Kaire v Police HC Auckland CRI 2005-404-122

[2005] NZHC 1647

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-122

JOHN FRANCIS KAIRE

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 April 2005 Appearances: M Kennedy for Applicant

Y Yelavich for Respondent Judgment: 15 April 2005

JUDGMENT OF SIMON FRANCE J

Counsel:

Ms M Kennedy, Barrister, Auckland Solicitors:

Crown Solicitors, Auckland

KAIRE V POLICE HC AK CRI 2005-404-122 [15 April 2005]

[1]    The Applicant seeks bail. He is facing a charge of possessing methamphetamine for supply. The amount involved is 1 gram.  At this point it can  be said that the evidence is reasonably clear that the Applicant was found in possession of the drug. He denies comments attributed to him concerning an intention to supply those drugs to others.

[2]    The Applicant was also found in possession of approximately $2,300. Through counsel today I am advised that his position in relation to that is that a considerable portion of it was proceeds of successful efforts at the Casino. He has offered to provide the time and name of the cashier who gave him the cash.

[3]    The Applicant has previous drug offending, which all occurred in 1987. He was sentenced at that time to four years. Over the past 20 years, he has acquired further convictions, but, in the context of a bail application, none of them are particularly significant and nor does the record indicate a consistent offending habit.

[4]    Since 1986 convictions have been recorded in 1994, 2000 (two), and 2004 (two). The most serious sentence in that time is 40 hours community service, otherwise he has been required to come up for sentence if called upon, or fined $100.

[5]    Bail is opposed. A Police opposition form was tendered.  Prior to the hearing I indicated to Ms Yelavich that I did not intend to rely on it. It is, in my view, a very poor document for any Police Officer to have filed. It amounts to little more than a rant based on no observable facts or objectivity.

[6]    Accordingly, at the hearing I asked Ms Kennedy to simply address the relevant risks as stated in the Bail Act. The risk perhaps most at issue is the risk of failure to appear based on the strength of the case. Having heard from counsel I am satisfied that there is nothing in the circumstances that means that bail should be declined under that heading. I am satisfied that appropriate conditions can be imposed to minimise that risk.

[7]    I have been provided with evidence that the Applicant is at a stage in his life where he is seeking to reconcile with his former partner and the mother of his children. His former partner has provided evidence in support of that and is present here in Court today. A development from the time when affidavits were filed is that the request is now that the Applicant be bailed to her address.

[8]    There will obviously be a contested trial concerning the cash and the admissions, and more generally, at this point, the purpose for which he was in possession. The quantity that the Applicant possessed is at the lower end of the  scale, and if convicted the starting point would fall within the two to four year bracket identified in Arthurs.

[9]    In the circumstances of the case I am satisfied that bail should be granted. Accordingly, I admit the Applicant to bail on the following conditions:

a)that he reside at 1/19 Stokes Avenue, Te Atatu Peninsula;

b)that he report twice a week to the Henderson Police Station between the hours of 8:00 a.m. and 4:00 p.m., those days being Monday and Friday of each week;

c)that if he possesses a passport, he surrender it up and otherwise not seek any travel documents.

[10]   Because it was the subject of discussion, I expressly record that I impose no curfew condition. I am not satisfied that a curfew would be directed to any relevant risk apparent in the facts of this case.

Simon France J