Kauvai v The Queen

[2017] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/2017
[2017] NZCA 70

BETWEEN	WESLEY JOHN KAUVAI Appellant
AND	THE QUEEN Respondent

Counsel:

S Thode for Appellant
C J Hurd for Respondent

Judgment:

(On the papers)

22 March 2017 at 11.30 am

JUDGMENT OF BROWN J

The application for bail pending hearing of the appeal against sentence is declined.

____________________________________________________________________

REASONS

Introduction

1. The appellant, Mr Kauvai, was convicted in the Auckland District Court in January this year on one count of injuring with intent to injure and one count of assault with intent to injure following a trial by jury.  On 27 February Judge R G Ronayne sentenced Mr Kauvai to two years and one month’s imprisonment.[1]

   [1]R v Kauvai [2017] NZDC 5068 [Sentencing notes].

2. The appellant has appealed to this Court against his sentence.  He has applied to this Court for bail pending the determination of his appeal pursuant to s 55 of the Bail Act 2000.  The Crown opposes bail.

3. I have personally considered the application pursuant to s 333(2)(d) of the Criminal Procedure Act 2011.  Counsel have not sought an oral hearing.  I have therefore determined the application on the papers and on the basis of the written submissions filed by the parties.

Applicable principles

1. The test to be applied is set out in s 14 of the Bail Act.  Under s 14(1A), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the appellant to show why bail should be granted. 

2. Section 14(3) sets out a range of permissive considerations in relation to applications for bail pending appeal:

   (a)the apparent strength of the grounds of appeal:

   (b)the length of the sentence that has been imposed on the appellant:

   (c)the likely length of time that will pass before the appeal is heard:

   (d)the personal circumstances of the appellant and the appellant’s immediate family:

   (e)any other consideration that the court considers relevant.

3. As this Court explained in Ellis v R:[2]

   Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances.  The concern is for the overall interests of justice.  The starting point is that the applicant has been found guilty and sentenced.  Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

Concerning the requisite strength of the grounds of appeal the Court further said that:[3]

[T]he Court in Moananui accepted that the applicant had an arguable case on the points intended to be advanced in the appeal but concluded that none of them pointed overwhelmingly to the ultimate success of the appeal. 

Thus, the prospects of the substantive appeal being allowed need to be compelling before they can go into the balance on the side of granting bail.[4] 

The apparent strength of the grounds of appeal

[2]Ellis v R [1998] 3 NZLR 555 (CA) at 560.

[3]At 560.

[4]Hosking v R [2012] NZCA 263 at [5].

1. Five matters are advanced as grounds for Mr Kauvai’s appeal, namely that Judge Ronayne:

   (a)took into account irrelevant factors and did not take into account relevant factors, with the result that the end sentence was manifestly excessive;

   (b)took into account the facts of the charges on which Mr Kauvai was found not guilty;

   (c)relied on facts inconsistent with the evidence presented at trial;

   (d)did not take into account the views of the victim; and

   (e)did not impose the least restrictive outcome as required, which should have been a sentence of community detention or home detention.

2. Although Mrs Thode submitted that Mr Kauvai has strong grounds of appeal, the relevant considerations allegedly overlooked were not identified and the claimed irrelevant considerations appeared to comprise the facts relating to charges on which he was found not guilty and facts inconsistent with the evidence presented at trial, again unspecified.  While submitting that the appeal did not fall into the category identified in Ellis v R, the Crown submission was hampered by the unavailability of the Judge’s sentencing notes. 

3. Having now obtained and read the sentencing notes I consider that the references to the factual context in [4]–[5] and [17] were simply that, and it is plain from [1] and [22] that in determining the sentence imposed the Judge had regard only to the facts relevant to the offences in respect of which Mr Kauvai was found guilty.

4. While s 8(4) of the Bail Act 2000 directs the Court to take into account any views of a victim, the Court is not obliged to sentence in accordance with those views.  I note that Mr Stewart’s victim impact statement, which I have obtained, stated he would be “quite upset” if a custodial sentence was imposed because he did not want Mr Kauvai to go to prison.  While the Judge did not accede to that wish, it is nevertheless apparent from the sentencing notes that the Judge had regard to Mr Stewart’s views in determining the appropriate sentence.[5] 

Likely length of time which will pass before the appeal is heard

[5]Sentencing notes, above n 1, at [8] and [19].

1. Mrs Thode submits that the sentence of two years and one month’s imprisonment is on the cusp of where the Court has a discretion to impose an electronically monitored sentence.  He argues on the basis of R v Gledhill — in which the bailed appellant had been sentenced to an identical term of two years and one month’s imprisonment[6] — that bail should be permitted given the lapse of time until a possible appeal hearing date.  In that case, uncertainty regarding the availability of a hearing date appears to have been a key factor in granting bail pending appeal in circumstances where the imposition of a community-based sentence was seriously arguable.[7]  Mrs Thode advises that on the basis of his inquiries the earliest that the appeal could be heard is May or June 2017.

   [6]R v Gledhill [2009] NZCA 350 at [1].

   [7]See [9].

2. I have spoken with the Registrar and arranged a hearing date in Auckland for 4 May 2017.

3. In those circumstances I do not consider that there is injustice arising from the period of time until the appeal hearing date.

Personal circumstances or other relevant considerations

1. I accept the Crown submission that there is nothing exceptional about the appellant’s personal circumstances and that his previous compliance with bail conditions carries little weight.[8]  There is no suggestion that his medical needs cannot be met within the prison context.

Result

[8]Maligi v R [2014] NZCA 156 at [14]–[15].

1. The application for bail pending appeal is declined.

Solicitors:
Thode Utting & Co, Albany for Appellant
Crown Law Office, Wellington for Respondent