M v Police HC Christchurch CRI 2009-409-29

[2009] NZHC 264

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000029

M

Appellant

v

POLICE

Respondent

Hearing:         5 March 2009

Counsel:         P Johnson for Appellant

C J Boshier for Respondent

Judgment:      5 March 2009

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail by Judge Farish on 13 February last. The appellant has been subject to a sentence of home detention imposed for charges of driving with excess blood alcohol.   The home detention sentence expired on

21 February.  There is, however, I understand, an application being made in relation to that sentence.   This is occasioned by the fact that there is an allegation that Mr M   breached the terms of home detention.  This is referred to in paragraph [1] of the decision on appeal.

[2]      The appellant is also facing three cannabis charges: cultivating cannabis;

possession of cannabis leaf; and, possession of instruments.  During a search of the

M V POLICE HC CHCH CRI 2009-409-000029  5 March 2009

property on 2 February cannabis plants were observed growing at the rear of the property and  cannabis  leaf was  found  in  the  kitchen,  and  utensils.    The  police summary of facts says that the defendant admitted that the plants and utensils were his.  I should say that a further plant was found upstairs in the wardrobe.

[3]      I understand from Mr Johnson that Mr M   is likely to defend at least some of these charges.  One of the arguments may be that the cannabis plants at the back of the property which were hidden, were unknown to him, and were likely to have been grown by somebody else.

[4]      The defendant is 51 years old.  He has in his care two children aged 13 and

15 years.  His brother has at present moved into his house to look after the children.

[5]      His defence to the breach of the home detention is, as I understand it, that he received a call from his 13 year old daughter and left the address to bring her home. Judge Farish declined bail, principally on the grounds that there is a real risk of the appellant offending and that despite strict past oversight he has continued to offend. That is an application of s 8(1)(a)(iii) of the Bail Act 2000.  There was no discussion, however, of any of the other matters which I have canvassed which are all relevant under s 8(2).   They are not mandatory considerations but they are considerations the Court may take into account.

[6]      In light of those considerations I think that there is a strong case in respect of the cannabis charges though I have some doubt as to whether a prison sentence is inevitable.

[7]      There is a risk that if bail is refused pending the disposition of these other charges that that will be in effect an unjustified term of detention measured against the culpability of the behaviour as finally determined by a Court.

[8]      In my view this Court is justified in setting aside the decision of Judge Farish on the grounds that the Judge ought to have considered whether or not she should do a s 8(2) analysis.  Having done that I am now of the view that bail should be granted.

I note that bail was not opposed by the police.  It was opposed by the Corrections

Department.

[9]      The appellant is granted bail.   The conditions of bail are:

1.        That he reside at 30 Aldershot Street, Christchurch.

2.The police may attend the address and will be permitted entry by Mr M   to enable them to search for the presence of any drugs, particularly cannabis.  (To make it clear, the police right to entry is based on Mr M   giving permission and the police do not have to follow the procedures of the Misuse of Drugs Act 1975 justifying involuntary entry.)

[10]     Mr M   is not in Court today.  If Mr M   is not prepared to submit to this condition I will require the bail terms to be brought back to me to be reviewed.

[11]     In the light of the unusual condition as to entry and search for drugs, leave is reserved to the appellant and to the police to apply to this Court for review of that condition.

Solicitors:

P Johnson, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent