Hakaoro v The Queen - [2014] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/2014
[2014] NZCA 204

BETWEEN	HAKAORO HAKAORO Appellant
AND	THE QUEEN Respondent

Telephone

Conference:

26 May 2014

Counsel:

M Goodwin for Appellant
M Downs for Respondent

Judgment:

28 May 2014 at 3.00 pm

JUDGMENT OF WHITE J

The application for bail is declined.

____________________________________________________________________

REASONS

The appellant, Hakaoro Hakaoro, pleaded guilty in the Manukau District Court to six counts of providing immigration advice without being licensed and one count of holding himself out as an immigration adviser without being licensed or exempt. Mr Hakaoro was sentenced on 22 January 2014 to one year eight months’ imprisonment and ordered to make reparation of $5,000.[1]
[1]Department of Labour v Hakaoro DC Manukau CRI-2011-092-19106, 22 January 2014.
Mr Hakaoro has appealed to this Court against his sentence and has also applied for bail pending the hearing of his appeal under s 55 of the Bail Act 2000. Mr Hakaoro’s appeal is to be heard by the Criminal Appeal Division of the Court sitting in Auckland on 18 June 2014.
Bail is opposed by the Crown.
I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.[2]

Relevant principles

[2]See now s 333(2)(d) of the Criminal Procedure Act 2011.

The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show just cause why bail should be granted.
Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case Mr Hakaoro relies on the apparent strengths of his grounds of appeal.[3]

Discussion

The apparent strengths of the grounds of appeal

[3]Bail Act 2000, s 14(3)(a).

It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.[4] It has also been pointed out that the prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail.[5]
[4]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).
[5]Hosking v R [2012] NZCA 263 at [5] and see R v Veza [2007] NZCA 409.
For Mr Hakaoro, Mr Goodwin submits that the grounds of appeal in this case are strong because:
(a)The sentence imposed by Judge Paul is inconsistent with the sentence imposed by Judge Hubble in R v Ekuale[6].
(b)The pre-sentence report which Judge Paul relied on in sentencing Mr Hakaoro contained several serious inaccuracies, namely statements relating to his relationship with the Immigration Advisers Authority, his remorse and the length of his relationship with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hakaoro v The Queen

Details

AGLC: Hakaoro v The Queen [2014] NZCA 204
Case: [2014] NZCA 204
Decision Date: 28 May 2014 at 3.00 pm

CaseChat Overview and Summary

Hakaoro Hakaoro, the appellant, has appealed against his sentence and applied for bail pending the hearing of his appeal. The appeal was to be heard by the Criminal Appeal Division of the Court sitting in Auckland on 18 June 2014, and the Crown opposed the bail application. The court considered the application for bail under section 14 of the Bail Act and was required to decide whether it was in the interests of justice to grant bail to the appellant. The court examined the apparent strengths of the grounds of appeal, the length of the sentence imposed and the likely length of time before the appeal would be heard, and the personal circumstances of the appellant. The court concluded that the grounds of appeal were not particularly strong, and the appeal would not be rendered nugatory by the appellant remaining in custody pending the determination of the appeal. The court also noted that the appellant did not rely on any relevant personal circumstances in support of his application for bail.

The court considered the apparent strengths of the grounds of appeal and noted that it was not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail. The court found that the grounds of appeal were arguable but not particularly strong. The court also noted that the decision in R v Ekuale related to different offences and different circumstances, and the criticisms of the pre-sentence report, which were disputed, were not able to be resolved in advance of the hearing of the appeal. The court also found that it was not at all clear that the Judge failed to take into account the appellant's repayment offer.

The court considered the length of the sentence imposed and the likely length of time before the appeal would be heard and found that the appellant's appeal had been set down for hearing on 18 June 2014, and as he would be released after serving one-half of the one year and eight months' sentence of imprisonment imposed on 22 January 2014, his appeal would not be rendered nugatory, and no injustice would arise from the appellant remaining in custody pending the determination of his appeal. The court also noted that the appellant did not rely on any relevant personal circumstances in support of his application for bail.

The court concluded that it was not in the interests of justice to grant the appellant bail pending the hearing of his appeal. The court also made some timetable directions to expedite the hearing of the appeal. The Crown was to arrange for the filing and service of the affidavit from the writer of the pre-sentence report by Friday 30 May 2014 and to give notice whether the appellant and his brother were required for cross-examination on their affidavits. The appellant's submissions in support of his appeal were to be filed and served by 6 June 2014, and he was to give notice by the same date whether the report writer was required for cross-examination on his affidavit. The Crown submissions were to be filed and served by 11 June 2014.

Orders