Monk v The Queen

[2012] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA47/2012
[2012] NZCA 8

BETWEEN  DAMIAN MONK
Appellant

AND  THE QUEEN
Respondent

Hearing:         7 February 2012

Court:             O'Regan P, Randerson and Harrison JJ

Counsel:         B J Hart for Appellant
J E Mildenhall for Respondent

Judgment:      8 February 2012 at 11.45 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

1. The appellant, Damian Monk, has pleaded guilty to a number of charges under the Misuse of Drugs Act 1975.  The most serious charge is of manufacturing 700 grams of methamphetamine.  Mr Monk is due to be sentenced in the District Court at Auckland on 22 February 2012. 

2. Mr Monk was granted bail pending sentencing by Judge Gibson in the District Court on 16 June 2011 after he entered pleas of guilty on arraignment.  His bail was revoked following a disputed facts hearing before the same Judge on 18 November 2011.[1]  His appeal to the High Court was dismissed by Wylie J on 9 December 2011. [2]

   [1]      R v Monk HC Auckland CRI-2009-004-24447, 18 November 2011.

   [2]      Monk v R HC Auckland CRI-2011-404-433, 9 December 2011.

3. Mr Monk then filed a fresh application for bail in the High Court to enable him to attend a drug rehabilitation programme run by a clinic in Auckland.  He relied on the ground that the High Court had inherent jurisdiction to grant bail.  Woolford J assumed without deciding that the High Court had inherent jurisdiction but dismissed the application following a defended hearing on 20 January 2012.[3]  In summary the Judge was not satisfied that he should exercise the inherent jurisdiction where, first, Mr Monk was to be sentenced within a month; second, the starting point for a sentence would be a term of imprisonment in excess of ten years; and, third, Mr Monk was effectively seeking to revisit earlier decisions of the District Court and the High Court refusing to grant him bail.

   [3]      Monk v NZ Police HC Auckland CRI-2011-090-850, 20 January 2012.

4. The constraints of urgency in hearing this appeal have excluded time for counsel to present considered argument in this Court on whether the High Court had inherent jurisdiction to consider Mr Monk’s application.  Assuming for these purposes that the High Court did have such jurisdiction, we are not satisfied that Woolford J made a material error.  Moreover, it would be pointless to entertain an appeal where Mr Monk is to be sentenced in a fortnight in circumstances where Mr Monk will not be released from prison for some years.  While Mr Hart expresses doubt on whether a pre-sentence report will be available on 22 February, we must proceed on the premise that sentencing will proceed on that date.  We add that our decision would not be materially affected if sentencing was delayed.  Any delay is likely to be brief.

5. Mr Monk’s appeal is without merit and is dismissed. 

Solicitors:
Crown Law Office, Wellington, for Respondent