Ludlow v The Queen - [2012] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/2012
[2012] NZCA 447

BETWEEN TREVOR ALLAN LUDLOW
Applicant

AND THE QUEEN
Respondent

Counsel: Applicant in person
M H Cooke for Respondent

Judgment: 28 September 2012 at 2 pm

(On the papers)

BAIL JUDGMENT OF ARNOLD J

The application for bail is declined.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Ludlow, was charged with six counts of theft by a person in a special relationship and one count of false accounting arising out of his role as a director of National Finance 2000 Ltd. He entered a plea of guilty to one count of theft and was convicted of the remaining counts at a judge-alone trial before Judge Bouchier. Mr Ludlow was sentenced to a term of imprisonment of five years, seven months.[1]
[1] R v Ludlow DC Auckland CRI-2009-004-23758, 20 October 2011.
Mr Ludlow has appealed against his sentence, on the ground that it was manifestly excessive. He has also indicated that he may appeal against his conviction, but as yet no notice of appeal in relation to that has been filed. Mr Ludlow now applies for bail pending his appeal.

Basis of application

Mr Ludlow submits that he should be granted bail so as to allow him to prepare properly for his appeal, which he says he cannot do while incarcerated. He says that he has requested the prison authorities to allow him access to a fax machine, a computer and a printer but that these requests have been declined. Mr Ludlow also submits that there is a high level of public interest in the appeal.
For the Crown, Ms Cooke has filed a memorandum opposing Mr Ludlow’s application. She submits that the end sentence of five years, seven months’ imprisonment was well within range for this type of offending. In the absence of any detail in support of Mr Ludlow’s appeal, it cannot be said that the appeal is likely to succeed. Moreover, even if the appeal were to succeed, there is little risk that the length of the sentence would be reduced so dramatically as to render the appeal nugatory. Finally, Ms Cooke notes that the difficulty in preparing the appeal from prison is not a relevant factor in terms of s 14(3) of the Bail Act 2000.

Discussion

Section 14 of the Bail Act sets out the relevant test. It provides:
14 Exercise of discretion when considering bail pending appeal
(1)If a person is in custody under a conviction and is appealing the conviction or sentence, or both, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
(2)The onus is on the appellant to show cause why bail should be granted.
(3)When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:
(a) the apparent strength of the grounds of appeal:
(b)the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ludlow v The Queen

Details

AGLC: Ludlow v The Queen [2012] NZCA 447
Case: [2012] NZCA 447
Decision Date: 28 September 2012

CaseChat Overview and Summary

In Ludlow v The Queen, Trevor Allan Ludlow appealed his conviction and sentence for theft and false accounting. Ludlow, a former director of National Finance 2000 Ltd, was found guilty of six counts of theft and one count of false accounting, and was sentenced to five years and seven months imprisonment. Ludlow applied for bail pending his appeal against the sentence on the basis that it was manifestly excessive and to allow him to properly prepare for the appeal. The respondent opposed the application, arguing that the sentence was within the range for the type of offending, and that the appeal was unlikely to succeed. The appeal was also not yet set down for a hearing, so there was little risk that Ludlow would spend too long in prison if bail was refused.

The court considered the relevant test for granting bail pending appeal, which is set out in section 14 of the Bail Act. The onus is on the appellant to show cause why bail should be granted. The court found that Ludlow had not shown any grounds for his argument that the sentence was manifestly excessive, and therefore it was difficult to assess the strength of the appeal. The court also found that the difficulty in preparing the appeal from prison was not a relevant factor in the decision to grant bail. The court held that complaints about the adequacy of prison facilities for preparing appeals must be pursued through other avenues.

The court declined Ludlow's application for bail pending appeal. The court found that the sentence was within the range for the type of offending, and that the appeal was unlikely to succeed. The court also found that the difficulty in preparing the appeal from prison was not a relevant factor in the decision to grant bail. The court held that complaints about the adequacy of prison facilities for preparing appeals must be pursued through other avenues.

There were no final orders made in this appeal.

Orders