Matara v Police HC Auckland CRI 2008-404-000203

[2008] NZHC 2481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000203

BILLY MARK EVAN MATARA

Appellant

v

POLICE

Respondent

Hearing:         5 August 2008

Counsel:         S Lance for Appellant

J Shaw for Respondent

Judgment:      5 August 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail.   The appellant is charged with burglary.  He was apprehended running away from a crashed car with a backpack and it is the police case that inside the backpack he was carrying two cellphones valued at $400, a CD walkman valued at $200, a Katmandu CD wallet valued at $20, a quantity of jewellery valued at $2,000, a pair of woollen gloves valued at $10, a quantity of foreign currency valued at NZ $1,000.  These goods had been burgled from a property in Browns Bay.

[2]      The car crash followed a police chase at speed until the car being chased collided with a power pole.  During the pursuit the car being chased drove at high

MATARA V POLICE  HC AK CRI 2008-404-000203  5 August 2008

speed on to oncoming traffic and in poor light due to twilight drove around other traffic travelling in the same direction.  This is the police case.

[3]      As Mr Lance points out his client is entitled to the presumption of innocence. There were two people involved and there is some real doubt as to who was driving the car being chased.   The appellant is currently charged with dangerous driving, driving while disqualified, and failing to stop.  But those charges may not proceed due to a problem that the prosecution faces of proving identity.     But the other charges of burglary,  theft and  receiving,  inasmuch  as  they are  built  around  the appellant being caught in possession of stolen goods, one of other of them is very likely to succeed.  Mr Shaw said that in respect of the burglary it may well be that ESR evidence will prove that the appellant was at the scene.

[4]      This is a case in which s 12 of the Bail Act 2000 applies because s 12(1)(b) is satisfied.  Section 12(1)(b) provides:

12    Further restriction on bail in certain cases

(1)    This section applies to a defendant if—

…

(b)    the defendant is of or over the age of 17 years and—

(i)   is charged with an offence that carries a maximum sentence of 3 or more years' imprisonment; and

(ii) has previously received 14 or more sentences of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002); and

(iii)   has previously been convicted of an offence that was committed while the defendant was remanded at large or on bail and that carries a maximum sentence of 3 or more years' imprisonment (whether or not the conviction resulted in any of the sentences of imprisonment referred to in subparagraph (ii)).

[5]      It is also important to note that s 12(1)(b) is read in light of subs (2):

(2)       For the purposes of subsection (1), a sentence of imprisonment is counted whether or not it was served concurrently with any other 1 or more sentences.

[6]      Where these threshold conditions apply and that is not disputed in this case the following subsections are applicable to the analysis:

(3)      No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.

(4)      No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

(5)       In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit—

(a)     any offence involving violence against, or danger to the safety of, any other person; or

(b)    burglary or any other serious property offence.

…

(7)      In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.

This set of subsections reverses the policy in favour of bail which is generally encapsulated in the Bail Act.

[7]      This man, now aged about 28, has a number of prior convictions for burglary but as Mr Lance points out some of them now date back to a much earlier time in the mid 1990s, not early 90s.  His most recent burglary conviction was on 14 April 2005 which was also accompanied by offending of driving while disqualified, unlawfully taking a motor vehicle.    It would appear that the burglary sentence was the lead sentence and he was sentenced to one year four months.   If he is convicted of burglary in this case it does not necessarily follow that he would get a sentence equivalent or greater than one year four months but there is a high likelihood.

[8]      A  lot  of  the  other  offending,  which  is  substantial  in  number,  is  traffic offending, including failing to stop when being followed by red and blue flashing lights, operating a motor vehicle recklessly, in fact a number of convictions for

failing to stop when followed by red and blue flashing lights and numerous convictions of driving while disqualified.

[9]      I have mentioned both these two categories of offending because it seems to me that they are directly applicable to applying subs (5).  I must be satisfied on the balance of probabilities  that  the  defendant  will  not,  while  on  bail,  commit  any offence involving danger to the safety of any other person or burglary or any other serious property offence.

[10]     Having  heard  argument  I  am  simply  not  satisfied  on  the  balance  of probabilities that this young man will not again get involved being chased by police in circumstances which raise a question of danger to the safety of other persons on the road.  Nor am I satisfied that he will not, while on bail, commit burglary.  As I read s 12 that is a threshold which the defendant has not crossed and therefore it would be wrong for me to grant bail.

[11]     Mr Lance has argued, with some merit, the problem that on this kind of analysis a person who has the presumption of innocence and who has pleaded not guilty and is entitled to a trial may, nonetheless, be imprisoned prior to trial for a length of time which makes going to trial academic because that person will have effectively served a sentence that they are likely to get if found guilty.   That is a matter of serious concern but as I read s 12 of the Bail Act this is an outcome which Parliament has contemplated and allowed for.   In other words, it is a possible outcome.

[12]     I think the situation simply is that there is a category of defendant, being persons with quite significant criminal history, who simply forfeit the benefit of the policy of the Act to be released at large or on bail pending trial because of the real likelihood that they will be a danger to the public or commit other serious property offences while on bail.

[13]     Mr Lance has sought to obtain the earliest fixture he could from the District Court on the North Shore.  I am aware of the pressure that the District Court is under at the present time.  But I think for the reasons and circumstances that I have just

outlined that it is desirable in a situation such as this for special efforts to be made by the Registry and the list Judges to bring a case like this on for an early hearing whether that may be in the North Shore, Central Auckland or Manukau I do not know but I would hope that some efforts might be made to bring the case on for a hearing to avoid the outcome where the right to trial may be rendered peric by reason of the length of remand in custody.

[14]     The bail is dismissed.

Solicitors:

S Lance, Auckland, for Appellant

Meredith Connell, Auckland, for Respondent