M v Police HC Rotorua CRI-2010-463-42
[2010] NZHC 1683
•2 July 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2010-463-42
M
v
THE NEW ZEALAND POLICE
Hearing: 2 July 2010
Counsel: A Burns for the Appellant
L Maynard for the Crown
Judgment: 2 July 2010
ORAL JUDGMENT OF JOSEPH WILLIAMS J
Solicitors:
Crown Solicitor, PO Box 740, Rotorua
A Burns, Zen Chambers, Zen Building, Rotorua
M V THE NEW ZEALAND POLICE HC ROT CRI-2010-463-42 2 July 2010
[1] M appeals against the refusal of Judge Wolff in the District Court in Rotorua to grant her bail. She was charged with two counts of possessing precursor equipment and possession of a precursor substance all for the manufacture of a Class B drug namely cannabis oil.
[2] Ms M ’ residence was searched by the police. Two large boxes of cannabis plant material were located on the roof of a shed at the rear of the house. Two glass jars with coffee filters, two empty buckets, a two-plate electric cooker, two shopping bags half full of cannabis, and three containers of Isopropyl Alcohol were found in one of the bedrooms.
[3] Ms M has since pleaded guilty to both counts but I note that there is a problem with one of them and that count will need to be either amended by consent or re-laid. That issue is not relevant to the matter before me.
[4] Judge Wolff remanded the appellant in custody. He expressed concern that the offending occurred in a house where there was a 17 year old and a 10 year old, and that the 17 year old had become involved in similar offending.
[5] Given the tariff cases on Class B sentencing, Judge Wolff reasoned that the starting point will plainly be a sentence of imprisonment. In particular Judge Wolff was moved by the decision in Terewi to the effect that community based sentencing was generally not appropriate where cannabis related offending has occurred in the residence to which an offender might be returned.
[6] As this is an appeal against the exercise of a discretion, the appellant must satisfy me that Judge Wolff erred in principle, or that he took into account irrelevant factors, failed to take into account relevant factors, or was plainly wrong.
[7] As counsel pointed out to me the relevant principles are contained in s 13 of the Bail Act. Subsections (1) and (2) require an applicant for bail pending sentencing to establish that, on the balance of probabilities, it is appropriate in the
interests of justice that bail be granted. Thus, the onus of proof is placed on the applicant, this reflecting the fact that the applicant can no longer rely on the presumption of innocence.
[8] Section 13(3) sets out a number of factors for this court to take into account. They include:
a) whether the defendant is likely to receive a sentence of imprisonment;
b)the likely length of time that will pass before the defendant is sentenced;
c) the personal circumstances of the defendant and in this case her immediate family; and
d) any other considerations that might be relevant.
[9] Subsection (4) provides that if the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.
[10] For the appellant Mr Burns pointed me to R v Leone[1]in which the Court of
[1] (2009) 24 CRNZ 231 (CA)
Appeal held that when bail following conviction was sought:
a) if imprisonment is not a real or substantial possibility, s 13(4) will apply (and bail would ordinarily be granted).
b)under s 13(3)(a) the Judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed. The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.
[11] Judge Wolff does not specify the maximum penalty for the relevant offences. But according to the charge sheets, the charges were proceeded with summarily, resulting in maximum sentences of one year’s imprisonment or a $1,000 fine on each charge.
[12] As a result, a community-based sentence is at least a possibility.
[13] As I said, Judge Wolff pointed to Court of Appeal authority doubting the appropriateness of community-based sentences where offending has occurred in the home to which the offender will return.
[14] But there are clearly exceptions to this. One such case is R v Paki[2], affirmed in R v Hill[3] a case to which Mr Burns made reference.
[2] CA165/05, 5 September 2005
[3] [2008] NZCA 41
[15] As that case demonstrates, home detention will be appropriate where the offender’s personal circumstances support such a sentence. While I am not in a position to assess Ms M ’ personal circumstances in detail, I do note that the following factors may well be relevant when matters come to sentencing:
a) First, the offending was not at the serious end of the scale, both by reference to possession of precursor materials and to drug offending generally. In fact the offending in Paki was significantly more serious than in this case.
b) Second, Ms M does not have a significant criminal history.
She has one recent conviction for manufacture of cannabis oil in August 2008, that will clearly count against her; and in terms of this bail appeal she has a recent conviction for failing to answer District Court bail in January 2009. Ms M received a sentence of five months’ home detention for the previous drug conviction, and as far
as I can tell complied with that sentence. She also complied with bail in this offending prior to being remanded in custody.
c) Third, Ms M has as far as I can tell, partial custody of a
17 year old son and a 10 year old daughter. Although Judge Wolff noted this factor as giving rise to concern regarding home offending, and I echo that concern, it must also be relevant that imprisonment would require alternative custody arrangements, at least for the 10 year old.
d)Finally, Ms M pleaded guilty promptly entitling her to a potentially significant discount.
[16] In light of those factors, it seems to me that applying the principle in Leone, a community-based sentence/home detention is in fact a real or substantial possibility, not an inevitability but a real or substantial possibility.
[17] As to the likely length of time before sentence, the sentencing date is
5 August this year, now five weeks away. That means by the sentencing date, she will have spent six weeks in prison.
[18] As to the personal circumstances of the defendant and her immediate family, I do have some concerns about this 10 year old daughter. Remanding Ms M on bail will remove the necessity of alternative custody arrangements at least for the next six weeks and will enable Ms M to organise suitable custody arrangements should a sentence of imprisonment be imposed. I must confess that issue weighs heavily with me. It seems to me that whatever happens on 5 August Ms M should be given ample opportunity to literally put her house in order.
[19] On balance then given that a community-based sentence is a substantial possibility, and given Ms M ’ domestic circumstances, I am satisfied that the interest of justice fall in favour of bail pending sentence.
[20] I would allow the appeal accordingly.
“Joseph Williams J”
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