Ngapera v Police HC Napier CRI-2007-441-24

[2007] NZHC 1902

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2007-441-24

JOHNNY BENJAMIN NGAPERA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 June 2007

Appearances: Mr G W Calver for Appellant

Mrs J Rielly for Crown

Judgment:      22 June 2007

(ORAL) JUDGMENT OF LANG J [on appeal against refusal to grant bail]

Solicitors:

Crown Solicitor, Napier
Counsel:

Mr G W Calver, Hastings

NGAPERA V NZ POLICE HC NAP CRI-2007-441-24  22 June 2007

[1]      Mr Ngapera appeals against the refusal of Judge Mackintosh in the District

Court to grant him bail.

[2]      Mr Ngapera is charged with the aggravated robbery of a motor vehicle and a number of other items.   That charge arises out of an incident that is alleged to have occurred at  Papamoa on 13 February 2007.     The  Crown case  will be that  Mr Ngapera and two associates travelled from Hawkes Bay to Papamoa on that date to accost the complainant.   It seems they believed that the complainant had placed an offending item relating to Mr Ngapera on the internet.

[3]      When Mr Ngapera arrived at the complainant’s address he is said to have acted in an intimidating manner and to have told the complainant that he was there to “tax” him.     He then proceeded to take the complainant’s motor vehicle  and a number of other items from the complainant’s property.

[4]      Mr Ngapera has entered pleas of not guilty to the charges and is due to proceed to trial during the week commencing 8 August 2007.    His defence will be that this was a commercial transaction and that the complainant consented to the removal of his property.

[5]      Unfortunately  for  Mr  Ngapera,  he  faced  a  hurdle  in  seeking  bail  in  the

District Court.   This is because his previous convictions mean that he is subject to s

10 of the Bail Act 2000.    As a result, he was required to satisfy the District Court Judge that, if released on bail, he would not commit further offences of violence or in relation to property.

[6]      Another hurdle in Mr Ngapera’s way was the fact that he was only released from prison in December 2006.   This offending is said to have occurred just a few weeks later.   Moreover, he has a number of previous convictions for offending on bail.   Importantly for present purposes, one of these is for an offence of robbery that was committed whilst he was on bail on a charge of wilful damage.

[7]      The Judge took the view that Mr Ngapera’s previous convictions were such that she could not properly be satisfied that he would not commit further offences if he was released on bail.    I cannot substitute my view for that of the learned Judge provided she has taken into account relevant considerations and excluded from her mind irrelevant considerations.

[8]      Viewing the matter overall, it is clear that the Judge turned her mind to all of the relevant factors under s 10.   Her decision, namely that there was a risk that Mr Ngapera would commit further offences if released on bail, was clearly open to her on the material before her.   For that reason there is no basis for me interfering with the decision that she reached.

[9]      The circumstances have also changed somewhat since the application for bail was heard in the District Court.    This is because Mr Ngapera now has a trial date that is just a few weeks away.

[10]     In those circumstances I do not consider that there would be any justification for me interfering with the decision reached in the Court below.     The appeal is accordingly dismissed.

Lang J