Greenwood v Police HC Nelson CRI 2007 442 9
[2007] NZHC 2030
•23 August 2007
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2007 442 000009
BETWEEN COLIN JAMES GREENWOOD Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 22 August 2007
Counsel: H Roose for the Appellant
C P Stevenson for the Respondent
Judgment: 23 August 2007
JUDGMENT OF WILD J
[1] Mr Greenwood appeals against Mr Zohrab’s refusal to grant him bail on
Tuesday this week, 21 August.
[2] Mr Greenwood alleges the Judge’s decision was erroneous because the Judge did not apply the relevant provisions, in particular s15 Bail Act 2000 which provides:
15 Granting of bail to defendant under 20 years of age
(1) If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.
(2) Subsection (1) is subject to –
…
(b) subsection (4A) … of section 142 of the Criminal Justice Act
1985,
GREENWOOD V NEW ZEALAND POLICE HC NEL CRI 2007 442 000009 23 August 2007
but no other enactment.
[3] Mr Greenwood is 18. Looking at him in Court, he seemed to me to be a very immature 18.
[4] He has no previous convictions.
[5] He faces 16 charges spanning the period early May to late July this year. Twelve of those charges are laid summarily, but four charges arising out of offending on the night of 20/21 July are laid indictably.
[6] In summary the charges are:
Date Charge
4.5.07 Stealing cash
5.5.07 Stealing petrol
14/15.6.07 Stealing whiskey and ammunition Ditto Interfering with a motor vehicle (x 4) Ditto Stealing a GPS
Ditto Stealing tobacco
Ditto Stealing sunglasses and an I-pod
22.6.07 Burglary20/21.7.07 Burglary *
Ditto Intentional damage to a dwelling *
Ditto Unlawfully interfering with a motor vehicle * Ditto Theft of a motor vehicle *
26.7.07 Possession of cannabis seed
* Laid indictably.
All the offending was in Motueka.
[7] It is the indictable charges that primarily concern the Police. They involve a systematic trashing of a private dwelling in Motueka by Mr Greenwood and his young co-offender. Over some nine hours they ransacked every room in the house. Cupboards, drawers and bookshelves were up-ended or emptied out. Freezers and fridges were unplugged. Food from these and from the pantry was tipped out and some of it, such as yoghurt, eggs and scallops, were thrown all around the house, and over almost everything in it. Paintings and photographs on the walls had food thrown at them. One valuable painting was stabbed repeatedly with a knife. About
$15,000 of property was stolen by Mr Greenwood and his co-offender. They drove off with it in a Subaru Forester motor vehicle which they stole from the house, later abandoning the vehicle in an orchard, after disabling it by tearing out wiring and the like. Some of the property stolen is damaged and some of it has not been recovered. The summary of facts includes the following:
The damage was extreme to the point that two investigating officers, Senior Detective John Nicholls with 21 years service in the Police and Senior Constable Robert Crawford with 18 years service, had both never observed so much damage and disturbance from a burglary to a house in their entire Police careers.
[8] Mr Greenwood was granted bail by Judge Whitehead when he first appeared on 31 July. The terms included a 6 pm to 7 am curfew.
[9] Mr Greenwood was brought back to the Court on 10 August after breaching that curfew term. He was not home when Police made a curfew check at 6.45 pm. He claimed he believed his curfew was 7 pm to 7 am.
[10] Justices renewed his bail, altering the curfew term to the more simple 7 pm-
7 am. No bail breaches have been reported since then.
[11] Appearing before Judge Zohrab on Tuesday this week, Mr Greenwood pleaded guilty to all 16 charges. The Judge remanded him in custody, saying:
[3] What weighed in favour of the earlier young offender who was involved in some of this offending, but not the more serious aspects of it, was his age and limited history. Here we have much more serious offending. I note with interest the helpful note that was left for the victims of this offending ‘next time lock the door’. In my view this is serious offending over a long period of time. There are a significant number of aggravating features. Notwithstanding your age, in my view, the only appropriate response is a prison sentence. The remand is in custody. …
[12] Counsel agree s15 Bail Act and s142(4A) Criminal Justice Act 1985 are relevant provisions. For the Crown, Mr Stevenson submits s13 Bail Act is also relevant, and indeed is the starting point. Mr Roose rejects that, contending s13 has no application here.
[13] As is clear in the passage I have set out, Judge Zohrab did not expressly refer to any of the three provisions, but Mr Roose contends he effectively applied s13, placing overwhelming weight on his view that a sentence of imprisonment is inevitable for Mr Greenwood.
[14] I resolve this dispute in the following way:
•The starting point is s15 Bail Act. Section 15(1) applies specifically to Mr Greenwood as an 18 year old.
•Section 15 is expressly subject to s142(4A) Criminal Justice Act which provides:
Despite section 15 of the Bail Act 2000, the court may in any case direct that the person be detained in a prison if in its opinion no other course is desirable, having regard to all the circumstances.
•The result is that the District Court could remand Mr Greenwood in custody “if in its opinion no other course is desirable, having regard to all the circumstances”.
•Section 13 Bail Act is relevant because the considerations set out in s13(3) are some of the “circumstances” the Judge can consider in terms of s142(4A). Section 13(3) provides:
(3) When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:
(a) Whether the defendant is likely to receive a sentence of imprisonment:
(b) The likely length of 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 consideration that the court considers relevant.
[15] So the question for the Judge was: Is any course other than a remand in custody reasonably open in the circumstances?
[16] The Judge needed to weigh at least the following considerations:
• Mr Greenwood’s age (18) and the s15(1) imperative that he not be remanded in custody pending sentence.
• The fact that Mr Greenwood is a first offender.
• The fact that he is to be sentenced on 15 October.
• The likelihood – even very strong likelihood – that Mr Greenwood will be sentenced to imprisonment.
• The fact that Mr Greenwood had been on bail for the previous three weeks with only one (apparently inadvertent) breach.
[17] It appears from the passage I have set out that the Judge did not weigh up those factors. While elaborate bail decisions are not expected from busy District Court Judges, the Judge referred only to the fourth of the factors – the likelihood of imprisonment.
[18] I therefore need to balance the considerations I have listed. The result of doing that comes down in favour of bail continuing pending sentence. That keeps all sentencing options open. In particular, it keeps open the possibility of a non- custodial sentence which focuses on attempting to rehabilitate Mr Greenwood, and steering him away from further crime. And rehabilitation is a powerful aim when sentencing an 18 year old first offender. In the course of his submissions Mr Roose particularly mentioned the possibility of restorative justice. In the interim I have received (and have copied to counsel) a report indicating that may not be a possibility here. Nevertheless, bail pending sentence keeps open also the possibility of a restorative justice solution, however unlikely that is.
[19] I need to stress to Mr Greenwood that he ought not to interpret the continuation of bail as any indication that a non-custodial sentence is likely. I reiterate, the continuation of bail does no more than keep open all sentencing options, including imprisonment.
[20] I allow the appeal. I grant Mr Greenwood bail on the terms that were in force from 10 to 21 August together with these two fresh conditions:
• He is to report as directed for the purposes of the preparing of the reports directed by the Judge.
• He is to surrender himself to the District Court at Nelson by 9.30 am on
15 October for sentence.
Solicitors:
Crown Solicitor, Nelson for the Respondent
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