Hurunui v Police HC Rotorua CRI-2007-463-35

[2007] NZHC 2117

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-463-35

CRI-2007-463-111

VINCENT HURUNUI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 September 2007

Counsel:         A M M Schulze for Appellant

M A Corlett for Crown

Judgment:      18 September 2007

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Lance & Lawson, Rotorua

Crown Solicitor, Rotorua

HURUNUI V NEW ZEALAND POLICE HC ROT CRI-2007-463-35 18 September 2007

[1]      Mr Hurunui appeals against the decision of the District Court at Rotorua to decline bail in respect of charges of possession of methamphetamine for supply, possession of utensils used for the commission of an offence namely the supply of methamphetamine and being party to allowing premises to be used for the supply of methamphetamine.   There is a further charge of possession of utensils for the commission of an offence against the Misuse of Drugs Act in relation to the supply of cannabis.  The Crown accepts that the learned Judge did not refer in his reasons for decision to what is an important consideration, the fact that no trial can be expected until at least the first quarter of 2008.   It follows that this Court must exercise the bail discretion afresh.

[2]      Mr Schulze accepts that the case is within s 12 of the Bail Act having regard to   Mr Hurunui’s   prior   offending.      Accordingly   in   considering   the   factors conveniently listed in s 8 one takes into account the need for particular care to protect the public interest against further offending.   The risk emphasised by the Crown is of offending while on bail.   Other considerations are the nature of the offence charged, the strength of the evidence, the character and past conduct of the appellant as well as the likely period of imprisonment prior to trial.

[3]      The immediate background to the case is the decision of this Court delivered by Lang J on 3 April 2007.  Mr Hurunui had been declined bail in the District Court in relation to a charge of aggravated burglary and threatening to kill.   In October

2006 Mr Hurunui and a co-accused went to a house in Rotorua and demanded a motor vehicle belonging to the occupant.  The co-accused is alleged to have pulled out a pocket-knife and to have spoken of stabbing the complainant.   A factor of relevance was that the alleged offending occurred while Mr Hurunui was on bail on drugs charges.  It is however the case that the sentence later imposed, of one month’s imprisonment concurrent on each charge, signified that the drug offending was at the lower end of the scale.

[4]      The aggravated robbery is of significantly greater importance.   But Lang J

was persuaded by Mr Schulze on that occasion that Mr Hurunui had satisfied the

s 12 onus in relation to violent offending and after considering the s 8 factors was prepared to grant bail on certain conditions.

[5]      The offending giving rise to Judge McGuire’s decision in the present case included   possession   of   a   small   quantity   of   methamphetamine   plainly   for Mr Hurunui’s own use.  Mr Schulze advises me that a sentence of imprisonment for possession of what has been analysed as 0.048 g of methamphetamine would be at most  a  term  of  four  to  six  months.     The  other  offending  alleged,  although significantly more serious, is the subject of evidence which however strong against a co-offender or offenders does not appear powerful in relation to Mr Hurunui.  Lang J performed an analysis of Mr Hurunui’s previous offending while on bail and concluded that that had not occurred in recent years.

[6]      I have concluded that given the relatively minor offending of which there is strong evidence  and the relative weakness of the evidence on the  more serious charges it would be disproportionate to order Mr Hurunui to be imprisoned until well into next year.  I make that judgment on balance; the decision is by no means clear cut.   Mr Hurunui has shown a preparedness to use methamphetamine which constitutes breach of a bail condition.  There is an allegation the strength of which it is not possible to discern at this point that methamphetamine was involved in the episode alleged to constitute aggravated burglary.  I therefore warn Mr Hurunui that any breach of the bail conditions especially those in relation to drug and alcohol abuse now to be imposed will be likely to deprive him of his liberty until the drugs trial.

[7]      Mr Corlett’s  submission  that  Mr  Hurunui  should  be  imprisoned  until  the aggravated burglary trial in November is an attractive one which I have rejected only after careful consideration of proportionality.

[8]      The orders of the Court will be that the appeal is allowed and bail will be granted on the following conditions:

a)        He  is  to  reside  at  19  Normandy Road,  Kawerau  and  at  no  other address.

b)He is to observe a curfew at that address between the hours of 8 pm and  6  am  each  day  and  is  to  present  himself  at  the  door  when requested to do so by police.

c)       He is not to associate in any way, either directly or indirectly, with his co-accused or with Crown witnesses.

d)He is not to enter the Rotorua city limits other than for the purposes of attending court or to instruct counsel.  In the event that he travels to Rotorua to instruct counsel, he or his counsel are to have written confirmation of the fact of the appointment and are to produce that for inspection by the police should they be required to do so.

e)        He is not to consume or possess drugs or alcohol.

[9]      Mr  Hurunui  is  bailed  on  the  foregoing terms  to  appear  in  this  Court  at

Rotorua at 9 o’clock on 11 October 2007.

W D Baragwanath J