Lewis v Police HC Wellington CRI 2007-435-1

[2007] NZHC 1696

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-435-1

BRENT ALEXANDER LEWIS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 March 2007

Appearances: J K W Blathwayt for Appellant

C Boshier for Respondent

Judgment:      27 March 2007

ORAL JUDGMENT OF MILLER J

[1]      Mr Lewis appeals against refusal of bail.  He faces charges of assault with intent to injure (2), assault (2), assault with a weapon (a coffee mug), and using threatening language.

[2]      It was common ground that the Judge correctly held that s.12 of the Bail Act applied.  Mr Lewis has a long history of offending including several convictions for offences of serious violence, although the most recent of these occurred in 1997,

when he was sentenced to six years imprisonment.

LEWIS V NEW ZEALAND POLICE HC WN CRI 2007-435-1  27 March 2007

[3]      The Judge observed that most of the offences are said to have occurred in the course of what appeared to be a planned shoplifting expedition at a Woolworths supermarket.  Mr Lewis and his wife are said to have stolen a number of items, and he assaulted supermarket staff when challenged.  As the Judge noted, there appears to have been a violent attack on people who were simply trying to bring Mr Lewis and his wife to account.  The charge of using threatening language is said to have involved threats to do further harm to the supermarket staff.  On the previous day Mr Lewis had apparently assaulted another person, using a coffee mug as a weapon. The nature of these offences was such that the Judge was not satisfied that Mr Lewis would not commit any offence involving violence against or danger to the safety of any other person.

[4]      An  appeal  against  refusal  of  bail  is  an  appeal  against  the  exercise  of  a discretion.  The appellant must show that the Judge misdirected himself in law, took into account an irrelevant consideration or overlooked a relevant one, or was plainly wrong.

[5]      Mr Blathwayt contended that the District Court Judge gave undue weight to the allegations against Mr Lewis and failed to weigh adequately the risks of violent offending in a manner consistent with the presumption of innocence.   Put in that way, the submission does not accurately reflect the terms of s.12, which require the accused to satisfy the court that he will not commit any offence involving violence or danger to others.  I do not accept that the District Court Judge misdirected himself.

[6]      Mr  Blathwayt  emphasised  that  the  last  conviction  for  serious  violent offending  was  in  1997,  so  that  Mr  Lewis  has  shown  that  he  can  live  in  the community  without  resorting  to  violence,  and  that  the  actual  violent  behaviour alleged resulted in no significant injury to any person.   He contended that these factors in combination should have satisfied the Judge that bail could be granted on conditions.

[7]      However, the Judge did take Mr Lewis’ history into account, noting as he did so that the 1997 offending resulted in a sentence of six years imprisonment.   He appears implicitly to have assessed the police case as a strong one, as he was entitled

to do, and noted particularly the threats of violence that were made to the staff who restrained Mr Lewis and his wife.  The incident with the coffee cup was not serious in itself, although apparently unprovoked, but it did suggest that the supermarket incident was not an isolated one.

[8]      Mr Lewis is on the methadone programme and sources his methadone from a pharmacy near the supermarket, although that could be changed.  He has a family, but on both occasions it appears that his wife was involved.  Mr Blathwayt suggested conditions that he stay out of Masterton but the coffee cup incident occurred near Carterton.  Weighing these considerations, I conclude that it was open to the Judge to find that he was not satisfied as required by s.12.

[9]      The appeal is dismissed.

Solicitors:

WCM Legal, Carterton, for Appellant

Crown Solicitors Office, Wellington for Respondent

F Miller J