Kevey v Police HC Whangarei CRI 2010-488-37

[2010] NZHC 1388

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-000037

IN THE MATTER OF     the Summary Proceedings Act 1957 section

115

BETWEEN  JULIE ELIZABETH KEVEY Appellant

ANDPOLICE Respondent

Hearing:         12 August 2010

Counsel:         Aaron M Dooney for Appellant

Nicole Dore for Respondent

Judgment:      12 August 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J.

Appeal  against  District  Court  Judge’s  refusal  to  grant  electronically monitored bail is dismissed.

[1]      On 14 July 2010 Judge de Ridder declined the appellant’s application for electronically  monitored  bail  to  be  accorded  to  her  pending  her  sentence  on

2 September 2010.

[2]      She now appeals to this Court on the basis that the District Court Judge’s weighting of the relevant factors was incorrect and that electronically monitored bail should have been grated.

[3]      Judge  de  Ridder  noted  when  declining  bail,  that  on  2  September  next

Ms Kevey is to be sentenced on a large number of charges to which she has pleaded

JULIE ELIZABETH KEVEY V POLICE HC WHA CRI-2010-488-000037  12 August 2010

guilty. They include counts of possessing methamphetamine and cannabis, obstruction of the Police, altering a document with intent to defraud, obtaining a document for pecuniary advantage and shoplifting.

[4]      However, since 14 July 2010 Ms Kevey has also been convicted, this time by Judge Harvey, on two additional charges of driving while suspended and two further charges of failing to appear and has been remanded to 2 September for sentence on those counts as well.

[5]      Accordingly,   when   this   appeal   hearing  commenced   the   electronically monitored bail, if granted, would have remained in force for 21 days only.  However, Ms Dore advises that due to the short notice of this appeal being brought on for hearing the local  electronically monitored  bail  assessor  advises  that  even  if  the appeal is allowed the EM bail cannot be connected before Tuesday next, 17 August

2010, and accordingly even if bail were allowed it would only be for 16 days.

[6]      Judge de Ridder, in declining electronically   monitored bail noted that in addition to the charges already mentioned the appellant faces two indictably laid charges of burglary on the same house on 15 March and 11 April 2010 in which some $29,000 worth of property was stolen, but which she is defending, and a variety of other driving charges and drug related charges on which Ms Kevey has also apparently entered not guilty pleas.

[7]      The Judge summarised the Police opposition to EM bail which is principally on the ground that the risk of Ms Kevey further offending whilst on bail.  Given the raft of charges for which she is to be sentenced and the additional charges on which she has entered pleas of not guilty, just on the conviction record alone that does not seem a risk which could be completely discounted.

[8]      In addition, the Police material shows that Ms Kevey has now been convicted for a number of offences committed whilst on bail on previous occasions.   After commenting that the appellant would seem to have a “serious drug problem” the Judge observed that “granting you bail by electronic monitoring would leave you free to offend again in that way if you saw fit.  That, coupled with what appears to be

a very loose living arrangement means there is no one who could exercise strict control or monitoring of you.”

[9]      The Judge noted that sections 13 and 8 of the Bail Act 2000 applied and effectively held in the appellant’s favour on all aspects of the statutory criteria except the possibility to which he had just referred, the loose living arrangement, the fact that the owner of the property – Ms Kevey’s son – does not live there and visits intermittently, and the other occupants of the property are, as the Judge put it,

“It could not be said that they are the type of people who would exercise any control over you if you saw fit to further offend against the Misuse of Drugs Act”.

That was a coded way of referring to the fact that other occupants of the property have a considerable number of convictions against the Misuse of Drugs Act even though, for the most part, they are of some age.

[10]     Mr  Dooney,  in  submissions  today,  said  that  Ms  Kevey’s  son  would  be prepared to exercise more regular control over his mother’s activities were EM bail granted and would report any infraction of the law.

[11]     This is a case to which, as far as the convictions are concerned, s 13 of the Bail  Act  primarily relates.    That  section  directs  courts  not  to  grant  bail  unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so, pending sentencing.  The balance of s 13 makes clear the onus is on the appellant to show why bail should be granted and the criteria to be taken into account includes the likelihood of imprisonment, the length of time that will pass before sentences, and personal and other circumstances.

[12]     Even subs (4) says:

If the defendant is unlikely to receive a sentence of imprisonment this must count against being remanded in custody.

[13]     In that regard, Ms Kevey’s conviction history shows a significant number of convictions including a number for driving whilst disqualified or when her licence is suspended and the like.  Although it contains no suggestion she has ever previously

been sentenced to imprisonment, given the number of charges, their seriousness the range of offending and the repetitive nature of offending, it could certainly not be said that a sentence of imprisonment is unlikely for her on 2 September 2010.  As noted, that is merely 16 days away.

[14]     Judge de Ridder also gave consideration to the criteria set out in s 8.  There may be little risk that the appellant would fail to appear in Court on 2 September and there is no risk, as he said, that she would interfere with witnesses or other evidence. But clearly, given the number of charges she is facing, as mentioned, their range and the previous conviction history, there is also a significant chance she might offend whilst on bail.

[15]     Whilst the goodwill of her son in that regard is appreciated, the comments made  by the  District  Court  Judge  serve  to  indicate  that  other  occupants  of  the property may be disinclined to accept every citizen’s obligation to report criminal offending to the authorities and although, of course, if electronically monitored bail were granted on a 24 hour curfew, Ms Kevey would be required to remain at the property,  given  her  history,  there  is  every  chance  that  associates  might  bring offending material to the property for her.

[16]     In the circumstances of this matter, and against the onus on the appellant to show that electronically monitored bail should be granted and District Court Judge de Ridder was wrong, it is clear that for the next 21 days the appropriate course is for Ms Kevey to remain in custody and accordingly her appeal seeking electronically monitored bail is dismissed.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Cor Eckard Law Office, P O Box 111 Whangarei 0140

Email:   [email protected]

Crown Solicitor, P O Box 146 Whangarei 0140

Email:   [email protected]

Copy for:

Aaron M Dooney, P O Box 804 Whangarei 0110

Judge de Ridder, District Court, Whangarei. Kari[email protected]