L v Police HC Auckland CRI 2008-404-146

[2008] NZHC 848

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000146

L

Applicant

v

NZ POLICE

Respondent

Hearing:         6 June 2008

Appearances: PTR Heaslip for Applicant

E C Finlayson-Davis for Respondent

Judgment:      6 June 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

PTR Heaslip, PO Box 4108, Shortland Street, Auckland

The Crown Solicitor, PO Box 2213, Auckland

L V NZ POLICE HC AK CRI 2008-404-000146  6 June 2008

[1]      Mr L   appeals against the refusal of a District Court Judge to grant bail after he pleaded guilty to three driving offences.

[2]      Mr L   pleaded guilty on 22 April to charges of reckless driving, failing to stop and driving while disqualified.  The three offences occurred on 19 April – they are all related to the one event.

[3]      The Judge described the facts.   No issue is taken on appeal to the events outlined.  There is no question that it was seriously bad driving.  Mr L   clearly acknowledges this by pleading guilty to reckless driving and he was driving whilst disqualified.   Moreover he was at that time facing other charges of driving while disqualified and dangerous driving arising from an incident on 11 December 2007.

[4]      Additionally,  Mr  L    has  a  reasonably  lengthy  list  of  previous convictions. This includes some serious driving offences back to 1994.

[5]      In his decision, the learned Judge, having outlined the facts, directed himself to s 13 of the Bail Act.  Contrary to the submission of Mr Heaslip, for Mr L  , I am quite satisfied that the Judge did not err in principle in relation to his application of subsections (1) and (2) of s 13 of the Bail Act.

[6]      However, there is no express reference in the judgment to s 13(4) of the Bail Act which says that if a defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.  It may be implicit from the Judge’s references to the seriously bad driving and to Mr L  ’s list of previous convictions, including an earlier conviction for disqualified driving, that the Judge had the possible sentence in mind.   But from what he said, that is not established.

[7]      Additionally, and as Ms Finlayson-Davis for the Respondent acknowledges, the Judge does not appear to have directed himself to the fact that there would be a delay of almost three months between conviction and sentence.  The conviction was, as I have noted, on 22 April 2008 and that was the day bail was declined.   The sentencing was not to be and still remains 17 July 2008.  It is not explained in the

judgment why there is such a lengthy delay.  More significantly, it is a delay of more or less the same length as the maximum prison sentence on each of these charges.

[8]      Ms Finlayson-Davis recognised that these matters appear not to have been drawn adequately to the attention of the Judge and responsibly recognised the implications of the three month delay when related to possible sentencing.

[9]      There is the possibility of imprisonment for Mr L   and there is the possibility of cumulative sentences in respect of reckless driving and driving while disqualified.   Nevertheless, because these matters appear not to have been given sufficient attention and because in my judgment they do make it in the interests of justice that Mr L   be granted bail, I consider that bail should have been granted and therefore allow the appeal.

[10]     I therefore make an order granting bail to Mr L  , remanding him on bail to appear in the Waitakere District Court for sentencing on 17 July 2008.

[11]     Bail is granted subject to the following conditions:

(i)        Mr L   is to live at 7C Duncan Avenue, Henderson; (ii)          He is not to drive any vehicle;

(iii)He is  to  report  to  the Henderson  Police Station  each  Wednesday commencing this coming Wednesday, 11 June 2008, with reporting to

be between midday and 6:00 pm.

Peter Woodhouse J