Heta v The Queen

[2012] NZCA 115

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/2012
[2012] NZCA 115

BETWEEN  MARGARET DOREEN HETA
Appellant

AND  THE QUEEN
Respondent

Counsel:         R Vigor-Brown for Appellant
M Lillico for Respondent

Judgment:      27 March 2012

(On the papers)

JUDGMENT OF HARRISON J

The application for bail is dismissed.

REASONS

1. The appellant, Margaret Heta, pleaded guilty to and was convicted of two counts of dishonesty using a document under s 228 Crimes Act 1961 and one count of what is known as social welfare fraud under s 127 Social Security Act 1964.  The maximum term of imprisonment for the former offences is seven years. 

2. On 2 March 2012 Ms Heta was sentenced by Judge Weir in the District Court at Rotorua to 12 months imprisonment.[1]  She now appeals against that sentence on the ground that it is manifestly excessive or wrong in principle.  Her counsel, Mr Vigor-Brown, submits that a term of home detention should have been imposed.

   [1]      R v Heta DC Rotorua CRI-2010-063-3901, 2 March 2012.

3. Ms Heta has applied for bail pending determination of her appeal pursuant to s 70 of the Bail Act 2000.  I have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

4. Section 14 of the Bail Act provides that 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.  By s 14(2), Ms Heta has the onus of showing cause why bail should be granted.

5. Mr Vigor-Brown has filed a synopsis in support of Ms Heta’s application.  Mr Lillico for the Crown has filed a memorandum in opposition.

6. In essence, Mr Vigor-Brown submits that the sentencing Judge made a number of material errors.  He identifies three in particular: first, in concluding that Ms Heta displayed no remorse; second, in relying on Ms Heta’s “very belated” plea of guilty, when the converse was correct; and, third, failing to request a reparation report.  Mr Vigor-Brown also submits that Ms Heta’s circumstances are exceptional because she has the responsibility for caring for three young children. 

7. I am not satisfied that Ms Heta has discharged her statutory burden of establishing that it is in the interests of justice that bail should be granted pending determination of her appeal.  It is not possible at this stage to comment on the merits of her appeal.  Her personal circumstances may be difficult but doubtless arrangements have been made to care for her three dependent children. 

8. However, the Registry is requested to allocate an early fixture to hear Ms Heta’s appeal against sentence.  The hearing is unlikely to occupy more than one hour.  Time is available at a sitting of the Criminal Appeal Division of this Court in Auckland on Tuesday, 15 May if a fixture cannot be allocated earlier. 

9. Ms Heta’s application for bail is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent