Metera v Police HC Auckland CRI 2010-404-231

[2010] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-231

MICHAEL THOMAS METERA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 July 2010

Appearances: M Hislop for the Appellant

R M A McCoubrey for the Respondent

Judgment:      20 July 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 20 July 2010

At 4.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140\ Counsel:  M Hislop, PO Box 210, Auckland 1140

METERA V POLICE HC AK CRI-2010-404-231  20 July 2010

[1]      On 1 April 2010 Mr Metera was arrested on a charge of aggravated robbery, the maximum penalty for which is 14 years imprisonment.  The charges arise out of a home invasion which took place at a remote property at Miranda on 17 May 2010. At that time Mr Matera had been in New Zealand for only a matter of months having been  deported  from  Australia earlier  in  the  year following the completion  of  a sentence of imprisonment there for aggravated robbery.

[2]      An application for bail was declined by Judge Rota in the Pukekohe District

Court on 7 April 2010.

[3]      On 16 June 2010 Mr Metera made an application for electronically monitored bail in the same Court.  Bail was opposed by police and declined by Judge Everitt.

[4]      Mr Matera now appeals against that refusal to grant EM Bail.  The onus on him is to show that Judge Everitt’s decision was plainly wrong.

[5]      The principal bases for the appeal are that Judge Everitt did not fully take into account the presumption of innocence in the context of the strength of the evidence  against  Mr  Metera  which  is  said  to  be  circumstantial.    It  is  further submitted that there was no evidence that the appellant has ever offended while on bail, either here or in Australia.  It is said that the learned District Court Judge did not turn his mind adequately to whether EM bail could address the concerns that he had about the possibility of Mr Metera failing to turn up to Court, interfering with witnesses or evidence and offending while on bail.  It is also said that the learned Judge placed too much weight on the apparent opposition by Housing New Zealand to Mr Metera living at the proposed bail address (currently occupied by his sister and her child) and the fact that they were said by Police to have been intoxicated when a bail check was undertaken.  Lastly, it is said that there is a real concern about the delay that  may occur  before  Mr  Metera’s trial.    He has  been  in  custody since

1 April 2010 and it is thought that the trial will likely not take place until next year.

[6]      Having read Judge Everitt’s notes it is clear what his principal concerns were. I refer in particular to [1], [2] and [3] where he said:

... The allegation is that [Mr Metera] was part of a gang of robbers who broke into a remote farmhouse, roughed up and terrorised the occupants and got away with a minimal amount of property.  It was a home invasion type robbery in which extreme violence was used against two women.

It is said that Mr Metera was one of the participants.   Evidence clearly establishes that he was involved in something to do with the robbery.  He claims not to be.  He has no explanation for the police finding in his house, in his wardrobe and chest of drawers under the divan bed in the garage, items of property belonging to the victims.   He has no explanation for a black beanie hat found with two eye holes cut in it, two hoody tops with eye holes cut in them, clothing matching the description given by the victims of the nature of the offenders, also a pair of gumboots in the garage of his address.  The sole of these gumboots appear to match the sole impressions at the scene.   Further ESR inquiries are continuing to try and match DNA samples.

This was a very significant home invasion robbery, and the participants if found guilty are likely to receive sentences in the region of many, many years, rather than very minimal sentences.  The defendant has been deported from Australia, recently receiving, I am told, a sentence of six years imprisonment for robbery armed with an offensive weapon.  His record in Australia is a shocking record of violence and robbery, and the police says he has continued it here when he was deported.

[7]      The Judge then went on to consider the presumption in favour of granting bail and the mandatory s 8(1) considerations.   He expressed concerns about the possibility of flight risk and interference with witnesses and offending while on bail.

[8]      However in terms of the question of electronic bail, the learned District Court Judge’s principal concern was plainly the fact that the application was not supported by the owners of the relevant house, namely Housing New Zealand.   As well, he refers to the allegation that the persons living there were unsuitable, being said to be intoxicated when the assessment officers went around in the middle of the day.  He did not consider there would be any supervision of Mr Metera if he were to reside at the address.

[9]      There is no question that the offending with which Mr Metera is charged is very serious.   I accept Judge Everitt’s assessment of the evidence that presently exists against Mr Metera and do not consider that it can fairly be said that Judge Everitt failed to take due account of the presumption of innocence in that respect. While the evidence may well be circumstantial, on its face it creates some clear links between Mr Matera and the alleged offending.

[10]    I also consider that the learned District Court Judge was right to place considerable weight on the nature of the offence with which Mr Metera is charged and the fact that it is indeed a grave one of its kind, which places Mr Metera in jeopardy of a severe punishment and in particular a lengthy term of imprisonment. The likely length of time before the matter comes to a hearing or trial must be considered in light of the penalty to which Mr Metera may be ultimately subject.

[11]     Judge  Everitt  also  implicitly recognised  that  while  the  fact  Mr  Matera’s offending in Australia could not bring him within the terms of s 10 of the Bail Act

2000, the fact of that offending was nonetheless relevant in terms of s 8(2)(d).

[12]     It was accepted by Mr McCoubrey that the Police’s opposition to bail was founded (as was Judge Everitt’s decision) principally in s 8(2) considerations.  There were no overwhelming s 8(1) concerns, particularly now that the preparation of witness statements has been completed.   While there is inevitably some risk of reoffending I accept that that might be able to be addressed by the imposition of strict EM bail.

[13]     The  difficulty faced  by Mr  Hislop  (who  made  articulate  submissions  on Mr Metera’s behalf) is that as well as the quite powerful s 8(2) factors that, in my view, Judge Everitt correctly regarded as militating against bail here there are real question-marks over the suitability of the proposed bail address.   I regard it as significant that, not only has Housing New Zealand’s expressly recorded its disapproval of Mr Metera as a prospective tenant, but has said:

We are currently experiencing some antisocial behaviour breaches with the current tenant and occupier of 12 Coates Crescent ... and this would not be a good mix for Thomas Metera.

[14]     That view simply serves to confirm the impression that was left with the EM Bail assessor.  Accordingly, even if I were satisfied that Judge Everitt was wrong in his s 8 assessment (which I am not) the proposed bail address is simply not suitable

and the appeal is dismissed accordingly.

Rebecca Ellis J