Jenkins v Police HC Wanganui CRI 2010-483-50

[2010] NZHC 1698

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-50

COLE JENKINS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 August 2010

Counsel:         D Goodlet for Appellant

J Woodcock for Respondent

Judgment:      20 August 2010

JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4pm on the 20th August 2010.

Solicitors:

D M Goodlet, Barrister and Solicitor, PO Box 875, Wanganui

Crown Solicitors, Wanganui

JENKINS V NEW ZEALAND POLICE HC WANG CRI-2010-483-50  20 August 2010

[1]      Mr Jenkins appeals against a refusal in the District Court to grant him bail on

29 July 2010.  He is accused of assaulting his partner Ms Green with intent to injure her.  The allegation is that he pushed Ms Green up against a fence in the front yard of their home and then punched her in the head twice.   He then punched her two more times in the stomach causing her to fall to the ground.  While on the ground it is alleged that he punched her in the head a further six times and kicked her twice in the back.

[2]      Although Mr Jenkins has no previous violence convictions, the learned Judge had  no  confidence  that  Mr  Jenkins  would  comply  with  any  bail  conditions. Mr Jenkins has failed to answer District Court bail on four occasions, failed to answer police bail on two occasions, breached parole once, and periodic detention once.

Appellant’s submissions

[3]      For the appellant Ms Goodlet submitted that he had not offended while on bail since 2005 and that he had a suitable address in Whanganui.  She argued that there is genuine contention over the seriousness of the assault with two witnesses giving a version of the facts which is much less serious than that of the witness upon which the Crown will primarily rely.   She argued that prison will not be the only option  available  to  a  Judge  in  this  case,  and  in  fact  a  more  community-based sentence with an ability to supervise and treat may well be considered more appropriate if the appellant is found guilty.   Ms Goodlet argued that the big issue here is whether he will reoffend and, as long as there are strict bail conditions, that prospect is low.

Respondent’s submissions

[4]      The respondent argued, predictably, that Mr Jenkins had a history of failing to answer bail and offending while on bail.  Any conditions that could be imposed will not reduce and certainly will not remove risks of breaching bail or offending while on bail.

[5]      Further, the respondent argued that Mr Jenkins is likely to be sentenced to imprisonment given the facts and his extensive history of offending even if they do not relate to violence.  Ms Woodcock argued that there is no real likelihood that the sentence to be imposed  will be shorter than the period of remand given that a defended hearing is set down for 1 October 2010.   There is also a possibility of further harm to the victim.

Discussion

[6]      An appeal against conditions under s 31 of the Act is by way of rehearing. However, this is an appeal from the exercise of a discretion, and unless the appellant can point to changed circumstances, he must demonstrate that the Judge erred in principle, or “that the Judge failed to consider all relevant matters or took into account irrelevant matters or that the decision was plainly wrong”.[1]

[1] R v Blaikie CA 386/99, 27 September 1999 at [8]; Webster v Police HC Auckland CRI-2008-404-

0053, 18 April 2008 at [12].

[7]      Section  12  of  the  Bail  2000  applies  here  because  the  offence  carries  a maximum of three years’ imprisonment and Mr Jenkins has received 14 or more sentences of imprisonment and being convicted of committing an offence while on bail.

[8]      Thus the onus was on Mr Jenkins to make out his application.   He had to prove on balance of probabilities that he would not commit any offence involving violence or danger to the safety of anyone else, nor any burglary or other serious property offence.  The Judge had also to give primary consideration to protecting the public and the victim in this case.

[9]      Since Mr Jenkins has no real history of offending of the kind referred to in s 12, I do not see that this is a situation where his past would leave one, on the balance of probabilities, to consider that the public or the victim were in particular danger.

[10]     If the matter does go to the trial, I understand it will be heard in early October.  The appeal comes down therefore to whether a prison sentence is likely if the appellant is found guilty.  There is no doubt that Mr Jenkins mounted an attack on Ms Green in this case and that it was violent enough for her to fall to the ground. The Crown says prison is highly likely but the defence says that this is pre-emptive given his offending background and the conflicting evidence in relation to the seriousness of the attack.

[11]     The learned Judge was clearly moved by a combination of the extensive breach of bail, court release, periodic detention and parole conditions together with his perception that the facts had the “potential to be serious”.

[12]     I agree that prison is a likely result in this case even if it is not inevitable, and that the extensive history of breaching the terms of release from prison make bail far more difficult to grant in this case.  On balance I do not feel it appropriate to upset the exercise of a Judge’s discretion at first instance.

[13]     The appeal is dismissed accordingly.

Joseph Williams J