Keefe v The Queen

[2010] NZCA 200

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/2010
[2010] NZCA 200

BETWEENDELWYN ISMALIA KEEFE

Applicant

ANDTHE QUEEN

Respondent

Counsel:R Fairbrother for Applicant

A M Powell for Respondent

Judgment:18 May 2010 at 4 pm 

(on the papers)

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.

REASONS

Introduction

[1]         The applicant was sentenced on 15 December 2009 to two years and three months imprisonment on one charge of selling cannabis, one of offering to sell cannabis, and one of having cannabis for the purpose of sale.[1]  The applicant pleaded guilty to the three charges.

[1]      R v Keefe HC Napier CRI-2009-041-001872, 15 December 2009. 

[2]         The applicant has appealed to this Court against sentence.  Subsequently, she filed applications for leave to introduce further evidence in support of the appeal and for bail pending the determination of the appeal under s 70 of the Bail Act 2000.  I personally have considered the bail application pursuant to s 393(2)(d) of the Crimes Act 1961.

Background

[3]        The applicant was living with her partner, the late Jan Molenaar, in a house he owned in Napier.  Mr Molenaar shot himself fatally on 8 May 2009.  The day before Mr Molenaar’s death, the police had executed a search warrant at the house and had found evidence of a cannabis operation. 

[4]        A disputed facts hearing was held before Wild J prior to sentencing.  His Honour sentenced the applicant on the basis that, over a period of about five years, the applicant and Mr Molenaar had been operating a “tinnie house” from Mr Molenaar’s house.  The Judge accepted Mr Molenaar was the principal offender and the “driving force”[2] behind the cannabis operation.  The Judge found that the applicant was involved in selling cannabis albeit her role was a lesser one.

Relevant principles

[2] At [17].

[5]        The test to be applied in relation to the bail application is set out in s 14 of the Bail Act.  Under s 14(1), 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 applicant to show cause why bail should be granted.  Bail pending appeal is only granted in exceptional circumstances.[3]

Basis for bail application

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

[6]        The factors relied on by the applicant in support of her application for bail are the apparent strength of the appeal and the injustice that might arise if she is not bailed, given the length of the sentence imposed.[4]

Discussion

[4]      Bail Act s 14(3)(a)–(c).

[7]        The applicant’s main submission in terms of the strength of the proposed appeal is that, in sentencing her, Wild J assessed her role in the offending as being more substantive than it actually was.  This led, it is submitted, to a manifestly excessive sentence and moved the Judge away from home detention as a sentencing option.

[8]        In the affidavit which the applicant seeks leave to file on her appeal, she sets out a number of matters which she says go to show her role in the offending was limited.

[9]        It is not necessary or appropriate to attempt an extensive analysis of the merits of the appeal at this point.[5]  However, the applicant on appeal will have to deal with the Crown’s argument that her affidavit is not sufficiently fresh because all of this evidence could have been led at the disputed facts hearing before Wild J.  The applicant gave evidence at the disputed facts hearing and her affidavit raises little by way of explanation as to why these matters were not raised earlier.  In this context, the Crown also submits that the proposed new evidence in essence is a challenge to Wild J’s rejection of the applicant’s account at the disputed facts hearing.

[5]      Ellis at 560.

[10]       The Crown raises the possibility that the transitional arrangements for home detention straddled the period of offending.[6]  This may mean, the Crown suggests, that, contrary to the Judge’s conclusion, home detention was available.  The Crown submits, however, that home detention would not necessarily have been imposed because the offending was conducted from a home and because the applicant showed a lack of insight into her offending.

6 A less restrictive regime in terms of eligibility for home detention applied under s 57 of the Sentencing Amendment Act 2007 for a period from 1 October 2007.

[11]       When these matters are all taken into account, I conclude that the grounds of appeal do not appear so compelling as to displace the statutory presumption against bail.   

[12]       As to the length of sentence and the likely time before the appeal can be heard, obviously the matter should be given an early hearing.  I am advised the appeal could be heard in Wellington on 3 June 2010 or in Auckland on 15 June 2010.  After that, dates are available in Wellington on 6 – 8 July or in Auckland on 12 July.  The Registrar will contact counsel to have the matter set down on one of these dates.  If the matter is set down on either of the June dates, counsel should confer on a truncated timetable for the filing of submissions.

[13]       The application for bail is declined.

Solicitors:

Crown Law Office, Wellington for Respondent