K v Police HC Auckland Cri-2007-404-37

[2007] NZHC 105

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-000037

K

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 March 2007

Appearances: Ms M J Dyhrberg for the Applicant

Ms R S Reed for the Respondent

Judgment:      6 March 2007

(ORAL) JUDGMENT OF FRATER J

Solicitors:   Ms M J Dyhrberg P O Box 47867 Ponsonby Auckland for the Applicant

Meredith Connell P O Box 2213 Auckland for the Respondent

K V POLICE HC AK CRI-2007-404-000037  6 March 2007

[1]      This is an originating application for an order granting bail.  It is made to this

Court in its inherent jurisdiction.

[2]      Mr  K    was  declined  bail  by  Judge  McElrea  in  the  District  Court  at Auckland on 7 February.  He lodged an appeal against that decision.  Unfortunately, a transcript of the Judge’s decision is not available.  However, in the circumstances, Ms Dyhrberg does not pursue the appeal.  She accepts that Mr K  ’s only chance of being granted bail is if it is on condition that he be subject to electronic monitoring and that the District Court is unable to impose such a condition.

[3]      She also accepts that, because of the charges that he faces and his history of offending, the provisions of s 12(1)(a) of the Bail Act 2000 apply and the onus is on him to satisfy the Court that bail should be granted.

[4]      Mr K   currently faces seven charges:  one historical charge of theft relating to the events of 22 November 2003;  one arising out of events of 19 October 2006 of possession of methamphetamine for supply;  and five charges relating to the Police surveillance operation known as “Operation Ice Age” – three of supplying a Class A drug, methamphetamine, one of possessing methamphetamine for supply and one of supplying the Class B drug, Ecstasy.

[5]      Mr K   has been granted bail in respect of the theft and the October 2006 drug charge.  The current application relates to the remaining drug charges.

[6]      He  has  a  considerable  history  of  offending  dating  back  to  1999.    His convictions are mainly for offences of dishonesty, particularly shoplifting for which he has received numerous sentences of imprisonment.  He also has four convictions for breach of District Court bail, one for breach of periodic detention and convictions for trespass.  His last conviction, before he was apprehended in October, was entered in March 2004.  At that time he had been granted bail on two charges of possession of a knife, four of theft and one of breach of District Court bail.  Subsequently, he was charged with another charge of breaching District Court bail.

[7]      After  completing  the  sentence  of  two  months  imprisonment  imposed  on

8 March  2004  for  shoplifting,  he  went  to  ground  until  he  was  apprehended  in

October 2006.

[8]      The facts of that offending are that Mr K   was stopped as he was driving a motor vehicle in Newmarket.  He provided false details and was arrested.  The Police summary states that on arrest he was carrying 30 grams of crystal methamphetamine; Ms Reed told me today that, in fact, the quantity was 60 grams.  She says he also had some $60,000 in cash.  He was jointly charged with possession of methamphetamine for supply.

[9]      He  was  granted  bail  by the  District  Court  and  complied  with  the  terms imposed until he was arrested on 19 December 2006 following the termination of “Operation Ice Age”.

[10]     I do not have a copy of the summary of facts for that operation.  The Crown case, I am told, is that intercepted telephone calls implicate Mr K   in the supply of drugs and that drugs and a large quantity of money were found at his house when it was searched.

[11]     Ms  Dyhrberg  has  taken  instructions  and  investigated  the  circumstances giving rise to the two sets of drug charges Mr K   faces.  She says that both will be vigorously defended.

[12]     Following Mr K  ’s arrest on 19 October, the historical charges which were still outstanding re-surfaced and were largely dealt with.  He pleaded guilty to one charge  of shoplifting,  he  is  defending  another,  and  the  remaining  charges  were dropped.

[13]     Mr K   is 35 years old.  For the past year or more he has been living with his partner  and  her  10  year  old  son,  to  whom  he  is  close,  at  an  address  at

9A Fenchurch Street in Glen Innes.  He seeks bail to that address and is willing to abide by strict bail conditions, including that he wear an ankle bracelet provided by Chubb Security, and that he provide a surety in the form of a cash bond.   Other

suggested conditions include that he not apply for any travel documents and that the Court   notify   the   Embassy   of   Vietnam,   the   New   Zealand   Department   of Internal Affairs,   New   Zealand   Customs   Department   and   the   New   Zealand Department of Immigration of the conditions of bail.

[14]     I understand that Mr K   was born in Vietnam but has been living in this country for 17 years and is a New Zealand citizen.

[15]     Mr K  ’s neighbour in Fenchurch Street, Mr Wright, is present in Court, having  sworn  an  affidavit  in  which  he  offers  to  provide  his  house  as  surety. Mr Wright is the manager of a company by the name of Plastic Filtration Limited. He employed Mr K   as a labourer from time to time during the past year or so. Despite that close contact, he was not aware of any apparent drug offending, either at the home where Mr K   lived, or when Mr K   was working for him.  He has been independently advised.   He appreciates that if Mr K   were granted bail and did offend again, or breached his bail conditions in any way, he would stand to lose his property in which he has an equity of some $120,000.

[16]     This  application  raises  two  issues  of  concern:    the  first  relates  to  the likelihood of offending while on bail;  and the second concerns the possibility that Mr K   might attempt to skip the country or otherwise disappear and not appear for trial – which I should note is unlikely to be held for a considerable time – it is perhaps as much as two years away.

[17]     The public are rightly concerned about the spread of drug dealing and the effect that access to drugs has on the community.  Counsel therefore properly accept that the reference in s 12(5) to offences involving danger to the “safety of any other person” would necessarily extend to drug offending.

[18]     Ms Dyhrberg says that her client denies responsibility for the money and drugs  found  at  the  Fenchurch  Street  property on  the  termination  of  “Operation Ice Age”.  She also says that even on the Crown’s case he was not dealing from the property;  he was more of an “out and abouter”.  She submits that he is very anxious

to remain at home and out of prison so that he can maintain his relationship with his partner and her son, and so that he can properly prepare for trial.

[19]     On the issue of flight risk, she points to the fact that he took no steps to abscond after he was apprehended in October last year.   Ms Reed answers that by saying that at that stage he was unaware of the “Operation Ice Age” surveillance and was waiting for the monies and the drugs which were found at the property to come through.  I accept that those are matters to be determined in the future.

[20]     For the present  I need to  focus on the uncontroverted evidence,  and the inferences which can properly be drawn from it.

[21]     The onus, as I have said, is on Mr K   to satisfy the Court that bail should be granted.  Obviously a factor which weighs heavily in favour of granting bail is the presumption of innocence and the length of time that will elapse until trial.

[22]     On the other hand, I have a very real concern, given Mr K  ’s past history, as to whether or not he will continue to offend.  As I said, he has a considerable history of offending, albeit, in the scheme of things, for relatively minor matters.  However, they are for offences of dishonesty and he has received some 14 separate sentences of imprisonment.

[23]     The other  factor which really concerns  me  is  his  disappearance  between

March 2004 and October 2006 when he was on bail facing a number of charges.

[24]     Balancing these various factors as best I can, I cannot be satisfied, given his history, that electronic monitoring would provide sufficient sanction to prevent flight or re-offending.  Accordingly, the application for bail is declined.

M A Frater J