M v Police HC Invercargill CRI 2009 425 29

[2009] NZHC 2341

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2009 425 29

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 October 2009

Counsel:         D G Slater for the Appellant

K M Siave for the Respondent

Judgment:      29 October 2009

JUDGMENT OF MILLER J

[1]      Mr M   appeals against refusal of bail pending sentencing on one charge of assault, laid under s 196 of the Crimes Act.  It carries a maximum sentence of one year’s imprisonment.

[2]      The offence was an unprovoked attack on a security guard at Southland Hospital, where Mr M   had been treated for a laceration.   As he left the hospital he invited the victim to ‘fight with a skinhead’, then attacked him, kicking him once and punching him repeatedly.   Although the victim suffered no lasting injury, he has given up his job as a result of the attack.

[3]      When he appeared on 16 October, Mr M   was remanded for sentence on 22 January next.   I am told that such delays are commonplace in this area at present, attributable to heavy sentencing workloads and the need to ensure that the

Judges can give proper consideration to each case.   However, I am also told by

M V NEW ZEALAND POLICE HC INV CRI 2009 425 29  29 October 2009

counsel that no distinctions are drawn between those who are in custody and those who are not, which is difficult to comprehend.

[4]      The Judge denied bail succinctly:

I have heard counsel’s submissions in support of bail.  I am conscious that you  are  19  years  of  age.    You  have  some  14  previous  convictions  for violence related offences, some of them very serious.  You were currently at the time you committed this further serious offence subject to prison release conditions.  I am conscious of the fact that s 13 of the Bail Act is over-ridden by the provisions of s 15 in relation your age but in these circumstances I am satisfied that no other course is desirable and so your remand must be in custody, and it is.

[5]      It can be seen that the Judge recognised that because M   is 19, s 13 of the Bail Act did not apply but s 142(4A) of the Criminal Justice Act did.  It allowed him to remand Mr M   in custody if no other course is desirable.  The reasons given were a combination of his 14 previous convictions for violence and the fact that he was on release conditions at the time of this offence.

[6]      On appeal, Mr Slater does not contend that the Judge misdirected himself in law.  He argues rather that there is an alternative to custodial remand that the Judge failed  to  address,  and  that  because  the  maximum  sentence  is  12  months  and Mr M   pleaded guilty, it is possible that the sentence will be completed by the time he is sentenced.

[7]      The alternative that Mr Slater identified was bail to Mr M  ’s mother’s home at 3 Crowther Crescent, with a stringent curfew and any other appropriate conditions.  He explained that EM bail was not sought because an application takes

4-6 weeks and EM bail is seldom granted in this area.  He sought bail but did not discuss the details of any conditions with the Judge, who saw the issue as whether bail was appropriate at all given Mr M  ’s record.

[8]      Section 15 of the Bail Act provides so far as relevant:

15       Granting of bail to defendant under 20 years of age

(1)       If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the

age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.

(2)      Subsection (1) is subject to—

(a)sections 7 (except subsection (5)), 9 to 12, and 16 and 17 of this Act;  and

(b)      subsections (4A) and (4B) of section 142 of the Criminal

Justice Act 1985,— but no other enactment.

[9]      Subsection (1) is subject to the general principles regarding bail to be found in ss 7(except ss (5) and 9 to 12.   But although Mr M   has a long list of previous convictions, they do not include an offence specified in s 10.

[10]     Subsection (1) is also subject to s 142(4A) of the Criminal Justice Act, which as I have noted provides that a remand in custody may be ordered if no other course is desirable.

[11]     Mr M  ’s criminal record is impressive for the number and frequency of his convictions.  Except when in prison, he has offended regularly since 2005.  There are some 72 convictions in all.

[12]     Prison has not deterred Mr M  .  He received two years imprisonment on 23 September 2008 for a series of burglaries and an assault with intent to injure. On 6 May 2008 he was sentenced to eight months imprisonment of a breach of home detention conditions.   He has a number of convictions for failing to comply with Court orders or conditions of detention, and escaping from custody.

[13]     I accept that it must count against a custodial remand that a young offender is unlikely to be sentenced to imprisonment, by analogy with s 13.  Further, long delays in sentencing might well compel the District Court, or this Court on appeal, to grant bail to people who would not otherwise be granted it.  The Court cannot too readily conclude that a custodial sentence of a given length is likely.  There is force in Mr Slater’s submission that by remanding Mr M   in custody for such a long period, the Judge has effectively sentenced him without benefit of a pre-sentence report.  With the discount for a guilty plea, he may well be sentenced to little more than time served.  That is manifestly undesirable.

[14]     But when  considering bail, the question is whether there is no desirable alternative to a remand in custody.  Having regard to Mr M  ’s history and the absence of any application for EM bail, I agree with the Judge that there was no desirable alternative.  That is so because the risk of him continuing to offend while on bail is considerable.  It is also very likely that he would fail to comply with bail conditions.  EM bail might alter that risk by monitoring his location more effectively than the police are able to do, but there was no application.  Had one been made, the Court would of course be bound to consider it on its merits, and having regard to the authorities.

[15]     I also consider, as I suspect the Judge did, that a term of imprisonment is very likely indeed.  Quite apart from Mr M  ’s history, which leaves the Court with few options, the offence itself must attract a deterrent sentence.

[16]     For these reasons the appeal is dismissed.  This judgment does not preclude an application for EM bail.

Solicitors:

Crown Solicitor’s Office, Invercargill