Morrell v Police

[2015] NZHC 937

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV2015-443-000021 [2015] NZHC 937

BETWEEN	BRUCE MORRELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 May 2015 (by audio-visual link)
Counsel	M Boyd for Appellant A W M Britton for Respondent
Judgment:	6 May 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, New Plymouth
Counsel:

J C Hannam, New Plymouth (M Boyd)

MORRELL v NEW ZEALAND POLICE [2015] NZHC 937 [6 May 2015]

[1]      Mr Morrell appeals against revocation of bail and a subsequent remand in custody until 4 June 2015 for sentence.1

[2]      On  19  February  2015,  Mr  Morrell  pleaded  guilty  to  three  charges  of threatening to kill, and one of theft.  Without going into the detail, the threats related to family members and the theft to a former employer with whom Mr Morrell was living at the time. Prior to revocation of bail, Mr Morrell was unemployed.

[3]      Mr Morrell was bailed to a friend’s home.   The bail conditions excluded

contact with his mother.  The remand was through to sentencing date on 31 March

2015.  Mr Morrell was brought before the District Court on 10 March 2015 on an alleged breach of bail relating to contact with his mother.  He was readmitted to bail to appear on 31 March 2015 for sentence.  Subsequently, because no pre-sentence report had been prepared Mr Morrell was remanded (yet again) for sentence on 30

April 2015, on the same terms of bail.

[4]      Mr Morrell’s personal circumstances are not good.  Before he was bailed he admits to having been using synthetic cannabis.   His mental state is poor.   He became suicidal.  After bail was granted, he says that he stopped using the synthetic cannabis.

[5]      In endeavouring to explain why he did not attend on a probation officer for preparation of the pre-sentence report, Mr Morrell refers to the absence of any communication from a probation officer to arrange a meeting.  He deposes that he expected to hear from a probation officer to get an appointment.  He did not contact a probation officer directly.   Nevertheless, Mr  Morrell  accepts that a probation officer may have tried to contact him.  While he has a mobile telephone, he says that he did not have enough credit to check voicemail.  Further, Mr Morrell is illiterate and cannot read text messages. That is done by another person for him.

[6]      When a letter was ultimately received to attend a meeting it was too late. The time at which the meeting was to be held was earlier in the day.

1      Police v Morrell [2015] NZDC 7431.

[7]      On 30 April 2015, Mr Morrell appeared before Judge Roberts in the District Court at New Plymouth, ostensibly for sentencing.  The Judge was critical of the lack of steps taken by Mr Morrell to ensure a pre-sentence report was obtained.  A report that the Judge had from a probation officer indicated that efforts were made to contact Mr Morrell by phone, and a letter was sent to arrange a suitable date and time. Two appointments were said to have been made. He was said to have failed to attend both.  Plainly, there are some conflicts in the information available in respect of Mr Morrell’s inability to attend for interview.

[8]      The  Judge  was  concerned  that  sentencing might  not  proceed  unless  Mr Morrell was remanded in custody to enable a report to be prepared.  He expressed the view that a custodial remand was “the only way that I can be assured a report is available on” 30 April 2015 for sentencing.

[9]      No clear indication has been given as to the nature of the sentence that will be imposed.  There is a notation on one of the charging documents to the effect that “all options” are open.  The pre-sentence report is intended to include a home detention appendix.

[10]     Was Judge Roberts entitled to remand in custody?  The applicable provision of the Bail Act 2000 is s 13.2   That puts the onus on a person who has pleaded guilty to satisfy a Court on the balance of probabilities that it is in “the interests of justice” to grant bail.3    Four factors are specifically mentioned in s 13(3); the likelihood of receipt of a sentence of imprisonment; the likely length of time to pass before sentence; the personal circumstances of the defendant and his or her family and any other relevant considerations.

[11]    The interests of justice plainly incorporate a need to have all information available for sentence.  On the face of it, any failure to take steps to advance that might be a relevant factor that could be taken into account in determining that it was no longer in the interests of justice for Mr Morrell to be remanded on bail.

[12]     The principles applicable to a s 13 application were identified by the Court of Appeal in R v Leone,4  and summarised by me in Patil v Police.5     Patil was a judgment given on 9 July 2010 before s 13 was amended to include new sub-sections (4A) and (4B). The full text of the present version of s 13 is:

13   Exercise of discretion when considering bail pending sentencing

(1)       If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2)       The onus is on the defendant to show cause why bail should be granted.

(3)       When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(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   the defendant's immediate family:

(d)      any other consideration that the court considers relevant.

(4)       If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

(4A)     Despite being satisfied that it would otherwise be in the interests of justice to grant bail, the court may remand the defendant in custody for the purpose described in subsection (4B) if it is satisfied that—

(a)      the  defendant  has  breached  a  condition  of  bail  imposed under section 30(3A); and

(b)      there is no other reasonable means to achieve the purpose described in subsection (4B).

(4B)    The purpose referred to in subsection (4A) is to ensure that the defendant takes the steps necessary for the proceedings to be progressed within a reasonable time frame.

(5)       This section is subject to section 11.

[13]     In Leone, the Court of Appeal took the view that something in the nature of a sliding scale is required; so that the more likely imprisonment will be imposed the less likely it is that bail would be granted.  The policy considerations underpinning (for example) risks of flight and re-offending,6 are brought into account in determining whether the interests of justice require bail to be granted, but they are not determinative.

[14]     Ms Boyd, for Mr Morrell, has submitted that s 13(4A) does not apply because there was no condition of prior bail that Mr Morrell attend on the probation officer. Mr Britton, for the Police, submits in response that there was a direction to Mr Morrell to do so, following his failure to have a report at the first sentencing date.

[15]     The position is complicated by the fact that there is no s 30(3A) in the Bail Act; that being the purported provision to which s 13(4A) refers.7   It is more likely that that provision is directed to s 30(3), which enables a Judge to impose any condition  reasonably  necessary  “to  ensure  that  the  defendant  takes  the  steps necessary for the proceedings to be progressed within a reasonable timeframe”.  That reflects the terms of s 13(4B).

[16]     Judge Roberts did not refer specifically to the jurisdiction under which he revoked bail and remanded in custody.  I consider from a reading of his decision that he took the view that it was not in the interests of justice for Mr Morrell to be granted bail, when he had previously failed to co-operate to ensure that a pre- sentence report was available.

[17]     In my view, that change in circumstance would be enough to revoke bail. Exercising the s 13 discretion, it would not be necessary to bring into play s 13(4A) and (4B) which will apply more generally to steps in the proceeding as opposed to a specific reference to the need to obtain a pre-sentence report.

[18]     However, given Mr Morrell’s personal circumstances and the fact that it is

unlikely that a term of imprisonment would be imposed which was longer than that

to be served on remand, I consider that the appropriate approach would be for a probation officer to attend upon Mr Morrell in custody promptly, to prepare a report and once that report was available, for Mr Morrell to make an application for re- admission to bail in the District Court, with reference to the likely sentence as recommended by the probation officer.

[19]     That approach has two advantages.  The first is that it will minimise the time in custody.  The second is that the Judge will have more information about the likelihood of a sentence of imprisonment being imposed and, if so, the length.

[20]     In the event that a prompt appointment cannot be made for a probation officer to see Mr Morrell in custody, it would be open to him to apply for re-admission to bail in any event.  Failure to have that report prepared promptly cannot be the fault of Mr Morrell, if he were detained in custody for its preparation.

[21]     I direct the Registrar to make a copy of this decision available to a probation officer as soon as practicable.

[22]     For those reasons, the appeal is dismissed.

[23]     I thank counsel for their assistance at short notice.

P R Heath J