N v Police HC Wanganui Cri-2009-483-4

[2009] NZHC 94

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-483-000004

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 February 2009 (Heard at Wellington)

Counsel:         D M Goodlet for appellant

L C Rowe for respondent

Judgment:       11 February 2009

RESERVED JUDGMENT OF DOBSON J

[1]      The  appellant  (“Mr  N  ”)  appeals  from  a  decision  of  Judge  Radford, delivered in the District Court at Wanganui, declining an application made on his behalf for bail.

[2]      Mr N   has thus far been remanded in custody on a charge of wounding with intent  to  cause  grievous  bodily  harm.    It  appears  that  Mr  N    was  originally remanded in custody on the present charge on 10 June 2008 and, apart from compassionate bail for a brief period, did not apply for bail for a number of months, with

the hearing and decision being on 23 December 2008.

N V NEW ZEALAND POLICE HC WANG CRI-2009-483-000004  11 February 2009

[3]      The reasoning of the District Court Judge is dominated by his concerns at the seriousness of the offending alleged against Mr N  , and the Judge’s view that the Police case on this charge is a very strong one, being based on identifiable CCTV images of Mr N  ’s involvement in a very serious and brutal attack.

[4]      Mr N   is a patched member of the Mongrel Mob and, together with another Mongrel Mob member and an associate, is alleged to have attacked and savagely beaten the victim who had formerly been a member of another criminal gang in Wanganui. One of Mr N  ’s associates is alleged to have hit the victim on the jaw, knocking him to the ground unconscious, after which Mr N   and the others subjected the victim’s head and body to a frenzied barrage of kicks and stomps.

[5]      The incident occurred only three days after Mr N   had been sentenced for his part in another serious instance of inter-gang fighting, with the earlier occasion involving his wielding a baseball bat.   The earlier offending had also occurred in the same area of the central part of Wanganui.   In oral reply submissions, Ms Goodlet submitted that the earlier incident had not involved actual infliction of harm with the baseball bat, but rather Mr N   was wielding it as a threat to the combatants he was confronting on that occasion.

[6]      The District Court Judge did not make explicit reference to the sections in the Bail Act 2000 (“the Act”) that governed his considerations.   However, it is tolerably clear that his reasoning applies the sequence of considerations on whether there was just cause for continued detention in terms of s 8 of the Act.  Mr N   is in fact 18 years of  age,  so  the  application  ought  to  have  been  considered  under  s 15  of  the  Act. Ms Goodlet submitted that the failure to acknowledge and apply s 15 constituted an error  of  law,  and  that  the  materially  stronger  presumption  in  favour  of  bailing  a defendant aged between 17 and 20 years should result in Mr N   being bailed.

[7]      Section 15 of the Act is subject to subss (4A) and (4B) of s 142 of the Criminal Justice Act 1985.  The inter-relationship between these provisions was described in the judgment of Ellen France J in Langi v Police HC WN CRI-2004-485-104 23 July 2004 at [25] in the following terms:

Section 142(4A) of the Criminal Justice Act provides that “despite” s 15 of the Bail Act, the Court may in any case direct that the person be

detained in a penal institution “if in its opinion no other course is desirable, having regard to all the circumstances.”   The appellant must therefore be released unless I reach the view no other course is desirable.

[8]      I can readily understand the level of concern reflected in the Judge’s reasoning at what appears to be a rapidly developing pattern of this young man’s very active and apparently  willing  participation  in  vicious  gang  confrontations.    Particularly  in  the context of ongoing concerns of gang violence in Wanganui, the Judge might more readily discern such a pattern developing from fewer instances of participation in gang violence than would be the case without that topical concern.  Despite his relative youth, Mr N   appears to have participated in two vicious confrontations in the central area of Wanganui, the first using a baseball bat and, within three days of being sentenced for that, using his boots to savagely kick an unconscious man on the ground.  That level of preparedness to be involved in such activity justifies a concern that this young man may offend while on bail, irrespective of the conditions imposed.   That was the essential basis of the Judge’s decision to decline bail.

[9]      The  Police  form  explaining  the  grounds  for  opposing  bail  pointed  out  that Mr N  ’s  four  previous  convictions  are  all  violence  related.     They  involved incidents, first in June 2007 relating to unlawful possession of a firearm and then three charges in October 2007 for assault with a weapon, possession of a knife in a public place and possession of an offensive weapon.  Mr N   was not sentenced to prison on conviction for any of these charges.

[10]     I accept Mr Rowe’s submission that the considerations specified in s 8 can still be  relevant  when  s 15  applies.    However,  they  become  somewhat  more  secondary considerations, with the presumption in favour of bail for a young person requiring a more exhaustive analysis to exclude the prospect of all other courses, before resorting to a remand in custody.  Although accepting that the Judge did not explicitly direct himself on the relevant criteria under s 15, Mr Rowe submitted that the concern at the prospect of further offending whilst on bail could nonetheless lead to the conclusion under s 15 that no other course than a remand in custody is desirable.

[11]     Ms Goodlet placed considerable emphasis on the fact that Mr N   has no history of offending whilst on bail notwithstanding, on her analysis, that he was on bail for a relatively substantial period before the last convictions were entered.   She also

emphasised the length of time until a trial could be held, suggesting that from her awareness of the state of lists in the Wanganui District Court a trial would be unlikely to be before September this year.

[12]     The  application  for  bail  was  originally made  on  the  basis  of an  address  in Jerusalem, a rural settlement some distance up the Whanganui River and away from Wanganui itself.   It was suggested in favour of such an address that it would remove Mr N   from the source of most temptation to  offend  or  otherwise breach  bail conditions.

[13]     As against these points, Mr Rowe advised from his position as Crown Solicitor that a trial could be accommodated, particularly if Mr N   remains in custody, as soon  after  the  depositions  have  been  concluded  as  the  parties  could  be  ready. Depositions are to recommence on 9 April 2009 and Mr Rowe projects the availability of time in any of May, June or July, with the week of 13 July next being the latest he would see the trial being set down.

[14]     As to the proposed address to which Mr N   might be bailed, Mr Rowe explained reasons, which have previously been conveyed to Ms Goodlet, for Police opposition to the proposed address in Jerusalem.  It was in the locality of recent serious gang violence against another resident, and the address was extremely difficult for the Police to monitor for compliance with bail conditions because of its distant location. Mr Rowe acknowledged that the Police would have less objection to an alternative address at 8 Kea Place, Wanganui, more recently proposed as an alternative.

[15]     Mr N  ’s criminal record is indeed a short one.   When the charge he is currently facing and the apparent strength of evidence on this present case are added to it, it is indeed a worryingly serious record for an 18 year old.   However, in terms of exhausting alternatives to a remand in custody, the absence of any prior offending whilst on bail, and the small number of his convictions, mean that the presumption in favour of bail required by s 15 cannot yet be displaced.   The essence of the more favourable treatment s 15 requires for young offenders aged between 17 and 20 means, in practical terms for Mr N  , that he is to be afforded an opportunity to demonstrate that he can comply with bail ordered subject to appropriate conditions.  Although his recent criminal conduct  may  well  be  sufficient  to  weigh  against  a  grant  of  bail  under  s 8,  the

presumption in his favour under s 15 means that the alternative course of bail must be tried.  Mr N   must know that any non-compliance with conditions of his bail will surely see him returned to custody.  Ms Goodlet was very realistic in acknowledging that any non-compliance of any sort with conditions of bail would bring his period on bail to an end.

[16]     Accordingly, whilst respecting the reasonableness of the concerns motivating the Judge’s decision, I am satisfied that s 15 requires the contrary outcome.   I allow the appeal and grant Mr N   bail on the following conditions:

a)        He is to reside at 8 Kea Place, Wanganui;

b)        He is subject to a curfew from 8pm to 7am;

c)        He is not to associate with any Mongrel Mob members or associates of that gang with the exception of his father;

d)        He is not to enter the central Wanganui area;

e)        He is not to consume alcohol or any drugs that are not prescribed for him by a medical practitioner.

Dobson J

Solicitors:

D M Goodlet, Wanganui for appellant

Crown Solicitor, Wanganui for respondent