Mailangi v Police HC Auckland CIV 2008-404-000215

[2008] NZHC 2414

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000215

UNDER  the Bail Act 2000

IN THE MATTER OF     an appeal against refusal to grant bail

BETWEEN  TUIPOLUTO MAILANGI Appellant

ANDPOLICE Respondent

Hearing:         22 July 2008

Appearances: V L Charan for Appellant

K E Hogan for Respondent

Judgment:      22 July 2008

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

V L Charan, PO Box 76736, Manukau City, 1702

MAILANGI V POLICE HC AK CRI 2008-404-000215  22 July 2008

[1]      Mr Mailangi appeals against a decision of Judge Andree Wiltens declining him bail.   He is charged with unlawfully carrying an imitation firearm under the Arms Act 1983.   The maximum penalty is two years’ imprisonment or a fine of

$4,000.

[2]      He pleaded guilty at his very first Court appearance.  He was then remanded to 16 July 2008 during which consideration was to be given to his eligibility for diversion.  There was no opposition to the grant of bail at that stage.

[3]      When the matter came before Judge Andree Wiltens on 16 July 2008 he clearly took a more serious view of the facts than had been anticipated by counsel.

[4]      In broad terms the facts were that the appellant had been walking around with an imitation plastic gun.   He had been observed by members of the public who apparently called the police.  The Judge referred to him as having gone through a busy  crowded  area,  effectively  a  market  place  with  the  imitation  firearm.    He referred to the possibility that the appellant might have been foolish enough to use the  imitation  weapon  in  some  way.     He  indicated  that  he  was  considering imprisoning the appellant immediately, but in the end  called  for  a pre-sentence report.  He then remanded the appellant in custody for sentencing on 6 August.

[5]      It is to be noted that the appellant is 17  years of age and consequently, entitled to the benefit of s 15 of the Bail Act 2000.  That section was not mentioned by the Judge, but it is available in circumstances where a person who has pleaded guilty has been remanded for sentence.   Under s 15(1) the Court must release the defendant on bail unless one or other of a number of stated statutory provisions applies.  Here it seems, the only option would be s 142(4A) of the Criminal Justice Act under which the Court is entitled to remand a person in custody where no other approach is appropriate.

[6]      Apart from s 15, however, it should be noted that the appellant has only one previous conviction.  That was for disorderly behaviour under s 4 of the Summary Offences Act.  That offence was punishable only by fine.  In fact, a fine of $200 was

imposed when the matter was dealt with on 11 December 2007 in the Manukau District Court.  That meant that in terms of s 7(4) of the Bail Act the appellant was not a person who had previously been convicted of an offence punishable by imprisonment.   The further consequence of that was, that until his conviction the appellant would have been bailable as of right under s 7(2) of the Bail Act 2000.

[7]      Ms Hogan, for the Crown has accepted that the combination of s 15 and s 7(2) in this case are such that it would plainly have been open to the District Court Judge to remand the appellant ton bail pending sentencing.  She points out, however, that under s 13 of the Bail Act the onus is on a defendant to show cause why bail should be granted and further, that s 13 is not subject to s 7(2) of the Act.

[8]      Nothing that this Court can say in dealing with this appeal can, of course, influence the outcome of the sentencing process that is yet to occur.  The Judge when he  comes  to  sentencing  will  have  the  benefit  of  a  pre-sentence  report  and submissions from both the defence and prosecution.

[9]      However, looking at the matter at this point and having regard to the fact that there is only one previous offence in the appellant’s record (and that able to be dealt with by way of a fine of $200), there must be a distinct possibility, I would have thought, that imprisonment would not be imposed when the matter comes to be considered on the merits.  Having regard to the various statutory provisions to which I have referred and notwithstanding the serious view that the Judge evidently took of the facts of this matter, I am in no doubt that the appropriate course is to grant bail.

[10]     I allow the appeal and I grant bail accordingly.   Bail will be subject to the following conditions:

a)        That the accused reside at 6/61 Luke Street, Otahuhu.

b)He is to report to the police at the Otahuhu Police Station between the hours of 8.00 a.m. and 4.00 p.m. on Wednesdays.