K v Police HC Auckland CRI 2010-404-120

[2010] NZHC 819

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-120

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 April 2010

Counsel:         R Treloar for Appellant

K Lummis for Respondent

Judgment:      27 April 2010

JUDGMENT OF SIMON FRANCE J

[1]      Mr K   appeals the refusal of bail following his plea of guilty to one charge of intentional damage.

[2]      A ground of appeal is that the appellant’s counsel sought an opportunity to be heard on bail but not was accorded it.  Ms Lummis had no instructions on this aspect of the appeal.  I would normally seek a report from the Court as it may be a situation of misunderstanding but given that the sentencing is scheduled for 10 May 2010, consider it preferable that I consider the bail issue afresh.  Before doing so I make

the obvious point that natural justice means counsel, on behalf of their client, are

K V NEW ZEALAND POLICE HC AK CRI 2010-404-120  27 April 2010

entitled to be heard.  That does not mean that there cannot be time limits imposed, and a demand for focus, but the fundamental right to be heard should be accorded.

[3]      The tone of the Judge’s brief ruling indicates that he thought an application for bail would be hopeless.  I very much tend to agree, but that does not diminish the prior point.

[4]      The  apparent  facts  of  the  offending  are  troubling.     It  appears  that Mr K   was annoyed with the victims.   He has therefore arranged for some gang associates to visit the family in their house and damage their furniture whilst they were present.  As the charge stands, the damage is to a dining table, chairs and glassware.  The estimated value is around $2,500.

[5]      Ms Treloar notes that, pursuant to s 13 of the Sentencing Act 2002, the onus is on Mr K   to satisfy the Court that bail should be granted.  Her submissions focus upon the submitted unlikelihood of a prison term.  However, whilst a figure of

$2,500 lends support to  that proposition, several matters  go  the other way.    In particular:

a)        the context of deliberate gang intimidation inside the victims’ house.

It appears from the victim impact statement that the children of the victims were present;

b)the previous offending record of Mr K  .  He has convictions for injuring with intent to cause grievous bodily harm (1997), assault (2001), and manslaughter and wounding with intent to injure (2006);

c)       Mr K   was sentenced in January of this year on a charge of theft from a vehicle.   He was ordered to come up for sentencing if called  upon  within  three  months.     Ms Lummis  advises  that  an application has been, or will be made, within time, to activate that sentencing event as well.

[6]      A prompt sentencing date was allocated.  By the time that sentencing occurs, Mr K   will have served the equivalent of a sentence slightly shorter than four months’ imprisonment.  That set of circumstances is not one that causes me concern, and, as did the District Court, I consider that remand in custody is appropriate.

[7]      For completeness, I note that there are other matters alleged in the victim impact report  concerning what happened  at the time of the intentional  damage. Ms Lummis  indicated  that  further  enquiries  are  being  made  concerning  those

statements.

Solicitors:

R Treloar, Public Defence Service, PO Box 76 715, Manukau City

K Lummis, Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140, email:  Kirsten[email protected]

Simon France J