officer of that address forthwith.

(ii)She is not to consume or have in her possession illicit or non- prescription drugs or any drug paraphernalia.

(iii)She is to submit to any screening test for drugs that may be required by the probation service and is also to make herself available for and attend any drug rehabilitation meetings or courses required by the probation service.

(iv)Bail is to continue until 9 a.m. on 29 April 2014 when she must attend at the Christchurch District Court for sentencing.

...................................................

Gendall J

Solicitors:

David Goldwater, Christchurch

Raymond Donnelly & Co, Christchurch