Hana v New Zealand Police HC WN CRI-2008-485-4

[2008] NZHC 2342

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-4

BERNETT HANA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 May 2008

Counsel:         M Dixon for Appellant

J Murdoch for Respondent

Judgment:      22 May 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against conditions of bail, that the appellant not consume alcohol or illicit drugs, and not enter Courtenay Place save to instruct counsel.

[2]      Mr Hana is charged with a number of possession of cannabis offences.  Some of which he has pleaded guilty, some not guilty.  On the guilty pleas most recently he was sentenced to imprisonment.  On the not guilty pleas a fixture no doubt will be given for the hearing.  On some of the not guilty pleas he has been granted bail on

conditions that I have mentioned.  On others, no bail conditions.

HANA V NEW ZEALAND POLICE HC WN CRI-2008-485-4  22 May 2008

[3]      The appellant submits that given in other cannabis offending the appellant has not had such a restriction imposed, that there has been an inappropriately inconsistent approach by the Courts.  In addition, counsel has provided me with a copy of  a  decision  of  Chisholm  J  indicating  that  he  did  not  think  a  condition requiring the appellant to stay out of Courtenay Place should be reconciled with s 31(3) of the Bail Act in that the condition did not have the slightest prospect of altering Mr Hana’s behaviour and, therefore, not the slightest prospect of helping him avoid committing offences while on bail.

[4]      As to the term relating to possession and consumption of illicit drugs, the appellant says this condition will not reduce the risk of re-offending, in any event effectively a form of double-jeopardy.

[5]      Mr Hana has offended dozens of times in the last few years and it is clear he intends to continue to offend.  Remands in custody and sentences of imprisonment will not stop him offending upon his release, but at least while he is in custody the opportunity to offend publicly disappears.

[6]      In this case it seems to me Mr Hana is fortunate to have had bail at all.  It is a near certainty that he will re-offend.   He has a history of offending while on bail including offensive behaviour as well as consumption of drugs.  Almost all of the offending that I can see is undertaken in the central city area of Wellington, particularly in the entertainment areas in and around Cuba Mall, Manners Mall and Courtenay Place.  With this background, as I have said it is remarkable he has bail at all.

[7]      Bail conditions can legitimately be imposed where the facts justify such an approach to prevent re-offending.  The assumption behind the conditions is that the bail person will obey the conditions, but if they do not then a reconsideration of bail may occur.

[8]      The other requirement behind bail conditions is that they comply with s 31(3) of the Bail Act.   Two bail conditions here, in my view, are designed to prevent re-offending.     They  are  designed  to  keep  Mr  Hana  out  of  the  busy  public

thoroughfare where he has regularly offended, apparently enjoying his notoriety. They are designed to stop him consuming alcohol and drugs which, it is reasonable to assume, plays a part in triggering his offending.   The conditions of bail do not need to relate directly to preventing the type of offending that he is currently charged with, that is cannabis offending.   They can legitimately be designed to lessen the chance of other offending which an accused has shown a propensity to commit.

[9]      If Mr Hana obeys the bail restrictions, then his chance of re-offending may (and I stress “may”) be reduced.  If he chooses not to obey them then a remand in custody seems probable.

[10]     I have said already that it is, in my view, significant that all of Mr Hana’s offending since he came to Wellington is in the central city area.  Having previously come across Mr Hana in appeals against conviction and other appeals relating to bail, it seems to me more than a coincidence that his offending is in part a public performance.   Rather than simply restrict Mr Hana by limiting him going to Courtenay Place or Cuba Mall, I think the appropriate conditions of bail which better meets the intention of the District Court Judge, is to prevent Mr Hana coming into the central business district at all other than for the purpose of court attendance and other than for the purpose of seeing his lawyer.  While that is a significant restriction on Mr Hana’s right of movement given his background of offending, almost all of which is concentrated in one area, such a condition does reasonably and directly focus on avoiding re-offending.

[11]     What I am prepared to do is quash the condition of bail relating to preventing him coming to Courtenay Place and replacing it with the following condition:

That Mr Hana not come within 3 kilometres of the Wellington Town Hall, save to attend Court and save to attend a pre-arranged appointment with his counsel.

[12]     The other condition relating to non-consumption of alcohol and illicit drugs should remain.  It is a legitimate condition of bail focusing on re-offending.

[13]     It may be that Mr Hana is incapable of obeying these conditions, and if he is then he can expect a remand in custody.  If he does obey them during the period of his remand then he will have avoided further offending, the intention of such conditions.

[14]     In that sense, the appeal is allowed but the conditions of bail imposed in the way that I have indicated.

“Ronald Young J”

Solicitors:

Crown Solicitor, Wellington