Nobbs v R HC Auckland CRI 2010-404-383

[2010] NZHC 2420

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-383

VINCENT ADRIAN NOBBS

Applicant

v

THE CROWN

Respondent

Hearing:         3 December 2010

Appearances: L Smith for the Applicant

A J Pollett for the Crown

Judgment:      3 December 2010

ORAL JUDGMENT OF WHITE J

Solicitors:      Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

Lorraine O Smith, PO Box 47 089 Ponsonby, Auckland 1144

NOBBS V R HC AK CRI 2010-404-383  3 December 2010

[1]      This is an application by Mr Nobbs for EM Bail.  It is opposed by the Crown. [2]      Mr Nobbs currently faces 30 charges in this Court:

a)       Two counts of conspiracy to supply class A drug, methamphetamine, under s 6(2A) of the Misuse of Drugs Act 1975, which provides for a maximum penalty of 14 years imprisonment;

b)        One count of possession of methamphetamine for supply, under ss

6(1)(f)  and  6(2)  which  provides  for  a  maximum  penalty  of  life imprisonment; and

c)        27 counts of supplying methamphetamine, under ss 6(1)(c) and 6(2)

which provides for a maximum penalty of life imprisonment. [3]      Mr Nobbs also faces two charges in the District Court at Auckland:

a)       Possession of a firearm without lawful purpose, under s 45(1)(b) of the Arms Act 1983, which provides for a maximum penalty of four years imprisonment or a $5,000 fine; and

b)        Possession  of  explosives  (namely,  12  gauge  shotgun  cartridges)

without lawful purpose, also under s 45(1)(b) with the same penalty.

[4] It is likely that the charges in this Court will be transferred to the District Court once any challenge to the interception warrant has been resolved: minute of Lang J dated 24 November 2010 at [1]. Although Lang J also indicated in his minute at [4] that inquiries would be made about the allocation of a seven day fixture in the District Court, it does not appear that any fixture has yet been allocated in that Court.

[5]      An application by Mr Nobbs for bail on 18 June 2010, when he faced a number of charges, was declined by District Court Judge McNaughton in the District Court at the North Shore.  The District Court Judge heard evidence about a sum of money found in the possession of Mr Nobbs on his property.   The District Court

Judge also considered the question of bail and his reasons for declining bail are set out in [26]-[32] of his decision as follows:

[26]      The evidence given by the defence witnesses, which I accept (that is

Elaine  Nobbs  and  Mr  Felton),  accounts  for  on  my  calculations  roughly

$77,000.   The balance of the $140,000 is not accounted for from any legitimate source.  There is also no credible explanation as to how this sum of money ended up in the defendant’s car.  Mrs Nobbs told me that she has discussed this issue with the defendant since he was remanded into custody and  his  explanation is  that  he  was  holding the  $110,000  in  the  car  for safekeeping.  I have great difficulty accepting that as a credible explanation when I have heard that there is, in fact, a safe at the defendant’s house.

[27]      I am also concerned that, along with the money, drugs were found in the car; four grams of methamphetamine, three sets of scales, and tick book. I am irresistibly driven to the conclusion that at least some of that money is the proceeds of drug dealing.  Going through the figures again, this $60-70,000, which is not accounted for, and in the absence of any other explanation for its source, I am forced to the conclusion that that money is the proceeds of drug dealing.

[28]      I am reinforced in that conclusion by the summary of the evidence in the electronic operation that Mr Nobbs was supplying between seven and

10 grams  of  methamphetamine  a  day  to  Mr  Osbourne.    I  am  further

reinforced in that conclusion by the finding of a sawn-off shotgun, which is regrettably an almost inevitable conjunction where commercial amounts of methamphetamine are involved.  I am further reinforced in that conclusion by the finding of a surveillance system at the defendant’s address, which again is another trapping of commercial drug dealing.

[29]      I think there is merit in Sergeant Hagan’s submission that it follows from that conclusion that the defendant has suffered significant losses in terms of his business activities, both in terms of cash and drugs.   This is dealing at a commercial level where, almost inevitably, organised crime is involved in some form or another – whether that be motorcycle gangs or Asian gangs.   I cannot be sure precisely, but almost inevitably organised crime is involved at this level, and almost inevitably where there is organised crime involvement, there is pressure applied to recoup the losses.

[30]      I am quite satisfied that if Mr Nobbs were released from custody he would immediately set about trying to make good the losses and the only way he can do that is to sell drugs because he has no other legitimate sources of income.

[31]      I am quite satisfied that there is a significant risk of reoffending were he to be released on bail.  Mr Levett suggests that that risk can be met by conditions, such as a 24 hour curfew and the condition that he not possess a cellphone.

[32]  Regrettably, experience has shown that in cases where methamphetamine manufacturers or dealers are bailed on those conditions, they are almost inevitably breached at some point between arrest and trial.  I am not satisfied that those conditions will address the risk of reoffending,

particularly where the pressure is going to be huge.   I do not see any bail conditions which can address the risk and bail is refused.

[6]      Since  June  2010,  however,  further  serious  drugs  charges  have  been  laid against Mr Nobbs.   In these circumstances the Police, perhaps not surprisingly, oppose any form of bail being granted to Mr Nobbs.  In the Police EM Bail Report dated 11 November 2010, it is acknowledged that the proposed address is technically feasible, but the application is opposed for the following reasons:

•Proven negative response to Court imposed sanctions as evidenced by recent convictions of breaches Community Work and Driving Whilst Disqualified.

•    Previous offending whilst on bail.

•Of concern is that methamphetamine and a firearm were found at the home address.

•    The   potential   impact/repercussions   on   the   occupants,   should

NOBBS continue his involvement with the drug methamphetamine.

[7]      For Mr Nobbs, Mrs Smith has submitted:

a)        The charges are denied;

b)There  has  been  evidence  given  to  explain  the  possession  of  the firearms which belonged Mr Nobbs’ late brother;

c)       The  Police  concerns  about  the  child  at  the  address  have  been overcome because there is evidence that she left the address in December 2009 and will not return if EM Bail is granted;

d)It will be easier for counsel to take instructions if her client is out of prison;

e)        Other Police concerns can be met by EM Bail;

f)      Continuation of involvement with the drug methamphetamine is speculation.

[8]      For the Crown, Ms Pollett submitted that s 16 of the Bail Act 2000 applies and the application must be considered in this Court.  Mr Nobbs is not bailable as of

right: s 7(4) of the Bail Act.  The concerns identified by the District Court Judge in his decision in June 2010 are still present, particularly as further charges have been laid.  The District Court Judge was not satisfied with the evidence of Donna Felton about the money found on Mr Nobbs’ property.   If the Court were to rely on the affidavits filed, the Crown would seek an opportunity to consider them and to decide whether cross-examination was required.  The risks identified by the District Court Judge and in the Police report would not be addressed by a grant of EM Bail.

[9]      There is no dispute that this application is governed by ss 16, 7(4) and 8 of the Bail Act.  The criteria in s 8 are covered in the Police report and include concerns about the possible failure of Mr Nobbs to appear; the possibility of further offending while on bail; the nature of the serious drugs charges against him; the strength of the evidence; the potential seriousness of punishment; his 32 previous convictions that have resulted in prison sentences, suspended prison sentences, community work, non-residential periodic detention, fines and driving disqualifications; and his history of offending on bail or breaching court orders.

[10]   I am particularly influenced by the decision of District Court Judge McNaughton who was not satisfied that bail would be granted when he considered the application in June this year.  Since then further charges have been laid which means that Mr Nobbs’ position has worsened significantly and that the risks in the context of s 8 of the Bail Act have increased rather than decreased.

[11]     I have considered the submission for Mr Nobbs by Mrs Smith that these risks can all be addressed by EM Bail, but I am not satisfied that in fact they would be.  I am not therefore prepared to grant the application.  Mr Nobbs is already remanded in

custody to the callover on 2 February 20111 at 9.00 am: the minute of Lang J at [2].

D J White J