Nisbet v The Queen

[2011] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND

CA96/2011
[2011] NZCA 68

BETWEEN  CRAIG GRANT SCOTT NISBET
Applicant

AND  THE QUEEN
Respondent

Counsel:         J C Gwilliam for Applicant
B F Fenton for Respondent

Judgment:      15 March 2011 at 10.30 am

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

REASONS

Introduction

1. Craig Nisbet was convicted of one count of theft by a person in a special relationship and sentenced to three and a half years imprisonment.  Mr Nisbet has appealed against his conviction and sentence.  The conviction appeal raises two grounds, first, that the circumstances of Mr Nisbet’s relationship to the victim were not a “special relationship” in terms of s 220(1) of the Crimes Act 1961, and secondly, that the conviction was not supported by the evidence.  On sentence, Mr Nisbet says a non-custodial sentence, at the most home detention, ought to have been imposed.

2. Mr Nisbet applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act.

The application for bail

1. The application is brought primarily on the basis that the grounds of appeal are strong.[1]  In addition, Mr Nisbet relies on his personal circumstances.[2]

   [1]      Bail Act, s 14(3)(a).

   [2]         Section 14(3)(d).

2. The Crown opposes bail.

Discussion

1. The test to be applied in relation to the application is that set out in s 14 of the Bail Act.  Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.

2. In terms of the strength of the appeal, Mr Nisbet emphasises the prospect of success on the sentence appeal.  His counsel says the Judge used too high a starting point and points out that the pre-sentence report recommended a sentence of community work.

3. It is not possible or appropriate on the limited information I have to assess the strength of the grounds of appeal at this stage.  Counsel for the Crown submits that on the basis of other comparable cases, the sentence imposed was within the available range.  Whether that is so and whether the Judge was correct not to impose home detention will be addressed at the hearing.  However, nothing has been raised to suggest that this is one of those exceptional cases in which bail pending appeal should be granted.[3]  It is relevant to the analysis that the matter has a hearing date of 30 March 2011 so the likely length of time to hearing is minimal.[4]

   [3]      Ellis v R [1998] 3 NZLR 555 (CA) at 560.

   [4]      Section 14(3)(c).

4. Mr Nisbet relies on two matters in terms of his personal circumstances.  The first is that until sentence he was in employment.  Secondly, his counsel says that he has received reports from the prison that Mr Nisbet is in the at-risk unit because of some mental health issues.

5. Neither factor is sufficiently compelling so as to mean bail is in the interests of justice.  The loss of employment is an unfortunate but not unusual consequence of conviction for offending of this nature.  As the Crown submits, there is nothing before me to suggest Mr Nisbet will not receive adequate care and treatment within the at-risk unit. 

Disposition

1. For these reasons, the application for bail is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent