Kouznetsov v Chief Executive of the Department of Corrections
[2014] NZHC 694
•7 April 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-744 [2014] NZHC 694
BETWEEN KONSTANTIN KOUZNETSOV Applicant
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent
CRI-2014-404-75
BETWEEN KONSTANTIN KOUZNETSOV Appellant
ANDTHE NEW ZEALAND POLICE Respondent
Hearing: 31 March 2014
Appearances: Y Lee for Applicant/Appellant
W Fotherby for Respondent
Reasons: 7 April 2014
REASONS JUDGMENT OF TOOGOOD J
[Appeal against refusal of bail pending conviction and sentence appeal]
This judgment was delivered by me on 7April 2014 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
KOUZNETSOV v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 694 [7 April 2014]
Introduction and result
[1] On 25 March 2014, Konstantin Kouznetsov was sentenced by Judge R Wade in the District Court at Auckland to an effective period of six months’ home detention, and was disqualified from driving for 18 months, following his conviction on one charge of careless or inconsiderate vehicle operation under s 38 of the Land Transport Act 1998, one charge of failing to stop to ascertain injury under s 36(1)(c) of the Land Transport Act 1998, one charge of threatening to injure a person with intent to intimidate under s 21(1)(a) of the Summary Offences Act 1981 and one charge of being in possession of an offensive weapon in a public place under s 202A(4)(a) of the Crimes Act 1961. The sentences had immediate effect. A notice of appeal against conviction and sentence was filed but Judge Wade refused bail pending disposition of the appeals.
[2] On 31 March 2014, I allowed Mr Kouznetsov’s appeal against the refusal of bail, on the basis that the District Court Judge had not been made aware of the full circumstances and that I was satisfied that bail should be granted. I said that a judgment containing my reasons would be released in due course. This is it.
Background
[3] On 8 January 2014, Mr Kouznetsov was convicted by Judge Wade in the District Court at Auckland following a defended hearing. Reasons for the convictions were given by the Judge on 14 January 2014 and Mr Kouznetsov was eventually remanded for sentence on 25 March 2014.
[4] Mr Kouznetsov had earlier been remanded to appear on 2 May 2014 for a defended hearing on an unrelated charge of cultivating cannabis. On 24 March
2014, therefore, counsel for Mr Kouznetsov and the Police prosecutor filed a joint memorandum seeking a deferral of the sentencing and requesting a further remand to
2 May 2014. It was the view of the prosecutor and the Police that Mr Kouznetsov would be sentenced to home detention on the vehicle-related and other charges and that, if convicted on the cannabis charge also, the Court could take account of the totality of the offending when imposing sentence.
[5] Judge Wade disagreed. He was concerned that the standard of Mr Kouznetsov’s driving had been such that he should be disqualified from driving and was not prepared to defer such a sentence until May. I consider the Judge was justified in taking this view. On 25 March 2014, the Judge sentenced Mr Kouznetsov to three months’ home detention on the charge of threatening to injure and to a concurrent term of six months’ home detention for the other offences. Mr Kouznetsov was disqualified from holding or obtaining a driver’s licence for
18 months, all of the sentences having effect immediately.
[6] Mr Kouznetsov had enrolled for a block course to be conducted at the New Zealand Glass Institute in Lower Hutt between 31 March 2014 and 11 April 2014 as part of the third and final theory portion of his glazier apprenticeship. He was concerned about the immediate effect of the sentence of home detention because it would prevent him attending the course in circumstances which would mean that he would not be able to complete the apprenticeship for another 12 months. His employer was aware of the convictions but supported attendance at the course nevertheless.
[7] On 25 March 2014, Mr Kouznetsov filed a notice of appeal against his conviction and sentence and applied to the District Court at the same time for bail and a deferment of the disqualification from driving. Judge Wade was not persuaded commencement of the sentences should be deferred. It seems that the application for bail pending the hearing of his appeal made no reference to the training course, and that it had not been referred to in the earlier application to defer the sentencing until May.
The proceedings in this Court
[8] On 31 March 2014, I heard what was called an urgent “interlocutory application without notice” for an interim order allowing Mr Kouznetsov to attend the training course in Wellington, notwithstanding that he was then serving the period of home detention which began on 25 March 2014. It was said that the application was made pursuant to s 80(3)(c) of the Sentencing Act 2002. The application was made in apparent reliance on rr 7.23 and 7.46 of the High Court
Rules and was founded on the grounds that failure to allow Mr Kouznetsov to attend the training course would defeat the purpose of imposing the least restrictive sentence which was appropriate, would create undue economic hardship on the applicant, and that the Court had power to grant him leave to attend the training course as part of his rehabilitation needs.
[9] It was clear that the application was misconceived procedurally: the Court has no civil jurisdiction under any provision of the Sentencing Act to make the order sought. It was apparent, however, that there was some merit in permitting Mr Kouznetsov to attend the training course prior to undergoing the period of home detention, so as to provide rehabilitation assistance to him upon completion of the sentence. Mr Fotherby, who appeared for the Police and the Chief Executive of the Department of Corrections, agreed. It appeared that Mr Kouznetsov’s employer was prepared to meet the cost of flying him to Wellington later in the day to attend it, albeit one day late.
[10] At the hearing, therefore, I indicated to Mr Lee, counsel for Mr Kouznetsov, that I would be prepared to grant bail pending the hearing of the appeal against conviction and sentence which had earlier been filed but that I would not do so until the papers were in order. Mr Fotherby helpfully agreed to facilitate a process whereby an appeal against the District Court’s refusal of bail could be filed and served promptly, and bail granted as a matter of urgency. I indicated to Mr Lee that before granting bail I would need to be satisfied that strict conditions were imposed to the satisfaction of the Department of Corrections.
[11] Later on 31 March 2014, an application for bail was filed, supported by an affidavit sworn by Mr Kouznetsov and a consent memorandum signed by counsel, containing the agreed terms. In the circumstances, I issued a Minute allowing the appeal against Judge Wade’s refusal of bail pending the hearing of the appeal. The District Court Judge had not been made aware of the full circumstances and I was satisfied that bail should be granted in the absence of opposition from the Crown. I did not suspend the disqualification period.
[12] The effect of the granting of bail is that the sentence of home detention is suspended pending the hearing of the appeal, but the sentence of disqualification from driving will remain in force unless otherwise suspended by the High Court.
Decision
[13] The appeal was allowed and bail was granted to Mr Kouznetsov on the following conditions:
(a) he is to reside at 8/5 Buscomb Avenue, Henderson, Auckland, save as otherwise provided for by these conditions;
(b)between 1 and 11 April 2014, he is permitted to attend the BCITO Glazing Stage 3 Course (“the Course”) at the Glass and Glazing Institute of New Zealand, at 14 Hollands Crescent, Naenae, Lower Hutt;
(c) between 1 and 11 April 2014, he is to reside at 97 Stokes Valley Road, Stokes Valley, Lower Hutt;
(d)between 1 and 11 April 2014, he is to submit to a 24-hour curfew at that Stokes Valley address, except while attending the Course and travelling directly to and from the Course;
(e) he is to contact Brianne Heke, Probation Officer, within 24 hours of his return from Wellington;
(f) he is to abstain from the possession or consumption of alcohol or illicit drugs; and
(g)he is to attend personally at the High Court on the day on which his substantive appeal is to be heard and on any date to which the hearing may from time to time be adjourned.
[14] The civil application for interim orders was dismissed. No costs are sought.
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Toogood J
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